Federal Register Vol. 83, No.161,

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2017-15-17, Amendment 39-18977 (82 FR 35644, August 1, 2017) (“AD 2017-15-17”). AD 2017-15-17 applied to certain Airbus Model A300 B4-600R series airplanes, Model A300 C4-605R Variant F airplanes, and Model A300 F4-600R series airplanes. The NPRM published in the Federal Register on April 17, 2018 (83 FR 16787). The NPRM was prompted by a determination that new repetitive inspections of the lower area of a certain frame radius for cracking, and corrective actions are necessary. The NPRM proposed to require an inspection of the lower area of a certain frame radius for cracking, and corrective action if necessary. The NPRM also proposed to add new repetitive inspections of the lower area of a certain frame radius for cracking, and corrective actions if necessary. We are issuing this AD to detect and correct cracking in the forward fitting lower radius of a certain frame. Such cracking could reduce the structural integrity of the fuselage.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0158, dated August 25, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A300 B4-600R series airplanes, Model A300 C4-605R Variant F airplanes, and Model A300 F4-600R series airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0277.

We gave the public the opportunity to participate in developing this final rule. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. We have determined that these minor changes:

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

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

Airbus SAS has issued Service Bulletin A300-57-6120, dated April 28, 2017. This service information describes procedures for repetitive inspections of the forward fitting lower radius of FR 40 for cracking, and corrective action. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 94 airplanes of U.S. registry.

The actions required by AD 2017-15-17, and retained in this AD, take about 4 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2017-15-17 is $340 per product.

We also estimate that it takes about 4 work-hours per product to comply with the new requirements of this AD, including 1 work-hour per product for reporting. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $39,950, or $425 per product.

We have received no definitive data that enables us to provide cost estimates for the on-condition actions specified in this AD.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW, Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Authority for This Rulemaking

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

The FAA published a notice of proposed rulemaking in the Federal Register (83 FR 17512; April 20, 2018) for Docket No. FAA-2018-0290 to amend Class E airspace extending upward from 700 feet above the surface at New Castle-Henry County Municipal Airport, New Castle, IN. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.4-mile radius (decreased from a 7-mile radius) at New Castle-Henry County Municipal Airport, New Castle, IN, and adds an extension 2.5 miles each side of the 267° bearing from the New Castle NDB extending from the 6.4-mile radius to 7.0 miles west of the NDB. The geographic coordinates of the airport are also being updated to coincide with the FAA's aeronautical database.

This action is necessary due to an airspace review caused by the decommissioning of the Richmond VOR as part of the VOR MON Program.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

Authority for This Rulemaking

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

The FAA published a notice of proposed rulemaking in the Federal Register (83 FR 16256; April 16, 2018) for Docket No. FAA-2018-0044 to establish Class E airspace extending upward from 700 feet above the surface at Hobby Field, Creswell, OR. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. Five comments were received in support of the action. One commenter had concerns that were not substantive to the establishment of Class E airspace. The concerns addressed the quality of the altimeter values reported by the Creswell Automated Weather Observing System (AWOS) and the potential for conflict with the visual flight rules (VFR) traffic pattern. The concerns regarding AWOS have been forwarded to the servicing System Support Center. The RNAV procedure at Hobby Field should only be used when the wind is favoring runway 16, so the VFR traffic pattern should shift to match.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface at Hobby Field, Creswell, OR, to accommodate new RNAV procedures at this airport for the safety and management of IFR operations.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

We are announcing the availability of a guidance for industry entitled “Questions and Answers Regarding Food Facility Registration (Seventh Edition).” This guidance provides updated information relating to the food facility registration requirements in the FD&C Act. We are issuing this guidance consistent with our good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.

In the Federal Register of December 27, 2016 (81 FR 95068), we made available a draft guidance for industry entitled “Questions and Answers Regarding Food Facility Registration (Seventh Edition)” and gave interested parties an opportunity to submit comments by March 27, 2017, for us to consider before beginning work on the final version of the guidance. We received numerous comments on the draft guidance and have modified the final guidance where appropriate. In addition, we made editorial changes to improve clarity. The guidance announced in this notice finalizes the draft guidance dated December 2016.

FDA is also publishing elsewhere in this issue of the Federal Register notification of availability of a supplemental draft guidance document entitled “Supplemental Questions and Answers Regarding Food Facility Registration” that includes additional questions and answers to clarify our thinking about who should register in certain situations involving more than one possible registrant, such as a lessor and one or more lessees for an establishment. When the draft guidance is finalized, we intend to incorporate it into a future edition of the guidance document that is the subject of this notification.

This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR 1.230 through 1.235 and 21 CFR 1.245 have been approved under OMB control number 0910-0502.

Persons with access to the internet may obtain the guidance at either https://www.fda.gov/FoodGuidances or https://www.regulations.gov. Use the FDA website listed in the previous sentence to find the most current version of the guidance.

It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures that are publically available on the Department's website.

OIG internal guidance concerning the implementation of the FOIA within OIG will continue to be published in Inspector General Instruction 5400.7 (available at http://www.dodig.mil/Portals/48/Documents/Policy/IGDINST%205400.7%20AIG-AM%20signed%204-16-10.pdf).

This rule is one of 14 separate DoD FOIA rules. With the finalization of the DoD-level FOIA rule at 32 CFR part 286, the Department is eliminating the need for this separate FOIA rule and reducing costs to the public as explained in the preamble of the DoD-level FOIA rule published at 83 FR 5196-5197.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.

The Coast Guard will enforce a temporary special local regulation for the Wheeling Vintage Regatta in 33 CFR 100.801, Table 1, Sector Ohio Valley Annual and Recurring Marine Events, line 25 from 9 a.m. to 6 p.m. each day from September 1, 2018 through September 2, 2018. This action is being taken to provide for the safety of persons, vessels, and the marine environment on the navigable waters of the Ohio River during this event. Our regulation for marine events within the Eighth Coast Guard District, § 100.801, specifies the location of the regulated area for the Wheeling Vintage Regatta, which covers a one-mile stretch of the Ohio River. Persons and vessels must not enter the regulated area unless registered with the sponsor as participants, official patrol vessels, or authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative. Persons or vessels desiring to enter into or pass through the area must request permission from the COTP or a designated representative. They can be reached on VHF-FM channel 16. If permission is granted, all persons and vessel shall comply with the instructions of the COTP or designated representative.

In addition to this notice of enforcement in the Federal Register, the COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), Marine Safety Information Bulletins (MSIBs), and/or through other means of public notice as appropriate at least 24 hours in advance of each enforcement.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. This safety zone must be established by September 11, 2018, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the date of the fireworks display and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying this rule would be contrary to the public interest because immediate action is necessary to respond to the potential safety hazards associated with this fireworks display.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Marine Safety Unit Pittsburgh (COTP) has determined that potential hazards associated with this barge-launched fireworks display will be a safety hazard for anyone within a less than one half-mile stretch of the Allegheny River. The rule is necessary to protect persons, vessels, and the marine environment on the navigable waters within the safety zone before, during, and after the fireworks.

This rule establishes a safety zone from 7:30 p.m. through 9 p.m. on September 11, 2018. The safety zone will cover all navigable waters of the Allegheny River, extending the entire width of the river, from mile marker (MM) 0.7 to MM 1.0. The duration of the zone is intended to protect persons, vessels, and the marine environment on these navigable waters before, during, and after a fireworks display. No vessel or person is permitted to enter the safety zone without obtaining permissionfrom the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Marine Safety Unit Pittsburgh. Persons and vessels seeking entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or by telephone at (412) 221-0807. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful instructions of the COTP or a designated representative. The COTP or a designated representative will inform the public of the enforcement period for the safety zone as well as any changes in the schedule through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

We developed this 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 13563 (“Improving Regulation and Regulatory Review”) and 12866 (“Regulatory Planning and 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 both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum “Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs' ” (April 5, 2017).

This regulatory action determination is based on the size, time, duration, and location of the safety zone. This safety zone encompasses less than one half mile stretch of the Allegheny River for only one hour and thirty minutes on one evening. Moreover, the Coast Guard will issue BNMs via VHF-FM marine channel 16 about the zone, and the rule allows 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 rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only one hour and thirty minutes on one evening that will prohibit entry on less than one half mile stretch of the Allegheny River near a barge-launched fireworks display. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. This safety zone must be established by August 23, 2018, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the date of the fireworks display and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying this rule would be contrary to the public interest because immediate action is necessary to respond to the potential safety hazards associated with this fireworks display.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Marine Safety Unit Pittsburgh (COTP) has determined that potential hazards associated with this land-based fireworks display will be a safety hazard for anyone on the adjacent waterway within a half-mile stretch of the Ohio River. The rule is necessary to protect persons, vessels, and the marine environment on the navigable waters within the safety zone before, during, and after the fireworks.

This rule establishes a temporary safety zone from 8:30 p.m. through 10 p.m. on August 23, 2018. The safety zone will cover all navigable waters of the Ohio River, extending the entire width of the river, from mile marker (MM) 0.0 to MM 0.5. The duration of the zone is intended to protect persons, vessels, and the marine environment in these navigable waters before, during, and after a fireworks display. No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Marine Safety Unit Pittsburgh. Persons and vessels seeking entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or by telephone at (412) 221-0807. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful instructions of the COTP or a designated representative. The COTP or a designated representative will inform the public of the enforcement period for the safety zone as well as any changes in the schedule through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Broadcasts (MSIBs) as appropriate.

We developed this 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 13563 (“Improving Regulation and Regulatory Review”) and 12866 (“Regulatory Planning and 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 both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum “Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs' ” (April 5, 2017).

This regulatory action determination is based on the size, time, duration, and location of the safety zone. This safety zone encompasses a half-mile stretch of the Ohio River for only one hour and thirty minutes. Moreover, the Coast Guard will issue a BNMs via VHF-FM marine channel 16 about the zone, and the rule allows 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 rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only one hour and thirty minutes that will prohibit entry on a half-mile stretch of the Ohio River near a land-based fireworks launching site. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

The Coast Guard will enforce a safety zone for the Wheeling Annual Dragon Boat Race in 33 CFR 165.801, Table 1, Line 88 from 8 a.m. through 3 p.m. on August 25, 2018. This action is being taken to provide for the safety of persons, vessels, and the marine environment on the navigable waters of the Ohio River during this event. Our regulation for marine events within the Eighth Coast Guard District, § 165.801 specifies the location of the regulated area for the Wheeling Annual Dragon Boat Race. Entry into the regulated area is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative. Persons or vessels desiring to enter into or pass through the regulated area must request permission from the COTP or a designated representative. They can be reached on VHF FM channel 16. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

In addition to this notice of enforcement in the Federal Register, the COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), Marine Safety Information Bulletins (MSIBs), and/or through other means of public notice as appropriate at least 24 hours in advance of each enforcement.

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

On June 28, 2018, the EPA proposed to approve Washington as meeting the requirement that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2012 PM2.5 NAAQS in any other state (83 FR 30380). An explanation of the Clean Air Act requirements, a detailed analysis of the submittal, and the EPA's reasons for proposing approval were provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for the proposal ended July 30, 2018.

We received three comments on the rulemaking. After reviewing the comments, we have determined that the comments are outside the scope of our proposed action and fail to identify any material issue necessitating a response. For more information, please see our memorandum included in the docket for this action.

The EPA is approving Washington's February 7, 2018, submission certifying that the SIP is sufficient to meet the interstate transport requirements of Clean Air Act section 110(a)(2)(D)(i)(I), specifically prongs one and two, as set forth in the proposed rulemaking for this action.

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

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

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

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

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

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

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

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

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

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 19, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

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

On March 20, 2018, the Idaho Department of Environmental Quality (IDEQ) submitted revisions to the SIP provisions that incorporate by reference (IBR) various portions of Federal regulations codified in the Code of Federal Regulations (CFR) into the Rules for the Control of Air Pollution in Idaho (IDAPA 58.01.01). Additionally, on April 12, 2018, Idaho submitted a separate SIP revision to remove an expired interim transportation conformity provision.

On June 29, 2018, EPA proposed to approve Idaho's March 20, 2018, and April 12, 2018, SIP submissions. Please see the proposed approval for further explanation (83 FR 30626). The public comment period for our proposed action ended July 30, 2018. We received three electronic comments submitted through https://www.regulations.gov. We reviewed the comments and have determined that they are not clearly related to the subject of this action and thus are not adverse to this action. Therefore, we are finalizing our action as proposed.

EPA is approving, and incorporating by reference where appropriate, in Idaho's SIP, all revisions to IDAPA 58.01.01.107 Incorporations by Reference (state effective March 28, 2018), except .03.f through .p, as requested by Idaho on March 20, 2018. EPA is also approving, as requested by Idaho on April 12, 2018, removal of IDAPA 58.01.01.582 Interim Conformity Provisions for Northern Ada County Former Nonattainment Area for PM 10 from the Idaho SIP. We have determined that the submitted SIP revisions are consistent with section 110 and parts C and part D of Title I of the CAA.

In this rule, EPA is approving regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is incorporating by reference the provisions described above in Section II. Final Action and set forth below, as amendments to 40 CFR part 52.

Also in this rule, EPA is removing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is removing the incorporation by reference of IDAPA 58.01.01.582 as described in Section II. Final Action and set forth below, as amendments to 40 CFR part 52.

EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and at the EPA Region 10 office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because it does not involve technical standards; and

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

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

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

I. Background

On December 14, 2012, EPA revised the primary annual NAAQS for PM2.5 at a level of 12 micrograms per cubic meter (µg/m3), based on a 3-year average of annual mean PM2.5 concentrations. See 78 FR 3085 (January 15, 2013). EPA established the standards based on significant evidence and numerous health studies demonstrating that serious health effects are associated with exposures to particulate matter.

The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the CAA. On December 18, 2014, EPA designated the majority of areas across the country as nonattainment, unclassifiable/attainment, or unclassifiable1 for the 2012 PM2.5 NAAQS based upon air quality monitoring data from monitors for calendar years 2011-2013. See 80 FR 2206 (January 15, 2015). EPA's January 15, 2015, rulemaking notice also described a process by which EPA would evaluate any complete, quality-assured, certified air quality monitoring data from 2014 that a state submitted for consideration before February 27, 2015. EPA stated that it would evaluate whether, with the inclusion of certified 2014 data, the 3-year design value for 2012-2014 suggests that a change in the initial designation would be appropriate for an area. If EPA agreed that a change in the initial designation would be appropriate, EPA would withdraw the designation announced in the January 15, 2015, notice for such area before the effective date and issue another designation reflecting the inclusion of 2014 data.

In a follow-up designation action published on April 7, 2015 (80 FR 18535), EPA designated five areas as unclassifiable/attainment in Georgia, including two neighboring counties in the bordering states of Alabama and South Carolina, that were initially deferred in EPA's January 15, 2015, rulemaking. In the same action, EPA changed the designations for one area in Ohio, two areas in Pennsylvania, and one bi-state area with portions in Kentucky and Ohio from nonattainment to unclassifiable/attainment. The bi-state Louisville Area was changed from nonattainment to unclassifiable.

On May 4, 2018, Kentucky submitted a request for EPA to redesignate the bi-state Louisville Area to unclassifiable/attainment for the 2012 primary annual PM2.5 NAAQS now that there is sufficient data to determine that the Area is in attainment. In a notice of proposed rulemaking (NPRM) published on May 30, 2018 (83 FR 24714), EPA proposed to approve the State's request to redesignate the Kentucky portion of the bi-state Louisville Area to unclassifiable/attainment for the 2012 primary annual PM2.5 NAAQS. The details of Kentucky's submittal and the rationale for EPA's actions are further explained in the NPRM. EPA did not receive any adverse comments on the proposed action.

EPA is approving Kentucky's redesignation request and redesignating the Kentucky portion of the bi-state Louisville Area from unclassifiable to unclassifiable/attainment for the 2012 primary annual PM2.5 NAAQS.

Under the CAA, redesignation of an area to unclassifiable/attainment is an action that affects the status of a geographical area and does not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to unclassifiable/attainment does not in and of itself create any new requirements. Accordingly, this action merely redesignates an area to unclassifiable/attainment and does not impose additional requirements. For that reason, this action:

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

• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because redesignations are exempted under Executive Order 12866;

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

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

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

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

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

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

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

• will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

This final redesignation action is not approved to apply to 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.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 19, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 81 is amended as follows:

On August 15, 2012, the District submitted a final complete program revision application (with subsequent corrections) seeking authorization of revisions to its hazardous waste management program in accordance with 40 CFR 271.21. EPA now makes a final decision that the District's hazardous waste management program revisions are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. For a list of District rules that are being authorized with this final authorization please see the proposed rule published in the June 11, 2018 Federal Register at 83 FR 26917.

Codification is the process of placing a state's statutes and regulations that comprise that state's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized state rules in 40 CFR part 272. EPA is not codifying the authorization of the District's revisions at this time. However, EPA reserves the amendment of 40 CFR part 272, subpart J, for codification of this authorization of the District's hazardous waste management program until a later date.

This final authorization revises the District's authorized hazardous waste management program pursuant to section 3006 of RCRA and imposes no requirements other than those currently imposed by District law. For further information on how this authorization complies with applicable executive orders and statutory provisions, please see the proposed rule published in the June 11, 2018 Federal Register at 83 FR 26917.

The Social Security Act (the Act) provides CMS with tools and resources to combat fraud, waste, and abuse in Medicare, Medicaid, and the Children's Health Insurance Program (CHIP), including the authority to place a temporary moratorium on provider enrollment in these programs, 402(a)(1)(J) of the Social Security Amendments of 1967 (42 U.S.C. 1395b-1(a)(1)(J)). CMS uses quantitative and qualitative data to determine whether there is a need for a moratorium, such as reviewing whether the area under consideration for a moratorium has significantly higher than average billing per beneficiary or provider per beneficiary ratios. CMS first used its moratoria authority on July 30, 2013, to prevent enrollment of new Home Health Agencies (HHAs) in the Chicago, Illinois and Miami, Florida areas, as well as Part B ground ambulance suppliers in the Houston, Texas area (see the July 31, 2013 Federal Register (78 FR 46339)). These moratoria also applied to Medicaid and CHIP. CMS exercised this authority again on January 30, 2014, to extend the existing moratoria for 6 months and expand them to include HHAs in Fort Lauderdale, Florida; Detroit, Michigan; Houston, Texas; and Dallas, Texas; as well as Medicaid, CHIP and Medicare Part B ground ambulance suppliers in Philadelphia, Pennsylvania and nearby New Jersey counties (see the February 4, 2014 Federal Register (79 FR 6475)). Since the moratoria were expanded, they remained in place and were extended in 6-month intervals. On July 29, 2016, CMS extended the existing moratoria for 6 months and expanded them to statewide in the impacted states (see the August 3, 2016 Federal Register (81 FR 51120)). The statewide moratoria have since been extended at 6-month intervals and to date, largely remain in place in all of the previously-mentioned locations.1

Since initial implementation of the moratoria, CMS has monitored the program and identified several operational challenges. Because the moratoria were initially geographically defined by county, the moratoria did not prohibit existing providers and suppliers from opening a branch location in, or moving a currently-enrolled business into, a moratoria area. Moreover, CMS was unable to prevent existing providers and suppliers enrolled outside of a moratoria area from servicing beneficiaries within the moratoria area. In fact, CMS discovered providers and suppliers who were located several hundred miles outside of a moratorium area that were billing for services furnished to beneficiaries located within the moratorium area.

As noted previously, on July 29, 2016, CMS implemented statewide moratoria on newly enrolling HHAs in Medicare, Medicaid, and CHIP, and non-emergency ground ambulance suppliers in Medicare Part B, Medicaid, and CHIP in order to mitigate the vulnerabilities identified and described previously regarding the prior county-based moratoria. Concurrently, CMS implemented this Demonstration in order to improve methods for the investigation and prosecution of fraud, and to ensure that program integrity enforcement actions did not impact beneficiary access to care; in particular, all of the states impacted by the expanded statewide moratoria have rural areas that could be impacted by the statewide expansion. By implementing this Demonstration, CMS created a process that allows for need-based waivers to the moratoria in areas with access to care issues. Recently, CMS re-evaluated the continued need for statewide moratoria on the enrollment of new Part B, Medicaid, and CHIP non-emergency ground ambulance suppliers in New Jersey and Pennsylvania, and HHAs in Florida, Illinois, Michigan, and Texas, and determined that the conditions that caused CMS to implement the moratoria have not abated. As a result, on July 29, 2018 (see the August 2, 2018 Federal Register (83 FR 37747), we extended the statewide moratoria on Part B, Medicaid, and CHIP non-emergency ground ambulance suppliers and HHAs in the impacted states.

Since expanding statewide, a new statutory provision affecting the moratoria areas has taken effect. In December 2016, Congress enacted the 21st Century Cures Act (Cures Act). Section 17004 of the Cures Act provides authority to address issues of circumvention of the prior county-based moratoria by prohibiting payment for items or services furnished within moratoria areas by any newly enrolled provider or supplier that is of a provider or supplier type subject to the moratoria.

We believe it is necessary to maintain statewide moratoria and this Demonstration in Medicare, Medicaid, and CHIP in order to more effectively rectify the circumvention issue. As such, we must address a challenge we identified with carrying out the statewide moratoria and the existing Demonstration in light of the Cures Act requirement. The Demonstration provides an opportunity for providers and suppliers otherwise subject to the moratoria to enroll and furnish services within a moratorium area if CMS determines that there are access to care issues in a particular geographic area. However, the Cures Act provision prevents payments to newly enrolled providers and suppliers subject to the moratoria for items and services furnished in moratoria areas. This includes those providers and suppliers enrolled under the Demonstration. This Cures Act provision became effective for such items and services furnished on or after October 1, 2017. To continue to avoid potential patient access to care issues and to continue a process to test whether allowing for targeted anti-fraud activities through heightened screening of providers and suppliers enrolling through the Demonstration will improve methods for the investigation and prosecution of fraud under section 402(a)(l)(J) of the Social Security Amendments of 1967, CMS is revising the Demonstration to waive the requirements of section 17004 of the Cures Act for the providers and suppliers enrolled under the Demonstration.2 With this revision, providers and suppliers enrolled under the Demonstration will be able to receive Medicare, Medicaid, and/or CHIP payment for items and services furnished within the provider's or supplier's approved service area for the Demonstration.

The regulation at 42 CFR 424.570(a)(1)(iv) provides that a temporary enrollment moratorium does not apply to any enrollment application that has been approved by the Medicare Administrative Contractor (MAC) but not yet entered into PECOS at the time the moratorium is imposed. During the time period when the moratoria was county-based, some providers and suppliers spent a substantial amount of time and considerable resources preparing for enrollment in states subject to the prior county-based moratoria only to have their Form CMS-855 applications denied near the end of the enrollment process because of the sudden imposition of a statewide moratorium. This has been especially problematic for HHAs—(1) whose Form CMS-855A applications had been recommended for approval by the MAC; (2) that had successfully completed a state survey; and (3) whose applications and survey results had been forwarded by the state to the CMS regional office for final review.

As a result, CMS is further revising the Demonstration to include two different options for eligibility: (1) The existing option requiring that the provider or supplier demonstrate that access to care issues exist; or (2) the new alternative option requiring that the provider or supplier establish that it had submitted an enrollment application prior to implementation of the moratorium that was denied as a result of implementation of such moratorium. This alternative requirement applies to the July 29, 2016 statewide moratoria and any moratoria that are implemented subsequent to, and for the duration of, this demonstration. Thus this revision will allow CMS to approve individual waivers to a statewide moratorium due to providers or suppliers demonstrating that access to care issues exist, or for providers and suppliers that had submitted an enrollment application prior to implementation of a moratorium on July 29, 2016, or later, that was denied by their relevant MAC as a result of implementation of such moratoria. Providers and suppliers who meet either of these criteria will be subject to the heightened screening, oversight, and restrictions of the revised Demonstration. These two options for eligibility will allow additional opportunities for providers and suppliers to enroll under the revised Demonstration. This will better allow CMS to test whether conducting targeted anti-fraud activities through heightened screening of enrolling providers or suppliers, in conjunction with increased oversight and other restrictions, will improve methods for the investigation and prosecution of fraud under Section 402(a)(l)(J) of the Social Security Amendments of 1967. As such, for purposes of this Demonstration, CMS is waiving the regulatory requirement in 42 CFR 424.570(a)(1)(iv), described previously.3

Regardless of the reason a provider or supplier qualifies for the Demonstration, CMS is also revising the Demonstration to provide additional discretion regarding the effective date of new billing privileges in order to better address any access to care concerns that do arise. CMS is waiving the regulatory requirement in 42 CFR 424.520(a) and (d) governing the effective date of new billing privileges for certified providers and ambulance suppliers, respectively, so as to allow CMS to evaluate and assign effective dates depending on whether access to care issues exist in the service area.4

As described in greater detail in section II. of this document, because CMS sees a high incidence of fraud in the moratoria areas, extensive screening and review of providers and suppliers newly enrolling under the Demonstration will be coupled with an earlier review of claims and other investigations and prosecutions of fraud with respect to such providers and suppliers. The revised Demonstration will also support statewide moratoria by addressing the moratoria circumvention issues that surfaced throughout the prior county-based moratoria and providing waivers to the moratoria to ensure that beneficiary access to care is not adversely impacted. Approval of a waiver would be based primarily on either the provider or supplier demonstrating an access to care issue exists or that the provider or supplier submitted an enrollment application prior to implementation of a moratorium on July 29, 2016, or later that was denied as a result of implementation of such moratorium, and secondarily on passing the enhanced screening measures in the approved service area.

A finding of fraud risk in Medicare typically means that the risk also exists in Medicaid and CHIP, as recognized by section 1902(a)(39) of the Act, which requires state Medicaid agencies to terminate the participation of any individual or entity if such individual or entity is terminated under Medicare or any other state's Medicaid or CHIP program. Moreover, access to care issues are of equal concern in the context of Medicaid and CHIP. As a result, CMS will also implement the revised Demonstration in Medicaid and CHIP.

This revised Demonstration will continue to support the existing statewide moratoria on HHAs in Medicare, Medicaid, and CHIP, and non-emergency ground ambulance suppliers in Medicare Part B, Medicaid, and CHIP. This revised Demonstration will allow a provider or supplier to submit a Provider Enrollment Moratoria Access Waiver (waiver) application that, if approved, will exempt such provider or supplier from the moratorium in designated geographic areas. The waiver application for Medicare enrollment will be reviewed by CMS, and this review will include heightened screening measures. The waiver application for Medicaid and CHIP will be reviewed by the relevant State Medicaid Agency. If the provider or supplier receives a waiver, restrictions may be imposed on such provider's or supplier's service area to limit the number of new providers or suppliers in a location that is already oversaturated with particular providers and/or suppliers. This restriction will be based on the saturation of providers or suppliers and the number of beneficiaries in the counties where the provider or supplier proposes to operate. Extensive evaluations of providers and suppliers seeking to enroll through this demonstration will be coupled with proactive reviews of submitted claims on an ad hoc basis, beginning within the first 30 to 60 days of enrollment and continuing for the first year of enrollment, as well as increased investigations with referral to law enforcement as appropriate, for newly enrolled and existing providers.

All waiver applications, with the appropriate CMS-855 5 enrollment application form and supporting documentation, should be submitted electronically to a designated mailbox: [email protected]. Upon receipt of the applicable CMS-855 application, waiver application, all supporting documentation, and payment of the enrollment application fee, CMS will review for completeness and, within 30 days, will respond with confirmation of receipt or in the case of an incomplete application, rejection. As part of the Demonstration, CMS will review the applicant's affiliations to include: (1) A 5 percent or greater direct or indirect ownership interest that an individual or entity has in another organization; (2) a general or limited partnership interest that an individual or entity has in another organization; (3) an interest in which an individual or entity exercises operational or managerial control over or directly or indirectly conducts the day-to-day operations of another organization, either under contract or through some other arrangement, regardless of whether or not the managing individual or entity is a W-2 employee of the organization; (4) an interest in which an individual is acting as an officer or director of a corporation; (5) any reassignment relationship. In section 5 of the Waiver Application,6 we require providers and suppliers to report affiliations with entities and individuals that: (1) Currently have uncollected debt to Medicare, Medicaid, or CHIP; (2) have been or are subject to a payment suspension under a federal health care program or subject to an Office of Inspector General (OIG) exclusion; or (3) have had their Medicare, Medicaid, or CHIP enrollment denied or revoked. Should such an affiliation be reported or discovered, CMS could deny the provider's or supplier's PEWD application if CMS determines that the affiliation poses an undue risk of fraud, waste, or abuse. As part of the review to determine undue risk, CMS will consider the duration of the applicant's relationship with the affiliated entity or individual, determine whether the affiliation still exists or how long ago it ended, the degree and extent of the affiliation, and reason for termination of the affiliation if applicable. CMS may also deny a provider's or supplier's PEWD application if CMS determines that the provider or supplier is currently revoked from Medicare, Medicaid, or CHIP under a different name, numerical identifier, or business identity. To minimize provider burden the “look-back” period for disclosure of affiliations will be within the previous 5 years. However, there will be no cut-off or specific “look-back” period for when the disclosable event occurred or was imposed.

Should CMS receive more than one application for a particular geographical area, and the acceptance factor is based on access to care, the applications will be prioritized by order of receipt until the access to care concern is alleviated. Should CMS receive more than one application for a particular geographical area, and the acceptance factor is that enrollment applications were denied because of implementation of moratoria, all applications will be prioritized and processed in the order of receipt. Should CMS receive applications for a particular geographical area from a provider or supplier seeking to demonstrate an access to care issue and from another provider or supplier whose enrollment application was denied as a result of implementation of moratoria, the application from the provider or supplier whose enrollment application was denied due to the implementation of moratoria will be prioritized. An application will not be considered received until it is complete, including fingerprinting. Subsequently, CMS will have 90 days from initial receipt to review each application and communicate a decision to the provider or supplier.

Once a complete application is received, the determining factor for waiver approval under this revised Demonstration, and the first step in application review, will either be (1) a determination regarding beneficiary access to care; or (2) verification that the provider or supplier had submitted an enrollment application prior to implementation of a moratorium on July 29, 2016, or later, that was denied as a result of implementation of such moratorium. With respect to providers and suppliers seeking a waiver based on access to care issues, the determination will be primarily based upon an evaluation of provider and supplier saturation, provider or supplier to beneficiary ratios, and claims data; this review will be supplemented with any access to care information that the provider or supplier has provided. As a requirement of the application, the provider or supplier will be required to submit detailed access to care information that demonstrates whether an access to care issue exists in the counties where the provider or supplier is attempting to enroll. In 2016, CMS released saturation data to the public. This data set, located at https://data.cms.gov/market-saturation, includes saturation data for the nation and identifies states that are impacted by moratoria. This data gives both states and the public detailed information relevant for access to care justification. Additionally, we are expecting anecdotal data from the applicants to support that an access to care issue exists, which should not subject applicants to the unnecessary burden of performing extensive analyses. CMS will evaluate the provider- or supplier-generated information and compare it with statistical analysis data that is generated internally by CMS to determine whether an access to care issue exists in the identified area.

If CMS determines that a beneficiary access to care issue does not exist in the counties where the provider or supplier proposes to operate, the application will be rejected and the application fee will be refunded. Upon rejection, the provider or supplier may submit a new application at any time. If any subsequent application demonstrates an access to care issue, then CMS may move forward with processing the application.

For those providers or suppliers seeking a waiver because their enrollment application was denied as a result of implementation of a moratorium, if CMS cannot verify the denial, the application will be rejected and the application fee will be refunded. Upon rejection, the provider or supplier may submit a new application at any time. If for any subsequent application CMS is able to verify that the provider or supplier had submitted an enrollment application prior to implementation of a moratorium that was denied as a result of such moratorium, then CMS may move forward with processing the application.

When CMS determines that there is a beneficiary access to care issue in the counties where the provider or supplier has proposed to enroll, or when CMS verifies that the provider or supplier had submitted an enrollment application prior to implementation of a moratorium that was denied as a result of implementation of such moratorium, CMS will move forward with processing the application. CMS will utilize the ownership information in the submitted CMS-855 application, in conjunction with the revised Demonstration, to perform numerous screening measures, which will include the following:

• License verification.

• Background investigations including evaluation of affiliations.

• Federal debt review.

• Credit history review.

• Fingerprint-based criminal background checks (FCBC) of persons with a 5 percent or greater direct or indirect ownership interest, partners, and managing employees.

• Enhanced site visits.

• Ownership interest verification.

• Evaluation of past behavior in other public programs.

Providers and suppliers who do not pass the heightened screening requirements will receive a letter stating that their application has been denied and indicating the specific reason(s) for denial. The provider or supplier may submit an appeal to CMS within 15 days of the date of denial. The appeal must specifically address the reason(s) for denial and detail the action(s) taken to resolve any deficiency. CMS will evaluate the appeal and process or deny the application as appropriate. If a provider's or supplier's application is denied, the application fee will not be refunded. Further, if a provider or supplier is denied for a reason under 42 CFR 424.530(a), the provider or supplier may not reapply for a waiver under the Demonstration.

Providers and suppliers who are recommended for enrollment under the Demonstration will be advised that their respective CMS-855 applications are being forwarded to the Medicare Administrative Contractor (MAC) for further processing. The MAC will process the application and determine whether enrollment is appropriate based on all current policies and procedures. All applicants who are enrolled through the Demonstration will be subject to all Medicare policies and regulations, including revalidation within 5 years of initial enrollment, in addition to the heightened oversight that is implemented through the Demonstration.

The Act includes requirements regarding provider enrollment and oversight for the Medicare and Medicaid Programs. Among other provisions, section 1866(j)(3)(A) of the Act allows for up to a 1-year provisional period of enhanced oversight of newly enrolled providers of services and suppliers, which may be implemented through program instruction. During this Demonstration, CMS will utilize this authority and may revoke a provider's or supplier's Medicare billing privileges if the enhanced oversight identifies grounds for such revocation.

As an enhanced oversight measure, providers or suppliers that are approved to enroll in the Demonstration because of a determination that access to care issues exist in the areas where they proposed to enroll will be given a specific need-based geographic area, by county, in which they are approved to operate. For those providers or suppliers who are approved on the basis of an access to care issue, should CMS find that the access to care limitation extends beyond the counties that were initially proposed by the provider or supplier, CMS may accordingly request that the provider or supplier expand the area of operation. Providers and suppliers that are approved to enroll in the Demonstration because they had submitted an enrollment application prior to implementation of a moratorium that was denied as a result of implementation of such moratorium will be allowed to service locations listed in the enrollment application that they submit with their waiver application. However, as discussed earlier in section II of this document, restrictions may be imposed on the service area of a provider or supplier approved to enroll in the Demonstration in order to limit the number of new providers or suppliers in a location that is already oversaturated with particular providers and/or suppliers. This will be applicable to providers or suppliers that are approved to enroll in the Demonstration because of a determination that access to care issues exist or because they had submitted an enrollment application prior to implementation of a moratorium that was denied as a result of implementation of such moratorium.

Providers or suppliers enrolling under the Demonstration may not bill beneficiaries for services furnished outside of the approved service area, and claims for services furnished outside of the approved service area will be denied. Additionally, in response to fraud trends, CMS may perform medical review of claims submitted, including an evaluation of any prior relationships between the provider or supplier and the beneficiary and whether the services were medically necessary. Other reviews may be performed if deemed necessary. CMS will continue the enhanced oversight throughout the revised Demonstration, billing patterns will be monitored through the Fraud Prevention System (FPS), and any abuse of billing privileges may result in revocation of Medicare billing privileges.

The combined goal of the statewide moratoria and the revised Demonstration outlined herein is to address beneficiary access to care issues, while targeting fraud, waste, and abuse. Success of this revised Demonstration is contingent upon an increase in oversight and enforcement in all six current moratoria states. This oversight will be provided using existing tools, as well as those created through this revised Demonstration, by both CMS and CMS' law enforcement partners. Under this revised Demonstration, CMS will share applicable data with law enforcement partners to aid in the investigation and prosecution of fraud.

Through quarterly data evaluations, CMS will continue to carefully monitor potential access to care issues that could develop in the moratoria states. Additionally, CMS will respond to any access issue identified and brought to our attention outside of the quarterly review.

As a measure to enhance our oversight in these high risk areas, the revised waiver application process will include a more robust evaluation of the provider/supplier, including license verification, detailed background checks, fingerprinting, comprehensive site visits, ownership interest verification, and evaluation of past behavior in other public programs, such as Medicaid and CHIP, as applicable. The revised waiver application will also require the provider or supplier to submit a specific county-based enrollment justification based on access to care, the boundaries of which CMS would confirm and ultimately enforce, with the exception of providers and suppliers that had an enrollment application denied by their relevant MAC as a result of implementation of a moratorium. As detailed elsewhere in this document, once a provider or supplier is enrolled pursuant to a waiver, that provider or supplier would be subjected to augmented investigation and monitoring in order to confirm continued compliance with Medicare requirements.

Throughout the course of the Demonstration, CMS will work with all of its partners to identify fraudulent providers and suppliers and will take administrative action to remove such providers and suppliers from the Medicare program. Additionally, within 30 to 60 days of a provider's or supplier's enrollment pursuant to a waiver, CMS will perform proactive monitoring and oversight of such provider or supplier, including proactive examination of claims data and investigation of billing anomalies. Further, CMS will prioritize Demonstration-related investigations and will make referrals to appropriate law enforcement partners, including Department of Justice (DOJ), Office of Inspector General (OIG), and state law enforcement agencies, for prosecution of fraud.

In addition to the Medicare program, this revised Demonstration will also apply to Medicaid and CHIP. The states will administer the Medicaid and CHIP Demonstration and will independently evaluate access to care. All Demonstration-related processes, including but not limited to heightened screening, enrollment, denials, and appeals, will be operationalized by the state Medicaid and CHIP agencies in accordance with federal and state regulations and guidance. The states will make recommendations to CMS regarding when a provider should be enrolled based on access to care issues, and must wait for CMS concurrence prior to enrolling a provider under the Demonstration. CMS will evaluate all recommendations within 30 days of receipt, and will advise the state as to whether or not CMS concurs with the recommendation to move forward in the enrollment process. CMS encourages states to use their discretion when determining whether to approve a waiver for any provider who had submitted an application prior to implementation of a moratorium that was denied as a result of implementation of such moratorium. States that choose to apply waivers in this manner should do so consistently for all providers who were denied as a result of the moratorium. States are not required to seek CMS approval of their waiver process. Additionally, states will not be required to seek approval from CMS to deny a waiver application. If a provider receives an enrollment waiver from Medicare, that provider will be eligible to enroll in Medicaid or CHIP without further review by the states. However, if a provider receives a Medicaid or CHIP waiver, the provider must separately apply for a waiver with Medicare.

As provided in 42 CFR 455.470, a state Medicaid agency is not required to impose a moratorium if the state Medicaid agency determines that imposition of a temporary moratorium would adversely affect beneficiaries' access to medical assistance and notifies the Secretary in writing of this determination.

The Demonstration commenced on July 29, 2016 and was to continue for a period of 3 years, or until the moratoria are lifted, whichever occurs first. However, CMS is extending the Demonstration an additional 2 years, for a total of 5 years, through July 28, 2021. Since the commencement of the demonstration, CMS thus far has collected limited data on which to evaluate the effectiveness of the demonstration. We expect that the extension to 5 years will allow more providers and suppliers to enroll under the Demonstration, thus providing CMS with more data on which to evaluate the Demonstration's effectiveness. Should CMS choose to lift all of the moratoria prior to July 28, 2021, we will not continue the Demonstration.

CMS will utilize the Demonstration as an opportunity to observe the statewide moratoria and heightened application review effectiveness over the course of 5 years, or until the moratoria are lifted, whichever occurs first. Should the Demonstration prove to be a useful tool, we hope to consider continuing and expanding the most successful aspects outside the context of a demonstration. The enhanced oversight exercised as part of the Demonstration will also allow us to identify trends and vulnerabilities in the moratoria states and make program adjustments to accommodate fraud schemes as they transform over time.

Concurrent with the Demonstration, CMS will continue to assess and improve current regulatory requirements for HHAs, ambulance suppliers, and other provider/supplier types that pose a high risk to the Medicare program. In the absence of additional rulemaking, any enrollments that occur as part of the Demonstration, assuming that the enrolled providers or suppliers are in compliance with all Medicare requirements, will convert to standard enrollments without geographical billing restrictions at the end of the Demonstration.

CMS recognizes that a moratorium is a temporary tool that we have implemented in order to conduct targeted investigations and related enforcement actions in high saturation, high risk areas. As required under our regulations, we will re-evaluate the continued need for the moratoria every 6 months and may lift the moratoria at any time if the Secretary determines that the moratoria are no longer needed, or the circumstances warranting the imposition of moratoria have abated or CMS has implemented program safeguards to address the program vulnerability, among other rationale.7 We will monitor the moratoria areas to determine if it is appropriate to lift all moratoria (and thus end the Demonstration), including the following criteria:

• Beneficiary access to care.

• Provider or supplier growth rates.

• The number of providers or suppliers per beneficiary.

• Provider/supplier saturation.

• Churn rate—the rate of providers/suppliers entering and exiting the program.

• Claims paid per beneficiary.

• Enforcement actions, including: Revocations, denials, investigations, and referrals to law enforcement and other related activities.

Under the Paperwork Reduction Act of 1995 (PRA), we are required to publish a 60-day notice in the Federal Register and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget (OMB) for review and approval.

To fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the PRA requires that we solicit comment on the following issues:

• The need for the information collection and its usefulness in carrying out the proper functions of our agency.

• The accuracy of our burden estimates.

• The quality, utility, and clarity of the information to be collected.

• Our effort to minimize the information collection burden on the affected public, including the use of automated collection techniques.

We are soliciting public comment on each of the section 3506(c)(2)(A)-required issues for the following information collection requirements (ICRs). This is covered under OMB control number 0938-1313.

The provider and supplier burden associated with completion of the waiver form is estimated at 6 hours per form. This will include the following time burden per form:

• 2 hours for completion of fingerprint-based criminal background check (FCBC).

• 2 hours for completion of access to care assessment.

• 1.5 hours for completion of form.

• 0.5 hours for completion of other miscellaneous administrative activities.

CMS estimates 30 new applicants requesting waivers for a total of 180 burden hours annually. Additionally, the provider or supplier will have the additional burden associated with completion of the CMS-855, which is required for enrollment into Medicare. This burden is covered under OMB control number 0938-0685.

This waiver form will be completed by providers and suppliers seeking a waiver to enroll in a moratorium area. The cost burden is estimated at $27.60 ($13.80 base pay) an hour for completion of access to care analysis and miscellaneous administrative activities, totaling $69.00 per application, equaling $2,070.00 annually. The cost burden is estimated at $188.50 ($94.25 base pay) an hour for the owner to obtain fingerprints and complete the waiver form totaling $659.75 per application, equaling $19,792.5 annually. Estimated annual burden for 30 newly enrolling applicants totals $21,862.5. To derive average costs, we used data from the Bureau of Labor Statistics' May 2017 National Occupational Employment and Wage Estimates (http://www.bls.gov/oes/current/oes_nat.htm#31-0000 for healthcare support occupations and http://www.bls.gov/oes/current/oes111011.htm for chief executives.) Hourly wage rates include the costs of fringe benefits (calculated at 100 percent of salary) and the adjusted hourly wage.

We have submitted a copy of the Federal Register document to OMB for its review of the document's information collection and recordkeeping requirements. These requirements are not effective until they have been approved by the OMB.

To obtain copies of the supporting statement and any related forms for the proposed collections discussed previously, please visit CMS' website at https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/index.html, or call the Reports Clearance Office at 410-786-1326.

We invite public comments on these potential information collection requirements. If you wish to comment, please submit your comments electronically as specified in the ADDRESSES section of this document and identify the document's filecode (CMS-6073-N2) the ICR's CFR citation, CMS ID number, and OMB control number.

Under section 402(b) of Public Law 90-248, (42 U.S.C. 1395b-1(b)), certain requirements of the Act and implementing regulations would be waived to the extent necessary to implement this demonstration.

Specifically, the authorities CMS is seeking to waive under this revised Demonstration include the following:

• Waiver of section 1866(j)(7)(C) of the Act, which was added by section 17004 of the 21st Century Cures Act. Effective for items and services furnished on or after October 1, 2017, the provision prohibits payment for items and services furnished within a temporary moratorium area by providers or suppliers who enroll after the effective date of such moratorium and who are within a category of providers and suppliers subject to such moratorium. We will allow payment to be made to providers and suppliers who enroll under the Demonstration and furnish items and services within a moratorium area, including those who were approved prior to this revised Demonstration.

• Waiver of § 424.570(a)(1)(iv) and (c). This regulation establishes moratoria rules for Medicare, Medicaid, and CHIP. Specifically, we will: (1) Exempt providers and suppliers from the moratoria if they submitted an application to their MAC prior to July 29, 2016 that was denied as a result of implementation of statewide moratoria; and (2) exempt providers and suppliers from any future moratoria if they have submitted an application to their MAC prior to the implementation date of that moratoria, without regard to provider type or geographic location. This waiver will be applicable to any moratoria that are implemented subsequent to, and for the duration of, this demonstration.

• Waiver of § 424.520(a) and (d), which establishes specific effective date requirements for certified providers and ambulance suppliers, respectively. This waiver will allow CMS to establish the effective date for a provider or supplier depending on whether access to care issues exist in the service area.

The authorities CMS previously waived under the original Demonstration, which we will continue to waive under the revised Demonstration, include the following:

• Waiver of §§ 424.518(c) and (d) and 455.434(a), which describe the fingerprinting rules for enrollment in Medicare, Medicaid and CHIP.8 This waiver involves expanding the existing regulatory authority in two ways: (1) To include ambulance suppliers requesting a waiver under the Demonstration within the categories of providers and suppliers to which the FCBC requirements apply; and (2) to include managing employees within the associated individuals subject to an FCBC when the provider or supplier seeks to enroll pursuant to a waiver under the Demonstration. Additionally, CMS intends to modify the authority that currently requires denial or revocation of providers or suppliers who fail to submit fingerprints, to instead specify that a waiver application will be rejected if the provider or supplier fails to submit the required fingerprints within 30 days.

• Waiver of 1866(j)(3)(B) of the Act, which requires program instruction or regulatory interpretation in order to implement section 1866(j)(3) of the Act, Provisional Period of Enhanced Oversight for New Providers of Services and Suppliers. CMS intends to implement the requirements of section 1866(j)(3) of the Act for purposes of this Demonstration and in the absence of regulation or other instruction in order to allow for a 1-year period of enhanced oversight of newly enrolling providers and suppliers under this Demonstration.

• Waiver of section 1866(j)(8) of the Act and the regulations at 42 CFR 424.545, 42 CFR part 498, subparts D and E, and 42 CFR 405.803(b), which allow a provider or supplier the right to request a hearing with an administrative law judge and the Department Appeals Board in the case of denial. Under this Demonstration, denials of applications for a waiver may be appealed at a CMS level only, and any applicant to the Demonstration will waive their right to further appeal.

• Waiver of 1866(j)(7) of the Act and the regulations at 42 CFR 424.570 and 455.470, which specify that the moratoria must be implemented at a provider or supplier type level, in order to allow a case-by-case waiver process to moratoria.

This is a summary of the Commission's Order, GN Docket No. 18-122, FCC 18-91, adopted on July 12, 2018, and released on July 13, 2018. The complete text of this document is available for public inspection and copying from 8 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The complete text is available on the Commission's website at http://wireless.fcc.gov, or by using the search function on the ECFS web page at http://www.fcc.gov/cgb/ecfs/. Alternative formats are available to persons with disabilities by sending an email to [email protected] or by calling the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).

The Commission, as part of its continuing effort to reduce paperwork burdens, intends to invite 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, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission will also seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

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

1. In this proceeding, the Commission is pursuing the joint goals of making spectrum available for new wireless uses while balancing desired speed to the market, efficiency of use, and effectively accommodating incumbent Fixed Satellite Service (FSS) and Fixed Service (FS) operations in the band. To gain a clearer understanding of the operations of current users in the 3.7-4.2 GHz band, the Commission is requiring certifications and collecting information on current FSS uses.

2. In the 2017 Mid-Band Notice of Inquiry (Mid-Band NOI), the Commission began an evaluation of whether spectrum in-between 3.7 GHz and 24 GHz can be made available for flexible use—particularly for wireless broadband services.1

3. The record in response to the Mid-Band NOI reflects that the Commission's information regarding current use of the band is inaccurate and/or incomplete. Therefore, the Commission is collecting additional information to make an informed decision about the proposals discussed herein—including the scope of future FSS, FS, and potential mobile use of the band and the appropriate transition methodology. It is important that the Commission obtain a clear understanding of the operations of current users in the band. This user data will be vital to our consideration of how much spectrum could be made available, how incumbent operators could be protected, accommodated, or relocated, and the overall structure of the band going forward.

4. In furtherance of the Commission's goals of fostering more efficient and intensive use of the 3.7-4.2 GHz band as expeditiously as possible while protecting existing operations in the band from harmful interference, by this Order the Commission adopts the certification and information collection requirements described in paragraphs 5-12 below. The Commission and the public will use the information collected to evaluate future use of the 3.7-4.2 GHz band. The information may also be used in defining incumbent earth stations to be protected from harmful interference consistent with parameters that may be developed in this proceeding. FSS operators may request confidential treatment of some or all of the information that they submit, consistent with the Commission's rules.2

5. Earth Station Data.— In order to evaluate the potential for a flexible use allocation in the 3.7-4.2 GHz band and determine how much spectrum could be made available, the Commission must evaluate the existing earth station usage of C-band satellites—including location and technical data that may be necessary to mitigate harmful interference. This information will assist the Commission in determining whether earth stations will need to be protected as well as how they may need to be protected depending on how the Commission moves forward with increasing the intensity of terrestrial use of the band. It will also allow the Commission to evaluate the feasibility of the various transition proposals.

6. The Commission directs operators of FSS earth stations, including temporary fixed or transportable earth stations, in the 3.7-4.2 GHz band that are licensed or registered (authorized) in International Bureau Filing System (IBFS) to certify the accuracy of all information reflected on their license or registration in IBFS. Given that they recently will have filed for new or modified licenses or registrations in IBFS, the Commission exempts from this Order those operators that file between April 19, 2018, and October 17, 2018, using the processes outlined in the Earth Station Filing Window Public Notices, including those that filed without coordination.3 This certification is necessary to inform the Commission's decisions in this proceeding. Although the Commission does not require FSS earth station operators to provide additional information on their existing operations at this time, the Commission intends to seek comment on protecting only those earth stations licensed or registered in IBFS for which the licensee/registrant timely files the certification required in this Order (to the extent they registered before April 19, 2018). The Commission also intends to seek comment on whether further earth station information should be collected in the future to facilitate more efficient use of the 3.7-4.2 GHz band.4

7. Further, to account for the variable nature of temporary fixed or transportable earth stations,5 the Commission orders all such operations to submit additional information about their operations regardless of when they were licensed or registered. This information shall include:

• Earth station call sign (or IBFS file number if a registration filed between April 19, 2018 and October 17, 2018, is pending);

• geographic location where the equipment is typically stored;

• the area within which the equipment is typically used;

• how often the equipment is used and the duration of such use (i.e., please provide examples of typical deployments, e.g., operation x days a week at sports arenas within a radius of y miles of its home base);

• number of transponders typically used in the 3.7-4.2 GHz band and extent of use on both the uplink and downlink; and

• licensee/registrant and point of contact information.

8. These data are needed to better understand the use of the band by temporary fixed or transportable operations. IBFS does not reflect the variations in the locations or intermittent use of such operations. This presents unique challenges for establishing a means of protecting temporary fixed or transportable operations against harmful interference.

9. The Commission directs the Wireless Telecommunications Bureau, International Bureau, and Office of Engineering and Technology (the Bureaus) to issue a Public Notice that will: (1) Provide detailed instructions for earth station licensees or registrants to file certifications regarding existing information in IBFS; (2) establish a window for initial filings of certifications; and (3) outline the details for temporary fixed or transportable earth stations to submit the information requested above. Because the Commission may use these data to inform its deliberations regarding the future use of the 3.7-4.2 GHz band, including possible interference avoidance coordination or relocation of facilities, the Commission encourages FSS earth station operators to update their information in the event of a change in any of the operational parameters.

10. Space Station Data.—In order to evaluate the potential for a flexible use allocation in the 3.7-4.2 GHz band and to determine how much spectrum could be made available, it is also necessary to evaluate the existing FSS downlink capacity of C-band satellites. This information will assist the Commission in determining whether there is sufficient capacity in the upper portion of the C-band to accommodate customers vacating transponders from the lower portion of the C-band. It will also allow the Commission to evaluate the feasibility of various transition proposals.

11. Accordingly, operators with existing FSS space station licenses or grants of United States market access in the 3.7-4.2 GHz band shall provide the following information:

• Satellite call sign, name, and orbital location;

• expected end-of-life for satellite;

• the approximate dates that any additional C-band satellites with a currently pending application in IBFS are planned for launch to serve the United States market (note whether this satellite is a replacement);

• whether any additional C-band satellites that do not have a currently pending application in IBFS are planned for launch to serve the United States market and the approximate date of such launch (note whether this satellite is a replacement);

• for each transponder operating in the 3.7-4.2 GHz range that is operational and legally authorized to serve customers in the United States, for the most recent month,6 provide the following:

• the frequency range of transponder and transponder number; 7

• the capacity in terms of the number of megahertz on each transponder that are currently under contract (also provide this data for one month in 2016); 8

• For each day in the most recent month, please provide the percentage of each transponder's capacity (megahertz) utilized and the maximum capacity utilized on that day. (Parties should use the most recent month of data and provide the date range at which the data was collected; they may also supplement the data with historical trend data over recent months up to three years if they feel it displays utilization variances);

• the center frequency and bandwidth of the Telemetry Tracking and Command beam(s); and

• the call sign and geographic location (using NAD83 coordinates) of each TT&C receive site.

12. The Commission will seek approval from the Office of Management and Budget (OMB) before the information collection becomes effective, and following OMB approval, the Commission will publish notice of the effective date of the information collection and filing deadline in the Federal Register. The Commission also directs the Bureaus to consider whether additional information should be collected from either FSS earth station operators or satellite licensees and to seek notice and comment regarding the need to initiate a second information collection if such additional information is necessary to supplement the information submitted in this proceeding.

13. It is further ordered that pursuant to section 4(i) of the Communications Act of 1934, as amended, that this Order is adopted effective upon publication in the Federal Register. This Order contains information collection requirements subject to the Paperwork Reduction Act of 1995 that are not effective until approved by the Office of Management and Budget.

14. It is further ordered that the notice of inquiry, GN Docket No. 17-183, Expanding Flexible Use in the Mid-Band Spectrum Between 3.7-24 GHz, adopted on August 3, 2017, is terminated as to the 3.7-4.2 GHz band.

This is a summary of the Commission's Report and Order in WC Docket Nos. 17-244 and 13-97; FCC 18-95, adopted July 12, 2018 and released July 13, 2018. The full text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington DC 20554. It is available on the Commission's website at https://docs.fcc.gov/public/attachments/FCC-18-95A1.pdf.

1. The systems we use to make and route telephone calls are changing. With this Report and Order (Order), we set the stage for more efficient use of the telecommunications network and pave the way for nationwide number portability (NNP). We eliminate rules that were intended for a market that was divided along more static, segmented categories of telecommunications providers. Those rules are far less applicable to today's more integrated providers and pricing plans, and the North American Numbering Council has identified them as barriers to the achievement of NNP.

2. We forbear from the interexchange dialing parity requirements for competitive local exchange carriers (LECs), creating a more level playing field with the incumbent LECs who received forbearance from the interexchange dialing parity obligations in 2015, and ensuring that both categories of LECs will be able to route calls more efficiently in a future NNP environment. We also ease the requirement that the second-to-last carrier handling a call request query the local number portability database, allowing any carriers earlier in the chain to make the query if they so choose. This greater flexibility allows carriers in the call path to determine who is best placed to bear the costs of performing the query, and also ensures that any carrier—including originating carriers—can perform the query, a necessary step in certain NNP solutions.

3. These changes will help set the stage for further progress towards implementation of number portability on a nationwide basis. The North American Numbering Council (a federal advisory committee to the Commission that provides guidance and recommendations on numbering policy and operations) recently approved a report issued by its Nationwide Number Portability Issues Working Group, which builds upon and refines earlier industry and NANC work, and recommends further inquiry and analysis on several specific questions to further explore NNP. We anticipate that the NANC will continue to assist the Commission in investigating these options and considerations.

4. Interexchange dialing parity requirements. Dialing parity provisions were originally intended to ensure that incumbent LECs provided the same access to stand-alone long-distance service providers as they did to their own or their affiliates' long-distance offerings. These requirements grew out of the equal access requirements included in the 1982 Modification of Final Judgment in the federal antitrust case against AT&T, which imposed these requirements on the Bell Operating Companies (BOCs). The Telecommunications Act of 1996 (1996 Act) incorporated the MFJ's equal access requirements for these former BOCs into the Communications Act (the Act) via section 251(g). The 1996 Act also created more specific, affirmative equal access requirements in § 251(b) that applied to all LECs.

5. In the 2015 USTelecom Forbearance Order, the Commission forbore from the “application to incumbent LECs of all remaining equal access and dialing parity requirements for interexchange services, including those under section 251(g) and section 251(b)(3) of the Act.” As we observed in the NPRM, this forbearance was well supported by the lessening need for the rules, as stand-alone long-distance services had declined, all-distance calling was growing more prevalent, and consumers were being offered yet more choices in voice service, including increasing growth in interconnected Voice over Internet Protocol (VoIP) services. The 2015 USTelecom Forbearance Order left a limited number of toll dialing parity requirements in place, however, primarily for competitive LECs, and for certain customers of incumbent LECs who were then already presubscribed to third-party long-distance services at the time of the Order.

6. N-1 Requirement. The N-1 query requirement mandates that the carrier immediately preceding the terminating carrier (the N-1 carrier) be responsible for ensuring that the local number portability database—the Number Portability Administration Center/Service Management System (NPAC/SMS)—is queried. This requirement is specified in the North American Numbering Council's Architecture and Administrative Plan for Local Number Portability, which is in turn incorporated by reference in § 52.26(a) of the Commission's rules. (We note that § 52.26(c) of our rules provides information on how to obtain a copy of the NANC Architecture Report and Working Group Report. This Order updates that information. This simple revision, reflecting the new locations of the reports, does not require notice and comment.) The rule was put in place in part to ensure that the costs of querying the database could be split between originating and interexchange carriers, while ensuring that calls would not be left unqueried. The rule also allowed local number portability to proceed without requiring all carriers across the country to implement it simultaneously.

7. NNP Notice of Proposed Rulemaking (NPRM). In 2017, the Commission released the NNP NPRM (82 FR 55970) seeking comment on a proposal to forbear from the remaining interexchange dialing parity requirements of the Act, as well as a proposal to eliminate the rules implementing those requirements. We also sought comment on whether we should extend forbearance from the dialing parity requirements to customers with pre-existing stand-alone long-distance carriers, whose plans had been grandfathered in the 2015 USTelecom Forbearance Order. We also sought comment on a proposal to eliminate the N-1 requirement for call routing. The NNP NPRM generated significant interest from numbering database administrators, trade associations, and service providers, representing the views of incumbent and competitive LECs, interexchange carriers, and carriers who provide both services. We received 21 comments and 11 reply comments in the record in response.

8. In this Order, we expand the scope of the forbearance issued in the 2015 USTelecom Forbearance Order. While that earlier order forbore from applying the dialing parity requirements of the Act to incumbent LECs, the requirements remained in place for competitive LECs, and also for a limited number of customers who were still presubscribed to stand-alone long-distance plans. This Order removes that disparity by applying the forbearance to these formerly excluded categories. We also ease the N-1 query requirement to ensure that it does not prevent originating carriers, or other carriers earlier than the N-1 carrier in a call flow, from performing the number portability query if they wish. Originating carriers, or parties they contract with, should be able to perform these queries, but if they do not, the responsibility for the query continues to fall upon the N-1 carrier. This change to our rules will allow carriers to have the routing flexibility necessary for certain types of NNP.

9. As explained in the NNP NPRM, our legal authority stems directly from section 251(e)(1) of the Communications Act, which gives the Commission “exclusive jurisdiction over those portions of the North American Numbering Plan that pertain to the United States” and provides that numbers must be made “available on an equitable basis.” The rule changes addressed in this Order fall squarely within this jurisdiction. In addition, section 10 of the Act states that the Commission shall forbear from applying any regulation or provision of the Act if it determines that: (1) Enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory; (2) enforcement of such regulation or provision is not necessary for the protection of consumers; and (3) forbearance from applying such provision or regulation is consistent with the public interest. As discussed below, our forbearance from the remaining toll interexchange dialing parity requirements meets these criteria.

10. Forbearance from Interexchange Dialing Parity Provisions for Competitive LECs. In the NNP NPRM, we noted that the same rationales of the 2015 USTelecom Forbearance Order seemed to apply to the toll interexchange dialing parity requirements that remained in place for competitive LECS. We sought comment on whether these mandates, located in section 251(b)(3), served any purpose. The overwhelming consensus in the record is that they do not. Wireline customers have more choices, and stand-alone long-distance service is indeed less prevalent and significant than it was in decades past. Customers for wireline voice services have more choices than they did in the past, including interconnected VoIP from both facilities-based and over-the-top providers. For example, the most recent Voice Telephone Services Report shows that interconnected VoIP subscriptions increased at a compound annual growth rate of 10 percent, while retail switched access lines declined at 12 percent per year from 2013 to 2016. This represents a continuing trend, with reports showing interconnected VoIP subscriptions increasing at a compound annual growth rate of 15 percent and retail switched access declining at 10 percent a year from December 2010 to December 2014. These findings, indicate increased options for consumers besides switched access, regardless of whether they may currently be served by a competitive or an incumbent LEC. The NNP NPRM sought comment on whether forbearance from these provisions would affect competitive LECs or their customers. No comments in the record indicate that the remaining dialing parity provisions for competitive LECs aid competition, ensure just and reasonable practices, or prevent unjust or unreasonable discrimination. No comments in the record indicate customer complaints stemming from the 2015 forbearance from these requirements for incumbent LECs, and commenters likewise did not disagree with our finding that extending the forbearance to competitive LECs would produce similarly benign results.

11. We therefore find that enforcement of the section 251(b)(3) dialing parity requirements for competitive LECs is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with a telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory. Nor is their enforcement necessary for the protection of consumers, since consumers can leave their competitive LEC for non-switched access services if that LEC makes choosing a separate long-distance provider difficult. As described in the 2015 USTelecom Forbearance Order, wireline customers today have more choices than they did in 1982 or 1996, including interconnected VoIP services. Similarly, demand for stand-alone long-distance has continued to decline for both mass-market and business customers.

12. Extending to competitive LECs the forbearance granted in 2015 to incumbent LECs also promotes fairness in the application and enforcement of these requirements that would otherwise be lacking. Furthermore, forbearing from a requirement that no longer serves its purpose promotes the public interest by reducing the costs of regulatory compliance. We therefore find that forbearing from the dialing parity requirements of section 251(b)(3) serves the public interest.

13. USTelecom notes that extending this forbearance to competitive LECs is not sufficient to achieve NNP. NNP is naturally a multi-stage process requiring a series of changes to various aspects of policy and possible other rules. We recognize this, but as many commenters have pointed out, the stage for NNP can be set incrementally, while forbearing from unnecessary requirements in the interim. As noted in the NNP NPRM, forbearing from these requirements could allow for more efficient routing than would otherwise be possible under a number of NNP models. USTelecom itself notes eliminating an unnecessary requirement may increase regulatory flexibility and make a wider range of solutions possible in the future.

14. Grandfathered dialing parity requirements. The NNP NPRM also sought comment on eliminating the dialing parity requirements that had been “grandfathered” after the adoption of the 2015 USTelecom Forbearance Order. We find that the number of customers with grandfathered stand-alone long-distance plans continues to decline, and thus extending forbearance from the dialing parity requirements to these plans, as well will further encourage NNP. In the interest of maintaining a level playing field, forbearance applies to all customers. Thus, neither incumbent nor competitive LECs are required to abide by the toll dialing parity requirements for customers who have preexisting stand-alone long-distance plans.

15. WTA and ITTA both note that the same factors that spurred forbearance from the dialing parity requirements in the 2015 USTelecom Forbearance Order apply even more prominently now: The stand-alone long-distance market remains small, and the number of preexisting plans among incumbent LEC customers will only have fallen since 2015. There is no evidence in the record to indicate that the trends observed in the 2015 USTelecom Forbearance Order have slowed or reversed course.

16. Although GCI and Aureon argue that the Commission should maintain the exemption from forbearance for preexisting plans in more rural areas, we find the decline in the total number of these plans and our need to modernize our systems to allow for NNP are compelling reasons to extend forbearance. We recognize that there are a limited number of interexchange carriers in parts of Alaska and Iowa and, in certain cases, the incumbent LEC remains the only option for voice service. We must, however, take these first steps to eliminate outdated and rarely-used regulations if we are to realize the consumer and competitive benefits of NNP.

17. This Order also does not affect the applicability of section 258(a) or our slamming rules, as GCI argues. Section 258(a) prohibits carriers from changing a subscriber's choice of exchange service without going through the proper verification procedures, and also explicitly permits state regulators to enforce anti-slamming provisions. Those provisions continue to operate to prevent incumbent LECs from changing subscribers' selections of other providers without following the necessary verification procedures. While the 2015 USTelecom Forbearance Order expressed concern that forbearance from equal access requirements might allow increased pressure from incumbent LECs, it did not presume to forbear from section 258, and we do not so presume now. Those anti-slamming provisions continue to operate as before, and will continue to be enforced.

18. Eliminating toll dialing parity rules. The NNP NPRM also sought comment on eliminating the Commission's toll dialing parity rules promulgated under section 251(b)(3). No commenters found any reason for these rules to stay in place while we forbear from the interexchange dialing parity requirements of section 251(b)(3). We agree that in light of our decision to forbear from section 251(b)(3), there is no sound justification to retain these rules. Therefore, to eliminate any possible confusion and to streamline the Commission's rules, we therefore eliminate those provisions.

19. The NNP NPRM proposed eliminating the N-1 requirement, since it may lead to unnecessary and inefficient routing of calls in an NNP environment. However, as anticipated when it was adopted, and as noted in the record, standardization around having the N-1 carrier perform the number portability database query has allowed for more uniformity and prevented confusion. In the interest of providing flexibility for anticipated changes to the number porting system, while preserving the certainty and stability of existing systems, we ease, but do not eliminate, the rule.

20. We noted in the NNP NPRM that preventing queries by the originating carrier could lead to inefficiencies, and that some reports had indicated that eliminating the N-1 rule would be beneficial. However, we are persuaded by the record that carriers will benefit from the certainty of having a default rule that clearly names a responsible party in the absence of an agreement otherwise. We therefore amend our rules to allow upstream carriers to perform number portability database queries, but require the N-1 carriers to perform the queries if the upstream carriers have not.

21. The NANC Architecture Report states that an N-1 carrier “is responsible for ensuring queries are performed on an N-1 basis.” However, as we have noted, requiring the N-1 carrier to perform the query can lead to inefficiencies in call routing in an NNP environment. Neustar, Incompas, the Voice on the Net Coalition (VON Coalition), and Charter all agree that the N-1 requirement is no longer necessary and urge the Commission to eliminate it to prevent the possible routing complications that could come with NNP. Neustar further points out that the N-1 requirement actually provides little distinction for most calls, since few consumers have an interexchange carrier that is different from their originating (local) provider. In those situations, the N-1 carrier is the originating carrier, meaning that the N-1 requirement is unnecessary. NCTA and Comcast suggest waiting to eliminate the rule until after transition to the new Number Portability Administration Center has occurred, a process that is now complete.

22. Many other commenters urge more caution, however, noting that elimination of the rule without some specification about who must perform the query could lead to confusion and possible call completion issues. Others disagree. In light of the record, we believe it best to chart a middle course: We eliminate any requirement that would prevent an upstream carrier from voluntarily making queries rather than the N-1 carrier. In other words, we revise the N-1 rule as a default in the absence of other agreements. This revision accords with CenturyLink and iconectiv's interpretation of the NANC Architecture Report that the current rule for N-1 queries operates as a default rule. Although we disagree with those commenters and find a change is necessary, the result gives carriers the flexibility to efficiently route calls in an NNP environment.

23. Retaining the N-1 rule as a backstop also addresses commenters' concerns that eliminating the N-1 rule would effectively mandate originating carriers to perform queries, raising their costs due to increased querying and potential upgrades necessary to handle this increased volume. Moreover, we permit, but do not require, originating carriers to make the database query. Should originating carriers decline to perform the number portability database query for interexchange calls, the rule will continue to require interexchange carriers to bear the cost of the query. Furthermore, the N-1 carrier will have fulfilled its responsibility to ensure the query is performed if any carrier preceding it in the call flow has already performed the query. While we anticipate that in NNP scenarios this will most likely be the originating carrier, the rule would not prevent other parties from performing the query as well. Therefore, we adjust the N-1 rule, eliminating § 52.26(a)'s incorporation by reference of the NANC Architecture Report's version of the rule and amending the rule to allow queries by carriers other than the N-1 carrier.

24. Final Regulatory Flexibility Act Analysis. Pursuant to the Regulatory Flexibility Act of 1980, as amended, the Commission's Final Regulatory Flexibility Analysis for the Order is included in part V.

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

26. Congressional Review Act. The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).

27. Materials in Accessible Formats. 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 and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

28. Additional Information. For additional information on this proceeding, contact Sherwin Siy, FCC Wireline Competition Bureau, Competition Policy Division, (202) 418-2783, [email protected].

29. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NNP NPRM. The Commission sought written public comment on the proposals in the NPRM, including comments on the IFRA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

30. In this Order, we modernize our systems by setting the stage for more efficient use of the telecommunications network, and pave the way for nationwide number portability (NNP). We eliminate rules that were intended for a market that was divided along more static, segmented categories of telecommunications providers. Those rules are far less applicable to today's more integrated providers and pricing plans and may lead to complications that stand in the way of achieving NNP.

31. We forbear from the interexchange dialing parity requirements for competitive local exchange carriers (LECs), creating a more level playing field with the incumbent LECs who received forbearance from their interexchange dialing parity obligations through the 2015 USTelecom Forbearance Order. Specifically, we revise § 51.205 and remove §§ 51.209, 51.213 and 51.215. We also amend § 52.26(a) to allow originating carriers to perform number portability database queries in the Number Portability Administration Center/Service Management System (NPAC/SMS), but require the N-1 carriers to perform the queries if the originating carriers have not. This allows greater flexibility for different carriers to determine who is best placed to bear the cost of performing the query.

32. The Commission did not receive comments specifically addressing the rules and policies proposed in the IRFA.

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

34. The RFA directs agencies to provide a description and, where feasible, an estimate of the number of small entities that may be affected by the final rules adopted pursuant to the NNP NPRM. 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. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” 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.

35. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe 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.

36. 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 Aug 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).

37. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicates that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37,132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category shows that the majority of these governments have populations of less than 50,000. Based on this data we estimate that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”

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

39. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable NAICS Code category is for Wired Telecommunications Carriers, as defined in paragraph 11 of this FRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. The Commission therefore estimates that most providers of local exchange carrier service are small entities that may be affected by the rules adopted.

40. Incumbent Local Exchange Carriers (incumbent LECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers as defined in paragraph 11 of this FRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 3,117 firms operated in that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the rules and policies adopted. One thousand three hundred and seven (1,307) Incumbent Local Exchange Carriers reported that they were incumbent local exchange service providers. Of this total, an estimated 1,006 have 1,500 or fewer employees.

41. Competitive Local Exchange Carriers (competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS Code category is Wired Telecommunications Carriers, as defined in paragraph 11 of this FRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on this data, the Commission concludes that the majority of Competitive LECs, CAPs, Shared-Tenant Service Providers, and Other Local Service Providers are small entities. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. In addition, 72 carriers have reported that they are Other Local Service Providers. Of this total, 70 have 1,500 or fewer employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers are small entities that may be affected by the adopted rules.

42. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a definition for Interexchange Carriers. The closest NAICS Code category is Wired Telecommunications Carriers as defined in paragraph 11 of this FRFA. The applicable size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. According to Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of this total, an estimated 317 have 1,500 or fewer employees and 42 have more than 1,500 employees. Consequently, the Commission estimates that the majority of interexchange service providers are small entities that may be affected by rules adopted.

43. Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 show that 1,341 firms provided resale services during that year. Of that number, all operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of these prepaid calling card providers can be considered small entities.

44. Toll Resellers. The Commission has not developed a definition for Toll Resellers. The closest NAICS Code Category is Telecommunications Resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 show that 1,341 firms provided resale services during that year. Of that number, 1,341 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of these resellers can be considered small entities. According to Commission data, 881 carriers have reported that they are engaged in the provision of toll resale services. Of this total, an estimated 857 have 1,500 or fewer employees. Consequently, the Commission estimates that the majority of toll resellers are small entities.

45. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable NAICS Code category is for Wired Telecommunications Carriers as defined above. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees. 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 category and the associated small business size standard, the majority of Other Toll Carriers can be considered small. According to internally developed Commission data, 284 companies reported that their primary telecommunications service activity was the provision of other toll carriage. Of these, an estimated 279 have 1,500 or fewer employees. Consequently, the Commission estimates that most Other Toll Carriers are small entities that may be affected by the rules.

46. Prepaid Calling Card Providers. The SBA has developed a definition for small businesses within the category of Telecommunications Resellers. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the Commission's Form 499 Filer Database, 500 companies reported that they were engaged in the provision of prepaid calling cards. The Commission does not have data regarding how many of these 500 companies have 1,500 or fewer employees. Consequently, the Commission estimates that there are 500 or fewer prepaid calling card providers that may be affected by the rules.

47. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves, 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, Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) services. Of this total, an estimated 261 have 1,500 or fewer employees. Consequently, the Commission estimates that approximately half of these firms can be considered small. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

48. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these definitions.

49. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted, the SBA has developed a small business size standard for Wireless Telecommunications Carriers (except Satellite). Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Commission data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Therefore, a little less than one third of these entities can be considered small.

50. Cable and Other Subscription Programming. This industry comprises establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. The broadcast programming is typically narrowcast in nature (e.g. limited format, such as news, sports, education, or youth-oriented). These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers. The SBA has established a size standard for this industry stating that a business in this industry is small if it has 1,500 or fewer employees. The 2012 Economic Census indicates that 367 firms were operational for that entire year. Of this total, 357 operated with less than 1,000 employees. Accordingly we conclude that a substantial majority of firms in this industry are small under the applicable SBA size standard.

51. Cable Companies and Systems (Rate Regulation). The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data indicate that there are currently 4,600 active cable systems in the United States. Of this total, all but nine cable operators nationwide are small under the 400,000-subscriber size standard. In addition, under the Commission's rate regulation rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Current Commission records show 4,600 cable systems nationwide. Of this total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 systems have 15,000 or more subscribers, based on the same records. Thus, under this standard as well, we estimate that most cable systems are small entities.

52. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000 are approximately 52,403,705 cable video subscribers in the United States today. Accordingly, an operator serving fewer than 524,037 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but nine incumbent cable operators are small entities under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

53. All Other Telecommunications. “All Other Telecommunications” is defined as follows: “This U.S. industry 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, Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of those firms, a total of 1,400 had annual receipts less than $25 million. Consequently, we conclude that the majority of All Other Telecommunications firms can be considered small.

54. In this Order, we forbear from the toll interexchange dialing parity requirements for competitive LECs creating a more level playing field with the incumbent LECs who received forbearance from their interexchange dialing parity obligations through the 2015 USTelecom Forbearance Order. Specifically, we revise § 51.205 and remove §§ 51.209, 51.215 and 51.215. We also amend the § 52.26(a) requirement that the second-to-last carrier handling a call request is responsible for ensuring that the NPAC/SMS is queried, explaining that carriers earlier in the chain are allowed to make the query if they so choose. The revisions and elimination of rules remove impediments to NNP and do not impose any reporting, recordkeeping, or other compliance requirements.

55. The RFA requires an agency to describe any significant, specifically small business 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.”

56. The rules adopted herein remove dialing parity requirements for competitive LECs and allows the second-to-last carrier handling a call request to query the NPAC/SMS in a manner that allows more flexibility. As a result, the economic impact on affected carriers should be minimal because they impose no new requirements.

57. The Commission will send a copy of the Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Order and FRFA (or summaries thereof) will also be published in the Federal Register.

29. It is ordered, pursuant to sections 1, 4(i), 10, 201(b), and 251(e) of the Communication Act of 1934, as amended, 47 U.S.C. 151, 154(i), 160, 201(b), and 251(e) that this Report and Order is adopted.

30. It is further ordered that parts 51 and 52 of the Commission's rules, 47 CFR 51.205, 51.209, 51.213, 51.215, 52.26 are amended as set forth in the “Final Rules” section below, and that this amendment shall be effective 30 days after publication of this Report and Order in the Federal Register.

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

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 51 and 52 as follows:

This is a summary of the Commission's Order in WC Docket No. 10-90; DA 18-710, adopted on July 6, 2018 and released on July 6, 2018. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW, Washington, DC 20554 or at the following internet address: https://docs.fcc.gov/public/attachments/DA-18-710A1.pdf.

1. In the Order, the Bureaus and OET adopt requirements promoting greater accountability for certain recipients of CAF high-cost universal service support, including price cap carriers, rate-of-return carriers, RBE support recipients, Alaska Plan carriers, and CAF Phase II auction winners. Specifically, the Bureaus and OET establish a uniform framework for measuring the speed and latency performance for recipients of high-cost universal service support to serve fixed locations.

2. The Bureaus and OET also require providers to submit testing results as part of their annual compliance certification. Carriers that do not comply with the Bureaus and OET's speed and latency requirements will be subject to a reduction in support, commensurate with their level of noncompliance. In addition, providers will be subject to audit of all testing data. With this testing and compliance framework, the Bureaus and OET aim to maximize the benefits consumers reap from its high-cost universal service programs in even the hardest-to-reach areas, thus making the best use of its Universal Service Fund (USF) dollars and further closing the digital divide.

3. The Bureaus and OET provide high-cost support recipients that serve fixed locations three options to afford flexibility in choosing solutions to conduct required performance testing. Specifically, the Bureaus and OET conclude that eligible telecommunications carriers (ETCs) subject to fixed broadband performance obligations may conduct required testing by employing either (1) Measuring Broadband America (MBA) testing infrastructure (MBA testing), (2) existing network management systems and tools (off-the-shelf testing), or (3) provider-developed self-testing configurations (provider-developed self-testing or self-testing). Providers may employ any of these three options as long as the provider's implementation meets the testing requirements established in this Order. The Bureaus and OET define the three options as follows:

• First, a high-cost support recipient may use MBA testing by arranging with entities that manage and perform testing for the MBA program to implement performance testing, as required, for CAF. The provider is responsible for all costs required to implement testing of its network, including any costs associated with obtaining and maintaining Whiteboxes, to the extent that any additional Whiteboxes are employed as part of the MBA testing. The Bureaus and OET note that the MBA testing must occur in areas and for the locations supported by CAF, e.g., in CAF Phase II eligible areas for price cap carriers and for specific built-out locations for RBE, Alternative Connect America Cost Model (A-CAM), and legacy rate-of-return support recipients.

• Second, a high-cost support recipient may elect to use existing network management systems and tools, ping tests, and other commonly available performance measurement and network management tools—off-the-shelf testing—to implement performance testing.

• Third, a high-cost support recipient may implement a provider-developed self-testing configuration using software installed on residential gateways or in equipment attached to residential gateways to regularly initiate speed and latency tests. Providers that implement self-testing of their own networks may make network performance testing services available to other providers. The Bureaus and OET continue to consider whether the Universal Service Administrative Company (USAC) may have a role in offering server capacity at an internet Exchange Point in an FCC-designated metropolitan area (FCC-designated IXP), without any oversight role in conducting tests, to mitigate smaller providers' costs.

4. By providing these three options, the Bureaus and OET ensure that there is a cost-effective method for conducting testing for providers of different sizes and technological sophistication. The Bureaus and OET do not require that providers invest in and implement new internal systems; instead, providers may perform speed and latency tests with readily-available, off-the-shelf solutions or existing MBA infrastructure. On the other hand, some providers may prefer implementing their own self-testing systems, especially if such testing features are already built into CPE for the carrier's own network management purposes. These three options allow the provider to align required performance testing with their established network management systems and operations, making it as easy as possible for carriers to implement the required testing while establishing rigorous testing parameters and standards, based on real-world data.

5. The Bureaus and OET recognize that self-testing using provider-developed software may create opportunities for “manipulation or gaming” by CAF recipients. However, the Bureaus and OET believe that the testing and compliance requirements they adopt will minimize the possibility of such behavior. First, as explained in more detail in the following, the Bureaus and OET will be requiring providers to submit and certify testing data annually. Second, USAC will be verifying provider compliance and auditing performance testing results.

6. The Bureaus and OET reject Alaska Communications' proposal that high-cost support recipients may submit radio frequency propagation maps in lieu of conducting speed tests to demonstrate compliance with speed obligations. Such maps are only illustrative of planned, “theoretical” coverage and do not provide actual data on what consumers experience. The Bureaus and OET therefore require providers to conduct the required testing using one of the three options identified in this document.

7. All ETCs subject to fixed broadband performance obligations must conduct the required speed and latency testing using the parameters in this Order, regardless of which of the three testing options the carrier selects. The Bureaus and OET first define “test” and the associated span of measurement, in the context of these performance measurements. Next, the Bureaus and OET adopt requirements regarding when tests must begin and when exactly carriers may perform the tests, and they set the number of active subscriber locations carriers must test, with variations depending on the size of the carrier. Finally, the Bureaus and OET address how high-latency bidders in the CAF Phase II auction must conduct required voice testing.

8. To maintain a stringent performance compliance regime while avoiding unnecessary burdens on smaller carriers, the Bureaus and OET allow flexibility concerning the specific testing approach so that carriers can select, consistent with its adopted framework, the best and most efficient testing methods for their particular circumstances. The Bureaus and OET encourage the use of industry testing standards, such as the TR-143 Standard, for conducting self-testing.

9. For reasons similar to those outlined in the CAF Phase II Price Cap Service Obligation Order, 78 FR 70881, November 27, 2013, the Bureaus and OET require that high-cost support recipients serving fixed locations perform these tests over the measurement span already applicable to price cap carriers receiving CAF Phase II model-based support. ETCs must test speed and latency from the customer premises of an active subscriber to a remote test server located at or reached by passing through an FCC-designated IXP. Accordingly, a speed test is a single measurement of download or upload speed of 10 to 15 seconds duration between a specific consumer location and a specific remote server location. Similarly, a latency test is a single measurement of latency, often performed using a single User Datagram Protocol (UDP) packet or a group of three internet Control Message Protocol (ICMP) or UDP packets sent at essentially the same time, as is common with ping tests.

10. Large and small ETCs alike commit to providing a certain level of service when accepting high-cost support to deploy broadband. “Testing . . . on only a portion of the network connecting a consumer to the internet core will not show whether that customer is able to enjoy high-quality real-time applications because it is network performance from the customer's location to the destination that determines the quality of the service from the customer's perspective.” Although the measurement span the Bureaus and OET adopt may include transport (e.g., backhaul or transit) that a provider does not control, the carrier can influence the quality of transport purchased and can negotiate with the transport provider for a level of service that will enable it to meet the Commission's performance requirements. This is true for both price cap carriers and smaller carriers. The Bureaus and OET therefore disagree with suggestions that testing should only occur within a provider's own network because providers do not always control the portion of the network reaching the nearest FCC-designated IXP.

11. Previously, the Bureaus and OET designated the following ten locations as FCC-designated IXPs: New York City, NY; Washington, DC; Atlanta, GA; Miami, FL; Chicago, IL; Dallas-Fort Worth, TX; Los Angeles, CA; San Francisco, CA; Seattle, WA; and Denver, CO. All of these areas, except Denver, are locations used by the MBA program, which selected these locations because they are geographically distributed major U.S. Internet peering locations. Denver was added to the list so that all contiguous areas in the United States are within 700 miles of an FCC-designated IXP. Because the Bureaus and OET are expanding testing to additional CAF recipients, they add the following six metropolitan areas as additional FCC-designated IXPs: Salt Lake City, UT; St. Paul, MN; Helena, MT; Kansas City, MO; Phoenix, AZ; and Boston, MA. This expanded list ensures that most mainland U.S. locations are within 300 air miles of an FCC-designated IXP, and all are within approximately 500 air miles of one. Further, the Bureaus and OET find that there is no reason to limit testing to the provider's nearest IXP; rather, providers can use any FCC-designated IXP for testing purposes.

12. Still, the Bureaus and OET recognize that non-contiguous providers face unique challenges in providing service outside the continental U.S. The distance between a carrier and its nearest IXP affects latency and may affect speed as well. At this time, the Bureaus and OET do not have sufficient data to determine the extent of the effect of distance on speed performance testing. Therefore, similar to the existing exception for non-contiguous price cap carriers accepting model-based CAF Phase II support, the Bureaus and OET permit all providers serving non-contiguous areas greater than 500 air miles from an FCC-designated IXP to conduct all required latency and speed testing between the customer premises and the point at which traffic is aggregated for transport to the continental U.S. The Bureaus and OET have identified a sufficient number of IXPs so that no point in the continental U.S. is more than approximately 500 miles from an FCC-designated IXP. Therefore, allowing non-contiguous providers located more than 500 miles from an FCC-designated IXP to test to the point in the non-contiguous area where traffic is aggregated for transport to the mainland will prevent these providers from being unfairly penalized for failing to meet their performance obligations solely because of the location of the areas being served. However, as the Commission gains additional MBA and other data on speed and latency from non-contiguous areas, the Bureaus and OET may revisit this conclusion.

13. First, the Bureaus and OET establish the specific test intervals within the daily test period. For latency, the Bureaus and OET require a minimum of one discrete test per minute, i.e., 60 tests per hour, for each of the testing hours, at each subscriber test location, with the results of each discrete test recorded separately. The Bureaus and OET note that intensive consumer use of the network (such as streaming video) during testing, referred to as cross-talk, can influence both consumer service and testing results. The data usage load for latency testing is minimal; sending 60 UDP packets of 64 bytes each in one hour is approximately 4,000 bytes in total. However, to prevent cross-talk from negatively affecting both the consumer experience and test results, the Bureaus and OET adopt consumer load thresholds—i.e., cross-talk thresholds—similar to those used by the MBA program. Accordingly, for latency testing, if the consumer load exceeds 64 Kbps downstream, the provider may cancel the test and reevaluate whether the consumer load exceeds 64 Kbps downstream before retrying the test in the next minute. Providers who elect to do more than the minimum required number of latency tests at subscriber test locations must include the results from all tests performed during testing periods in their compliance calculations.

14. For speed, the Bureaus and OET require a minimum of one download test and one upload test per testing hour at each subscriber test location. The Bureaus and OET note that speed testing has greater network impact than latency testing. For speed testing, the Bureaus and OET require providers to start separate download and upload speed tests at the beginning of each test hour window. As with latency, the Bureaus and OET adopt cross-talk thresholds similar to those used in the MBA program. If the consumer load is greater than 64 Kbps downstream for download tests or 32 Kbps upstream for upload tests, the provider may defer the affected download or upload test for one minute and reevaluate whether the consumer load exceeds the relevant 64 Kbps or 32 Kbps threshold before retrying the test. This load check-and-retry must continue at one-minute intervals until the speed test can be run or the one-hour test window ends and the test for that hour is canceled. Also as with latency, providers who elect to do more than the minimum required number of speed tests at subscriber test locations must include the results from all tests performed during testing periods for compliance calculations.

15. Second, to capture any seasonal effects on a carrier's broadband performance, the Bureaus and OET require that carriers subject to the latency and speed testing requirements conduct one week of testing in each quarter of the calendar year. Specifically, carriers must conduct one week of testing in each of the following quarters: January through March, April through June, July through September, and October through December. By requiring measurements quarterly, rather than in four consecutive weeks, the Bureaus and OET expect test results to reflect a carrier's performance throughout the year, including during times of the year in which there is a seasonal increase or decrease in network usage. Although previously WCB required price cap carriers receiving CAF Phase II support to test latency for two weeks each quarter, the Bureaus and OET find that requiring testing one week each quarter strikes a better balance of accounting for seasonal changes in broadband usage and minimizing the burden on consumers who may participate in testing.

16. Third, in establishing the daily testing period, the Bureaus and OET slightly expand the test period and require that carriers conduct tests between 6:00 p.m. and 12:00 a.m. (testing hours), including on weekends. The Bureaus and OET continue to find that MBA data supports its conclusion that there is a peak period of internet usage every evening. However, the Bureaus and OET intend to revisit this requirement periodically to determine whether peak internet usage times have changed substantially.

17. The Bureaus and OET conclude that requiring measurements over an expanded period, by including one hour before the peak period and one hour after, will best ensure that carriers meet the speed and latency obligations associated with the high-cost support they receive. MBA data shows that broadband internet access service providers that perform well during the peak period tend to perform well consistently throughout the day. Further, the Bureaus and OET required schedule of testing is consistent with the specific, realistic standards they set forth which were developed using MBA peak-period data. Thus, the Bureaus and OET will be judging testing hours data based on a standard developed using MBA data from the same time period.

18. Additionally, the Bureaus and OET disagree with assertions that requiring speed testing during the peak period will introduce problematic network congestion over the provider's core network. Based on MBA speed test data, a download service speed test for 10 Mbps requires approximately 624 MB combined downloaded data for 50 locations per hour. This is less traffic than what would be generated by streaming a little less than one-half of a high-definition movie. A download service speed test for 25 Mbps requires approximately 1,841 MB combined downloaded data for 50 locations, which is about the same amount of traffic as a little less than two high-definition movies. The small amount of data should have no noticeable effect on network congestion. Upload test data-usage is even lower. Based upon MBA speed test data, a one-hour upload service speed test for 1 Mbps and 3 Mbps for 50 locations will be approximately 57 MB and 120 MB, respectively. This testing will use bandwidth equivalent to uploading 12 photos to a social media website at 1 Mbps or 24 photos at 3 Mbps. To the extent that a carrier is concerned about possible impacts on the consumer experience, the Bureaus and OET permit carriers the flexibility to choose whether to stagger their tests, so long as they do not violate any other testing requirements, as they explain in their discussion of the testing intervals in the following.

19. Fourth, testing for all locations in a single speed tier in a single state must be done during the same week. If a provider has more than one speed tier in a state, testing for each speed tier can be conducted during different weeks within the quarter. For a provider serving multiple states, testing of each service tier does not need to be done during the same week, i.e., a provider may test its 10/1 Mbps customers in New York one week and in Pennsylvania during a different week. The Bureaus and OET will generally consider requests for waiver or extension in cases where a major, disruptive event (e.g., a hurricane) negatively affects a provider's broadband performance. However, prior to requesting a waiver, providers should determine whether rescheduling testing within the 3-month test window will be sufficient to handle the disruptive event.

20. The Bureaus and OET require that carriers test up to 50 locations per CAF-required service tier offering per state, depending on the number of subscribers a carrier has in a state. The subscribers eligible for testing must be at locations that are reported in the HUBB where there is an active subscriber. The Bureaus and OET decline to adopt a simple percentage-based alternative but, instead, adopt the following scaled requirements for each state and service tier combination for a carrier:

21. Carriers must test an adequate number of subscriber locations to provide a clear picture of the carrier's performance and its customers' broadband experience across a state. The Bureaus and OET find that 50 test locations, per speed tier per state, remains a good indicator as to whether providers are fulfilling their obligations. A sample size of 50 test locations out of 2,500 or more subscribers provides a picture of carriers' performance with a ±11.5 percent margin of error and 90 percent confidence level. Testing 50 locations out of more than 500 subscribers yields a comparable picture of carriers' performance. The Bureaus and OET acknowledge, however, that smaller carriers may find testing 50 locations burdensome. Below 2,500 CAF-supported subscribers, greater percentages of subscribers are necessary to achieve the same margin of error and confidence level, but below 500 subscribers the necessary percentage rises quickly above 10 percent. Carriers serving fewer subscribers would thus be unable to provide test results achieving the same margin of error and confidence level without testing a more proportionately burdensome percentage of their subscribers.

22. The Bureaus and OET also now find it preferable to use the number of subscribers in a state and service tier, rather than the number of lines for which a provider is receiving support, to determine the required number of test locations. A carrier receiving support for 2,000 lines serving 100 subscribers would find it much more difficult to test 50 active subscriber locations, compared to a carrier receiving support for 2,000 lines but serving 1,500 subscribers, and commenters have noted that providers may find it difficult to find a sufficient number of locations if they have relatively few subscribers. Basing the number of locations to be tested on the number of subscribers, rather than the number of lines, addresses this concern.

23. The Bureaus and OET therefore require testing a specific number of subscribers for carriers serving more than 500 subscribers in a single service tier and state, but require carriers serving between 51 and 500 subscribers in a single service tier and state to test a fixed percentage of subscribers. For carriers serving 50 or fewer subscribers in a state and service tier, a percentage-based alternative may be insufficient; in an extreme situation, data from a single subscriber cannot clearly demonstrate a carrier's speed and latency performance. Accordingly, the Bureaus and OET require those providers to test a specific number of active subscriber locations. The Bureaus and OET conclude that this scaled approach balances the need to test a reasonable number of subscriber locations within a state based on the total number of subscribers and performance tiers with minimizing the burden on smaller providers to find consumer locations to be tested. The Bureaus and OET note, also, that a carrier receiving different types of CAF funding in the same state should aggregate its customers in each speed tier for purposes of testing. The following examples illustrate how this scaled approach should be implemented:

• A carrier with 2,300 customers subscribed to a single service tier of10/1 Mbps in one state must test 50 locations in that state, while a carrier providing solely 25/3 Mbps service to over 2,500 subscribers in each of three states must test 50 locations in each state.

• A carrier providing 10/1 Mbps service and 25/3 Mbps service to 100 subscribers each in a single state must test 10 locations for each of the two service tiers—20 locations in total.

• A carrier providing solely 10/1 Mbps service to 30 subscribers must test five locations, and if that carrier is only able to test three CAF-supported locations, that carrier must test two non-CAF-supported locations receiving 10/1 Mbps service in the same state.

• A carrier with 2,000 customers subscribed to 10/1 Mbps in one state through CAF Phase II funding and 500 RBE customers subscribed to 10/1 Mbps in the same state, and no other high-cost support with deployment obligations, must test a total of 50 locations in that state for the 10/1 Mbps service tier.

24. Test subjects must be randomly selected every two years from among the provider's active subscribers in each service tier in each state. Subscribers for latency testing may be randomly selected from those subscribers being tested for speed at all speed tiers or randomly selected from all CAF-supported subscribers, every two years. Any sample location lacking an active subscriber 12 months after that location was selected must be replaced by an actively subscribed location, randomly selected. Random selection will ensure that providers cannot pick and choose amongst subscribers so that only those subscribers likely to have the best performance (e.g., those closest to a central office) are tested. Carriers may use inducements to encourage subscribers to participate in testing. This may be particularly useful in cases where support is tied to a particular performance level for the network but the provider does not have enough subscribers to higher performance service to test to comply with the testing sample sizes. However, to ensure that the selection remains random, carriers must offer the same inducement to all randomly-selected subscribers in the areas for which participating subscribers are required for the carrier to conduct testing. WCB will provide further guidance regarding random selection by public notice.

25. The Bureaus and OET reiterate the Commission's requirement that high-latency providers subject to testing must demonstrate a Mean Opinion Score (MOS) of four or higher. The Bureaus and OET agree with ADTRAN, Inc. (ADTRAN) that listening-opinion tests would not suffice to demonstrate a high-quality consumer voice experience. Latency only minimally affects participants' experiences and evaluations in listening-opinion tests, which involve passive listening to audio samples. However, in the USF/ICC Transformation Order, 76 FR 73830, November 29, 2011, the Commission required “ETCs to offer sufficiently low latency to enable use of real-time applications, such as VoIP.” Unlike a listening-opinion test, in a conversation-opinion test, two participants actively participate in a conversation. The back-and-forth of conversations highlights delay, echo, and other issues caused by latency in a way that one-way, passive listening cannot. Therefore, the Bureaus and OET require that high-latency providers conduct an ITU-T Recommendation P.800 conversational-opinion test.

26. Specifically, the Bureaus and OET require the use of the underlying conversational-opinion test requirements specified by the ITU-T Recommendation P.800, with testing conditions as described in the following. The Bureaus and OET believe that MOS testing under these conditions will ensure that the test results reflect the consumer experience as accurately as possible. First, high-latency providers must use operational network infrastructure, such as actual satellite links, for conducting MOS testing, not laboratory-based simulations intended to reproduce service conditions. Second, the tests must be implemented using equipment, systems, and processes that are used in provisioning service to locations funded by high-cost universal service support. Third, live interviews and surveys must be conducted by an independent agency or organization (Reviewer) to determine the MOS. Survey forms, mail-in documentation, automated phone calls, or other non-interactive and non-person-to-person interviews are not permitted. Any organization or laboratory with experience testing services for compliance with telecommunications industry-specified standards and, preferably, MOS testing experience, may be a Reviewer. Fourth, testing must be conducted over a “single hop” satellite connection with at least one endpoint at an active subscriber location using the subscriber's end-user equipment. Finally, the second endpoint may be a centralized location from which the Reviewer conducts live interviews with the subscriber to determine the subscriber's MOS evaluation.

27. To reduce the burden of the MOS testing for high-latency bidders while still ensuring high-quality voice service, the Bureaus and OET adopt a separate scaled table for the number of locations that are subject to MOS testing. Specifically, the Bureaus and OET will determine the number of testing locations based upon the number of subscribers nationally for which CAF-supported service is provided. The Bureaus and OET recognize that the satellite infrastructures employed by many high-latency bidders have characteristics different from terrestrial networks that make testing of satellite service on a national, rather than state, basis appropriate. That is, middle-mile/backhaul for satellite networks are the direct links from the consumer locations to the satellite and then from the satellite to selected downlink sites, so there is unlikely to be significant variability based on the state in which the subscriber is located. The consumers must be randomly selected from the total CAF-supported subscriber base in all applicable states to ensure that different types of geographic locations are tested.

This scaled, nationwide testing requirement will reduce high-latency bidders' testing burden while ensuring a sufficient testing sample to verify compliance with voice performance requirements.

28. The Bureaus and OET extend the existing standard for full compliance with high-cost support recipients' latency obligations and adopt a standard for full compliance with speed obligations. The Bureaus and OET also establish a compliance framework outlining specific actions for various degrees of compliance that fall short of those standards.

29. The Bureaus and OET reaffirm the existing low-latency and high-latency standards and establish a speed standard for full compliance. The data on round-trip latency in the United States has not markedly changed since the 2013 CAF Phase II Price Cap Service Obligation Order, and no party has challenged the Commission's reasoning for the existing 100 ms latency standard. Accordingly, the Bureaus and OET conclude that all high-cost support recipients serving fixed locations, except those carriers submitting high-latency bids in the CAF Phase II auction, must certify that 95 percent or more of all testing hours measurements of network round-trip latency are at or below 100 ms. High-latency bidders must certify that 95 percent or more of all testing hours measurements are at or below 750 ms. Providers must record the observed latency for all latency test measurements, including all lost packet tests. Thus, providers may not discard lost-packet tests from their test results; these tests count as discrete tests not meeting the standard.

30. For speed, the Bureaus and OET require that 80 percent of download and upload measurements be at or above 80 percent of the CAF-required speed tier (i.e., an 80/80 standard). For example, if a carrier receives high-cost support for 10/1 Mbps service, 80 percent of the download speed measurements must be at or above 8 Mbps, while 80 percent of the upload speed measurements must be at or above 0.8 Mbps. The Bureaus and OET require carriers to meet and test to their CAF obligation speed(s) regardless of whether their subscribers purchase internet service offerings with advertised speeds matching the CAF-required speeds at CAF-eligible locations. Thus, carriers that have deployed a network with the requisite speeds must include all subscribers at that level in their testing, but may still find it necessary to upgrade individual subscriber locations, at least temporarily, to conduct speed testing. For example, a carrier may be required to deploy and offer 100/20 Mbps service, but only 5 of its 550 subscribers at CAF-supported locations take 100/20 Mbps service, with the remainder taking 20/20 Mbps service. To satisfy its testing obligations, the carrier would be required to (1) test all 5 of the 100/20 Mbps subscribers and (2) randomly select 45 of its other CAF-supported subscribers, raise those subscribers' speed to 100/20 Mbps, at least temporarily, and test those 45 subscribers.

31. The Bureaus and OET believe that this standard best meets its statutory requirement to ensure that high-cost-supported broadband deployments provide reasonably comparable service as those available in urban areas. The most recent MBA report cites the 80/80 standard as a “key measure” of network consistency. MBA data show that all fixed terrestrial broadband technologies that are included in the MBA program can meet this standard. The Bureaus and OET are confident that high-cost support recipients' newer fixed broadband deployments will benefit from more up-to-date technologies and network designs that should provide even better performance.

32. Further, the Bureaus and OET expect that a realistic 80/80 standard will provide a “cushion” to address certain testing issues. The Bureaus and OET noted in this document that some commenters expressed concern that they would be responsible for testing to an IXP even though that involved the use of backhaul that a provider may not control. The Bureaus and OET believe that the 80/80 standard allows sufficient leeway to providers so that they will meet performance standards as long as they have reasonable backhaul arrangements. In addition, commenters have raised a concern that speed testing could possibly show misleadingly low results if the subscriber being tested is using the connection at the time of the testing. However, the testing methodology addresses this concern. As with the MBA, the Bureaus and OET allow rescheduling of testing in instances where the customer usage exceeds MBA cross-talk thresholds. Thus, the Bureaus and OET do not anticipate that customer cross-talk will affect CAF performance data any more (or less) than the MBA program data on which its standard is based. Customer usage should not prevent carriers with appropriately constructed networks from meeting its requirements.

33. The Bureaus and OET find that a speed standard similar to what they have adopted for latency to measure broadband speed performance, as proposed by ADTRAN, is not appropriate. Staff analysis has found that this standard would not ensure CAF-supported service that is comparable to that in urban areas. The 2016 MBA Report stated that “[c]onsistency of speed may be more important to customers who are heavy users of applications that are both high bandwidth and sensitive to short duration declines in actual speed, such as streaming video.” A speed standard relying on an average or median value would not ensure consistency of speed because the distribution of values around the median may vary significantly. A carrier could meet such a standard by ensuring that the average or median speed test meets a target speed, while not providing sufficiently fast service nearly half the time or to nearly half its subscribers in locations supported by universal service. The Bureaus and OET therefore conclude that the 80/80 standard they adopt herein is a better measure of comparability and high-quality service.

34. Finally, the Bureaus and OET recognize that, because of technical limitations, it is currently unrealistic to expect that providers obligated to provide gigabit service, i.e., speeds of 1,000 Mbps, achieve actual speeds of 1,000 Mbps download at the customer premises. Typical customer premises equipment, including equipment for gigabit subscribers, permits a maximum throughput of 1 Gbps, and the overhead associated with gigabit internet traffic (whether in urban or rural areas) can reach up to 60 Mbps out of the theoretical 1 Gbps. Customer premises equipment with higher maximum throughput are generally more costly and not readily available. Thus, even if a gigabit provider were to “overprovision” its gigabit service, the subscriber would not experience speeds of 1,000 Mbps. The Bureaus and OET do not want to discourage carriers from bidding in the upcoming CAF auction to provide 1 Gbps service by requiring unachievable service levels. The Bureaus and OET note that the 80/80 standard they adopt requires gigabit carriers to demonstrate that 80 percent of their testing hours download speed tests are at or above 80 percent of 1,000 Mbps, i.e., 800 Mbps. This standard should not pose a barrier to carriers bidding to provide 1 Gbps service.

35. Consistent with the Commission's universal service goals, the Bureaus and OET adopt a compliance framework that encourages ETCs to comply fully with their performance obligations and includes the potential for USAC to audit test results. The Bureaus and OET establish a four-level framework that sets forth particular obligations and automatic triggers based on an ETC's degree of compliance with its latency, speed, and, if applicable, MOS testing standards in each state and high-cost support program. The Bureaus and OET will determine a carrier's compliance for each standard separately. In each case, the Bureaus and OET will divide the percentage of its measurements meeting the relevant standard by the required percentage of measurements to be in full compliance.

36. In other words, for latency, in each state in which the carrier has CAF-supported locations, the Bureaus and OET will calculate the percentage of compliance using the 95-percent standard, so they will divide the percentage of the carrier's testing hours' latency measurements at or below the required latency (i.e., 100 ms or 750 ms) by 95. As an example, if a low-latency provider observes that 90 percent of all its testing hours measurements are at or below 100 ms, then that provider's latency compliance percentage would be 90/95 = 94.7 percent in that state. For speed, for each speed tier and state the Bureaus and OET will calculate the percentage of compliance relative to the 80-percent-based standard, so they will divide the percentage of the carrier's testing hours speed measurements at or above 80 percent of the target speed by 80. Thus, if a provider observes that 65 percent of its testing hours speed measurements meet 80 percent of the required speed, the provider's compliance percentage would be 65/80 = 81.25 percent for the relevant speed tier in that state. Carriers must include and submit the results from all tests and cannot exclude any tests conducted beyond the minimum numbers of tests, as outlined in this Order, for the calculation of latency and speed compliance percentages.

37. For MOS testing, the high-latency bidder must demonstrate a MOS of 4 or higher, so a high-latency bidder would calculate its percentage of compliance relative to 4. Thus, a provider demonstrating a MOS of 3 would have a compliance percentage of 3/4 = 75 percent. For a high-latency bidder conducting MOS testing across its entire network, rather than state-by-state, the Bureaus and OET will calculate the same MOS compliance percentage for each state that it serves with CAF Phase II support.

38. To avoid penalizing a provider for failing to meet multiple standards for the same locations, the Bureaus and OET adopt a streamlined compliance framework in which the lowest of a carrier's separate latency, speed, and, if applicable, MOS compliance percentages (including percentages for each speed tier) determines its obligations. All carriers not fully compliant in a particular state must submit quarterly reports providing one week of testing hours test results, subject to the same requirements the Bureaus and OET establish in this Order, and describing steps taken to resolve the compliance gap, and USAC will withhold a percentage of a non-compliant carrier's monthly support. Whenever a carrier in Levels 1 through 3 comes into a higher level of compliance, that level's requirements will apply, and USAC will return the withheld support up to an amount reflecting the difference between the levels' required withholding but not including any support withheld by USAC for more than 12 months.

39. The Bureaus and OET define Level 1 compliance to include carriers with compliance percentages at or above 85 but below 100 percent, and they direct USAC to withhold 5 percent of a Level 1-compliant carrier's monthly support. Level 2 compliance includes carriers with compliance percentages at or above 70 but below 85 percent, and the Bureaus and OET direct USAC to withhold 10 percent of a Level 2-compliant carrier's monthly support. Level 3 compliance includes carriers with compliance percentages at or above 55 but below 70 percent, and the Bureaus and OET direct USAC to withhold 15 percent of a Level3-compliant carrier's monthly support. Level 4 compliance includes carriers with compliance percentages below 55 percent, and the Bureaus and OET direct USAC to withhold 25 percent of a Level 4-compliant carrier's monthly support. The Bureaus and OET will also refer Level 4-compliant carriers to USAC for an investigation into the extent to which the carrier has actually deployed broadband in accordance with its deployment obligations. The following table provides a summary of the compliance framework, where x is the carrier's compliance percentage:

40. Similar to commenters' proposals, the framework the Bureaus and OET adopt resembles the non-compliance framework for interim deployment milestones in section 54.320(d) of the Commission's rules. The Bureaus and OET emphasize that the goal of this compliance framework is to provide incentives, rather than penalize. Balancing commenters' concerns regarding the severity or leniency of a such a framework, the Bureaus and OET conclude that its framework appropriately encourages carriers to come into full compliance and offer, in areas requiring high-cost support, broadband service meeting standards consistent with what consumers typically experience.

41. Finally, the Bureaus and OET provide one exception to this non-compliance framework. As discussed in this document, carriers that serve 50 or fewer subscribers in a state and particular service tier but cannot find five active subscribers for conducting the required testing may test non-CAF-supported active subscriber locations to the extent necessary. Because those carriers' test results would not solely reflect the performance of CAF-supported locations, any such carriers not fully complying with the Bureaus and OET latency and speed standards will be referred to USAC for further investigation of the level of performance at the CAF-supported locations.

42. The Commission requires that providers subject to these testing requirements annually certify and report the results to USAC, which may audit the test results. To facilitate compliance monitoring, the Bureaus and OET require providers to submit speed and latency test results, including the technologies used to provide broadband at the tested locations, for each state and speed tier combination in addition to an annual certification in a format to be determined by WCB; high-latency bidders conducting MOS testing across their entire networks, rather than state-by-state, may submit and certify MOS test results on a nationwide basis. To minimize the burden on providers, USAC will calculate the compliance percentages required using the data submitted. By requiring carriers to submit test results annually, or quarterly if they are not fully in compliance with the Bureaus and OET standards, and having USAC perform the compliance calculations, the Bureaus and OET minimize the potential for any manipulation or gaming of the testing regime, as providers will be required to certify to a set of specific results rather than to a general level of compliance. Because of the need to develop a mechanism for collecting the testing data and obtain Paperwork Reduction Act (PRA) approval, carriers will be required to submit the first set of testing data and accompanying certification by July 1, 2020. This submission should include data for at least the third and fourth quarters of 2019. Subsequently, data and certifications will be due by July 1 of each year for the preceding calendar year. WCB will provide further guidance by public notice regarding how carriers will submit their testing data and certifications. Together with USAC audits and possible withholding of support, the Bureaus and OET believe these measures will provide ample incentives for carriers to comply with their obligations.

43. This Order contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), it previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. In this present document, the Commission has assessed the effects of the new and modified rules that might impose information collection burdens on small business concerns, and find that they either will not have a significant economic impact on a substantial number of small entities or will have a minimal economic impact on a substantial number of small entities.

44. The Commission will send a copy of this Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

45. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the USF/ICC Transformation FNPRM, 76 FR 78384, December 16, 2011. The Commission sought written public comment on the proposals in the USF/ICC Transformation FNPRM, including comment on the IRFA. The Commission did not receive any relevant comments on the USF/ICC Transformation FNPRM IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

46. As a condition of receiving high-cost universal service support, eligible telecommunications carriers (ETCs) must offer broadband service in their supported areas that meets certain basic performance requirements. ETCs subject to broadband performance obligations must currently offer broadband with latency suitable for real-time applications, such as VoIP, and meet a minimum speed standard of 10 Mbps downstream and 1 Mbps upstream or greater. Recipients of high-cost support must also test their broadband networks for compliance with speed and latency metrics and certify and report the results to the Universal Service Administrative Company (USAC) and the relevant state or tribal government on an annual basis, with those results subject to audit.

47. In the Order, the Bureaus and OET define how ETCs with Connect America Fund (CAF) Phase II, Alternative Connect America Cost Model (A-CAM), rate-of-return mandatory buildout, rural broadband experiment (RBE), or Alaska Plan obligations must test speed and latency and certify and report the results. Specifically, the Bureaus and OET establish a uniform framework for measuring speed and latency performance. The Bureaus and OET permit three testing methods as options for ETCs to conduct the required speed and latency tests, and the Bureaus and OET provide a definition for a “test” in this context and specify the measurement span associated with these tests. The Bureaus and OET establish specific test parameters for latency and speed, including how often and how many tests must be conducted and the minimum test sample size. The Bureaus and OET also establish voice testing requirements for high-latency bidders in the CAF Phase II auction. Finally, the Bureaus and OET define compliance for latency and speed standards and establish the required certifications, as well as a compliance framework providing strong incentives for ETCs to meet its standards.

48. With the testing framework the Bureaus and OET have adopted herein, they have provided maximum flexibility to reduce the burden on smaller entities, consistent with ensuring that these carriers are meeting their latency and speed requirements. Smaller entities required to do testing can choose from one of three methodologies to conduct the required testing. All entities providing broadband service should already use testing mechanisms for internal purposes, such as ensuring that customers are receiving the appropriate level of service and troubleshooting in response to customer complaints. In addition, the Bureaus and OET will be providing an online portal so entities can easily submit all of their test results electronically and USAC will do all of the necessary compliance calculations.

49. 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, 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 Small Business Administration (SBA).

50. The Bureaus and OET actions, over time, may affect small entities that are not easily categorized at present. The Bureaus and OET therefore describe here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9 percent of all businesses in the United States which translates to 28.8 million businesses.

51. 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 August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).

52. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicates that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37,132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category shows that the majority of these governments have populations of less than 50,000. Based on this data the Bureaus and OET estimate that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”

53. In the Order, the Bureaus and OET establish for high-cost support recipients serving fixed locations a uniform framework for measuring speed and latency performance and define the requisite standards for full compliance with those providers' speed and latency obligations. The Commission's existing rules require that high-cost recipients report “[t]he results of network performance tests pursuant to the methodology and in the format determined by the Wireline Competition Bureau, Wireless Telecommunications Bureau, and the Office of Engineering and Technology” and that ETCs retain such records for at least ten years from the receipt of funding.

54. The Bureaus and OET now provide some color to this requirement; they require providers to submit speed and latency test results, including the technologies used to provide broadband at the tested locations, for each state and speed tier combination in addition to an annual certification in a format to be determined by WCB. High-latency bidders conducting mean opinion score (MOS) testing across their entire networks, rather than state-by-state, may submit and certify MOS test results on a nationwide basis. To minimize the burden on providers, USAC will calculate the compliance percentages required using the data submitted. By requiring carriers to submit test results annually and having USAC perform the compliance calculations, the Bureaus and OET minimize the potential for any manipulation or gaming of the testing regime, as providers will be required to certify to a set of specific results rather than to a general level of compliance. However, providers that are not fully compliant with the speed and latency standards must submit quarterly reports including one week of test results and describing steps taken to resolve the compliance gap.

55. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (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. The Bureaus and OET have considered all of these factors subsequent to receiving substantive comments from the public and potentially affected entities. The Wireline Competition Bureau, Wireless Telecommunications Bureau, and Office of Engineering and Technology have considered the economic impact on small entities, as identified in any comments filed in response to USF/ICC Transformation FNPRM and IRFA, in reaching its final conclusions and taking action in this proceeding.

56. In the Order, the Bureaus and OET adopt a clear, uniform framework for high-cost support recipients serving fixed locations to test speed and latency to meet the obligations associated with the support they receive. The requirements the Bureaus and OET adopt provide flexibility for carriers to choose between different testing methods suitable for carriers of different sizes and technological sophistication. Instead of requiring providers to invest in and implement new internal systems, the Bureaus and OET permit providers to perform speed and latency tests with readily available off-the-shelf solutions or existing MBA infrastructure. The Bureaus and OET expect that carriers with testing features built into customer premises equipment for their own network management purposes may prefer using their own self-testing systems, which they also permit.

57. The Bureaus and OET require that carriers, regardless of their preferred testing methods, conduct tests using the same parameters they establish. These parameters take into account smaller carriers' circumstances to avoid disproportionately burdening them. For example, the Bureaus and OET expand the list of locations to which carriers may conduct required tests—allowing smaller carriers that are farther from the largest metropolitan areas to test speed and latency over shorter distances. The Bureaus and OET also permit providers to conduct tests to the designated area of their choosing, rather than to the nearest designated metropolitan area. Further, carriers with fewer subscribers in a state and broadband service tier may test fewer locations. Greater percentages of subscribers are necessary to achieve the same margin of error and confidence level in smaller sample sizes, but the Bureaus and OET recognize that, below 450 subscribers, that necessary percentage rises quickly above 10 percent. Accordingly, in the Order, the Bureaus and OET allow providers with between 51 and 450 subscribers in a particular state and service tier combination to test 10 percent of total subscribers. The Bureaus and OET require providers with fewer than 50 subscribers in a particular state and service tier combination to test five locations, but, to the extent necessary, those carriers may test existing, non-CAF-supported active subscriber locations to satisfy that requirement.

58. Finally, the Bureaus and OET provide clarity regarding the Commission's existing requirement that carriers must report the results of network performance tests. Carriers must annually (or, in some cases, quarterly) submit detailed results of the required tests, conducted pursuant to the parameters the Bureaus and OET establish. The Bureaus and OET hold all carriers to the same speed and latency test standards, but they recognize that requiring carriers to take the additional step of using their test results to determine their level of compliance may entail unnecessary burdens. Although the Bureaus and OET anticipate that carriers will find the adopted compliance framework straightforward, they conclude that requiring submission of the actual test results and allowing USAC to calculate the compliance percentages lessens the burden on small entities even further.

59. Accordingly, it is ordered that, pursuant to sections 1, 4(i), 5(c), 201(b), 214, and 254 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, 47 U.S.C. 151, 154(i), 155(c), 201(b), 214, 254, 1302, §§ 0.91 and 0.291 of the Commission's rules, 47 CFR 0.91, 0.291, and the delegations of authority in paragraph 170 of the USF/ICC Transformation Order, FCC 11-161, this Order is adopted, effective thirty (30) days after publication of the text or summary thereof in the Federal Register, except for the requirements in paragraphs 38 and 42 that are subject to the PRA, which will become effective upon announcement in the Federal Register of OMB approval of the subject information collection requirements.