Federal Register Vol. 82, No.89,

Background

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,” AMS published in the Federal Register [82 FR 9967] a notice that delayed the effective date of the FR until May 19, 2017. Along with this proposed rule, AMS is also publishing a Notice in the Federal Register that further delays the effective date of the FR until November 14, 2017.

The FR amends the organic livestock and poultry production requirements of the USDA organic regulations by adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expands and clarifies existing requirements covering livestock care and production practices and mammalian living conditions. The FR finalizes a proposed rule that AMS published in the Federal Register on April 13, 2016, 81 FR 21955.

Because there are significant policy and legal issues addressed within the FR that warrant further review by USDA, the public is being asked to comment on which of the following four actions they believe would be best for USDA to take with regard to the disposition of the FR. Specifically, the public should submit their comments on the following options:

(1) Let the rule become effective. This means that the rule would become effective on November 14, 2017.

(2) Suspend the rule indefinitely. During the suspension, USDA could consider whether to implement, modify or withdraw the final rule.

(3) Delay the effective date of the rule further, beyond the effective date of November 14, 2017.

(4) Withdraw the rule so that USDA would not pursue implementation of the rule.

Concurrent with this proposed rule, AMS is publishing in the Federal Register a notice extending the effective date of the FR by 180 days until November 14, 2017.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

The Captain of the Port Miami (COTP) has determined that the hazards associated with the reduced or restricted visibility which can occur during hurricanes and other disasters constitute a safety concern for anyone within the proposed safety zone. The purpose of the proposed rule is to ensure the safety of life on navigable waters of the United States by restricting port operations in the event of severe weather conditions or disasters, including hurricanes.

The Coast Guard proposes to establish a safety zone on the navigable waters of the Sector Miami COTP zone during disasters and other specified severe weather conditions. This proposed rule would restrict port operations and vessel traffic during disasters and severe weather, to include hurricanes, when certain port conditions are set by the COTP. The proposed rule would give the COTP flexibility in controlling and reconstituting vessel traffic during periods of heavy weather and allows for expediting resumption of the Maritime Transportation System following disasters and severe weather.

Hurricane Port Conditions (WHISKEY, X-RAY, YANKEE, and ZULU) are standardized states of operation instituted by the COTP and shared with all major ports, facilities, and members of the Maritime Transportation System. The intermodal and dynamic nature of the Maritime Transportation System requires all parties to comply with safety and security procedures when faced with the challenges of hurricanes and other disasters.

Notice of Hurricane Port Conditions and their requirements will be given via Marine Safety Information Bulletins, online at http://homeport.uscg.mil/miami, Broadcast Notice to Mariners, and Severe Weather Advisory Team meetings.

The regulatory text we are proposing appears at the end of this document.

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

Executive Orders 12866 (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). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and 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, 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 the OMB 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).

We expect the economic impact of this proposed rule to be not significant for the following reasons: (1) Vessel traffic and facilities will be impacted by this rule only during limited times while heavy weather is expected to impact the Sector Miami Captain of the Port Zone; (2) vessel traffic would be secured only during port conditions Yankee and Zulu, and only in port areas potentially affected by gale force winds; and (3) the Coast Guard would issue updates on http://homeport.uscg.mil/miami, VHF channel 16, and during Severe Weather Advisory Team meetings.

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

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

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

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

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

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

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

We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves safety zones implemented during hurricanes or other heavy weather events. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary Record of Consideration (REC) supporting this determination is 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 proposed rule.

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

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

We encourage you to submit comments through the Federal eRulemaking Portal at 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 NPRM as being available in the docket, and all public comments, will be 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.

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

On December 08, 2016, the Hope Chest Buffalo (Lumanina Crop) notified the Coast Guard that it will be conducting a series of dragon boat races from 8 a.m. to 5 p.m. on June 17, 2017. The dragon boat races are to take place in the Buffalo River behind the Buffalo River Works restaurant in a 300 meter long course consisting of 4 lanes, each 10 meters wide in Buffalo, NY. The Captain of the Port Buffalo (COTP) has determined that a boating race event on a navigable waterway will pose a significant risk to participants and the boating public.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the race course during heats of the scheduled event. Vessel traffic will be allowed to pass through the safety zone between heats. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The COTP proposes to establish a safety zone from 7:45 a.m. to 5:15 p.m. on June 17, 2017, that would be effective and enforced intermittently. The safety zone would cover all navigable waters of the Buffalo River; Buffalo, NY starting at position 42° 52′ 12.60″ N. and 078° 52′ 17.64″ W. then Southeast to 42° 52′ 3.17″ N. and 078° 52′ 12.43″ W. then East to 42° 52′ 3.68″ N. and 078° 52′ 10.35″ W. then Northwest to 42° 52′ 13.41″ N. and 078° 52' 16.57″ W. then returning to the point of origin. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 8 a.m. to 5 p.m. racing event. Vessels will be permitted to pass through the safety zone intermittently during the event as allowed by the COTP or the on-scene representative. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 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.”

This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

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, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit through this safety zone in between race heats which would impact a small designated area of the Buffalo River for one day. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a safety zone for one day during intermittent periods. Normally such actions are categorically excluded from further review under section 2.B.2, and Figure 2-1, paragraph 34(g) of the Instruction. Paragraph 24(g) pertains to the establishing, disestablishing, or changing Regulated Navigation Areas and security or safety zones. A preliminary Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

We encourage you to submit comments through the Federal eRulemaking Portal at 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 NPRM as being available in the docket, and all public comments, will be 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.

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

VA published a notice of proposed rulemaking in the Federal Register on February 13, 2013, that proposed to allow VA to enter into provider agreements to obtain extended care services for Veterans from community providers under 38 U.S.C. 1720(c)(1) (see 78 FR 10117). Since publication of that proposed rule, further review has led VA to conclude the goals of this regulation cannot be achieved without a statutory change. For this reason, VA withdraws the proposed rule. VA has proposed and continues to support legislation that would authorize VA to use provider agreements to purchase care in the community.

After publication of the proposed rule, section 101 of the Veterans Access, Choice, and Accountability Act of 2014 (Pub. L. 113-146, 128 Stat.1754, hereafter referred to as “the Choice Act”) created the Veterans Choice Program, which provides legal authority for VA to enter into provider agreements to obtain certain extended care services for Veterans. The Veterans Choice Program also has regulations, at 38 CFR 17.1500, et seq., that are currently operational and have criteria similar to those in the proposed rule AO15, including eligibility standards for non-VA providers and standards for payment rates.

Although the Choice Act provider agreements are similar in kind, and might seem to provide the same authority, they do not. Proposed AO15 would have authorized the use of provider agreements to provide “extended care services,” defined as “geriatric evaluation; nursing home care; domiciliary services; adult day-health care; noninstitutional palliative care, noninstitutional hospice care, and home health care when they are noninstitutional alternatives to nursing home care; and respite care” (see 70 FR 10121 (Feb. 13, 2013)). Although the Choice Act provides clear legal authority for VA to enter into provider agreements, the authority is limited to care authorized under the Veterans Choice Program for eligible Veterans and furnished by Choice-eligible providers. Further, the Veterans Choice Program covers only hospital care and medical services in VA's medical benefits package (see 38 CFR 17.38); this captures some extended care services (noninstitutional alternatives to nursing home care like adult day-health care and respite care) but not the full scope of services proposed AO15 would have covered. Finally, the Veterans Choice Program will expire when the Choice Fund, established under section 802 of the Choice Act, has been exhausted. VA will continue to use provider agreements authorized by the Choice Act until the Veterans Choice Program expires, but to accomplish the goals of the proposed rule, Congress would need to enact a provider agreement provision authorizing VA to use provider agreements to purchase care in the community. For these reasons, VA withdraws the proposed rule.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on May 4, 2017, for publication.

In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register.

In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register.

Throughout this document whenever “Agency,” “we,” “us,” or ”our” is used, we mean the EPA.

The EPA is proposing to approve a source-specific State Implementation Plan (SIP) revision for Unit 4 at the Danskammer Generating Station submitted by the New York State Department of Environmental Conservation (NYSDEC) on August 10, 2015, and supplemented by NYSDEC on August 5, 2016.1 Specifically, the EPA is proposing to approve emission limits for sulfur dioxide (SO2), oxides of nitrogen (NOX), and particulate matter (PM) for Unit 4 at the Danskammer Generating Station that are equivalent to the emission limits established by the EPA's Federal Implementation Plan (FIP) that was promulgated on August 28, 2012 (77 FR 51915, 51928). The EPA is also proposing to approve a condition in the SIP revision that restricts Danskammer Unit 4 to combusting only natural gas.

This section provides a brief overview of the requirements of the Clean Air Act (CAA) and Regional Haze Rule that apply to this particular action. Please refer to our previous rulemakings on the New York Regional Haze SIP for additional background regarding the visibility protection provisions of the CAA and the Regional Haze Rule.2

The CAA requires each state to develop plans to meet various air quality requirements, including protection of visibility. (CAA sections 110(a), 169A, and 169B). The plans developed by a state are referred to as SIPs. A state must submit its SIPs and SIP revisions to EPA for approval. Once approved, a SIP is federally enforceable, that is enforceable by the EPA and subject to citizen suits under the CAA. If a state fails to make a required SIP submittal or if we find that a state's required submittal is incomplete or unapprovable, then EPA must promulgate a FIP to fill this regulatory gap. (CAA section 110(c)(1)).

In the 1977 Amendments to the CAA, Congress initiated a program for protecting visibility in the nation's national parks and wilderness areas. Section 169A(a)(1) of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.” In 1990, Congress added section 169B to the CAA to address regional haze issues. On July 1, 1999, the EPA promulgated the Regional Haze Rule (RHR) (64 FR 35714). The requirement to submit a Regional Haze SIP applies to New York and all 50 states, the District of Columbia, and the Virgin Islands. 40 CFR 51.308(b) of the RHR required states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.

The EPA's final action on New York's Regional Haze SIP included approving 17 source-specific SIP revisions containing permits for Best Available Retrofit Technology (BART) and promulgating a FIP to address two sources where EPA disapproved New York's BART determinations—Roseton Generating Station (Units 1 and 2) and the Danskammer Generating Station (Unit 4). 77 FR 51915 (August 28, 2012).

On August 10, 2015, NYSDEC submitted a request for a source-specific SIP revision for Danskammer Unit 4 which would replace the EPA's FIP. In this action, the EPA proposes to approve the SIP revision and remove Danskammer Unit 4 from the FIP, but this action does not address the Roseton Generating Station still covered by the EPA's FIP.

On August 10, 2015, NYSDEC submitted a request for a source-specific SIP revision for Danskammer Unit 4, which would replace the BART emission limits and related requirements in the EPA's FIP that were promulgated in the Federal Register on August 28, 2012 (77 FR 51915). This SIP revision contained Danskammer Unit 4's Title V permit conditions 61-64.

In a letter to NYSDEC dated July 14, 2016, the EPA requested that NYSDEC supplement its August 10, 2015 SIP submittal. Specifically, the EPA requested that NYSDEC submit Danskammer Unit 4's Title V permit condition 55.6 (at pages 48 and 49 of the permit), which restricts Unit 4 to combusting only natural gas. The EPA also requested that NYSDEC submit a copy of the April 1, 2015 public notice as published in NYSDEC's Environmental Notice Bulletin (ENB).

In a letter dated August 5, 2016, NYSDEC submitted to the EPA (1) permit condition 55.6 (pages 48 and 49) of Dankskammer Unit 4's Title V permit that was renewed on February 24, 2015, which permits Unit 4 to combust natural gas only and (2) a copy of NYSDEC's April 1, 2015 ENB that noticed the proposed Danskammer SIP revision.

In its submittal, NYSDEC includes BART emission limits for Danskammer Unit 4 that are identical to those contained in the EPA's FIP: 0.12 pounds NOX per million Btu (lb/MMBtu) calculated on a 24-hour average during the ozone season and on a 30-day average during the rest of the year; 0.09 lb SO2/MMBtu calculated on a 24-hour average; and 0.06 lb PM/MMBtu calculated on a 1-hour average. NYSDEC also includes a condition that restricts Danskammer Unit 4 to combusting only natural gas.

The EPA is proposing to approve NYSDEC's SIP submittal because it is more stringent than the EPA's FIP. The SIP submittal includes BART emission limits for SO2, NOX, and PM and related administrative requirements (i.e., monitoring, recordkeeping and reporting requirements) that are identical to those in the EPA's FIP. Moreover, the SIP submittal includes a condition that restricts Dankskammer Unit 4 to combusting only natural gas, which will have the effect of further reducing visibility-impairing emissions, particularly SO2 and PM. Consequently, the EPA proposes to withdraw those portions of the FIP that address BART for Danskammer Unit 4. The EPA will fully consider all significant comments on these proposed actions.

In reviewing NYSDEC's SIP submittal, the EPA's role is to approve state choices if they meet the requirements of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason this action:

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

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

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

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

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

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

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

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

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

This action does not have tribal implications as specified by Executive Order 13175. The SIP revision submitted by NYSDEC is not approved to apply on any Indian reservation land or in any other areas where the EPA or Tribal Nation has demonstrated that a Nation has jurisdiction. Thus Executive Order 13175 does not apply to this proposed rule.

On December 14, 2012 (78 FR 3086, January 15, 2013), EPA promulgated a revised primary annual PM2.5 NAAQS. The standard was strengthened from 15.0 micrograms per cubic meter (μg/m3) to 12.0 μg/m3. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2012 Annual PM2.5 NAAQS to EPA no later than December 14, 2015.1

This rulemaking is proposing to approve portions of Kentucky's PM2.5 infrastructure SIP submission for the applicable requirements of the 2012 Annual PM2.5 NAAQS, with the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1, 2 and 4), and the minor source program requirements of section 110(a)(2)(C), for which EPA is not proposing any action in this rulemaking regarding these requirements. For the aspects of Kentucky's submittal proposed for approval in this rulemaking, EPA notes that the Agency is not approving any specific rule, but rather proposing that Kentucky's already approved SIP meets certain CAA requirements.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are summarized below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).” 2

EPA is acting upon the SIP submission from Kentucky that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2012 Annual PM2.5 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.4 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.5 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.6 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.7 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.8

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.9

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.10 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).11 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.12 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 Annual PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, among other things, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.13 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.14 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.15 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.16

Kentucky's February 8, 2016 infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below.

1. 110(a)(2)(A) Emission Limits and Other Control Measures: Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. These requirements are met through Kentucky Revised Statute (KRS) Chapter 224 Section 10-100 (KRS 224.10-100), which provides the KDAQ the authority to administer all rules, regulations, and orders promulgated under Chapter 224, and to provide for the prevention, abatement, and control of all water, land, and air pollution.

KDAQ cited to chapters and associated Kentucky Administrative Regulations (KAR) under Title 401 to demonstrate that the Commonwealth meets the requirements of this element, including the following:

• Chapter 50 General Administrative Procedures: 401 KAR 50:010. Definitions for 401 KAR Chapter 50; 401 KAR 50:012. General application; 401 KAR 50:015. Documents incorporated by reference; 401 KAR 50:020. Air quality control regions; 401 KAR 50:025. Classification of counties; 401 KAR 50:040. Air quality models; 401 KAR 50:042. Good engineering practice stack height; 401 KAR 50:045. Performance tests; 401 KAR 50:047. Test procedures for capture efficiency; 401 KAR 50:050. Monitoring; 401 KAR 50:055. General compliance requirements; and 401 KAR 50:060. Enforcement.

• Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards: 401 KAR 51:001. Definitions for 401 KAR Chapter 51; 401 KAR 51:005. Purpose and General Provisions; 401 KAR 51:010. Attainment Status Designations; 401 KAR 51:017. Prevention of significant deterioration of air quality; 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas.

• Chapter 52 Permits, Registrations, and Prohibitory Rules: 401 KAR 52:001. Definitions for 401 KAR Chapter 52; 401 KAR 52:020. Title V permits; 17 401 KAR 52:030. Federally-enforceable permits for nonmajor sources; 401 KAR 52:090. Prohibitorv rule for hot mix asphalt plants; 401 KAR 53:005. General provisions; 401 KAR 53:010. Ambient air quality standards.

Collectively these regulations establish enforceable emissions limitations and other control measures, means or techniques, for activities that contribute to PM2.5 concentrations in the ambient air and provide authority for KDAQ to establish such limits and measures as well as schedules for compliance to meet the applicable requirements of the CAA. EPA has made the preliminary determination that the provisions contained in these regulations, and Kentucky's statute are adequate for enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance for the 2012 Annual PM2.5 NAAQS in the Commonwealth.

In this action, EPA is not proposing to approve or disapprove any existing Commonwealth provisions with regard to excess emissions during SSM operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency is addressing such state regulations in a separate action.18

Additionally, in this action, EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. These requirements are met through KRS 224.10-100 (22), which provides KDAQ the authority to require the installation, maintenance, and use of equipment, devices, or tests and methodologies to monitor the nature and amount of any substance emitted into the ambient air and to provide the information to the Cabinet.

KDAQ cites the following regulations to demonstrate that the Commonwealth meets the requirements of this element: 401 KAR 50:050. Monitoring; 401 KAR 51:017. Prevention of significant deterioration of air quality; and 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas; 401 KAR 53:005. General provisions; 401 KAR 53:010. Ambient air quality standards.

These SIP-approved rules and Kentucky's statute, along with Kentucky's Ambient Air Monitoring Network Plan, provide for the establishment and operation of ambient air quality monitors, the compilation and analysis of ambient air quality data, and the submission of these data to EPA upon request. Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan and a certified evaluation of the agency's ambient monitors and auxiliary support equipment.19 KDAQ's monitoring network plan was submitted on June 27, 2016, and approved by EPA on October 25, 2016. Kentucky's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2016-0213. EPA has made the preliminary determination that Kentucky's SIP and practices are adequate for the ambient air quality monitoring and data system related to the 2012 Annual PM2.5 NAAQS.

3. 110(a)(2)(C) Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element consists of three sub-elements: Enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources, and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program). These requirements are met through 401 KAR 50:060. Enforcement; 401 KAR 51:017. Prevention of significant deterioration of air quality; and 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas. Collectively, these regulations enable KDAQ to regulate sources contributing to the 2012 Annual PM2.5 NAAQS. EPA's analysis of how these provisions of Kentucky's SIP address each sub-element (with the exception of the minor source program requirements, as set forth below) is described below.

Enforcement: KDAQ's SIP-approved regulation, 401 KAR 50:060. Enforcement, provides for enforcement of PM2.5 emission limits and control measures through permit and compliance schedule modifications and revocations, and authorizes administrative penalties and injunctive relief, citing to statutory civil penalty and injunctive relief provisions of KRS 224.99-010. EPA has made the preliminary determination that Kentucky's SIP is adequate for enforcement related to the 2012 Annual PM2.5 NAAQS.

PSD Permitting for Major Sources: EPA interprets the PSD sub-element to require that a state's infrastructure SIP submission for a particular NAAQS demonstrate that the state has a complete PSD permitting program in place covering the structural PSD requirements for all regulated NSR pollutants. A state's PSD permitting program is complete for this sub-element (and prong 3 of D(i) and J related to PSD) if EPA has already approved or is simultaneously approving the state's SIP with respect to all structural PSD requirements that are due under the EPA regulations or the CAA on or before the date of the EPA's proposed action on the infrastructure SIP submission. For the 2012 Annual PM2.5 NAAQS, Kentucky's authority to regulate new and modified sources to assist in the protection of air quality in attainment or unclassifiable areas is established in KAR Chapter 51—Attainment and Maintenance of the National Ambient Air Quality Standards, which describes the permit requirements for new major sources or major modifications of existing sources in areas classified as attainment or unclassifiable under section 107(d)(1)(A)(ii) or (iii) of the CAA. These requirements are designed to ensure that sources in areas attaining the NAAQS at the time of designations prevent any significant deterioration in air quality. Chapter 51 also establishes the permitting requirements for areas in or around nonattainment areas and provides the Commonwealth's statutory authority to enforce regulations relating to attainment and maintenance of the NAAQS.

Kentucky's infrastructure SIP submission demonstrates that new major sources and major modifications in areas of the Commonwealth designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD elements.20 EPA has made the preliminary determination that Kentucky's SIP is adequate for PSD permitting for major sources related to the 2012 Annual PM2.5 NAAQS.

Regulation of minor sources and minor modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source preconstruction program that regulates emissions of the 2012 Annual PM2.5 NAAQS. EPA is not proposing any action in this rulemaking related to the regulation of minor sources and minor modifications under section 110(a)(2)(C) and will consider these requirements in relation to Kentucky's 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking.

4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport: Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components has two subparts resulting in four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“prong 1”), and interfering with maintenance of the NAAQS in another state (“prong 2”). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (“prong 3”), or to protect visibility in another state (“prong 4”).

110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2). EPA will consider these requirements in relation to Kentucky's 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking.

110(a)(2)(D)(i)(II)—prong 3: With regard to section 110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to: A PSD program meeting all the current structural requirements of part C of title I of the CAA, or (if the state contains a nonattainment area that has the potential to impact PSD in another state) to a NNSR program. As discussed in more detail above under section 110(a)(2)(C), Kentucky's SIP contains the relevant SIP revisions necessary to satisfy the structural PSD requirements of prong 3. Kentucky's SIP-approved NNSR program is found at 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas. EPA has made the preliminary determination that Kentucky's SIP is adequate for interstate transport for permitting of major sources and major modifications related to the 2012 Annual PM2.5 NAAQS for section 110(a)(2)(D)(i)(II) (prong 3).

110(a)(2)(D)(i)(II)—prong 4: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to visibility protection in other states of section 110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in relation to Kentucky's 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking.

5. 110(a)(2)(D)(ii) Interstate and International Transport Provisions: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. Regulation 401 KAR 51:010. Attainment Status Designations designates the status of all areas of the Commonwealth of Kentucky with regard to attainment of the NAAQS. Regulation 401 KAR 51:017. Prevention of significant deterioration of air quality and Regulation 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas, Section 1, require Kentucky to provide notice to nearby states that may be affected by proposed major source modifications. These regulations cite to Federal notification requirements under 40 CFR Sections 51.166 and 52.21, and to 401 KAR 52:100. Public, affected state, and US. EPA review, Section 6, which requires that public notice for permit actions be provided to affected states. Additionally, Kentucky does not have any pending obligation under sections 115 and 126 of the CAA. EPA has made the preliminary determination that Kentucky's SIP is adequate for ensuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2012 Annual PM2.5 NAAQS.

6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide: (i) Necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the state comply with the requirements respecting state boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve Kentucky's SIP submission as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii), and (iii).

In support of EPA's proposal to approve elements 110(a)(2)(E)(i) and (iii), KDAQ's infrastructure submission demonstrates that it is responsible for promulgating rules and regulations for the NAAQS, emissions standards, general policies, a system of permits, fee schedules for the review of plans, and other planning needs. With respect to having the necessary funding and authority to implement the Kentucky SIP, Kentucky regulation, 401 KAR 50:038. Air Emissions Fee, and the following State statutes support sub-elements (i) and (iii): KRS 224.10-100. Powers and Duties of the Cabinet and KRS 224.10-020. Departments within the cabinet—Offices and divisions within the departments—Appointments. As evidence of the adequacy of KDAQ's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to KDAQ on April 19, 2016, outlining 105 grant commitments and current status of these commitments for fiscal year 2015. The letter EPA submitted to KDAQ can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2016-0213. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. There were no outstanding issues in relation to the SIP for fiscal year 2015, therefore, KDAQ's grants were finalized and closed out. EPA has made the preliminary determination that Kentucky has adequate resources for implementation of the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(E)(i) and (iii).

Section 110(a)(2)(E)(ii) requires that Kentucky comply with section 128 of the CAA. Section 128 requires at 128(a)(1) the majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and 128(a)(2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar, powers be adequately disclosed. For purposes of section 128(a)(1), Kentucky has no boards or bodies with authority over air pollution permits or enforcement actions. Such matters are instead handled by the Director of the KDAQ. As such, a “board or body” is not responsible for approving permits or enforcement orders in Kentucky, and the requirements of section 128(a)(1) are not applicable. For purposes of section 128(a)(2), KDAQ's SIP has been updated. On October 3, 2012, EPA took final action to approve incorporation of KRS Chapters 11A.020, 11A.030, 11A.040 and Chapters 224.10-020 and 224.10-100 into the SIP to address the conflict of interest requirements of section 128. See 77 FR 60307. These SIP-approved state statutes establish the powers and duties of the Cabinet, departments within the Cabinet, and offices and divisions within such departments (Chapters 224.10-020 and 224.10-100), and support sub-element (ii) by requiring adequate disclosures of potential conflicts (KRS 11A.020. Public servant prohibited from certain conduct—Exception—Disclosure of personal or private interest) and otherwise ensuring that public officers and servants do not engage in activities that may present a conflict of interest (KRS 11A.030 Considerations in determination to abstain from action on official decision—Advisory opinion; and KRS 11A.040 Acts prohibited for public servant or officer—Exception). With the incorporation of these regulations and statutes into the Kentucky SIP, EPA has made the preliminary determination that the Commonwealth has adequately addressed the requirements of section 128(a)(2), and accordingly has met the requirements of section 110(a)(2)(E)(ii) with respect to infrastructure SIP requirements. Thus, EPA is proposing approval of KDAQ's infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS with respect to section 110(a)(2)(E)(ii).

7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing: (i) The installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. The Kentucky infrastructure submission describes how the major source and minor source emission inventory programs collect emission data throughout the Commonwealth and ensure the quality of such data. Kentucky meets these requirements through Chapter 50 General Administrative Procedures, specifically 401 KAR 50:050 Monitoring. 401 KAR 50:050, Section 1, Monitoring Records and Reporting, states that the Cabinet may require a facility to install, use, and maintain stack gas and ambient air monitoring equipment and to establish and maintain records, and make periodic emission reports at intervals prescribed by the Cabinet. 401 KAR 50:050 Monitoring, Section 1, Monitoring, Records, and Reporting, establishes the requirements for the installation, use, and maintenance of stack gas and ambient air monitoring equipment, and authorizes the Cabinet to require the owner or operator of any affected facility to establish and maintain records for this equipment and make periodic emission reports at intervals prescribed by the Cabinet. Also, KRS 224.10-100 (23) requires that any person engaged in any operation regulated pursuant to this chapter file with the Cabinet reports containing information as to location, size, height, rate of emission or discharge, and composition of any substance discharged or emitted into the ambient air or into the waters or onto the land of the Commonwealth, and such other information the Cabinet may require. In addition, EPA is unaware of any provision preventing the use of credible evidence in the Kentucky SIP.21

Additionally, Kentucky is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—nitrogen oxides, sulfur dioxides, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Kentucky made its latest update to the NEI on November 6, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary determination that Kentucky's SIP and practices are adequate for the stationary source monitoring systems related to the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(F).

8. 110(a)(2)(G) Emergency Powers: This section requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. Kentucky's infrastructure SIP submission identifies air pollution emergency episodes and preplanned abatement strategies as outlined in the following Kentucky regulations in Chapter 55 Emergency Episodes, specifically: 401 KAR 55:005. Significant harm criteria, 401 KAR 55:010. Episode Criteria, and 401 KAR 55:015. Episode Declaration. 401 KAR 55:005. Significant Harm Criteria, Section 1, Purpose, defines those levels of pollutant concentration which must be prevented in order to avoid significant harm to the health of persons. 401 KAR 55:010. Episodic Criteria, defines those levels of pollutant concentrations which justify the proclamation of an air pollution alert, air pollution warning, an air pollution emergency. 401 KAR 55:015. Episode Declaration, provides for the curtailment or reduction of processes or operations which emit an air contaminant or an air contaminant precursor whose criteria has been reached and are located in the affected areas for which an episode level has been declared.

In addition, KRS 224.10-100 Powers and duties of cabinet and KRS 224.10-410 Order for discontinuance, abatement, or alleviation of condition or activity without hearing—Subsequent hearing, establish the authority for Kentucky's secretary to issue orders to person(s) for discontinuance, abatement, or alleviation of any condition or activity without hearing because the condition or activity presents a danger to the health or welfare of the people of the state, and for the Cabinet to require adoption of any remedial measures deemed necessary. EPA has made the preliminary determination that Kentucky's SIP, and state laws are adequate for emergency powers related to the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(G).

9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan: (i) As may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. As previously discussed, KDAQ is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS. Kentucky has the ability and authority to respond to calls for SIP revisions, and has provided a number of SIP revisions over the years for implementation of the NAAQS.

KDAQ is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in Kentucky. 401 KAR Chapter 53 Ambient Air Quality and Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards grant KDAQ the broad authority to implement the CAA, and as such, provides KDAQ the authority to prepare and develop, after proper study, a comprehensive plan for the prevention of air pollution. These statutes also provide KDAQ the ability and authority to respond to calls for SIP revisions, and KDAQ has provided a number of SIP revisions over the years for implementation of the NAAQS. Additionally, 401 KAR 53:010 outlines the ambient air quality standards necessary for the protection of the public health, the general welfare, and the property and people in the Commonwealth and states that within 60 days of promulgation or revision of any NAAQS by EPA, the Cabinet will initiate a process to promulgate or review this administrative regulation. 401 KAR 51:010. Attainment Status Designations provides provisions for the Cabinet to review applicable data and submit to EPA proposed revisions to the list of attainment-nonattainment areas. EPA has made the preliminary determination that Kentucky adequately demonstrates a commitment to provide future SIP revisions related to the 2012 Annual PM2.5 NAAQS when necessary. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS with respect to section 110(a)(2)(H).

10. 110(a)(2)(J) Consultation with Government Officials, Public Notification, and PSD and Visibility Protection: EPA is proposing to approve Kentucky's infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that provides for meeting the applicable consultation requirements of section 121, the public notification requirements of section 127, PSD, and visibility. EPA's rationale for each sub-element is described below.

Consultation with government officials (121 consultation): Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation. This requirement is met through provisions in separate implementation plans, such as the Regional Haze SIP, which provide for continued consultation with government officials, including the FLMs. Kentucky adopted consultation procedures in coordination with the transportation partners in the Commonwealth, for the implementation of transportation conformity, which includes the development of mobile inventories for SIP development. Implementation of transportation conformity as outlined in the consultation procedures requires KDAQ to consult with Federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets. Also, KDAQ notes in its February 8, 2016, SIP submission that the following Kentucky regulations provide the Commonwealth the authority to meet this requirement: 401 KAR 50:055. General compliance requirements; 401 KAR 50:060. Enforcement; 401 KAR 50:065. Conformity of general federal actions; 401 KAR 50:066. Conformity of Transportation Plans, Programs, and Projects; 401 KAR 51:017. Prevention of Significant Deterioration of Air Quality; and 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate consultation with government officials related to the 2012 Annual PM2.5 NAAQS when necessary for the consultation with government officials element of section 110(a)(2)(J).

Public notification (127 public notification): These requirements are met through the following Kentucky regulations: 401 KAR 51:001. Definitions for 401 KAR Chapter 51; 401 KAR 51:005. Purpose and General Provisions; 401 KAR 51:010. Attainment Status Designations; 401 KAR 51:017. Prevention of significant deterioration of air quality; 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas; and 401 KAR 52:100. Public, Affected State, and US. EPA Review. Additionally, Kentucky provides air quality information to the public via its Web site at: http://eppcapp.ky.gov/daq/. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate the Commonwealth's ability to provide public notification related to the 2012 Annual PM2.5 NAAQS when necessary for the public notification element of section 110(a)(2)(J).

PSD: With regard to the PSD element of section 110(a)(2)(J), this requirement is met when a state's infrastructure SIP submission for a particular NAAQS demonstrates that the state has a complete PSD permitting program in place covering the structural PSD requirements for all regulated NSR pollutants. As discussed in more detail above under section 110(a)(2)(C), Kentucky's SIP contains the relevant SIP revisions necessary to satisfy the structural PSD requirements of this element of section 110(a)(2)(J). EPA has made the preliminary determination that Kentucky's SIP is adequate for the PSD element of section 110(a)(2)(J).

Visibility protection: EPA's 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. EPA recognizes that states are subject to visibility protection and regional haze program requirements under Part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals. As such, EPA has made the determination that it does not need to address the visibility protection element of section 110(a)(2)(J) in Kentucky's infrastructure SIP submission related to the 2012 Annual PM2.5 NAAQS.

11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to the EPA can be made. This requirement is met through Kentucky regulations 401 KAR 50:040. Air Quality Models and 401 KAR 50:050. Monitoring. Additionally, Kentucky participates in a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2012 Annual PM2.5 NAAQS, for the Southeastern states. Taken as a whole, Kentucky's air quality regulations and practices demonstrate that KDAQ has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of the 2012 Annual PM2.5 NAAQS. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate the Commonwealth's ability to provide for air quality modeling, along with analysis of the associated data, related to the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(K).

12. 110(a)(2)(L) Permitting Fees: This section requires the SIP to direct the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover: (i) The reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V.

Kentucky regulation, 401 KAR 50:038 Air Emissions Fee, 22 provides for the assessment of fees necessary to fund the state permit program. KDAQ ensures this is sufficient for the reasonable cost of reviewing and acting upon PSD and NNSR permits. Additionally, Kentucky has a fully approved title V operating permit program at 401 KAR 52:020 Title V permits 23 that covers the cost of implementation and enforcement of PSD and NNSR permits after they have been issued. EPA has made the preliminary determination that Kentucky's SIP and practices adequately provide for permitting fees related to the 2012 Annual PM2.5 NAAQS, when necessary. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(L).

13. 110(a)(2)(M) Consultation and Participation by Affected Local Entities: Section 110(a)(2)(M) of the Act requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. This requirement is met through provisions in separate implementation plans, such as the regional haze SIP, which provide for continued consultation with government officials, including the FLMs. Kentucky regulation, 401 KAR 50:066. Conformity of transportation plans, programs, and projects, and the interagency consultation process as directed by Kentucky's approved Conformity SIP and 40 CFR 93.112 provide for consultation with local groups. More specifically, Kentucky adopted state-wide consultation procedures for the implementation of transportation conformity which includes the development of mobile inventories for SIP development and the requirements that link transportation planning and air quality planning in nonattainment and maintenance areas. Required partners covered by Kentucky's consultation procedures include Federal, state and local transportation and air quality agency officials. Further, Kentucky's PM2.5 infrastructure SIP submission notes that the following State regulations and State statutes provide the Commonwealth the authority to meet the requirements of this element: 401 KAR 50:066. Conformity of transportation plans, programs, and projects; 401 KAR 52:100. Public, Affected State, and US EPA Review; and KRS Chapter 77. Air Pollution Control. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate consultation with affected local entities related to the 2012 Annual PM2.5 NAAQS when necessary.

With the exception of interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility protection requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and the minor source program requirements of section 110(a)(2)(C), EPA is proposing to approve Kentucky's February 8, 2016, infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS for the above described infrastructure SIP requirements. EPA is proposing to approve these portions of Kentucky's infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS because these aspects of the submission are consistent with section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

This is a summary of the Federal Communications Commission's Notice of Proposed Rulemaking and Notice of Inquiry (NPRM and NOI, respectively), in WT Docket No. 17-79; FCC 17-38, adopted April 20, 2017, and released on April 21, 2017. The document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. 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).

1. In this section, the Commission addresses the process for reviewing and deciding on wireless facility deployment applications conducted by State and local regulatory agencies. The Commission seeks comment on several potential measures or clarifications intended to expedite such review pursuant to the Commission's authority under Section 332 of the Communications Act.

2. The Commission has taken a number of important actions to date implementing Section 332(c)(7) of the Communications Act (Act) and Section 6409(a) of the Spectrum Act, each of which has been upheld by federal courts. The Commission seeks to assess the impact of the Commission's actions to date, in order to evaluate the measures the Commission discusses in the NPRM, as well as other possible actions, and to determine whether those measures are likely to be effective in further reducing unnecessary and potentially impermissible delays and burdens on wireless infrastructure deployment associated with State and local siting review processes. Thus, the Commission asks parties to submit facts and evidence on the issues discussed below and on any other matters relevant to the policy proposals set forth here. The Commission seeks information on the prevalence of barriers, costs thereof, and impacts on investment in and deployment of wireless services, including how such costs compare to the overall costs of deployment. The Commission seeks information on the specific steps that various regulatory authorities employ at each stage in the process of reviewing applications, and which steps have been most effective in efficiently resolving tensions among competing priorities of network deployment and other public interest goals. In addition, parties should detail the extent to which the Commission's existing rules and policies have or have not been successful in addressing local siting review challenges, including effects or developments since the 2014 Infrastructure Order, the Commission's most recent major decision addressing these issues (See Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC Rcd 12865 (2014) (2014 Infrastructure Order)). To the extent that parties have submitted information in response to the Wireless Telecommunications Bureau's Streamlining PN that is relevant to these questions, the Commission invites them to submit such data in the present docket (See Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies; Mobilitie, LLC Petition For Declaratory Ruling, Public Notice, 31 FCC Rcd 13360, 13368 (WTB 2016) (Streamlining PN)). In addition, to the extent parties discuss the conduct or practices of government bodies or wireless facility siting applicants, the Commission strongly urges them to identify the particular entities that they assert engaged in such conduct or practices.

3. Further, in seeking comment on new or modified measures to expedite local review, the Commission invites commenters to discuss what siting applicants can or should be required to do to help expedite or streamline the siting review process. Are there ways in which applicants are causing or contributing to unnecessary delay in the processing of their siting applications? If so, the Commission seeks comment on how the Commission should address or incorporate this consideration in any action the Commission takes in this proceeding. For example, to what extent have delays been the result of incomplete applications or failures to properly respond to requests to the applicant for additional information, and how should measures the Commission adopts or revises to streamline application review ensure that applicants are responsible for supplying complete and accurate filings and information? Further, are there steps the industry can take outside the formal application review process that may facilitate or streamline such review? Are there siting practices that applicants can or should adopt that will facilitate faster local review while still achieving the deployment of infrastructure necessary to support advanced wireless broadband services?

4. The Commission now takes a fresh look and seeks comment on a “deemed granted” remedy for State and local agencies' failure to satisfy their obligations under Section 332(c)(7)(B)(ii) to act on applications outside the context of the Spectrum Act. The Commission invites commenters to address whether the Commission should adopt one or more of the three options discussed below regarding the mechanism for implementing a “deemed granted” remedy. The Commission describes each of these options below and explains its analysis of its legal authority to adopt each of them. The Commission seeks comment on the benefits and detriments of each option and invites parties to discuss the Commission's legal analysis. The Commission also seeks comment on whether there are other options for implementing a “deemed granted” remedy.

5. Irrebuttable Presumption. In the 2009 Shot Clock Declaratory Ruling, the Commission created a “rebuttable presumption” that the shot clock deadlines established by the Commission were reasonable (See Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC Rcd 13994 (2009) (2009 Shot Clock Declaratory Ruling)). The Commission anticipated that this would give State and local regulatory agencies “a strong incentive to resolve each application within the time frame defined as reasonable.” Thus, when an applicant sues pursuant to Section 332(c)(7)(B)(v) to challenge an agency's failure to act on an application by the applicable deadline, the agency would face the burden of “rebut[ting] the presumption that the established timeframes are reasonable,” and if it fails to satisfy this burden, the court could “issu[e] . . . an injunction granting the application.” The Commission believes one option for establishing a “deemed granted” remedy for a State or local agency's failure to act by the applicable deadline would be to convert this rebuttable presumption into an irrebuttable presumption. Thus, the Commission's determination of the reasonable time frame for action (i.e., the applicable shot clock deadline) would “set an absolute limit that—in the event of a failure to act—results in a deemed grant.”

6. The Commission believes it has legal authority to adopt this approach. The Commission sees no reason to continue adhering to the cautious approach articulated in the 2009 Shot Clock Declaratory Ruling—i.e., that Section 332(c)(7) “indicates Congressional intent that courts should have the [sole] responsibility to fashion . . . remedies” on a “case-specific” basis. The Commission advanced that theory without citing any legislative history or other sources, and the Fifth Circuit, in its decision upholding the 2009 Shot Clock Declaratory Ruling, apparently declined to rely on it. Instead, the Fifth Circuit found no indication in the statute and its legislative history of any clear Congressional intent on whether the Commission could “issue an interpretation of section 332(c)(7)(B)(v) that would guide courts' determinations of disputes under that section,” and went on to affirm that the Commission has broad authority to render definitive interpretations of ambiguous provisions such as this one in Section 332(c)(7). The Fifth Circuit further found—and the Supreme Court affirmed—that courts must follow such Commission interpretations.

7. The Commission sees nothing in the statute that explicitly compels a case-by-case assessment of the relevant circumstances for each individual application, nor any provision specifically requiring that those time frames be indefinitely adjustable on an individualized basis, rather than subject to dispositive maximums that may be deemed reasonable as applied to specified categories of applications. While Section 332(c)(7)(B)(ii) provides that a locality must act on each application “within a reasonable time, taking into account the nature and scope of such request,” this does not necessarily mean that a reviewing court “must consider the specific facts of individual applications” to determine whether the locality acted within a reasonable time frame; the Commission is well-positioned to take into account the “nature and scope” of particular categories of applications in determining the maximum reasonable amount of time for localities to address each type. The Commission seeks comment on this analysis.

8. Lapse of State and Local Governments' Authority. In the alternative (or in addition) to the irrebuttable presumption approach discussed above, the Commission believes it may implement a “deemed granted” remedy for State and local agencies' failure to act within a reasonable time based on the following interpretation of ambiguous provisions in the statute. Section 332(c)(7)(A) assures these agencies that their “authority over decisions concerning the placement, construction, and modification of personal wireless service facilities” is preserved—but significantly, qualifies that assurance with the provision “except as provided” elsewhere in Section 332(c)(7). The Commission seeks comment on whether the Commission should interpret this phrase as meaning that if a locality fails to meet its obligation under Section 332(c)(7)(B)(ii) to “act on [a] request for authorization to place, construct, or modify personal wireless facilities within a reasonable period of time,” then its “authority over decisions concerning” that request lapses and is no longer preserved. Under this interpretation, by failing to act on an application within a reasonable period of time, the agency would have defaulted its authority over such applications (i.e., lost the protection of Section 332(c)(7)(A), which otherwise would have preserved such authority), and at that point no local land-use regulator would have authority to approve or deny an application. Arguably, the Commission could establish that in those circumstances, there is no need for an applicant to seek such approval. The Commission seeks comment on this interpretation and on the desirability of taking this approach.

9. Preemption Rule. A third approach to establish a “deemed granted” remedy—standing alone or in tandem with one or both of the approaches outlined above—would be to promulgate a rule to implement the policies set forth in Section 332(c)(7). Sections 201(b) and 303(r), as well as other statutory provisions, generally authorize the Commission to adopt rules or issue other orders to carry out the substantive provisions of the Communications Act. Further, the Fifth Circuit affirmed the determination in the 2009 Shot Clock Declaratory Ruling that the Commission's “general authority to make rules and regulations to carry out the Communications Act includes the power to implement section 332(c)(7)(B)(ii) and (v).” Accordingly, the Commission seeks comment on whether it could promulgate a “deemed granted” rule to implement Section 332(c)(7). The Commission also seeks comment on whether Section 253, standing alone or in conjunction with Section 332(c)(7) or other provisions of the Act, provides the authority for the Commission to promulgate a “deemed granted” rule.

10. In 2009, the Commission determined that, for purposes of determining what is a “reasonable period of time” under Section 332(c)(7)(B)(ii), 90 days should be sufficient for localities to review and act on (either by approving or denying) complete collocation applications, and that 150 days is a reasonable time frame for them to review and act on other types of complete applications to place, construct, or modify wireless facilities. In its 2014 Infrastructure Order, the Commission implemented Section 6409(a) of the Spectrum Act (enacted by Congress in 2012) by, among other things, creating a new 60-day shot clock within which localities must act on complete applications subject to the definitions in the Spectrum Act.

11. The Commission asks commenters to discuss whether the Commission should consider adopting different time frames for review of facility deployments not covered by the Spectrum Act. For example, the Commission seeks comment on whether it should harmonize the shot clocks for applications that are not subject to the Spectrum Act with those that are, so that, for instance, the time period deemed reasonable for non-Spectrum Act collocation applications would change from 90 days to 60 days. Alternatively, should the Commission establish a 60-day shot clock for some subset of collocation applications that are not subject to the Spectrum Act, for example, applications that meet the relevant dimensional limits but are nevertheless not subject to the Spectrum Act because they seek to collocate equipment on non-tower structures that do not have any existing antennas? Should the Commission adopt different presumptively reasonable time frames for resolving applications for more narrowly defined classes of deployments such as (a) construction of new structures of varying heights (e.g., 50 feet tall or less, versus 50 to 200 feet tall, versus taller than 200 feet); (b) construction of new structures in or near major utility or transportation rights of way, or that are in or near established clusters of similar structures, versus those that are not; (c) deployments in areas that are zoned for residential, commercial, or industrial use, or in areas where zoning or planning ordinances contemplate little or no additional development; or (d) replacements or removals that do not fall within the scope of Section 6409(a) of the Spectrum Act (for example, because they exceed the dimensional limits for requests covered by that provision)? The Commission also requests comment on whether to establish different time frames for (i) deployment of small cell or Distributed Antenna System (DAS) antennas or other small equipment versus more traditional, larger types of equipment or (ii) requests that include multiple proposed deployments or, equivalently, “batches” of requests submitted by a single provider to deploy multiple related facilities in different locations, versus proposals to deploy one facility. Should the Commission align the Commission's definitions of categories of deployments for which the Commission specifies reasonable time frames for local siting review with the Commission's definitions of the categories of deployments that are categorically excluded from environmental or historic preservation review?

12. The Commission seeks comment on what time periods would be reasonable (outside the Spectrum Act context) for any new categories of applications, and on what factors the Commission should consider in making such a decision. For what types or categories of wireless siting applications may shorter time periods be reasonable than those established in the 2009 Shot Clock Declaratory Ruling? The Commission invites commenters to submit information to help guide the Commission's development of appropriate time frames for various categories of deployment. The Commission asks commenters to submit any available data on whether localities already recognize different categories of deployment in their processes, and on the actual amounts of time that localities have taken under particular circumstances.

13. The Commission also seeks comment on whether it should provide further guidance to address situations in which it is not clear when the shot clock should start running, or in which States and localities on one hand, and industry on the other, disagree on when the time for processing an application begins. For instance, the Commission has heard anecdotally that some jurisdictions impose a “pre-application” review process, during which they do not consider that a request for authorization has been filed. The Commission seeks comment on how the shot clocks should apply when there are such pre-application procedures; at what point should the clock begin to run? Are there other instances in which there is a lack of clarity or disagreement about when the clock begins to run? The Commission asks parties to address whether and how it should provide clarification of how the Commission's rules apply in those circumstances.

14. Finally, the Commission seeks comment on whether there are additional steps that should be considered to ensure that a deemed granted remedy achieves its purpose of expediting review. For example, to what extent can the attachment of conditions to approvals of local zoning applications slow the deployment of infrastructure? Are applicants encountering requirements to comply with codes that are not reasonably related to health and safety? To the extent these conditions present challenges to deployment, are there steps the Commission can and should take to address such challenges?

15. Another concern relating to the “reasonable periods of time” for State and local agencies to act on siting applications is that some agencies may be continuing to impose “moratoria” on processing such applications, which inhibit the deployment of the infrastructure needed to provide robust wireless services. If so, such moratoria might contravene the 2014 Infrastructure Order, which clearly stated that the shot clock deadlines for applications continue to “run[] regardless of any moratorium.” The Commission explained that this conclusion was “consistent with a plain reading of the 2009 Declaratory Ruling, which specifies the conditions for tolling and makes no provision for moratoria,” and concluded that this means that “applicants can challenge moratoria in court when the shot clock expires without State or local government action.” The Commission sees no reason to depart from this conclusion. The Commission asks commenters to submit specific information about whether some localities are continuing to impose moratoria or other restrictions on the filing or processing of wireless siting applications, including refusing to accept applications due to resource constraints or due to the pendency of state or local legislation on siting issues, or insisting that applicants agree to tolling arrangements. Commenters should identify the specific entities engaging in such actions and describe the effect of such restrictions on parties' ability to deploy or upgrade network facilities and provide service to consumers. The Commission proposes to take any additional actions necessary, such as issuing an order or declaratory ruling providing more specific clarifications of the moratorium ban or preempting specific State or local moratoria. Commenters should discuss the benefits and detriments of any such additional measures and the Commission's legal authority to adopt them.

16. In the following sections, the Commission undertakes a comprehensive fresh look at its rules and procedures implementing the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) as they relate to the Commission's implementation of Title III of the Act in the context of wireless infrastructure deployment, given the ongoing evolution in wireless infrastructure deployment towards smaller antennas and supporting structures as well as more frequent collocation on existing structures.

17. Many wireless providers have raised concerns about the Commission's environmental and historic preservation review processes because, they say, these reviews increase the costs of deployment and pose lengthy and often unnecessary delays, particularly for small facility deployments. A large number of wireless providers complain that the Tribal component of the Section 106 review process is particularly cumbersome and costly. The Commission seeks concrete information on the amount of time it takes for Tribal Nations to complete the Section 106 review process and on the costs that Tribal participation imposes on facilities deployment and on the provision of service. The Commission also seeks comment and specific information on the extent of benefits attributable to Tribal participation under the Commission's Section 106 procedures, particularly in terms of preventing damage to historic and culturally significant properties.

18. In addition, in May 2016, PTA-FLA filed a Petition for Declaratory Ruling arguing that “Tribal fees have become so exorbitant in some cases to approach or even exceed the cost of actually erecting the tower.” The Commission incorporates PTA-FLA's petition into this proceeding and seeks comment below on its proposals.

19. Some wireless providers contend that the SHPO review process also results in significant delays in deployment. The Commission seeks comment on the costs associated with SHPO review under the Commission's historic preservation review process, including direct financial costs; costs that delay imposes on carriers, tower owners, and the public; and any other costs. What are the costs associated with SHPO review of typical small facility deployments, and how do these compare with the costs for tower construction projects? Does the SHPO review process duplicate historic preservation review at the local level, particularly when local review is conducted by a Certified Local Government or a governmental authority that issues a Certificate of Appropriateness? In addition, the Commission seeks comment on how often SHPO review results in changes to a construction project due to a SHPO's identification of potential harm to historic properties or confers other public benefits.

20. Some argue that NEPA compliance imposes extraordinarily high costs on wireless providers and results in significant delays. The Commission seeks comment on the costs and relative benefits of the Commission's NEPA rules. What are the costs associated with NEPA compliance, other than costs associated with historic preservation review? How do the costs of NEPA compliance for tower construction compare to such costs for small facilities, and what specific benefits does the review confer?

21. Finally, some note that facilities requiring Federal review must also undergo pre-construction review by local governmental authorities, and assert that the inability to engage in these dual reviews simultaneously can add significant time to the process. The Commission seeks comment on whether local permitting, NEPA review, and Section 106 review processes can feasibly be conducted simultaneously, and on whether there are barriers preventing simultaneous review to the extent it is feasible. To what extent do significant siting changes or the potential for such changes during the local process make simultaneous review impractical or inefficient? Alternatively, have reviewing or consulting parties in the Commission's NEPA or Section 106 review processes declined to process an application until a local permitting process is complete? The Commission seeks comment on whether and under what circumstances simultaneous review would, on the whole, minimize delays and provide for a more efficient process and what steps, if any, the Commission should take to facilitate or enable such simultaneous review.

22. In this section, the Commission identifies and seeks comment on several issues relevant to fees paid to Tribal Nations in the Section 106 process. In addition to commenting on the legal framework and on potential resolutions to the issues, the Commission encourages commenters to provide specific factual information on current Tribal and industry practices and on the impacts of those practices on licensees/tower owners, Tribal Nations, and timely deployment of advanced broadband services to all Americans. The Commission further welcomes information on the practices of other Federal agencies for the Commission's consideration.

23. Neither the NHPA nor the Advisory Council on Historic Preservation's (ACHP) implementing regulations address whether and under what circumstances Tribal Nations and Native Hawaiian Organizations (NHO) may seek compensation in connection with their participation in the Section 106 process. The ACHP has, however, issued guidance on the subject in the form of a memorandum in 2001 and as part of a handbook last issued in 2012. The ACHP 2001 Fee Guidance explains that “the agency or applicant is not required to pay the tribe for providing its views.” Further, “[i]f the agency or applicant has made a reasonable and good faith effort to consult with an Indian tribe and the tribe refuses to respond without receiving payment, the agency has met its obligation to consult and is free to move to the next step in the Section 106 process.” The guidance also states, however, that when a Tribal Nation “fulfills the role of a consultant or contractor” when conducting reviews, “the tribe would seem to be justified in requiring payment for its services, just as any other contractor,” and the company or agency “should expect to pay for the work product.” As explained below, the Commission seeks comment on how the ACHP's guidance can be applied in the context of the Commission's existing procedures and the proposals in this proceeding. Moreover, the Commission seeks comment on practices or procedures of other Federal agencies with respect to addressing the various roles a Tribal Nation may play in the Section 106 process and how to identify those services for which a Tribal Nation would be justified in seeking fees.

24. Circumstances When Fees Are Requested. The ACHP Handbook clearly states that no “portion of the NHPA or the ACHP's regulations require[s] an agency or an applicant to pay for any form of tribal involvement.” The Commission notes that ACHP guidance permits payments to a Tribal Nation when it fulfills a role similar to any other consultant or contractor. At what point in the Tower Construction Notification System (TCNS) process, if any, might a Tribal Nation act as a contractor or consultant? The Commission seeks comment on any facts that might affect the answer to that question. Does the particular request of the applicant determine whether a Tribal Nation is acting as a contractor or consultant? For example, the ACHP Handbook notes that if an applicant asks for “specific information and documentation” from a Tribal Nation, then the Tribal Nation is being treated as a contractor or consultant. Should the Commission infer if the applicant does not ask explicitly for such information and documentation, then no payment is necessary? The Commission also seeks comment on whether Tribal review for some types of deployment is less in the nature of a contractor or consultant. For example, would collocations or applications to site poles in rights of way be less likely to require services outside of the Tribal Nation's statutory role? In reviewing TCNS submissions for collocations or for siting poles in rights of way, under what circumstances might a Tribal Nation incur research costs for which it or another contractor might reasonably expect compensation?

25. Once a Tribal Nation or NHO has been notified of a project, an applicant must provide “all information reasonably necessary for the Indian tribe or NHO to evaluate whether Historic Properties of religious and cultural significance may be affected” and provide the Tribal Nation or NHO with a reasonable opportunity to respond. The Commission seeks comment on this requirement and on any modifications the Commission can and should make. In particular, the Commission seeks comment on whether the information in FCC Form 620 or FCC Form 621 is sufficient to meet the requirement that “all information reasonably necessary . . .” has been provided to the Tribal Nation. If not, are there modifications to these forms that would enable the Commission to meet this requirement? For example, should the FCC Form 620 and FCC Form 621 be amended to address the cultural resources report that an applicant prepares after completing a Field Survey? Additionally, the Commission seeks comment on whether a Tribal Nation's or NHO's review of the materials an applicant provides under the Nationwide Programmatic Agreement (NPA) Section VII is ever, and if so under what circumstances, the equivalent of asking the Tribal Nation or NHO to provide “specific information and documentation” like a contractor or consultant would, thereby entitling the Tribal Nation to seek compensation under ACHP guidance and the NPA. If a Tribal Nation chooses to conduct research, surveying, site visits or monitoring absent a request of the applicant, would such efforts require payment from the applicant? If an archaeological consultant conducted research, surveying, site visits, or monitoring absent a request of the applicant, would the applicant normally be required to pay that contractor or consultant? The Commission seeks comment on how the ACHP Handbook's statement that an “applicant is free to refuse [payment] just as it may refuse to pay for an archaeological consultant,” as well as its statement that “the agency still retains the duties of obtaining the necessary information [to fulfill its Section 106 obligations] through reasonable methods,” impacts the Commission's analysis of payments for Tribal participation.

26. The Commission notes that some Tribal Nations have indicated that they assess a flat upfront fee for all applications as a way to recover costs for their review of all TCNS applications, thereby eliminating the administrative burden of calculating actual costs for each case. The Commission seeks comment on this manner of cost recovery and whether such cost recovery is consistent with ACHP's fee guidance in its 2012 Handbook. Tribal Nations have also indicated that they have experienced difficulties in collecting compensation after providing service as a reason for upfront fee requests. The Commission seeks comment on whether this concern could be alleviated if the Commission clarifies when a Tribal Nation is acting under its statutory role and when it is being hired as a contractor or consultant under the Commission's process. The Commission also seeks comment on whether there might be a more appropriate way to address this concern.

27. What steps, if any, can the Commission take to issue the Commission's own guidance on the circumstances in the Commission's process when the Tribal Nation is expressing its views and no compensation by the agency or the applicant is required under ACHP guidance, and the circumstances where the Tribal Nation is acting in the role of a consultant or contractor and would be entitled to seek compensation? The Commission seeks comment on what bright-line test, if any, could be used. How does the reasonable and good faith standard for identification factor, if at all, into when a Tribal request for fees must be fulfilled in order to meet the standard? The Commission seeks comment on how disputes between the parties might be resolved when a Tribal Nation asserts that compensable effort is required to initiate or conclude Section 106 review. The Commission seeks comment on whether there are other mechanisms to reduce the need for case-by-case analysis of fee disputes. While the Commission seeks comment generally on its process, the Commission also seeks comment particularly in the context of deployment of infrastructure for advanced communications networks.

28. To the extent that supplementing current ACHP guidance would help clarify when Tribal fees may be appropriate while both facilitating efficient deployment and recognizing Tribal interests, what input, if any, should the Commission provide to the ACHP on potential modifications to ACHP guidance?

29. Amount of Fees Requested. One factor that appears to be driving tower owners and licensees to seek Commission guidance in the fee area is not the mere existence of fees, but instead the amount of compensation sought by some Tribal Nations. How, if at all, does the “reasonable and good faith” standard for identification factor into or temper the amount of fees a Tribal Nation may seek in compensation? Are there any extant fee rates or schedules that might be of particular use to applicants and Tribal Nations in avoiding or resolving disputes regarding the amount of fees?

30. One party has requested in a petition that the Commission establish a fee schedule or otherwise resolve fee disputes. The Commission seeks comment on the legal framework applicable to this request. How might the impact of fee disputes on the deployment of infrastructure for advanced communications networks provide a basis for establishing a fee schedule in this context using the Communications Act as authority? Do the NHPA or other statutes limit the Commission's ability to establish such a fee schedule, and if so, how? How might the Miscellaneous Receipts Act (MRA) and General Accountability Office (GAO) precedent on improper augmentation temper the parameters of the Commission's actions in the area? The Commission seeks comment on whether other Federal agencies have established fee schedules or addressed the matter in any way, e.g., either formally or informally or with respect to particular projects. How does due regard for Tribal sovereignty and the Government's treaty obligations affect the Commission's latitude for action in this area?

31. If the Commission were to establish a fee schedule, the Commission seeks comment on what weight or impact it might have on the Commission's process. For example, to what extent would fees at or below the level established by a fee schedule be considered presumptively reasonable? The Commission further seeks comment on what legal framework would be relevant to resolution of disputes concerning an upward or downward departure from the fee schedule. Should the fees specified in such a schedule serve as the presumptive maximum an applicant would be expected to pay, and under what circumstances might an upward departure from the fee schedule be appropriate? In addition to the concepts cited in the prior paragraph, are there other legal principles at play in the resolution of a dispute over a fee that might not arise in the context of merely setting a fee schedule? Have any other Federal agencies formally or informally resolved fee disputes between applicants and Tribal Nations, and if so, under what legal parameters? The Commission also seeks comment on what categories of services should be included, and whether the categories should be general or more specific. How would the Commission establish the appropriate level for fees? How could a fee schedule take into account both regional differences and changes in costs over time, i.e., inflation? The Commission also seeks comment on whether it should only establish a model fee schedule and whether that would be consistent with the Tribal engagement requirements contemplated by Section 106.

32. Geographic Areas of Interest. Tribal Nations have increased their areas of interest within the TCNS as they have improved their understanding of their history and cultural heritage. As a result, applicants must sometimes contact upwards of 30 different Tribal Nations and complete the Section 106 process with each of them before being able to build their project. The Commission seeks comment on whether there are actions it can and should take to mitigate this burden while complying with the Commission's obligation under the NHPA and promoting the interests of all stakeholders. For example, the TCNS allows Tribal Nations and NHOs to select areas of interest at either a State or county level, but many Tribal Nations have asked to be notified of any project within entire States, and in a few instances, at least 20 different States. The Commission seeks comment on whether it could and should encourage, or require, the specification of areas of interest by county. The Commission also seeks comment on whether it should require some form of certification for areas of interest, and if so, what would be the default if a Tribal Nation fails to provide such certification.

33. The Commission seeks comment on whether TCNS should be modified to retain information on areas where concerns were raised and reviews conducted, so that the next filer knows whether there is a concern about cultural resources in that area or not. To what extent should applicants be able to rely on prior clearances, given that resources may continue to be added to the lists of historic properties? To the extent the Commission considers allowing applicants to rely on prior clearances, how should the Commission accommodate Tribal Nations' changes to their areas of interest? The Commission further seeks comment on how it can protect information connected to prior site reviews, especially those areas where a tower was not cleared because there may be artifacts. The Commission also seeks comment on whether it can make any other changes to TCNS or the Commission's procedures to improve the Tribal review process.

34. In addition, applicants routinely receive similar requests for compensation or compensable services from multiple Tribal Nations. While the Commission recognizes that each Tribal Nation is sovereign and may have different concerns, the Commission seeks comment on when it is necessary for an applicant to compensate multiple Tribal Nations for the same project or for the same activity related to that project, in particular site monitoring during construction. The Commission also seeks comment on whether, when multiple Tribal Nations request compensation to participate in the identification of Tribal historic properties of religious and cultural significance, whether there are mechanisms to gain efficiencies to ensure that duplicative review is not conducted by each Tribal Nation. Is it always necessary to obtain such services from all responding Tribal Nations that request to provide the service, and if so, why? Might one Tribal Nation when functioning in the role of a contractor perform certain services and share the work product with other Tribal Nations, e.g., site monitoring? Could an applicant hire a qualified independent site monitor and share its work product with all Tribal Nations that are interested? How would the Commission ensure that such a monitor is qualified so that other Tribal Nations' interests will be adequately considered? Should the Commission require that such a monitor meet some established minimum standards? The Commission also seeks comment on whether monitors should be required to prepare a written report and provide a copy to applicants.

35. Remedies and Dispute Resolution. While the ACHP has indicated that Tribal concurrence is not necessary to find that no historic properties of religious and cultural significance to Tribal Nations or NHOs would be affected by an undertaking, the agency is responsible for getting the information necessary to make that determination. The Commission seeks comment on how these two directives interact. The ACHP 2001 Fee Guidance states that “if an agency or applicant attempts to consult with an Indian tribe and the tribe demands payment, the agency or applicant may refuse and move forward.” The Commission seeks comment on whether and under what circumstances the Commission should authorize a project to proceed when a Tribal Nation refuses to respond to a Section 106 submittal without payment.

36. Under the NPA, when a Tribal Nation or NHO refuses to comment on the presence or absence of effects to historic properties without compensation, the applicant can refer the procedural disagreement to the Commission. The Commission seeks comment on whether it can adjudicate these referrals by evaluating whether the threshold of “reasonable and good faith effort” to identify historic properties has been met, given that the Tribal Nation can always request government-to-government consultation in the event of disagreement.

37. The Commission seeks comment on when it must engage in government-to-government consultation to resolve fee disputes, including when the compensation level for an identification activity has been established by a Tribal government.

38. Negotiated Alternative. The Commission notes that since September 2016, it has been facilitating meetings among Tribal and industry stakeholders with the goal of resolving challenges to Tribal requirements in the Section 106 review process, including disagreements over Tribal fees. The Commission seeks comment on whether it should continue seeking to develop consensus principles and, if so, how those principles should be reflected in practice. For example, the Commission seeks comment on whether it should seek to enter into agreements regarding best practices with Tribal Nations and their representatives.

(ii) Other NHPA Process Issues

39. Lack of Response. As discussed above, while both State Historic Preservation Officers (SHPOs) and Tribal Nations/NHOs are expected ordinarily to respond to contacts within 30 days, the NPA and the Commission's practice establish different processes to be followed when responses are not timely. The Commission seeks comment on what measures, if any, it should take to further speed either of these review processes, either by amending the NPA or otherwise, while assuring that potential effects on historic preservation are fully evaluated. What effect would such proposals have on addressing Section 106-associated delays to deployment? Should different time limits apply to different categories of construction, such as new towers, DAS and small cells, and collocations? Have advances in communications during the past decade, particularly with respect to communications via the Internet, changed reasonable expectations as to timeliness of responses and reasonable efforts to follow up?

40. With respect to Tribal Nations and NHOs, the Commission seeks comment on whether the processes established by the 2005 Declaratory Ruling and the Good Faith Protocol adequately ensure the completion of Section 106 review when a Tribal Nation or NHO is non-responsive (See Clarification of Procedures for Participation of Federally Recognized Indian Tribes and Native Hawaiian Organizations Under the Nationwide Programmatic Agreement, Declaratory Ruling, 20 FCC Rcd 16092 (2005) (2005 Declaratory Ruling)). The Commission seeks comment on whether the process can be revised in a manner that would permit applicants to self-certify their compliance with the Commission's Section 106 process and therefore proceed once they meet the Commission's notification requirements, without requiring Commission involvement, in a manner analogous to the “deemed granted” remedy for local governments. Would such an approach be consistent with the NPA and with the Commission's legal obligations? The Commission notes that Commission staff has discovered on numerous occasions that applicants have failed to perform their Tribal notifications as the Commission's processes require. If the Commission were to permit applicants to self-certify that they have completed their Tribal notification obligations, the Commission seeks comment on how it could ensure that the certifications are truthful and well-founded.

41. Batching. In the PTC Program Comment, the ACHP established a streamlined process for certain facilities associated with building out the Positive Train Control (PTC) railroad safety system (See Wireless Telecommunications Bureau Announces Adoption of Program Comment to Govern Review of Positive Train Control Wayside Facilities, WT Docket 13-240, Public Notice, 29 FCC Rcd 5340, Attachment (WTB 2014) (PTC Program Comment)). Among other aspects of the PTC Program Comment, eligible facilities may be submitted to SHPOs and through TCNS in batches.

42. The Commission seeks comment on whether it should adopt either a voluntary or mandatory batched submission process for non-PTC facilities. What benefits could be realized through the use of batching? What lessons can be learned from the experience with PTC batching? What guidelines should the Commission provide, if any, regarding the number of facilities to be included in a batch, their geographic proximity, or the size of eligible facilities? Should there be other conditions on eligibility, such as the nature of the location or the extent of ground disturbance? Should different time limits or fee guidelines, if any are adopted, apply to batched submissions? What changes to the Commission's current TCNS and E-106 forms and processes might facilitate batching? The Commission seeks comment on these and any other policy or operational issues associated with batching of proposed constructions.

43. Other NHPA Process Reforms. The Commission seeks comment on whether there are additional procedural changes that the Commission should consider to improve the Section 106 review process in a manner that does not compromise its integrity.

44. The Commission seeks comment on ways to improve and further streamline its environmental compliance regulations while ensuring that the Commission meets its NEPA obligations. For example, should the Commission consider new categorical exclusions for small cells and DAS facilities? If so, under what conditions and on what basis? Should the Commission revise its rules so that an EA is not required for siting in a floodplain when appropriate engineering or mitigation requirements have been met? Are there other measures the Commission could take to reduce unnecessary processing burdens consistent with NEPA?

45. As part of the effort to expedite further the process for deployment of wireless facilities, including small facility deployments in particular, the Commission seeks comment below on whether it should expand the categories of undertakings that are excluded from Section 106 review. With respect to each of the potential exclusions discussed below, the Commission seeks comment on the alternatives of adopting additional exclusions directly in the Commission's rules, or incorporating into the Commission's rules a program alternative pursuant to the ACHP rules. The Commission may exclude activities from Section 106 review through rulemaking upon determining that they have no potential to cause effects to historic properties, assuming such properties are present. Where potential effects are foreseeable and likely to be minimal or not adverse, a program alternative under the ACHP's rules may be used to exclude activities from Section 106 review. The Commission seeks comment about whether the exclusions discussed below meet the test for an exclusion in 36 CFR 800.3(a)(1) or whether they would require a program alternative. To the extent that a program alternative would be necessary, the Commission seeks comment on which of the program alternatives authorized under the ACHP's rules would be appropriate. Particularly, for those potential exclusions where a program alternative would be required, commenters should discuss whether a new program alternative is necessary or whether an amendment to the NPA or a second amendment to the Collocation NPA would be the appropriate procedural mechanism (See Wireless Telecommunications Bureau Announces Execution of First Amendment to the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, Public Notice, 31 FCC Rcd 4617 (WTB 2016) (Collocation NPA)).

46. The Commission seeks comment on whether it should take further measures to tailor Section 106 review for pole replacements. As noted above, wireless companies are increasingly deploying new infrastructure using smaller antennas and supporting structures, including poles. Under the existing NPA, pole replacements are excluded from Section 106 review if the pole being replaced meets the definition of a “tower” under the NPA (constructed for the sole or primary purpose of supporting Commission-authorized antennas), provided that the pole being replaced went through Section 106 review. The NPA also more generally excludes construction in or near communications or utility rights of way, including pole replacements, with certain limitations. In particular, the construction is excluded if the facility does not constitute a substantial increase in size over nearby structures and it is not within the boundaries of a historic property. However, proposed facilities subject to this exclusion must complete the process of Tribal and NHO participation pursuant to the NPA.

47. The Commission seeks comment on whether additional steps to tailor Section 106 review for pole replacements would help serve the Commission's objective of facilitating wireless facility siting, while creating no or foreseeably minimal potential for adverse impacts to historic properties. For example, should the replacement of poles be excluded from Section 106 review, regardless of whether a pole is located in a historic district, provided that the replacement pole is not “substantially larger” than the pole it is replacing (as defined in the NPA)? The Commission envisions that this proposed exclusion could address replacements for poles that were constructed for a purpose other than supporting antennas, and thus are not “towers” within the NPA definition, but that also have (or will have) an antenna attached to them. This exclusion would also apply to pole replacements within rights of way, regardless of whether such replacements are in historic districts. The Commission seeks comment on this proposal and on whether any additional conditions would be appropriate. For example, consistent with the existing exclusion for replacement towers, commenters should discuss whether the exclusion should be limited to projects for which construction and excavation do not expand the boundaries of the leased or owned property surrounding the tower by more than 30 feet in any direction. How would the “leased or owned property” be defined within a utility right of way that may extend in a linear manner for miles?

48. The Commission seeks comment on whether to expand the NPA exemption from Section 106 review for construction of wireless facilities in rights of way. First, as noted above, current provisions of the NPA exclude from Section 106 review construction in utility and communications rights of way subject to certain limitations. The Commission seeks comment on whether to adopt a similar exclusion from Section 106 review for construction or collocation of communications infrastructure in transportation rights of way and whether such an exclusion would be warranted under 36 CFR 800.3(a)(1). The Commission recognizes the Commission's previous determination in the NPA Order that, given the concentration of historic properties near many highways and railroads, it was not feasible to draft an exclusion for transportation corridors that would both significantly ease the burdens of the Section 106 process and sufficiently protect historic properties (See Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, Report and Order, 20 FCC Rcd 1073 (2004) (NPA Order)). The Commission also recognized, however, that transportation corridors are among the areas where customer demand for wireless service is highest, and thus where the need for new facilities is greatest.

49. In addition, since the NPA Order, wireless technologies have evolved and many wireless providers now deploy networks that use smaller antennas and compact radio equipment, including DAS and small cell systems. In view of the changed circumstances that are present today, the Commission finds that it is appropriate to reconsider whether the Commission can exclude construction of wireless facilities in transportation rights of way in a manner that guards against potential effects on historic properties. The Commission seeks comment on whether such an exclusion should be adopted, subject to certain conditions that would protect historic properties, and, if so, what those conditions should be. For example, should the Commission require that poles be installed by auguring or that cable or fiber be installed by plow or by directional drilling? What stipulations are needed if a deployment may be adjacent to or on National Register-eligible or listed buildings or structures, or in or near a historic district? Would it be appropriate to have any limitation on height, in addition to the requirement in the current rights of way exclusion that the structures not constitute a substantial increase in size over existing nearby structures? How should any new exclusion address Tribal and NHO participation, especially for historic properties with archaeological components? The Commission also seeks comment on how to define the boundaries of a transportation right of way for these purposes.

50. In addition to considering whether to adopt an exclusion for construction in transportation rights of way, the Commission also seeks comment on whether to amend the current right of way exclusion to apply regardless of whether the right of way is located on a historic property. As noted above, the current right of way exclusion applies only if (1) the construction does not involve a substantial increase in size over nearby structures and (2) the deployment would not be located within the boundaries of a historic property. The Commission seeks comment on whether this provision should be amended to exclude from Section 106 review construction of a wireless facility in a utility or communications right of way located on a historic property, provided that the facility would not constitute a substantial increase in size over existing structures. To the extent that utility and communications rights of way on historic properties already are lined with utility poles and other infrastructure, would allowing additional infrastructure have the potential to create effects? Commenters should discuss whether, if the exclusion is extended to historic properties, any additional conditions would be appropriate to address concerns about potential effects, for example any further limitation on ground disturbance. If so, how should ground disturbance be defined? The Commission also seeks comment about whether Tribal and NHO participation should continue to be required if an exclusion is adopted for facilities constructed in utility or communications rights of way on historic properties.

51. Next, the Commission seeks comment on options to further tailor the Commission's review of collocations of wireless antennas and associated equipment. The Commission's rules have long excluded most collocations of antennas from Section 106 review, recognizing the benefits to historic properties that accrue from using existing support structures rather than building new structures. The Commission has also recently expanded these exclusions in the First Amendment to the Collocation NPA to account for the smaller infrastructure associated with new technologies. The Commission seeks comment now on whether additional measures to further streamline review of collocations are appropriate, whether as a matter of 36 CFR 800.3(a)(1) or under program alternatives, including those discussed below and any other alternatives.

52. First, the Commission seeks comment on whether some or all collocations located between 50 and 250 feet from historic districts should be excluded from Section 106 review. Under current provisions in the Collocation NPA, Section 106 review continues to be required for collocations on buildings and other non-tower structures located within 250 feet of the boundary of a historic district to the extent those collocations do not meet the criteria established for small wireless antennas. The Commission seeks comment on whether this provision should be revised to exclude from Section 106 review collocations located up to 50 feet from the boundary of a historic district. The Commission seeks comment on this proposal and on whether any additional criteria should apply to an exclusion under these circumstances.

53. Next, the Commission seeks comment on the participation of Tribal Nations and NHOs in the review of collocations on historic properties or in or near historic districts. Although, as stated above, the Collocation NPA excludes most antenna collocations from routine historic preservation review under Section 106, collocations on historic properties or in or near historic districts are generally not excluded, and in these cases, the NPA provisions for Tribal and NHO participation continue to apply. Consistent with the Commission's effort in this NPRM to take a fresh look at ways to improve and facilitate the review process for wireless facility deployments, the Commission seeks comment on whether to exclude from the NPA procedures for Tribal and NHO participation collocations that are subject to Section 106 review solely because they are on historic properties or in or near historic districts, other than properties or districts identified in the National Register listing or determination of eligibility as having Tribal significance. For instance, should the Commission exclude from review non-substantial collocations on existing structures involving no ground disturbance or no new ground disturbance, or non-substantial collocations on new structures in urban rights of way or indoors? Should the Commission exclude from the NPA provisions for Tribal and NHO participation collocations of facilities on new structures in municipal rights of way in urban areas that involve no new ground disturbance and no substantial increase in size over other structures in the right of way? Should the Commission exclude collocations of facilities on new structures in industrial zones or facilities on new structures in or within 50 feet of existing utility rights of way? Commenters should discuss whether collocations in these circumstances have the potential to cause effects on properties significant to Tribal history or culture. If so, are any effects likely to be minimal or not adverse? Does the likelihood of adverse effects depend on the circumstances of the collocation, for example whether it will cause new ground disturbance? The Commission also seeks comment on alternatives to streamline procedures for Tribal and NHO participation in these cases, for example different guidance on fees or deeming a Tribal Nation or NHO to have no interest if it does not respond to a notification within a specified period of time.

54. Finally, the Commission seeks comment on whether the Commission can or should exclude from routine historic preservation review certain collocations that have received local approval. In particular, one possibility would be to exclude a collocation from Section 106 review, regardless of whether it is located on a historic property or in or near a historic district, provided that: (1) The proposed collocation has been reviewed and approved by a Certified Local Government that has jurisdiction over the project; or (2) the collocation has received approval, in the form of a Certificate of Appropriateness or other similar formal approval, from a local historic preservation review body that has reviewed the project pursuant to the standards set forth in a local preservation ordinance and has found that the proposed work is appropriate for the historic structure or district. By eliminating the need to go through historic preservation review at both local and Federal levels, creating an exclusion for collocations under these circumstances might create significant efficiencies in the historic preservation review process. The Commission seeks comment on this option and on any alternatives, including whether any additional conditions should apply and whether the process for engaging Tribal Nations and NHOs for these collocations should continue to be required.

55. The Commission also invites comment on whether it should revisit its interpretation of the scope of the Commission's responsibility to review the effects of wireless facility construction under the NHPA and NEPA. In the Pre-Construction Review Order, the Commission retained a limited approval authority over facility construction to ensure environmental compliance in services that no longer generally require construction permits (See Amendment of Environmental Rules, Report and Order, 5 FCC Rcd 2942 (1990) (Pre-Construction Review Order)). In light of the evolution of technology in the last 27 years and the corresponding changes in the nature and extent of wireless infrastructure deployment, the Commission seeks comment on whether this retention of authority is required and, if not, whether and how it should be adjusted. Commenters should address the costs of NEPA and NHPA compliance and its utility for environmental protection and historic preservation for different classes of facilities, as well as the extent of the Commission's responsibility to consider the effects of construction associated with the provision of licensed services under governing regulations and judicial precedent. For example, should facilities constructed under site-specific licenses be distinguished from those constructed under geographic area licenses? Can the Commission distinguish DAS and small cell facilities from larger structures for purposes of defining what constitutes the Commission's action or undertaking, and on what basis? Should review be required only when an EA triggering condition is met, as PTA-FLA suggests, and if so how would the licensee or applicant determine whether an EA is required in the absence of mandatory review? To the extent there is a policy basis for distinguishing among different types of facilities, would exclusions from or modifications to the NEPA and/or NHPA review processes be a more appropriate tool to reflect these differences? Are the standards for defining the scope of the Commission's undertaking or major Federal action different under the NHPA than under NEPA? The Commission also invites comment on whether to revisit the Commission's determination that registration of antenna structures constitutes the Commission's Federal action and undertaking so as to require environmental and historic preservation review of the registered towers' construction.

56. In addition, since the Commission's environmental rules were adopted, an industry has grown of non-licensees that are in the business of owning and managing communications sites, so that most commercial wireless towers and even smaller communications support structures are now owned from the time of their construction by non-licensees. The Commission seeks comment on how this business model affects the Commission's environmental and historic preservation compliance regime. For example, how does the requirement to perform environmental and historic preservation review prior to construction apply when the licensee is not the tower owner? If the tower is built pursuant to a contract or other understanding with a collocator, what marketplace or other effects would result from interpreting the environmental obligation to apply to the licensee? What about cases where there is no such agreement or understanding? Does the requirement in the Collocation NPA to perform review for collocations on towers that did not themselves complete Section 106 review create problems in administration or market distortions where the owner of the underlying tower may not have been subject to the Commission's rules at the time of construction? The Commission invites comment on these and any related questions.

57. There are a large number of towers that were built between the adoption of the Collocation NPA in 2001 and when the NPA became effective in 2005 that either did not complete Section 106 review or for which documentation of Section 106 review is unavailable. These towers are often referred to as “Twilight Towers.” The Commission seeks comment on steps the Commission should take to develop a definitive solution for the Twilight Towers issue. As the Commission undertakes this process, the Commission's goal remains to develop a solution that will allow Twilight Towers to be used for collocations while respecting the integrity of the Section 106 process. Facilitating collocations on these towers will serve the public interest by making additional infrastructure available for wireless broadband services and the FirstNet public safety broadband network. Moreover, facilitating collocations on existing towers will reduce the need for new towers, lessening the impact of new construction on the environment and on locations with historical and cultural significance.

58. In particular, the Commission seeks comment on whether to treat collocations on towers built between March 16, 2001 and March 7, 2005 that did not go through Section 106 historic preservation review in the same manner as collocations on towers built prior to March 16, 2001 that did not go through review. Under this approach, collocations on such towers would generally be excluded from Section 106 historic preservation review, subject to the same exceptions that currently apply for collocations on towers built on or prior to March 16, 2001, i.e., collocations would be excluded from Section 106 review unless (1) the mounting of the antenna will result in a substantial increase in size of the tower; (2) the tower has been determined by the Commission to have an adverse effect on one or more historic properties; (3) the tower is the subject of a pending environmental review or related proceeding before the Commission involving compliance with Section 106 of the National Historic Preservation Act; or (4) the collocation licensee or the owner of the tower has received written or electronic notification that the Commission is in receipt of a complaint from a member of the public, a Tribal Nation, a SHPO or the ACHP that the collocation has an adverse effect on one or more historic properties. The Commission seeks comment on whether allowing collocations without individual Section 106 review in these circumstances would rapidly make available a significant amount of additional infrastructure to support wireless broadband deployment without adverse impacts. In particular, the Commission notes that the vast majority of towers that have been reviewed under the NPA have had no adverse effects on historic properties, and the Commission is aware of no reason to believe that Twilight Towers are any different in that regard. Moreover, these towers have been standing for 12 years or more and, in the vast majority of cases, no adverse effects have been brought to the Commission's attention.

59. Although the Commission seeks comment on such an approach, the Commission is mindful of the concerns that have been expressed by Tribal Nations and SHPOs throughout the discussions on this matter that simply allowing collocations to proceed would not permit review in those cases where an underlying tower may have undetermined adverse effects. In particular, Tribal Nations have expressed concern that some of the towers that were constructed between 2001 and 2005 may have effects on properties of religious and cultural significance that have not been noticed because their people are far removed from their traditional homelands. The Commission seeks comment on these concerns. As an initial matter, the Commission seeks comment on the Commission's underlying assumption regarding the likelihood that Twilight Towers had in their construction or continue to have adverse effects that have not been noted. To the extent such effects exist, what is the likelihood that they could be mitigated, and what is the likelihood that a new collocation would exacerbate those effects?

60. The Commission further seeks comment on any alternative approaches. For example, should the Commission considers a tower-by-tower process under which proposed collocations on Twilight Towers would trigger a streamlined, time-limited individual review, along the lines of the process discussed in the 2016 Twilight Towers draft term sheet? If the Commission were to adopt such an approach, what elements should be included? For example, some in the industry have recommended a tower-by-tower approach that is voluntary and allows tower owners to submit a tower for review as market conditions justify, involves same processes and systems that are used for new and modified towers, asks ACHP to direct SHPOs and Tribal Historic Preservation Officers (THPOs) to submit prompt comments on such towers, and imposes no monetary penalty on tower owners. The Commission seeks comment on whether to adopt this approach. Should towers be categorized, such that, for example, public safety towers receive priority for streamlined review? Alternatively, to what extent are there existing processes that function efficiently to allow collocations on Twilight Towers? Generally, given what the Commission says above about the text of the Commission's rule, the Commission does not anticipate taking any enforcement action or imposing any penalties based on good faith deployment during the Twilight Tower period.

61. The Commission also seeks comment on the procedural vehicle through which any solution should be implemented. Would permitting collocation on Twilight Towers require either an amendment to the Collocation NPA or another program alternative under 36 CFR 800.14(b)? Is one form of program alternative preferable to another, and if so, why? If the Commission were to pursue a streamlined or other alternative review procedure, would that require an amendment to the Collocation NPA or other program alternative?

62. Finally, the Commission invites comment on whether the Commission should take any measures, and if so what, to facilitate collocations on non-compliant towers constructed after March 7, 2005. The Commission notes that unlike in the case of the Twilight Towers, the rules in effect when these towers were constructed explicitly required compliance with the review procedures set forth in the NPA. The Commission invites commenters to propose procedures, including review processes, time frames, criteria for eligibility, and other measures, to address any or all of these towers.

63. In this section, the Commission examines and seeks comment on the scope of Sections 253(a) and 332(c)(7) of the Communications Act and any new or updated guidance or determinations the Commission should provide pursuant to its authority under those provisions, including through the issuance of a Declaratory Ruling.

64. Both Section 253(a) and Section 332(c)(7) ban State or local regulations that “prohibit or have the effect of prohibiting” service. Both sections also proscribe State and local restrictions that unreasonably discriminate among service providers. These sections thus appear to impose the same substantive obligations on State and local governments, though the remedies provided under each are different. There are court decisions holding that “the legal standard is the same under either [Section 253 or 332(c)(7)],” and that there is “nothing suggesting that Congress intended a different meaning of the text `prohibit or have the effect of prohibiting' in the two statutory provisions, enacted at the same time, in the same statute.” The Commission seeks comment on whether there is any reason to conclude that the substantive obligations of these two provisions differ, and if so in what way. Do they apply the same standards in the same or similar situations? Do they impose different standards in different situations? The Commission invites commenters to explain how and why. The Commission also seeks comment on the interaction between Sections 253 and 332(c)(7).

65. A number of courts have interpreted the phrase “prohibit or have the effect of prohibiting,” as it appears in both Sections 253(a) and 332(c)(7), but they have not been consistent in their views. Under Section 253(a), the First, Second, and Tenth Circuits have held that a State or local legal requirement would be subject to preemption if it may have the effect of prohibiting the ability of an entity to provide telecommunications services, while the Eighth and Ninth Circuits have erected a higher burden and insisted that “a plaintiff suing a municipality under Section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition.” By the same token, different courts have imposed inconsistent burdens of proof to establish that localities violated Section 332(c)(7) by improperly denying siting application. The First, Fourth, and Seventh Circuits have imposed a “heavy burden” of proof on applicants to establish a lack of alternative feasible sites, requiring them to show “not just that this application has been rejected but that further reasonable efforts to find another solution are so likely to be fruitless that it is a waste of time even to try.” By contrast, the Second, Third, and Ninth Circuits have held that an applicant must show only that its proposed facilities are the “least intrusive means” for filling a coverage gap in light of the aesthetic or other values that the local authority seeks to serve. The Commission invites commenters to address these issues of statutory interpretation so the Commission may have the benefit of a full range of views from the interested parties as the Commission determines what action, if any, the Commission should take to resolve them. The Commission also invites parties to address whether there is some new theory altogether that the Commission should consider.

66. The Commission also seeks comment on the proper role of aesthetic considerations in the local approval process. The use of aesthetic considerations is not inherently improper; many courts have held that municipalities may, without necessarily violating Section 332(c)(7), deny siting applications on the grounds that the proposed facilities would adversely affect an area's aesthetic qualities, provided that such decisions are not founded merely on “generalized concerns” about aesthetics but are supported by “substantial evidence contained in a written record” about the impact of specific facilities on particular geographic areas or communities. The Commission seeks comment on whether it should provide more specific guidance on how to distinguish legitimate denials based on evidence of specific aesthetic impacts of proposed facilities, on the one hand, from mere “generalized concerns,” on the other.

67. Finally, the Commission notes that WTB's Streamlining PN sought comment on application processing fees and charges for the use of rights of way. The Commission invites parties to comment on similar issues relating to the application of section 332(c)(7)'s “prohibit or have the effect of prohibiting” language on infrastructure siting on properties beyond rights of way. For instance, the Commission seeks comment on the up-front application fees that State or local government agencies impose on parties submitting applications for authority to construct or modify wireless facilities in locations other than rights of way. Can those fees, in some instances, “prohibit or have the effect of prohibiting” service? For instance, are those fees cost based? If commenters believe a particular State or locality's application fees are excessive, the Commission invites them to provide detailed explanations for that view and to explain how such fees might be inconsistent with section 332 of the Act. Relatedly, do wireless siting applicants pay fees comparable to those paid by other parties for similar applications, and if not, are there instances in which such fees violate section 332's prohibition of regulations that “unreasonably discriminate among providers of functionally equivalent services”?

68. The Commission also seeks similar information about the recurring charges—as well as the other terms, conditions, or restrictions—that State or local government agencies impose for the siting of wireless facilities on publicly owned or controlled lands, structures such as light poles or water towers, or other resources other than rights of way. Do such fees or practices “prohibit or have the effect of prohibiting” service, or do they “unreasonably discriminate among providers of functionally equivalent services? Are there disparities between the charges or other restrictions imposed on some parties by comparison with those imposed on others? Do any agencies impose charges or other requirements that commenting parties believe to be particularly burdensome, such as franchise fees based on a percentage of revenues? Are other aspects of the process for obtaining approval particularly burdensome? Commenters should explain their concerns in sufficient detail to allow State and local governments to respond and to allow the Commission to determine whether it should provide guidance on these issues.

69. The terms of Section 253(a) specify that a “statute,” “regulation,” or “other legal requirement” may be preempted, while the terms of Section 332(c)(7) refer to “decisions” concerning wireless facility siting and the “regulation” of siting. The Commission seeks comment on how those terms should be interpreted. For instance, do the terms “statute,” “regulation,” and “legal requirement” in Section 253(a) have essentially the same meaning as the parallel terms “regulation” and “decisions” in Section 332(c)(7)? The Commission has held in the past that the terminology in Section 253(a) quoted above “recognizes that State and local barriers to entry could come from sources other than statutes and regulations” and “was meant to capture a broad range of state and local actions” that could pose barriers to entry—including agreements with a single party that result in depriving other parties of access to rights of way. The Commission believes there is a reasonable basis for concluding that the same broad interpretation should apply to the language of Section 332, and the Commission seeks comment on this analysis.

70. The Commission also seeks comment on the extent to which these statutory provisions apply to States and localities acting in a proprietary versus regulatory capacity, and on what constitutes a proprietary capacity. In the 2014 Infrastructure Order, the Commission opined that the Spectrum Act and the rules and policies implementing it apply to localities' actions on siting applications when acting in their capacities as land-use regulators, but not when acting as managers of land or property that they own and operate primarily in their proprietary roles. The Order cited cases indicating that “Sections 253 and 332(c)(7) do not preempt non-regulatory decisions of a State or locality acting in its proprietary capacity.” The Commission seeks comment on whether the Commission should reaffirm or modify the 2014 Infrastructure Order's characterization of the distinction between State and local governments' regulatory roles versus their proprietary roles as “owners” of public resources. How should the line be drawn in the context of properties such as public rights of way (e.g., highways and city streets), municipally-owned lampposts or water towers, or utility conduits? Should a distinction between regulatory and proprietary be drawn on the basis of whether State or local actions advance those government entities' interests as participants in a particular sphere of economic activity (proprietary), by contrast with their interests in overseeing the use of public resources (regulatory)? What about requests for proposals (RFPs) or contracts involving state or local entities? The Commission invites commenters to identify any States or local governments that have imposed restrictions on the installation of new facilities or the upgrading of existing facilities in public rights of way, and describe those restrictions and their impacts. Do such restrictions have characteristics or effects that are comparable to moratoria on processing applications?

71. The Commission seeks comment on whether certain types of facially neutral criteria that some localities may be applying when reviewing and evaluating wireless siting applications could run afoul of Section 253, Section 332(c)(7), or another provision of the Act. For instance, the Commission asks commenters to identify any State or local regulations that single out telecom-related deployment for more burdensome treatment than non-telecom deployments that have the same or similar impacts on land use, to explain how, and to address whether this type of asymmetric treatment violates Federal law.

72. The Commission also seeks comment on the extent to which localities may be seeking to restrict the deployment of utility or communications facilities above ground and attempt to relocate electric, wireline telephone, and other utility lines in that area to underground conduits. Obviously, it is impossible to operate wireless network facilities underground. Undergrounding of utility lines seems to place a premium on access to those facilities that remain above ground, such as municipally-owned street lights. Is there a particular way that Section 253 or 332(c)(7) should apply in that circumstance? More generally, the Commission seeks comment on parties' experience with undergrounding requirements, including how wireless facilities have been treated in communities that require undergrounding of utilities. The Commission also seeks comment on whether and how the Communications Act applies in such instances. For instance, may localities deny applications to construct new above-ground wireless structures in such areas, or deny applications to install collocated equipment on structures that may eventually be dismantled? Could “undergrounding” plans “prohibit or have the effect of prohibiting” service by causing suitable sites for wireless antennas to become scarce? The Commission seeks comment on parties' experiences with undergrounding generally.

73. Section 332(c)(7)(B)(i)(I) prohibits States and localities from unreasonably discriminating among providers of “functionally equivalent services.” The Commission seeks comment on whether parties have encountered such discrimination, and ask that they provide specific examples. The Commission also seeks comment on what constitutes “functionally equivalent services” for this purpose. For instance, should entities that are considered to be utilities be viewed as an appropriate comparison? For the limited purpose of applying Section 332(c)(7)(B)(i)(I), can wireless and wireline services be considered “functionally equivalent” in some circumstances? Which types of discrimination are reasonable and which are unreasonable?

74. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning the possible significant economic impact on small entities of the policies and rules proposed in this NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided above. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

75. In this NPRM, the Commission examines how it may further remove or reduce regulatory impediments to wireless infrastructure investment and deployment in order to promote the rapid deployment of advanced mobile broadband service to all Americans. First, the NPRM seeks comment on certain measures or clarifications to expedite State and local processing of wireless facility siting applications pursuant to the Commission's authority under 332 of the Communications Act, including a “deemed granted” remedy in cases of unreasonable delay. Next, the Commission undertakes a comprehensive fresh look at the Commission's rules and procedures implementing the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (Section 106). As part of this review, the Commission seeks comment on potential measures to improve or clarify the Commission's Section 106 process, including in the area of fees paid to Tribal Nations in connection with their participation in the process, cases involving lack of response by relevant parties including affected Tribal Nations, and batched processing. The Commission also seeks comment on possible additional exclusions from Section 106 review, and the Commission reexamines the scope of the Commission's responsibility to review the effects of wireless facility construction under the NHPA and NEPA. Finally, the NPRM seeks comment on so-called “Twilight Towers,” wireless towers that were constructed during a time when the process for Section 106 review was unclear, that may not have completed Section 106 review as a result, and that are therefore not currently available for collocation without first undergoing review. The Commission seeks comment on various options addressing Twilight Towers, including whether to exclude collocations on such towers from Section 106 historic preservation review, subject to certain exceptions, or alternatively subjecting collocations on Twilight Towers to a streamlined, time-limited review. The Commission expects the measures on which the Commission seeks comment in this NPRM to be only a part of the Commission's efforts to expedite wireless infrastructure deployment and the Commission invites commenters to propose other innovative approaches to expediting deployment.

76. The authority for the actions taken in this NPRM is contained in Sections 1, 2, 4(i), 7, 201, 253, 301, 303, 309, and 332 of the Communications Act of 1934, as amended 47 U.S.C. 151, 152, 154(i), 157, 201, 253, 301, 303, 309, and 332, Section 102(C) of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4332(C), and Section 106 of the National Historic Preservation Act of 1966, as amended, 54 U.S.C. 306108.

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

78. The NPRM seeks comment on potential rule changes regarding State, local, and Federal regulation of the siting and deployment of communications towers and other wireless facilities. Due to the number and diversity of owners of such infrastructure and other responsible parties, particularly small entities that are Commission licensees as well as non-licensees, the Commission classifies and quantifies them in the remainder of this section. The NPRM seeks comment on the Commission's description and estimate of the number of small entities that may be affected by the Commission's actions in this proceeding.

79. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three comprehensive small entity size standards that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,215 small organizations. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data published in 2012 indicate that there were 89,476 local governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.

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

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

82. Personal Radio Services. Personal radio services provide short-range, low-power radio for personal communications, radio signaling, and business communications not provided for in other services. Personal radio services include services operating in spectrum licensed under Part 95 of the Commission's rules. These services include Citizen Band Radio Service, General Mobile Radio Service, Radio Control Radio Service, Family Radio Service, Wireless Medical Telemetry Service, Medical Implant Communications Service, Low Power Radio Service, and Multi-Use Radio Service. There are a variety of methods used to license the spectrum in these rule parts, from licensing by rule, to conditioning operation on successful completion of a required test, to site-based licensing, to geographic area licensing. All such entities in this category are wireless, therefore the Commission applies the definition of Wireless Telecommunications Carriers (except Satellite), pursuant to which the SBA's small entity size standard is defined as those entities employing 1,500 or fewer persons. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. The Commission notes that many of the licensees in this category are individuals and not small entities. In addition, due to the mostly unlicensed and shared nature of the spectrum utilized in many of these services, the Commission lacks direct information upon which to base an estimation of the number of small entities that may be affected by the Commission's actions in this proceeding.

83. Public Safety Radio Licensees. Public Safety Radio Pool licensees as a general matter, include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Because of the vast array of public safety licensees, the Commission has not developed a small business size standard specifically applicable to public safety licensees. For this category the Commission applies the SBA's definition for Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications and for which the small entity size standard is defined as those entities employing 1,500 or fewer persons. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. With respect to local governments, in particular, since many governmental entities comprise the licensees for these services, the Commission includes under public safety services the number of government entities affected. According to Commission records, there are a total of approximately 133,870 licenses within these services. There are 3,121 licenses in the 4.9 GHz band, based on an FCC Universal Licensing System search of March 29, 2017. The Commission estimates that fewer than 2,442 public safety radio licensees hold these licenses because certain entities may have multiple licenses.

84. Private Land Mobile Radio Licensees. Private land mobile radio (PLMR) systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a small business size standard specifically applicable to PLMR users. The SBA's definition for Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications and for which the small entity size standard is defined as those entities employing 1,500 or fewer persons. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. According to the Commission's records, there are a total of 3,374 licenses in the frequencies range 173.225 MHz to 173.375 MHz, which is the range affected by this NPRM. The Commission does not require PLMR licensees to disclose information about number of employees, and does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. The Commission however believes that a substantial number of PLMR licensees may be small entities despite the lack of specific information.

85. Multiple Address Systems. Entities using Multiple Address Systems (MAS) spectrum, in general, fall into two categories: (1) Those using the spectrum for profit-based uses, and (2) those using the spectrum for private internal uses.

86. With respect to the first category, Profit-based Spectrum use, the size standards established by the Commission define “small entity” for MAS licensees as an entity that has average annual gross revenues of less than $15 million over the three previous calendar years. A “Very small business” is defined as an entity that, together with its affiliates, has average annual gross revenues of not more than $3 million over the preceding three calendar years. The SBA has approved these definitions. The majority of MAS operators are licensed in bands where the Commission has implemented a geographic area licensing approach that requires the use of competitive bidding procedures to resolve mutually exclusive applications. The Commission's licensing database indicates that, as of April 16, 2010, there were a total of 11,653 site-based MAS station authorizations. Of these, 58 authorizations were associated with common carrier service. In addition, the Commission's licensing database indicates that, as of April 16, 2010, there were a total of 3,330 Economic Area market area MAS authorizations. The Commission's licensing database also indicates that, as of April 16, 2010, of the 11,653 total MAS station authorizations, 10,773 authorizations were for private radio service. In 2001, an auction for 5,104 MAS licenses in 176 EAs was conducted. Seven winning bidders claimed status as small or very small businesses and won 611 licenses. In 2005, the Commission completed an auction (Auction 59) of 4,226 MAS licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed small business status and won 1,891 licenses.

87. With respect to the second category, Internal Private Spectrum use consists of entities that use, or seek to use, MAS spectrum to accommodate their own internal communications needs, MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the definition developed by the SBA would be more appropriate than the Commission's definition. The applicable definition of small entity is the “Wireless Telecommunications Carriers (except satellite)” definition under the SBA rules. Under that SBA category, a business is small if it has 1,500 or fewer employees. For this category, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by the Commission's action.

88. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)).

89. BRS—In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, the Commission estimates that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, the Commission finds that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules.

90. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

91. EBS—The SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,436 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, the Commission estimates that at least 2,336 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers. Wired Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. The SBA's small business size standard for this category is all such firms having 1,500 or fewer employees. U.S. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small. To gauge small business prevalence for these cable services the Commission must, however, use the most current census data for the previous category of Cable and Other Program Distribution and its associated size standard which was all such firms having $13.5 million or less in annual receipts. According to U.S. Census Bureau data for 2007, there were a total of 996 firms in this category that operated for the entire year. Of this total, 948 firms had annual receipts of under $10 million, and 48 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.

92. Location and Monitoring Service (LMS). LMS systems use non-voice radio techniques to determine the location and status of mobile radio units. For purposes of auctioning LMS licenses, the Commission has defined a “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not to exceed $15 million. A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not to exceed $3 million. These definitions have been approved by the SBA. An auction for LMS licenses commenced on February 23, 1999 and closed on March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to four small businesses.

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

94. The Commission has estimated the number of licensed commercial television stations to be 1,384. Of this total, 1,264 stations (or about 91 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on February 24, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 394. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

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

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

97. According to Commission staff review of the BIA Publications, Inc. Master Access Radio Analyzer Database as of June 2, 2016, about 11,386 (or about 99.9 percent) of 11,395 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed commercial radio stations to be 11,415. The Commission notes that it has also estimated the number of licensed NCE radio stations to be 4,101. Nevertheless, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

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

99. FM Translator Stations and Low Power FM Stations. FM translators and Low Power FM Stations are classified in the category of Radio Stations and are assigned the same NAICS Code as licensees of radio stations. This U.S. industry, Radio Stations, comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has established a small business size standard which consists of all radio stations whose annual receipts are $38.5 million dollars or less. U.S. Census data for 2012 indicate that 2,849 radio station firms operated during that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million or more. Based on U.S. Census data, the Commission concludes that the majority of FM Translator Stations and Low Power FM Stations are small.

100. Multichannel Video Distribution and Data Service (MVDDS). MVDDS is a terrestrial fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. These definitions were approved by the SBA. On January 27, 2004, the Commission completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders won a total of 192 MVDDS licenses. Eight of the ten winning bidders claimed small business status and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed small business status.

101. Satellite Telecommunications. This category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” The category has a small business size standard of $32.5 million or less in average annual receipts, under SBA rules. For this category, U.S. Census Bureau data for 2012 show that there were a total of 333 firms that operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, the Commission estimates that the majority of satellite telecommunications providers are small entities.

102. All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Thus, a majority of “All Other Telecommunications” firms potentially affected by the Commission's action can be considered small.

103. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. They also include the Local Multipoint Distribution Service (LMDS), the Digital Electronic Message Service (DEMS), the 39 GHz Service (39 GHz), the 24 GHz Service, and the Millimeter Wave Service where licensees can choose between common carrier and non-common carrier status. The SBA nor the Commission has defined a small business size standard for microwave services. For purposes of this IRFA, the Commission will use the SBA's definition applicable to Wireless Telecommunications Carriers (except satellite)—i.e., an entity with no more than 1,500 persons is considered small. Under that size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012, show that there were 967 firms in this category that operated for the entire year. Of this total, 955 had employment of 999 or fewer, and 12 firms had employment of 1,000 employees or more. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by the Commission's proposed action.

104. According to Commission data in the Universal Licensing System (ULS) as of September 22, 2015 there were approximately 61,970 common carrier fixed licensees, 62,909 private and public safety operational-fixed licensees, 20,349 broadcast auxiliary radio licensees, 412 LMDS licenses, 35 DEMS licenses, 870 39 GHz licenses, and five 24 GHz licenses, and 408 Millimeter Wave licenses in the microwave services. The Commission notes that the number of firms does not necessarily track the number of licensees. The Commission estimates that virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition.

105. Non-Licensee Owners of Towers and Other Infrastructure. Although at one time most communications towers were owned by the licensee using the tower to provide communications service, many towers are now owned by third-party businesses that do not provide communications services themselves but lease space on their towers to other companies that provide communications services. The Commission's rules require that any entity, including a non-licensee, proposing to construct a tower over 200 feet in height or within the glide slope of an airport must register the tower with the Commission's Antenna Structure Registration (ASR) system and comply with applicable rules regarding review for impact on the environment and historic properties.

106. As of March 1, 2017, the ASR database includes approximately 122,157 registration records reflecting a ”Constructed” status and 13,987 registration records reflecting a “Granted, Not Constructed” status. These figures include both towers registered to licensees and towers registered to non-licensee tower owners. The Commission does not keep information from which the Commission can easily determine how many of these towers are registered to non-licensees or how many non-licensees have registered towers. Regarding towers that do not require ASR registration, the Commission does not collect information as to the number of such towers in use and therefore cannot estimate the number of tower owners that would be subject to the rules on which the Commission seeks comment. Moreover, the SBA has not developed a size standard for small businesses in the category “Tower Owners.” Therefore, the Commission is unable to determine the number of non-licensee tower owners that are small entities. The Commission believes, however, that when all entities owning 10 or fewer towers and leasing space for collocation are included, non-licensee tower owners number in the thousands, and that nearly all of these qualify as small businesses under the SBA's definition for “All Other Telecommunications.” The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Thus, a majority of “All Other Telecommunications” firms potentially affected by the Commission's action can be considered small. In addition, there may be other non-licensee owners of other wireless infrastructure, including DAS and small cells, that might be affected by the measures on which the Commission seeks comment. The Commission does not have any basis for estimating the number of such non-licensee owners that are small entities.

107. The NPRM seeks comment on potential rule changes that may affect reporting, recordkeeping and other compliance requirements. Specifically the NPRM seeks comment on a specific NHPA submission process known as batching. Currently, a streamlined process for certain facilities associated with building out the Positive Train Control (PTC) railroad safety system is in effect whereby eligible facilities may be submitted to State Historic Preservation Officers (SHPOs) and through the Tower Construction Notification System (TCNS) in batches instead of individually. The NPRM seeks comment on whether the Commission should require SHPOs and Tribal Historic Preservation Officers (THPOs) to review non-PTC facilities in batched submissions as well. If adopted, this may require modifications to reporting or other compliance requirements for small entities and or jurisdictions to enable such submissions. The Commission anticipates that batch rather than individual submissions will add no additional burden to small entities and may reduce the cost and delay associated with the deployment of wireless infrastructure. In addition, the NPRM seeks comment on whether the current Section 106 process can be revised in a manner that would permit applicants to self-certify their compliance with the Commission's Section 106 process and therefore proceed once they meet the Commission's notification requirements, without requiring Commission involvement. This self-certifying process may also require additional reporting or other compliance requirements for small entities. Similarly, the Commission anticipates that a self-certification process will reduce the cost and delay associated with the deployment of wireless infrastructure for small entities by expediting the current Section 106 process.

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

109. In this proceeding, the Commission seeks to examine regulatory impediments to wireless infrastructure investment and deployment, and how the Commission may remove or reduce such impediments consistent with the law and the public interest. The Commission anticipates that the steps on which the NPRM seeks comment will help reduce burdens on small entities that may need to deploy wireless infrastructure by reducing the cost and delay associated with the deployment of such infrastructure. As discussed below, however, certain proposals may impose regulatory compliance costs on small jurisdictions.

110. The NPRM seeks comment on potential ways to expedite wireless facility deployment. First, it seeks comment on certain measures or clarifications to expedite State and local processing of wireless facility siting applications pursuant to the Commission's authority under Section 332 of the Communications Act. Specifically, the NPRM proposes to adopt one or more of three mechanisms for implementing a “deemed granted” remedy for State and local agencies' failure to satisfy their obligations under Section 332(c)(7)(B)(ii) to act on applications outside the context of the Spectrum Act, including irrebuttable presumption, lapse of State and local governments' authority, and a preemption rule. The NPRM also seeks comment on how to quantify a “reasonable period of time” within which to act on siting applications. Specifically, the NPRM asks commenters to discuss whether the Commission should consider adopting different time frames for review of facility deployments not covered by Section 6409 of the Spectrum Act, by identifying more narrowly defined classes of deployments and distinct reasonable time frames to govern such classes. The NPRM also seeks comment on what time periods would be reasonable (outside the Spectrum Act context) for any new categories of applications, and on what factors the Commission should consider in making such a decision. The NPRM also seeks comment on whether the Commission should provide further guidance to address situations in which it is not clear when the shot clock should start running, or in which States and localities on one hand, and industry on the other, disagree on when the time for processing an application begins, and on whether there are additional steps that should be considered to ensure that a deemed granted remedy achieves its purpose of expediting review.

111. In addition, the NPRM seeks comment on Moratoria. The Commission clarified in the 2014 Infrastructure Order that the shot clock deadline applicable to each application “runs regardless of any moratorium.” The NPRM asks commenters to submit specific information about whether some localities are continuing to impose moratoria or other restrictions on the filing or processing of wireless siting applications, including identification of the specific entities engaging in such actions and description of the effect of such restrictions on parties' ability to deploy network facilities and provide service to consumers. The NPRM also proposes to take any additional actions necessary, such as issuing an order or declaratory ruling providing more specific clarifications of the moratorium ban or preempting specific State or local moratoria. The proposed measures should reduce existing regulatory costs for small entities that construct or deploy wireless infrastructure. The Commission invites commenters to discuss the economic impact of any of these proposed measures on small entities, including small jurisdictions, and on any alternatives that would reduce the economic impact on such entities.

112. Second, the NPRM undertakes a fresh look at the Commission's rules and procedures implementing NEPA and the NHPA as they relate to the Commission's implementation of Title III of the Act in the context of wireless infrastructure deployment. The NPRM seeks comment on potential measures in several areas that could improve the efficiency of the Commission's review under the NHPA and NEPA, including in the areas of fees, addressing delays, and batched processing. Specifically, the NPRM seeks comment on the costs, benefits, and time requirements associated with the historic preservation review process under Section 106 of the NHPA, including SHPO and Tribal Nation review, as well as on the costs and relative benefits of the Commission's NEPA rules. The NPRM also seeks comment on potential process reforms regarding Tribal Fees, including fee amounts, when fees are requested, the legal framework of potential fee schedules, the delineation of Tribal Nation's geographic area of interest, and on potential remedies, dispute resolution, and possible negotiated alternatives.

113. The NPRM then seeks comment on other possible reforms to the Commission's NHPA process that may make it faster, including time limits and self-certification when no response to a Section 106 submission is provided, on whether the Commission should require SHPOs and THPOs to review non-PTC facilities in batched submissions, and if so, how such a process should work and what sort of facilities would be eligible, and finally, whether there are additional procedural changes that the Commission should consider to improve the Section 106 review process in a manner that does not compromise its integrity.

114. Further, the NPRM seeks comment on ways to improve and further streamline the Commission's environmental compliance regulations while ensuring the Commission meets its NEPA obligations. Toward that end, the NPRM seeks comment on whether to revise the Commission's rules so that an EA is not required for siting in a floodplain when appropriate engineering or mitigation requirements have been met and on whether to expand the categories of undertakings that are excluded from Section 106 review, to include pole replacements, deployments in rights-of-way, and collocations based on their minimal potential to adversely affect historic properties. The NPRM also seeks comment on whether the Commission should revisit the Commission's interpretation of the scope of the Commission's responsibility to review the effects of wireless facility construction under the NHPA and NEPA. These potential changes to the Commission's rules and procedures implementing NEPA and the NHPA would reduce environmental compliance costs on entities that construct or deploy wireless infrastructure. These potential revisions are likely to provide an even greater benefit for small entities that may not have the compliance resources and economies of scale of larger entities. The Commission invites comment on ways in which the Commission can achieve its goals, but at the same time further reduce the burdens on small entities.

115. Third, the NPRM seeks comment on steps the Commission should take to develop a definitive solution for the Twilight Towers issue that will allow Twilight Towers to be used for collocations while respecting the integrity of the Section 106 process. Facilitating collocations on these towers will serve the public interest by making additional infrastructure available for wireless broadband services and the FirstNet public safety broadband network, as well as reduce the need for new towers, lessening the impact of new construction on the environment and on locations with historical and cultural significance, thereby reducing the associated regulatory burden, particularly the burden on small entities.

116. In particular, the NPRM seeks comment on whether to treat collocations on towers built between March 16, 2001 and March 7, 2005 that did not go through Section 106 historic preservation review in the same manner as collocations on towers built prior to March 16, 2001 that did not go through review. Under this approach, collocations on such towers would generally be excluded from Section 106 historic preservation review, subject to the same exceptions that currently apply for collocations on towers built on or prior to March 16, 2001. The Commission seeks comment on whether allowing collocations without individual Section 106 review in these circumstances would rapidly make available a significant amount of additional infrastructure to support wireless broadband deployment without adverse impacts. The NPRM also seeks comment on any alternative approaches and on the procedural vehicle through which any solution should be implemented. Finally, the NPRM invites comment on what measures, if any, should be taken to facilitate collocations on non-compliant towers constructed after March 7, 2005, including whether the Commission should pursue an alternative review process, or any other alternative approach, for any or all of these towers. These proposals would reduce the environmental compliance costs associated with collocations, especially for small entities that have limited financial resources. The Commission invites commenters to discuss the economic impact of any of the proposals for the solution to the Twilight Towers issue on small entities, including small jurisdictions, and on any alternatives that would reduce the economic impact on such entities.

117. For the options discussed in this NPRM, the Commission seeks comment on the effect or burden of the prospective regulation on small entities, including small jurisdictions, the extent to which the regulation would relieve burdens on small entities, and whether there are any alternatives the Commission could implement that could achieve the Commission's goals while at the same time minimizing or further reducing the burdens on small entities.

118. None.

119. This document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

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

121. In light of the Commission's trust relationship with Tribal Nations and Native Hawaiian Organizations (NHOs), and the Commission's obligation to engage in government-to-government consultation with them, the Commission finds that the public interest requires a limited modification of the ex parte rules in this proceeding. Tribal Nations and NHOs, like other interested parties, should file comments, reply comments, and ex parte presentations in the record in order to put facts and arguments before the Commission in a manner such that they may be relied upon in the decision-making process. But the Commission will exempt ex parte presentations involving elected and appointed leaders and duly appointed representatives of federally-recognized Tribal Nations and NHOs from the disclosure requirements in permit-but-disclose proceedings and the prohibitions during the Sunshine Agenda period. Specifically, presentations from elected and appointed leaders or duly appointed representatives of federally-recognized Tribal Nations or NHOs to Commission decision makers shall be exempt from disclosure. To be clear, while the Commission recognizes that consultation is critically important, the Commission emphasizes that the Commission will rely in its decision-making only on those presentations that are placed in the public record for this proceeding.

122. Accordingly, it is ordered, pursuant to Sections 1, 2, 4(i), 7, 201, 253, 301, 303, 309, and 332 of the Communications Act of 1934, as amended 47 U.S.C. 151, 152, 154(i), 157, 201, 253, 301, 303, 309, and 332, Section 102(C) of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4332(C), and Section 106 of the National Historic Preservation Act of 1966, as amended, 54 U.S.C. 306108, that this Notice of Proposed Rulemaking and Notice of Inquiry is hereby adopted.

123. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a summary of the Commission's document, FCC 17-46, in GN Docket No. 16-46, released on April 24, 2017. The full text of this document is available on the Internet at the Commission's Web site, at https://www.fcc.gov/document/fcc-seeks-comment-accelerating-broadband-health-tech-availability; and it is also accessible from the Connect2HealthFCC Task Force's Web page, at https://www.fcc.gov/health/public-notice. The full text is also available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. on Fridays in the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554 (Telephone: 202-418-0270; TTY: 202-418-2555).

Broadband networks are increasingly important to our national well-being and everyday lives. As such, we must maximize their availability and ensure that all Americans can take advantage of the variety of services that broadband enables, including 21st century health care. In this Document, the FCC seeks information on how it can help enable the adoption and accessibility of broadband-enabled health care solutions, especially in rural and other underserved areas of the country. We expect to use this information to identify actions that the Commission can take to promote this important goal.

Ensuring that everyone is connected to the people, services, and information they need to get well and stay healthy is an important challenge facing our nation. Technology innovations in clinical practice and care delivery coupled with burgeoning consumer reliance on mHealth and health information technology (or healthIT) are fundamentally changing the face of health care, and a widespread, accessible broadband infrastructure is critical to this ongoing shift. Indeed, the future of modern health care appears to be fundamentally premised on the widespread availability and accessibility of high-speed connectivity. By some estimates, broadband-enabled health information technology can help to improve the quality of health care and significantly lower health care costs by hundreds of billions of dollars in the coming decades. However, the United States remains behind some advanced countries in the adoption of such technology.

As discussed in this Document, the Commission plays an important role in improving the quality of health care and enabling health care innovation through the universal service program, spectrum licensing, and other activities. In order to perform these and other important roles in the health technology space, the Commission should continue to evaluate the nation's broadband health infrastructure and to understand the ongoing technology-based transformation in health care delivery. This will better assure that consumers—from major cities to rural and remote areas, Tribal lands, and underserved regions—can access potentially lifesaving health technologies and services, like telehealth and telemedicine. Leading this effort on behalf of the agency is its Connect2HealthFCC Task Force. Among other things, the Task Force is charged with charting the broadband future of “health and care” in order to ensure that the agency stays ahead of the health technology curve. We use the phrase “health and care” deliberately in this Document to reflect and include the broad range of participants in the emerging broadband health ecosystem, including providers (e.g., health systems, community health centers, clinicians, pharmacists, nutritionists, allied health professionals); public health and social service agencies and organizations; innovators and entrepreneurs; academic and research facilities; state and local policymakers; patients and their caregivers; as well as consumers who seek support to prevent disease and maintain optimum health.

This Document seeks comment, data, and information on a broad range of regulatory, policy, technical, and infrastructure issues related to the emerging broadband-enabled health and care ecosystem. Commenters should address the agency's authority on all issues raised in this Notice. The comment, data, and information requested are intended to provide the Commission with a broader understanding and perspective on the current state of broadband health technology and other related issues; and it will also inform the Task Force's work and recommendations.

Broadband holds promise for enabling health care solutions and advanced technologies that can help to meet America's growing health care needs. Health care accounts for a significant percentage of the U.S. gross domestic product and health care costs are projected to increase. Studies confirm that the United States has a serious health care supply problem. By some estimates, the country could face a shortage of up to 94,700 physicians by 2025, and the forecast is worse for rural communities. The healthcare provider shortfall is likely to disproportionately affect rural and remote areas which are already medically-underserved.

At the same time, demand for health care services is increasing. Today, over 320 million people in the United States could, at any time, utilize health care services, with one person added every 12 seconds (net), yet we only have approximately 280,000 primary care physicians to meet the needs. By the year 2060, the number of people living in the United States is projected to increase by 100 million (resulting in a total of 425+ million people), further exacerbating the projected physician shortage concern. To further complicate matters, over 100 million Americans are dealing with chronic diseases and conditions (e.g., heart disease, stroke, cancer, obesity, diabetes, and arthritis); and despite best efforts, health care disparities persist across various geographic regions and ethnic groups. While many individuals struggle with one chronic illness, older Americans often face from two to as many as five chronic diseases at the same time. By 2030, one out of every five Americans (or 71 million) will be over the age of 65, and 20 million will be over the age of 80.

While broadband is not a complete answer, there are a growing number of broadband-enabled solutions that can play an important role in improving population health; addressing health needs beyond the hospital; expanding access to primary, acute, preventive and specialist care, especially for those Americans living in rural and underserved areas; providing more cost-effective solutions; improving the quality of care; and better engaging consumers in their health. Put simply, health care is being transformed by the availability and accessibility of broadband-enabled services and technologies and the development of life-saving wireless medical devices.

Indeed, we are already realizing some of the tremendous benefits that broadband-enabled health technologies and innovative wireless medical devices have to offer: Electronic Health Record (EHR) systems can track and transmit vast amounts of patient clinical data. X-rays, MRIs, and CAT scans can be transmitted seamlessly to specialists at a distant hospital. Telemedicine and telehealth programs and services provide opportunities to close access to care gaps and facilitate specialized training. Medical providers are able to prescribe medications electronically, saving time and money. Surgeons are able to perform operations miles away from patients via robotics. Self-service health kiosks are becoming increasingly available at pharmacies and grocery chains, providing additional access points for primary care and disease screenings. Remote patient monitoring applications and services are reducing hospital readmissions as well as travel and associated expenses for patients. Mobile devices like smartphones and personal data assistants are transforming the way physicians manage patient care; they are also empowering and engaging consumers to take a more active role in managing their own health. Implant or body-worn monitoring, therapeutic, and treatment technologies include wireless blood glucose monitors and automated insulin pumps. “Ingestibles” and “smart pills” (broadband-enabled digital tools that are swallowed by the patient) use wireless technology to monitor internal reactions in real-time, dispense medication, and provide other granular health data.

Veterans, in particular, have seen tangible benefits from telemedicine. Most notably, critical mental health services are now accessible via telemedicine to those veterans living in rural areas or abroad. In fiscal year 2014, more than 690,000 military veterans accessed the U.S. Department of Veterans Administration's (VA) health care network using telemedicine programs, reflecting more than 1.7 million episodes of care. The Veterans Health Administration notes that “[telemedicine] technology is now considered `mission critical' for effectively delivering quality healthcare to veterans, particularly for those in rural or underserved areas.”

These are just some of the opportunities that broadband-enabled services and health-related communications technologies and devices offer, especially for those living in rural and underserved areas, low density populations, and Tribal lands; for older Americans; persons with disabilities; military veterans; and the economically disadvantaged—all of whom have traditionally faced significant health and care challenges. We endeavor to foster the development and accessibility of these and other emerging communications-based technologies throughout the country. The work ahead, however, can only be successful if it combines the efforts of all levels of government, industry, innovators and entrepreneurs, academia, consumers, and the health care community. Accordingly, we seek broad public and private stakeholder input and collaboration on the issues discussed below.

As part of its charge, the Connect2HealthFCC Task Force is focused on the following objectives: (1) Promoting effective policy and regulatory solutions that encourage broadband adoption and promote health IT; (2) identifying regulatory barriers (and incentives) to the deployment of radio frequency (RF)-enabled advanced health care technologies and devices; (3) strengthening the nation's telehealth infrastructure through the FCC's Rural Health Care Program and other initiatives; (4) raising consumer awareness about the value proposition of broadband in the health care sector and its potential for addressing health care disparities; (5) enabling the development of broadband-enabled health technologies that are designed to be fully accessible to people with disabilities; (6) highlighting effective telehealth projects, broadband-enabled health technologies, and mHealth applications across the country and abroad—to identify lessons learned, best practices, and regulatory challenges; and (7) engaging a diverse array of traditional and non-traditional stakeholders to identify emerging issues and opportunities in the broadband health space.

To continue evaluating these and other challenges, we request that stakeholders and other interested parties provide comment, information, and/or data on the issues and subject matter described below. This Notice seeks the most current information available that is specifically relevant to the intersection of broadband, advanced technology, and health care in view of the aforementioned Task Force objectives. For convenience, the issues for comment are enumerated; and we request that parties, in their submission, identify the enumerated issue to which their written response pertains. We also encourage parties to identify any other relevant issues not covered below.

Broadband and advanced technologies appear increasingly critical to the effective transformation of our health care system. First, these technologies enable the efficient exchange of patient and treatment information by allowing providers to access patients' electronic health records from on-site or hosted locations. Second, in many cases it can remove geography and time as barriers to care by enabling telehealth and telemedicine applications like video consultations and remote patient monitoring. Third, broadband provides a foundation for the next generation of medical devices, as well as other health innovation and connected-care solutions. Finally, broadband-enabled health IT offers real opportunities for consumers to take charge of their own health.

To ensure that these and other benefits continue to accrue and expand, it is critical that we identify and engage in appropriate efforts to address any current and emerging issues of concern. In this regard, we note that there are some broad policy measures that, if implemented, could accelerate broadband deployment generally, and thereby provide greater access to broadband-enabled health technologies, solutions and services, especially for those consumers living in rural and underserved areas of the country. A prime example is the possible establishment of “Gigabit Opportunity Zones.” In September 2016, FCC Chairman Ajit Pai, as part of his Digital Empowerment Agenda for accelerating the deployment of high-speed Internet access, called on Congress to provide tax and other financial incentives for the private sector to deploy gigabit broadband services in low income neighborhoods, which he referred to as “Gigabit Opportunity Zones.” More recently, the Commission created the Broadband Deployment Advisory Committee (BDAC) to provide the Commission advice on, among other things, accelerating broadband deployment, identifying regulatory barriers to infrastructure investment, and making recommendations for reducing and/or removing regulatory barriers. We now seek additional and specific data regarding the pace of deployment and adoption of broadband for health and in health care. As detailed below, we also invite input on policies or initiatives that the FCC could implement to further spur deployment and adoption of broadband services, especially in critical need areas at the intersection of health and broadband (e.g., the counties identified in the Connect2HealthFCC Task Force's Priority 100 and Rural 100 lists).

1. We request suggestions regarding ways in which the FCC, based on its authority, can further accelerate broadband adoption in the health care context and promote broadband-enabled health IT solutions, either on its own or working in collaboration with other agencies, and, at the same time, ensure that such services and technologies are fully available and accessible to all Americans, including those living in rural and remote areas, low density populations, Tribal lands, and in underserved urban areas of our country. We also seek comment on what impediments to these efforts exist, and how the FCC can address them.

2. We request information and data on the types, impact, scale, and benefits of broadband-enabled services and technologies used for the delivery of health care. How is broadband currently being used to augment or transform existing health care delivery? What types of health care settings are using broadband-enabled services and technologies besides large medical hospitals? What variety of medical issues are they used for? Where are these health care settings located? What are some of the future plans for using broadband-enabled health services and technologies—not just by clinicians and hospitals but also by other participants in the broader health ecosystem?

3. We are also interested in learning how health technologies and services can take advantage of new technological applications and emerging communications networks. For example, what impact will the Internet of Things (IoT) have on broadband-enabled health technologies and services such as telehealth and telemedicine? To what extent will pervasive connectivity and a fully connected environment around individuals (e.g., IoT) shift the point of care delivery? How might the demands on broadband networks evolve in this new environment? What, if any, changes are anticipated in existing broadband-enabled health services and technologies—operating over current mobile networks—when 5G (Fifth Generation Mobile and Wireless Networks) becomes available? To what extent might telehealth and telemedicine be impacted by the availability of 5G networks? What medical device innovations are anticipated to be developed using 5G networks?

4. What technical issues concerning the variety of broadband-enabled health care solutions and technologies are appropriate and necessary for the FCC to consider with respect to efforts to accelerate broadband adoption and promote health IT solutions? Are there issues of concern with respect to access, availability, interoperability, capacity, reliability, privacy, security, and speed? If so, please describe them. Does consideration of any of these issues vary depending on the technology platform—e.g., digital subscriber line (DSL), cable, fiber, wireless, or satellite?

5. We seek to better understand health care providers' connectivity requirements. What type of connectivity (e.g., wired or wireless; fixed or mobile) is necessary to support the deployment of health IT applications today and in the near future at the different types of health care delivery settings (e.g., tertiary care centers versus primary care physician practices, larger physician groups, clinics, hospitals, as well as “hospital in the home” settings).

a. What are the minimum bandwidth and speed requirements for the different types of health IT applications available today and in the near future for clinical and non-clinical settings? We also seek comment on bandwidth constraints brought on by increased overall usage as well as the impact of data intensive medical applications. Are there future technologies or applications on the horizon that could be bandwidth intensive? If so, what are they, and to what extent could compression and other technologies provide a solution for such future technologies or applications?

b. Some evidence suggests that real-time image manipulation and video (e.g., telestroke and tele-emergency applications) will stimulate demand for more and better broadband and at lower prices. Are there current issues concerning network speeds and delays for these types of services? Do mobile health applications present unique considerations in terms of coverage, reliability, and security? We seek suggestions on whether, and if so, how the Commission could address these issues.

c. To what extent do rural communities and Tribal lands have access to Internet connection speeds that are sufficient to support the effective and efficient transmission of data and video to provide telehealth, telemedicine, and other broadband health technology services?

d. What, if any, interoperability, capacity, reliability, security, and speed issues currently exist for wireless (i.e., radiofrequency (RF)-based) medical devices used by patients in both clinical and non-clinical settings (e.g., at home); and for healthcare providers with respect to the provision of broadband-enabled health technologies, like telehealth and telemedicine services? Are there other technical issues appropriate for the Commission to consider?

e. What impediments, if any, exist in trying to retrofit existing and future health care facilities (e.g., hospitals and clinics) for broadband-enabled services and technologies, given current connectivity needs and the existence of varied spectrum environments? Do current designs take into consideration any potential interference concerns with projected wireless networks and devices that will be used in these facilities? Are there (or should there be) industry standards or best practices for ensuring that new health care facilities consider broadband in their design and account for any necessary conduits, wiring, building configuration, and materials (e.g., there may be a need to consider certain materials for internal or external walls to better enable wireless broadband within a facility or to limit RF into a building) at the design and construction phase?

6. We seek to understand the full range of issues that might be affecting the development and adoption of broadband-enabled technology and services in health care. What non-technical impediments or issues currently exist in the provision of broadband-enabled health technology services? Are there any circumstances or practical considerations (e.g., cost, funding, and training) that may be creating disincentives for clinicians and health care settings to offer broadband-enabled health services and technologies, such as telehealth and telemedicine? If so, please describe what they are, including the extent and nature of the Commission's authority to address them.

7. What efforts are being made at the state and local levels to address broadband health technology accessibility issues in rural and remote areas, Tribal lands, and underserved urban areas? We seek specific information, particularly from states, localities, Tribal governments, and rural and urban medical centers, about any broadband-enabled health IT programs that have been developed and implemented (or will soon be implemented) to reach these areas. How successful have those programs been? What are some of the lessons learned in developing those programs? What programs and other efforts are necessary to drive attention to those rural and underserved populations that need health technologies most? How can the Commission better facilitate the deployment of services and technologies as well as consumer adoption in those areas?

8. We seek suggestions on ways the Task Force can effectively and efficiently identify any gaps in the availability of broadband-enabled health technologies in the country. We request any information, data, or studies that can better inform the Task Force as to where broadband-enabled health services and technologies are critically needed in the country but are insufficient or unavailable. Why do these availability gaps exist? Maps and data—including those commissioned by or for states or localities—would be particularly helpful. In August of 2016, the Task Force launched one such broadband health analytics tool—the Mapping Broadband Health in America platform—to allow stakeholders to more easily analyze and study the intersection between connectivity and health for every state and county in the United States. While the response to the platform—from other federal agencies, as well as private organizations and industry—has been uniformly positive, with some already using the mapping platform to improve data-driven decision-making around broadband health-related policies and initiatives, we seek additional stakeholder input. How can we further improve the analytic platform to encourage investment in broadband health networks in areas with the greatest health and connectivity needs? If we wanted to refine the tool to identify potential partnerships among health care providers or between health care providers and broadband service providers, what is the best way to achieve that goal?

9. What are the impediments to making health IT and other broadband health technology services available and ubiquitous in rural and remote areas, low population density areas, Tribal lands, and underserved urban sectors? Are there any unique challenges that persist in these areas; if so, what are they? In particular, we seek comment on any deployment, infrastructure, geographic, expertise (e.g., the availability and adequacy of IT expertise), telecommunications carrier availability, cost, and any other challenges in these areas. We seek suggestions for how to address such challenges, including on any rule and/or policy changes that the Commission should consider.

The Commission has a long history of addressing spectrum needs for the development of next- generation health technologies and medical devices, and of exercising flexibility, as necessary and appropriate, in revising its rules and policies to speed up their deployment. However, in recent months, stakeholders in the health sector and commercial wireless industry have raised concerns about the likely surge in demand for spectrum for wireless medical devices and broadband-enabled services—noting trends toward fully connected hospitals, widespread remote patient monitoring, and leveraging connectivity to improve health facilities' workflow and back-office functions—and have sought appropriate regulatory relief. Most recently, in August 2016, TerreStar Corporation filed a request for waiver of its substantial service requirements to enable use of its wireless licenses in the 1.4 GHz band to provide wireless medical telemetry service (WMTS) operations, citing increasing demand. Several wireless medical device manufacturers supported the waiver request and argued that there was a spectrum shortage facing WMTS licensees.

Below, we seek information and data on (i) the types of broadband-enabled health technologies and medical devices currently in the market and those that may be launched in the near future; (ii) the future spectrum and wireless infrastructure needs in the health care sector; and (iii) any concerns about the increased use and proliferation of wireless medical devices in health care settings and public spaces. Also, we welcome comment on what, if any, regulatory barriers exist (as well as incentives that could be implemented) concerning the deployment of advanced broadband-enabled health care technologies and medical devices. For purposes of this Document, we are only seeking information on “medical devices” that use RF wireless technology or communications functions for diagnosis, treatment, or patient monitoring.

10. We seek information on the types of broadband-enabled health technologies and medical devices that are currently in the market. In addition, what emerging types of broadband-enabled health technologies and medical devices are likely to be available to consumers soon? What are the future trends in this market area?

11. What, if any, technical issues or concerns exist for patients and other users of medical devices when such devices are used in hospital settings? Do these concerns vary depending on the type and size of the hospital setting? Are these concerns exacerbated when medical devices are operating in large or busy hospital environments (which may include a wide variety of wireless technologies, some of which may be unrelated to clinical care); if so, what are those concerns, how can they be addressed?

12. Similarly, what, if any issues or concerns exist for patients and other users of medical devices when such devices are used primarily in potentially uncontrolled, non-hospital settings (e.g., in homes, aircraft, cruise ships, or other close quarter, multi-unit dwellings, etc.), where non-health related wireless technologies that also emit radio frequencies (e.g., baby monitors, wireless home security systems, Wi-Fi routers, etc.) may proliferate? And to what extent might similar issues or concerns exist for emerging and future technological innovations (e.g., electric automobiles, smart cars, smart homes, etc.)?

13. We seek comment, data, and any studies on the possible complexities of the future RF environment in homes, hospitals, and other public spaces related to the increasing number of medical applications and devices.

14. How are medical devices currently being tested and evaluated to ensure that consumers and patients can safely use them in both clinical and non-clinical settings, given their operation in varied spectrum environments? Are there currently any FCC rules or policies that serve as barriers to testing and deployment of advanced health care technologies and medical devices? If any, please identify which specific rules and/or policies, and explain how they have served to impede the testing and deployment of health care technologies and medical devices. How might the Commission address such concerns?

15. We also request recommendations on how the Commission could make an assessment of the spectrum and wireless infrastructure needs for the future of health care in the United States. We seek input from all relevant stakeholders, including members of the health care, wireless, and software industries who are developing wireless healthcare applications for the present and future; physicians, consumer advocates, and academicians; and relevant federal, state, and local government agencies. While we envision building upon the spectrum management and wireless infrastructure deployment policies that the FCC has successfully employed in the past to promote innovation in wireless health services, we ask commenters to identify any novel framework, including those that might include smart city initiatives or public/private partnerships, that could be useful in planning for the wireless future of our nation's health care system.

a. One of the compelling drivers of mobile technology in healthcare is the increasing availability of health apps for smartphones and tablets. There is now an app for almost every conceivable healthcare need, ranging from drug dose calculators to fully functioning electronic medical records. We are also seeing the development of smart homes and automobiles that would enable even more sophisticated remote health monitoring. How soon will we see widespread adoption of these technologies and what implications will they have on the spectrum needs of the health care industry?

b. In developing a national spectrum plan for the health care industry, are there particular spectrum bands that the FCC should consider?

c. When it comes to increased need for spectrum-based health technologies, what challenges do small, rural, and critical access hospitals have that are different from what large hospitals face?

d. Do health care facilities, because of their different physical characteristics, require different types of small cells and wireless infrastructure than other commercial enterprises? What are the most challenging impediments to the deployment of wireless infrastructure in hospitals and health care systems? What policies should the FCC consider in order to help streamline infrastructure siting that is necessary for the deployment of wireless networks in hospitals and health care systems? What state or local government regulatory policies have helped to facilitate streamlined deployment of wireless infrastructure for health care?

e. How can new advanced spectrum sharing techniques (e.g., dynamic spectrum sharing through database controlled coordination, software designed radios, or efficient spectrum use through network virtualization techniques) or secondary market mechanism (e.g., spectrum leasing arrangements) be leveraged to meet the spectrum demands of cutting-edge mobile broadband-enabled health technologies and medical devices that may be operating in varied spectrum environments? Are there any issues with harmonization of spectrum for medical uses across international borders to ensure that consumers can effectively and safely use medical and other devices across borders?

f. What are some of the recent and emerging trends in health care delivery (in rural and urban areas) that are implicating spectrum use and needs? Are these trends creating a greater need for spectrum wireless services, particularly in rural areas? Are these trends resulting in increased use of remote patient monitoring solutions?

16. Do any regulatory barriers exist concerning the deployment of advanced broadband-enabled health care technologies and medical devices? We also welcome suggestions on any regulatory incentives (that are within the FCC's authority) that could serve to foster continued investment in and further deployment of next-generation broadband-enabled health technologies and medical devices?

Broadband deployment is one of the FCC's top priorities, particularly in rural America. Based on current evidence, broadband can be a game-changer particularly in rural areas—where consumers often have to drive long distances to access critical or specialty care; and where isolated clinics and health centers can save lives and promote community health by using advanced communications technologies to connect with medical expertise not otherwise available, as well as monitor patients who live many miles away from a health care facility.

The FCC's Rural Health Care (RHC) Program has helped expand broadband services for eligible health care providers (HCPs) in rural areas. Currently, the RHC Program is comprised of three programs: The Healthcare Connect Fund (HCF), the Telecommunications Program, and the Pilot Program. With respect to the Pilot Program, while no new funding is available, some projects continue to accept new HCP sites. As funding for the Pilot Program projects ends, Pilot Program projects are expected to apply for additional support, if needed, under the Healthcare Connect Fund. The FCC established the Healthcare Connect Fund to expand health care provider access to broadband, especially in rural areas, and encourage the creation of state and regional broadband health care networks. Under the Healthcare Connect Fund, eligible rural HCPs, and those non-rural HCPs that are members of a consortium that has a majority of rural HCP sites, can receive a 65 percent discount from the fund on all eligible expenses. HCPs are required to contribute the remaining 35 percent to participate in the program. HCPs can use the Healthcare Connect Fund to purchase eligible services and equipment, as well as construct their own broadband infrastructure where it is shown to be the most cost effective option. The cap on total funding for the RHC Program altogether, which includes the Telecommunications Program and the Healthcare Connect Fund, is $400 million annually.

The Commission's RHC Program has made the benefits of broadband-enabled health services, such as telehealth and telemedicine, more available to consumers living in rural and remote areas. Such broadband-enabled services have provided patients in rural areas with access to critically needed medical specialists in a variety of practice areas. The availability of telehealth and telemedicine programs also has been found to mitigate significant challenges associated with disparities in access to care and healthcare workforce shortages. The RHC Program also has been found to save health care providers money as well. The Commission continues to evaluate the Healthcare Connect Fund (HCF) in terms of the programmatic goals of (1) increasing access to broadband for HCPs, particularly those serving rural areas; (2) fostering the development and deployment of broadband health care networks; and (3) maximizing the cost-effectiveness of the program.

17. We seek comment and suggestions on how the FCC can further promote and help enable the adoption and accessibility of broadband-enabled health technologies, like telehealth and telemedicine, in rural and other underserved areas. Are there other initiatives or actions beyond the RHC Program that the agency, or the Task Force on behalf of the agency, could pursue in order to promote and help enable the adoption and availability of broadband-enabled health technologies in rural and underserved areas of the country?

18. Is the regulatory framework for the Rural Health Care program keeping pace with how broadband-enabled health care is being delivered in rural and underserved areas? If not, please explain in detail, describing any emerging challenges, gaps or opportunities for using broadband to better meet the health and health care needs of rural consumers.

19. We seek current information and data, if any, that can be used to measure the impact that the various RHC programs have had on certain populations and sectors—i.e., those living in rural and underserved areas, low density populations, and Tribal lands; older Americans; persons with disabilities; military veterans; and the economically disadvantaged in rural and urban communities—all of which have traditionally faced significant health and health care challenges.

20. We also are interested in hearing recent success stories about innovative health care services that were created or that became available as a result of the RHC Program, and how such services have helped consumers in rural and remote areas. We are particularly interested in receiving data and information about health outcomes, return on investment, and the ability to reach such underserved population groups. First-person accounts are welcomed.

21. We seek information, data, and studies that identify specific rural areas and underserved regions of the country that need funding assistance for the purchase of high-capacity broadband connectivity, connections, and any other services or equipment authorized under the RHC Program rules. We seek detailed information and data as to whether eligible health care providers in these areas and regions that require funding assistance have participated in the RHC Program, and if not, why not. We also seek suggestions on how the Commission can encourage or facilitate their participation. Are there specific challenges of which the Commission should be aware?

22. The Task Force is interested in identifying all currently available public (federal, state, or local) and private (e.g., non-profit or philanthropic organizations) funding sources for the provision of broadband-enabled health technologies and services (e.g., telehealth and telemedicine) in rural regions, Tribal lands, and in other underserved areas (including underserved urban areas), as well as for vulnerable populations. Please provide information about those funding sources, as well as their Web site address, if any.

23. We seek any other comment, information, and data concerning the RHC Program as well as the general needs of rural consumers for broadband-enabled health solutions that would be helpful to the Task Force, given its charge and objectives.

It is critically important that consumers fully understand the practical and personal benefits of broadband in health care and in facilitating greater care coordination, proactive engagement in disease prevention, and self-management. Placing more care decisions in the hands of consumers and personalizing that experience appears to be a major theme in health applications and product development today. We also recognize that as consumers fully realize the practical health benefits of broadband, consumer demand for broadband-enabled health services and technologies will serve to further accelerate broadband deployment and adoption altogether—a national priority.

24. We seek suggestions on how the Commission can effectively increase consumer awareness about the value proposition of broadband in the health care sector? Are there any practical efforts that the Commission can undertake to accelerate consumer adoption of broadband, and in particular broadband-enabled health services and technologies, especially among underserved populations? How might the Commission ensure that certain groups—e.g., rural consumers, those living on Tribal lands, older Americans, people with disabilities, military veterans, non-English speakers, and the economically disadvantaged—are fully aware of the availability and benefits of broadband-enabled health services and technologies? Are there any states, cities, and organizations engaged in similar efforts that could lead to potential partnerships?

25. We also seek comment on any concerns that may discourage consumers, health care providers, and others from adopting broadband-enabled health services and other advanced health technologies, including telehealth and telemedicine services and emerging medical devices. To what extent do safety, security, reliability, and privacy concerns influence adoption of broadband-enabled health services and other advanced technologies? To what extent do costs, socioeconomic status, and digital literacy issues impact adoption?

26. We request information on any studies, pilots, research, or other data that quantifies the benefits of broadband-enabled health technologies in improving patient outcomes and in reducing costs. What kind of return on investment have pilot and demonstration projects experienced?

27. We are interested in learning how broadband can enable healthcare-related support systems to connect patients to the people, services and information they need to get well and stay healthy. In this regard, physicians inform us that there is growing recognition that the need for social services and supports (e.g., nutritionists, dieticians, pharmacists, family caregivers, fitness centers, and other health care supports or supporters outside the traditional hospital setting) significantly impact the ability of some consumers to become healthy and stay well, and that the availability of broadband is increasingly essential to bridging the various services and supports. We seek comment and suggestions on how the Commission can support the development and availability of these new broadband-enabled services and supports (outside the RHC Program) especially on Tribal lands and in rural, remote, and other underserved areas?

28. We seek information and any studies about how broadband-enabled services and technologies have been, and could be used, to address health and health care disparity issues, and the impact (and successes) such services and technologies have had in addressing such issues.

29. Are there any practical issues (e.g., the lack of a home computer) that may be impeding consumer awareness and adoption of broadband-enabled health technologies? What efforts can be undertaken to help alleviate some of these issues?

The availability and accessibility of broadband-enabled health technologies designed to serve the needs of Americans with disabilities is critically important. One recent study estimates that, in 2013, the overall percentage of people with a disability in the U.S., among the civilian noninstitutionalized population, was 12.1 percent or approximately 37 million people. Other studies suggest that the number is higher than 50 million, and that it is predicted to continue to increase. Given these statistics, it is imperative that we do what we can, within our statutory authority, to promote the goal of making broadband-enabled health technologies and cutting-edge health and medical devices and applications available, accessible, and usable by people with disabilities.

Technology has historically played an important role in the disability community. Many people with disabilities use communications technology, devices, or services in their daily lives, and broadband is becoming an essential data transmission platform that enables a wide range of services and tools. Ensuring that people with disabilities are able to access electronic health records, engage in video consultation with their physicians, fully utilize the latest health apps, and benefit from advances in wearable health technology, for example, are essential to the ongoing health care transformation. Consistent with its charge, the Task Force will consider the extent to which broadband-enabled services and technologies used for the provision of health and care are available, accessible, and usable by all Americans, including those with disabilities. We therefore seek any data, information, and comment that will assist the Commission in better understanding how it may assist in achieving these important goals.

30. How are broadband-enabled health technologies and medical devices currently being used by people with disabilities? To what extent can these technologies and devices address the health care needs of people with disabilities in the future? Provide specific examples of the existing barriers, if any, that these technologies and devices pose for people with disabilities.

31. We seek comment on whether the design and development of broadband-enabled health services and technologies, as well as cutting-edge health and medical devices and applications, are accessible to, and usable by, people with disabilities. Are there practical concerns or other issues that are inhibiting or limiting the use and availability of broadband-enabled health services and technologies for people with disabilities? How are hospitals and clinicians currently addressing, if at all, any of these issues? An increasing number of health care services provide patient portals for patients to access medical records and communicate with physicians and specialists. What measures are taken to ensure that these mechanisms are fully accessible to users with disabilities (e.g., accessible via screen readers used by individuals who are blind)?

32. To what extent are clinicians aware of video relay service (VRS) and using it when remotely consulting with American Sign Language (ASL) users on a telephone call? Is there a need for VRS providers to have ASL interpreters with a knowledge of (and ability to translate) specialized health or medical vocabulary? Should a VRS call that involves consultations between a deaf or hard of hearing person and a doctor be given priority over other calls waiting in a queue, especially when there is a possible medical emergency? We also seek comment as to whether our telecommunications relay service (TRS) rules are currently optimized to encourage medical consults via telemedicine?

33. We seek suggestions as to how the Commission can effectively raise awareness among people with disabilities about the value proposition of broadband in health? How can the Commission help to enable the adoption and accessibility of such services and technologies among people with disabilities, especially given our authority?

Related to the objective of increasing consumer awareness about the practical health-related benefits of broadband is the need to inform the public—especially those in rural and underserved regions—about the availability and successes of the many broadband-enabled telehealth and telemedicine centers and projects across the country and abroad, as well as existing and emerging mHealth applications, and to identify lessons learned and best practices.

34. We seek current information and data on the effectiveness of broadband-enabled telehealth and telemedicine services, including any recent research on these services. How are patients responding to these services? We are particularly interested in receiving comments directly from consumers about their experience with these and other broadband-enabled services and technologies.

35. We also seek comment on specific challenges faced by states, localities, and Tribal governments, as well as communities abroad, in deploying effective broadband-enabled telehealth and telemedicine projects.

36. We seek comment on how the public can be better informed about the availability of broadband-enabled health services and technologies and mHealth applications. What have states, localities, other federal agencies, Tribal governments, and hospitals and clinics done to inform the public about the availability of these options? How effective have these projects been in promoting greater broadband utilization?

37. We seek submissions of any case studies, research and video/audio summaries concerning recently launched applications/programs that are on the cutting edge of telehealth, telemedicine, mHealth, and other broadband-enabled health technologies and services.

38. We seek comment on the extent to which the United States is not taking full advantage of the opportunities that broadband-enabled health technology provides. For countries that have been the most successful in making broadband-enabled health services and technology more widely available, especially in rural and underserved areas, we seek information on the approaches that such countries took (including lessons learned) in achieving success in broadband health adoption.

Published reports indicate that the “the health IT industry is gaining a reputation as an emerging sweet spot for technology investors.” We want to be sure that Commission policies do not present obstacles to continued innovation and investment in broadband-enabled health technologies, including medical devices that rely on communications technology. We observe that there is a growing desire for such technologies—including those that are wearable or otherwise track and monitor personal health—and that this emerging health market is estimated to be worth billions. There are also countless smartphone apps that track health-related issues. By some estimates, there are over 100,000 digital health apps offered in the three major app stores. In addition, recent advances in broadband-enabled sensor technology offer the potential for the emergence of more convenient and ultimately less costly and less invasive health care solutions. For example, we may soon see the widespread use of smart clothing (or smart “tattoo” applications) that use skin-based sensors to measure things like heart rate, respiration, and blood pressure. Robotics, virtual reality, and other consumer facing health technologies also offer the potential to help older Americans live more independently. Some technology companies are even experimenting with combining web search with online health consultations for a one-stop offering. To help inform the Commission in its related and other efforts in this area, we seek comment and information on these and other emerging health technologies, applications, services, and connected medical devices.

39. We seek comment on any emerging issues of concern (that have not been identified in this Document) that potentially impact efforts to accelerate the availability of broadband-enabled health technologies and services, as well as medical devices that rely on communications technology.

40. While the United States has made great strides in recent years, many advances in digital health technologies are still not broadly available, widely utilized, or well-tailored to meet the needs of all Americans. We seek comment on these concerns.

41. What are the emerging opportunities for investors, innovators, and entrepreneurs in the broadband health space and in the development of the next generation of connected health technologies and converged medical devices? We seek suggestions on any efforts that the Commission might undertake to support innovation and entrepreneurship in these areas. Are there emerging or non-traditional stakeholders that should be part of the Commission's efforts? If so, please identify them and their respective roles in or contributions to the broadband health space.

42. We seek comment on how to promote small and diverse investors, innovators, and entrepreneurs in the broadband health sector in order to better ensure that the benefits of broadband-health technologies and services are available to all Americans.

43. We seek to engage all potential stakeholders in this national broadband health effort. Commenters should identify any additional stakeholders that are not specifically referenced in this Document. We also encourage parties to identify any other relevant issues (not covered in this Notice) for the Task Force, given its charge and objectives.

Administrative Matters. Because this Document does not itself initiate a “proceeding,” responses to the Document are not “presentations” subject to the prohibitions in restricted proceedings and the disclosure requirements in permit-but-disclose proceedings. Nonetheless, parties discussing or providing information to the Task Force or any other members of the Commission regarding the issues raised in this Document are strongly encouraged to file a memorandum in the docket, summarizing their discussion and/or information.

This is a summary of Commission's document, Report No. 3077, released May 1, 2017. The full texts of the Petitions are available for viewing and copying at the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554 or may be accessed online via the Commission's Electronic Comment Filing System at http://apps.fcc.gov/ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5.U.S.C. because no rules are being adopted by the Commission.

Subject: Connect America Fund; Universal Service Reform—Mobility Fund, Report and Order, FCC 17-11, published at 82 FR 15422, March 28, 2017, in WC Docket No. 10-90 and WT Docket No. 10-208. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g).

Number of Petitions Filed: 7.