Federal Register Vol. 83, No.199,

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-600, -700, -700C, -800, and -900 series airplanes. The NPRM published in the Federal Register on October 2, 2017 (82 FR 45743). The NPRM was prompted by significant changes made to the AWLs related to fuel tank ignition prevention and the nitrogen generation system. The NPRM proposed to require revision of the maintenance or inspection program, as applicable, to include the latest revision of the AWLs.

In the NPRM, we discussed that we would mandate the latest revision of the Airworthiness Limitations section (ALS) of the Instructions for Continued Airworthiness (ICA) as of the effective date of the AD for Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the effective date of the AD. We also discussed that operators of airplanes with an original certificate of airworthiness or original export of certificate of airworthiness issued after the effective date of the AD must comply with the ALS revision specified as part of the approved type design. Since the issuance of the NPRM, Boeing revised the ALS a number of times and added new AWL tasks. In order to mandate the latest ALS revision available as of the effective date of the AD as we originally proposed, we must supplement the NPRM for public comments because new additional AWL tasks in the later ALS revisions expand the scope of the NPRM. As a result, the issuance of the AD to address the unsafe condition would be delayed.

Based on those conditions, we have made the following adjustments in this final rule. First, instead of mandating the latest ALS revision, we are mandating Revision January 2017 of the ALS as originally proposed in the NPRM. Second, we have changed the AD applicability to exclude those airplanes delivered with later ALS revisions (later than Revision January 2017) as part of the type design. The change in the AD applicability is intended to avoid the situation discussed in the NPRM where the AD mandates a specific ALS revision for an airplane that was delivered with a later ALS revision as part of the type design. Airplanes outside the AD applicability should use the ALS revision later than Revision January 2017 as part of the type design. Those adjustments we made in the final rule do not expand the scope of the NPRM. We will consider further rulemaking to mandate a later ALS revision for all affected airplanes.

We are issuing this AD to address the development of an ignition source inside the fuel tanks and the flammability exposure of the center fuel tank, which could lead to fuel tank explosion and consequent loss of the airplane. We are also issuing this AD to address the loss of engine fuel suction feed capability, which could result in dual engine flameout, inability to restart engines, and consequent forced landing of the airplane.

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

Commenter Nick Gianetti supported the NPRM.

Southwest Airlines requested clarification regarding the provision for “exceptional short-term extension” in the service information.

We agree that clarification is necessary. Operators may use an exceptional short-term extension with the concurrence of the appropriate authority, as described in the service information. Exceptional short-term extensions should be used to address uncontrollable or unexpected situations. For any change to the interval of an AWL other than an exceptional short-term extension, approval must be handled under the provisions of paragraph (k) of this AD. No change to this AD is necessary.

Boeing stated that AD 2011-20-07 is affected by the proposed AD because it relates to an AWL in the mandated service information. They requested that we identify AD 2011-20-07 as an affected AD under paragraph (b) of the proposed AD.

We acknowledge the commenter's rationale for including AD 2011-20-07 in paragraph (b) of this AD. However, paragraph (b), “Affected ADs,” is intended to include other affected ADs, but not all related ADs. It is primarily used to reference superseded ADs and other ADs that are terminated, in whole or in part, by requirements in a given AD. Although compliance with certain requirements in AD 2011-20-07 affects this AD, the opposite is not true (i.e., this AD does not affect compliance with AD 2011-20-07). Therefore, we have not changed this AD regarding this issue.

Boeing stated that the NPRM defines the unsafe condition for fuel tank ignition prevention and fuel tank flammability exposure reduction, but not the unsafe condition related to engine fuel suction feed. Because the proposed AD also requires the incorporation of the AWL for engine fuel suction feed testing, Boeing asserted that the unsafe condition associated with engine fuel suction feed should also be specified, and they proposed wording for the unsafe condition.

We partially agree with the commenter. We agree to specify the unsafe condition associated with engine fuel suction feed, but we disagree with the wording proposed by the commenter because this AD does not mandate repetitive operational tests of the engine fuel suction feed system. This AD requires only the incorporation of certain AWLs, not the repetitive operational tests or other procedures specified in them. We have changed paragraph (e) of this AD to include the unsafe condition involving engine fuel suction feed.

Boeing requested that we replace the word “latest” with “later” in certain subparagraphs of paragraph (g) of the proposed AD in which multiple compliance times are compared.

We do not agree with the commenter's request because the subparagraphs in question compare three compliance times; therefore, the superlative form “latest” is correct. We have not changed this AD in this regard.

Southwest Airlines stated that some airplanes could be out of compliance as of the effective date of the proposed AD because the initial 120-month compliance time specified in paragraph (g)(7) of the proposed AD may already have passed for those airplanes. Southwest Airlines requested that we change paragraph (g)(7) of the proposed AD to specify a grace period.

We agree to specify a grace period for those airplanes that could have passed the required compliance time specified in paragraph (g)(7) of this AD. Therefore, we have changed paragraph (g)(7) of this AD to specify a grace period of 24 months after the effective date of this AD.

Boeing stated that some of the wire types listed in paragraph (h)(1) of the proposed AD are not identified in FAA Advisory Circular 43-13-1B for the flammability aspect. Boeing also stated that they do not have arc-track test data for the wires listed in paragraph (h)(1) and therefore cannot accept the use and installation of these wire types on a Boeing product without written FAA approval of the wires. In addition, Boeing stated that it has data for TFE-2X Standard wall, but not for Roundit 2000NX and Varglas Types HO, HP, or HM and can therefore approve or recommend approval of only the TFE-2X Standard wall. Boeing requested that we delete paragraph (h) of the proposed AD or revise it to include an FAA-issued global alternative method of compliance (AMOC) that identifies the material listed in paragraph (h) of the proposed AD. Boeing stated that if the FAA decides to keep paragraph (h) of the proposed AD as it is, we should state that all materials listed in paragraph (h) of the proposed AD are approved by the FAA.

We do not agree with the commenter's request. Paragraph (h) of this AD allows alternative wire types and sleeving materials for certain wire types and sleeving materials identified in AWL No. 28-AWL-05. AWL No. 28-AWL-05 was originally mandated by AD 2008-10-10, Amendment 39-15516 (73 FR 25986, May 8, 2008) (“AD 2008-10-10”), which was later revised to AD 2008-10-10 R1, Amendment 39-16164 (75 FR 1529, January 12, 2010) (“AD 2008-10-10 R1”). Since the issuance of AD 2008-10-10 R1, which will be terminated by this AD, we have received numerous requests for approval of AMOCs from operators and supplemental type certificate (STC) holders (or applicants) to allow the installation of alternative wire types and sleeving. We evaluated certain attributes of those alternative wire types and sleeving for each installation, and issued numerous AMOC approvals for AD 2008-10-10 R1 based on our determination that the installation of those wire types and sleeving would provide an acceptable level of safety. The alternative wire types and sleeving specified in paragraph (h) of this AD were previously approved as an AMOC for AD 2008-10-10 R1. Although paragraph (h) of this AD provides certain allowances, it does not provide approval of alternative wire types and sleeving that are installed as part of an aircraft design change. Each applicant for any design change is responsible to show that the installation of alternative wire types and sleeving identified in paragraphs (h)(l) and (h)(2) of this AD complies with all applicable regulatory requirements, including flammability requirements, as the commenter pointed out. We have not changed this AD in this regard.

Delta Airlines (DAL) stated that the military wire specifications identified in paragraph (h)(1) of the proposed AD have been superseded. DAL requested that we revise paragraph (h)(1) of the proposed AD to identify additional wire type specifications.

We agree with the commenter and have revised paragraph (h)(l) of this AD to identify additional acceptable SAE and military wire type specifications.

Boeing stated that under AWL No. 28-AWL-05, the wall thickness requirement for TFE-2X sleeving is specified as “standard wall.” Boeing requested that we also specify the wall thickness requirement for Varglas Type HO, HP, and HM, that are allowed as alternative sleeving under paragraph (h)(2) of the proposed AD.

We do not agree with the commenter's request. As we explained in an earlier comment response, paragraph (h)(2) of this AD provides certain allowances for sleeving material to comply with AWL No. 28-AWL-05, but it does not provide approval of alternative sleeving that is installed as part of an aircraft design change. Each applicant for any design change is responsible to show that the installation of alternative sleeving identified in paragraph (h)(2) of this AD complies with all applicable regulatory requirements. This includes substantiation to show that sleeve installation, including the selection of sleeve thickness, is adequate to protect wires from chafing for the life of installation. We have not changed this AD regarding this issue.

Boeing stated that Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, Revision January 2017, specified by the proposed AD, is under review and subject to update. Boeing requested that we mandate a later revision of the service information.

We do not agree with the commenter's request. As stated in the Discussion section of this AD, we have determined that it is appropriate to require the same ALS revision (Revision January 2017) that was proposed in the NPRM. We have also adjusted the applicability of this AD to exclude those airplanes delivered with a later ALS revision (issued after Revision January 2017) as part of the type design.

Aviation Partners Boeing stated that accomplishing the STC ST00830SE does not affect the actions specified in the proposed AD.

We concur with the commenter that STC ST00830SE does not affect the accomplishment of the manufacturer's service instructions. Therefore, the installation of STC ST00830SE does not affect the ability to accomplish the actions required by this AD. We have not changed this AD in this regard.

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

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

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

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

We reviewed Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, Revision January 2017. This service information describes AWLs that include airworthiness limitation instructions (ALI) and critical design configuration control limitations (CDCCL) tasks related to fuel tank ignition prevention and the nitrogen generation system. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 1,850 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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 and associated appliances to the Director of the System Oversight Division.

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A319-131, A319-132, A319-133, A320-231, A320-232, A320-233, A321-131, A321-231, and A321-232 airplanes. The NPRM published in the Federal Register on May 4, 2018 (83 FR 19648). The NPRM was prompted by reports of FCD losses during take-off. The NPRM proposed to require modification and re-identification, or replacement, of certain FCDs, and installation of a placard in the flight deck.

We are issuing this AD to address in-flight loss of an FCD, which could result in damage to the airplane and injury to persons on the ground.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0178, dated September 15, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A319-131, A319-132, A319-133, A320-231, A320-232, A320-233, A321-131, A321-231, and A321-232 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-2018-0358.

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

The Air Line Pilots Association, International (ALPA) supported the NPRM.

United Airlines (UAL) requested that the compliance time stated in the proposed AD be extended from 18 months to 36 months to match the compliance time stated in AD 2017-13-10. UAL noted that both the proposed AD and AD 2017-13-10 address the same unsafe condition, but on different FCDs. UAL added that it has a mixture of FCD configurations, which will be subject to different compliance times.

We disagree with the commenter's request to extend the compliance time to 36 months. We based the compliance time for this AD on the compliance time required by the EASA MCAI, which was determined by considering the urgency associated with the unsafe condition, the availability of required parts, and the practical aspect of accomplishing the required modification within a timeframe that corresponds to the normal scheduled maintenance for most affected operators. In addition, the manufacturer recommended that the service bulletin be accomplished no later than March 28, 2019. We have not changed this AD in this regard.

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

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

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

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

Bombardier Short Brothers, PLC has issued Service Bulletin V25MFC-71-1003, dated September 28, 2016. The service information describes procedures for installing modified latches on the left and right engine FCDs, and re-identifying the FCDs. 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 557 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The NPRM published in the Federal Register on June 20, 2018 (83 FR 28553). The NPRM was prompted by reports of multiple in-flight departures of the aft belly fairing access panels. The NPRM proposed to require modification of the aft belly fairing access panels.

We are issuing this AD to address in-flight departures of the aft belly fairing access panels, which could result in runway hazards or hazards to people on the ground.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2017-31, dated September 22, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 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-2018-0546.

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

Bombardier requested that paragraph (h) of the proposed AD, “Credit for Previous Actions,” be revised to include Bombardier Service Request for Product Support Action 124026 (“SRPSA 124026”). The requester noted that Canadian AD CF-2017-31, dated September 22, 2017, included a statement that incorporation of the actions described in Bombardier SRPSA 124026 on an airplane satisfies the intent of the Canadian AD. The commenter also noted that Bombardier SRPSA 124026 was utilized on a U.S.-registered airplane having number N211PB and serial number 9378.

We agree with the commenter's request for the reasons provided by the commenter. We have added paragraph (h)(2) to this AD to provide credit for airplanes on which Bombardier SRPSA 124026 has been incorporated.

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

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

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

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

Bombardier has issued the following service information:

• Service Bulletin 700-1A11-53-025, Revision 01, dated December 16, 2016;

• Service Bulletin 700-53-050, Revision 01, dated December 16, 2016;

• Service Bulletin 700-53-5009, Revision 01, dated December 16, 2016; and

• Service Bulletin 700-53-6008, Revision 01, dated December 16, 2016.

This service information describes actions to modify the aft belly fairing access panels by replacing the attachments. These documents are distinct since they apply to different airplane models in different configurations. 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 110 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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 and associated appliances to the Director of the System Oversight Division.

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:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A330-200 Freighter, -200, and -300 series airplanes. The NPRM published in the Federal Register on June 4, 2018 (83 FR 25595). The NPRM was prompted by reports of AOA blockages not detected by upgraded FCPC software standards. The NPRM proposed to require upgrading certain FCPCs, which would terminate a certain airplane flight manual revision for certain airplanes. We are issuing this AD to address Alpha protection activation due to blocked AOA probes, which could result in reduced controllability of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0246R1, dated April 6, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A330-200 Freighter, -200, and -300 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-2018-0498.

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

The Air Line Pilots Association, International (ALPA) expressed support for the NPRM.

Delta Air Lines (Delta) asked that we further restrict the applicability identified in paragraph (c) of the proposed AD by including the effectivity in the referenced service information. Delta stated that operators should be held accountable only for airplanes on which an airworthiness concern exists, and those airplanes correspond to the effectivity of the referenced service information. Delta added that if there are airplanes outside of this effectivity, operators will incur costs to produce and maintain records for those airplanes, regardless of whether or not there is an unsafe condition. Delta asserted that the service information provides a list of production airplanes that will be, or will have been, delivered with the affected software.

We do agree to clarify the applicability. This AD is applicable to airplanes equipped with certain FCPC and not only to specific airplane manufacturer serial numbers (MSNs). For airplanes equipped with certain FCPC, only those that are in a pre-mod configuration as specified in paragraph (g) of this AD are required to do the upgrade specified in paragraph (h) of this AD. Airplanes in a post-mod configuration are not required to do an upgrade; however, they must comply with paragraph (k) of this AD. Paragraph (k) of this AD prohibits the installation of any software or hardware of a standard earlier than one listed in table 1 to paragraphs (h) and (k) of this AD on all airplanes identified in paragraph (c) of this AD. In order for this installation prohibition to be effective, airplanes in a post-mod configuration must be included in the applicability. We are also matching the applicability in the MCAI. Therefore, we have not changed this AD in this regard.

Delta asked that we remove references to Group 2 airplanes from paragraphs (g) and (k) of the proposed AD, “Definition of Groups” and “Parts Installation Prohibition,” respectively. Delta stated that Group 1 airplanes are those in pre-mod 206412, 206413, or 206414 configuration, as applicable; Group 2 airplanes are those in post-mod 206412, 206413, or 206414 configuration, as applicable. Delta added that Group 2 airplanes are those that do not require modification, since they are already equipped with the FCPC software; therefore, those airplanes should be excluded from the applicability since the unsafe condition does not exist on those airplanes. Delta noted that a Group 1/Group 2 definition is redundant to the applicability paragraph because that paragraph defines only those airplanes on which the unsafe condition exists. Delta also noted that the proposed language in paragraph (k) of the proposed AD would allow continued installation of existing hardware/software before the AD effective date and prohibit removal of the modification after the effective date of the AD.

We do not agree with the commenter's request. Airplanes in Groups 1 and 2 represent the total of the airplanes identified in paragraph (c) of the AD. Group 1 and Group 2 are defined in paragraph (g) of this AD to distinguish one from another, for the purpose of identifying the applicable requirements. Removing the definition of Group 2 airplanes from paragraph (g) of this AD would not remove Group 2 airplanes from the applicability. Airplanes in Group 2 may in the future be subject to the unsafe condition identified in this AD if an earlier standard of software or hardware is installed on that airplane. Therefore, so that Group 2 airplanes remain in an airworthy configuration after the effective date of the AD, paragraph (k) of this AD prohibits the installation of any software or hardware of a standard earlier than that listed in table 1 to paragraphs (h) and (k) of this AD. Therefore, we have not changed this AD in this regard.

Delta asked that we change paragraph (h) of the proposed AD to allow use of subsequent service bulletins. Delta stated that the FCPC software standard has changed approximately every two years. Delta noted that adding the term “or relative later software standard” will allow operators to immediately install the latest software standard without having to request an alternative method of compliance (AMOC).

We disagree with the commenter's request. In general terms, we are required by the Office of the Federal Register (OFR) regulations to either publish the service document contents as part of the actual AD language; or submit the service document to the OFR for approval as “referenced” material, in which case we may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR approved it for “incorporation by reference.” See 1 CFR part 51.

To allow operators to use later revisions of the referenced document (issued after publication of the AD), either we must revise the AD to reference specific later revisions, or operators must request approval to use later revisions or later software standards as an AMOC for this AD under the provisions of paragraph (l)(1) of this AD. We have not changed this AD in this regard.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this 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 the following service information:

• Service Bulletin A330-27-3222, dated February 16, 2017.

• Service Bulletin A330-27-3223, dated June 6, 2017.

This service information describes procedures for upgrading (by modification or replacement, as applicable) certain FCPCs. These documents are distinct since they apply to different airplanes in different configurations. 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 103 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all known costs in our cost estimate.

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 and associated appliances to the Director of the System Oversight Division.

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2017-20-06, Amendment 39-19063 (82 FR 46379, October 5, 2017), (“AD 2017-20-06”). AD 2017-20-06 applied to certain Honeywell International Inc. (Honeywell) AS907-1-1A turbofan engines. The NPRM published in the Federal Register on January 30, 2018 (83 FR 4167). The NPRM was prompted by the need to clarify the Applicability and Compliance sections of AD 2017-20-06. The NPRM proposed to continue to require one-time inspection of the LPT2 blades and, if the blades fail the inspection, the replacement of the blades with a part eligible for installation. We are issuing this AD to address the unsafe condition on these products.

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

Bombardier Aerospace (Bombardier) requested that the compliance requirements of the AD be aligned with Honeywell SB AS907-72-9067, Revision 1, dated March 20, 2017. Bombardier asked that we remove the requirements for measured wear requirements for recording of wear. Bombardier noted that Honeywell SB AS907-72-9067 requires contact between the LPT2 rotor blade Z-gap.

We disagree. Honeywell SB AS907-72-9067, Revision 1, dated March 20, 2017 and the compliance section of this AD provide the same guidance for measuring and recording wear with a borescope at the LPT2 blade shroud Z-gap. Reported borescope inspections of high-time engines show that blade-to-blade contact at the Z-gap is difficult to measure with a borescope. The FAA and Honeywell agree that the measured wear limit of 0.005″, as defined by the Honeywell Light Maintenance Manual (LMM) AS907-1-1A, 72-00-00, is acceptable for this AD.

Additionally, the FAA disagrees with the request to remove the requirement for recordings of the borescope inspection. We find that making these recordings with a clean digital image helps us to identify wear characteristics, severity, and cumulative damage of LPT2 blade assembly and to provide future borescope requirements for LPT blade maintenance. We did not change this AD.

Bombardier Aerospace requested that we align the cost estimates in this AD with the cost estimates in Honeywell's SB.

We disagree. The slight differences in costs between the NPRM and Honeywell's SB reflect the additional recording requirements in this AD. We did not change this AD.

The intent of the NPRM was to limit the applicability of this AD to affected blades that have more than 8,000 hours since new on November 9, 2017 (the effective date of AD 2017-20-06). We therefore revised the applicability to refer to “November 9, 2017,” instead of “the effective date of this AD.”

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed.

We reviewed Honeywell SB AS907-72-9067, Revision 1, dated March 20, 2017. This SB describes procedures for inspecting the LPT2 blades. 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 reviewed Honeywell SB AS907-72-9067, Revision 0, dated December 12, 2016, which also describes procedures for inspecting the LPT2 blades. We also reviewed the Honeywell LMM AS907-1-1A, 72-00-00, Section 72-05-12, dated May 25, 2016, and Section 72-55-03, dated September 27, 2011, which provide additional guidance for performing borescope inspections.

We estimate that this AD affects 40 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We estimate that 40 engines will need this replacement.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a 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 currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

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

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

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

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

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

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

The FAA published a notice of proposed rulemaking in the Federal Register (82 FR 16258; April 16, 2018) for Docket No. FAA-2017-1200 to establish Class E airspace extending upward from 700 feet above the surface at Reedley Municipal Airport, Reedley, CA. 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 7400.11C, dated August 13, 2018, and effective September 15, 2018, 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 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C 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 within 2 miles east and 4 miles west of the 168° and 348° bearings from the airport extending to 6.1 miles south and 6.5 miles north of the airport, respectively, to accommodate new RNAV standard instrument approach procedures for instrument flight rules (IFR) operations at Reedley Municipal Airport, Reedley, CA.

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, 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:

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 Wayne County Airport, Wooster, OH, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (83 FR 35570; July 27, 2018) for Docket No. FAA-2018-0370 to amend Class E airspace extending upward from 700 feet above the surface at Wayne County Airport, Wooster, OH. 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 7400.11C, dated August 13, 2018, and effective September 15, 2018, 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 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface at Wayne County Airport, Wooster, OH, by removing the extension to the east associated with the Smith non-directional radio beacon. The geographic coordinates of the airport are updated to coincide with the FAA's aeronautical database. Exclusionary language is removed as it is no longer required. And, the name of the city associated with the airport in the airspace description is removed to comply with a change to FAA Order 7400.2L, Procedures for Handling Airspace Matters.

This action is necessary due to an airspace review caused by the decommissioning of the Tiverton 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:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would support IFR operations at Austin Executive Airport, Austin, TX.

On February 1, 2018, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class D and Class E surface airspace, and amend Class E airspace extending upward from 700 feet above the surface at Austin Executive Airport, Austin, TX (83 FR 4613) Docket No. FAA-2017-9378.

Subsequent to publication, the FAA found the Class C airspace exclusion was omitted from the Class D airspace description for Austin Executive Airport. Also, the geographic coordinates for Lago Vista-Rusty Allen Airport are updated in this rule.

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 proposal.

In their comment, AOPA stated that the NPRM did not comply with FAA guidance in FAA Order 7400.2L, Procedures for Handling Airspace Matters, because a graphic was not included in the docket. Additionally, AOPA encouraged the FAA to follow their guidance in the Order by making the action effective date coincidental to the sectional chart publication date.

The FAA has determined AOPA's comments raised no substantive issues with respect to the proposed changes to the airspace addressed in the NPRM. To the extent the FAA failed to follow its policy guidance reference publishing graphics in the docket and establishing the Class D airspace effective date to match the sectional chart date, we note the following.

Specific to AOPA's comment regarding the FAA already creating a graphical depiction of new or modified airspace overlaid on a Sectional Chart for quality assurance purposes, this is not correct nor required in all cases. During the airspace reviews, airspace graphics may be created, if deemed necessary, to determine if there are any terrain issues, or if cases are considered complex. However, in many cases when developing an airspace amendment proposal, a graphic is not required.

With respect to AOPA's comment addressing effective dates, FAA Order 7400.2L, paragraph 2-3-7.a.4. states that, to the extent practicable, Class D airspace area and restricted area rules should become effective on a sectional chart date and that consideration should be given to selecting a sectional chart date that matches a 56-day en route chart cycle date. The FAA does consider Class D and E airspace amendment effective dates to coincide with the publication of sectional charts, to the extent practicable; however, this consideration is accomplished after the NPRM comment period ends in the final rule. Substantive comments received to NPRMs, flight safety concerns, management of IFR operations at affected airports, and immediacy of required proposed airspace amendments are some of the factors that must be taken into consideration when selecting the appropriate effective date. After considering all factors, the FAA may determine that selecting an effective date that conforms to a 56-day en route chart cycle date that is not coincidental to sectional chart dates is better for the National Airspace System and its users than awaiting the next sectional chart date.

Class D and E airspace designations are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA amends Title 14 Code of Federal Regulations (14 CFR) part 71 by:

Establishing Class D airspace at Austin Executive Airport, Austin, TX, within a 4.1-mile radius of the airport, and adding to the airspace description “excluding the Austin Class C airspace”. Establishing Class E surface airspace within a 4.1-mile radius of Austin Executive Airport, Austin, TX; and

Amending Class E airspace extending upward from 700 feet above the surface to within a 6.3-mile radius (decreased from a 6.5-mile radius) of Austin Executive Airport, and within 2 miles each side of the 131° bearing (previously the 132° bearing) from the airport extending from the 6.3-mile radius to 11.3 miles (increased from a 10.4-miles) southeast of the airport, and within 2 miles each side of the 311° bearing from the airport extending from the 6.3-mile radius to 10.5 miles (decreased from 11.2 miles) northwest of the airport. Also, due to a change to FAA Order 7400.2L, Procedures for Handling Airspace Matters, the city name is removed from Lakeway Airpark, Austin Executive Airport, and Lago Vista-Rusty Allen Airport.

Class D and E airspace areas are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11C, dated August 13, 2018, and effective September 15, 2018, 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.

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:

We published final rules in the Federal Register on January 18, 2017 (82 FR 5844, corrected March 27, 2017, at 82 FR 15132) titled Revisions to Rules Regarding the Evaluation of Medical Evidence. The final rules, among other things, amended the regulatory text for acceptable medical sources by adding licensed audiologists to the list of acceptable medical sources in 20 CFR 416.902(a)(6). We inadvertently included duplicative wording in that section of the rules. This document amends the regulations by deleting the duplication of three words (for impairments of) and corrects the final rules.

Accordingly, 20 CFR part 416, subpart I is corrected by making the following correcting amendment:

PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminated single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's website (http://www.pbgc.gov).

PBGC uses the interest assumptions in appendix B to part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in appendices B and C of the benefit payment regulation are the same.

The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for November 2018.1

The November 2018 interest assumptions under the benefit payments regulation will be 1.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for October 2018, these assumptions represent no change in the immediate rate and are otherwise unchanged.

PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during November 2018, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR part 4022 is amended as follows:

The California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over the Sacramento River, at Sacramento, CA. The drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position from 8 a.m. to 10 a.m. on October 20, 2018, to allow the community to participate in the Be the Gift 5K walk/run. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

The Cianbro Corporation, on behalf of the Maryland Transportation Authority, owner and operator of the I695 Bridge across Curtis Creek, mile 1.0, at Baltimore, MD, has requested a temporary deviation from the current operating schedule to accommodate maintenance. The current operating regulation is set out in 33 CFR 117.557.

Under this temporary deviation, the east bascule draw of the south span will be maintained in closed-to-navigation position and the west bascule draw of the south span will be maintained in the open-to-navigation position from 7 a.m. on October 1, 2018, through 7 p.m. on October 19, 2018. The north span will open on signal if at least a one-hour notice is given. At all other times the bridge will operate per 33 CFR 117.557. During the closure of the east bascule draw of the south span, the I695 Bridge will provide 100 feet of horizontal clearance and unlimited vertical clearance in the open position and 200 feet of horizontal clearance and 58 feet of vertical clearance above mean high water in the closed position.

Curtis Creek is used by military vessels, recreational vessels, tug and barge traffic, fishing vessels, and small commercial vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway and coordinated with maritime stakeholders in publishing this temporary deviation.

Vessels able to pass through the bridge in the closed position or with the east bascule draw of the south span in the closed position may do so at any time. The bridge will be able to open on signal for emergency or urgent vessel transits from 7 a.m. to 7 p.m., Monday through Saturday, if at least a one-hour notice is given; and from 7 p.m. to 7 a.m., and from 7 a.m. to 7 p.m. on Sunday, October 7, 2018, and Sunday, October 14, 2018, if at least a four-hour notice is given. There is no immediate alternate route for vessels unable to pass through the bridge in the closed position or with the east bascule draw of the north span in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by this temporary deviation.

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

On September 5, 2018 the Coast Guard published a Notice of Proposed Rulemaking (NPRM) titled Head of the Buffalo Regatta; Buffalo River, Buffalo, NY § 165.T09-0832. In that we discussed why we issued the NPRM and invited comments on our proposed regulatory action related to this regatta. The comment period ended October 5, 2018; we received one comment relating to the event. The comment questions whether economic factor were considered in the proposed rule. Our economic analysis in section V below did consider the economic ramifications of the proposed rule. The comment also questioned whether the canalside businesses would lose money. The proposed rule allows for vessels to transit through it when permitted by the COTP. The comment also questioned whether the rule would affect the operation of the lift bridges, but this rule does not affect the operation of the bridges.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Buffalo (COTP) has determined that a large-scale paddle craft event on a navigable waterway will pose a significant risk to participants and the boating public. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the Head of the Buffalo Regatta is happening.

As noted above, we received one comment on our NPRM published September 5, 2018, and there was no objection to the proposed rule. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 8:00 a.m. until 6:00 p.m. on October 20, 2018. The safety zone will cover all navigable waters between the two points starting at position 42°52′19.4″ N, 78°52′25.3″ W, and ending at position 42°51′36.7″ N, 78°50′56.0″ W, on the Buffalo River, Buffalo, NY. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled rowboat races between 8 a.m. and 6 p.m.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the COTP Buffalo or his designated on-scene representative. The COTP or his designated on-scene representative may be contacted via VHF Channel 16.

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 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the characteristics of the safety zone. The safety zone created by this rule will be relatively small and is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. In addition, the safety zone will designate times when races are not occurring; allowing vessels to travel through the safety zone. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the COTP.

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 received no comments from the Small Business Administration on this rulemaking. 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 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 (Public Law 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 Order13132.

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.

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 establishment of a safety zone. 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:

On July 11, 2018 (83 FR 32068), the Office published a Notice of Proposed Rulemaking (“NPRM”) to streamline the administration of digital audio recording technology (DART) royalty accounts and the statement of account royalty payment processes. Specifically, the Copyright Office proposed to codify the manner in which it would exercise its statutory authority to close out DART royalty payment accounts under 17 U.S.C. 1005, and to implement what it considered to be a technical change regarding requirements for payment of royalty fees by electronic funds transfer (EFT) for each of the cable, satellite, and DART royalty licenses. In response to the publication of the proposed rule, the Office did not receive any substantive comments. Consequently, the Office is adopting the previously proposed text as a final rule.

Close-out of DART fund accounts. In the NPRM, the Office proposed to codify a new procedure for closing out DART royalty payments accounts under section 1005 of the Copyright Act and to update its regulations governing online payment procedures for cable, satellite, and DART statements of account to no longer require royalty fees to be made by a single, lump sum payment.

As noted in the NPRM, the Audio Home Recording Act of 1992 (AHRA) 1 amended title 17 to require parties who manufacture and distribute or import and distribute any digital audio recording devices or media in the United States to file DART statements of account and to make royalty payments.2 Congress delegated to the Copyright Office and the Copyright Royalty Tribunal (“CRT”)—a predecessor to the system administered by the Copyright Royalty Judges (“CRJs”)—authority to administer the royalty system under chapter 10.3 Under section 1003, the importer or manufacturer of a digital audio recording device or media files quarterly and annual statements of account with respect to distribution(s), accompanied by royalty payments.4 After deducting the reasonable costs incurred for administering this license, the Register then deposits the remaining balance with the Treasury of the United States, which is divided between a sound recording fund and a musical works fund, and then subdivided into various subfunds.5 Under the Copyright Act, the Licensing Division of the Copyright Office administers these funds and distributes them to copyright owners pursuant to the CRJs' distribution orders.6

After the Licensing Division has distributed the royalty funds pursuant to the CRJs order, however, small royalty balances can still be attributed to these subfunds unless the Copyright Office has formally closed them out.7 Maintaining these small amounts in separate funds creates administrative expenses for the Licensing Division, and the transaction costs associated with distributing such small amounts of money can exceed the amount of money remaining in these accounts. Section 1005 gives the Register discretion to close out the royalty payments account for a calendar year four years after the close of that year, and attribute “any funds remaining in [the] account and any subsequent deposits that would otherwise be attributable to that calendar year as attributable to the succeeding calendar year.” 8 In practice, the Register has not previously established a procedure to exercise this discretion. The Office now adopts a rule codifying conditions by which she may close out royalty payments accounts. Specifically, the Office is adding a new section 201.31 instructing that, four years after the close of any calendar year, the Register of Copyrights may exercise her discretion to close out the royalty payments account for that calendar year, including any sub-accounts, that are subject to a final distribution order under which royalty payments have been disbursed. In accordance with section 1005, the Register will treat any funds remaining in such account or subsequent deposits as attributable to the closest succeeding calendar year.

Payment by Electronic Funds Transfer. Separately, the Licensing Division administers various statutory licensing schemes, including those requiring the submission of statements of account (“SOAs”) by cable systems, satellite carriers, and manufacturers or importers of digital audio recording devices and media.9 Pursuant to its statutory authority, the Copyright Office has promulgated regulations relating to each of these statutory licenses requiring that “[a]ll royalty fees shall be paid by a single electronic funds transfer.” 10 In practice, however, the Office has found that the requirement that remitters make royalty payments for multiple statements of account in a single, lump sum payment is unnecessarily restrictive and has hampered ongoing modernization efforts. In connection with the most recent satellite SOA form, the Copyright Office has announced that it “intends to transition to a single EFT payment method (Pay.gov) for making royalty payments.” 11

The new rule removes the requirement that filers submit multiple SOAs in a single EFT payment for the relevant statutory licenses. The current regulatory requirement that funds be submitted through EFT will remain in place.

For the reasons set forth in the preamble, the Copyright Office amends 37 CFR part 201 as follows:

Acronyms and Abbreviations. A number of acronyms and abbreviations are used in this preamble. While this may not be an exhaustive list, to ease the reading of this preamble and for reference purposes, the following terms and acronyms are defined:

Organization of this Document. The information in this preamble is organized as follows:

Categories and entities potentially affected by this final rule include, but are not limited to, facilities having a North American Industry Classification System (NAICS) code 325211. Facilities with this NAICS code are described as plastics material and resin manufacturing establishments, which includes facilities engaged in manufacturing amino resins and phenolic resins, as well as other plastic and resin types.

To determine whether your facility would be affected by this final action, you should examine the applicability criteria in 40 CFR 63.1400. If you have any questions regarding the applicability of any aspect of this final action, please contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

The docket number for this final action regarding the APR NESHAP is Docket ID No. EPA-HQ-OAR-2012-0133.

In addition to being available in the docket, an electronic copy of this final action will also be available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at https://www.epa.gov/stationary-sourcesair-pollution/manufactureaminophenolic-resins-nationalemission-standards. Following publication in the Federal Register, the EPA will post the Federal Register version and key technical documents on this same website.

Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit (the Court) by December 14, 2018. Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Note, under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements.

This section also provides a mechanism for the EPA to reconsider the rule “[i]f the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, EPA WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

On October 8, 2014, the EPA completed the residual risk and technology review of the January 20, 2000, APR MACT standards (65 FR 3276), and published its final rule amending the NESHAP for the APR Production source category at 40 CFR part 63, subpart OOO (79 FR 60898). Following promulgation of the October 2014 final rule, the EPA received three petitions for reconsideration from the Sierra Club, Tembec BTLSR (“Tembec”) (now Rayonier Advanced Materials Inc.), and Georgia-Pacific LLC (“Georgia-Pacific”), requesting administrative reconsideration of amended 40 CFR part 63, subpart OOO under CAA section 307(d)(7)(B).

In partial response to the petitions, the EPA reconsidered and requested comment on two distinct issues in the proposed rule amendments, published in the Federal Register on August 24, 2017 (82 FR 40103). These issues included: (1) The analysis, supporting data, and resulting emission standards for CPVs at existing sources; and (2) planned routine maintenance of emission control systems used to reduce hazardous air pollutants (HAP) emissions from storage vessels.

In addition, while the EPA granted reconsideration on the pressure relief device issues raised in one of the petitions for reconsideration, the EPA did not address this issue in the August 24, 2017, proposal and intends to address those issues separately in a future action.

We received public comments on the proposed rule amendments from five parties. Copies of all comments submitted are available at the EPA Docket Center Public Reading Room. Comments are also available electronically through https://www.regulations.gov by searching Docket ID No. EPA-HQ-OAR-2012-0133.

In this document, the EPA is taking final action with respect to the issues on reconsideration addressed in the August 2017 proposal. Section III of this preamble summarizes the proposed rule amendments and the final rule amendments, presents public comments received on the proposed amendments and the EPA's responses to those comments, and explains our rationale for the rule revisions published here.

The two reconsideration issues for which amendments are being finalized in this rulemaking are: (1) The analysis, supporting data, and resulting emission standards for CPVs at existing sources; and (2) planned routine maintenance of emission control systems used to reduce HAP emissions from storage vessels. In this rulemaking, we are also finalizing several minor technical corrections to the regulation text of 40 CFR part 63, subpart OOO.

In the August 2017 proposed amendments to 40 CFR part 63, subpart OOO, we proposed a revised emissions limit for CPVs at existing sources, addressing only back-end CPVs.

In addition, we requested comments on the following issues: (1) Whether the existing compliance date or another date for back-end CPVs is appropriate if the standard is revised; and (2) whether the EPA should promulgate a separate standard for front-end CPVs at existing sources and whether there are other front-end CPVs in the source category beyond those identified by the EPA.

For back-end CPVs at existing sources, we proposed a production-based HAP emission limit of 8.6 pounds of HAP per ton of resin produced. This emissions limit represents the MACT floor based on 2015 test data provided by Georgia-Pacific and Tembec, the only two companies in the source category with back-end CPVs. We also solicited comments on whether existing facilities would need additional time to comply with the proposed revised back-end CPV standards, noting that the compliance date in the October 2014 final rule is October 9, 2017, and that the APR NESHAP at 40 CFR 63.1401(d) provides the opportunity for existing facilities, on a case-by-case basis, to request a compliance extension from their permitting authorities of up to 1 year, if necessary, to install controls to meet a standard.

The EPA identified two front-end CPVs at APR production existing sources at proposal and requested information about any other front-end CPVs in the source category. Due to the characteristics of these two CPVs, we noted that these CPVs could be subcategorized into two types—reactor and non-reactor front-end CPVs, and separate standards for the two types of front-end CPVs would be consistent with how reactor and non-reactor vents have been regulated for batch processes for the APR Production source category. We also stated that if no other reactor or non-reactor front-end CPVs at existing affected sources were identified, or if no additional data were provided for any such CPVs, the EPA would consider adopting final revised standards for front-end CPVs at existing sources based on existing information. Based on our analysis of the data provided by Georgia-Pacific for its front-end reactor CPVs, we proposed that the MACT floor for front-end reactor CPVs at existing sources would be 0.61 pounds of HAP per hour. Based on our analysis of the data provided by INEOS Melamines for its front-end non-reactor CPV, we proposed that the MACT floor for front-end non-reactor CPVs at existing sources would be 0.022 pounds of HAP per hour. We received no information about any additional front-end CPVs during the comment period.

The following is a summary of the significant comments received on the proposed amendments to CPV standards at existing sources and our responses to these comments.

Comment: One commenter stated that the EPA's updated risk analysis for INEOS Melamines and for the category are underestimated for reasons it has stated in comments on the October 2014 rule for this source category. The commenter also said the new analysis for INEOS Melamines only considers risks from formaldehyde and fails to consider the risks from other HAP emitted by the facility or the cumulative risks to the community from other pollution sources.

Response: We addressed the commenter's concerns regarding cumulative risks (and the various reasons the commenter claimed the risks were underestimated) in previous analyses in our October 2014 response to comments (Document EPA-HQ-OAR-2012-0133-0066). These same responses still apply and are not repeated here. Regarding the risk analysis for INEOS Melamines, the commenter is mistaken in asserting that the analysis only included formaldehyde. The risk analysis for the facility included all HAP emissions from equipment in the source category, and these HAP include both formaldehyde and methanol. As we noted in the August 2017 proposal, the 2014 risk modeling analysis indicated that the INEOS Melamines facility maximum individual risk (MIR) was estimated to be 0.4-in-1 million. As the risk driver was formaldehyde, we mentioned in the August 2017 proposal that the input files included 0.375 tons of formaldehyde emissions. We also discussed in the proposal that information received from INEOS Melamines indicated there were additional emissions of less than 0.03 tons per year from its non-reactor front-end CPV that were not accounted for in the 2014 modeling analysis. We explained in the proposal that when including these additional emissions in the risk estimate for the facility, the facility MIR would be about the same (less than 1-in-1 million), and we determined that additional quantitative risk analyses for this facility are not necessary. No updates to the risk analysis were made to other facilities, and the overall estimation of risks for the source category remain unchanged.

Comment: Several commenters were concerned about the proposed elimination of the use of the Total Resource Effectiveness (TRE) value as a compliance option for continuous process vents at an existing affected source. The commenters noted that the TRE provision is found in numerous other rules, such as the Hazardous Organic NESHAP (HON) and the Miscellaneous Organic NESHAP (MON). The commenters stated that the TRE provides facilities with the flexibility to reduce emissions in the most cost-effective manner. The commenters also stated that the EPA has not articulated a rational basis for eliminating the TRE and that the EPA should maintain the current TRE for this and all other rules affecting continuous process vents. The commenters further stated that by keeping the TRE for continuous process vents at a new affected source, but eliminating it for existing sources, the requirements for existing sources would become more restrictive and costly than those for new affected sources.

Response: In the development of the MACT requirements for this NESHAP and in other rules, such as the HON and the MON, a TRE was included in the rule to help define the regulated process vents. In those rules, data for only a portion of the process vents in the existing source category were available to base the MACT floor and beyond-the-floor analyses upon. To ensure the rule required control for all process vents in the source category that were similar to those for which the MACT floor and the level of the standard was set, the TRE was used. This value ensures that all the process vents in the source category with comparable characteristics, such as flow rate, emission rate, net heating value, etc., as the process vents used to establish the level of the standard are the ones required to meet the established level of control. In this case, the EPA now has information for every CPV at an existing source in this source category, and the characteristics of every CPV were considered in establishing the proposed revised MACT standards. Therefore, a TRE value is not necessary to define the regulated CPVs at existing sources.

For CPVs at new sources, the EPA did not propose to eliminate the TRE. Keeping the TRE for CPVs at these sources will continue to ensure the representativeness of the process vent on which the emission standards were based to the process vents regulated by that standard, as it is unknown what characteristics any future process vents will have. The commenters are not correct in their assertion that without the inclusion of the TRE, the proposed revised existing source requirements will become more restrictive and costly than the standards for new sources. The CPVs at new sources with characteristics similar to the vent on which the standard is based will be required to have greater emissions reductions than the reductions effectively required for existing sources (i.e., 85-percent reduction for new sources compared to approximately 50-percent reduction in emissions for the two existing CPVs that require control to meet the MACT standard).

Comment: One commenter expressed dissatisfaction with the EPA's beyond-the-floor analysis for the proposed existing source standards for back-end CPVs. The commenter stated that the EPA only examined new regenerative thermal oxidizers (RTOs) and did not consider less costly options, such as using existing controls or conducting process changes. The commenter also stated that the EPA did not address whether additional beyond-the-floor reductions would be achievable. The commenter further stated that cost effectiveness is a measure of whether the benefits of a particular action are worth the cost, and the EPA's practice of comparing marginal cost for beyond-the-floor options relative to the costs of the reductions achieved by the MACT floor does not answer the question of whether the beyond-the-floor option is cost effective.

Response: In evaluating the beyond-the-floor emissions control options, we considered control technologies and strategies that would be technologically feasible for the facilities in the source category that have these process vents. In this case, RTO is the only control technology known that could treat the low HAP concentration, high air flow exhaust from these vents. We explained in the memorandum, “Proposed Revised MACT Floor and Beyond-the-Floor Analysis for Back-End Continuous Process Vents at Existing Sources in the Amino and Phenolic Resins Production Source Category,” which is available in the docket for this action, that we also considered scrubbers and carbon adsorbers in this analysis, but found them to be technologically infeasible for this application. While it may be possible that a facility could make process changes to reduce emissions, this would be highly facility-specific, and the EPA does not have information to suggest any particular type of process change would reduce HAP from these vents. We did explain that RTOs are capable of achieving emission rates beyond the MACT floor. We used the EPA's control cost manual to evaluate costs of control. We did not have enough information to evaluate the cost effectiveness of process changes that could be used to meet the standard. Regarding the cost effectiveness of the technologically available option, i.e., an RTO, we described the estimated cost of the beyond-the-floor option in the above-referenced memorandum. As shown in this memorandum, cost effectiveness was determined using capital and annual costs of an RTO, and the emissions reductions were determined using a baseline of no control compared to control using an RTO. The beyond-the-floor option was found to not be cost effective using these estimates.

Comment: One commenter generally supported the levels of the back-end CPV standards for existing sources, but has some concerns regarding the associated compliance assurance measures and definitions. For the back-end CPVs, the commenter requested that an option to achieve an 85 percent reduction be included to ensure the standards for existing sources are not more stringent than those for new sources. The commenter also requested that the EPA keep the formerly included 12-month rolling average emission rate for back-end CPVs to account for emissions variability between resin types. Additionally, the commenter suggested that the EPA not change the definitions for reactor batch process vent and non-reactor batch process vent to ensure there is no confusion regarding applicability of the batch process vent provisions. Further, the commenter stated that the EPA should specify that initial compliance performance tests be conducted at “maximum representative operating conditions.”

Response: We are not revising the format of the proposed standard for existing source back-end CPVs as the commenter requested. The 12-month rolling average emissions rate, formerly included in the October 2014 rule, was used to help account for variability in emission rates before the EPA had the information submitted by the facilities for each CPV, in which the highest HAP emitting resin was tested. The proposed standard accounted for variability in emissions while the highest HAP emitting resin was produced. Therefore, there is no need for compliance to be determined over a long period to account for variability in resins produced or the conditions present while producing high HAP emitting resins. The EPA is also not adding an 85-percent reduction compliance option for existing source back-end CPVs. In calculating the MACT floor, we determined the emissions limitation achieved by the best performing existing sources in the category based on the emissions per unit of resin produced. This production-based standard accounts for variability associated with the manufacturing process, including fluctuations in the amount of product produced and different types of product produced (i.e., various resin types), as well as possible future process modifications to alter other production variables. An 85-percent emissions reduction compliance option does not reflect the MACT floor level of control for back-end CPVs at existing sources.

The proposed revised rule contains definitions for “batch process vent,” “continuous process vent,” “non-reactor process vent,” and “reactor process vent.” It is clear from these definitions that the rule provisions pertaining to “reactor batch process vents” and “non-reactor batch process vents” include only those vents that are “batch process vents.” It is also clear that the rule provisions pertaining to “reactor continuous process vents” and “non-reactor continuous process vents” include only those vents that are “continuous process vents.” Therefore, as the applicability of the rule provisions is sufficiently clear with these definitions, we have not added or changed the definitions related to these vents in the final rule beyond what was proposed.

We agree with the commenter that the initial compliance performance test should be conducted at “maximum representative operating conditions.” However, as this is already a specified condition for performance tests in 40 CFR 63.1413(a)(2)(ii)(A), we have not further revised the regulatory text.

Comment: One commenter stated that use of an upper predictive limit (UPL) in the standards for back-end CPVs at existing sources is not justified, since the EPA has extensive data for all the sources subject to the standard. The commenter stated that with such a comprehensive data set, it is likely that all variability is already accounted for, and there is no justification to assume there is additional variability that needs to be accounted for. The commenter also stated that the EPA did not disclose the actual emissions levels obtained by the sources in the category in the units of measurement used for the proposed standards and only presents the emission rates estimated by the UPL. The commenter stated that the standards are further weakened by not being required to determine compliance using the resin resulting in the highest HAP emissions, the way the MACT floor was calculated, but instead requiring compliance based on the resin with the highest HAP content. The commenter also stated that the alternative percent-reduction and concentration-based limits do not reflect emissions reductions achieved by best-performing sources.

Response: While we agree with the commenter that the EPA has a comprehensive data set for the back-end CPVs in the source category, the use of the UPL is justified to account for variability that occurs due to process conditions when producing the highest HAP-emitting resins. We calculated the UPL values for each back-end CPV with that CPV's highest HAP-emitting resin to take this variability into consideration. As discussed in detail in the MACT floor memorandum, “Proposed Revised MACT Floor and Beyond-the-Floor Analysis for Back-End Continuous Process Vents at Existing Sources in the Amino and Phenolic Resins Production Source Category,” which is available in the docket for this action, we used the arithmetic average of the UPLs of the five best-performing back-end CPVs to calculate the MACT floor. To respond to the commenter's concerns about the calculation of the UPL, we have summarized the emissions information used to calculate the UPL values for each back-end CPV and included this information in a memorandum titled “Addendum to Proposed Revised MACT Floor and Beyond-the-Floor Analysis for Back-End Continuous Process Vents at Existing Sources in the Amino and Phenolic Resins Production Source Category” to the docket for this action. Regarding the compliance determination based on the resin with the highest HAP content, for these back-end CPVs, the liquid resin having the highest HAP content is the condition for which the highest HAP emissions result. This occurs because no significant quantities of HAP are created or destroyed in the drying process, and the drying process moves nearly all HAP in the liquid resin to the dryer vent (i.e., back-end CPV). In addition, 40 CFR 63.1413(a)(2)(ii)(A) specifies that performance tests used to demonstrate compliance must be under “maximum representative operating conditions,” as defined at 40 CFR 63.1402. This term specifies conditions which reflect the highest organic HAP emissions reasonably expected to be vented to the control device or emitted to the atmosphere.

Regarding the alternative standards included in the rule for CPVs, the alternative standard is not a percent reduction based standard and is only a concentration based alternative standard that represents the performance limits of combustion and non-combustion control technologies for low-HAP concentration airstreams. We did not propose to amend the alternative standard and are not making any amendments to the alternative standard in this action.

Comment: Two commenters responded to the EPA's request for comment about whether existing facilities would need additional time to comply with the proposed revised back-end CPV standards. One commenter stated that the EPA should not extend the compliance deadline, asserting that such an extension would contravene the CAA's provisions stating that CAA section 112 standards become effective upon promulgation. The commenter also noted that sources would be in compliance with the more stringent 2014 standard by October 2017, and CAA section 307(d)(7)(B) provides that the EPA shall not delay the effective date of a regulation more than 3 months pending reconsideration. Another commenter recommended that all existing sources impacted by any of the proposed emission limits, definitions, and work practice standards have an additional year to meet the proposed compliance requirements. The commenter stated that facilities would need time to further evaluate the impact of the rule change, evaluate and/or modify its compliance strategy, and implement the compliance measures.

Response: Pursuant to CAA section 112(i)(3)(A), the Agency is establishing a compliance date of 1 year from the promulgation date of the final standards for back-end CPVs at existing sources. We are establishing this compliance date with recognition that the original October 2017 compliance date has already passed, that several state agencies have already given sources 1 year compliance date extensions, and that the amended emissions standard for back-end CPVs at existing sources changes the numerical emission limitation. After promulgation of these standards, facility owners or operators will require time to reevaluate compliance options, potentially revise compliance strategies, and implement the strategies, which the EPA anticipates will entail the purchase and installation of emissions control devices at two sources. We are providing 1 year to allow for this evaluation and implementation, which we consider as expeditious as practicable given the need to evaluate compliance options and the anticipated installation and initial compliance determination of emission control equipment in order to meet the standards in this final rule. Additionally, since we are revising the standards for front-end CPVs at existing facilities, we are also establishing the same compliance date as for the back-end CPVs at existing sources. The reasons for the revised compliance date for front-end CPVs at existing sources are the same as those for the back-end CPVs, except that the EPA anticipates that sources will not need to purchase and install emissions control devices to achieve the front-end CPV standard. Regardless of whether control devices will need to be employed to achieve the standards for front-end CPVs at existing sources, the numeric value and format of the standard is revised and owners or operators of sources subject to these revised standards will need to alter how they demonstrate compliance. For front-end CPVs, the standard is being revised from 1.9 pounds of HAP per ton of resin produced, as specified in the October 2014 rule, to less than a pound of HAP per hour standard as revised in this action. This is a logical outgrowth of the proposal's discussion of the considered options for front-end CPVs at existing sources, for which the Agency solicited comments which yielded no identification of other front-end vents and no substantive comments regarding the discussed possible standards. The need to establish an expeditious yet reasonable compliance date for a revised standard is reasonable in light of our revising the standard in both numeric value and units of measure. The revised compliance deadline for CPVs at existing sources being established in this action is specified at 40 CFR 63.1401(b). In contrast, for the storage vessel standard for periods of planned routine maintenance, the option to comply through a work practice standard would only require planning not substantially different from what is necessary to implement the planned routine maintenance of the emissions control system and would not require any additional equipment. Therefore, the EPA has determined that this storage vessel standard can be implemented by the compliance date previously established, and we are not amending this compliance date for the finalized storage vessel amendments in this final action.

The EPA disagrees with the commenter's opinion that providing additional time to comply with the revised CPV standards is unlawful under the CAA. Although it is true that CAA section 112 provides that standards “shall be effective upon promulgation,” the commenter overlooks the fact that CAA section 112(i)(3)(A) clearly provides the EPA discretion to establish an appropriate compliance period to follow the “effective date” of standards. Similarly, although CAA section 307(d)(7)(B) speaks of potential delays of the effectiveness of a standard following receipt of a petition of reconsideration, that provision has no relevance to the decision the Agency makes under CAA section 112(i)(3)(A) to establish a compliance date following the promulgation of a standard.

Comment: One commenter noted there were several references in the proposed rule to 40 CFR 63.1405(b)(2)((i), (ii), and (iii), which were not included in the proposed rule language. The commenter also noted that there was no paragraph (i) or (ii) before 40 CFR 63.1413(h)(3)(ii)(B)(3)(iii). The commenter requested that the EPA correct the discrepancies and allow for an extended comment period on the technical corrections.

Response: The commenter is correct that several references to these paragraphs were included in the proposed rule language and that the paragraphs were not present in the proposed rule text. The paragraphs in which these references were located in the proposed rule text were 40 CFR 63.1413(c)(5), (c)(6), (h)(1)(i), (h)(3)(ii)(B)(4), and (h)(3)(iii), and 40 CFR 63.1416(f)(5) and (f)(6), and 40 CFR 63.1417(f)(15). In the final rule language, we have corrected this discrepancy by revising 40 CFR 63.1405(b) and including standards for reactor and non-reactor front-end CPVs at existing sources in 40 CFR 63.1405(b)(2)(ii) and (iii). We did not propose rule language for these front-end CPVs because we were taking comment on whether it would be appropriate to establish front-end CPV standards at existing sources for the source category and the associated value of the standard if there were front-end CPVs, other than the two we had identified, at existing affected sources. In the proposal, we discussed what the standard would be based on information available to the EPA at the time and provided a memorandum in the docket regarding calculation of the MACT floor and beyond-the-floor analysis. As no comments were received regarding additional front-end CPVs, and no other information indicates there are other existing source front-end CPVs in the source category, we have included the standards for front-end CPVs in the final rule. These standards are based on the existing information available to the EPA, as discussed at proposal. We have also corrected the numbering for 40 CFR 63.1413(h)(3)(ii)(B)(3). As the levels of the front-end CPV standards now included in the rule language were explained in our proposal, and no comments on the standards were received, we are not providing additional time for comment on these provisions.

The analyses regarding the emission standards for CPVs at existing source APR facilities has not changed since proposal, and our rationale for the standards are provided in the preamble for the proposed rule and in the responses to the comments presented above. For these reasons, we are finalizing the revised back-end CPV standards for existing sources of 8.6 pounds of HAP per ton of resin produced, as proposed in August 2017. We are also finalizing, for the reasons provided above, separate standards for reactor and non-reactor front-end CPVs at existing sources, as described in the August 2017 proposal. The standard for front-end reactor CPVs is 0.61 pounds of HAP per hour, and the standard for front-end non-reactor CPVs is 0.022 pounds of HAP per hour.

In its petition for reconsideration of the October 2014 final rule, Georgia Pacific requested that the EPA reconsider the applicability of the storage vessel HAP emissions standards when the emission control system for the vent on a fixed roof storage vessel is shut down for planned routine maintenance. In response to this request, the EPA reviewed and re-evaluated the standards for storage vessels, and we proposed a separate work practice standard for storage vessels during periods of planned routine maintenance of the storage vessel control device in the August 2017 proposed amendments to 40 CFR part 63, subpart OOO. This proposed work practice would allow owners or operators to bypass the control device for up to 240 hours per year during planned routine maintenance of the emission control system, provided there are no working losses from the vessel. This proposed standard would apply to fixed roof storage vessels at new and existing APR sources and represents the MACT floor level of control.

The following is a summary of the significant comments received on the proposed standards for planned routine maintenance of storage vessel emissions control systems and our responses to these comments.

Comment: One commenter stated that the EPA lacks authority to exempt sources from emissions standards during any period of time and asserted that the proposed work practice standard is merely an exemption for storage vessel emissions during control device planned routine maintenance. The commenter also asserted that the EPA has not met the statutory requirements specified in CAA section 112(h)(1)-(2) to authorize the Agency to issue a work practice standard rather than a numeric emission standard. The commenter further stated that the proposed work practice standards are not consistent with the requirements of CAA section 112(d), which sets forth requirements for determining the MACT floor and beyond-the-floor levels based on the emissions reductions achieved by the best performing similar sources. The commenter stated that the EPA has not determined the emissions achieved by the best performing sources or whether those sources have 240 hours of uncontrolled emissions annually. The commenter stated that the EPA failed to apply the CAA standards for beyond-the-floor determinations. On this point, the commenter noted that the EPA claims the use of carbon canisters for emissions control during storage vessel planned routine maintenance is achievable, but not cost effective, however, the EPA did not attempt to examine the benefits of reducing HAP during these periods. The commenter stated that the EPA did not disclose the data or methodology used in its estimate of 26 pounds per year per facility for routine maintenance emissions.

Response: First, there is no basis for the commenter's assertion that the proposed work practice standard is an exemption for storage vessel emissions during control device planned routine maintenance. The work practice standard establishes specific requirements that apply during up to 240 hours per year of planned routine maintenance of the control system. Specifically, the standard prohibits sources from increasing the level of material in the storage vessel during periods that the closed-vent system or control device is bypassed to perform planned routine maintenance. This standard minimizes emissions by ensuring that no working losses occur during such time periods. Working losses are the loss of stock vapors as a result of filling a storage vessel and are the majority of uncontrolled emissions for storage vessels having significant throughput. The proposed work practice standard does not allow working losses to occur. With working losses eliminated during this period, the only emissions that would occur are breathing losses (a.k.a. standing losses). Breathing losses occur due to the expansion and contraction of the vapor space in a fixed roof storage vessel from diurnal temperature changes and barometric pressure changes. Breathing losses occur without any change to the liquid level in the storage vessel. The breathing losses from a fixed roof storage vessel are small and highly variable because they are dependent upon the volume of the vapor space in the storage vessel and the meteorological conditions at the time.

Second, the storage vessel requirements in this rule were originally promulgated as CAA section 112(h) standards. The provisions establish two control options. One option is for the installation of a floating roof pursuant to 40 CFR part 63, subpart WW. This option is a combination of design, equipment, work practice, and operational standards. The other option is to install a conveyance system (pursuant to 40 CFR part 63, subpart SS) and route the emissions to a control device that achieves a 95-percent reduction in HAP emissions or that achieves a specific outlet HAP concentration. The second option is a combination of design standards, equipment standards, operational standards, and a percent reduction or outlet concentration. See the preamble to the original rulemaking for 40 CFR part 63, subpart OOO at 63 FR 68832 (12/14/1998) and the preamble to the HON at 57 FR 62608 (12/31/1992). In this action, we neither reopened nor accepted comment on the standards that apply during all periods other than the up to 240 hours of planned routine maintenance or any aspect of the original justification for the standards.

Third, the specific work practice requirement added in this action fulfills the purposes of section 112(h)(1) of the CAA, which calls on the Administrator to include requirements in work practice standards sufficient to assure the proper operation and maintenance of the design or equipment. The work practice standard added simply allows for the planned routine maintenance of the control device and minimizes emissions during such periods of planned routine maintenance, consistent with the requirements of CAA section 112(h)(1).

Fourth, the commenter did not provide any evidence to show that there is a methodology that could be applied to breathing losses from a fixed roof storage vessel that would be technologically and economically practicable. We have determined that it is not practicable due to technological and economic limitations, to apply measurement methodology to measure breathing losses from storage vessels during periods of planned routine maintenance. We have concluded that it would not be technically and economically practicable to measure breathing loss emissions with any degree of certainty to establish a numeric limit based upon the best performing sources because of the nature of the breathing losses. The breathing losses during the planned routine maintenance of the control system are highly dependent on the volume of the vapor space and the weather conditions during that time. It would be impractical to plan to test a storage vessel during the 10 days per year that have the both the weather conditions and the vapor space volume that would result in the most breathing losses. Specialized flow meters (such as mass flowmeters) would likely be needed in order to accurately measure any flow during these variable, no to low flow conditions. Measurement costs for these no to low flow durations of time would be economically impracticable, particularly in light of the small quantity of emissions. We have used AP-42 emissions estimate equations to estimate 10 days of breathing losses. See “Addendum to National Impacts Associated with Proposed Standards for CPVs and Storage Tanks in the Amino and Phenolic Resins Production Source Category” in the docket for this rule. We estimate that it would cost approximately $25,000 for three 1-hour testing runs on a single day. We calculated these costs based on industry average costs of deploying qualified individuals for a day and costs of performing the necessary tests on required equipment to determine the concentration and emission rate of HAP. The extremely low flow rate present would require a greater degree of monitoring plan and quality assurance project plan development than is typical. Specialized equipment that is not typically available may be required to measure flow rates under these conditions. We are not aware of any measurement of breathing loss HAP emissions from a fixed roof storage vessel in the field.

In the proposed rule, we also evaluated whether a backup control device capable of achieving the 95-percent reduction standard would be cost effective at controlling the remaining breathing losses. In the proposal, we explained that the use of such back-up control devices is not cost effective. To respond to the commenter's concern about the disclosure of the data and methodologies used to calculate the breathing losses for assessing the cost effectiveness of controlling such emissions, in the memorandum titled “Addendum to National Impacts Associated with Proposed Standards for CPVs and Storage Tanks in the Amino and Phenolic Resins Production Source Category,” we are providing a summary of the information used to calculate the breathing losses in the docket for this rule.

Therefore, we are finalizing the amendments to the storage vessel requirements, as proposed, allowing owners or operators of fixed roof vessels at new and existing affected APR sources to perform planned routine maintenance of the emission control system for up to 240 hours per year, provided there are no working losses from the vessel during that time.

Comment: One commenter supported the EPA's proposed work practice standards for storage vessels during planned routine maintenance of emission control systems. The commenter requested that the work practice standard also cover periods of malfunctions of the control device when it is temporarily incapable of controlling any emissions from the storage vessel. The commenter stated this would reduce the burden associated with required notifications of unpreventable failure of control equipment, which may not result in an exceedance of the emissions standard.

Response: While emissions from most equipment can be eliminated completely during routine maintenance of a control device, simply by not operating the process during those times, the same is not true for a storage vessel. The stored material in the vessel will continue to emit small amounts of volatile compounds due to breathing losses even when the control device is not operating. The only ways to avoid these emissions are to route the vapors from the stored material to another control device or to completely empty and degas the storage vessel prior to the maintenance activity. We proposed the 240 hour work practice standard to avoid having owners or operators empty and degas a storage vessel prior to completing planned routine maintenance, as this activity results in higher emissions than the small amounts of breathing losses that would result during the time the control device was not operating. While this work practice requirement prevents higher emissions than would result from the planned emptying and degassing activity that may take place prior to planned routine maintenance of a control device, the same emissions would not be avoided in the event of a malfunction. As malfunctions are not planned events, an owner or operator would not empty and degas a storage vessel prior to the malfunction. Since emissions would not be reduced and would possibly increase by including malfunctions in the work practice standard, we do not agree that it is not appropriate to include malfunctions in the standard. Consequently, the final rule does not adopt the commenter's suggestion.

Comment: One commenter requested that the EPA revise the proposed storage vessel control requirements to explicitly allow emissions to be routed to a process for re-use as a raw material rather than just to a control or recovery device, to be more consistent with the similar provisions contained in the HON.

Response: The standards in 40 CFR 63.1404(a)(1) refer to 40 CFR part 63, subpart SS, for storage vessel control requirements, stating, “Control shall be achieved by venting emissions through a closed vent system to any combination of control devices meeting the requirements of 40 CFR part 63, subpart SS (National Emission Standards for Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process).” The requirements of 40 CFR part 63, subpart SS, also include the ability to meet storage vessel emissions standards by routing emissions through a closed vent system to a fuel gas system or a process, which has been an option for control of storage vessel emissions meeting the standards of 40 CFR 63.1404(a)(1). We have revised 40 CFR 63.1404(a)(1) to clarify that compliance with the standards of 40 CFR 63.1404(a)(1) can be achieved by following the requirements of 40 CFR part 63, subpart SS, for routing emissions through a closed vent system to a fuel gas system or a process, which are included in the provisions and the title of the subpart. This clarification achieves the same result as the commenter's suggestion.

The analysis of the alternative work practice standards for storage vessels at new and existing APR facilities during planned routine maintenance of emission control systems has not changed since proposal. Therefore, for the reasons provided above, as well as in the preamble for the proposed rule, the EPA is finalizing, with minor clarifications, the proposed work practice standards for these periods of time. The work practice standards will permit owners or operators of fixed roof storage vessels at new and existing affected APR sources to bypass the emission control system for up to 240 hours per year during planned routine maintenance of the emission control system, provided there are no working losses from the fixed roof storage vessel. To prevent HAP emissions from working losses, owners or operators complying with the alternative work practice standards will not be permitted to add material to the storage vessel during control device planned routine maintenance periods.

We are making two minor clarifications to the requirements for storage vessels during planned routine maintenance of emission control systems. In this final rule, we have revised 40 CFR 63.1404(a)(1) to clarify that compliance with the standards of 40 CFR 63.1404(a)(1) can be achieved by following the requirements of 40 CFR part 63, subpart SS, for routing emissions through a closed vent system to a fuel gas system or a process. This revision will apply during times of normal operation, as well as during planned routine maintenance of the storage vessel emissions control system. We have also added language to the recordkeeping and reporting requirements in 40 CFR 63.1416(g)(6) and 40 CFR 63.1417(f)(16) for storage vessel control device planned routine maintenance. These requirements were inadvertently omitted from the proposed rule text.

In this rulemaking, we are making five technical corrections to improve the clarity of the APR NESHAP requirements.

First, the original APR NESHAP, promulgated in January 2000 (65 FR 3276), incorporated three voluntary consensus standards (VCS) by reference, as specified in 40 CFR 63.14. However, while the paragraphs in 40 CFR 63.14 for these three VCS include references to the NESHAP for which they are approved to be used, these references omit citations to 40 CFR 63, subpart OOO. In 40 CFR 63.14, we are adding citations to 40 CFR 63.1402 and 40 CFR 63.1412 for the following consensus standards: American Petroleum Institute Publication 2517, Evaporative Loss From External Floating-Roof Tanks; American Society for Testing and Materials Method D2879-83; and American Society for Testing and Materials Method D1946-90.

Second, we are also correcting a citation reference to 40 CFR 63.1413(d)(6)(iii)(A) in 40 CFR 63.1417(3)(9). The correct citation is to 40 CFR 63.1414(d)(6)(iii)(A).

Third, at 40 CFR 63.1403(a) and 40 CFR 63.1405(a)(2), we are correcting the reference to the title of 40 CFR part 63, subpart SS, i.e., “National Emission Standards for Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process.”

Fourth, at 40 CFR 63.1412(g)(2)(ii), we are adding the phrase “(Reapproved 1994) (incorporated by reference, see § 63.14)” immediately following “American Society for Testing and Materials D1946-90.”

Fifth, at 40 CFR 63.1404(c) and 40 CFR 63.1416(g)(6)(iii), we are replacing the undefined term “tank” with the defined term “storage vessel.”

We estimate that 11 to 16 existing sources will be affected by one or more of the revised requirements being finalized in this action. We expect one existing source will be subject to the revised front-end and back-end CPV requirements, one existing source will be subject to the revised front-end CPV requirements, and three existing sources will be subject to the back-end CPV requirements. We expect four of these five existing sources (and an additional six to 11 sources) will be able to take advantage of the storage vessel work practice standards during periods of planned routine maintenance of an emission control system that is used to comply with emissions standards for vents on fixed roof storage vessels.

We are finalizing a revised standard of 8.6 pounds of HAP per ton of resin produced for back-end CPVs at existing sources. We project the final standard will result in an estimated reduction of 207 tons of HAP per year beyond the January 2000 APR MACT standards, based on compliance with the alternative standard of 20 parts per million by volume for combustion control using RTOs. We estimate that the October 2014 rule would have required HAP emission reductions of 271 tons per year from CPVs at existing sources. We are also finalizing a standard of 0.61 pounds of HAP per hour for front-end reactor CPVs at existing sources and a standard of 0.022 pounds of HAP per hour for front-end non-reactor CPVs at existing sources. The front-end CPVs are anticipated to be able to meet the emission standards without additional controls, and we project that these final standards will not result in HAP emission reductions beyond the January 2000 APR MACT standards.

We are finalizing work practice standards to address emissions during periods of storage vessel emissions control system planned routine maintenance. The standards require that storage vessels not be filled during these times, which eliminates working losses, and limit the amount of time allowed annually for use of this work practice. We anticipate the revised work practice standards will reduce HAP emissions from those allowed under the January 2000 APR MACT standards by preventing working losses and limiting the annual duration of the maintenance period for which the work practice can be used, resulting in an estimated decrease of 0.9 tons of HAP per year per facility beyond the January 2000 APR MACT standards. When compared to the October 2014 rule, which required compliance with the storage vessel emissions standards at all times, including during times of planned routine maintenance of the emissions control system, the HAP emissions reduction may be slightly less than the 0.08 tons of HAP per year projected under the 2014 final rule.

For back-end CPVs at existing affected sources, we are finalizing a revised standard of 8.6 pounds of HAP per ton of resin produced. We project that back-end CPVs at two existing affected sources will require emissions controls to meet the revised standard. For cost purposes, we assumed that each facility would install an RTO. Based on discussions with Georgia-Pacific and Tembec, we understand that the facilities are exploring other options, such as process changes, that may be more cost effective. However, the technical feasibility and potential costs of these options are currently unknown, and our estimate of compliance costs, assuming the use of RTOs, is based on the best information available. We estimate the nationwide capital costs to be $4.8 million and annualized costs to be $2.1 million per year. These costs are incremental to those of the 2000 rule, which did not regulate CPVs at existing sources. Compared to our revised estimate of the October 2014 rule costs of $9.6 million in capital costs and annualized costs of $4.2 million,1 the revised standard represents an approximate 50-percent reduction in industry-wide costs. For front-end CPVs, we anticipate compliance with the emissions standards to be met without additional control, and we estimate there will be no capital or annualized costs associated with achieving these standards.

We estimated the nationwide annualized cost reductions associated with the final work practice standards for periods of planned routine maintenance of an emission control system that is used to comply with emissions standards for vents on fixed roof storage vessels. Compared to our revised cost estimate of the October 2014 rule,2 the final storage vessel work practice standards result in an annualized cost reduction for each facility of $830 per year, which includes a capital cost reduction of $1,600. We estimate the nationwide annualized cost reduction to be up to $12,450 per year based on an estimated 15 facilities.

We performed a national economic impact analysis for APR production facilities affected by this final rule. We anticipate that two existing affected sources would install RTOs to comply with this rule at a total annualized cost of $2.1 million (in 2014$) per year compared to the January 2000 rule. These total annualized costs of compliance are estimated to be approximately 0.002 percent of sales. Accordingly, we do not project this final rule to have a significant economic impact on the affected entities.

The estimated total annualized cost of this final rule can also be compared to the estimated cost for the industry to comply with all provisions of the October 2014 rule. Based on information received since the October 2014 rule was finalized and the issues reconsidered in this action, we developed a revised estimate of the cost to comply with the 2014 final rule. We estimate the revised annualized cost of complying with the October 2014 rule to be $4.2 million per year.3 Compared to this revised estimate of the cost of compliance with the October 2014 rule, this final rule will provide regulatory relief by reducing annualized compliance costs by $2.1 million in year 2014 dollars.

More information and details of this analysis, including the conclusions stated above, are provided in the technical document, “Economic Impact Analysis for the Final Amendments to the NESHAP for Amino/Phenolic Resins,” which is available in the rulemaking docket.

We estimate that this final rule will result in an annual reduction of 207 tons of HAP, compared to the January 2000 rule baseline. The EPA estimates this rule will result in 64 tons per year fewer HAP emission reductions than what the EPA projects the 2014 rule would achieve based on the additional information and test data that the EPA obtained following issuance of the 2014 final rule, as described in section III.A.1 of this preamble. We have not quantified or monetized the effects of these emissions changes for this rulemaking. See section IV.B of this preamble for discussion of HAP emissions from CPVs at existing sources under this final rule compared to the October 2014 rule.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review. Details on the estimated cost savings of this final rule can be found in the EPA's analysis of the potential costs and benefits associated with this action, titled “Economic Impact Analysis for the Final Amendments to the NESHAP for Amino/Phenolic Resins,” and included in the docket of this rule.

This action is considered an Executive Order 13771 deregulatory action. Details on the 13771 deregulatory figures of this final rule can be found in the EPA's analysis of the potential costs and benefits associated with this action, titled “Economic Impact Analysis for the Final Amendments to the NESHAP for Amino/Phenolic Resins,” and included in the docket of this rule.

The information collection activities in this rule have been submitted for approval to OMB under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 1869.08. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.

This final rule requires recordkeeping and reporting of occurrences when control devices used to comply with the storage vessel provisions undergo planned routine maintenance. Reporting of such occurrences are required to be disclosed in the Periodic Reports as specified at 40 CFR 63.1417.

Respondents/affected entities: The respondents affected by the amendments to 40 CFR part 63, subpart OOO, include, but are not limited to, facilities having a NAICS code 325211 (United States Standard Industrial Classification 2821). Facilities with a NAICS code of 325211 are described as Plastics Material and Resin Manufacturing establishments, which includes facilities engaged in manufacturing amino resins and phenolic resins, as well as other plastic and resin types.

Respondent's obligation to respond: Mandatory under sections 112 and 114 of the CAA.

Estimated number of respondents: 15.

Frequency of response: Once or twice per year.

Total estimated burden: 45 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: $2,750 per year, including no annualized capital or operation and maintenance costs.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The EPA has identified no small entities that are subject to the requirements of 40 CFR 63, subpart OOO.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The EPA's risk assessments for the October 2014 rule (Docket ID No. EPA-HQ-OAR-2012-0133) demonstrate that the current regulations are associated with an acceptable level of risk and provide an ample margin of safety to protect public health and prevent adverse environmental effects. This final action does not alter those conclusions.

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

This action involves technical standards. The EPA is formalizing the incorporation of three technical standards that were included in the January 2000 rule for which the EPA had previously not formally requested the Office of the Federal Register to include in 40 CFR 63.14 with a reference back to the sections in 40 CFR 63, subpart OOO. These three standards were included in the original January 2000 rule. These three standards were already incorporated in 40 CFR 63.14, and were formally requested for other rules. These standards are API Publication 2517, Evaporative Loss from External Floating-Roof Tanks, Third Edition, February 1989; ASTM D1946-90 (Reapproved 1994), Standard Method for Analysis of Reformed Gas by Gas Chromatography; and ASTM D2879-83, Standard Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope. API Publication 2517 is used to determine the maximum true vapor pressure of HAP in liquids stored at ambient temperature. API Publication 2517 is available to the public for free viewing online in the Read Online Documents section on API's website at https://publications.api.org. In addition to this free online viewing availability on API's website, hard copies and printable versions are available for purchase from API. ASTM D2879 is also used to determine the maximum true vapor pressure of HAP in liquids stored at ambient temperature. ASTM D1946 is used to measure the concentration of carbon monoxide and hydrogen in a process vent gas stream. ASTM D2879 and ASTM D1946 are available to the public for free viewing online in the Reading Room section on ASTM's website at https://www.astm.org/READINGLIBRARY/. In addition to this free online viewing availability on ASTM's website, hardcopies and printable versions are available for purchase from ASTM. Additional information can be found at http://www.api.org/and https://www.astm.org/Standard/standards-and-publications.html.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). In the October 2014 rule, the EPA determined that the current health risks posed by emissions from these source categories are acceptable and provide an ample margin of safety to protect public health and prevent adverse environmental effects. This final action does not alter the conclusions made in the October 2014 rule regarding these analyses.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Accordingly, 40 CFR part 63 is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0311 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 14, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0311, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of October 23, 2017 (82 FR 49020) (FRL-9967-37), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7E8569) by IR-4, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide pyraclostrobin, carbamic acid, [2-[[[ 1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy] methyl]phenyl]methoxy-, methyl ester) and its desmethoxy metabolite, methyl-N-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl] phenylcarbamate expressed as parent compound in or on Brassica, leafy greens, subgroup 4-16B at 16.0 ppm, celtuce at 29.0 ppm, Florence, fennel at 29.0 ppm, kohlrabi at 5.0 ppm, leaf petiole vegetable subgroup 22B at 29.0 ppm, leafy greens subgroup 4-16A at 40 ppm, tropical and subtropical, medium to large fruit, smooth, inedible peel, subgroup 24B at 0.6 ppm, and vegetable, Brassica, head and stem, group 5-16 at 5.0 ppm. The petition also requested that the following established tolerances be removed: Avocado at 0.6 ppm, banana at 0.04 ppm, Brassica, head and stem, subgroup 5A at 5.0 ppm, Brassica leafy greens, subgroup 5B, at 16.0 ppm, and vegetable, leafy, except Brassica, group 4 at 29 ppm. That document referenced a summary of the petition prepared by BASF, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The most consistently observed effects of pyraclostrobin exposure across species, genders, and treatment durations were diarrhea, decreased body weight, and decreased food consumption. Pyraclostrobin also causes intestinal disturbance as indicated by increased incidence of diarrhea or duodenum mucosal thickening. These intestinal effects appeared to be related to the irritating action on the mucus membranes as demonstrated by redness and chemosis (i.e., swelling of the conjunctiva) seen in the primary eye irritation study. In the rat acute and subchronic neurotoxicity studies, neuropathology and behavior changes were not observed.

In the rat and rabbit developmental toxicity studies, developmental toxicity (i.e. skeletal variations, post-implantation loss, and fetal resorption) was observed, as well as maternal toxicity (i.e. diarrhea, decreased body weight, food consumption, and clinical signs of toxicity). In the reproduction study, systemic toxicity manifested as decreased body weight in both the parents and offspring; no reproductive toxicity was observed.

In the rat subchronic inhalation toxicity studies, inhalation toxicity consisted of both portal of entry effects (i.e., olfactory atrophy/necrosis and histiocytosis in the lungs) and systemic effects (i.e., hyperplasia in the duodenum).

Pyraclostrobin was classified by the Agency as “Not Likely to be Carcinogenic to Humans” based on the lack of treatment-related increase in tumor incidence in adequately conducted carcinogenicity studies in rats and mice. Pyraclostrobin did not cause mutagenicity or genotoxicity in the in vivo and in vitro assays. Pyraclostrobin did not cause immunotoxicity in mice assays.

Specific information on the studies received and the nature of the adverse effects caused by pyraclostrobin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov on pages 34-39 in the document titled “Pyraclostrobin. Human Health Risk Assessment for a Petition for the Establishment of Use on Greenhouse-Grown Leafy Greens, Except Head Lettuce, Subgroup 4-16A; Cucurbit Vegetables, Group 9; and Fruiting Vegetables, Group 8-10 and Crop Group Conversions and Expansion of Tolerances for Brassica, Leafy Greens, Subgroup 4-16B; Celtuce; Florence Fennel; Kohlrabi; Leaf Petiole Vegetables, Subgroup 22B; Tropical and Subtropical, Medium to Large Fruit, Inedible Peel, Subgroup 23B; and Brassica Head and Stem, Group 5-16 and a Revised Tolerance Level for Leafy Greens, Subgroup 4-16A” in docket ID number EPA-HQ-OPP-2017-0311.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for pyraclostrobin used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of April 10, 2015 (80 FR 19231) (FRL-9925-02).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to pyraclostrobin, EPA considered exposure under the petitioned-for tolerances as well as all existing pyraclostrobin tolerances in 40 CFR 180.582. EPA assessed dietary exposures from pyraclostrobin in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for pyraclostrobin. In estimating acute dietary exposure, EPA used food consumption information from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, the acute dietary exposure assessments were performed assuming 100 percent crop treated (PCT) and incorporating tolerance-level or highest field-trial residues.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA's NHANES/WWEIA. As to residue levels in food, the chronic dietary exposure assessments were performed using average percent crop treated estimates and tolerance-level or average field-trial residues.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that pyraclostrobin does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and PCT information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, and the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency estimated the PCT for existing uses in the chronic dietary assessment as follows:

Almonds 45%; apples 20%; apricots 30%; barley 10%; green beans 5%; blueberries 40%; broccoli 5%; Brussels sprouts 15%; cabbage 10%; caneberries 50%; cantaloupes 15%; carrots 35%; cauliflower 5%; celery <2.5%; cherries 55%; chicory 5%; corn 10%; cotton (seed treatment) 10%; cucumber 5%; dry beans/peas 10%; garlic 10%; grapefruit 35%; grapes 30%; hazelnuts 20%; lemons 5%; lettuce 5%; nectarines 15%; oats 5%; onions 30%; oranges 5%; peaches 25%; peanuts 20%; pears 20%; green peas 5%; pecans 5%; peppers 15%; pistachios 30%; potatoes 20%; pumpkins 15%; soybeans (seed treatment) 10%; spinach 5%; squash 15%; strawberries 65%; sugar beets 50%; sugarcane 5%; sweet corn 5%; tangerines 10%; tomatoes 25%; walnuts 10%; watermelons 25%; wheat 5%.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than 2.5%, in which case 2.5% is used as the average PCT, or less than 1%, in which case 1% is used as the average PCT.

2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for pyraclostrobin in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of pyraclostrobin. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the Pesticide Root Zone Model and Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of pyraclostrobin for acute exposures are estimated to be 35.6 parts per billion (ppb) for surface water and 0.02 ppb for ground water and for chronic exposures are estimated to be 2.3 ppb for surface water and 0.02 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute dietary risk assessment, the water concentration value of 35.6 ppb was used to assess the contribution to drinking water. For the chronic dietary risk assessment, the water concentration of value 2.3 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Pyraclostrobin is currently registered for the following uses that could result in residential handler and post-application exposures: Treated gardens, fruit or nut trees, tomato transplants, and turf. EPA assessed residential exposure using the following assumptions: Short-term adult handler exposures via the dermal and inhalation routes resulting from application of pyraclostrobin to gardens, trees, and turf. Short-term dermal post-application exposures were assessed for adults, youth 11 to 16 years old, and children 6 to 11 years old. Short-term dermal and incidental oral exposures were assessed for children 1 to less than 2 years old. Intermediate-term exposures are not likely because of the intermittent nature of applications in residential settings.

For the aggregate assessment, inhalation and dermal exposures were not aggregated together because the toxicity effect from the inhalation route of exposure was different than the effect from the dermal route of exposure. The scenarios with the highest residential exposures that were used in the short-term aggregate assessment for pyraclostrobin are as follows:

• Adult short-term aggregate assessment—residential dermal post-application exposure via activities on treated turf.

• Youth (11 to 16 years old) short-term aggregate assessment—residential dermal exposure from post-application golfing on treated turf.

• Children (6 to 11 years old) short-term aggregate assessment—residential dermal exposures from post-application activities in treated gardens.

• Children (1 to less than 2 years old) short-term aggregate assessment—residential dermal and hand-to-mouth exposures from post-application exposure to treated turf.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

EPA has not found pyraclostrobin to share a common mechanism of toxicity with any other substances, and pyraclostrobin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that pyraclostrobin does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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

2. Prenatal and postnatal sensitivity. There is no evidence that pyraclostrobin results in increased quantitative susceptibility in rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. Although there is evidence of increased qualitative susceptibility in the prenatal development study in rabbits, the Agency did not identify any residual uncertainties after establishing toxicity endpoints and traditional UFs to be used in the risk assessment of pyraclostrobin. The degree of concern for prenatal and/or postnatal toxicity is low.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

i. The toxicity database for pyraclostrobin is complete.

ii. There is no indication that pyraclostrobin is a neurotoxic chemical. Effects seen in the acute and subchronic neurotoxicity studies in rats are considered to reflect perturbations in mitochondrial respiration leading to effects on energy production rather than signs of neurotoxicity; therefore, there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that pyraclostrobin results in increased quantitative susceptibility in rats in the prenatal developmental study or in young rats in the 2-generation reproduction study. The prenatal rabbit developmental toxicity study showed evidence of increased qualitative susceptibility to prenatal rabbits; however, this study was chosen for endpoint selection for the acute dietary (females 13-49) and short-term dermal exposure scenarios. This study has a clearly defined NOAEL of 5.0 mg/kg/day. EPA did not identify any residual uncertainties after establishing toxicity endpoints and traditional UFs to be used in the risk assessment of pyraclostrobin. The degree of concern for prenatal and/or postnatal toxicity is low.

iv. There are no residual uncertainties identified in the exposure databases. The acute dietary exposure assessments were performed assuming 100 PCT and tolerance-level or highest field trial residues. The chronic dietary exposure assessments were performed using average PCT estimates, when available, and tolerance-level or average field trial residues. These data are reliable and are not expected to underestimate risks to adults or children. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to pyraclostrobin in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by pyraclostrobin.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to pyraclostrobin will occupy 88% of the aPAD for females 13-49 years old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to pyraclostrobin from food and water will utilize 29% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of pyraclostrobin is not expected.

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

Pyraclostrobin is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to pyraclostrobin.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 110 for children 1 to 2 years old, 360 for children 6 to 11 years old, 1500 for youth 11 to 16 years old, and 230 for adults. Because EPA's level of concern for pyraclostrobin is a MOE of 100 or below, these MOEs are not of concern.

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

Intermediate-term adverse effects were identified; however, pyraclostrobin is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for pyraclostrobin.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, pyraclostrobin is not expected to pose a cancer risk to humans.

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

Two adequate methods are available to enforce the tolerance expression for residues of pyraclostrobin and the metabolite BF 500-3 in or on plant commodities: A liquid chromatography with tandem mass spectrometry (LC/MS/MS) method, BASF Method D9908; and a high-performance LC with ultraviolet detection (HPLC/UV) method, Method D9904. The methods may be found in the Pesticide Analytical Manual, Volume I.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has established MRLs for pyraclostrobin in or on various commodities including kale, collards, curly kale, Scotch kale, thousand-headed kale (not including marrow stem kale) at 1 ppm; radish leaves (including radish tops) at 20 ppm; lettuce, head at 2 ppm; banana at 0.02 ppm; mango at 0.05 ppm; papaya at 0.15 ppm; Brussels sprouts at 0.3 ppm; cabbages, head at 0.2 ppm; and flower-head brassicas (includes broccoli, broccoli Chinese and cauliflower) at 0.1 ppm. These MRLs are different than the tolerances established for pyraclostrobin in the United States, however, they cannot be harmonized because the tolerance/MRL expressions for the U.S. and Codex are not harmonized and the submitted residue data support higher tolerance levels than those set by Codex, indicating that harmonization would cause legal application of pyraclostrobin by U.S. users to result in exceedances of domestic tolerances.

For tolerance values that vary from what the petitioner requested, EPA is establishing tolerance values in order to conform to current Agency policy on significant figures. The tolerance for tropical and subtropical, medium to large fruit, smooth, inedible peel, subgroup 24B is not being established at this time. The request for a tolerance for subgroup 24B was submitted in connection with an application for registration of a pesticide product with multiple active ingredients. Because one of those active ingredients is not currently approved for use on the commodities in subgroup 24B, EPA is not approving use of the combination product on commodities in subgroup 24B. Therefore, EPA is not establishing the tolerance for subgroup 24B because it is not necessary at this time. Because a tolerance is not being established for subgroup 24B, the existing tolerances for avocado and banana are not being removed as proposed.

Therefore, tolerances are established for residues of pyraclostrobin carbamic acid, [2-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy] methyl]phenyl]methoxy-, methyl ester) and its desmethoxy metabolite, methyl-N-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl] phenylcarbamate (BF 500-3), expressed as parent compound, in or on Brassica, leafy greens, subgroup 4-16B, except watercress at 16 ppm; celtuce at 29 ppm; fennel, Florence at 29 ppm; kohlrabi at 5.0 ppm; leaf petiole vegetable, subgroup 22B at 29 ppm; leafy greens, subgroup 4-16A at 40 ppm; and vegetable, Brassica, head and stem, group 5-16 at 5.0 ppm. Additionally, the following established tolerances are removed as unnecessary due to the establishment of the above tolerances: Brassica, head and stem, subgroup 5A; Brassica leafy greens, subgroup 5B; and vegetable, leafy, except brassica, group 4.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0273 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 14, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0273, by one of the following methods:

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

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

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

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

In the Federal Register of October 23, 2017 (82 FR 49020) (FRL-9967-37), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7E8559) by IR-4 Project Headquarters, 500 College Road East, Suite 201 W, Princeton, New Jersey 08540. The petition requested that 40 CFR 180.593 be amended by establishing tolerances for residues of the miticide/insecticide etoxazole, (2-(2,6-difluorophenyl)-4-[4-(1,1-dimethylethyl)-2-ethoxyphenyl]-4,5-dihydrooxazole), in or on Corn, sweet, kernel plus cob with husks removed at 0.01 parts per million (ppm); Corn, sweet, forage at 1.5 ppm; Corn, sweet, stover at 5.0 ppm; Fruit, pome, group 11-10 at 0.20 ppm; Nut, tree, group 14-12 at 0.01 ppm; Fruit, stone, group 12-12 at 1.0 ppm; and Cottonseed subgroup 20C at 0.05 ppm. In addition, upon establishment of new tolerances referenced above, the petitioner requested the removal of existing tolerances in 40 CFR 180.593 for residues of etoxazole in or on Fruit, pome, group 11 at 0.20 ppm; Fruit, stone, group 12, except plum at 1.0 ppm; Nut, tree, group 14 at 0.01 ppm; Cotton, undelinted seed at 0.05 ppm; Pistachio at 0.01 ppm; Plum at 0.15 ppm; and Plum, prune, dried at 0.30 ppm. That document referenced a summary of the petition prepared by Valent U.S.A. Corporation, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Consistent with the authority in FFDCA 408(d)(4)(A)(i), EPA is issuing tolerances that vary from what the petitioner sought. The reasons for these changes are explained in Unit IV.C.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The effects in the etoxazole database show liver toxicity in all species tested (enzyme release, hepatocellular swelling and histopathological indicators), and the severity does not appear to increase with time. In rats only, there were effects on incisors (elongation, whitening, and partial loss of upper and/or lower incisors). There is no evidence of neurotoxicity or immunotoxicity. No toxicity was seen at the limit dose in a 28-day dermal toxicity study in rats. Etoxazole was not mutagenic.

No increased quantitative or qualitative susceptibilities were observed following in utero exposure to rats or rabbits in the developmental studies; however, offspring toxicity was more severe (increased pup mortality) than maternal toxicity (increased liver and adrenal weights) at the same dose (158.7 milligram/kilogram/day (mg/kg/day)) in the rat reproduction study indicating increased qualitative susceptibility. Etoxazole is not likely to be carcinogenic. This decision was based on weight-of-evidence approach including the lack of carcinogenicity in two studies in mice, lack of carcinogenicity in one study in rats, and the lack of hormonal and reproductive effects in special studies. Etoxazole was categorized as having low acute toxicity via the oral, dermal, and inhalation routes. It is not an eye or dermal irritant or a dermal sensitizer.

Specific information on the studies received and the nature of the adverse effects caused by etoxazole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document titled “Etoxazole: Human Health Risk Assessment in Support of Proposed Use a Sweet Corn, and Proposed Crop Group Updates for Pome Fruit 11-10, Tree Nut Group 14-12, Stone Fruit Group 12-12, and Cotton Subgroup 20C at pages 22-27 in docket ID number EPA-HQ-OPP-2017-0273.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for etoxazole used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to etoxazole, EPA considered exposure under the petitioned-for tolerances as well as all existing etoxazole tolerances in 40 CFR 180.593. EPA assessed dietary exposures from etoxazole in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

No such effects were identified in the toxicological studies for etoxazole; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA; 2003-2008). As to residue levels in food, EPA assumed tolerance-level residues or tolerance-level residues adjusted to account for the residues of concern, 100% crop treated (PCT), and in the absence of empirical data, default processing factors.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has classified etoxazole as “not likely” to be carcinogenic to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for etoxazole. Tolerance level residues and 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for etoxazole in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of etoxazole. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the First Index Reservoir Screening Tool (FIRST), and Pesticide Root Zone Model Ground Water (PRZM GW) models, the estimated drinking water concentrations (EDWCs) of etoxazole for chronic exposures are estimated to be 4.761 parts per billion (ppb) for surface water and <0.01 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the chronic dietary risk assessment, the water concentration of value 4.761 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Etoxazole is not registered for any specific use patterns that would result in residential exposure.

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

EPA has not found etoxazole to share a common mechanism of toxicity with any other substances, and etoxazole does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that etoxazole does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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

2. Prenatal and postnatal sensitivity. No increased quantitative or qualitative susceptibilities were observed following in utero exposure to rats or rabbits in the developmental studies. There is evidence of increased qualitative offspring susceptibility in the rat reproduction study, but the concern is low since: (1) The effects in pups are well-characterized with a clear NOAEL; (2) the selected endpoints are protective of the doses where the offspring toxicity is observed; and (3) offspring effects occur at the same doses as parental toxicity so protecting for parental effects is protective of offspring effects. There are no residual uncertainties for pre- and post-natal toxicity.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

i. The toxicity database for etoxazole is complete.

ii. There is no indication that etoxazole is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. The observed qualitative postnatal susceptibility is protected for by the selected endpoints.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to etoxazole in drinking water. These assessments will not underestimate the exposure and risks posed by etoxazole.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, etoxazole is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to etoxazole from food and water will utilize 15% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. There are no residential uses for etoxazole.

3. Short- and Intermediate-term risks. Short- and intermediate-term aggregate exposures take into account short- and intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

A short- and intermediate-term adverse effect was identified; however, etoxazole is not registered for any use patterns that would result in either short- or intermediate-term residential exposure. Short- and intermediate-term risks are assessed based on short- or intermediate-term residential exposure plus chronic dietary exposure. Because there is no short- or intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short- or intermediate-term risks), no further assessment of short- or intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short- and intermediate-term risks for etoxazole.

4. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, etoxazole is not expected to pose a cancer risk to humans.

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

Adequate methodologies (Valent Method RM-37, gas chromatography/mass-selective detector (GC/MSD) or GC/nitrogen-phosphorus detector (NPD)) are available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

Codex has established maximum residue limits (MRLs) for residues of etoxazole in or on pome fruit (0.07 ppm) and tree nut (0.01 ppm). The relevant U.S. tolerances are harmonized with the tree nut MRL but cannot be harmonized with the pome fruit MRL because doing so could result in exceedances for application consistent with the domestic registration.

Instead of the petitioned-for tolerance on Fruit, stone, group 12-12 at 1.0 ppm, EPA is establishing separate subgroup tolerances for this crop group including Cherry subgroup 12-12A at 1.0 ppm, Peach subgroup 12-12B at 1.0 ppm, and Plum subgroup 12-12C at 0.15 ppm; and is retaining the existing separate, lower tolerance on Plum, prune, dried at 0.30 ppm as that remains necessary to cover the processed commodity. Separate subgroup tolerances are being established because there is more than a factor of five between the residue levels for the cherry and peach subgroups and the residues levels for commodities in the plum subgroup.

Therefore, tolerances are established for residues of etoxazole, (2-(2,6-difluorophenyl)-4-[4-(1,1-dimethylethyl)-2-ethoxyphenyl]-4,5-dihydrooxazole, in or on Cherry subgroup 12-12A at 1.0 ppm; Corn, sweet, forage at 1.5 ppm; Corn, sweet, kernel plus cob with husks removed at 0.01 ppm; Corn, sweet, stover at 5.0 ppm; Cottonseed subgroup 20C at 0.05 ppm; Fruit, pome, group 11-10 at 0.20 ppm; Nut, tree group 14-12 at 0.01 ppm, Peach subgroup 12-12B at 1.0 ppm and Plum subgroup 12-12C at 0.15 ppm. In addition, this regulation removes existing tolerances in 40 CFR 180.593 for residues of etoxazole in or on Fruit, pome, group 11 at 0.20 ppm; Fruit, stone, group 12, except plum at 1.0 ppm; Nut, tree, group 14 at 0.01 ppm; Cotton, undelinted seed at 0.05 ppm; Pistachio at 0.01 ppm; and Plum at 0.15 ppm that are superseded by this action.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997); or Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

This is a summary of the Commission's Declaratory Ruling and Third Report and Order (Declaratory Ruling and Order), WT Docket No. 17-79 and WC Docket No. 17-84; FCC 18-133, adopted September 26, 2018 and released September 27, 2018. The full text of this document is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW, Room CY-B402, Washington, DC 20554; the contractor's website, http://www.bcpiweb.com; or by calling (800) 378-3160, facsimile (202) 488-5563, or email [email protected]. Copies of the Declaratory Ruling and Order also may be obtained via the Commission's Electronic Comment Filing System (ECFS) by entering the docket number WT Docket 17-79 and WC Docket No. 17-84. Additionally, the complete item is available on the Federal Communications Commission's website at http://www.fcc.gov.

1. In the Declaratory Ruling, the Commission notes that a number of appellate courts have articulated different and often conflicting views regarding the scope and nature of the limits Congress imposed on state and local governments through Sections 253 and 332. In light of these diverging views, Congress's vision for a consistent, national policy framework, and the need to ensure that the Commission's approach continues to make sense in light of the relatively new trend towards the large-scale deployment of Small Wireless Facilities, the Commission takes the opportunity to clarify and update the FCC's reading of the limits Congress imposed. The Commission does so in three main respects.

2. First, the Commission expresses its agreement with the views already stated by the First, Second, and Tenth Circuits that the “materially inhibit” standard articulated in 1997 by the Clinton-era FCC's California Payphone decision is the appropriate standard for determining whether a state or local law operates as a prohibition or effective prohibition within the meaning of Sections 253 and 332.

3. Second, the Commission notes, as numerous courts have recognized, that state and local fees and other charges associated with the deployment of wireless infrastructure can effectively prohibit the provision of service. At the same time, courts have articulated various approaches to determining the types of fees that run afoul of Congress's limits in Sections 253 and 332. The Commission thus clarifies the particular standard that governs the fees and charges that violate Sections 253 and 332 when it comes to the Small Wireless Facilities at issue in this decision. Namely, fees are only permitted to the extent that they represent a reasonable approximation of the local government's objectively reasonable costs and are non-discriminatory. In this section, the Commission also identifies specific fee levels for the deployment of Small Wireless Facilities that presumptively comply with this standard. The Commission does so to help avoid unnecessary litigation, while recognizing that it is the standard itself, not the particular, presumptive fee levels the Commission articulates, that ultimately will govern whether a particular fee is allowed under Sections 253 and 332. So, fees above those levels would be permissible under Sections 253 and 332 to the extent a locality's actual, reasonable costs (as measured by the standard above) are higher.

4. Finally, the Commission focuses on a subset of other, non-fee provisions of state and local law that could also operate as prohibitions on service. The Commission does so in particular by addressing state and local consideration of aesthetic concerns in the deployment of Small Wireless Facilities. The Commission notes that the Small Wireless Facilities that are the subject of this Declaratory Ruling remain subject to the Commission's rules governing Radio Frequency (RF) emissions exposure.

5. As an initial matter, the Commission notes that its Declaratory Ruling applies with equal measure to the effective prohibition standard that appears in both Sections 253(a) and 332(c)(7). This ruling is consistent with the basic canon of statutory interpretation that identical words appearing in neighboring provisions of the same statute should be interpreted to have the same meaning. Moreover, both of these provisions apply to wireless telecommunications services as well as to commingled services and facilities.

6. As explained in California Payphone and reaffirmed here, a state or local legal requirement will have the effect of prohibiting wireless telecommunications services if it materially inhibits the provision of such services. California Payphone Ass'n, 12 FCC Rcd 14191 (1997). The Commission clarifies that an effective prohibition occurs where a state or local legal requirement materially inhibits a provider's ability to engage in any of a variety of activities related to its provision of a covered service. This test is met not only when filling a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service capabilities. Under the California Payphone standard, a state or local legal requirement could materially inhibit service in numerous ways—not only by rendering a service provider unable to provide an existing service in a new geographic area or by restricting the entry of a new provider in providing service in a particular area, but also by materially inhibiting the introduction of new services or the improvement of existing services. Thus, an effective prohibition includes materially inhibiting additional services or improving existing services.

7. The Commission's reading of Section 253(a) and Section 332(c)(7)(B)(i)(II) reflects and supports a marketplace in which services can be offered in a multitude of ways with varied capabilities and performance characteristics consistent with the policy goals in the 1996 Act and the Communications Act. To limit Sections 253(a) and 332(c)(7)(B)(i)(II) to protecting only against coverage gaps or the like would be to ignore Congress's contemporaneously-expressed goals of “promot[ing] competition[,] . . . secur[ing] . . . higher quality services for American telecommunications consumers and encourage[ing] the rapid deployment of new telecommunications technologies.” In addition, as the Commission recently explained, the implementation of the Act “must factor in the fundamental objectives of the Act, including the deployment of a “rapid, efficient . . . wire and radio communication service with adequate facilities at reasonable charges' and ‘the development and rapid deployment of new technologies, products and services for the benefit of the public . . . without administrative or judicial delays[, and] efficient and intensive use of the electromagnetic spectrum.' ” These provisions demonstrate that the Commission's interpretation of Section 253 and Section 332(c)(7)(B)(i)(II) is in accordance with the broader goals of the various statutes that the Commission is entrusted to administer.

8. California Payphone further concluded that providers must be allowed to compete in a “fair and balanced regulatory environment.” As reflected in decisions such as the Commission's Texas PUC Order, a state or local legal requirement can function as an effective prohibition either because of the resulting “financial burden” in an absolute sense, or, independently, because of a resulting competitive disparity. Public Utility Comm'n of Texas, et al., Pet. for Decl. Ruling and/or Preemption of Certain Provisions of the Texas Pub. Util. Reg. Act of 1995, 13 FCC Rcd 3460 (1997). The Commission clarifies that “[a] regulatory structure that gives an advantage to particular services or facilities has a prohibitory effect, even if there are no express barriers to entry in the state or local code; the greater the discriminatory effect, the more certain it is that entities providing service using the disfavored facilities will experience prohibition.” This conclusion is consistent with both Commission and judicial precedent recognizing the prohibitory effect that results from a competitor being treated materially differently than similarly-situated providers. The Commission provides its authoritative interpretation below of the circumstances in which a “financial burden,” as described in the Texas PUC Order, constitutes an effective prohibition in the context of certain state and local fees.

9. Cognizant of the changing technology and its interaction with regulations created for a previous generation of service, the Commission sought comment on the scope of Sections 253 and 332(c)(7) and on any new or updated guidance the Commission should provide, potentially through a Declaratory Ruling. In particular, the Commission sought comment on whether it should provide further guidance on how to interpret and apply the phrase “prohibit or have the effect of prohibiting.”

10. The Commission concludes that ROW access fees, and fees for the use of government property in the ROW, such as light poles, traffic lights, utility poles, and other similar property suitable for hosting Small Wireless Facilities, as well as application or review fees and similar fees imposed by a state or local government as part of their regulation of the deployment of Small Wireless Facilities inside and outside the ROW, violate Sections 253 or 332(c)(7) unless these conditions are met: (1) The fees are a reasonable approximation of the state or local government's costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in similar situations.

11. Capital Expenditures. Apart from the text, structure, and legislative history of the 1996 Act, an additional, independent justification for the Commission's interpretation follows from the simple, logical premise, supported by the record, that state and local fees in one place of deployment necessarily have the effect of reducing the amount of capital that providers can use to deploy infrastructure elsewhere, whether the reduction takes place on a local, regional or national level. The Commission is persuaded that providers and infrastructure builders, like all economic actors, have a finite (though perhaps fluid) amount of resources to use for the deployment of infrastructure. This does not mean that these resources are limitless, however. The Commission concludes that fees imposed by localities, above and beyond the recovery of localities' reasonable costs, materially and improperly inhibit deployment that could have occurred elsewhere. This and regulatory uncertainty created by such effectively prohibitive conduct creates an appreciable impact on resources that materially limits plans to deploy service. This record evidence emphasizes the importance of evaluating the effect of fees on Small Wireless Facility deployment on an aggregate basis. The record persuades the Commission that fees associated with Small Wireless Facility deployment lead to “a substantial increase in costs”—particularly when considered in the aggregate—thereby “plac[ing] a significant burden” on carriers and materially inhibiting their provision of service contrary to Section 253 of the Act.

12. The record reveals that fees above a reasonable approximation of cost, even when they may not be perceived as excessive or likely to prohibit service in isolation, will have the effect of prohibiting wireless service when the aggregate effects are considered, particularly given the nature and volume of anticipated Small Wireless Facility deployment. The record reveals that these effects can take several forms. In some cases, the fees in a particular jurisdiction will lead to reduced or entirely forgone deployment of Small Wireless Facilities in the near term for that jurisdiction. In other cases, where it is essential for a provider to deploy in a given area, the fees charged in that geographic area can deprive providers of capital needed to deploy elsewhere, and lead to reduced or forgone near-term deployment of Small Wireless Facilities in other geographic areas. In both of those scenarios the bottom-line outcome on the national development of 5G networks is the same—diminished deployment of Small Wireless Facilities critical for wireless service and building out 5G networks.

13. Relationship to Section 332. The Commission clarifies that the statutory phrase “prohibit or have the effect of prohibiting” in Section 332(c)(7)(B)(i)(II) has the same meaning as the phrase “prohibits or has the effect of prohibiting” in Section 253(a). There is no evidence to suggest that Congress intended for virtually identical language to have different meanings in the two provisions. Instead, the Commission finds it more reasonable to conclude that the language in both sections should be interpreted to have the same meaning and to reflect the same standard, including with respect to preemption of fees that could “prohibit” or have “the effect of prohibiting” the provision of covered service. Both sections were enacted to address concerns about state and local government practices that undermined providers' ability to provide covered services, and both bar state or local conduct that prohibits or has the effect of prohibiting service.

14. To be sure, Sections 253 and 332(c)(7) may relate to different categories of state and local fees. Ultimately, the Commission needs not resolve here the precise interplay between Sections 253 and 332(c)(7). It is enough for it to conclude that, collectively, Congress intended for the two provisions to cover the universe of fees charged by state and local governments in connection with the deployment of telecommunications infrastructure. Given the analogous purposes of both sections and the consistent language used by Congress, the Commission finds the phrase “prohibit or have the effect of prohibiting” in Section 332(c)(7)(B)(i)(II) should be construed as having the same meaning and governed by the same preemption standard as the nearly identical language in Section 253(a).

15. Application of the Interpretations and Principles Established Here. Consistent with the interpretations above, the requirement that compensation be limited to a reasonable approximation of objectively reasonable costs and be non-discriminatory applies to all state and local government fees paid in connection with a provider's use of the ROW to deploy Small Wireless Facilities including, but not limited to, fees for access to the ROW itself, and fees for the attachment to or use of property within the ROW owned or controlled by the government (e.g., street lights, traffic lights, utility poles, and other infrastructure within the ROW suitable for the placement of Small Wireless Facilities). This interpretation applies with equal force to any fees reasonably related to the placement, construction, maintenance, repair, movement, modification, upgrade, replacement, or removal of Small Wireless Facilities within the ROW, including, but not limited to, application or permit fees such as siting applications, zoning variance applications, building permits, electrical permits, parking permits, or excavation permits.

16. Applying the principles established in this Declaratory Ruling, a variety of fees not reasonably tethered to costs appear to violate Sections 253(a) or 332(c)(7) in the context of Small Wireless Facility deployments. For example, the Commission agrees with courts that have recognized that gross revenue fees generally are not based on the costs associated with an entity's use of the ROW, and where that is the case, are preempted under Section 253(a). In addition, although the Commission rejects calls to preclude a state or locality's use of third party contractors or consultants, or to find all associated compensation preempted, the Commission makes clear that the principles discussed herein regarding the reasonableness of cost remain applicable. Thus, fees must not only be limited to a reasonable approximation of costs, but in order to be reflected in fees the costs themselves must also be reasonable. Accordingly, any unreasonably high costs, such as excessive charges by third party contractors or consultants, may not be passed on through fees even though they are an actual “cost” to the government. If a locality opts to incur unreasonable costs, Sections 253 and 332(c)(7) do not permit it to pass those costs on to providers. Fees that depart from these principles are not saved by Section 253(c), as the Commission discusses below.

17. Interpretation of Section 253(c) in the Context of Fees. In this section, the Commission turns to the interpretation of several provisions in Section 253(c), which provides that state or local action that otherwise would be subject to preemption under Section 253(a) may be permissible if it meets specified criteria. Section 253(c) expressly provides that state or local governments may require telecommunications providers to pay “fair and reasonable compensation” for use of public ROWs but requires that the amounts of any such compensation be “competitively neutral and nondiscriminatory” and “publicly disclosed.”

18. The Commission interprets the ambiguous phrase “fair and reasonable compensation,” within the statutory framework it outlined for Section 253, to allow state or local governments to charge fees that recover a reasonable approximation of the state or local governments' actual and reasonable costs. The Commission concludes that an appropriate yardstick for “fair and reasonable compensation,” and therefore an indicator of whether a fee violates Section 253(c), is whether it recovers a reasonable approximation of a state or local government's objectively reasonable costs of, respectively, maintaining the ROW, maintaining a structure within the ROW, or processing an application or permit.

19. The existence of Section 253(c) makes clear that Congress anticipated that “effective prohibitions” could result from state or local government fees, and intended through that clause to provide protections in that respect, as discussed in greater detail herein. Against that backdrop, the Commission finds it unlikely that Congress would have left providers entirely at the mercy of effectively unconstrained requirements of state or local governments. The Commission's interpretation of Section 253(c), in fact, is consistent with the views of many municipal commenters, at least with respect to one-time permit or application fees, and the members of the BDAC Ad Hoc Committee on Rates and Fees who unanimously concurred that one-time fees for municipal applications and permits, such as an electrical inspection or a building permit, should be based on the cost to the government of processing that application. The Ad Hoc Committee noted that “[the] cost-based fee structure [for one-time fees] unanimously approved by the committee accommodates the different siting related costs that different localities may incur to review, and process permit applications, while precluding excessive fees that impede deployment.” The Commission finds that the same reasoning should apply to other state and local government fees such as ROW access fees or fees for the use of government property within the ROW.

20. The Commission recognizes that state and local governments incur a variety of direct and actual costs in connection with Small Wireless Facilities, such as the cost for staff to review the provider's siting application, costs associated with a provider's use of the ROW, and costs associated with maintaining the ROW itself or structures within the ROW to which Small Wireless Facilities are attached. The Commission also recognizes that direct and actual costs may vary by location, scope, and extent of providers' planned deployments, such that different localities will have different fees under the interpretation set forth in this Declaratory Ruling.

21. Because the Commission interprets fair and reasonable compensation as a reasonable approximation of costs, it does not suggest that localities must use any specific accounting method to document the costs they may incur when determining the fees they charge for Small Wireless Facilities within the ROW. Moreover, in order to simplify compliance, when a locality charges both types of recurring fees identified above (i.e., for access to the ROW and for use of or attachment to property in the ROW), the Commission sees no reason for concern with how it has allocated costs between those two types of fees. It is sufficient under the statute that the total of the two recurring fees reflects the total costs involved. Fees that cannot ultimately be shown by a state or locality to be a reasonable approximation of their costs, such as high fees designed to subsidize local government costs in another geographic area or accomplish some public policy objective beyond the providers' use of the ROW, are not “fair and reasonable compensation . . . for use of the public rights-of-way” under Section 253(c). Likewise, the Commission agrees with both industry and municipal commenters that excessive and arbitrary consulting fees or other costs should not be recoverable as “fair and reasonable compensation,” because they are not a function of the provider's “use” of the public ROW.

22. In addition to requiring that compensation be “fair and reasonable,” Section 253(c) requires that it be “competitively neutral and nondiscriminatory.” The Commission has previously interpreted this language to prohibit states and localities from charging fees on new entrants and not on incumbents. Courts have similarly found that states and localities may not impose a range of fees on one provider but not on another and even some municipal commenters acknowledge that governments should not discriminate on the fees charged to different providers. The record reflects continuing concerns from providers, however, that they face discriminatory charges. The Commission reiterates its previous determination that state and local governments may not impose fees on some providers that they do not impose on others. The Commission would also be concerned about fees, whether one-time or recurring, related to Small Wireless Facilities, that exceed the fees for other wireless telecommunications infrastructure in similar situations, and to the extent that different fees are charged for similar use of the public ROW.

23. Fee Levels Likely to Comply with Section 253. The Commission's interpretations of Section 253(a) and “fair and reasonable compensation” under Section 253(c) provides guidance for local and state fees charged with respect to one-time fees generally, and recurring fees for deployments in the ROW. Following suggestions for the Commission to “establish a presumptively reasonable `safe harbor' for certain ROW and use fees,” and to facilitate the deployment of specific types of infrastructure critical to the rollout of 5G in coming years, the Commission identifies in this section three particular types of fee scenarios and supply specific guidance on amounts that are presumptively not prohibited by Section 253. Informed by the its review of information from a range of sources, the Commission concludes that fees at or below these amounts presumptively do not constitute an effective prohibition under Section 253(a) or Section 332(c)(7) and are presumed to be “fair and reasonable compensation” under Section 253(c).

24. Based on its review of the Commission's pole attachment rate formula, which would require fees below the levels described in this paragraph, as well as small cell legislation in twenty states, local legislation from certain municipalities in states that have not passed small cell legislation, and comments in the record, the Commission presumes that the following fees would not be prohibited by Section 253 or Section 332(c)(7): (a) $500 for non-recurring fees, including a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or $1,000 for non-recurring fees for a new pole (i.e., not a collocation) intended to support one or more Small Wireless Facilities, and (b) $270 per Small Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW.

25. By presuming that fees at or below the levels above comply with Section 253, the Commission assumes that there would be almost no litigation by providers over fees set at or below these levels. Likewise, the Commission's review of the record, including the many state small cell bills passed to date, indicate that there should be only very limited circumstances in which localities can charge higher fees consistent with the requirements of Section 253. In those limited circumstances, a locality could prevail in charging fees that are above this level by showing that such fees nonetheless comply with the limits imposed by Section 253—that is, that they are (1) a reasonable approximation of costs, (2) those costs themselves are reasonable, and (3) are non-discriminatory. Allowing localities to charge fees above these levels upon this showing recognizes local variances in costs.

26. There are also other types of state and local land-use or zoning requirements that may restrict Small Wireless Facility deployments to the degree that they have the effect of prohibiting service in violation of Sections 253 and 332. In this section, the Commission discusses how those statutory provisions apply to requirements outside the fee context both generally, and with particular focus on aesthetic and undergrounding requirements.

27. As discussed above, a state or local legal requirement constitutes an effective prohibition if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” The Commission's interpretation of that standard, as set forth above, applies equally to fees and to non-fee legal requirements. And as with fees, Section 253 contains certain safe harbors that permit some legal requirements that might otherwise be preempted by Section 253(a). Section 253(b) saves “requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. And Section 253(c) preserves state and local authority to manage the public rights-of-way.

28. Given the wide variety of possible legal requirements, the Commission does not attempt here to determine which of every possible non-fee legal requirements are preempted for having the effect of prohibiting service, although the Commission's discussion of fees above should prove instructive in evaluating specific requirements. Instead, the Commission focuses on some specific types of requirements raised in the record and provide guidance on when those particular types of requirements are preempted by the statute.

29. Aesthetics. The Commission sought comment on whether deployment restrictions based on aesthetic or similar factors are widespread and, if so, how Sections 253 and 332(c)(7) should be applied to them. The Commission provides guidance on whether and in what circumstances aesthetic requirements violate the Act. This will help localities develop and implement lawful rules, enable providers to comply with these requirements, and facilitate the resolution of disputes. The Commission concludes that aesthetics requirements are not preempted if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance.

30. Like fees, compliance with aesthetic requirements imposes costs on providers, and the impact on their ability to provide service is just the same as the impact of fees. The Commission therefore draws on its analysis of fees to address aesthetic requirements. The Commission explained above that fees that merely require providers to bear the direct and reasonable costs that their deployments impose on states and localities should not be viewed as having the effect of prohibiting service and are permissible. Analogously, aesthetic requirements that are reasonable in that they are technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments are also permissible. In assessing whether this standard has been met, aesthetic requirements that are more burdensome than those the state or locality applies to similar infrastructure deployments are not permissible, because such discriminatory application evidences that the requirements are not, in fact, reasonable and directed at remedying the impact of the wireless infrastructure deployment. For example, a minimum spacing requirement that has the effect of materially inhibiting wireless service would be considered an effective prohibition of service.

31. Finally, in order to establish that they are reasonable and reasonably directed to avoiding aesthetic harms, aesthetic requirements must be objective—i.e., they must incorporate clearly-defined and ascertainable standards, applied in a principled manner—and must be published in advance. “Secret” rules that require applicants to guess at what types of deployments will pass aesthetic muster substantially increase providers' costs without providing any public benefit or addressing any public harm. Providers cannot design or implement rational plans for deploying Small Wireless Facilities if they cannot predict in advance what aesthetic requirements they will be obligated to satisfy to obtain permission to deploy a facility at any given site.

32. The Commission appreciates that at least some localities will require some time to establish and publish aesthetics standards that are consistent with this Declaratory Ruling. Based on its review and evaluation of commenters' concerns, the Commission anticipates that such publication should take no longer than 180 days after publication of this decision in the Federal Register.

33. Undergrounding requirements. The Commission understands that some local jurisdictions have adopted undergrounding provisions that require infrastructure to be deployed below ground based, at least in some circumstances, on the locality's aesthetic concerns. A number of providers have complained that these types of requirements amount to an effective prohibition. In addressing this issue, the Commission first reiterates that while undergrounding requirements may well be permissible under state law as a general matter, any local authority to impose undergrounding requirements under state law does not remove the imposition of such undergrounding requirements from the provisions of Section 253. In this sense, the Commission notes that a requirement that all wireless facilities be deployed underground would amount to an effective prohibition given the propagation characteristics of wireless signals. Thus, undergrounding requirements can amount to effective prohibitions by materially inhibiting the deployment of wireless service.

34. Minimum spacing requirements. Some parties complain of municipal requirements regarding the spacing of wireless installations—i.e., mandating that facilities be sited at least 100, 500, or 1,000 feet, or some other minimum distance, away from other facilities, ostensibly to avoid excessive overhead “clutter” that would be visible from public areas. The Commission acknowledges that while some such requirements may violate 253(a), others may be reasonable aesthetic requirements. For example, under the principle that any such requirements be reasonable and publicly available in advance, it is difficult to envision any circumstances in which a municipality could reasonably promulgate a new minimum spacing requirement that, in effect, prevents a provider from replacing its preexisting facilities or collocating new equipment on a structure already in use. Such a rule change with retroactive effect would almost certainly have the effect of prohibiting service under the standards the Commission articulate here. Therefore, such requirements should be evaluated under the same standards as other aesthetic requirements.

35. The Commission confirms that it interpretations today extend to state and local governments' terms for access to public ROW that they own or control, including areas on, below, or above public roadways, highways, streets, sidewalks, or similar property, as well as their terms for use of or attachment to government-owned property within such ROW, such as light poles, traffic lights, and similar property suitable for hosting Small Wireless Facilities. As explained below, for two alternative and independent reasons, the Commission disagrees with state and local government commenters who assert that, in providing or denying access to government-owned structures, these governmental entities function solely as “market participants” whose rights cannot be subject to federal preemption under Section 253(a) or Section 332(c)(7).

36. First, this effort to differentiate between such governmental entities' “regulatory” and “proprietary” capacities in order to insulate the latter from preemption ignores a fundamental feature of the market participant doctrine. Specifically, Section 253(a) expressly preempts certain state and local “legal requirements” and makes no distinction between a state or locality's regulatory and proprietary conduct. Indeed, as the Commission has long recognized, Section 253(a)'s sweeping reference to “state [and] local statute[s] [and] regulation[s]” and “other State [and] local legal requirement[s]” demonstrates Congress's intent “to capture a broad range of state and local actions that prohibit or have the effect of prohibiting entities from providing telecommunications services.” Section 253(b) mentions “requirement[s],” a phrase that is even broader than that used in Section 253(a) but covers “universal service,” “public safety and welfare,” “continued quality of telecommunications,” and “safeguard[s for the] rights of consumers.” The subsection does not recognize a distinction between regulatory and proprietary. Section 253(c), which expressly insulates from preemption certain state and local government activities, refers in relevant part to “manag[ing] the public rights-of-way” and “requir[ing] fair and reasonable compensation,” while eliding any distinction between regulatory and proprietary action in either context. The Commission has previously observed that Section 253(c) “makes explicit a local government's continuing authority to issue construction permits regulating how and when construction is conducted on roads and other public rights-of-way;” the Commission concludes here that, as a general matter, “manage[ment]” of the ROW includes any conduct that bears on access to and use of those ROW, notwithstanding any attempts to characterize such conduct as proprietary. This reading, coupled with Section 253(c)'s narrow scope, suggests that Congress's omission of a blanket proprietary exception to preemption was intentional and thus that such conduct can be preempted under Section 253(a). The Commission therefore construes Section 253(c)'s requirements, including the requirement that compensation be “fair and reasonable,” as applying equally to charges imposed via contracts and other arrangements between a state or local government and a party engaged in wireless facility deployment. This interpretation is consistent with Section 253(a)'s reference to “State or local legal requirement[s],” which the Commission has consistently construed to include such agreements. In light of the foregoing, whatever the force of the market participant doctrine in other contexts, the Commission believes the language, legislative history, and purpose of Sections 253(a) and (c) are incompatible with the application of this doctrine in this context. The Commission observes once more that “[o]ur conclusion that Congress intended this language to be interpreted broadly is reinforced by the scope of section 253(d),” which “directs the Commission to preempt any statute, regulation, or legal requirement permitted or imposed by a state or local government if it contravenes sections 253(a) or (b). A more restrictive interpretation of the term `other legal requirements' easily could permit state and local restrictions on competition to escape preemption based solely on the way in which [State] action [is] structured. The Commission does not believe that Congress intended this result.”

37. Similarly, the Commission interprets Section 332(c)(7)(B)(ii)'s references to “any request[s] for authorization to place, construct, or modify personal wireless service facilities” broadly, consistent with Congressional intent. As described below, the Commission finds that “any” is unqualifiedly broad, and that “request” encompasses anything required to secure all authorizations necessary for the deployment of personal wireless services infrastructure. In particular, the Commission finds that Section 332(c)(7) includes authorizations relating to access to a ROW, including but not limited to the “place[ment], construct[ion], or modif[ication]” of facilities on government-owned property, for the purpose of providing “personal wireless service.” The Commission observes that this result, too, is consistent with Commission precedent, which involved a contract that provided exclusive access to a ROW. As but one example, to have limited that holding to exclude government-owned property within the ROW even if the carrier needed access to that property would have the effect of diluting or completely defeating the purpose of Section 332(c)(7).

38. Second, and in the alternative, even if Section 253(a) and Section 332(c)(7) were to permit leeway for states and localities acting in their proprietary role, the examples in the record would be excepted because they involve states and localities fulfilling regulatory objectives. In the proprietary context, “a State acts as a `market participant with no interest in setting policy.' ” The Commission contrasts state and local governments' purely proprietary actions with states and localities acting with respect to managing or controlling access to property within public ROW, or to decisions about where facilities that will provide personal wireless service to the public may be sited. As several commenters point out, courts have recognized that states and localities “hold the public streets and sidewalks in trust for the public” and “manage public ROW in their regulatory capacities.” These decisions could be based on a number of regulatory objectives, such as aesthetics or public safety and welfare, some of which, as the Commission notes elsewhere, would fall within the preemption scheme envisioned by Congress. In these situations, the State or locality's role seems to be indistinguishable from its function and objectives as a regulator. To the extent that there is some distinction, the temptation to blend the two roles for purposes of insulating conduct from federal preemption cannot be underestimated in light of the overarching statutory objective that telecommunications service and personal wireless services be deployed without material impediments.

39. The Commission believes that Section 253(c) is properly construed to suggest that Congress did not intend to permit states and localities to rely on their ownership of property within a ROW as a pretext to advance regulatory objectives that prohibit or have the effect of prohibiting the provision of covered services, and thus that such conduct is preempted. The Commission's interpretations here are intended to facilitate the implementation of the scheme Congress intended and to provide greater regulatory certainty to states, municipalities, and regulated parties about what conduct is preempted under Section 253(a). Should factual questions arise about whether a state or locality is engaged in such behavior, Section 253(d) affords state and local governments and private parties an avenue for specific preemption challenges.

40. The Commission rejects claims that it lacks authority to issue authoritative interpretations of Sections 253 and 332(c)(7) in this Declaratory Ruling. The Commission acts here pursuant to its broad authority to interpret key provisions of the Communications Act, consistent with the Commission's exercise of that interpretive authority in the past. In this instance, the Commission finds that issuing a Declaratory Ruling is necessary to remove what the record reveals is substantial uncertainty and to reduce the number and complexity of legal controversies regarding certain fee and non-fee state and local legal requirements in connection with Small Wireless Facility infrastructure. The Commission thus exercise its authority in this Declaratory Ruling to interpret Section 253 and Section 332(c)(7) and explain how those provisions apply in the specific scenarios at issue here.

41. Nothing in Sections 253 or 332(c)(7) purports to limit the exercise of the Commission's general interpretive authority. Congress's inclusion of preemption provisions in Section 253(d) and Section 332(c)(7)(B)(v) does not limit the Commission's ability pursuant to other sections of the Act to construe and provide its authoritative interpretation as to the meaning of those provisions. Any preemption under Section 253 and/or Section 332(c)(7)(B) that subsequently occurs will proceed in accordance with the enforcement mechanisms available in each context. But whatever enforcement mechanisms may be available to preempt specific state and local requirements, nothing in Section 253 or Section 332(c)(7) prevents the Commission from declaring that a category of state or local laws is inconsistent with Section 253(a) or Section 332(c)(7)(B)(i)(II) because it prohibits or has the effect of prohibiting the relevant covered service.

42. The Commission's interpretations of Sections 253 and Section 332(c)(7) are likewise not at odds with the Tenth Amendment and constitutional precedent, as some commenters contend. In particular, the Commission's interpretations do not directly “compel the states to administer federal regulatory programs or pass legislation.” The outcome of violations of Section 253(a) or Section 332(c)(7)(B) of the Act are no more than a consequence of “the limits Congress already imposed on State and local governments” through its enactment of Section 332(c)(7).

43. The Commission also reject the suggestion that the limits Section 253 places on state and local rights-of-way fees and management will unconstitutionally interfere with the relationship between a state and its political subdivisions. As relevant to its interpretations here, it is not clear, at first blush, that such concerns would be implicated. Because state and local legal requirements can be written and structured in myriad ways, and challenges to such state or local activities could be framed in broad or narrow terms, the Commission declines to resolve such questions here, divorced from any specific context.

44. In this Third Report and Order, the Commission addresses the application of shot clocks to state and local review of wireless infrastructure deployments. The Commission does so by taking action in three main areas. First, the Commission adopts a new set of shot clocks tailored to support the deployment Small Wireless Facilities. Second, the Commission adopts a specific remedy that applies to violations of these new Small Wireless Facility shot clocks, which the Commission expects will operate to significantly reduce the need for litigation over missed shot clocks. Third, the Commission clarifies a number of issues that are relevant to all of the FCC's shot clocks, including the types of authorizations subject to these time periods.

45. In 2009, the Commission concluded that it should use shot clocks to define a presumptive “reasonable period of time” beyond which state or local inaction on wireless infrastructure siting applications would constitute a “failure to act” within the meaning of Section 332. The Commission adopted a 90-day clock for reviewing collocation applications and a 150-day clock for reviewing siting applications other than collocations. The record here suggests that the two existing Section 332 shot clocks have increased the efficiency of deploying wireless infrastructure. Many localities already process wireless siting applications in less time than required by those shot clocks and a number of states have enacted laws requiring that collocation applications be processed in 60 days or less. Some siting agencies acknowledge that they have worked to gain efficiencies in processing siting applications and welcome the addition of new shot clocks tailored to the deployment of small scale facilities. Given siting agencies' increased experience with existing shot clocks, the greater need for rapid siting of Small Wireless Facilities nationwide, and the lower burden siting of these facilities places on siting agencies in many cases, the Commission takes this opportunity to update its approach to speed the deployment of Small Wireless Facilities.

46. In this section, the Commission adopts two new Section 332 shot clocks for Small Wireless Facilities—60 days for review of an application for collocation of Small Wireless Facilities using a preexisting structure and 90 days for review of an application for attachment of Small Wireless Facilities using a new structure. These new Section 332 shot clocks carefully balance the well-established authority that states and local authorities have over review of wireless siting applications with the requirements of Section 332(c)(7)(ii) to exercise that authority “within a reasonable period of time . . . taking into account the nature and scope of the request.” Further, the Commission's decision is consistent with the BDAC's Model Code for Municipalities' recommended timeframes, which utilize this same 60-day and 90-day framework for collocation of Small Wireless Facilities and new structures and are similar to shot clocks enacted in state level small cell bills and the real world experience of many municipalities which further supports the reasonableness of its approach. The Commission's actions will modernize the framework for wireless facility siting by taking into consideration that states and localities should be able to address the siting of Small Wireless Facilities in a more expedited review period than needed for larger facilities.

47. The Commission finds compelling reasons to establish a new presumptively reasonable Section 332 shot clock of 60 days for collocations of Small Wireless Facilities on existing structures. The record demonstrates the need for, and reasonableness of, expediting the siting review of these collocations. Notwithstanding the implementation of the current shot clocks, more streamlined procedures are both reasonable and necessary to provide greater predictability for siting applications nationwide for the deployment of Small Wireless Facilities. The two current Section 332 shot clocks do not reflect the evolution of the application review process and evidence that localities can complete reviews more quickly than was the case when the existing Section 332 shot clocks were adopted nine years ago. Since 2009, localities have gained significant experience processing wireless siting applications. Indeed, many localities already process wireless siting applications in less than the required time and several jurisdictions require by law that collocation applications be processed in 60 days or less. With the passage of time, siting agencies have become more efficient in processing siting applications. These facts demonstrate that a shorter, 60-day shot clock for processing collocation applications for Small Wireless Facilities is reasonable.

48. As the Commission found in 2009, collocation applications are generally easier to process than new construction because the community impact is likely to be smaller. In particular, the addition of an antenna to an existing tower or other structure is unlikely to have a significant visual impact on the community. The size of Small Wireless Facilities poses little or no risk of adverse effects on the environment or historic preservation. Indeed, many jurisdictions do not require public hearings for approval of such attachments, underscoring their belief that such attachments do not implicate complex issues requiring a more searching review.

49. Further, the Commission finds no reason to believe that applying a 60-day time frame for Small Wireless Facility collocations under Section 332 creates confusion with collocations that fall within the scope of “eligible facilities requests” under Section 6409 of the Spectrum Act, which are also subject to a 60-day review. The type of facilities at issue here are distinctly different and the definition of a Small Wireless Facility is clear. Further, siting authorities are required to process Section 6409 applications involving the swap out of certain equipment in 60 days, and the Commission sees no meaningful difference in processing these applications than processing Section 332 collocation applications in 60 days. There is no reason to apply different time periods (60 vs. 90 days) to what is essentially the same review: Modification of an existing structure to accommodate new equipment. Finally, adopting a 60-day shot clock will encourage service providers to collocate rather than opting to build new siting structures which has numerous advantages.

50. For similar reasons, the Commission also finds it reasonable to establish a new 90-day Section 332 shot clock for new construction of Small Wireless Facilities. Ninety days is a presumptively reasonable period of time for localities to review such siting applications. Small Wireless Facilities have far less visual and other impact than the facilities the Commission considered in 2009 and should accordingly require less time to review. Indeed, some state and local governments have already adopted 60-day maximum reasonable periods of time for review of all small cell siting applications, and, even in the absence of such maximum requirements, several are already reviewing and approving small-cell siting applications within 60 days or less after filing. Numerous industry commenters advocated a 90-day shot clock for all non-collocation deployments. Based on this record, the Commission finds review of an application to deploy a Small Wireless Facility using a new structure warrants more review time than a mere collocation, but less than the construction of a macro tower. For the reasons explained below, the Commission also specifies today a provision that will initially reset these two new shot clocks in the event that a locality receives a materially incomplete application.

51. Given the way in which Small Wireless Facilities are likely to be deployed, in large numbers as part of a system meant to cover a particular area, the Commission anticipates that some applicants will submit “batched” applications: Multiple separate applications filed at the same time, each for one or more sites or a single application covering multiple sites. The Commission sought comment on whether batched applications should be subject to either longer or shorter shot clocks than would apply if each component of the batch were submitted separately. The Commission sees no reason why the shot clocks for batched applications to deploy Small Wireless Facilities should be longer than those that apply to individual applications because, in many cases, the batching of such applications has advantages in terms of administrative efficiency that could actually make review easier. The Commission's decision flows from its current Section 332 shot clock policy. Under the two existing Section 332 shot clocks, if an applicant files multiple siting applications on the same day for the same type of facilities, each application is subject to the same number of review days by the siting agency. These multiple siting applications are equivalent to a batched application and therefore the shot clocks for batching should follow the same rules as if the applications were filed separately. Accordingly, when applications to deploy Small Wireless Facilities are filed in batches, the shot clock that applies to the batch is the same one that would apply had the applicant submitted individual applications. Should an applicant file a single application for a batch that includes both collocated and new construction of Small Wireless Facilities, the longer 90-day shot clock will apply, to ensure that the siting authority has adequate time to review the new construction sites.

52. The Commission recognizes the concerns raised by parties arguing for a longer time period for at least some batched applications but concludes that a separate rule is not necessary to address these concerns. Under the Commission's approach, in extraordinary cases, a siting authority, as discussed below, can rebut the presumption of reasonableness of the applicable shot clock period where a batch application causes legitimate overload on the siting authority's resources. Thus, contrary to some localities' arguments, the Commission's approach provides for a certain degree of flexibility to account for exceptional circumstances. In addition, consistent with, and for the same reasons as the Commission's conclusion below that Section 332 does not permit states and localities to prohibit applicants from requesting multiple types of approvals simultaneously, the Commission finds that Section 332(c)(7)(B)(ii) similarly does not allow states and localities to refuse to accept batches of applications to deploy Small Wireless Facilities.

53. In adopting these new shot clocks for Small Wireless Facility applications, the Commission also provides an additional remedy that it expects will substantially reduce the likelihood that applicants will need to pursue additional and costly relief in court at the expiration of those time periods.

54. The Commission determines that the failure of a state or local government to issue a decision on a Small Wireless Facility siting application within the presumptively reasonable time periods above will constitute a “failure to act” within the meaning of Section 332(c)(7)(B)(v). Therefore, a provider is, at a minimum, entitled to the same process and remedies available for a failure to act within the new Small Wireless Facility shot clocks as they have been under the FCC's 2009 shot clocks. But the Commission also adds an additional remedy for the new Small Wireless Facility shot clocks.

55. State or local inaction by the end of the Small Wireless Facility shot clock will function not only as a Section 332(c)(7)(B)(v) failure to act but also amount to a presumptive prohibition on the provision of personal wireless services within the meaning of Section 332(c)(7)(B)(i)(II). Accordingly, the Commission would expect the state or local government to issue all necessary permits without further delay. In cases where such action is not taken, the Commission assumes, for the reasons discussed below, that the applicant would have a straightforward case for obtaining expedited relief in court.

56. As discussed in the Declaratory Ruling, a regulation under Section 332(c)(7)(B)(i)(II) constitutes an effective prohibition if it materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment. Missing shot clock deadlines would thus presumptively have the effect of unlawfully prohibiting service in that such failure to act can be expected to materially limit or inhibit the introduction of new services or the improvement of existing services. Thus, when a siting authority misses the applicable shot clock deadline, the applicant may commence suit in a court of competent jurisdiction alleging a violation of Section 332(c)(7)(B)(i)(II), in addition to a violation of Section 332(c)(7)(B)(ii), as discussed above. The siting authority then will have an opportunity to rebut the presumption of effective prohibition by demonstrating that the failure to act was reasonable under the circumstances and, therefore, did not materially limit or inhibit the applicant from introducing new services or improving existing services.

57. Given the seriousness of failure to act within a reasonable period of time, the Commission expects, as noted above, siting authorities to issue without any further delay all necessary authorizations when notified by the applicant that they have missed the shot clock deadline, absent extraordinary circumstances. Where the siting authority nevertheless fails to issue all necessary authorizations and litigation is commenced based on violations of Sections 332(c)(7)(B)(i)(II) and/or 332(c)(7)(B)(ii), the Commission expects that applicants and other aggrieved parties will likely pursue equitable judicial remedies. Given the relatively low burden on state and local authorities of simply acting—one way or the other—within the Small Wireless Facility shot clocks, the Commission thinks that applicants would have a relatively low hurdle to clear in establishing a right to expedited judicial relief.

58. The Commission expects that courts will typically find expedited and permanent injunctive relief warranted for violations of Sections 332(c)(7)(B)(i)(II) and 332(c)(7)(B)(ii) of the Act when addressing the circumstances discussed in this Order. The Commission believes that this approach is sensible because guarding against barriers to the deployment of personal wireless facilities not only advances the goal of Section 332(c)(7)(B) but also policies set out elsewhere in the Communications Act and 1996 Act, as the Commission recently has recognized in the case of Small Wireless Facilities. This is so whether or not these barriers stem from bad faith. Nor does the Commission anticipate that there would be unresolved issues implicating the siting authority's expertise and therefore requiring remand in most instances.

59. The guidance provided here should reduce the need for, and complexity of, case-by-case litigation and reduce the likelihood of vastly different timing across various jurisdictions for the same type of deployment. This clarification, along with the other actions the Commission takes in this Third Report and Order, should streamline the courts' decision-making process and reduce the possibility of inconsistent rulings. Consequently, the Commission believes that its approach helps facilitate courts' ability to “hear and decide such [lawsuits] on an expedited basis,” as the statute requires.

60. The Commission's updated interpretation of Section 332(c)(7) for Small Wireless Facilities effectively balances the interest of wireless service providers to have siting applications granted in a timely and streamlined manner and the interest of localities to protect public safety and welfare and preserve their authority over the permitting process. The Commission's specialized deployment categories, in conjunction with the acknowledgement that in rare instances, it may legitimately take longer to act, recognize that the siting process is complex and handled in many different ways under various states' and localities' long-established codes. Further, the Commission's approach tempers localities' concerns about the inflexibility of a deemed granted proposal because the new remedy the Commission adopts here accounts for the breadth of potentially unforeseen circumstances that individual localities may face and the possibility that additional review time may be needed in truly exceptional circumstances. The Commission further finds that its interpretive framework will not be unduly burdensome on localities because a number of states have already adopted even more stringent deemed granted remedies

61. Section 332(c)(7)(B)(ii) requires state and local governments to act “within a reasonable period of time” on “any request for authorization to place, construct, or modify personal wireless service facilities.” The Commission has not addressed the specific types of authorizations subject to this requirement. After carefully considering these arguments, the Commission finds that “any request for authorization to place, construct, or modify personal wireless service facilities” under Section 332(c)(7)(B)(ii) means all authorizations necessary for the deployment of personal wireless services infrastructure. This interpretation finds support in the record and is consistent with the courts' interpretation of this provision and the text and purpose of the Act.

62. The Commission's interpretation remains faithful to the purpose of Section 332(c)(7) to balance Congress's competing desires to preserve the traditional role of state and local governments in regulating land use and zoning, while encouraging the rapid development of new telecommunications technologies. Under the Commission's interpretation, states and localities retain their authority over personal wireless facilities deployment. At the same time, deployment will be kept on track by ensuring that the entire approval process necessary for deployment is completed within a reasonable period of time, as defined by the shot clocks addressed in this Third Report and Order.

63. In addition to establishing two new Section 332 shot clocks for Small Wireless Facilities, the Commission takes this opportunity to codify its two existing Section 332 shot clocks for siting applications that do not involve Small Wireless Facilities. In 2009 the Commission found that 90 days is a reasonable time frame for processing collocation applications and 150 days is a reasonable time frame to process applications other than collocations. Since these Section 332 shot clocks were adopted as part of a declaratory ruling, they were not codified in the Commission's rules. The Commission sought comment on whether to modify these shot clocks. The Commission finds no need to modify them here and will continue to use these shot clocks for processing Section 332 siting applications that do not involve Small Wireless Facilities. The Commission does, though, codify these two existing shot clocks in its rules alongside the two newly-adopted shot clocks so that all interested parties can readily find the shot clock requirements in one place.

64. The Commission takes this opportunity to clarify that for purposes of the Section 332 shot clocks, attachment of facilities to existing structures constitutes collocation, regardless of whether the structure or the location has previously been zoned for wireless facilities. As the Commission stated in 2009, “an application is a request for collocation if it does not involve a `substantial increase in the size of a tower' as defined in the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas.” The definition of “[c]ollocation” in the NPA provides for the “mounting or installation of an antenna on an existing tower, building or structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes, whether or not there is an existing antenna on the structure.” The NPA's definition of collocation explicitly encompasses collocations on structures and buildings that have not yet been zoned for wireless use. To interpret the NPA any other way would be unduly narrow and there is no persuasive reason to accept a narrower interpretation. This is particularly true given that the NPA definition of collocation stands in direct contrast with the definition of collocation in the Spectrum Act, pursuant to which facilities only fall within the scope of an “eligible facilities request” if they are attached to towers or base stations that have already been zoned for wireless use.

65. In 2014 the Commission clarified that a shot clock begins to run when an application is first submitted, not when the application is deemed complete. The clock can be paused, however, if the locality notifies the applicant within 30 days that the application is incomplete. The locality may pause the clock again if it provides written notice within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The Commission sought comment on these determinations.

66. Based on the record, the Commission finds no cause to alter the Commission's prior determinations and now codifies them in its rules. Codified rules, easily accessible to applicants and localities alike, should provide helpful clarity. The complaints by states and localities about the sufficiency of some of the applications they receive are adequately addressed by the Commission's current policy, which preserves the states' and localities' ability to pause review when they find an application to be incomplete. The Commission does not find it necessary at this point to shorten the 30-day initial review period for completeness because, as was the case when this review period was adopted in the 2009, it remains consistent with review periods for completeness under existing state wireless infrastructure deployment statutes and still “gives State and local governments sufficient time for reviewing applications for completeness, while protecting applicants from a last minute decision that an application should be denied as incomplete.”

67. However, for applications to deploy Small Wireless Facilities, the Commission implements a modified tolling system designed to help ensure that providers are submitting complete applications on day one. This step accounts for the fact that the shot clocks applicable to such applications are shorter than those established in 2009 and, because of which, there may instances where the prevailing tolling rules would further shorten the shot clocks to such an extent that it might be impossible for siting authorities to act on the application. For Small Wireless Facilities applications, the siting authority has 10 days from the submission of the application to determine whether the application is incomplete. The shot clock then resets once the applicant submits the supplemental information requested by the siting authority. Thus, for example, for an application to collocate Small Wireless Facilities, once the applicant submits the supplemental information in response to a siting authority's timely request, the shot clock resets, effectively giving the siting authority an additional 60 days to act on the Small Wireless Facilities collocation application. For subsequent determinations of incompleteness, the tolling rules that apply to non-Small Wireless Facilities would apply—that is, the shot clock would toll if the siting authority provides written notice within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information.

68. As noted above, multiple authorizations may be required before a deployment is allowed to move forward. For instance, a locality may require a zoning permit, a building permit, an electrical permit, a road closure permit, and an architectural or engineering permit for an applicant to place, construct, or modify its proposed personal wireless service facilities. All of these permits are subject to Section 332's requirement to act within a reasonable period of time, and thus all are subject to the shot clocks the Commission adopts or codifies here.

69. The Commission also finds that mandatory pre-application procedures and requirements do not toll the shot clocks. The Commission concludes that the ability to toll a shot clock when an application is found incomplete or by mutual agreement by the applicant and the siting authority should be adequate to address these concerns. Much like a requirement to file applications one after another, requiring pre-application review would allow for a complete circumvention of the shot clocks by significantly delaying their start date. An application is not ruled on within “a reasonable period of time after the request is duly filed” if the state or locality takes the full ordinary review period after having delayed the filing in the first instance due to required pre-application review. Indeed, requiring a pre-application review before an application may be filed is similar to imposing a moratorium, which the Commission has made clear does not stop the shot clocks from running. Therefore, the Commission concludes that if an applicant proffers an application, but a state or locality refuses to accept it until a pre-application review has been completed, the shot clock begins to run when the application is proffered.

70. That said, the Commission encourages voluntary pre-application discussions, which may well be useful to both parties. The record indicates that such meetings can clarify key aspects of the application review process, especially with respect to large submissions or applicants new to a particular locality's processes and may speed the pace of review. To the extent that an applicant voluntarily engages in a pre-application review to smooth the way for its filing, the shot clock will begin when an application is filed, presumably after the pre-application review has concluded.

71. The Commission also reiterates that the remedies granted under Section 332(c)(7)(B)(v) are independent of, and in addition to, any remedies that may be available under state or local law. Thus, where a state or locality has established its own shot clocks, an applicant may pursue any remedies granted under state or local law in cases where the siting authority fails to act within those shot clocks. However, the applicant must wait until the Commission shot clock period has expired to bring suit for a “failure to act” under Section 332(c)(7)(B)(v).

72. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM), released in April 2017 (82 FR 22453, May 16, 2017). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The comments received are addressed below in Section 2. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

73. In the Third Report and Order, the Commission continues its efforts to promote the timely buildout of wireless infrastructure across the country by eliminating regulatory impediments that unnecessarily delay bringing personal wireless services to consumers. The record shows that lengthy delays in approving siting applications by siting agencies has been a persistent problem. With this in mind, the Third Report and Order establishes and codifies specific rules concerning the amount of time siting agencies may take to review and approve certain categories of wireless infrastructure siting applications. More specifically, the Commission addresses its Section 332 shot clock rules for infrastructure applications which will be presumed reasonable under the Communications Act. As an initial matter, the Commission establishes two new shot clocks for Small Wireless Facilities applications. For collocation of Small Wireless Facilities on preexisting structures, the Commission adopts a 60-day shot clock which applies to both individual and batched applications. For applications associated with Small Wireless Facilities new construction the Commission adopts a 90-day shot clock for both individual and batched applications. The Commission also codifies two existing Section 332 shot clocks for all other Non-Small Wireless Facilities that were established in 2009 without codification. These existing shot clocks require 90-days for processing of all other Non-Small Wireless Facilities collocation applications, and 150-days for processing of all other Non-Small Wireless Facilities applications other than collocations.

74. The Third Report and Order addresses other issues related to both the existing and new shot clocks. In particular the Commission addresses the specific types of authorizations subject to the “Reasonable Period of Time” provisions of Section 332(c)(7)(B)(ii), finding that “any request for authorization to place, construct, or modify personal wireless service facilities” under Section 332(c)(7)(B)(ii) means all authorizations a locality may require, and to all aspects of and steps in the siting process, including license or franchise agreements to access ROW, building permits, public notices and meetings, lease negotiations, electric permits, road closure permits, aesthetic approvals, and other authorizations needed for deployment of personal wireless services infrastructure. The Commission also addresses collocation on structures not previously zoned for wireless use, when the four Section 332 shot clocks begin to run, the impact of incomplete applications on the Commission's Section 332 shot clocks, and how state imposed shot clocks remedies effect the Commission's Section 332 shot clocks remedies.

75. The Commission discusses the appropriate judicial remedy that applicants may pursue in cases where a siting authority fails to act within the applicable shot clock period. In those situations, applicants may commence an action in a court of competent jurisdiction alleging a violation of Section 332(c)(7)(B)(i)(II) and seek injunctive relief granting the application. Notwithstanding the availability of a judicial remedy if a shot clock deadline is missed, the Commission recognizes that the Section 332 time frames might not be met in exceptional circumstances and has refined its interpretation of the circumstances when a period of time longer than the relevant shot clock would nonetheless be a reasonable period of time for action by a siting agency. In addition, a siting authority that is subject to a court action for missing an applicable shot clock deadline has the opportunity to demonstrate that the failure to act was reasonable under the circumstances and, therefore, did not materially limit or inhibit the applicant from introducing new services or improving existing services thereby rebutting the effective prohibition presumption.

76. The rules adopted in the Third Report and Order will accelerate the deployment of wireless infrastructure needed for the mobile wireless services of the future, while preserving the fundamental role of localities in this process. Under the Commission's new rules, localities will maintain control over the placement, construction and modification of personal wireless facilities, while at the same time the Commission's new process will streamline the review of wireless siting applications.

77. Only one party—the Smart Cities and Special Districts Coalition—filed comments specifically addressing the rules and policies proposed in the IRFA. They argue that any shortening or alteration of the Commission's existing shot clocks or the adoption of a deemed granted remedy will adversely affect small local governments, special districts, property owners, small developers, and others by placing their siting applications behind wireless provider siting applications. Subsequently, NATOA filed comments concerning the draft FRFA. NATOA argues that the new shot clocks impose burdens on local governments and particularly those with limited resources. NATOA asserts that the new shot clocks will spur more deployment applications than localities currently process.

78. These arguments, however, fail to acknowledge that Section 332 shot clocks have been in place for years and reflect Congressional intent as seen in the statutory language of Section 332. The record in this proceeding demonstrates the need for, and reasonableness of, expediting the siting review of certain facility deployments. More streamlined procedures are both reasonable and necessary to provide greater predictability. The current shot clocks do not reflect the evolution of the application review process and evidence that localities can complete reviews more quickly than was the case when the original shot clocks were adopted nine years ago. Localities have gained significant experience processing wireless siting applications and several jurisdictions already have in place laws that require applications to be processed in less time than the Commission's new shot clocks. With the passage of time, sitting agencies have become more efficient in processing siting applications and this, in turn, should reduce any economic burden the Commission's new shot clock provisions have on them.

79. The Commission has carefully considered the impact of its new shot clocks on siting authorities and has established shot clocks that take into consideration the nature and scope of siting requests by establishing shot clocks of different lengths of time that depend on the nature of the siting request at issue. The length of these shot clocks is based in part on the need to ensure that local governments have ample time to take any steps needed to protect public safety and welfare and to process other pending utility applications. Since local siting authorities have gained experience in processing siting requests in an expedited fashion, they should be able to comply with the Commission's new shot clocks.

80. The Commission has taken into consideration the concerns of the Smart Cities and Special Districts Coalition and NATOA. It has established shot clocks that will not favor wireless providers over other applicants with pending siting applications. Further, instead of adopting a deemed granted remedy that would grant a siting application when a shot clock lapses without a decision on the merits, the Commission provides guidance as to the appropriate judicial remedy that applicants may pursue and examples of exceptional circumstance where a siting authority may be justified in needing additional time to review a siting application then the applicable shot clock allows. Under this approach, the applicant may seek injunctive relief as long as several minimum requirements are met. The siting authority, however, can rebut the presumptive reasonableness of the applicable shot clock under certain circumstances. The circumstances under which a sitting authority might have to do this will be rare. Under this carefully crafted approach, the interests of siting applicants, siting authorities, and citizens are protected.

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

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

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

84. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore 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.

85. 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).

86. 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 indicate 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 show that the majority of these governments have populations of less than 50,000. Based on this data the Commission estimates that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”

87. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.

88. The Commission's own data—available in its Universal Licensing System—indicate that, as of May 17, 2018, there are 264 Cellular licensees that will be affected by the Commission's actions. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Thus, using available data, the Commission estimates that the majority of wireless firms can be considered small.

89. Personal Radio Services. Personal radio services provide short-range, low-power radio for personal communications, radio signaling, and business communications not provided for in other services. Personal radio services include services operating in spectrum licensed under part 95 of the Commission's rules. These services include Citizen Band Radio Service, General Mobile Radio Service, Radio Control Radio Service, Family Radio Service, Wireless Medical Telemetry Service, Medical Implant Communications Service, Low Power Radio Service, and Multi-Use Radio Service. There are a variety of methods used to license the spectrum in these rule parts, from licensing by rule, to conditioning operation on successful completion of a required test, to site-based licensing, to geographic area licensing. All such entities in this category are wireless, therefore the Commission applies the definition of Wireless Telecommunications Carriers (except Satellite), pursuant to which the SBA's small entity size standard is defined as those entities employing 1,500 or fewer persons. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus, under this category and the associated size standard, the Commission estimates that the majority of firms can be considered small. The Commission notes however that many of the licensees in this category are individuals and not small entities. In addition, due to the mostly unlicensed and shared nature of the spectrum utilized in many of these services, the Commission lacks direct information upon which to base an estimation of the number of small entities that may be affected by the Commission's actions in this proceeding.

90. Public Safety Radio Licensees. Public Safety Radio Pool licensees as a general matter, include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Because of the vast array of public safety licensees, the Commission has not developed a small business size standard specifically applicable to public safety licensees. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications. The appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of firms can be considered small. With respect to local governments, in particular, since many governmental entities comprise the licensees for these services, the Commission includes under public safety services the number of government entities affected. According to Commission records, there are a total of approximately 133,870 licenses within these services. There are 3,121 licenses in the 4.9 GHz band, based on an FCC Universal Licensing System search of March 29, 2017. The Commission estimates that fewer than 2,442 public safety radio licensees hold these licenses because certain entities may have multiple licenses.

91. Private Land Mobile Radio Licensees. Private land mobile radio (PLMR) systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a small business size standard specifically applicable to PLMR users. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications. The appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus, under this category and the associated size standard, the Commission estimates that the majority of PLMR Licensees are small entities.

92. According to the Commission's records, a total of approximately 400,622 licenses comprise PLMR users. Of this number there are a total of 3,374 licenses in the frequencies range 173.225 MHz to 173.375 MHz, which is the range affected by the Third Report and Order. The Commission does not require PLMR licensees to disclose information about number of employees and does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. The Commission however believes that a substantial number of PLMR licensees may be small entities despite the lack of specific information.

93. Multiple Address Systems. Entities using Multiple Address Systems (MAS) spectrum, in general, fall into two categories: (1) Those using the spectrum for profit-based uses, and (2) those using the spectrum for private internal uses. With respect to the first category, Profit-based Spectrum use, the size standards established by the Commission define “small entity” for MAS licensees as an entity that has average annual gross revenues of less than $15 million over the three previous calendar years. A “Very small business” is defined as an entity that, together with its affiliates, has average annual gross revenues of not more than $3 million over the preceding three calendar years. The SBA has approved these definitions. The majority of MAS operators are licensed in bands where the Commission has implemented a geographic area licensing approach that requires the use of competitive bidding procedures to resolve mutually exclusive applications.

94. The Commission's licensing database indicates that, as of April 16, 2010, there were a total of 11,653 site-based MAS station authorizations. Of these, 58 authorizations were associated with common carrier service. In addition, the Commission's licensing database indicates that, as of April 16, 2010, there were a total of 3,330 Economic Area market area MAS authorizations. The Commission's licensing database also indicates that, as of April 16, 2010, of the 11,653 total MAS station authorizations, 10,773 authorizations were for private radio service. In 2001, an auction for 5,104 MAS licenses in 176 EAs was conducted. Seven winning bidders claimed status as small or very small businesses and won 611 licenses. In 2005, the Commission completed an auction (Auction 59) of 4,226 MAS licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed small business status and won 1,891 licenses.

95. With respect to the second category, Internal Private Spectrum use consists of entities that use, or seek to use, MAS spectrum to accommodate their own internal communications needs, MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the definition developed by the SBA would be more appropriate than the Commission's definition. The closest applicable definition of a small entity is the “Wireless Telecommunications Carriers (except Satellite)” definition under the SBA rules. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this category, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus, under this category and the associated small business size standard, the Commission estimates that the majority of firms that may be affected by the Commission's action can be considered small.

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

97. BRS—In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, the Commission estimates that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately there are approximately 86 incumbent BRS licensees that are considered small entities (18 incumbent BRS licensees do not meet the small business size standard). After adding the number of small business auction licensees to the number of incumbent licensees not already counted, the Commission finds that there are currently approximately 133 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules.

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

99. EBS—The Educational Broadband Service has been included within the broad economic census category and SBA size standard for Wired Telecommunications Carriers since 2007. Wired Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. The SBA's small business size standard for this category is all such firms having 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small. In addition to Census Bureau data, the Commission's Universal Licensing System indicates that as of October 2014, there are 2,206 active EBS licenses. The Commission estimates that of these 2,206 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.

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

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

102. The Commission has estimated the number of licensed commercial television stations to be 1,377. Of this total, 1,258 stations (or about 91 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on November 16, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 384. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. There are also 2,300 low power television stations, including Class A stations (LPTV) and 3,681 TV translator stations. Given the nature of these services, the Commission will presume that all of these entities qualify as small entities under the above SBA small business size standard.

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

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

105. According to Commission staff review of the BIA/Kelsey, LLC's Publications, Inc. Media Access Pro Radio Database (BIA) as of January 2018, about 11,261 (or about 99.92 percent) of 11,270 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed commercial AM radio stations to be 4,633 stations and the number of commercial FM radio stations to be 6,738, for a total number of 11,371. The Commission notes, that the Commission has also estimated the number of licensed NCE radio stations to be 4,128. Nevertheless, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

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

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

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

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

110. All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million and 42 firms had annual receipts of $25 million to $49,999,999. Thus, a majority of “All Other Telecommunications” firms potentially affected by the Commission's action can be considered small.

111. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. They also include the Local Multipoint Distribution Service (LMDS), the Digital Electronic Message Service (DEMS), the 39 GHz Service (39 GHz), the 24 GHz Service, and the Millimeter Wave Service where licensees can choose between common carrier and non-common carrier status. At present, there are approximately 66,680 common carrier fixed licensees, 69,360 private and public safety operational-fixed licensees, 20,150 broadcast auxiliary radio licensees, 411 LMDS licenses, 33 24 GHz DEMS licenses, 777 39 GHz licenses, and five 24 GHz licenses, and 467 Millimeter Wave licenses in the microwave services. The Commission has not yet defined a small business size standard for microwave services. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) and the appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012, show that there were 967 firms in this category that operated for the entire year. Of this total, 955 had employment of 999 or fewer, and 12 firms had employment of 1,000 employees or more. Thus, under this category and the associated small business size standard, the Commission estimates that a majority of fixed microwave service licensees can be considered small.

112. The Commission notes that the number of firms does not necessarily track the number of licensees. The Commission also notes that it does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. The Commission estimates however, that virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition.

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

114. As of March 1, 2017, the ASR database includes approximately 122,157 registration records reflecting a “Constructed” status and 13,987 registration records reflecting a “Granted, Not Constructed” status. These figures include both towers registered to licensees and towers registered to non-licensee tower owners. The Commission does not keep information from which we can easily determine how many of these towers are registered to non-licensees or how many non-licensees have registered towers. Regarding towers that do not require ASR registration, we do not collect information as to the number of such towers in use and therefore cannot estimate the number of tower owners that would be subject to the rules on which the Commission seeks comment. Moreover, the SBA has not developed a size standard for small businesses in the category “Tower Owners.” Therefore, the Commission is unable to determine the number of non-licensee tower owners that are small entities. The Commission believes, however, that when all entities owning 10 or fewer towers and leasing space for collocation are included, non-licensee tower owners number in the thousands. In addition, there may be other non-licensee owners of other wireless infrastructure, including Distributed Antenna Systems (DAS) and small cells that might be affected by the measures on which the Commission seeks comment. The Commission does not have any basis for estimating the number of such non-licensee owners that are small entities.

115. The closest applicable SBA category is All Other Telecommunications, and the appropriate size standard consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million and 15 firms had annual receipts of $25 million to $49,999,999. Thus, under this SBA size standard a majority of the firms potentially affected by the Commission's action can be considered small.

116. The Third Report and Order does not establish any reporting, recordkeeping, or other compliance requirements for companies involved in wireless infrastructure deployment. In addition to not adopting any reporting, recordkeeping or other compliance requirements, the Commission takes significant steps to reduce regulatory impediments to infrastructure deployment and, therefore, to spur the growth of personal wireless services. Under the Commission's approach, small entities as well as large companies will be assured that their deployment requests will be acted upon within a reasonable period of time and, if their applications are not addressed within the established time frames, applicants may seek injunctive relief granting their siting applications. The Commission, therefore, has taken concrete steps to relieve companies of all sizes of uncertainly and has eliminated unnecessary delays.

117. The Third Report and Order also does not impose any reporting or recordkeeping requirements on state and local governments. While some commenters argue that additional shot clock classifications would make the siting process needlessly complex without any proven benefits, the Commission concludes that any additional administrative burden from increasing the number of Section 332 shot clocks from two to four is outweighed by the likely significant benefit of regulatory certainty and the resulting streamlined deployment process. The Commission's actions are consistent with the statutory language of Section 332 and therefore reflect Congressional intent. Further, siting agencies have become more efficient in processing siting applications and will be able to take advantage of these efficiencies in meeting the new shot clocks. As a result, the additional shot clocks that the Commission adopts will foster the deployment of the latest wireless technology and serve consumer interests.

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

119. The steps taken by the Commission in the Third Report and Order eliminate regulatory burdens for small entities as well as large companies that are involved with the deployment of person wireless services infrastructure. By establishing shot clocks and guidance on injunctive relief for personal wireless services infrastructure deployments, the Commission has standardized and streamlined the permitting process. These changes will significantly minimize the economic burden of the siting process on all entities, including small entities, involved in deploying personal wireless services infrastructure. The record shows that permitting delays imposes significant economic and financial burdens on companies with pending wireless infrastructure permits. Eliminating permitting delays will remove the associated cost burdens and enabling significant public interest benefits by speeding up the deployment of personal wireless services and infrastructure. In addition, siting agencies will be able to utilize the efficiencies that they have gained over the years processing siting applications to minimize financial impacts.

120. The Commission considered but did not adopt proposals by commenters to issue “Best Practices” or “Recommended Practices,” and to develop an informal dispute resolution process and mediation program, noting that the steps taken in the Third Report and Order address the concerns underlying these proposals to facilitate cooperation between parties to reach mutually agreed upon solutions. The Commission anticipates that the changes it has made to the permitting process will provide significant efficiencies in the deployment of personal wireless services facilities and this in turn will benefit all companies, but particularly small entities, that may not have the resources and economies of scale of larger entities to navigate the permitting process. By adopting these changes, the Commission will continue to fulfill its statutory responsibilities, while reducing the burden on small entities by removing unnecessary impediments to the rapid deployment of personal wireless services facilities and infrastructure across the country.

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

122. This Third Report and Order does not contain new or revised information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13.

123. The Commission will send a copy of this Declaratory Ruling and Third Report and 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).

124. Accordingly, it is ordered, pursuant to sections 1, 4(i)-(j), 7, 201, 253, 301, 303, 309, 319, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(j), 157, 201, 253, 301, 303, 309, 319, 332, that this Declaratory Ruling and Third Report and Order in WT Docket No. 17-79 is hereby adopted.

125. It is further ordered that part 1 of the Commission's rules is amended as set forth in the final rules of this Declaratory Ruling and Third Report and Order, and that these changes shall be effective January 14, 2019.

126. It is further ordered that this Third Report and Order shall be effective January 14, 2019. The Declaratory Ruling and the obligations set forth therein are effective on the same day that this Third Report and Order becomes effective. It is our intention in adopting the foregoing Declaratory Ruling and these rule changes that, if any provision of the Declaratory Ruling or the rules, or the application thereof to any person or circumstance, is held to be unlawful, the remaining portions of such Declaratory Ruling and the rules not deemed unlawful, and the application of such Declaratory Ruling and the rules to other person or circumstances, shall remain in effect to the fullest extent permitted by law.

127. It is further ordered that, pursuant to 47 CFR 1.4(b)(1), the period for filing petitions for reconsideration or petitions for judicial review of this Declaratory Ruling and Third Report and Order will commence on the date that a summary of this Declaratory Ruling and Third Report and Order is published in the Federal Register.

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

129. It is further ordered that this Declaratory Ruling and Third Report and Order shall be sent 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 part 1 as follows: