Federal Register Vol. 82, No.69,

Consistent with the memorandum of January 20, 2017, to the heads of executive departments and agencies from the Assistant to the President and Chief of Staff entitled “Regulatory Freeze Pending Review,” on February 7, 2017, GIPSA extended the public comment period and delayed the effective date of the interim final rule entitled “Scope of sections 202(a) and (b) of the Packers and Stockyards Act” that was published in the Federal Register on December 20, 2016, 81 FR 92566. The comment period was extended at that time to March 24, 2017, and the effective date delayed to April 22, 2017.

Given the significant public interest in this rule, GIPSA has found that the initial delay of the effective date to April 22, 2017, will likely not provide sufficient time for USDA to adequately consider all comments received and make informed policy decisions regarding this rule. GIPSA is therefore further delaying the effective date of this rule an additional 180 days to October 19, 2017. In addition, GIPSA will publish a proposed rule that solicits public comments on the direction that USDA should take with respect to the rule. The public will have a 60-day comment period to specify whether USDA should (1) let the rule become effective, (2) suspend the rule indefinitely, (3) delay the effective date of the rule further, or (4) withdraw the rule.

As published, this interim final rule states the USDA's long held interpretation that not all violations of the P&S Act require a showing of harm or likely harm to competition. Section 201.3(a) specifically provides that the scope of section 202(a) and (b) encompasses conduct or action that, depending on their nature and the circumstances, can be found to violate the P&S Act without a finding of harm or likely harm to competition. This interim final rule finalizes a proposed § 201.3(c) that GIPSA published on June 22, 2010, 75 FR 35338, with slight modifications in order to allow additional public comment on these provisions.

To the extent that 5 U.S.C. 553(b)(A) applies to this action, it is exempt from notice and comment rulemaking for good cause and for reasons cited above, GIPSA finds that notice and solicitation of comment regarding the extension of the effective date of the interim final rule are impracticable, unnecessary, or contrary to the public interest pursuant to 5 U.S.C. 553(b)(B). The delay of the effective date until October 19, 2017, should give GIPSA sufficient time to receive and consider public comments and to take action on the disposition of the IFR. Delaying the effective date would also reduce confusion or uncertainty for the industry while GIPSA determines the appropriate final disposition of the IFR. GIPSA believes that affected parties need to be informed as soon as possible of the extension and its length.

Background

On May 30, 2012, Bombardier applied for an amendment to Type Certificate No. T00003NY to include the new Model BD-700-2A12 and BD-700-2A13 airplanes. These airplanes are derivatives of the Model BD-700 series of airplanes and are marketed as the Bombardier Global 7000 (Model BD-700-2A12) and Global 8000 (Model BD-700-2A13). These airplanes are twin-engine, transport-category, executive-interior business jets. The maximum passenger capacity is 19 and the maximum takeoff weights are 106,250 lb. (Model BD-700-2A12) and 104,800 lb. (Model BD-700-2A13).

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 airplanes meet the applicable provisions of the regulations listed in Type Certificate No. T00003NY, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

In addition, the certification basis includes other regulations, special conditions, and exemptions that are not relevant to these special conditions. Type Certificate No. T00003NY will be updated to include a complete description of the certification basis for these airplane models.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model BD-700-2A12 and BD-700-2A13 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model BD-700-2A12 and BD-700-2A13 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes will incorporate the following novel or unusual design feature: The fuselage will be fabricated using aluminum-lithium alloy materials instead of conventional aluminum.

The Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes will be fabricated using aluminum-lithium materials. The performance of airplanes consisting of a conventional aluminum fuselage, in an in-flight, inaccessible-fire scenario, is understood based on service history, and extensive intermediate- and large-scale fire testing. Experience has shown that eliminating fire propagation of the interior and insulation materials tends to increase survivability because other aspects of in-flight fire safety (e.g., toxic-gas emission and smoke obscuration) are typically byproducts of the propagating fire. The fuselage itself does not contribute to in-flight fire propagation. This may not be the case for a fuselage fabricated from aluminum-lithium materials. Therefore, special conditions are necessary so that the Model BD-700-2A12 and BD-700-2A13 airplanes provide protection against in-flight fires propagating along the surface of the fuselage.

In the past, fatal in-flight fires have originated in inaccessible areas of airplanes where thermal or acoustic insulation was located adjacent to the airplane's aluminum fuselage skin. Research revealed that this area has been the path for flame propagation and fire growth. The FAA determined, in five incidents in the 1990s, that unexpected flame spread along thermal and acoustic insulation-film covering material, raising concerns about the fire performance of this material. In all cases, the ignition source was relatively modest and, in most cases, was electrical in origin (e.g., electrical short circuit, arcing caused by chafed wiring, ruptured ballast case, etc.).

In 1996, the FAA Technical Center began a program to develop new fire-test criteria for insulation films directly relating to in-flight fire resistance. This development program resulted in a new test method—the radiant-panel test—and also resulted in test criteria specifically established for improving the in-flight fire ignition and flame propagation of thermal and acoustic insulation materials based on actual, on-board fire scenarios.

The FAA determined that a test similar to the test for the measurement of insulation burnthrough resistance (14 CFR part 25, Appendix F, Part VII, “Test Method to Determine the Burnthrough Resistance of Thermal/Acoustic Insulation Materials”) could be used to assess the flammability characteristics of the proposed fuselage aluminum-lithium material. The only change to the test is the size of the sample and the sample holder, to accommodate panels of the fuselage material.

Bombardier must use the test method contained in Part VII of Appendix F, Test Method, for determining the burnthrough resistance of thermal-acoustic insulation materials, with the slight changes to the sample size and sample holder, as described in these special conditions, to show that the aluminum-lithium material complies with applicable requirements.

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

Notice of Proposed Special Conditions No. 25-16-06-SC for the Bombardier Model BD-700-2A12 and BD-700-2A11 airplanes was published in the Federal Register on October 26, 2016 (81 FR 74348). One comment was received.

The commenter acknowledged that the use of the aluminum-lithium alloy would require full certification to the existing regulations. However, they contend that the material is not novel and unusual and does not require special conditions.

The FAA does not agree. While it is true that, with materials presently tested, the proposed aluminum-lithium alloy does not appear to pose a significant risk, the existing regulations and guidance do not adequately address the use of this specific alloy technology.

Therefore, special conditions are required until the regulations are amended to provide sufficient requirements for the application of this new alloy technology.

As discussed above, these special conditions are applicable to Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes. Should Bombardier apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to the other model as well.

This action affects only a certain novel or unusual design feature on Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes. It is not a rule of general applicability and affects only the applicant who applied to FAA for approval of this feature on the airplane.

1. Bombardier must demonstrate that the aluminum-lithium material has equal or better flammability-resistance characteristics than the aluminum-alloy sheet material typically used as skin material on similar airplanes.

2. The test set-up and methodology must be in accordance with the tests described in 14 CFR part 25, Appendix F, Part VII, except for the following.

a. Each test sample must consist of a flat test specimen. A set of three samples of aluminum-lithium sheet material must be tested. The size of each sample must be 16 inches wide by 24 inches long by 0.063 inch thick.

b. The test samples must be installed into a steel-sheet subframe with outside dimensions of 18 inches by 32 inches. The subframe must have a 14.5-inch by 22.5-inch opening cut into it. The tests samples must be mounted onto the subframe using 0.250-20 UNC threaded bolts.

c. Test specimens must be conditioned at 70 °F + 5 °F, and 55% + 5% humidity, for at least 24 hours before testing.

3. The aluminum-lithium material must not ignite during any of the tests.

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede AD 2013-22-19, Amendment 39-17651 (78 FR 72554, December 3, 2013) (“AD 2013-22-19”). AD 2013-22-19 applied to all Gulfstream Aerospace Corporation Model GV and GV-SP airplanes. The SNPRM published in the Federal Register on December 24, 2015 (80 FR 80295). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on October 1, 2014 (79 FR 59162) (“the NPRM”). The NPRM proposed to supersede AD 2013-22-19. The NPRM was prompted by reports of two independent types of failure of the fuel boost pump with overheat damage on the internal components and external housing on one of the failure types, and fuel leakage on the other. The SNPRM proposed to reduce the compliance time for revising the airplane maintenance or inspection program. We are issuing this AD to prevent fuel leakage in combination with a capacitor clearance issue, which could result in an uncontrolled fire in the wheel well.

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

NetJets requested that we provide a source for earlier revisions of the required service information. NetJets stated that the NPRM specifies that the required service information is available from Gulfstream's Web site. NetJets stated that the Gulfstream Web site currently provides only the latest revision of each airplane maintenance manual (AMM) without the option to obtain earlier revisions, which will be incorporated by reference (IBR) in the AD.

We acknowledge NetJets' request. While previous revisions of the service information are not available through Gulfstream's Web site, operators may contact Gulfstream directly to obtain this information as specified in paragraph (p)(5) of this AD. We have updated this AD to reference the latest service information, which is available to operators through Gulfstream's Web site. We have not changed this final rule regarding this issue.

NetJets requested that we define the authority and meaning of the term “replaces” in regards to ADs. NetJets also requested that we revise the FAA's AD Manual, dated May 17, 2010 (FAA-IR-M-8040.1C). NetJets stated that “replaces” is not defined in the FAA's AD Manual or in other FAA guidance. NetJets commented that the FAA AD Manual defines the means of changing existing AD requirements to be through a “superseding AD action.” NetJets also stated that the SUMMARY section of the SNRPM also uses the term “supersede.”

We agree to clarify the use of the term “replaces” in regards to ADs. The term “replaces” in paragraph (b) of this AD is amendatory terminology required by the Office of the Federal Register. However, we use the term “supersede” or “superseding” in the SUMMARY section of AD actions because the FAA's AD Manual, dated May 17, 2010 (FAA-IR-M-8040.1C), does not use the term “replaces” when referring to an AD that supersedes or is superseded by another AD. As stated in the FAA AD Manual, we issue a supersedure when we need to correct an error that affects the substance of the AD or to expand the scope of the existing AD. We expect that the next revision of the FAA's AD Manual will incorporate the amendatory terminology required by the Office of the Federal Register. No change to this AD is necessary in this regard.

An anonymous commenter requested that we revise paragraph (i) of the proposed AD (in the SNPRM) to include a statement that the proposed requirements would not be required for those airplanes inspected under a 14 CFR 91.409(e) inspection program. The commenter stated that Task 28-26-01 is already mandated by the FAA-approved Airworthiness Limitations Section (ALS), which already mandates the task to be performed per the requirements of the ALS. Therefore, the commenter asserts that paragraph (i) of the proposed AD (in the SNPRM) is unnecessary for airplanes inspected under a 14 CFR 91.409(e) inspection program.

We disagree with the commenter's request. While 14 CFR 91.409(e) requires operators of turbojet multi-engine airplanes to comply with the replacement times of life-limited parts, 14 CFR 91.409(e) does not require operators to use later revisions of the AMMs that are specified in the type certificate. This AD is necessary in order to require revising the maintenance or inspection program, as applicable, to include the fuel leak check inspection of the fuel boost pumps specified in the applicable task identified in paragraph (j) of this AD. Paragraph (j) of this AD identifies specific revisions of the AMM, which are required for compliance with this AD. We have not changed this AD in this regard.

NetJets and an anonymous commenter requested that we revise paragraph (j) of the proposed AD (in the SNPRM) to refer to table 12, Certification Maintenance Requirements (CMR), in section 05-10-10, Airworthiness Limitations, of chapter 05, Time Limits/Maintenance Checks, of the applicable Gulfstream AMM. NetJets stated that paragraph (j) of the proposed AD (in the SNPRM) instead specifies the use of table 18, 500 Flight Hours Scheduled Inspection Table, in section 05-20-00, Scheduled Maintenance Checks. NetJets and the anonymous commenter stated that this task does not exist in section 05-20-00 of the current AMM; it is now found in table 12, Certification Maintenance Requirements (CMR), in section 05-10-10, Airworthiness Limitations, of chapter 05, Time Limits/Maintenance Checks, of the applicable Gulfstream AMM.

We agree with the commenters' requests for the reasons stated above. We have updated paragraphs (j)(1), (j)(2), and (j)(3) of this AD to refer to the correct table and section where the specified task is found. In addition, we have added paragraph (k) to this AD to provide credit for actions specified in paragraph (i) of this AD that are done before the effective date of this AD using the service information specified in paragraph (k) of this AD. We have re-designated subsequent paragraphs accordingly.

NetJets requested that we revise paragraph (j) of the proposed AD (in the SNPRM) to add “or later FAA-approved revision.” NetJets stated that section 05-20-00, Scheduled Maintenance Checks, of chapter 05, Time Limits/Maintenance Checks; and task 28-26-01, Fuel Boost Pumps—Fuel Leak Check, of chapter 28, Fuel; of the Gulfstream V AMM are now at Revision 44, dated June 15, 2016. NetJets commented that referring to a previous revision of the AMM would result in an immediate petition for approval of an alternate method of compliance (AMOC) with the newly revised document. NetJets stated that this narrow language would require the operator to obtain an AMOC for each future revision of the AMM.

NetJets further requested that, if the “later approved revisions” language cannot be added, the latest revisions of the AMMs be added as a method of compliance in paragraph (j) of the proposed AD.

We disagree with the commenter's request to add language allowing use of later revisions. We cannot use the phrase “or later FAA-approved revisions” in an AD when referring to the service document. Doing so violates Office of the Federal Register's (OFR) regulations for approval of materials “incorporated by reference” in rules. See 1 CFR 51.1(f).

However, as we stated previously, we have updated this AD to refer to the current service information. Operators must request approval to use later revisions of the service information as an AMOC with this AD under the provisions of paragraph (n) of this AD. We have made no further change to this AD in this regard.

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 SNPRM for correcting the unsafe condition; and

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

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

We reviewed Gulfstream G500 Customer Bulletin 122, dated April 11, 2012 (for Model GV-SP airplanes designated as G500). This service information describes procedures for inspecting and replacing the fuel boost pumps.

We have also reviewed the following service information, as applicable, which describes, among other actions, a fuel leak check of the fuel boost pumps, and provides inspection intervals. These service documents are unique because they apply to different airplane models.

• Table 12, Certification Maintenance Requirements (CMR), in section 05-10-10, Airworthiness Limitations, of chapter 05, Time Limits/Maintenance Checks, of the Gulfstream V Maintenance Manual, Revision 44, dated June 15, 2016.

• Task 28-26-01, Fuel Boost Pumps—Fuel Leak Check, of section 28-26-01, Fuel Boost Pumps—Inspection/Check, of chapter 28, Fuel, of the Gulfstream V Maintenance Manual, Revision 44, dated June 15, 2016.

• Table 12, Certification Maintenance Requirements (CMR), in section 05-10-10, Airworthiness Limitations, of chapter 05, Time Limits/Maintenance Checks, of the Gulfstream G500 Maintenance Manual, Revision 25, dated June 15, 2016.

• Task 28-26-01, Fuel Boost Pumps—Fuel Leak Check, of section 28-26-01, Fuel Boost Pumps—Fuel Leak Checks, of chapter 28, Fuel, of the Gulfstream G500 Maintenance Manual, Revision 25, dated June 15, 2016.

• Table 12, Certification Maintenance Requirements (CMR), in section 05-10-10, Airworthiness Limitations, of chapter 05, Time Limits/Maintenance Checks, of the Gulfstream G550 Maintenance Manual, Revision 25, dated June 15, 2016.

• Task 28-26-01, Fuel Boost Pumps—Fuel Leak Check, of section 28-26-01, Fuel Boost Pumps—Inspection/Check, of chapter 28, Fuel, of the Gulfstream G550 Maintenance Manual, Revision 25, dated June 15, 2016.

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

We estimate that this AD will affect 357 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary replacements that will be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these replacements:

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 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, 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:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model DHC-8-102, -103, and -106 airplanes; and Model DHC-8-200 and DHC-8-300 series airplanes. The NPRM published in the Federal Register on October 26, 2016 (81 FR 74360) (“the NPRM”). The NPRM was prompted by reports of incorrect installation of the auto-ignition system due to crossed wires at one of the splices in the auto-relight system. The NPRM proposed to require inspecting the auto-ignition system for correct wiring, and doing corrective actions if necessary. We are issuing this AD to detect and correct incorrect wiring of the auto-ignition system, which could result in inability to restart the engine in flight and consequent reduced controllability of the airplane.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2013-36, dated November 19, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model DHC-8-102, -103, and -106 airplanes; and Model DHC-8-200 and DHC-8-300 series airplanes. The MCAI states:

Corrective actions include reconnecting any incorrect wiring of the auto-ignition system and performing a functional test. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9299.

We gave the public the opportunity to participate in developing this AD. We considered the comment received. The Air Line Pilots Association, International (ALPA) supported the NPRM.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD as proposed, except for 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 reviewed Bombardier Service Bulletin 8-74-05, Revision B, dated April 14, 2014. This service information describes procedures for inspecting the auto-ignition system for correct wiring, and doing corrective actions that include rewiring if needed, followed by a functional test of the auto-ignition system. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 88 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2015-03-01, Amendment 39-18097 (80 FR 7298, February 10, 2015) (“AD 2015-03-01”). AD 2015-03-01 applied to all Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. The NPRM published in the Federal Register on June 8, 2016 (81 FR 36813). The NPRM was prompted by updates to the weight and balance data needed to calculate the center of gravity for affected airplanes. The NPRM proposed to continue to require installing additional attaching hardware on the left and right engine fan cowl access panels and the nacelle attaching structures. The NPRM also proposed to require weight and balance data to be included in the Weight and Balance Manual and applicable logbooks for certain modified airplanes. We are issuing this AD to prevent damage to the fuselage and flight control surfaces from dislodged engine fan cowl access panels, and prevent incorrect weight and balance calculations. Incorrect weight and balance calculations may shift the center of gravity beyond approved design parameters and affect in-flight control, which could endanger passengers and crew.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2014-20R1, dated August 12, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. The MCAI states:

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

Air Wisconsin Airlines requested that we revise the NPRM to refer to Bombardier Service Bulletin 601R-71-034, Revision D, dated October 7, 2016. Air Wisconsin also asked that we add Bombardier Service Bulletin CF34-NAC-71-042, Revision C, dated September 4, 2016. Air Wisconsin stated that the hardware kits are identified in this service information.

We partially agree with the commenter's request. No additional work is required by Bombardier Service Bulletin 601R-71-034, Revision D, dated October 7, 2016; it merely adds notes for clarification and contains minor editorial changes. Since Bombardier Service Bulletin CF34-NAC-71-042, Revision C, dated September 4, 2016, is a secondary source of service information, it is not referenced in this AD.

We have revised the Related Service Information under 1 CFR part 51 section of the preamble and paragraphs (g) and (h) of this AD to refer to Bombardier Service Bulletin 601R-71-034, Revision D, dated October 7, 2016.

We have also redesignated paragraph (i) of the proposed AD as paragraph (i)(1) of this AD, and added credit for actions required by paragraph (g) of this AD if accomplished prior to the effective date of this AD using Bombardier Service Bulletin 601R-71-034, Revision C, dated May 8, 2015.

We have also added paragraph (i)(2) to this AD to provide credit for actions required by paragraph (h) of this AD if accomplished prior to the effective date of this AD using Bombardier Service Bulletin 601R-71-034, Revision C, dated May 8, 2015.

We have revised paragraph (j)(1)(ii) of this AD to clarify that Global AMOC 15-36, dated August 28, 2015, is approved for the corresponding provisions of paragraph (g) of this AD.

We reviewed the available data, including the comment 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 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.

Bombardier, Inc. has issued Service Bulletin 601R-71-034, Revision B, dated August 1, 2014; and Service Bulletin 601R-71-034, Revision D, dated October 7, 2016. The service information provides procedures for modifying the engine fan cowl access panels and the nacelle attaching structures. These documents are distinct because Service Bulletin 601R-71-034, Revision D, dated October 7, 2016, also includes weight and balance information. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 497 airplanes of U.S. registry.

The actions required by AD 2015-03-01 and retained in this AD take about 8 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $5,458 per product. Based on these figures, the estimated cost of the actions that are required by AD 2015-03-01 is $6,138 per product.

We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $42,245, or $85 per product.

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 above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

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

3. Will not affect intrastate aviation in Alaska; and

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

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

We received a report of an event on an American Champion Aircraft Corp. Model 8KCAB airplane. In this event the pilot reported a stuck aileron during some phases of flight. The pilot was able to “un-stick” the aileron and land the airplane. Upon inspection, the operator found cracked structure around several of the aileron hinges. This AD was prompted by a report of a cracked hinge support and cracked hinge ribs, which resulted in partial loss of control with the aileron binding against the cove. This condition, if not corrected, could result in failure of the aileron support structure; leading to excessive deflection, binding of the control surface, and potential loss of control. We are issuing this AD to correct the unsafe condition on these products.

We reviewed American Champion Aircraft Corp. Service Letter 442, dated February 16, 2017. The service information describes procedures for initial and repetitive inspections of the aileron hinge rib and support. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Information.” This AD also requires sending the inspection results to the FAA so that appropriate FAA-approved repair action can be incorporated and the information can be evaluated for any possible future inspections or modifications.

American Champion Aircraft Corp. Service Letter (SL) 442, dated February 16, 2017, requires repetitive inspections. The FAA has not determined whether these intervals are appropriate. This AD includes fabrication and installation of a placard limiting aerobatic flight for the 10 flight hours allowed prior to the inspection. The service information does not contain such a placard limitation. The service information requires reporting inspection results to American Champion. This AD requires reporting of inspection results to the FAA. The service information does not address corrective actions if cracks are found. This AD will not allow further flight for airplanes with known cracks. The actions required by this AD take precedence over the service information.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because these cracks can lead to a loss of control and current evidence suggests they are growing rapidly. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2017-0283 and Directorate Identifier 2017-CE-009-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD affects 64 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We are adopting amendments to Rule 405 1 and Forms C,2 S-1,3 S-3,4 S-4,5 S-8,6 S-11,7 F-1,8 F-3 9 and F-4 10 under the Securities Act; 11 Rule 12b-2,12 Rule 14a-21 13 and Forms 10,14 8-K,15 10-Q,16 10-K,17 20-F 18 and 40-F 19 under the Exchange Act; 20 Rule 2-02 21 and Rule 3-02 22 of Regulation S-X; 23 Rule 100 24 and Rule 201 25 of Regulation Crowdfunding; 26 and Items 301,27 303,28 308,29 402 30 and 1101 31 of Regulation S-K.32

We are adopting several technical amendments to conform our rules and forms to certain provisions of Title I of the JOBS Act.33 Title I amended the Securities Act and the Exchange Act to provide several exemptions from a number of shareholder voting, disclosure and other regulatory requirements for an issuer that qualifies as an “emerging growth company” 34 (“EGC”). Specifically, the regulatory relief provided under Sections 102 and 103 of the JOBS Act: 35

• permits an EGC to include only two years of audited financial statements in its common equity initial public offering registration statement (“IPO registration statement”); 36

• permits an EGC to provide Management's Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”) disclosures that correspond to the financial statements included in its IPO registration statement;

• permits an EGC to omit in other Securities Act registration statements filed with the Commission selected financial data 37 for any period prior to the earliest audited period included in its IPO registration statement;

• permits an EGC to omit selected financial data for any period prior to the earliest audited period included in its first registration statement that became effective under the Exchange Act or Securities Act in any Exchange Act registration statement, periodic report or other report filed with the Commission;

• exempts an EGC from the advisory shareholder votes on the compensation of its named executive officers (“say-on-pay”), the frequency of the say-on-pay votes (“say-on-frequency”) and golden parachute compensation arrangements with any named executive officers required by Sections 14A(a) 38 and (b) 39 of the Exchange Act;

• permits an EGC to comply with executive compensation disclosure requirements under Item 402 of Regulation S-K by providing the same executive compensation disclosure as a smaller reporting company; 40

• permits an EGC to defer compliance with any new or revised financial accounting standards until the date that companies that are not “issuers” as defined in Section 2(a) of the Sarbanes-Oxley Act 41 are required to comply; 42 and

• exempts an EGC from the Sarbanes-Oxley Act Section 404(b) 43 auditor attestation on management's assessment of its internal controls.44

The amendments to the Securities Act and Exchange Act included in Sections 102 and 103 of the JOBS Act are self-executing and became effective once that Act was signed into law. However, several of our rules and forms for registration under the Securities Act and the Exchange Act, as well as Exchange Act periodic and current reports, Regulation S-K and Regulation S-X, currently do not reflect these JOBS Act provisions.

Title I of the JOBS Act also added new Securities Act Section 2(a)(19) and Exchange Act Section 3(a)(80) to define the term “emerging growth company.” Pursuant to the statutory definition, the Commission is required every five years to index to inflation the annual gross revenue amount used to determine EGC status to reflect the change in the Consumer Price Index for All Urban Consumers (“CPI-U”) published by the Bureau of Labor Statistics (“BLS”).45 We are adopting amendments to our rules to define the term “emerging growth company” so as to reflect the inflation adjustment to the annual gross revenue amount.

Title III of the JOBS Act also added new Securities Act Section 4(a)(6),46 which provides an exemption from the registration requirements of Securities Act Section 5 47 for certain crowdfunding transactions, and the Commission has promulgated Regulation Crowdfunding 48 to implement that exemption. Sections 4(a)(6) and 4A 49 of the Securities Act set forth dollar amounts used in connection with the crowdfunding exemption, and Section 4A(h)(1) 50 states that such dollar amounts shall be adjusted by the Commission not less frequently than once every five years to reflect the change in the CPI-U published by the BLS. Pursuant to this directive, we are amending Regulation Crowdfunding to adjust those dollar amounts for inflation.

These amendments are discussed in more detail below.

Section 102(b)(1) of the JOBS Act amended Section 7(a) of the Securities Act to provide that (1) an EGC is permitted to present only two years of audited financial statements in its IPO registration statement, and (2) in any Securities Act registration statement other than its IPO registration statement, an EGC need not present selected financial data 51 under Item 301 of Regulation S-K for any period prior to the earliest audited period presented in its IPO registration statement. Under Rule 3-02 of Regulation S-X, issuers that are not smaller reporting companies are generally required to include three years of audited financial statements in a Securities Act registration statement. We are adopting amendments to Rule 3-02 of Regulation S-X and Form 20-F to conform them to amended Section 7(a) of the Securities Act.

Item 301 of Regulation S-K requires issuers that are not smaller reporting companies to include five years of selected financial data (or such shorter period as the issuer has been in existence) in any filing for which such disclosure is required. The language in amended Section 7(a) of the Securities Act refers to “any other” registration statement and does not expressly address the application of the five years of selected financial data requirement in Item 301 of Regulation S-K to IPO registration statements filed by EGCs.52 In light of the other relief provided in amended Section 7(a), which permits an EGC to present only two years of audited financial statements in its IPO registration statement and, in subsequent registered offerings, to present selected financial data for no period earlier than that presented in its IPO registration statement, we interpret amended Section 7(a) to mean that an EGC need not present selected financial data for any period prior to the earliest audited period presented in its IPO registration statement.53 Otherwise, the intended relief of Section 7(a) with respect to selected financial data would not be available in an IPO registration statement, as it is with subsequent registration statements. Accordingly, we are adopting amendments to Item 301 of Regulation S-K to reflect this statutory interpretation.

Section 102(b)(2) of the JOBS Act amended Section 13(a) of the Exchange Act to provide that an EGC need not present selected financial data in an Exchange Act registration statement or periodic report for any period prior to the earliest audited period presented in the EGC's first effective registration statement under either the Exchange Act or Securities Act. We are adopting amendments to Item 301 of Regulation S-K to conform that provision to amended Section 13(a).

Section 102(c) of the JOBS Act provides that an EGC is permitted to comply with the MD&A requirements of Item 303(a) of Regulation S-K by providing disclosure covering only the audited financial statements for each period that Section 7(a) of the Securities Act requires to be presented in its IPO registration statement. Item 303(a) of Regulation S-K generally requires an issuer to discuss, among other things, the company's financial condition, changes in financial condition and results of operations for the previous three fiscal years and any interim periods. To conform the Item to Section 102(c), we are adopting amendments to Instruction 1 to Item 303(a). The amendments specify that if an EGC, pursuant to Section 7(a) of the Securities Act, provides audited financial statements for two years in a Securities Act registration statement for the initial public offering of its common equity securities, it may provide the discussion required by Item 303(a) for its two most recent fiscal years.

Section 103 of the JOBS Act amended Section 404(b) of the Sarbanes-Oxley Act to provide that the auditor of an EGC does not need to attest to, and report on, management's assessment of the effectiveness of the EGC's internal control over financial reporting (“ICFR”). An EGC, however, is still required to establish and maintain internal control over financial reporting and, when applicable, to include a management's report on ICFR in its annual report. To conform our rules and forms to amended Section 404(b), we are adopting amendments to Article 2-02 of Regulation S-X, Item 308 of Regulation S-K, and Forms 20-F and 40-F to specify that the auditor of an EGC does not need to attest to, and report on, management's report on ICFR and that management does not need to include the auditor's attestation report on ICFR in an annual report required by Section 13(a) or 15(d) of the Exchange Act.

Section 102(c) of the JOBS Act provides in part that an EGC shall only be required to provide executive compensation disclosure pursuant to Item 402 of Regulation S-K to the same extent as a registrant “with a market value of outstanding voting and nonvoting common equity held by non-affiliates of less than $75,000,000.” Item 402(l) of Regulation S-K allows an issuer that is a smaller reporting company to provide the scaled executive compensation disclosures set forth in Items 402(m)-(r) of Regulation S-K. To conform this Item to Section 102(c), we are amending Item 402(l) of Regulation S-K to specify that EGCs also are permitted to provide the scaled executive compensation disclosure in Items 402(m)-(r) of Regulation S-K.

Exchange Act Rule 14a-21 requires registrants to conduct shareholder advisory votes on say-on-pay, say-on-frequency and golden parachute compensation arrangements with any “named executive officers.” 54 The rule applies to all registrants making a solicitation in connection with a meeting of shareholders at which directors are to be elected and for which compensation disclosure is required to be provided pursuant to Item 402 of Regulation S-K, or to registrants making a solicitation in connection with a meeting at which shareholders are asked to approve a merger, acquisition or sale of all or substantially all of the assets of an issuer.

Section 102(a) of the JOBS Act amended Section 14A(e) of the Exchange Act to exempt EGCs from say-on-pay, say-on-frequency votes, golden parachute compensation votes and the related disclosure provisions. We are adopting conforming amendments to Exchange Act Rule 14a-21 and Item 402(t) and Instruction 1 to Item 1011(b) of Regulation S-K that specify that an EGC is not required to conduct shareholder advisory votes on say-on-pay, say-on-frequency, and golden parachute compensation, or provide the related disclosures. In addition, Section 102(a) of the JOBS Act amended Section 14A of the Exchange Act to provide for a transition period when an EGC exits EGC status before it has to seek a shareholder advisory vote on say-on-pay. We are adding a new instruction to Rule 14a-21 to reflect the transition period set forth in the JOBS Act.

The definition of “emerging growth company” in Section 101(a) of the JOBS Act applies to any company meeting the criteria specified therein and is not dependent on the jurisdiction of incorporation or organization, the holders of the issuer's voting securities or that of its executive officers or directors, assets or business operations. Accordingly, a foreign private issuer 55 that qualifies as an EGC may comply with the scaled disclosure provisions available to EGCs to the same extent as a domestic issuer. Sections 102 and 103 of the JOBS Act, however, refer to Regulation S-K provisions that apply to domestic issuers, whereas the corresponding disclosure requirements for foreign private issuers are applied through the disclosure content of Form 20-F or, where applicable, Form 40-F. Under Item 8.A. of Form 20-F, a foreign private issuer is generally required to include three years of audited financial statements. In addition, Item 3.A. generally requires a foreign private issuer to include five years of selected financial data. To conform the disclosure requirements of Form 20-F with the disclosure relief provided under the JOBS Act,56 we are amending the form to add instructions to Items 8.A.57 and 3.A. to reflect the availability of the scaled financial disclosure requirements under Sections 102 and 103 of the JOBS Act to a foreign private issuer that is an EGC.58 We are making revisions to Form 40-F to reflect the availability of the scaled financial disclosure requirements under Section 103 of the JOBS Act to a foreign private issuer that is an EGC.

Section 102(b) of the JOBS Act amended Section 7(a)(2)(B) of the Securities Act and Section 13(a) of the Exchange Act to state that an EGC “may not be required to comply with any new or revised financial accounting standard” until such standard is applicable to companies that are not “issuers” under Section 2(a) of the Sarbanes-Oxley Act, if such standard applies to companies that are not issuers. These revisions provide EGCs with additional time to apply any updates to the Financial Accounting Standards Board (“FASB”) Accounting Standards codification as compared to non-EGC issuers.59

Under Section 107 of the JOBS Act, an EGC may forgo any of the Title I disclosure exemptions and instead comply with the requirements that apply to an issuer that is not an EGC. Section 107(b), however, provides that if an EGC opts out of the extended transition period for complying with new or revised accounting standards, it must do so at the time it is “first required to file a registration statement, periodic report, or other report with the Commission under Section 13 of the Securities Exchange Act of 1934” and notify the Commission of its choice.60 Pursuant to Section 107, an EGC that opts out of the extended transition period must comply with all new or revised accounting standards to the same extent that a non-EGC is required to comply with such standards and continue to do so for as long as the issuer remains an EGC.61 This election is irrevocable.

To provide a uniform method for an EGC to notify the Commission and the public pursuant to Section 107 of the JOBS Act that it is an EGC and of its decision as to whether or not to opt out of the extended transition period for complying with new or revised accounting standards, we are adopting minor revisions to Securities Act Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3 and F-4 and Exchange Act Forms 10, 8-K, 10-Q, 10-K, 20-F and 40-F. These amendments modify the cover page of those forms to include two check boxes for an issuer to indicate whether, at the time of the filing, the issuer is an EGC and whether it has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act and Section 13(a) of the Exchange Act.

JOBS Act Section 101 amended Section 2(a)(19) of the Securities Act and Section 3(a)(80) of the Exchange Act to define “emerging growth company” to mean an issuer that had total annual gross revenues of less than $1 billion, as such amount is indexed for inflation every five years by the Commission to reflect the change in the CPI-U during its most recently completed fiscal year. By statute, the adjusted threshold must be set to the nearest $1,000,000. Pursuant to this directive, we are adopting an amendment to Securities Act Rule 405 and to Exchange Act Rule 12b-2 to include a definition for the term “emerging growth company” that indexes the statutory annual gross revenues amount to the CPI-U.

To determine the new EGC gross revenue threshold to be included in the amendments, first we determine the appropriate CPI-U for December of the calendar year preceding the year of adjustment. Because we are making the inflation adjustment for the definition of EGC in 2017, we use the CPI-U for December 2016, which was 241.432 (“2016 CPI-U”).62 We then determine the CPI-U for December of the calendar year before the EGC definition was established by the JOBS Act, which was 2011. We thus use the CPI-U for December 2011, which was 225.672 (“2011 CPI-U”).

Second, we calculate the cost-of-living adjustment or inflation factor. To do this we divide the 2016 CPI-U by the 2011 CPI-U. The resulting inflation factor is 1.06984.

Third, we calculate the raw inflation adjustment, which is the inflation adjustment before rounding. To do this, we multiply the current EGC gross revenue threshold, $1,000,000,000, by the inflation factor 1.06984, which equals $1,069,840,000.

Fourth, we round the raw inflation amounts according to the convention set forth in the statutory definition.63 Since we round only the increase amount, we calculate the increased amount by subtracting the current EGC gross revenue threshold from the raw maximum inflation adjustments. Accordingly, the increase in the EGC gross revenue threshold is $69,840,000 (i.e., $1,069,840,000 less $1,000,000,000). Under the statutory rounding convention, the threshold is set to the nearest $1,000,000. Therefore, the rounded increase in the EGC gross revenue threshold is $70,000,000.

Fifth, we add the rounded increase to the current EGC revenue threshold (i.e., $1,000,000,000). The inflation-adjusted EGC gross revenue threshold is $1,000,000,000 plus $70,000,000, which yields a maximum inflation-adjusted EGC revenue threshold of $1,070,000,000. The “emerging growth company” definitions being adopted in Securities Act Rule 405 and Exchange Act Rule 12b-2 reflect this adjusted threshold, and will henceforth be amended every five years to account for future inflation adjustments.

Title III of the JOBS Act amended the Securities Act to add Section 4(a)(6), which provides an exemption from the registration requirements of Section 5 of the Securities Act for certain crowdfunding transactions. The Commission has adopted Regulation Crowdfunding to implement that exemption.64 Sections 4(a)(6) and 4A of the Securities Act set forth dollar amounts used in connection with the crowdfunding exemption,65 and Section 4A(h)(1) 66 states that those dollar amounts shall be adjusted by the Commission not less frequently than once every five years to reflect any changes in the CPI-U. Pursuant to this directive, we are amending Rules 100 and 201(t) of Regulation Crowdfunding and Securities Act Form C to adjust the dollar amounts set forth in these rules to inflation.

To determine the adjusted dollar amounts, we use the same process as described above in connection with the EGC adjustment to determine the raw inflation amounts.67 Then we round up the raw inflation amounts to the nearest $100 for amounts under $100,000 and to the nearest $1,000 for amounts that equal or exceed $100,000. Tables 1 and 2 show the inflation-adjusted amounts for Rules 100 and 201(t).68

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

On December 13, 2016, ABC Events, Inc. of Arnold, MD notified the Coast Guard that it will be conducting the Bay Bridge Paddle from 7:30 a.m. to 12:30 p.m. on April 29, 2017. The event will be located adjacent to Sandy Point State Park at Annapolis, MD, and under and between the north and south bridges that comprise the William P. Lane, Jr. (US-50/301) Memorial Bridges, located between Sandy Point, Anne Arundel County, MD and Kent Island, Queen Anne's County, MD. On February 14, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Special Local Regulation; Chesapeake Bay, Between Sandy Point and Kent Island, MD” in the Federal Register (82 FR 10555). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this paddle race. During the comment period that ended March 16, 2017, we received 2 comments. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register, because allowing a 30-day period with respect to this rule would be impracticable due to the date of the event.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The COTP Maryland-National Capital Region has determined that potential hazards associated with the paddle race on April 29, 2017 will be a safety concern for anyone intending to operate within certain waters of the Chesapeake Bay between Sandy Point and Kent Island, MD. The purpose of this rule is to protect event participants, spectators and transiting vessels on certain waters of the Chesapeake Bay before, during, and after the scheduled event.

As noted above, we received 2 comments on the NPRM published on February 14, 2017. There are no changes in the regulatory text of this rule from the text previously proposed in the NPRM.

Comments were received from the Baltimore Port Alliance Executive Steering Committee, they stated that the proposed regulated area for this event would block commercial vessel access to and from the Port of Baltimore for five hours, and that any restrictions on vessel traffic in or out of the port could result in a significant economic hardship for port stakeholders by disrupting committed ship schedules. Additionally, the committee recommended re-routing the paddle race course in a manner that would not block the main shipping channel or to change the date of the paddle race to coincide with the annual Great Chesapeake Bay Swim event a month later, so that only one blockage of the main shipping channel would occur.

The Coast Guard agrees that waterway restrictions, when necessary, should be as limited in scope and duration. For this event, sufficient notice has been provided for persons to schedule, coordinate and adjust their ship schedules. The Coast Guard will work with the port stakeholders to carefully monitor potential impacts to commercial vessel movements in the vicinity of the marine event area. It is impractical to conduct the events concurrently; as the two marine events are significantly different. The safety of paddlecraft participants and swimmers both numbering in the hundreds would be negatively impacted by occupying the same navigable waters. The event schedule for the Great Chesapeake Bay Swim is dependent upon tidal current predictions; the possibility exists, should both events be conducted on the same day, waterway restrictions would last for a significantly longer period of time having a greater impact on waterway users.

Comments were received from an amateur paddler, supporting the manner the proposed regulation for this event would be enforced. The paddler indicated the regulation showed prudent judgment and was carefully considered by the Coast Guard, would enhance safety to event participants while minimizing restrictions on mariners and would allow continued recreational access to the Chesapeake Bay by the public.

The Coast Guard strives to ensure equitable use of federal waterways like the Chesapeake Bay. During this event the Coast Guard will only enforce the regulated area during the enforcement period.

This rule establishes special local regulations from 7 a.m. to 1 p.m. on April 29, 2017, and, if necessary due to inclement weather, from 7 a.m. to 1 p.m. on April 30, 2017. The regulated area will include all navigable waters of the Chesapeake Bay, adjacent to the shoreline at Sandy Point State Park and between and adjacent to the spans of the William P. Lane Jr. Memorial Bridges, from shoreline to shoreline, bounded to the north by a line drawn from the western shoreline at latitude 39°01′05.23″ N., longitude 076°23′47.93″ W.; thence eastward to latitude 39°01′02.08″ N., longitude 076°22′58.38″ W.; thence southward to latitude 38°59′57.02″ N., longitude 076°23′02.79″ W.; thence eastward and parallel and 500 yards north of the north bridge span to eastern shoreline at latitude 38°59′13.70″ N., longitude 076°19′58.40″ W.; and bounded to the south by a line drawn parallel and 500 yards south of the south bridge span that originates from the western shoreline at latitude 39°00′17.08″ N., longitude 076°24′28.36″ W.; thence southward to latitude 38°59′38.36″ N., longitude 076°23′59.67″ W.; thence eastward to latitude 38°59′26.93″ N., longitude 076°23′25.53″ W.; thence eastward to the eastern shoreline at latitude 38°58′40.32″ N., longitude 076°20′10.45″ W., located between Sandy Point and Kent Island, MD. The duration of the regulated area is intended to ensure the safety of vessels and these navigable waters before, during, and after the event, currently scheduled to being at 7:30 a.m. and last until 12:30 p.m. Except for Bay Bridge Paddle participants, no vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP Maryland-National Capital Region or designated Coast Guard Patrol Commander.

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

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

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed it.

As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This regulatory action determination is based on the size and duration of the regulated area, which would impact a small designated area of the Chesapeake Bay for 6 hours. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area. Moreover, the rule will allow vessels to seek permission to enter the regulated area, and vessel traffic will be able to safely transit the regulated area once the COTP or designated Coast Guard Patrol Commander deems it safe to do so.

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area lasting for 6 hours. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sail board racing. Normally such actions are categorically excluded from further review under paragraph 34(h) of Figure 2-1 of Commandant Instruction M16475.lD. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

I. Background, Purpose and Legal Basis

The DELAIR Memorial Bridge across the Delaware River, mile 104.6, at Pennsauken Township, NJ, owned and operated by Conrail Shared Assets, has a vertical clearance of 49 feet above mean high water in the closed-to-navigation position. There is a daily average of 28 New Jersey Transit trains and 8 Conrail freight trains that cross the bridge and a daily average of 3 bridge openings that allow one or more vessels to transit through the bridge during each opening. The bridge is normally maintained in the closed position, due to the average daily number of trains crossing the bridge. The operating schedule is published in 33 CFR 117.716. This operating schedule has been in effect since 1984 and will not change with the implementation of remote operation of the bridge. This test deviation allows the bridge to be operated remotely from the bridge owner's South Jersey dispatch center in Mount Laurel, NJ.

The Delaware River is used by a variety of vessels including deep draft commercial vessels, tug and barge traffic, recreational vessels, and public vessels including military vessels of various sizes. The three-year average number of bridge openings and maximum number of bridge openings by month and overall for 2013 through 2015, as drawn from the data contained in the bridge tender logs, is presented below.

The bridge owner and the maritime community have been working together since 2013 in an effort to incorporate sensors and other technologies into the bridge and the Conrail South Jersey dispatch center to allow for the safe and effective remote operation of the bridge. The remote operation system includes eight camera views (four marine and four rail), two forward-looking infrared equipped camera views (marine), marine radar, a dedicated telephone line for bridge operations, radiotelephone on VHF-FM channels 13 and 16, and an automated identification system (AIS) transmitter to provide bridge status. The AIS transmitter has been installed on the New Jersey side of the bridge at the bridge and land intersection in approximate position 39 degrees, 58 minutes, 50.52 seconds North (39.9807), 75 degrees, 03 minutes, 58.75 seconds West (−75.06632). The AIS transmitter is assigned maritime mobile service identity (MMSI) number 993663001 and will provide the status of the bridge (open/closed/inoperative) via the name transmitted by the private aids to navigation as: DELAIR BRG-OPEN (fully open and locked position, channel light green), DELAIR BRG-CLOSED (other than fully open, not inoperative), or DELAIR BRG-INOP (other than fully open, inoperative). The AIS transmitter will transmit the bridge status every two minutes and upon a change in the bridge status.

The remote operation system is designed to provide equal or greater capabilities compared to the on-site bridge tender, in visibility of the waterway and bridge, and in signals (communications) via sound and visual signals and radio telephone (voice) via VHF-FM channels 13 and 16. The remote operation system also incorporates real-time bridge status via AIS signal to aid mariners in voyage planning and navigational decision-making, a dedicated telephone line (856) 231-2301 for bridge operations, and push-to-talk (PTT) capability on VHF-FM channel 13.

The remote operation system will be considered failed and qualified personnel will return and operate the bridge within 60 minutes, if any of the following conditions are found: (1) The remote operation system becomes incapable of safely and effectively operating the bridge from the remote operation center, (2) visibility of the waterway or bridge is degraded to less than equal that of an on-site bridge tender (all eight camera views are required), (3) signals (communications) via sound or visual signals or radio telephone (voice) via VHF-FM channels 13 or 16 become inoperative, or (4) AIS becomes inoperative.

The test deviation will commence at 8 a.m. on April 24, 2017, and conclude at 7:59 a.m. on October 21, 2017. During the test deviation, a bridge tender will be stationed on-site at the bridge and will be able to immediately take local control of the bridge, as required. Vessels that require an opening shall continue to request an opening via the methods (sound or visual signals or radio telephone (VHF-FM) voice communications) as defined in 33 CFR 117.15(b) through (d), via telephone at (856) 231-2301, or push-to-talk (PTT) on VHF-FM channel 13. Vessels may push the PTT button five times while on VHF-FM channel 13 and the South Jersey dispatch center, or bridge tender at the bridge, will receive and respond to the request and commence opening of the bridge. During the test deviation, if the South Jersey dispatch center does not respond to a vessel's request, or is unable to operate the bridge, the bridge tender at the bridge will take immediate action to respond to the vessel's request for a bridge opening and commence opening of the bridge in accordance with regulations.

During the second half of the test deviation period, commencing on or before 8 a.m. on July 23, 2017, the remote operation system will incorporate the capability to receive and respond to sound and visual signals from the remote operation center. Prior to incorporation of the capability to receive and respond to sound and visual signals from the remote operation center, the on-sight bridge tender will receive and respond to sound and visual signals and coordinate an opening of the bridge with the remote operation center. The signals for the remote operation center to respond to a sound signal for a bridge opening will include: (1) When draw can be opened immediately—a sound signal of one prolonged blast followed by one short blast and illumination of a fixed white light not more than 30 seconds after the requesting signal or (2) when the draw cannot be opened immediately—five short blasts sounded in rapid succession and illumination of a fixed red light not more 30 seconds after the vessel's opening signal. The signals to respond to a visual signal for a bridge opening will include: (1) When draw can be opened immediately—illumination of a fixed white light not more than 30 seconds after the requesting signal or (2) when the draw cannot be opened immediately—illumination of a fixed red light not more 30 seconds after the vessel's opening signal. The fixed white light will remain illuminated until the bridge reaches the fully open position. The fixed white and red lights will be positioned on the east (New Jersey) bridge abutment adjacent to the navigation span.

During the test deviation period, the bridge owner will collect data on the performance and operation of the bridge and efficacy of the remote operation system sensors, technologies, and processes and procedures. The incorporation of AIS is designed to enhance the availability of real-time information regarding the status of the DELAIR Bridge for vessel operators and other maritime stakeholders.

The bridge owner conducted significant coordination with the U. S. Coast Guard, Mariners' Advisory Committee for the Bay and River Delaware, and maritime stakeholders in 2013, 2014, and 2015, regarding remote operation of the DELAIR Bridge and in developing a plan to perform this test deviation. The bridge owner also met with the U. S. Coast Guard and Delaware River Pilots, and provided a tour of their South Jersey dispatch center and demonstration of the remote operation of the bridge for interested stakeholders, in January 2015.

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

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

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

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

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

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

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0697 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 12, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0697, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of November 23, 2015 (80 FR 72941) (FRL-9936-73), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10839) by Technology Sciences Group Inc. (1150 18th Street NW., Suite 1000, Washington, DC 20036) on behalf of Doosan Corporation (864 B/5F, Aict, 864-1, lui-dong, Yeongtong-gu, Suwon-si, Gyeonggi-do, 443-284, Republic of Korea). The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of monoethanolamine (CAS Reg. No. 141-43-5) when used as an inert ingredient (solvent) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest. That document referenced a summary of the petition prepared by Technology Sciences Group Inc. on behalf of Doosan Corporation, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has limited the maximum concentration of monoethanolamine to 3.35% by weight in pesticide formulations. The reason for this change is explained in Unit V.B. below.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for monoethanolamine including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with monoethanolamine follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by monoethanolamine as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

The acute oral and dermal toxicities are low in rats and rabbits for monoethanolamine. The lethal dose (LD50s) are >1,000 milligram/kilogram (mg/kg) in acute oral and dermal studies in the rat and rabbit, respectively. Monoethanolamine is irritating to the skin at 1%, very irritating at >1% and corrosive at 10% in the rabbit. It is corrosive to the eyes in rabbits. Acute inhalation toxicity is low; the LD50 is >1.3 milligram/liter. It is not a dermal sensitizer in the guinea pig maximization test or in the mouse local lymph node assay.

Subchronic exposure to rats administered monoethanolamine via the diet causes increases liver and kidney weights at 640 mg/kg/day. The NOAEL is 320 mg/kg/day.

Monoethanolamine did not cause developmental nor maternal effects up to 450 mg/kg/day, the highest dose tested, in a developmental toxicity study via gavage in rats.

In developmental studies via dermal exposure, maternal toxicity (irritation, necrosis, scabbing and scar formation) is observed in rats at 225 mg/kg/day. Developmental toxicity in rats is not observed at 225 mg/kg/day, the highest dose tested. In rabbits, maternal toxicity (skin irritation, necrosis, scabbing and scar formation) and developmental toxicity (reduced body weight) are observed at 75 mg/kg/day. The NOAEL is 25 mg/kg/day.

Parental, reproduction and offspring toxicities are observed at the limit dose, 1,000 mg/kg/day. Toxicity is manifested as decreased sperm head count in the cauda epididymidis; decreased absolute and relative weight of epididymides, cauda epididymidis and prostate; fewer implantation sites; higher post-implantation loss; and smaller litters in F0 and/or F1 animals. The parental, reproduction and offspring NOAELs are 300 mg/kg/day.

A chronic study conducted with a mixture containing 22% monoethanolamine is available in the dog. Monoethanolamine administered via the diet did not cause adverse effects up to 97.5 mg/kg/day (adjusted dose, 21.45 mg/kg/day, the highest dose tested.

Carcinogenicity studies with monoethanolamine are not available. However, a Derek Nexus structural alert analysis was conducted with monoethanolamine and indicated no structural alerts for carcinogenicity or mutagenicity. Therefore, monoethanolamine is not expected to be carcinogenic.

Monoethanolamine is negative in an Ames test, chromosomal aberrations, sister chromosome exchange and micronucleus assay and chromosomal aberration test. It is weakly positive in the micronucleus assay. However, based on the overall weight of evidence, monoethanolamine is not considered mutagenic.

Monoethanolamine administered as a vapor or liquid aerosol for 28 days causes severe lesions in the larynx, minimal to mild lesions in the nasal cavity, and minimal to mild signs of irritation in the trachea and bronchiolar epithelia at 50 mg/cubic meter (m3) (15.5 mg/kg/day). The NOAEL is 10 mg/m3 (3.1 mg/kg/day).

Clinical signs of neurotoxicity were observed in dogs and rats via oral and inhalation routes exposure. In an inhalation toxicity study conducted in 1960, initial excitation followed by central nervous system depression was observed in dogs exposed to continuous vapors at 12-26 parts per million (ppm) for 24 hours/day, 7 days/week for 90 days. However, these observations in dogs are considered due to the exposure regime rather than neurotoxic effects. In the same study, rats continuously exposed to 5 ppm of monoethanolamine displayed lethargy after 2 to 3 weeks of exposure. However, a more recent guideline study showed that rats exposed to monoethanolamine via inhalation for 28-days did not show central nervous system excitation, depression or lethargy. In this study, salivation was the only effect observed that suggested potential neurotoxicity but was not considered a neurotoxic effect because it is likely due to the severely irritating properties of monoethanolamine as it enters the nasal pharynx region. In a developmental toxicity study in rats, lethargy, decreased response to light cage “tap”, increased activity and agitation were observed at 500 mg/kg/day. Conversely, these effects were not reproduced in an OECD guideline 2-generation reproductive toxicity study at doses up to 1,000 mg/kg/day. In another study, rats administered a single dose monoethanolamine via intraperitoneal injection experienced a reduction in brain (16.5%) and red blood cell (24.8%) cholinesterase levels when compared to controls. In the same study, acetylcholinesterase activity was inhibited in isolated rat brain homogenate following exposure to 3665 microgram/milliliter (ug/ml) 2-aminoethanolamine. However, the effects in both studies are seen at doses (>3320 mg/kg) well above the limit dose, 1,000 mg/kg/day. Based on the overall weight of evidence from the available studies, EPA concluded that monoethanolamine is not neurotoxic.

Immunotoxicity studies are not available for review. However, evidence of immunotoxicity is not observed in the submitted studies.

Monoethanolamine is rapidly absorbed and metabolized. Following dermal or oral exposure, it is metabolized to acetaldehyde and ammonia. The reaction is catalyzed by ethanolamine deaminase and further degrade to CO2 via the formation of ethanolamine-O-phosphate. In rats, the liver was the most active site of metabolism. Monoethanolamine in the liver is methylated to choline and converted to serine which in turn is made into hepatic proteins. In mice, urinary metabolites are urea and glycine, along with smaller concentrations of serine, monoethanolamine, choline and uric acid. Similarly, in rats, urinary metabolites include urea, hippuric acid and uric acid. Dermal absorption is estimated to be 60%.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for monoethanolamine used for human risk assessment is shown in the Table of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to monoethanolamine, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from monoethanolamine in food as follows:

Dietary exposure (food and drinking water) to monoethanolamine can occur following ingestion of foods with residues from treated crops. Because no adverse effects attributable to a single exposure of monoethanolamine are seen in the toxicity databases, an acute dietary risk assessment is not necessary. For the chronic dietary risk assessment, EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID TM, Version 3.16, and food consumption information from the U.S. Department of Agriculture's (USDA's) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, no residue data were submitted for monoethanolamine. In the absence of specific residue data, EPA has developed an approach which uses surrogate information to derive upper bound exposure estimates for the subject inert ingredient. Upper bound exposure estimates are based on the highest tolerance for a given commodity from a list of high use insecticides, herbicides, and fungicides. One hundred percent crop treated was assumed, default processing factors, and tolerance-level residues for all foods and use limitations of not more than 3.35% by weight in pesticide formulations. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts,” (D361707, S. Piper, 2/25/09) and can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

2. Dietary exposure from drinking water. For the purpose of the screening-level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for monoethanolamine, a conservative drinking water concentration value of 100 parts per billion (ppb) based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

Monoethanolamine may be used as an inert ingredient in pesticide products that are registered for specific uses that may result in residential exposure, such as pesticides used in and around the home. For residential handlers, the Agency assumed handlers may receive short-term dermal and inhalation exposure to monoethanolamine from formulations containing the inert ingredient in outdoor and indoor scenarios. Intermediate-term or long-term exposure is not expected because applications are not expected to occur daily or for more than 30 days. For post-application exposures to monoethanolamine in pesticide formulations, the Agency assumed short-term dermal exposures to adults from use on treated lawns and indoor surfaces and short-term and intermediate-term dermal and oral exposures to children from treated lawns, soils, and indoor surfaces. Since monoethanolamine is not expected to be used as an inert ingredient in pesticide aerosol products such as total release insecticide foggers, and given the fact that monoethanolamine has a low vapor pressure (<1 mm Hg), it is not expected to volatilize in indoor environments; therefore, post-application inhalation exposure is not expected. A conservative residential exposure and risk assessment was completed for pesticide products containing monoethanolamine as inert ingredients.

Monoethanolamine is also present in cosmetics. Although the Agency does not have data with which to quantitatively assess exposures that result from these non-pesticidal (i.e., cosmetic) uses of monoethanolamine, the Agency expects that the exposures to amounts of monoethanolamine that might result from these uses are markedly less than the conservative estimates of residential exposures resulting from pesticide use and will not add any meaningful exposure to the Agency's assessments of residential exposure from pesticide use. This is based on the typical reported concentration ranges for monoethanolamine in cosmetics, pesticidal products and the specific use patterns and anticipated likely exposure levels, including the fact that cosmetics products with monoethanolamine are designed for discontinuous, brief use followed by thorough rinsing from the surface of the skin. Therefore, the Agency believes that any contribution to aggregate exposure from these non-pesticidal uses is likely to be negligible and therefore, the assessments of exposures due to pesticide uses are protective of non-pesticidal exposures.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found monoethanolamine to share a common mechanism of toxicity with any other substances, and monoethanolamine does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that monoethanolamine does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

The toxicity database for monoethanolamine contains a subchronic, developmental, two-generation reproduction, chronic and mutagenicity studies. There is no indication of immunotoxicity in the available studies; therefore, there is no need to require an immunotoxicity study. Fetal susceptibility is not observed in the developmental or reproduction toxicity studies in rats. Reproduction toxicity (decreased sperm head count in the cauda epididymidis; decreased absolute and relative weight of epididymides, cauda epididymidis and prostate; fewer implantation sites; higher post-implantation loss) is observed at the limit dose (1,000 mg/kg/day) only. Fetal toxicity (reduced body weight) is observed in the developmental toxicity study via the dermal route of exposure in the rabbits. However, the effect occurs in the presence of maternal toxicity (skin irritation, necrosis, scabbing and scar formation). As described in detail above, signs of potential neurotoxicity are observed in dogs and rats when exposed to monoethanolamine via inhalation and intraperitoneally. However, based on the overall weight of evidence from the available studies, EPA concluded that monoethanolamine is not neurotoxic. In addition, the Agency used conservative exposure estimates, with 100 percent crop treated, tolerance-level residues, conservative drinking water modeling numbers, and a conservative assessment of potential residential exposure for infants and children. Based on the adequacy of the toxicity, the conservative nature of the exposure assessment and the lack of concern for prenatal and postnatal sensitivity, the Agency has concluded that there is reliable data to determine that infants and children will be safe if the FQPA SF of 10x is reduced to 1x.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to monoethanolamine from food and water will utilize 1.7% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Monoethanolamine may be used as an inert ingredient in pesticide products that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to monoethanolamine. Using the exposure assumptions described above, EPA has concluded that the combined short-term aggregated food, water, and residential exposures result in MOEs of 182 for both adult males and females. Adult residential exposure combines high-end dermal and inhalation handler exposure from liquids/trigger sprayer/home garden with a high-end post-application dermal exposure from contact with treated lawns. EPA has concluded the combined short-term aggregated food, water, and residential exposures result in an aggregate MOE of 400 for children. Children's residential exposure includes total exposures associated with contact with treated lawns (dermal and hand-to-mouth exposures). As the level of concern is for MOEs that are lower than 100, these MOEs are not of concern.

Monoethanolamine is also present in some cosmetics, intended for discontinuous, brief use, followed by thorough rinsing from the surface of the skin. In the absence of actual residential exposure data resulting from such uses, the Agency considered information on the typical concentrations of monoethanolamine in cosmetics as well as typical use and likely exposures. Based on that review, the Agency believes the contribution from non-pesticidal (i.e., cosmetic) sources of monoethanolamine is likely to be insignificant compared to the exposures conservatively estimated to occur as a result of the use of monoethanolamine as an inert ingredient in pesticide formulations and that the assessments of aggregate exposures due to pesticide uses more than adequately protect for exposure from non-pesticidal uses.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Monoethanolamine may be used as an inert ingredient in pesticide products that could result in intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to monoethanolamine. Using the exposure assumptions described above, EPA has concluded that the combined intermediate-term aggregated food, water, and residential exposures result in aggregate MOEs of 1310 for adult males and females. Adult residential exposure combines liquids/trigger sprayer/home garden with a high-end post-application dermal exposure from contact with treated lawns. EPA has concluded the combined intermediate-term aggregated food, water, and residential exposures result in an aggregate MOE of 742 for children. Children's residential exposure includes total exposures associated with contact with treated lawns (dermal and hand-to-mouth exposures). As the level of concern is for MOEs that are lower than 100, this MOE is not of concern.

Monoethanolamine is also present cosmetics. In the absence of actual residential exposure data resulting from such uses, the Agency considered information on the typical concentrations of monoethanolamine in cosmetics as well as typical use and likely exposures. Based on that review, the Agency believes the contribution from non-pesticidal sources of monoethanolamine is likely to be negligible and that the assessments of aggregate exposures due to pesticide uses more than adequately protect for exposure from non-pesticidal uses.

5. Aggregate cancer risk for U.S. population. Based on a DEREK structural alert analysis, the lack of mutagenicity and the lack of specific organ toxicity in the chronic toxicity study, monoethanolamine is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to monoethanolamine.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of monoethanolamine in or on any food commodities. EPA is establishing a limitation on the amount of monoethanolamine that may be used in pesticide formulations applied to growing crops. That limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for use on growing crops for sale or distribution that exceeds 3.35% by weight of monoethanolamine.

Based upon an evaluation of the data included in the petition, EPA is establishing an exemption from the requirement of a tolerance for residues of monoethanolamine when used in pesticide formulations as an inert ingredient (solvent/co-solvent), not to exceed 3.35% by weight of the formulation, instead of the unlimited use requested. Because unlimited use of monoethanolamine resulted in aggregate risks of concern, the EPA is establishing a 3.35% limitation by weight of formulation to support the safety finding of this tolerance exemption. The concern for unlimited use of this inert ingredient is documented on page 5 of the Agency's risk assessment document “Monoethanolamine; Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Exemption from the Requirement of a Tolerance When Used as an Inert Ingredient in Pesticide Formulations,” which can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2015-0697.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.910 for residues of monoethanolamine (CAS Reg. No. 141-43-5) when used as an inert ingredient (solvent/co-solvent) at a maximum concentration of 3.35% by weight in pesticide formulations applied to growing crops or raw agricultural commodities after harvest.

This action establishes an exemption to the requirement for a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

Effective on October 14, 2016, Bacillus cereus Biovar anthracis was added to the list of HHS select agents and toxins as a Tier 1 select agent (81 FR 63138, September 14, 2016). In the interim final rule, HHS/CDC invited comments on the following questions:

(1) Are there other virulent (pBCXO1+ and pBCXO2+) strains of Bacillus species that should also be regulated?

(2) What is the impact of designating B. cereus Biovar anthracis as a Tier 1 select agent?

The comment period ended November 14, 2016.

We received two comments, both of which supported adding B. cereus Biovar anthracis to the list of HHS select agents and toxins. While both commenters supported the addition, one commented that the regulation of B. cereus Biovar anthracis will “restrict the ability of future laboratories and organizations to test for and analyze possible pBXO1 and pBXO2 isolates.” The commenter further argued that “new laboratories seeking the ability to analyze this select agent will incur substantial costs and urged HHS/CDC reassess the impacts that a $37,000 buy-in for new laboratories might have on the ability to understand this deadly microbe.” HHS/CDC made no changes based on this comment. HHS/CDC is not proposing to regulate other strains of B. cereus that have B. anthracis toxin genes as the data available do not suggest those strains pose a severe threat to public health (Ref. 1 and Ref. 2). HHS/CDC agrees that the regulations will impact new laboratories wishing to perform research with B. cereus Biovar anthracis. However, we believe that B. cereus Biovar anthracis has the same potential to pose a severe threat to public health as does Bacillus anthracis, currently regulated as a Tier 1 pathogen.

HHS/CDC adopts the interim rule, which was effective October 14, 2016 (81 FR 63138, September 14, 2016), as final without change. In accordance with the interim final rule, any individual or entity that possessed B. cereus Biovar anthracis on or after October 14, 2016, must provide notice to the CDC regarding their possession and must secure the agent against theft, loss, release, or unauthorized access; and by March 13, 2017, an individual or entity that intends to continue to possess, use, or transfer this agent is required to either register in accordance with 42 CFR part 73 or amend their current registration in accordance with 42 CFR 73.7(h) and meet all of the requirements of select agent regulations (42 CFR part 73).

This is a summary of the Commission's Second Report and Order in the Cellular Reform proceeding (Cellular Second R&O), WT Docket No. 12-40, RM Nos. 11510 and 11660, and the Commission's companion Report and Order in the Wireless Radio Services (WRS) Reform proceeding (WRS R&O), WT Docket No. 10-112, FCC 17-27, adopted March 23, 2017 and released March 24, 2017. The full text of the Cellular Second R&O and WRS R&O, including all Appendices, is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Room CY-A157, Washington, DC 20554, or by downloading the text from the Commission's Web site at https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-27A1.pdf. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Consumer and Government Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In a Report and Order released on November 10, 2014 in the Cellular Reform proceeding (WT Docket No. 12-40) (2014 Cellular R&O), the Commission adopted new and revised rules to change to a geographic-based licensing regime. Specifically, it revised the rules to establish geographic licenses based on cellular geographic service area (CGSA) boundaries and provided licensees with significant new flexibility to improve their systems through modifications within those boundaries. It preserved the ability of licensees to expand their CGSAs into Unserved Area if the area is at least 50 contiguous square miles, but dramatically reduced application filing burdens by permitting incumbents to serve indefinitely, on a secondary basis, Unserved Area parcels smaller than 50 contiguous square miles. It eliminated other filing requirements and established a field strength limit rule tailored to reflect the continued ability to expand Cellular service area coverage. These reforms put Cellular licensing more on par with the flexible licensing schemes in other similar mobile services, such as the Broadband Personal Communications Service (PCS), the commercial service in the 700 MHz band (700 MHz Service), the 600 MHz Service, and various advanced wireless services (AWS).

2. Also in the Cellular Reform proceeding, the Commission released a companion Further Notice of Proposed Rulemaking on November 10, 2014 (Cellular Further Notice) proposing additional reforms of the Cellular licensing rules as well as reforms to the Cellular radiated power and related technical rules to further enhance flexibility and spectral efficiency. The Commission sought comment on its proposed reforms, including various options that would accommodate the use of a power spectral density (PSD) model, and on numerous related technical issues and licensing matters. The Commission sought comment on all aspects of its proposals as well as on other ideas, proposals, and comments discussed in the Cellular Further Notice, and also invited the submission of alternative ideas.

3. In response to the Cellular Further Notice, interested parties submitted comments, reply comments, and ex parte letters. The specific reforms adopted by the Commission in the Cellular Second R&O are described below.

4. Introduction. “PSD” describes the amount of effective radiated power (ERP) 1 that would be allowed per unit of bandwidth from a base station antenna (e.g., 100 watts/MHz), such that wider bandwidth emissions would be permitted more power commensurate with their bandwidth. With adoption of the Cellular Second R&O, the Commission adds a definition of PSD to the part 22 definitions in the rules, substantially as proposed in the Cellular Further Notice. Under the existing Cellular radiated power rules, as set forth in 47 CFR 22.913, power limits are expressed in terms of ERP without any reference to bandwidth, and these limits are applied per emission. The existing limits favor narrowband technologies, such as GSM, and disadvantage licensees wishing to deploy wideband technologies such as LTE. To facilitate efficient provision of advanced mobile wireless services using wideband technologies such as LTE, based on the record, the Commission adopts PSD limits as an option for Cellular licensees, with an advance notification requirement at specified higher PSD levels, and a power flux density (PFD) limit that will apply for a seven-year transition period if the Cellular licensee operates at PSD limits that exceed a certain threshold. For the purposes of this proceeding, “PFD” is the amount of radio frequency energy that would be present over a given unit of area (e.g., 100 microwatts per square meter). Therefore, PFD can be used to describe the strength of signals at ground level in a given location.

5. In reaching its decisions revising the Cellular power rules, the Commission recognizes that PSD and PFD limits are not a complete answer to eliminating unacceptable Cellular interference to public safety systems in the 800 MHz band, at least for the immediate term. The restructuring (rebanding) of the 800 MHz band commenced soon after the Commission adopted its Order in the 800 MHz rebanding proceeding in WT Docket No. 02-55 (2004 800 MHz Rebanding Order) to address the root cause of interference to public safety communications by moving public safety entities spectrally further from the Cellular and commercial Enhanced Specialized Mobile Radio (ESMR) frequencies. The rebanding has not yet been completed in portions of states bordering Mexico where complex international coordination is required, and in these areas, some public safety licensees continue to operate on frequencies adjacent to the lower edge of the Cellular band at 869 MHz. Even after rebanding is fully complete, some public safety licensees may still be susceptible to Cellular base station (and ESMR band) interference because the filtering in their legacy radios does not reflect the post-rebanding channel plan. Therefore, in revising the Cellular power rules in the Cellular Second R&O, the Commission has taken steps to protect public safety systems from a potential increase in unacceptable interference from Cellular PSD operations. These steps include: (1) Retaining (without change) the existing provisions in 47 CFR 22.970 through 22.973 which, by placing strict responsibility for remedying unacceptable interference on the licensee(s) causing that interference to public safety communications, serve as a “backstop” to help ensure that first responders' critical communications are not impeded; and (2) additional safeguards that will apply to Cellular PSD systems under certain circumstances. The Commission emphasizes that the additional safeguards, described further below, are in addition to, and not a replacement for, the interference resolution procedures set forth in 47 CFR 22.970 through 22.973. The Commission also directs the Wireless Telecommuni­ca­tions Bureau (Bureau), in conjunction with the Commission's Public Safety and Homeland Security Bureau (PSHSB) and Office of Engineering and Technology (OET) (collectively, Bureaus), to convene a public forum to facilitate stakeholder-led co-existence efforts. The components of this multi-pronged approach, including the specific PSD limits adopted for the Cellular Service, are discussed below.

6. PSD Limits. To meet the ever-increasing demand for ubiquitous, mobile data services, Cellular licensees need to utilize their spectrum as efficiently as possible. LTE is more spectrally efficient than other commercial wireless broadband technologies being used by Cellular carriers today; it can bring faster speeds, reduced latency, and better mobile service for the public. Carriers have already deployed LTE on their 700 MHz, AWS, and PCS spectrum, and the Commission's rules governing those services provide for use of a PSD model. If carriers were to deploy LTE on Cellular frequencies using the existing non-PSD limits, the result would be reduced coverage. To compensate for this reduction of coverage, additional sites would be needed. The resulting higher concentration of sites could potentially worsen the existing interference environment, especially near Cellular base stations where the risk to public safety communications is greatest. Additionally, while utilizing techniques such as multiple-input-multiple-output (MIMO) can achieve spectral efficiency, Cellular broadband licensees using 2X2 MIMO transmitters under the existing ERP limits will double their power, and here too, the result is potentially increased interference to public safety operations.

7. Providing technological flexibility and, to the extent practicable, regulatory parity for Cellular licensees via a PSD model to facilitate efficient use of more advanced wideband technologies without increasing the potential for unacceptable interference to 800 MHz public safety operations has been the primary two-pronged objective in this proceeding concerning power reform. The Commission finds that revising its rules to permit a PSD model option serves the public interest by allowing for efficient use of wideband technologies in the Cellular Service.2 Consistent with the radiated power rules adopted for other commercial wireless services, such as PCS and AWS, which include doubled PSD limits to facilitate economical coverage in rural areas, the Commission also finds that it serves the public interest to apply to PSD operations the doubling of power in rural counties (as permitted under the existing rule for non-PSD operations)—defined as counties with population densities of 100 persons or fewer per square mile, based on the most recently available population statistics from the Bureau of the Census. As in the case of the existing Cellular rule for non-PSD limits, this rural area power increase is limited to base stations more than 72 km (45 miles) from the Mexican and Canadian borders, consistent with current agreements with those countries.

8. Based on the record, the Commission concludes that the appropriate PSD limits for the Cellular Service are as follows: (1) 400 W/MHz ERP in non-rural areas, and 800 W/MHz in rural areas, without a PFD requirement; and (2) higher limits—up to 1000 W/MHz ERP in non-rural areas, and up to 2000 W/MHz ERP in rural areas (Higher PSD Limits) with, in both non-rural and rural areas, a PFD limit for seven years and an advance notification requirement. The advance notification requirement and the seven-year PFD limit are described further below.

9. PSD limits of 400 W/MHz ERP in non-rural areas and 800 W/MHz ERP in rural areas—without any PFD restriction—represent an equivalent amount of power across the Cellular band when compared to existing Cellular CDMA deployments. This achieves the two-pronged goal of providing enhanced technological flexibility for Cellular carriers while protecting public safety communications from increased interference. Consistent with the Commission's decisions for the 700 MHz Service, the Commission finds that it serves the public interest to permit Cellular Service operations at the Higher PSD Limits—up to 1000 W/MHz ERP (non-rural)/up to 2000 W/MHz ERP (rural)—with a PFD limit. This will afford Cellular carriers additional system design flexibility where, for example, increased power is needed for sites at higher elevation to achieve sufficient coverage in sparsely populated areas.3 As explained below, this higher-PSD-plus-PFD approach will enable better broadband service in such areas without increasing interference to public safety communications, as the PFD on the ground will be maintained at a level equivalent to that of a low site operating at lower power.

10. The Commission further concludes that the PSD limits should be applied per sector, rather than per transmitter. If the PSD limit were applied per transmitter, then using MIMO techniques of 2×2 or 4×4 could potentially double or quadruple the total energy radiating from a cell site and would likely worsen the interference environment, which undermines one of the primary goals in this proceeding and is contrary to the public interest. The Commission declines to adopt a bandwidth dividing line for PSD operations, finding it unnecessary and potentially a disadvantage to certain carriers.

11. Advance Notification Requirement at the Higher PSD Limits. As established in the record, public safety receivers remain vulnerable to interference from Cellular licensees in the 800 MHz band, and the Higher PSD Limits could increase the potential for interference. Therefore, one of the important safeguards the Commission adds to 47 CFR 22.913, as adopted in the Cellular Second R&O, is an advance notification requirement. Every Cellular licensee preparing to activate a cell site at the Higher PSD Limits will be required to provide a minimum of 30 days (but not more than 90 days) written advance notice to any public safety licensee then authorized in the frequency range 806-816 MHz/851-861 MHz with a base station located within a radius of 113 km of the Cellular base station to be deployed. The written notice shall include the location, ERP PSD level, height of the transmitting antenna's center of radiation above ground level, and the timeframe for activation of the cell site, as well as the Cellular licensee's contact information, with additional parameters to be provided upon request by a public safety licensee within the 113 km radius. This notification will be for informational purposes only; the notified public safety licensee(s) will not have the right to oppose the planned Cellular operations, but could analyze the cell site's potential for interference and suggest changes before the cell is activated. The Cellular licensee will have discretion to make changes, but will remain obligated to address complaints of interference in compliance with the applicable resolution procedures in 47 CFR 22.970 through 22.973.

12. The advance notification will be required only one time. Thus, for example, if the Cellular licensee prepares to operate a cell site at a PSD level of 425 W/MHz, it will be required to provide the requisite written notice at least 30 days (but not more than 90 days) in advance of that cell site's deployment, including the data specified above. Thereafter, if the same Cellular licensee increases the ERP PSD level at that same cell site (e.g., from 425 W/MHz to 550 W/MHz), it will not be required to provide additional notice under 47 CFR 22.913. To require more than a one-time notification would impose an unnecessary burden on Cellular licensees; once notified that a particular cell site will operate above 400 W/MHz (or 800 W/MHz in rural areas), a local public safety licensee will already be in a position to identify that particular cell site as a possible source of any new interference that is encountered. This requisite one-time notification will be yet another valuable tool to help public safety licensees assess a cell site's potential for interference and will enhance the interaction between Cellular and public safety communications operators that is so vital to co-existence in the 800 MHz band. This component of the Commission's approach thus advances its goals to provide system design flexibility to Cellular carriers, achieve parity among competing or complementary services, and safeguard spectral compatibility with licensees in adjacent markets and adjacent bands. Accordingly, the revised rule 22.913 adopted in the Cellular Second R&O includes an advance notice requirement.

13. The Commission emphasizes that this mandatory notice requirement is in addition to, and not a replacement for, any notice that a Cellular licensee may choose to provide voluntarily, nor is it a replacement for any other information exchanges that Cellular and public safety licensees undertake in the interest of interference avoidance.

14. The Commission places great weight on stakeholder-led measures—involving Cellular licensees, public safety licensees, and the manufacturers of public safety equipment—to achieve improved co-existence between commercial broadband and public safety communications in neighboring bands. The Commission therefore applauds the discussions that have already taken place among AT&T, Verizon, and the Association of Public-Safety Communications Officials-International, Inc. (APCO), and it applauds the resulting voluntary commitments made by AT&T and Verizon, as documented on the record and summarized in paragraphs 25 and 26 of the full text of the Cellular Second R&O—particularly their commitments that will entail testing, extensive collaboration with local public safety entities, and phased PSD roll-out in select markets. The Commission expects AT&T and Verizon to fulfill these commitments. The measures AT&T and Verizon have outlined, coupled with AT&T's experience to date in deploying PSD pursuant to four interim PSD waivers granted by the Bureau, will be extremely important to near-term co-existence of more advanced Cellular broadband services, such as LTE, and public safety communications. The Commission also acknowledges the additional voluntary commitment of AT&T and Verizon to give 30-day advance notice to public safety licensees when transitioning to PSD in additional markets after their planned testing and phased roll-out, as also summarized in paragraphs 25 and 26 of the full text of the Cellular Second R&O. This could include advance notice even for PSD operations at 400 W/MHz or less (or, in rural areas, at 800 W/MHz or less). The Commission encourages any and all cooperation aimed at avoiding interference to public safety communications.

15. Non-PSD ERP Limits. The Commission concludes that it serves the public interest to retain non-PSD ERP limits for Cellular licensees that either cannot or choose not to deploy systems using a PSD model. It further finds that the existing non-PSD ERP limits of 500 watts (W) ERP (non-rural) and 1000 W ERP (rural) continue to be sufficient and appropriate for the Cellular Service, and makes explicit in the rule that these non-PSD ERP limits apply per emission. The doubled power limits for Cellular licensees' rural operations that do not deploy technologies using PSD will continue to apply only to base stations that are more than 72 km (45 miles) from the Mexican and Canadian borders, consistent with current agreements with those countries. The decision to retain the existing non-PSD limits as an option will ensure that carriers using narrowband technologies such as GSM are not disadvantaged, as a requirement to use PSD could result in a power reduction in certain instances, which in turn would result in reduced coverage—a result that would be detrimental to consumers and licensees alike.

16. Cellular licensees will continue to be subject to the field strength limit rule adopted in the 2014 Cellular R&O, and thus, regardless of the location, power level, or height of the Cellular base stations, the signal level at the neighboring licensee's CGSA boundary may not exceed 40 dBµV/m, with certain exceptions outlined in the rule (47 CFR 22.983). Cellular licensees not deploying PSD operations will also continue to be subject to the coordination requirements set forth in 47 CFR 22.907 (discussed further below).

17. Seven-year PFD Limit at Higher PSD Limits; Sunset Date. The Commission's PSD decisions in this Cellular Second R&O further align the rules for the Cellular Service band with other bands used to provide competing commercial wireless services, but the Commission also considers the Cellular band's unique circumstances that warrant special requirements to prevent interference. The record shows that public safety equipment remains vulnerable to interference from Cellular Service operations even in areas where rebanding has been completed. Therefore, as an additional safeguard, the Commission adopts a PFD limit for Cellular base transmitters and repeaters operating at the Higher PSD Limits, to remain in effect for seven years from the effective date of revised rule 22.913. Specifically, the Commission adopts a modeled PFD limit of 3000 µW/m2/MHz at 1.6 meters above ground level, which represents the average height above ground of a public safety receiver being used by a person, and the Commission requires that the limit be observed over at least 98% of the area within 1 km of each base station antenna. For purposes of the Cellular Second R&O, the Commission uses “on the ground” and “at ground level” interchangeably to mean this 1.6-meter height above ground of a public safety receiver being used by a person. To determine compliance, this limit is to be modeled using good engineering practices accounting for terrain and local conditions—at the time of initial deployment at the Higher PSD Limits and for any site modifications thereafter that may increase the PFD levels around the site.

18. Factors other than ERP that contribute to the strength of PFD are antenna height, antenna down tilt, and ground elevation. Because of these factors, most sites have small “hot spots” where PFD will reach a high level in an extremely small area, making adoption of an absolute PFD limit impractical. Technical data provided by Cellular carriers depicting real-world deployment scenarios—using the existing radiated power limits—indicate that current Cellular operations produce a PFD of 3000 µW/m2/MHz, and that this limit is not exceeded in at least 98% of the area within 1 km of the base station. The Commission therefore concludes that a modeled PFD limit of 3000 µW/m2/MHz—not to be exceeded over 98% of the area within 1 km of the base station at 1.6 meters above ground—is appropriate for the Cellular Service.

19. This PFD limit will require Cellular licensees to consider very carefully the impact near the ground for each deployment at the Higher PSD Limits to ensure that the potential for interference around a Cellular base station is not increased, while affording them flexibility to deploy more advanced broadband services where the PSD limits of 400 W/MHz (or 800 W/MHz in rural areas) would not permit sufficient coverage and could result in a loss of service to consumers. Moreover, this PFD limit is consistent with the limit applicable to competing wireless systems in the 700 MHz Service.

20. The Commission declines to adopt a commenter's proposal to apply any PFD limit to (1) non-PSD Cellular systems that operate above 500 W ERP, and (2) non-PSD Cellular systems operating at or below 500 W ERP after receipt of an interference complaint or when replacing radio equipment or antennas. Imposing such a heavy new burden on Cellular licensees for their extensively deployed facilities is unwarranted. First, given that the Commission is not adopting any increase to the existing non-PSD power limits, the potential for interference from systems operating at or below those limits will not increase. Second, a PFD limit is intended to limit the amount of energy from antenna sites that are closer to ground level with large down tilts, and under the current ERP limits, sites operating above 500 W ERP are located in rural areas where antennas are generally located well above ground level with very small down tilts. Third, the existing interference resolution provisions in 47 CFR 22.970 through 22.973 have provided a workable mechanism to address interference problems as they arise. Applying a PFD limit to non-PSD Cellular systems (as proposed by one of the commenters) could potentially require modification of existing Cellular systems, which might adversely affect the wireless coverage (including 911 calling) of narrowband licensees who elect to use the existing non-PSD power rules. Such a result is contrary to the public interest. In the 2004 800 MHz Rebanding Order, the Commission declined to adopt across-the-board PFD limits for Cellular licensees under the non-PSD power limits of 500 W (non-rural)/1000 W (rural), recognizing that “the restrictions would require modifications of cells that had little, if any, potential for generating unacceptable interference.” The Commission reaches the same conclusion in this Cellular Reform proceeding. For all these reasons, the Commission declines to add a PFD component to the existing Cellular non-PSD power limits.

21. The Commission also declines to adopt a commenter's recommendation to adopt a PFD limit of 625 µW/m2 with the goal of transitioning to a PFD limit of 3000 µW/m2 after five years; it also declines to adopt that same commenter's proposals to: (1) Not allow licensees to exceed the PFD limit at any ground level locations within 1 km of the base station; and (2) only allow non-compliance at 1% of locations well above ground level within 1 km of the base station. The record indicates that these limits are not realistic or achievable by Cellular systems even as currently deployed (non-PSD), nor are they workable for Cellular systems that will be deployed at the PSD limits adopted in the Cellular Second R&O. Cellular carriers will deploy wideband technologies such as LTE that use bandwidths of 5 MHz or more. A PFD of 625 µW/m2 measured across 5 MHz would be equivalent to 125 µW/m2/MHz. As stated above, technical data filed by the parties in this proceeding show that this very low PFD is already exceeded in large portions of the areas around their sites today, and does not reflect the existing interference environment. Even at the PSD limits of 400 W/MHz (or 800 W/MHz in rural areas), which are equivalent to the existing non-PSD ERP limits, it would be difficult if not impossible to operate Cellular systems that comply with such low PFD limits, especially if they were applied as an absolute limit at any ground level location as the commenter advocates. Moreover, meeting such PFD limits would require power reductions and increase the need for a higher concentration of sites, potentially increasing interference and reducing the flexibility and efficiency a PSD model is designed to afford. Instead, the Commission adopts a PFD limit that is achievable to minimize impact at ground level and avoid potentially worsening the existing interference environment.

22. The Commission is not persuaded by a commenter's argument that PFD is different from PSD and cannot be specified per unit of bandwidth. Any power or energy of a system can be stated per unit of bandwidth. The Commission agrees that PSD by its nature is specified with a reference bandwidth of 1 MHz, but in the interest of consistency and accuracy, adopts the same reference bandwidth for PFD.

23. The Commission finds that requiring a measured PFD limit would be overly burdensome and also unnecessary, given that Cellular licensees are still required to resolve unacceptable interference should it occur from their operations. A modeled PFD limit nonetheless will require the licensee to consider the amount of signal energy it is putting on the ground around its base stations to minimize the potential for large areas of interference. Cellular licensees must perform predictive modeling of the PFD values around each site prior to operating their systems at the Higher PSD Limits or, thereafter, prior to changing the parameters of these sites such that it could increase the PFD levels. The propagation model must confirm that each applicable base station meets the PFD limit over 98% of the area within a 1 km radius of the base station antennas, at 1.6 meters above ground. If the predictive model does not confirm compliance with these requirements, the licensee will need to adjust base-station parameters, such as the height of the antenna, beam tilt, power, or other parameters, until confirmation of the requirements is achieved before deployment, thereby reducing the amount of signal energy on the ground around the site. The purpose of the modeling requirement is to ensure that the Cellular licensee will consider the impact on the ground of “hot spots” when deploying at the Higher PSD Limits and will use engineering techniques to minimize those “hot spots.” Licensees must use modeling tools (software) that take into account terrain and local conditions. The model need not consider areas indoors or in buildings because this could vary widely depending on building materials. The Commission reiterates that the PFD limit is, for the seven-year transition period, an addition to, and not a replacement for, the interference resolution process already in place under 47 CFR 22.970 through 22.973.

24. The Commission also rejects a commenter's argument that, no matter the PSD limit at which a Cellular licensee is operating, no PFD limit should apply in markets where public safety licensees do not reasonably plan to operate in the 800 MHz band. There is no evidence that such relief is necessary, nor is there evidence that an immediate exemption from the Cellular PFD limit at the Higher PSD Limits would provide benefits to consumers. The provision for operations at higher PSD limits combined with a PFD limit will accommodate cases where a carrier needs additional power—for example, systems with antennas well above street level or on mountain tops. Moreover, the plans of public safety agencies are not known to the Commission and, even if they were known today, they would likely change with time. Permitting Cellular licensees to deploy at the higher PSD levels without a PFD limit during the seven-year transition period could hamper launch of expanded or new 800 MHz systems by public safety entities and increase their deployment costs. For all these reasons, the Commission finds that the commenter's proposal does not serve the public interest and, accordingly, declines to adopt it.

25. PFD Sunset. The Commission concludes that it is appropriate to eliminate the Cellular PFD limit seven years after the effective date of the revised rule 22.913 adopted today. This “PFD Sunset” decision is based on several factors. Providing technologically-neutral rules for the Cellular Service in terms of allowing radiated power that fosters efficient deployment of more advanced broadband services has been delayed for nine years since the Commission adopted PSD models for competing CMRS licensees (PCS, AWS, and the 700 MHz Service), to allow more time for the rebanding process to evolve. Notably, PCS and AWS licensees are not subject to any PFD limit, and 700 MHz Service licensees are not subject to a PFD limit at or below their PSD limits of 1000 W/MHz (non-rural)/2000 W/MHz (rural). The PFD limit for the Cellular Service, while consistent with the Commission's decision regarding the 700 MHz Service, is a unique requirement reflecting unique characteristics of the 800 MHz band and is designed to protect public safety licensees for a transition period that will allow for improved spectrum sharing in that band.

26. The Commission is convinced that the formula for such co-existence must include good faith efforts on the part of Cellular (and other commercial) system operators and public safety communications operators, as well as device manufacturers. The seven-year period will provide a reasonable amount of time for this crucial three-way conversation, which the Commission intends to facilitate by holding a public forum (described further below), with the goal of implementing important changes in equipment and practices of Cellular and public safety communications licensees alike. Given the advances in technology for commercial and public safety communications, combined with the changing interference environment as a result of the restructuring of the band launched in 2004, the Commission expects evolving capabilities from participants in all three groups of stakeholders—Cellular licensees, public safety operators, and device manufacturers.

27. Comments on the record indicate that the specialized equipment used by public safety licensees is costly given budget constraints and used for longer durations as compared to commercial wireless devices. According to one public safety commenter, many public safety 800 MHz radios were replaced as a result of the Commission's 2004 800 MHz Rebanding Order, which established receiver performance standards entitling public safety licensees to full interference abatement measures. That same commenter states that public safety equipment replacement cycles often run 10-20 years.4 A seven-year PFD Sunset date will be approximately 20 years after release of the Commission's 2004 800 MHz Rebanding Order. As noted above, AT&T and Verizon have committed to careful deployment of their PSD operations, including PSD testing in collaboration with public safety entities, and phased roll-out. The Commission reiterates its expectation that they will fulfill those commitments. To the extent that they elect to operate at the Higher PSD Limits in the next several years, they will be subject to the PFD limit to minimize “hot spots.” With these various obligations in mind, Cellular licensees can be expected to design their PSD operations with great care, and the Commission expects their deployment of more advanced wideband technologies to be substantially completed within the next seven years. Moreover, at the Higher PSD Limits, they will be subject to the one-time advance notification requirement (with no sunset of that rule).

28. The PSD limits adopted for the Cellular Service that are equivalent to the existing non-PSD power limits, with Higher PSD Limits that include an advance notification requirement, plus a transitional PFD limit (applicable at the Higher PSD Limits), and continuing obligations under 47 CFR 22.970 through 22.973, all in conjunction with voluntary commitments of AT&T and Verizon for testing and phased roll-out of their PSD operations, comprise a comprehensive balanced approach to Cellular power reform that affords the Cellular licensees long-overdue technical flexibility while protecting public safety communications. The forthcoming public forum described in the next section will provide the opportunity for development of additional multi-stakeholder co-existence measures. Based on all of these considerations and comments on the record, the Commission concludes that a seven-year PFD Sunset date is appropriate and serves the public interest.

29. Public Forum To Facilitate Multi-stakeholder Co-existence. The Commission reiterates that it attaches great weight to multi-stakeholder co-existence efforts—good faith efforts to work through the issues by Cellular licenses, public safety entities, and public safety equipment manufacturers alike. While the discussions that the two major Cellular carriers, AT&T and Verizon, have already held with APCO are encouraging, and the voluntary commitments made by AT&T and Verizon are commendable, it is clear from the record that additional dialogue is crucial to resolving the lingering problems of unacceptable interference to public safety receivers—without hindering spectral efficiency and technological advances in the Cellular Service. To foster the three-way conversation among Cellular carriers, public safety entities, and manufacturers of public safety equipment, the Commission directs the Bureaus to work together to organize and conduct a public forum that brings together representatives of all three stakeholder groups. This public forum shall be convened by the Bureaus no later than one year following release of the Cellular Second R&O. The Bureaus are to invite a broad array of stakeholders, including carriers with significant nationwide Cellular operations, as well as Cellular rural carrier representatives, public safety representatives, including the key public safety associations, and the leading public safety equipment manufacturers. The Commission defers to the Bureaus concerning development of the full list of invitees, format, and specific date of the forum. A forum attended by licensees, engineers, manufacturers, Cellular carriers, and any others (as determined by the Bureaus) who have first-hand experience with interference cases will focus attention on what has been achieved, what remains to be done, and how it can be accomplished.

30. The Commission did not seek comment on public safety receiver standards in this proceeding, but several commenters raised this issue. Equipment manufacturers are not currently subject to Commission rules that mandate particular standards for public safety equipment. The Commission is nonetheless disappointed that such equipment has not improved to the extent necessary to filter out the undesired 800 MHz Cellular (or ESMR) signals over the past 12 years since adoption of the 2004 800 MHz Rebanding Order identifying the problem of deficient receivers. The Commission expects these radio manufacturers to be part of the conversation now—and particularly encourages them to participate in the public forum to explain why receivers with better interference rejection features are not available to public safety users at affordable prices, and to present practical options and potential steps for improving interference rejection in public safety devices. The Commission also expects public safety equipment purchasers to specify interference rejection in their requests for proposal for new radio systems, putting manufacturers in a position to respond to these specifications and requirements. The public forum is one way to educate public safety users so they can become savvier purchasers of communications equipment. Cellular licensees likewise need to be open to developing and executing best practices for site selection and coordination with public safety entities when they deploy PSD operations. The Commission encourages the stakeholders in the public forum to address the adequacy of industry standards to ensure reliable receiver performance in strong signal conditions, to assess quantitatively the interference risks of degraded receiver performance, and to consider the applicability of key recommendations made by the Commission's Technological Advisory Council (as discussed in the full text of the Cellular Second R&O, para. 68).

31. Following the public forum, all three stakeholder groups will have ample time remaining before the PFD Sunset date to implement necessary changes to enable better co-existence thereafter in the band. The Commission directs the Bureaus to seek an update on progress from all three stakeholder groups no later than four years from the release of the Cellular Second R&O, and to issue a Public Notice announcing the mechanism for filing such updates. The Commission also encourages all stakeholders to share their experiences on spectrum sharing in the band throughout the seven-year transition period. It believes that the rules and expectations established in the Cellular Second R&O, including the PFD Sunset schedule, will serve the public interest by balancing the needs of all parties and the important services they provide to their customers and to the public.

32. Retention of Part 22 Interference Resolution Rules and Procedures. The existing interference resolution provisions in 47 CFR 22.970 through 22.973 place strict responsibility for remedying unacceptable interference on the licensee(s) causing that interference to public safety communications in the 800 MHz band. The Commission finds that these provisions continue to work well and also notes that the number of interference complaints lodged by public safety entities against Cellular and ESMR carriers via the 800 MHz Interference Notification Site 5 has been steadily declining. The Commission recognizes that identifying sources of interference is burdensome to public safety entities and that certain areas of the country such as Oakland, CA are unusually troublesome in terms of unacceptable interference to public safety operations. At the same time, the Commission recognizes that Cellular licensees themselves incur costs to investigate and address complaints, including those that are determined to arise from non-Cellular operations. Noting that rules 22.970 through 22.973 were carefully crafted based on the extensive record compiled in the 800 MHz rebanding proceeding, and that those provisions establish shared responsibility between part 22 and part 90 licensees, the Commission declines to adopt the proposal made by some commenters to amend rule 22.970 such that a Cellular licensee that is found to have caused interference to an 800 MHz public safety radio system would be required to reimburse that entity's “reasonable costs expended to locate and mitigate the interference.” The Commission concludes that any future unacceptable interference to public safety or other entities that occurs as a result of Cellular operations, including PSD operations, will be appropriately addressed pursuant to the existing part 22 interference resolution provisions and, accordingly, retains the existing rules 22.970 through 22.973 without change. The Commission emphasizes that the obligations set forth in those provisions will continue to apply notwithstanding the new requirements established under revised rule 22.913 including, when applicable, advance notification and the PFD limit.

33. Rule 22.911(a) sets forth the formula for calculating the service area boundary (SAB) of an individual cell site and the CGSA boundary. This formula has been the basis for determining the SAB of cell sites and the protected licensed area (CGSA) since the inception of the Cellular Service and remains an effective tool for predicting reliable signal coverage for narrowband technologies. Under these circumstances, for Cellular licensees that do not elect to use the PSD model, the Commission concludes that it serves the public interest to retain the existing formula in rule 22.911(a) without change, rather than requiring such licensees to change their long-standing methodology for determining their SABs and CGSA boundaries.

34. However, for Cellular licensees that elect to use PSD to deploy LTE and other more advanced mobile broadband technologies, the Commission finds that the formula in rule 22.911(a) is not practical, as the result would be much larger SABs and CGSAs that would not accurately reflect service coverage. Rule 22.911(b) currently sets forth an alternative CGSA determination methodology to depict Cellular service coverage that departs from the licensed geographic area (by a significant amount—specifically, by “±20% in the service area of any cell”) where reliable Cellular service is actually provided. The Commission finds that adapting this methodology to require a predictive propagation model that takes into account terrain and other local conditions, based on the 32 dBµV/m contour, is appropriate for the purposes of calculating SABs and determining CGSA expansion areas for base stations that operate using PSD. Accordingly, the Commission adopts rule 22.911(c) for PSD systems, and requires that the SAB be defined in terms of distances from the cell site(s) to the 32 dBµV/m contour along the eight cardinal radials, consistent with SAB calculations under the existing rule. The distances used for the cardinal radials must be representative of the coverage within the 45º sectors. The Commission concludes that this approach will result in accurate coverage calculations when operating a cell site using PSD, and thus serves the public interest. If this methodology yields an SAB extension comprising at least 50 contiguous square miles, regardless of whether the CGSA departs ±20 percent in the service area of any cell site, the Cellular licensee will be required to file an application for major modification of the CGSA using FCC Form 601. The applicant will be required to submit its CGSA determination pursuant to the new provisions of rule 22.911(c), depicting the CGSA using a predictive model. If the predictive model results in calculations that depict an SAB extension comprising less than 50 contiguous square miles, the licensee may not claim the area as part of its CGSA; it may provide service in the extension area on a secondary basis only. No application should be filed in that scenario.

35. The existing provision in 47 CFR 22.913(b) limits the height of a base station antenna: the ERP may not exceed an amount that would result in the average distance to the SAB being 79.1 km for licensees authorized to serve the Gulf, 40.2 km for all other licensees. The existing provision in 47 CFR 22.913(c) provides an exemption from the height-power limit if the licensee coordinates with, and obtains concurrence from, all co-channel licensees within 121 km. The Cellular height-power rule was developed to ensure that the average distance to the SAB does not exceed certain limits, and thus prevents excessively large SABs that could otherwise result from the SAB calculation using the formula in rule 22.911(a). Although the distance to the SABs of many Cellular base stations would not exceed the limits specified in the height-power rule, the existing provision recognizes that the limits might well be exceeded in some instances, especially in the case of narrowband technologies. Given that the Commission is retaining the formula set forth in 47 CFR 22.911(a) to be used by Cellular licensees deploying narrowband systems (i.e., licensees not electing to use the PSD model) or operating in the Gulf service area, it concludes that the height-power rule continues to serve the public interest as applied to such licensees. Likewise, the Commission finds that the exemption in existing rule 22.913(c) continues to afford such licensees flexibility when they coordinate with, and obtain the concurrence of, all co-channel licensees within 121 km. The domestic coordination provision in rule 22.907 does not obviate the need for the exemption provided in existing rule 22.913(c), which, unlike rule 22.907, includes the concurrence requirement. Moreover, the Cellular field strength rule (47 CFR 22.983) does not obviate the need for the existing provisions in rules 22.913(b) and (c). The Cellular field strength limit rule is uniquely tailored to reflect the fact that Cellular licensees may continue to expand their CGSAs, and CGSA boundaries do not typically coincide with defined market boundaries. A Cellular licensee is required to observe the field strength limit at every point along its neighbor's CGSA, and not necessarily at its own CGSA boundary. With adoption of the field strength rule, the Commission concluded there was no longer a need to regulate SAB extensions into neighboring CGSAs (with limited exceptions). Nonetheless, in the absence of the height-power limit, SABs calculated under rule 22.911(a) could still potentially be excessively large. As noted above, the height-power rule was developed to prevent such large SABs, and it will continue to serve this important purpose for licensees deploying narrowband systems (i.e., not electing to use the PSD model) or operating in the Gulf service area.

36. However, the Commission finds that the Cellular height-power rule is not appropriate for systems that are operated using PSD. With adoption of a predictive model requirement for SAB and CGSA calculations under rule 22.911(c), Cellular licensees that operate their cell sites pursuant to the PSD limits will not be calculating their service area using the existing formula in 47 CFR 22.911(a). Accordingly, the Commission retains the height-power limit and coordination exemption provisions for licensees deploying narrowband systems, but now exempts licensees operating their systems using PSD. Also, the Commission changes the title of the existing rule 22.913(c) to “Exemptions from height-power limit,” and renumbers paragraphs (b) and (c) to accommodate the provisions concerning PSD and PFD limits and related measurement provisions, described above.

37. Because the peak power associated with a noise-like signal is a random variable, it can place unachievable requirements on the measuring instrumentation (e.g., a resolution/measurement bandwidth that exceeds the signal bandwidth). The same non-constant envelope technologies used for PCS and AWS—such as CDMA, W-CDMA, and LTE—have been or will be used in the Cellular Service as well. Consistent with Commission decisions to permit licensees to meet radiated power limits on an average basis for PCS and AWS, as well as for other flexible wireless services, including the 700 MHz services (both commercial and public safety broadband), the Commission concludes that Cellular power limits should be measured on the basis of average power. Also consistent with the average power measurement provisions adopted for PCS and AWS, the Commission finds that adopting a PAR limit of 13 dB for the Cellular Service would better enable the use of technologies such as LTE, and that it strikes the right balance between enabling licensees to use modulation schemes with high PARs and protecting other licensees from high PAR transmissions.

38. Accordingly, the Commission revises rule 22.913 to specify that Cellular power shall be measured on an average basis, and establishes a PAR limit of 13 dB. Additionally, as in the rule governing PCS measurements, the revised rule specifies that measurement of average power for Cellular operations must be made during a period of continuous transmission based on Commission-approved average power techniques. Licensees should consult the FCC Laboratory's Knowledge Database (KDB) Web site regularly for the latest recommended procedures concerning Commission-approved average power measurement techniques. The Commission's approach will ensure that the correct procedures are used for various technologies that are deployed or will be deployed in the future in the Cellular Service, such as GSM, CDMA, UMTS and LTE, and achieves the important goal of harmonizing, where possible, various commercial wireless service rules. Coupled with the average power measurement, a 13 dB PAR limit furthers the goal of facilitating the deployment of advanced technologies such as LTE in the Cellular Service band, while limiting the potential for unacceptable interference that might result from high PAR transmissions. The Commission disagrees with a commenter's argument to adopt power limits using peak power because this approach would hinder Cellular broadband deployments. Spikes are inevitable, but the PAR limit in conjunction with the PFD limit takes this into account and addresses the concern.

39. As noted above, the Cellular Service rule 22.983 establishes a field strength limit of 40 dBµV/m, and (with certain exceptions) this limit must be observed at every point along the neighboring licensee's CGSA, taking into account that some licensees' CGSAs are adjacent to Unserved Area. Cellular licensees are permitted under the rule to negotiate different field strength limits with one another. The Commission considered a commenter's recommendation to change the limit, but there is a lack of consensus, and the record is insufficient to compel a change. Moreover, the Commission concludes, altering the rule at this time solely for the Cellular Service would be at odds with the goal of harmonizing rules among flexible commercial wireless services and would not serve the public interest. Accordingly, the Commission retains 47 CFR 22.983 without change.

40. Existing rule 22.917 currently specifies that, for the Cellular Service, the power of any emission outside of the authorized operating frequency ranges (P) must be attenuated below the transmitting power by a factor of at least 43 + 10 log(P) dB, and describes the procedures for measuring compliance with this OOBE limit. The current resolution bandwidth for measuring unwanted emissions outside of the Cellular band is 100 kHz or greater. The Commission concludes that the existing OOBE limit in 47 CFR 22.917(a), which is the same as the limit for other commercial wireless services such as PCS and AWS, continues to serve the public interest and declines to change it at this time. In response to a commenter's concerns that Cellular PSD operations will cause increased interference to its adjacent-band operations, the Commission notes its expectation that licensees will work together to resolve interference problems, and also notes that rule 22.917(c) allows licensees to negotiate a different limit from the one specified in rule 22.917(a) by private contractual agreement. The Commission encourages Cellular and adjacent-band carriers to continue to work together not only to address interference as it occurs, but also to be proactive in avoiding increased interference from Cellular PSD operations under the revised radiated power rules adopted by the Cellular Second R&O. The Commission also reminds parties that, under rule 22.917(d), the Commission may require a greater attenuation if any emission from a Cellular transmitter results in interference to users of another radio service.

41. Regarding the existing provision in rule 22.917(b), the Commission notes that the International Telecommunications Union (ITU) recommends different measurement bandwidths for operations above and below 1 GHz. To remain consistent with international practices, the Commission concludes that the 100 kHz resolution bandwidth should be used only for measurements in the spectrum below 1 GHz, and that any measurements in the spectrum above 1 GHz should use a resolution bandwidth of 1 MHz. Accordingly, the Commission adopts revised 47 CFR 22.917(b) to retain the existing provision (renumbered as 22.917(b)(1)) and specifies that it applies for measurements in the spectrum below 1 GHz; the Commission adds 22.917(b)(2) to specify that measurements of out of band emissions from Cellular licensees into the spectrum above 1 GHz should use a resolution bandwidth of 1 MHz. As technologies change, the Commission updates its part 2 rules and its measurement procedures to keep pace, and therefore, licensees should regularly consult the KDB Web site for the latest recommended measurement procedures and Commission-approved techniques, and part 2 of the Commission rules.

42. Under 47 CFR 1.955(a)(3), an authorization will be automatically terminated if service is “permanently discontinued.” Existing rule 22.317, which applies to all part 22 Public Mobile Services stations including those in the Cellular Service, defines permanent discontinuance as the failure to provide service to subscribers for 90 continuous days (up to 120 continuous days with an extension). If a Cellular site is permanently discontinued under that definition, the licensee's CGSA is modified accordingly in ULS, reflecting the reduction in service coverage. While the licensee is required to file the appropriate form in ULS, the authorization for the permanently discontinued site is automatically terminated without Commission action whether or not the appropriate form is filed. After the Commission released the NPRM, a coalition of Cellular licensees (Coalition) advocated a more flexible rule governing permanent discontinuance of service.

43. Having adopted rules in the 2014 Cellular R&O to transition the Cellular Service to a geographically-licensed regime, and consistent with the approach in various other commercial wireless services, the Commission concludes that it serves the public interest to adopt a modernized provision—47 CFR 22.947—that defines permanent discontinuance as 180 consecutive days during which a Cellular licensee does not operate or, in the case of a Cellular commercial mobile radio services (CMRS) provider, does not provide service to at least one subscriber that is not affiliated with, controlled by, or related to the providing carrier. Under this provision, Cellular licensees will be required to notify the Commission of the permanent discontinuance within 10 days of the expiration of the 180-day period by filing FCC Form 601. However, whether or not the licensee files the proper notification form, the license for a Cellular system that has permanently discontinued service will be terminated automatically, and the area will revert back to the Commission for relicensing. Commencing on the day following public notice of cancellation of the Cellular license, the Unserved Area will be available to applicants seeking to establish a new Cellular system or expand an existing CGSA by at least 50 contiguous square miles. Based on the record, the Commission finds that it serves the public interest to apply the 180-day discontinuance period to new Cellular systems—other than the Chambers, TX license system (Chambers License)—only after the initial construction period has ended, including extensions, if any, following grant of the new-system application. This approach will ensure that licensees of new systems are not penalized in the event they complete construction and commence operations prior to expiration of their build-out period. The rule will apply to the entire geographic licensed area—the CGSA, thus enhancing licensees' flexibility. The Commission also adopts revised 47 CFR 22.317 such that its site-based approach will no longer apply to the Cellular Service. Thus, consistent with other geographically licensed services, permanent discontinuance of service at an individual cell site will no longer result in modification of the CGSA to reflect reduced service coverage. Once these rules as adopted today have taken effect, the Commission will dismiss as unnecessary a site-based cancellation notification, i.e., a filing concerning permanent discontinuance of any individual cell site(s). Regarding the Chambers License, the Commission finds that it serves the public interest to apply the new rule such that the 180-day period for purposes of determining permanent discontinuance will commence immediately after the interim construction deadline set forth in 47 CFR 22.961.

44. The flexible approach being adopted regarding permanent service discontinuance was initially discussed in the Commission's pending WRS Reform proceeding, which also covers the Cellular Service. Notwithstanding adoption in the Cellular Second R&O of rule 22.947 and revised rule 22.317, Cellular Service licensees will remain subject to any future Commission action affecting wireless radio services in the WRS Reform proceeding.

45. Cellular licensees are required under existing rules to file a minor modification application for any change to a non-internal cell site that results in a reduction in service area coverage (e.g., an antenna adjustment to a Cellular site along the CGSA border), no matter how small the change. The CGSA boundary is modified accordingly in ULS to reflect the reduction in service coverage. This is a lingering vestige of the legacy site-based Cellular licensing scheme, similar to the existing permanent service discontinuance rule addressed above. As stated in the 2014 Cellular R&O, a hallmark of geographic licensing is a defined area within which each licensee can make certain system changes without Commission filings. Throughout this proceeding, the Commission has pursued the goals of removing unnecessary filing requirements and providing Cellular licensees with significant new flexibility to make changes within their CGSA boundaries. In light of establishment of the CGSA as a geographic license area coupled with today's elimination of the filing requirement and resulting CGSA reduction when an individual cell site ceases operating entirely, the Commission finds that eliminating the site-based provision requiring filings for non-permanent-discontinuance changes to operational cell site(s) advances its reform goals and serves the public interest.

46. Accordingly, the Commission adopts revised 47 CFR 22.953(c). Consistent with other geographically licensed commercial wireless services, even following such minor system changes, the CGSA boundary will remain fixed, except that Cellular licensees may continue to expand their CGSAs under 47 CFR 22.949. This should better enable licensees to implement technology upgrades involving reconfiguration and possible relocation of cell sites and other network elements. Once revised rule 22.953(c) as adopted today has taken effect, the Commission will dismiss as an unnecessary filing an application for a CGSA reduction. Notwithstanding this rule change, Cellular licensees remain subject to any future Commission action affecting wireless radio services in the pending WRS Reform proceeding.

47. Under 47 CFR 22.907, Cellular licensees are required to coordinate channel usage at each transmitter location within 121 kilometers (75 miles) of any transmitter locations that are authorized to other licensees or proposed by applicants. As intended by this rule, coordination has played a major role in avoiding co-channel and adjacent-channel interference between neighboring systems. However, the Commission finds that the coordination requirement is not necessary for systems that deploy technologies such as CDMA and LTE, which do not utilize frequency re-use techniques. Accordingly, the Commission adopts a revised introductory paragraph of the rule to exempt those Cellular licensees that deploy technologies with a frequency re-use factor of one. In that same paragraph, the Commission deletes the reference to “tentative selectees”—a vestige of the lottery system that had been in place for Cellular licensing many years ago that is now obsolete.

48. Cellular licensees are currently subject to three separate part 22 rules governing coordination between the United States government and the governments of Canada and Mexico. The generic rule applicable to all part 22 Public Mobile Services licensees, 47 CFR 22.169, states that channel assignments are “subject to the applicable provisions and requirements of treaties and other international agreements between the United States government and the governments of Canada and Mexico.” The other two rules—22.955 and 22.957—are in subpart H (Cellular Service-specific), and each sets forth the text of a condition that is to be placed on authorizations for all Cellular systems, requiring them to coordinate any transmitter installations within 72 kilometers (45 miles) of the U.S.-Canada or U.S.-Mexico border, as applicable. To advance its regulatory reform agenda by deleting unnecessary or redundant provisions, the Commission now eliminates rules 22.955 and 22.957 while preserving rule 22.169 with a minor revision—adding a reference to “operation of systems.” The Commission finds that this approach is sufficient and consistent with the international coordination requirements set forth in other rule parts and serves the public interest.

49. ERP vs. EIRP. As noted above, the Cellular radiated power limits are expressed in terms of ERP. There is inconsistency in how the radiated power limits are expressed in the various bands in which commercial wireless services are generally provided. For example, in the PCS rules, EIRP (equivalent isotropically radiated power) is used, but for AWS and 700 MHz, the power limits are expressed in terms of ERP. Given that Cellular licensees are long accustomed to ERP limits under the existing rule 22.913, the Commission concludes that it serves the public interest to continue to express the non-PSD limits in terms of ERP, and also to express the newly adopted PSD limits in terms of ERP. This will avoid unnecessary confusion and maintain consistency for Cellular licensees.

50. MIMO Antennas. No commenter addressed the Commission's query as to whether the use of MIMO techniques requires a modification to the way measurements are performed for equipment authorization. Some carriers state their intent to use spectrally efficient MIMO techniques in their Cellular LTE deployments, and the Commission has taken that into account in adopting the PSD and PFD limits described above.

51. Equipment Standards. Part 2 of the Commission's rules include equipment certification requirements. In the absence of any interest by commenters on the issue of whether part 22 equipment standards and measurement rules need to be updated or modified to be consistent with the equipment certification rules in part 2, the Commission concludes that no changes concerning this issue are warranted at this time in part 22. However, as technologies change, the Commission updates its procedures in part 2 to keep pace, and licensees should consult part 2 of Commission rules and the FCC Laboratory's KDB Web site so they can be aware of the most up-to-date requirements, recommended measurement procedures, and Commission-approved techniques.

52. The existing provision in 47 CFR 22.913(a)(2) states that the ERP of Cellular mobile and auxiliary test transmitters must not exceed 7 W. Given that the Commission is retaining the current non-PSD power limits for Cellular base stations and repeaters as an option so as not to disrupt systems that use narrowband Cellular technology, a commenter's argument for a “corresponding increase” in the mobile station ERP limit is moot. Moreover, there is no technical evidence on the record to suggest that the current 7 W limit is limiting the use of mobile and auxiliary test transmitters. Accordingly, and in the absence of comments on the record concerning all the other issues raised in the Cellular Further Notice related to mobile and auxiliary test transmitters, the Commission finds that it serves the public interest to retain the existing provision, including the existing 7 W limit, but creates a new paragraph of the rule (§ 22.913(a)(5)) for this provision.

53. Although one commenter expressly supported the Commission's proposal to establish frequency coordinators to perform the first-line review of Cellular applications for CGSA expansions and new Cellular systems, and two parties expressed preliminary non-binding interest in serving as frequency coordinators for the Cellular Service, the Commission declines to adopt the use of frequency coordinators for the Cellular Service at this time. While the total number of CGSA-expansion (major modification) applications in 2013 was 565 (908 if amendments are included), for calendar year 2015, Commission data show that only 42 CGSA-expansion applications were filed (60 if amendments are included). This represents a decrease of more than 90 percent since 2013, and the trend is further downward, as only 23 CGSA-expansion applications were filed through the third quarter of 2016. This is a far greater decrease than the Commission anticipated when it proposed frequency coordination for the Cellular Service. To accommodate the use of frequency coordinators for Cellular applications, the Commission would need to make numerous changes to ULS at the taxpayers' expense. Additionally, Commission staff resources would necessarily be expended for selection and certification of frequency coordinators and preparation of requisite Commission releases, including a Memorandum of Understanding to be executed with those selected. Thereafter, the certified coordinators and Commission staff would need to collaborate on a file format incorporating the frequency coordination process. The Commission concludes that the requisite Commission outlay of resources to introduce frequency coordination into the Cellular Service would not be justified, but it will monitor the application volume and, if the data show a significant upward trend, it will revisit establishing frequency coordinators for the Cellular Service.

54. Revising the definition of a rural area under 47 CFR 22.913 (or any other part 22 rule) was not raised by any commenter prior to release of the Cellular Further Notice, nor did the Commission mention it in that release. Although one commenter subsequently argued that the definition should be automatically adjusted after each completed U.S. Census, the Commission is not persuaded by the record that it should revisit the longstanding definition of “rural” for the purpose of rule 22.913, and it makes no change to the definition in the Cellular Second R&O.

55. Although the Cellular Further Notice proposed to correct a ministerial error that appeared in the third-column heading of the table in 47 CFR 22.355, the Commission notes that the current edition of the Code of Federal Regulations does not contain this error, and therefore no Commission action is required in this proceeding.

56. In the WRS Reform proceeding (WT Docket No. 10-112), on May 25, 2010 the Commission released a Notice of Proposed Rulemaking (WRS NPRM) and a companion Order (2010 WRS Order). The WRS NPRM proposed to revise and harmonize numerous rules applicable to WRS, which include the Cellular Service. Among other issues addressed in the WRS NPRM, the Commission generally proposed to establish a uniform license renewal process modeled after the 700 MHz Service rules, and specifically proposed to adopt a three-part approach to renewal for all WRS, including Cellular licensees, that would entail: (1) A uniform requirement regarding the content of a renewal showing necessary to support renewal; (2) a prohibition on the filing of competing renewal applications; and (3) in the event of denial of a renewal application, return of the associated spectrum to the Commission for reassignment. Specifically with respect to Cellular licensees, the Commission proposed to delete all five existing part 22 rules governing Cellular comparative renewal proceedings—47 CFR 22.935, 22.936, 22.939, 22.940, and 22.943—and sought comment on its proposal. The Commission's companion 2010 WRS Order imposed a freeze on the filing of new applications that are mutually exclusive with renewal applications and established an interim process for addressing renewal applications.

57. In response to the WRS NPRM, interested parties submitted comments, reply comments, and ex parte letters, addressing, among other issues, the proposed deletion of the five rules noted above governing Cellular comparative renewal proceedings. The specific reforms adopted by the Commission in the WRS R&O are described below.

58. These five Cellular license renewal rules in part 22 establish a two-step comparative hearing process for addressing renewal applications as well as any timely-filed competing applications. They require an administrative law judge (ALJ) to conduct a threshold hearing to determine whether a Cellular renewal applicant is entitled to a renewal expectancy. If the ALJ determines that the applicant is entitled to a renewal expectancy and is otherwise basically qualified, the license is renewed and any competing applications are denied. If, on the other hand, the ALJ determines that a renewal expectancy is not warranted, all mutually exclusive applications in the renewal filing group are considered in a full comparative hearing. The rules also establish certain specific requirements for the filing of competing applications, and procedures governing their withdrawal during the hearing.

59. As part of its efforts to eliminate unnecessary requirements for Cellular licensees and promote comparable treatment of spectrum bands commonly used to provide comparable wireless services, the Commission finds that it serves the public interest to delete—as of the effective date of this WRS R&O—the part 22 rules pertaining to Cellular renewal comparative hearings, as proposed in the WRS NPRM. This action with respect to the Cellular Service is consistent with the Commission's determinations in various other commercial wireless service proceedings over the last ten years, including those for certain AWS (e.g., AWS-3, AWS-4, H-Block) and the 700 MHz Service. Also, the elimination of service-specific renewal rules and adoption of uniform renewal procedures that would apply to all WRS licensees, including the elimination of comparative renewal hearings, is supported by the majority of commenters responding to the WRS NPRM. Accordingly, the revised Cellular Service rules reflect the Commission's deletion of rules 22.935, 22.936, 22.939, 22.940, and 22.943. The Commission defers, however, any decision on the remaining issues raised in the WRS NPRM and the 2010 WRS Order, including what standard or requirements to apply in determining whether a renewal application should be granted, and whether licensed spectrum that does not meet specified renewal requirements shall be returned to the Commission for reassignment. Pending further action in the WRS Reform proceeding, the freeze imposed on the filing of new competing applications and the procedures established in the 2010 WRS Order will remain in effect for all covered wireless services, including the Cellular Service.

60. Some of the rule amendments adopted by the Cellular Second R&O—specifically, rules 22.911(a) through (c), 22.913(a), 22.913(c), 22.913(f), 22.947, and 22.953(c)—contain modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Those rule amendments will be submitted to 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 modified information collection requirements. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission 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 has assessed the effects on small business concerns of the rule changes it is adopting by this Cellular Second R&O and WRS R&O and finds that businesses with fewer than 25 people will benefit from the flexibility afforded by the revised technical rules, including the option of deploying systems using PSD, as well as by the licensing reforms, including elimination of certain filing requirements and the comparative hearing process for license renewals.

61. The Commission will send a copy of this Cellular Second R&O and WRS R&O to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

62. The Regulatory Flexibility Act of 1980 (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA), set forth in Appendix B of the Cellular Second R&O and companion WRS R&O, concerning the possible impact of the rule changes.

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

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

65. Accordingly, it is ordered, pursuant to Sections 1, 2, 4(i), 4(j), 7, 301, 303, 307, 308, 309, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 157, 301, 303, 307, 308, 309, and 332, that this second report and order and second further notice of proposed rulemaking in WT Docket No. 12-40 are adopted.

66. It is further ordered, pursuant to Sections 1, 2, 4(i), 4(j), 301, 303, 307, 308, 309, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 303, 307, 308, 309, and 332, that this report and order in WT Docket No. 10-112 is adopted.

67. It is further ordered that the second report and order and the report and order shall be effective May 12, 2017.

68. It is further ordered that part 22 of the Commission's rules, 47 CFR part 22, is amended as specified in Appendix A of the second report and order and report and order, effective May 12, 2017 except as otherwise provided herein.

69. It is further ordered that the amendments adopted in the second report and order, and specified in Appendix A of the second report and order and report and order, to §§ 22.317, 22.911(a) through (c), 22.913(a), 22.913(c), 22.913(f), 22.947, and 22.953(c), which contain new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act, will become effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date.

70. It is further ordered that, pursuant to Section 801(a)(1)(A) of the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission shall send a copy of the second report and order, report and order, and second further notice of proposed rulemaking to Congress and to the Government Accountability Office.

71. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the second report and order, report and order, and second further notice of proposed rulemaking, including the Final Regulatory Flexibility Analysis and the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 22 as follows:

I. Executive Summary A. Purpose and Summary of the Major Provisions

This final rule adjusts the amount of FMCSA's civil penalties to account for inflation as directed by the 2015 Act. The final rule implements the 2017 annual adjustments, which will update the adjustments made by interim final rule on June 27, 2016 (81 FR 41453). The specific inflation adjustment methodology is described later in this document.

The changes imposed by this final rule affect civil penalty amounts, which are considered by the Office of Management and Budget (OMB) Circular A-4, Regulatory Analysis,1 as transfer payments, not costs. Transfer payments are payments from one group to another that do not affect total resources available to society. By definition they are not considered in the monetization of societal costs and benefits of rulemakings.

Congress stated in the Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Act) that increasing penalties over time will “maintain the deterrent effect of civil monetary penalties and promote compliance with the law.” 2 Therefore, with this continued deterrence, FMCSA infers that there may be some safety benefits that occur due to this final rule. The deterrence effect of increasing penalties, which Congress has recognized, cannot be reliably quantified into safety benefits.

This rulemaking is based primarily on the 2015 Act, Public Law 114-74, title VII, sec. 701, 129 Stat. 599, 28 U.S.C. 2461 note (Nov. 2, 2015). The 2015 Act amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Act) (28 U.S.C. 2461 note). The basic findings and purpose of the amended 1990 Act remain unchanged and include supporting the role civil penalties play in Federal law and regulations in deterring violations by allowing for regulatory adjustments to account for inflation.

OMB must provide annual guidance by December of each year on implementing the 2015 Act. In response to this provision, OMB has provided guidance to agencies regarding the methodology to implement the 2017 annual adjustment required under the 2015 Act,3 as further discussed in the Background section, below.

Generally, agencies may promulgate final rules only after issuing a notice of proposed rulemaking and providing an opportunity for public comment under procedures required by the APA, as provided in 5 U.S.C. 553(b) and (c). The APA, in 5 U.S.C. 553(b)(3)(B), provides an exception from these requirements when notice and public comment procedures are “impracticable, unnecessary, or contrary to the public interest.” FMCSA finds that prior notice and comment is unnecessary because section 4 of the 2015 Act specifically requires the annual adjustments to be accomplished through final rule without notice and comment.

Also pursuant to the APA (5 U.S.C. 553 (d)(3)), the rule will be effective April 24, 2017. Delaying the effective date for 30 days after publication would be contrary to the direction provided in the 2015 Act, which states that annual adjustments be made by January 15th of each year. As this final rule is already past that deadline, further delay would be contrary to the public interest.

On June 27, 2016, FMCSA published an interim final rule using an initial “catch up” adjustment, as required by section 4 of the 2015 Act (81 FR 41453). That interim final rule included an explanation of how FMCSA would apply adjusted civil penalty amounts to ongoing enforcement cases. As stated in that rule:

OMB published a memorandum on December 16, 2016 (see footnote 3), providing guidance to the Agencies for implementation of the 2017 annual adjustment under the 2015 Act (OMB implementation guidance). The OMB implementation guidance detailed a cost-of-living adjustment multiplier of 1.01636 for 2017. This adjustment applies to all civil monetary penalties covered by the Inflation Adjustment Act. OMB guidance requires the multiplier to be applied to the most recent penalty amount, i.e., the catch-up adjustment that the 2015 Act required agencies to issue not later than July 1, 2016. FMCSA, therefore, bases these adjustments on the changes contained in the interim final rule published June 27, 2016 (81 FR 41453).

On June 27, 2016, FMCSA published an interim final rule using an initial “catch up” adjustment. While that interim final rule was issued without notice and comment, FMCSA did request comments on any errors or discrepancies that the public might find. No comments were received on the interim final rule.

The FMCSRs, and any exceptions to the FMCSRs, apply to foreign entities operating within the United States (and, in some cases, United States territories). Motor carriers and drivers are subject to the laws and regulations of the countries in which they operate, unless an international agreement states otherwise. Drivers and carriers should be aware of the regulatory differences among nations.

Today's amendments to part 386 finalize the changes made to the introductory text of the Appendices A and B to Part 386 in the interim final rule published on June 27, 2016 (81 FR 41453). The amendments also revise the penalty amounts found within Appendices A and B. Below are two tables describing the changes to the civil penalty amounts in Appendices A and B. The first and second columns show the location of the change in the appendices and the legal authority. Column three shows the current penalty as adjusted by the interim final rule. The fourth column presents the “Annually Adjusted Penalty,” which is the current penalty adjusted using the OMB-prescribed multiplier of 1.01636. As noted in the regulatory text (Part 386, Appendices A and B) in today's rule, the adjusted civil penalties identified in the appendices supersede, where a discrepancy exists, the corresponding civil penalty amounts identified in title 49, United States Code.

The introduction to Appendix A is republished, but is unchanged from the interim final rule. Table 1, below, describes the changes in the penalties in Appendix A made by today's final rule.

The introduction to Appendix B is republished, but is unchanged from the interim final rule. Table 2, below, describes the changes in the penalties in Appendix B made by today's final rule.

This final rule is not a significant regulatory action under section 3(f) of Executive Order (E.O.) 12866, Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979) and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This final rule would not have an annual effect on the economy of $100 million or more because transfer payments, by definition, do not affect total resources available to society. Historically, the Agency has never assessed civil penalties that approach $100 million in any given year.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), FMCSA is not required to complete a regulatory flexibility analysis, because, as discussed earlier in the legal basis section, this action is not subject to prior notice and comment under section 553(b) of the Administrative Procedure Act.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this final rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the final rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact, Ms. LaTonya Mimms, listed in the FOR FURTHER INFORMATION CONTACT section of this final rule.

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $156 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2015 levels) or more in any 1 year. This final rule will not result in such an expenditure.

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

A rule has implications for Federalism under Section 1(a) of Executive Order 13132 if it has “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.” FMCSA has determined that this rule would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this rule preempts any State law or regulation. Therefore, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Impact Statement.

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

E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing “economically significant” rules to include an evaluation of the regulation's environmental health and safety effects on children if an agency has reason to believe the rule may disproportionately affect children. The Agency determined that this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children.

FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule does not require the collection of personally identifiable information (PII).

The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a privacy impact assessment for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a privacy impact assessment.

The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

FMCSA has analyzed this rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.

This rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

FMCSA analyzed this rule in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.) and FMCSA's NEPA Implementing Procedures and Policy for Considering Environmental Impacts, Order 5610.1 (FMCSA Order), March 1, 2004 (69 FR 9680). FMCSA's Order states that “[w]here FMCSA has no discretion to withhold or condition an action if the action is taken in accordance with specific statutory criteria and FMCSA lacks control and responsibility over the effects of an action, that action is not subject to this Order.” Id. at chapter 1.D. Because Congress specifies the Agency's precise action here, thus leaving the Agency no discretion over such action, and since the Agency lacks control and responsibility over the effects of this action, this rulemaking falls under chapter 1.D. Therefore, no further analysis is considered.

FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.

Under E.O. 12898 (Actions to Address Environmental Justice in Minority Populations and Low-Income Populations), each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA has determined that this final rule would have no environmental justice effects, nor would its promulgation have any collective environmental impact.

For the reasons stated in the preamble, FMCSA is amending title 49 CFR part 386 to read as follows: