Federal Register Vol. 83, No.30,

Notice of Proposed Rulemaking (NPRM), Product Identifier 2017-CE-031-AD (83 FR 4605, February 1, 2018), proposes to require repetitively inspecting the lower area of the forward cabin doorposts for cracks and repairing any cracks found by modifying the area with the applicable Cessna service kit.

As published, the Docket No. throughout the document is incorrect.

No other part of the preamble or regulatory information has been changed; therefore, only the changed portion of the NPRM is being published in the Federal Register.

The last date for submitting comments to the NPRM remains March 19, 2018.

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 small airplanes, gliders, balloons, airships, domestic business jet transport airplanes, and associated appliances to the Director of the Policy and Innovation Division.

In the Federal Register of February 1, 2018, Product Identifier 2017-CE-031-AD is corrected as follows:

On page 4605, in the first column, on line four in the heading, change “Docket No. FAA-2017-0049” to “Docket No. FAA-2018-0049.”

On page 4605, in the second column, on line four and five under the heading Examining the AD Docket, change “Docket No. FAA-2017-0049” to “Docket No. FAA-2018-0049.”

On page 4605, in the second column, on line five and six under the heading Comments Invited, change “Docket No. FAA-2017-0049” to “Docket No. FAA-2018-0049.”

Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.

On September 4, 1992, EPA promulgated 40 CFR part 55,1 which established requirements to control air pollution from the Outer Continental Shelf (OCS) sources in order to attain and maintain Federal and State ambient air quality standards (AAQS) and to comply with the provisions of part C of title I of the CAA. Part 55 applies to all OCS sources offshore of the states except those located in the Gulf of Mexico west of 87.5 degrees longitude.

Section 328(a) of the CAA requires that for such sources located within 25 miles of a State's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the corresponding onshore area (COA). Because the OCS requirements are based on onshore requirements, and onshore requirements may change, section 328(a)(1) requires that the EPA update the OCS requirements as necessary to maintain consistency with onshore requirements.

To comply with this statutory mandate, the EPA must incorporate by reference applicable rules in effect for onshore sources into part 55. This limits EPA's flexibility in deciding which requirements will be incorporated into 40 CFR part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into 40 CFR part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the CAA. Inclusion in the OCS rule does not imply that a rule meets the requirements of the CAA for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.

In updating 40 CFR part 55, the EPA reviewed the New Jersey Department of Environmental Protection (“NJDEP”)'s air rules currently in effect, to ensure that they are rationally related to the attainment or maintenance of Federal and State AAQS or part C of title I of the Act and that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources. 40 CFR 55.1. The EPA has also evaluated the rules to ensure they are not arbitrary and capricious. 40 CFR 55.12(e). The EPA has excluded New Jersey's administrative or procedural rules,2 and requirements that regulate toxics which are not related to the attainment and maintenance of Federal and State AAQS.

To comply with the statutory mandate of Section 328(a)(1) of the CAA, the EPA must incorporate by reference all relevant state rules into part 55 so they can be applied to OCS sources located offshore. 40 CFR 55.12 specifies certain times at which part 55's incorporation by reference of a state's rules must be updated. One such time a consistency update must occur is when any OCS source applicant submits a Notice of Intent (NOI) under 40 CFR 55.4 for a new or a modified OCS source. 40 CFR 55.4(a) requires that any OCS source applicant must submit to EPA a NOI before performing any physical change or change in method of operation that results in an increase in emissions. EPA must conduct any necessary consistency update when it receives an NOI, and prior to receiving any application for a preconstruction permit from the OCS source applicant. 40 CFR 55.6(b)(2) and 55.12(f).

On December 21, 2017, the EPA received a NOI for a new OCS source off the coast of New Jersey. In today's action, the EPA is proposing to update the “New Jersey” section of Appendix A to 40 CFR part 55 to incorporate by reference the following relevant New Jersey air pollution control rules that are currently in effect:

Chapter 27 Subchapter 2—Control and Prohibition of Open Burning (Effective 6/20/1994),

N.J.A.C. 7:27-2.1 through 2.4,7:27-2.6 through 2.8, and 7:27-2.12 through 2.13;

Chapter 27 Subchapter 3—Control and Prohibition of Smoke from Combustion of Fuel (Effective 2/4/2002);

Chapter 27 Subchapter 4—Control and Prohibition of Particles from Combustion of Fuel (Effective 4/20/2009);

Chapter 27 Subchapter 5—Prohibition of Air Pollution (Effective 10/12/1977);

Chapter 27 Subchapter 6—Control and Prohibition of Particles from Manufacturing Processes (Effective 6/12/1998);

Chapter 27 Subchapter 7—Sulfur (Effective 11/6/2017), N.J.A.C. 7:27-7.1 and 7.2;

Chapter 27 Subchapter 8—Permits and Certificates for Minor Facilities (and Major Facilities without an Operating Permit) (Effective 1/16/2018), N.J.A.C. 7:27-8.1 through 8.9, 7:27-8.11 through 8.21, 7:27-8.23 through 8.25, 7:27-8.27, and Appendix 1;

Chapter 27 Subchapter 9—Sulfur in Fuels (Effective 9/20/2010);

Chapter 27 Subchapter 10—Sulfur in Solid Fuels (Effective 9/6/2011);

Chapter 27 Subchapter 11—Incinerators (Effective 5/4/1998);

Chapter 27 Subchapter 12—Prevention and Control of Air Pollution Emergencies (Effective 5/20/1974);

Chapter 27 Subchapter 16—Control and Prohibition of Air Pollution by Volatile Organic Compounds (Effective 1/16/2018), N.J.A.C. 7:27-16.1 through 16.10, 7:27-16.12 through 16.13, 7:27-16.16 through 16.23, 7:27-16.27, and Appendix I and II;

Chapter 27 Subchapter 18—Control and Prohibition of Air Pollution from New or Altered Sources Affecting Ambient Air Quality (Emission Offset Rules) (Effective 11/6/2017);

Chapter 27 Subchapter 19—Control and Prohibition of Air Pollution from Oxides of Nitrogen (Effective 1/16/2018), N.J.A.C. 7:27-19.1 through 19.8, 7:27-19.11, 7:27-19.13 through 19.21, 7:27-19.23, and 7:27-19.25 through 19.26;

Chapter 27 Subchapter 20—Used Oil Combustion (Effective 9/6/2011);

Chapter 27 Subchapter 21—Emission Statements (Effective 1/16/2018);

Chapter 27 Subchapter 22—Operating Permits (Effective 1/16/2018);

Chapter 27B Subchapter 1—Sampling and Analytical Procedures for Determining Emissions of Particles from Manufacturing Processes and from Combustion of Fuels (Effective 6/21/1976);

Chapter 27B Subchapter 2—Procedures for Visual Determination of the Opacity (Percent) and Shade or Appearance (Ringelmann Number) of Emissions from Sources (Effective 6/21/1976); and

Chapter 27B Subchapter 3—Air Test Method 3: Sampling and Analytical Procedures for the Determination of Volatile Organic Compounds from Source Operations (Effective 12/1/2008).

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the NJDEP air rules that are applicable to OCS sources and which are currently in effect. These regulations are described in Section III (“What Action is EPA Proposing to Take?”) of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 2 Office. Please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information.

Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore air control requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into part 55 as they exist onshore. 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, the EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the Clean Air Act. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy discretion by the EPA. For that reason, this proposed action:

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

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

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

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandate Reform Act of 1995 (Pub. L. 04-4);

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

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

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

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

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

In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 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, nor does it impose substantial direct costs on tribal governments, nor preempt tribal law.

For the reasons set out in the preamble, title 40 of the Code of Federal Regulations, part 55, is proposed to be amended as follows:

This is a summary of the Auction 99 Comment Public Notice in AU Docket No. 17-143, DA 18-91, released on January 31, 2018. The complete text of this document, including its attachment, is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The Auction 99 Comment Public Notice and related documents also are available on the internet at the Commission's website: http://wireless.fcc.gov/auctions/99/, or by using the search function for AU Docket No. 17-143 on the Commission's ECFS web page at http://www.fcc.gov/cgb/ecfs/.

All filings in response to the Auction 99 Comment Public Notice must refer to AU Docket No.17-143. The Bureaus strongly encourage interested parties to file comments electronically, and request that an additional copy of all comments and reply comments be submitted electronically to the following address: [email protected].

Electronic Filers: Comments may be filed electronically using the internet by accessing ECFS: http://apps.fcc.gov/ecfs. Follow the instructions for submitting comments.

Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission (FCC). All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to the FCC Headquarters at 445 12th Street SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. Eastern Time (ET). All hand deliveries must be held together with rubber bands or fasteners. Any envelope or box must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

1. On June 1, 2017, the Bureaus announced an auction filing window for AM broadcasters seeking new cross-service FM translator station construction permits. By this Public Notice, the Bureaus announce an auction of certain cross-service FM translator construction permits and seek comment on the procedures to be used for this auction, designated as Auction 99. Bidding in this auction is scheduled to commence on May 15, 2018. Auction 99 will be a closed auction: Only those entities listed in Attachment A of the Auction 99 Comment Public Notice will be eligible to participate further in Auction 99.

2. Auction 99 will resolve mutually exclusive (MX) applications for construction permits for commercial cross-service FM translator stations. Competitive bidding will be used to select winning bidders for up to 12 new cross-service FM translator permits. A list of the locations and channels of these proposed stations is included in Attachment A of the Auction 99 Comment Public Notice. Attachment A also listed a proposed minimum opening bid and a proposed upfront payment amount for each construction permit.

3. An applicant listed in Attachment A may become qualified to bid only if it meets the additional filing, qualification, payment and other applicable rules, policies and procedures. Each qualified bidder may become eligible to bid on only those construction permits specified for that applicant in Attachment A to the Auction 99 Comment Public Notice. Each of the engineering proposals within each MX group are directly mutually exclusive with one another; therefore, no more than one construction permit will be awarded for each MX group identified in Attachment A. Under the Commission's established precedent, because mutual exclusivity exists for auction purposes, once mutually exclusive applications are accepted, even if only one applicant for a particular construction permit becomes qualified to bid, that applicant must submit a bid in order to be eligible to obtain that construction permit.

4. The Bureaus will process all timely submitted Forms 175 to determine which are complete, and subsequently will issue a public notice identifying those that are complete and those that are incomplete or deficient because of minor defects that may be corrected. That public notice will provide instructions for applicants to make only minor corrections to their Forms 175. The public notice will include a deadline for resubmitting corrected Forms 175.

5. Section 1.65 of the Commission's rules requires an applicant to maintain the accuracy and completeness of information furnished in its pending application and to notify the Commission of any substantial change that may be of decisional significance to that application. Thus, section 1.65 requires an auction applicant to notify the Commission of any substantial change to the information or certifications included in its pending short-form application. See also 47 CFR 1.2105(b)(4), (c).

6. If information needs to be submitted pursuant to sections 1.65 or 1.2105 outside of the upcoming resubmission window in Auction 99, the applicant must submit a letter briefly summarizing the changes by email to [email protected]. Such email must include a subject or caption referring to Auction 99 and the name of the applicant. If any information needs to be submitted during the upcoming resubmission window pursuant to sections 1.65 or 1.2105, that information must be submitted within an applicant's Form 175.

7. The Bureaus seek comment on whether our application of certain aspects of the current rules governing auctions should be modified to implement our prior decision to allow eligible AM licensees having any of the same controlling interests in common to file separate Forms 175, rather than a single Form 175, as is currently required. In recognition of the specific eligibility provisions and filing procedures for this auction window, the Bureaus waived, for Auction 99, section 1.2105(a)(3)'s prohibition on the filing of more than one Form 175 in an auction by entities with any of the same controlling interests. Thus, the Bureaus permitted entities controlled by the same individual or set of individuals to file separate Forms 175 for Auction 99.

8. The prohibition on the filing of more than one Form 175 in an auction by entities with any of the same controlling interests was adopted in 2015 in conjunction with other rule changes. Under section 1.2105(a), as revised in 2015, each auction applicant must certify that it has disclosed any arrangements or understandings of any kind relating to the licenses being auctioned to which it (or any party that controls or is controlled by it) is a party, and must certify that it (or any party that controls or is controlled by it) has not entered and will not enter any arrangement or understanding of any kind relating directly or indirectly to bidding at auction with any other applicant for the auction, among others. In 2015, the Commission also revised the rule prohibiting certain communications, section 1.2105(c), to prohibit a communication of bids or bidding strategies between any applicants in an auction, and thus the prohibition is no longer limited to a communication between applicants that had applied for construction permits to serve the same area. In addition, the revisions to that rule removed a prior exception to section 1.2105(c) under which applicants that had entered into bidding-related agreements could engage in certain communications so long as each entity had disclosed the other as a party to such an agreement on its auction application pursuant to section 1.2105(a)(2)(viii). For purposes of section 1.2105(c), an applicant is defined as including all officers and directors of the entity submitting a Form 175, all controlling interests of that entity, as well as all holders of partnership and other ownership interests and any stock interest amounting to 10 percent or more of the entity, or outstanding stock, or outstanding voting stock of the entity submitting a Form 175. In applying the prohibited communication rule, the Bureaus have found that, where an individual served as an officer and director for two or more applicants subject to the rule, the bids and bidding strategies of one applicant are presumptively conveyed to the other applicant. Consequently, the Bureaus determined that, absent a disclosed bidding agreement between such applicants creating an applicable exception under the prior rule, an apparent violation of section 1.2105(c) would occur.

9. Finally, in a change related to the prohibition on joint bidding agreements and the changes to the prohibited communication rule, revised section 1.2105(a)(2)(iii) now prohibits any individual from serving as an authorized bidder of more than one applicant.

10. In the event that Auction 99 applicants under common control may have filed separate Forms 175 pursuant to the Bureaus' waiver of section 1.2105(a)(3), such applicants could be at risk of violating section 1.2105(c) because the Commission presumes that bidding strategies are communicated between entities that share a common officer or director. Moreover, current rules bar most kinds of joint bidding agreements that may have, under the prior rule, permitted certain communications between commonly controlled entities or other auction applicants under the former rules.

11. Accordingly, the Bureaus seek comment on whether it would be appropriate to waive or modify the application of section 1.2105 provisions so that Auction 99 applicants relying on the waiver of section 1.2105(a)(3) will not thereby violate such other provisions. With respect to a communication between commonly owned applicants, this auction appears analogous to the circumstances of Auction 1001, the reverse auction portion of the broadcast incentive auction. In that case, as here, applicants to participate in the auction were limited to specified current licensees of the Commission. Consequently, it was clear that multiple applicants would be commonly controlled.

12. With respect to implementing the commonly controlled applicant exception in the broadcast incentive auction, the Commission provided that the prohibition did not apply to a communication between different applicants if they share a common controlling interest, director, officer, or governing board member as of the deadline for submitting applications to participate in the reverse auction. The Commission expressly noted that an applicant's communication would not qualify for this exception based on a new director, officer or governing board member added after the application deadline. According to the Commission, if a covered licensee were to appoint a new officer after the broadcast incentive auction application deadline, that new officer would be subject to the rule and not included within the exception.

13. In this auction, when applying the Commission's general competitive bidding rules, do the limitations on eligibility to bid on specific permits in this closed auction similarly provide good cause to waive section 1.2105(c) for communications between commonly controlled applicants consistent with the exception provided for in the broadcast incentive auction? Do other factors demonstrate good cause for such relief, or some other form of relief? Commenters are encouraged to identify circumstances of this auction that should guide us in developing application procedures under the current competitive bidding rules, including specific aspects of the auction application process and processing procedures, the nature of the permits to be awarded, or other relevant considerations.

14. The Bureaus, under delegated authority, seek comment on a variety of auction-specific procedures prior to the start of bidding in Auction 99.

15. Simultaneous Multiple Round Auction Design. The Bureaus propose using the Commission's standard simultaneous multiple-round auction format for Auction 99. This type of auction offers every construction permit for bid at the same time and consists of successive bidding rounds in which eligible bidders may place bids on individual construction permits. Typically, bidding remains open on all construction permits until bidding stops on every construction permit. The Bureaus seek comment on this proposal.

16. Bidding Rounds. Auction 99 will consist of sequential bidding rounds, each followed by the release of round results. The Commission will conduct Auction 99 over the internet using the FCC auction bidding system. Bidders will also have the option of placing bids by telephone through a dedicated auction bidder line.

17. The Bureaus propose to retain the discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. Under this proposal, the Bureaus may change the amount of time for the bidding rounds, the amount of time between rounds, or the number of rounds per day, depending upon bidding activity and other factors. The Bureaus seek comment on this proposal. Commenters on this issue should address the role of the bidding schedule in managing the pace of the auction, specifically discussing the tradeoffs in managing auction pace by bidding schedule changes, by changing the activity requirements or bid amount parameters, or by using other means.

18. Stopping Rule. To complete the auction within a reasonable time, the Bureaus propose to employ a simultaneous stopping rule approach for Auction 99, which means all construction permits remain available for bidding until bidding stops on every construction permit. Specifically, bidding would close on all construction permits after the first round in which no bidder submits any new bids, no bidder applies a proactive waiver, or, if bid withdrawals are permitted in this auction, no bidder withdraws any provisionally winning bid which is a bid that would become a final winning bid if the auction were to close in that given round. Thus, unless the Bureaus announce alternative procedures, bidding would remain open on all construction permits until bidding stops on every construction permit. Consequently, it is not possible to determine in advance how long the bidding in this auction will last.

19. Further, the Bureaus propose to retain the discretion to exercise any of the following options during Auction 99. (1) Use a modified version of the simultaneous stopping rule that would close the auction for all construction permits after the first round in which no bidder applies a waiver, no bidder withdraws a provisionally winning bid (if withdrawals are permitted in this auction), or no bidder places any new bid on a construction permit for which it is not the provisionally winning bidder, which means that, absent any other bidding activity, a bidder placing a new bid on a construction permit for which it is the provisionally winning bidder would not keep the auction open under this modified stopping rule. (2) Use a modified version of the simultaneous stopping rule that would close the auction for all construction permits after the first round in which no bidder applies a waiver, no bidder withdraws a provisionally winning bid (if withdrawals are permitted in this auction), or no bidder places any new bid on a construction permit that already has a provisionally winning bid, which means that, absent any other bidding activity, a bidder placing a new bid on an FCC-held construction permit (a construction permit that does not already have a provisionally winning bid) would not keep the auction open under this modified stopping rule. (3) Use a modified version of the simultaneous stopping rule that combines options (1) and (2). (4) The auction would close after a specified number of additional rounds (special stopping rule) to be announced by the Bureaus. If the Bureaus invoke this special stopping rule, they will accept bids in the specified final round(s), after which the auction will close. (5) The auction would remain open even if no bidder places any new bid, applies a waiver, or withdraws any provisionally winning bid (if withdrawals are permitted in this auction). In this event, the effect will be the same as if a bidder had applied a waiver. The activity rule will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use a waiver.

20. The Bureaus propose to exercise these options only in certain circumstances, for example, where the auction is proceeding unusually slowly or quickly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time or will close prematurely. Before exercising these options, the Bureaus are likely to attempt to change the pace of the auction. For example, the Bureaus may adjust the pace of bidding by changing the number of bidding rounds per day and/or the minimum acceptable bids. The Bureaus proposed to retain the discretion to exercise any of these options with or without prior announcement during the auction. The Bureaus seek comment on these proposals.

21. Auction Delay, Suspension or Cancellation. Pursuant to 47 CFR 1.2104(i), the Bureaus propose that they may delay, suspend, or cancel bidding in Auction 99 in the event of a natural disaster, technical obstacle, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. The Bureaus would notify participants of any such delay, suspension or cancellation by public notice and/or through the FCC auction bidding system's announcement function. If bidding is delayed or suspended, the Bureaus may, in their sole discretion, elect to resume the auction starting from the beginning of the current round or from some previous round, or cancel the auction in its entirety. Network interruption may cause the Bureaus to delay or suspend the auction. The Bureaus emphasized that they will exercise this authority solely at their discretion, and not as a substitute for situations in which bidders may wish to apply activity rule waivers. The Bureaus seek comment on this proposal.

22. Upfront Payments and Bidding Eligibility. The Bureaus have delegated authority and discretion to determine an appropriate upfront payment for each construction permit being auctioned, taking into account such factors as the efficiency of the auction process and the potential value of similar construction permits. The upfront payment is a refundable deposit made by an applicant to establish eligibility to bid on construction permits. Upfront payments that are related to the specific construction permits being auctioned protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of bidding. With these considerations in mind, the Bureaus proposed the upfront payments set forth in Attachment A of the Auction 99 Comment Public Notice. The Bureaus seek comment on the upfront payments specified in this Attachment A.

23. The Bureaus further propose that the amount of the upfront payment submitted by a bidder will determine its initial bidding eligibility in bidding units. The Bureaus propose to assign each construction permit a specific number of bidding units, equal to one bidding unit per dollar of the upfront payment listed in Attachment A of the Auction 99 Comment Public Notice. The number of bidding units for a given construction permit is fixed and does not change during the auction as prices change. If an applicant is found to be qualified to bid on more than one permit in Auction 99, such a bidder may place bids on multiple construction permits, provided that the total number of bidding units associated with those construction permits does not exceed the bidder's current eligibility. A bidder cannot increase its eligibility during the auction; it can only maintain its eligibility or decrease its eligibility. Thus, in calculating its upfront payment amount and hence its initial bidding eligibility, an applicant must determine the maximum number of bidding units on which it may wish to bid (or hold provisionally winning bids) in any single round, and submit an upfront payment amount covering that total number of bidding units. The Bureaus request comment on these proposals.

24. Activity Rule. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. The Bureaus propose a single stage auction with the following activity requirement: In each round of the auction, a bidder desiring to maintain its current bidding eligibility is required to be active on 100 percent of its bidding eligibility. A bidder's activity in a round will be the sum of the bidding units associated with any construction permits upon which it places bids during the current round and the bidding units associated with any construction permits for which it holds provisionally winning bids. Failure to maintain the requisite activity level would result in the use of an activity rule waiver, if any, or a reduction in the bidder's eligibility, possibly curtailing or eliminating the bidder's ability to place additional bids in the auction. The Bureaus seek comment on this proposal.

25. Activity Rule Waivers and Reducing Eligibility. When a bidder's activity in the current round is below the required minimum level, it may preserve its current level of eligibility through an activity rule waiver, if available. An activity rule waiver applies to an entire round of bidding, not to a particular construction permit. Activity rule waivers can be either proactive or automatic. Activity rule waivers are principally a mechanism for a bidder to avoid the loss of bidding eligibility in the event that exigent circumstances prevent it from bidding in a particular round.

26. The FCC auction bidding system will assume that a bidder that does not meet the activity requirement would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver at the end of any bidding round in which a bidder's activity is below the minimum required unless (1) the bidder has no activity rule waivers remaining or (2) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the activity requirement. If a bidder has no waivers remaining and does not satisfy the required activity level, the bidder's current eligibility will be permanently reduced, possibly curtailing or eliminating the ability to place additional bids in the auction.

27. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding round by using the reduce eligibility function in the FCC auction bidding system. In this case, the bidder's eligibility would be permanently reduced to bring it into compliance with the specified activity requirement. Reducing eligibility is an irreversible action; once eligibility has been reduced, a bidder cannot regain its lost bidding eligibility.

28. Under the proposed simultaneous stopping rule, a bidder may apply an activity rule waiver proactively as a means to keep the auction open without placing a bid. If a bidder proactively were to apply an activity rule waiver (using the proactive waiver function in the FCC auction bidding system) during a bidding round in which no bids are placed or withdrawn (if bid withdrawals are permitted in this auction), the auction would remain open and the bidder's eligibility would be preserved. An automatic waiver applied by the FCC auction bidding system in a round in which there are no new bid, no bid withdrawal (if bid withdrawals are permitted in this auction), or no proactive waiver will not keep the auction open. The Bureaus propose that each bidder in Auction 99 be provided with three activity rule waivers that may be used at the bidder's discretion during the course of the auction. The Bureaus seek comment on this proposal.

29. Reserve Price or Minimum Opening Bids. Normally, a reserve price is an absolute minimum price below which a construction permit or license will not be sold in a given auction. The Bureaus did not propose to establish separate reserve prices for the Auction 99 construction permits.

30. A minimum opening bid is the minimum bid price set at the beginning of the auction below which no bids are accepted. Because it is an effective tool for accelerating the competitive bidding process, the Bureaus propose minimum opening bid amounts for Auction 99 determined by taking into account the type of service and class of facility offered, market size, population covered by the proposed broadcast facility, and recent broadcast transaction data. Attachment A of the Auction 99 Comment Public Notice lists a proposed minimum opening bid amount for each construction permit available in Auction 99. The Bureaus seek comment on the minimum opening bid amounts specified in Attachment A of the Auction 99 Comment Public Notice.

31. If commenters believe that these minimum opening bid amounts will result in unsold construction permits, are not reasonable amounts, or should instead operate as reserve prices, they should explain why this is so and comment on the desirability of an alternative approach. The Bureaus ask commenters to support their claims with valuation analyses and suggested amounts or formulas for reserve prices or minimum opening bids. In establishing the minimum opening bid amounts, the Bureaus particularly seek comment on factors that could reasonably have an impact on bidders' valuation of the broadcast spectrum, including the type of service offered, market size, population covered by the proposed broadcast facility, and any other relevant factors.

32. Bid Amounts. The Bureaus propose that, if the bidder has sufficient eligibility to place a bid on a particular construction permit in a round, an eligible bidder will be able to place a bid on that construction permit in any of up to nine different amounts. Under this proposal, the FCC auction bidding system interface will list the acceptable bid amounts for each construction permit.

33. The first of the acceptable bid amounts is called the minimum acceptable bid amount. The minimum acceptable bid amount for a construction permit will be equal to its minimum opening bid amount until there is a provisionally winning bid for the construction permit. After there is a provisionally winning bid for a construction permit, the minimum acceptable bid amount will be a certain percentage higher. The percentage used for this calculation, the minimum acceptable bid increment percentage, is multiplied by the provisionally winning bid amount, and the resulting amount is added to the provisionally winning bid amount. If, for example, the minimum acceptable bid increment percentage is 10 percent, then the provisionally winning bid amount is multiplied by 10 percent. The result of that calculation is added to the provisionally winning bid amount, and that sum is rounded using the Commission's standard rounding procedure for auctions. If bid withdrawals are permitted in this auction, in the case of a construction permit for which the provisionally winning bid has been withdrawn, the minimum acceptable bid amount will equal the second highest bid received for the construction permit.

34. The FCC will calculate the eight additional bid amounts using the minimum acceptable bid amount and an additional bid increment percentage. The minimum acceptable bid amount is multiplied by the additional bid increment percentage, and that result, rounded, is the additional increment amount. The first additional acceptable bid amount equals the minimum acceptable bid amount plus the additional increment amount. The second additional acceptable bid amount equals the minimum acceptable bid amount plus two times the additional increment amount; the third additional acceptable bid amount is the minimum acceptable bid amount plus three times the additional increment amount; etc. If, for example, the additional bid increment percentage is 5 percent, then the calculation of the additional increment amount is (minimum acceptable bid amount) * (0.05), rounded. The first additional acceptable bid amount equals (minimum acceptable bid amount) + (additional increment amount); the second additional acceptable bid amount equals (minimum acceptable bid amount) + (2 * (additional increment amount)); the third additional acceptable bid amount equals (minimum acceptable bid amount) + (3 * (additional increment amount)); etc. The Bureaus will round the results using the Commission's standard rounding procedures for auctions.

35. For Auction 99, the Bureaus propose to use a minimum acceptable bid increment percentage of 10 percent. This means that the minimum acceptable bid amount for a construction permit will be approximately 10 percent greater than the provisionally winning bid amount for the construction permit. To calculate the additional acceptable bid amounts, the Bureaus propose to use an additional bid increment percentage of 5 percent. The Bureaus seek comment on these proposals.

36. The Bureaus propose to retain the discretion to change the minimum acceptable bid amounts, the minimum acceptable bid increment percentage, the additional bid increment percentage, and the number of acceptable bid amounts if the Bureaus determine that circumstances so dictate. Further, the Bureaus retain the discretion to do so on a construction-permit-by-construction-permit basis. The Bureaus also propose to retain the discretion to limit (a) the amount by which a minimum acceptable bid for a construction permit may increase compared with the corresponding provisionally winning bid, and (b) the amount by which an additional bid amount may increase compared with the immediately preceding acceptable bid amount. For example, the Bureaus could set a $1,000 limit on increases in minimum acceptable bid amounts over provisionally winning bids. Thus, if calculating a minimum acceptable bid using the minimum acceptable bid increment percentage results in a minimum acceptable bid amount that is $1,200 higher than the provisionally winning bid on a construction permit, the minimum acceptable bid amount would instead be capped at $1,000 above the provisionally winning bid. The Bureaus seek comment on the circumstances under which the Bureaus should employ such a limit, factors the Bureaus should consider when determining the dollar amount of the limit, and the tradeoffs in setting such a limit or changing other parameters, such as changing the minimum acceptable bid percentage, the bid increment percentage, or the number of acceptable bid amounts. If the Bureaus exercise this discretion, they will alert bidders by announcement in the FCC auction bidding system during the auction. The Bureaus seek comment on these proposals.

37. Provisionally Winning Bids. Provisionally winning bids are bids that would become winning bids if the auction were to close in that given round. At the end of each bidding round, the FCC auction bidding system will determine a provisionally winning bid for each construction permit based on the highest bid amount received for that permit. A provisionally winning bid will remain the provisionally winning bid until there is a higher bid on the same construction permit at the close of a subsequent round. Provisionally winning bids become the winning bid at the end of the auction.

38. The auction bidding system assigns a random number to each bid when the bid is entered. If identical high bid amounts are submitted on a construction permit in any given round (i.e., tied bids), the FCC auction bidding system will use a pseudo-random number generator to select a single provisionally winning bid from among the tied bids. The tied bid with the highest random number wins the tiebreaker and becomes the provisionally winning bid. The remaining bidders, as well as the provisionally winning bidder, can submit higher bids in subsequent rounds. However, if the auction were to close with no other bids being placed, the winning bidder would be the one that placed the provisionally winning bid. If the construction permit receives any bids in a subsequent round, the provisionally winning bid again will be determined by the highest bid amount received for the construction permit.

39. A provisionally winning bid will be retained until there is a higher bid on the construction permit at the close of a subsequent round, unless the provisionally winning bid is withdrawn (if bid withdrawals are permitted in this auction). As a reminder, provisionally winning bids count toward a bidder's activity level for purposes of the activity rule.

40. Bid Removal and Bid Withdrawal. The FCC auction bidding system allows each bidder to remove any of the bids it placed in a round before the close of that round. By removing a bid placed within a round, a bidder effectively unsubmits the bid. In contrast to the bid withdrawal provisions, a bidder removing a bid placed in the same round is not subject to a withdrawal payment. Once a round closes, a bidder is no longer permitted to remove a bid.

41. The Bureaus seek comment on whether bid withdrawals should be permitted in Auction 99. When permitted in an auction, bid withdrawals provide a bidder with the option of withdrawing bids placed in prior rounds that have become provisionally winning bids. A bidder would be able to withdraw its provisionally winning bids using the withdraw function in the FCC auction bidding system. A bidder that withdraws its provisionally winning bid(s), if permitted in this auction, is subject to the bid withdrawal payment provisions of 47 CFR 1.2104(g) and 1.2109.

42. Based on the nature of the permits available in Auction 99 and on the experience of the Bureaus with past auctions of broadcast construction permits, the Bureaus propose to prohibit bidders from withdrawing any bid after the close of the round in which the bid was placed. The Bureaus made this proposal in light of the site- and applicant-specific nature and wide geographic dispersion of the permits available in this closed auction, which suggests that potential applicants for this auction will have limited opportunity to aggregate construction permits through the auction process because of the closed MX groups previously established. Thus, the Bureaus believe that it is unlikely that bidders will have a need to withdraw bids in this auction. Also, allowing bid withdrawals may encourage insincere bidding or increase opportunities for anti-competitive bidding in certain circumstances. The Bureaus also remain mindful that bid withdrawals, particularly those made late in this auction, could result in delays in licensing new FM translator stations and attendant delays in the offering of new broadcast service to the public. The Bureaus seek comment on their proposal to prohibit bid withdrawals in Auction 99.

43. Interim Withdrawal Payment Percentage. A bidder that withdraws a bid during an auction is subject to a withdrawal payment equal to the difference between the amount of the withdrawn bid and the amount of the winning bid in the same or a subsequent auction. However, if a construction permit for which a bid has been withdrawn does not receive a subsequent higher bid or winning bid in the same auction, the FCC cannot calculate the final withdrawal payment until that construction permit receives a higher bid or winning bid in a subsequent auction. In such cases, when that final withdrawal payment cannot yet be calculated, the FCC imposes on the bidder responsible for the withdrawn bid an interim bid withdrawal payment, which will be applied toward any final bid withdrawal payment that is ultimately assessed.

44. Pursuant to 47 CFR 1.2104(g)(1), the amount of the interim bid withdrawal payment may range from 3 to 20 percent of the withdrawn bid amount. If bid withdrawals are allowed in Auction 99, the Bureaus propose that the interim bid withdrawal payment be 20 percent of the withdrawn bid. The Bureaus request comment on using 20 percent for calculating an interim bid withdrawal payment amount in Auction 99. Commenters advocating the use of bid withdrawals in Auction 99 should also address the percentage of the interim bid withdrawal payment.

45. Additional Default Payment Percentage. Any winning bidder that defaults or is disqualified after the close of an auction (i.e., fails to remit the required down payment by the specified deadline, fails to submit a timely long-form application, fails to make full and timely final payment, or is otherwise disqualified) is liable for a default payment under 47 CFR 1.2104(g)(2). This default payment consists of a deficiency payment equal to the difference between the amount of the Auction 99 bidder's winning bid and the amount of the winning bid the next time a construction permit covering the same spectrum is won in an auction, plus an additional payment equal to a percentage of the defaulter's bid or of the subsequent winning bid, whichever is less. Based on the nature of the service and the construction permits being offered, the Bureaus propose for Auction 99 an additional default payment of 20 percent of the relevant bid. The Bureaus seek comment on this proposal.

46. As required by the Regulatory Flexibility Act of 1980 as amended (RFA), 5 U.S.C. 603, the Bureaus have prepared this Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in the Public Notice to supplement the Commission's Initial and Final Regulatory Flexibility Analyses completed in the Broadcast First Report and Order and multiple other Commission rulemaking orders pursuant to which Auction 99 will be conducted. Written public comments are requested on this Supplemental IRFA. Comments must be identified as responses to the Supplemental IRFA and must be filed by the same filing deadline for comments specified on the first page of the Auction 99 Comment Public Notice. The Commission will send a copy of the Public Notice, including this Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

47. Need for, and Objectives of, the Proposed Rules. The Auction 99 Comment Public Notice seeks comment on proposed procedures to govern Auction 99, an auction of up to 12 cross-service FM translator construction permits. To promote the efficient and fair administration of the competitive bidding process for all Auction 99 participants, the Bureaus seek comment on the following: (1) Application of the current rules prohibiting certain communications between auction applicants and the related prohibition on joint bidding arrangements to implement the Bureaus' prior decision to allow eligible AM licensees having any of the same controlling interest in common to file separate Forms 175, rather than a single Form 175; (2) Use of a simultaneous multiple-round auction format, consisting of sequential bidding rounds with a simultaneous stopping rule (with discretion by the Bureaus to exercise alternative stopping rules under certain circumstances); (3) A specific minimum opening bid amount for each construction permit available in Auction 99; (4) A specific upfront payment amount for each construction permit; (5) Establishment of a bidder's initial bidding eligibility in bidding units based on that bidder's upfront payment through assignment of a specific number of bidding units for each construction permit; (6) Use of an activity rule that would require bidders to bid actively during the auction rather than waiting until late in the auction before participating; (7) A single stage auction in which a bidder is required to be active on 100 percent of its bidding eligibility in each round of the auction; (8) Provision of three activity rule waivers for each bidder to allow it to preserve bidding eligibility during the course of the auction; (9) Use of minimum acceptable bid amounts and additional acceptable increments, along with a proposed methodology for calculating such amounts, with the Bureaus retaining discretion to change their methodology if circumstances dictate; (10) A procedure for breaking ties if identical high bid amounts are submitted on a permit in a given round; (11) Bid removal procedures; (12) Whether to permit bid withdrawals; (13) Establishment of an interim bid withdrawal percentage of 20 percent of the withdrawn bid in the event the Bureaus allow bid withdrawals in Auction 99; and (14) Establishment of an additional default payment of 20 percent under 47 CFR 1.2104(g)(2) in the event that a winning bidder defaults or is disqualified after the auction.

48. Legal Basis. The Commission's statutory obligations to small businesses under the Communications Act of 1934, as amended, are found in 47 U.S.C. 309(j)(3)(B) and 309(j)(4)(D). The statutory basis for the Commission's competitive bidding rules is found in various provisions of the Communications Act of 1934, as amended, including 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), 303(r), 304, 307, and 309(i). The Commission has established a framework of competitive bidding rules pursuant to which it has conducted auctions since the inception of the auction program in 1994 and would conduct Auction 99. The Commission has directed the Bureaus, under delegated authority, to seek comment on a variety of auction-specific procedures prior to the start of bidding in each auction.

49. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term small entity as having the same meaning as the terms small business, small organization, and small government jurisdiction. In addition, the term small business has the same meaning as the term small business concern under the Small Business Act, 15 U.S.C. 632. A small business concern is one which: (1) Is independently owned and operated, (2) is not dominant in its field of operation, and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

50. Radio Stations. This Economic Census category comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has established a small business size standard for this category as firms having $38.5 million or less in annual receipts. Economic Census data for 2012 shows that 2,849 radio station firms operated during that year. Of that number, 2,806 firms 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.

51. According to Commission staff review of the BIA/Kelsey, LLC's Media Access Pro Radio Database as of January 30, 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 Bureaus note, however, that the SBA size standard data does not enable the Bureaus to make a meaningful estimate of the number of small entities who may participate in Auction 99. There are a maximum of 26 entities that may become qualified bidders in Auction 99, in which applicant eligibility is closed. The specific procedures and minimum opening bid amounts on which comment is sought in the Auction 99 Comment Public Notice will affect directly all applicants participating in Auction 99.

52. In addition, the Bureaus note that they are unable to accurately develop an estimate of how many of these 26 entities are small businesses based on the number of small entities that applied to participate in prior broadcast auctions, because that information is not collected from applicants for broadcast auctions in which bidding credits are not based on an applicant's size (as is the case in auctions of licenses for wireless services). Potential eligible bidders in Auction 99 may include existing holders of broadcast station construction permits or licenses. In 2013, the Commission estimated that 97 percent of radio broadcasters met the SBA's prior definition of small business concern, based on annual revenues of $7 million. The SBA has since increased that revenue threshold to $38.5 million, which suggests that an even greater percentage of radio broadcasters would fall within the SBA's definition. Based on Commission data 4,635 (99.94%) of 4,638 a.m. radio stations have revenue of $38.5 million or less. Accordingly, based on this data, the Bureaus conclude that the majority of Auction 99 eligible bidders will likely meet the SBA's definition of a small business concern.

53. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. The Commission designed the auction application process itself to minimize reporting and compliance requirements for applicants, including small business applicants. In the first part of the Commission's two-phased auction application process, parties desiring to participate in an auction file streamlined, short-form applications in which they certify under penalty of perjury as to their qualifications. Eligibility to participate in bidding is based on an applicant's short-form application and certifications, as well as its upfront payment. In the second phase of the process, winning bidders file a more comprehensive long-form application. Thus, a small business which fails to become a winning bidder does not need to file a long-form application and provide the additional showings and more detailed demonstrations required of a winning bidder.

54. Steps Taken to Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed 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.

55. The Commission has taken steps to minimize any economic impact of its auction procedures on small businesses through among other things, the many resources it provides potential auction participants. Small entities and other auction participants may seek clarification of or guidance on complying with competitive bidding rules and procedures, reporting requirements, and the FCC's auction system. An FCC Auctions Hotline provides access to Commission staff for information about the auction process and procedures. The FCC Auctions Technical Support Hotline is another resource which provides technical assistance to applicants, including small business entities, on issues such as access to or navigation within the electronic FCC Form 175 and use of the FCC's auction system. Small entities may also utilize the web-based, interactive online tutorial produced by Commission staff for each auction to familiarize themselves with auction procedures, filing requirements, bidding procedures and other matters related to an auction. The Bureaus also make various databases and other sources of information, including the Media Bureau's Consolidated Database System, the Auctions program websites, and copies of Commission decisions, available to the public without charge, providing a low-cost mechanism for small businesses to conduct research prior to and throughout the auction. Prior to and at the close of Auction 99, the Bureaus will post public notices on the Auctions website, which articulate the procedures and deadlines. The Bureaus make this information easily accessible and without charge to benefit all Auction 99 applicants, including small businesses, thereby lowering their administrative costs to comply with the Commission's competitive bidding rules.

56. Prior to the start of bidding in each auction, eligible bidders are given an opportunity to become familiar with auction procedures and the bidding system by participating in a mock auction. Further, the Commission intends to conduct Auction 99 electronically over the internet using its web-based auction system that eliminates the need for bidders to be physically present in a specific location. Qualified bidders also have the option to place bids by telephone. These mechanisms are made available to facilitate participation in Auction 99 by all eligible bidders, and may result in significant cost savings for small business entities who utilize these alternatives. Moreover, the adoption of bidding procedures in advance of the auction, consistent with statutory directive, is designed to ensure that the auction will be administered predictably and fairly for all participants, including small businesses.

57. These proposed procedures for the conduct of Auction 99 constitute the more specific implementation of the competitive bidding rules contemplated by Parts 1 and 73 of the Commission's rules and the underlying rulemaking orders, including the Broadcast First Report and Order and relevant competitive bidding orders, and are fully consistent therewith.

58. Federal Rules that May Duplicate, Overlap or Conflict with the Proposed Rules. None.

59. This proceeding has been designated as a permit-but-disclose proceeding in accordance with the Commission's ex parte rules. While additional information is provided in the Auction 99 Comment Public Notice on these reporting requirements, participants in Auction 99 should familiarize themselves with the Commission's ex parte rules.

Registration is encouraged for all attendees. Attendees should register at https://www.surveymonkey.com/r/NHTSABarriers by March 2, 2018. Please provide name, affiliation, and email, indicate if you wish to offer remarks (speaking would be limited to 10 minutes per person), and please indicate whether you are requesting specific accommodations. Space is limited, so advanced registration is encouraged.

Although attendees will be given the opportunity to offer comments, the Agency is limiting comments to oral only. We may not be able to accommodate all attendees who wish to make oral comments and will arrange the speakers on a first-come, first-served basis. However, if time does not allow for all comments during the meeting, comments may be submitted to the docket and will carry the same weight during review and analysis.

Should it be necessary to cancel the meeting due to inclement weather or other emergency, NHTSA will take all available measures to notify registered participants.

NHTSA will conduct the public meeting informally, and technical rules of evidence will not apply. We will arrange for a written transcript of the meeting and keep the official record open for 30 days after the meeting to allow submission of supplemental information. You may make arrangements for copies of the transcripts directly with the court reporter, and the transcript will also be posted in the docket when it becomes available. The webcast will be recorded and posted to the NHTSA website as well.

Written Comments: Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public meeting. Please submit all written comments no later than April 5, 2018, by any of the following methods:

• Federal Rulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

• Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.

• Hand Delivery or Courier: 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. EST, Monday through Friday, except Federal Holidays.

• Fax: 202-366-1767.

Instructions: All submissions must include the agency name and docket number. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act discussion below.

Docket: For access to the docket go to http://www.regulations.gov at any time or to 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. Telephone: 202-366-9826.

Privacy Act: Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit http://www.regulations.gov/privacyNotice.

Confidential Business Information: If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information to the Chief Counsel, NHTSA, at the address given under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies from which you have deleted the claimed confidential business information, to Docket Management at the address given above. When you send a comment containing information claimed to be confidential business information, you should submit a cover letter setting forth the information specified in our confidential business information regulation (49 CFR part 512).

Background: NHTSA wants to avoid impeding progress with unnecessary or unintended regulatory barriers to motor vehicles that have Automated Driving Systems (ADSs) and unconventional designs, especially those with unconventional interior designs. To enable vehicles with ADSs and with unconventional interiors while maintaining those existing safety requirements that will be needed and appropriate for those vehicles, NHTSA is developing plans and proposals for removing or modifying existing regulatory barriers to testing and compliance certification in those areas for which existing data and knowledge are sufficient to support decision-making. In other areas, plans and proposals cannot be developed until the completion of near-term research to determine how to revise the test procedures for those vehicles.

Part of NHTSA's responsibility in carrying out its safety mission is not only to develop and set new safety standards for new motor vehicles and motor vehicle equipment, but also to modify existing standards as necessary to respond to changing circumstances such as the introduction of new technologies. Examples of previous technological transitions that triggered the need to adapt and/or replace requirements in the FMVSS include the replacing of analog dashboards by digital ones, the replacing of mechanical control systems by electronic ones, and the first production of electric vehicles in appreciable numbers. The existing FMVSS can be found in the Code of Federal Regulations at 49 CFR part 571.

Almost all of NHTSA's FMVSS were developed and established well before ADS vehicles became a practicable possibility. As a result, the minimum performance requirements and test procedures in many of the FMVSS are based on assumptions about drivers occupying and controlling the vehicle. If a vehicle is designed so that only an ADS can control it rather than the human driver, and vehicle designers modify the passenger compartment, then many of the original assumptions will likely be invalid for that vehicle, and some may be problematic from a testing perspective.

Meeting and Draft Agenda: This public meeting is being held during the open comment period. The meeting is intended to present information regarding the RFC, questions of interest, activities within NHTSA with respect to barrier removal and activities external to NHTSA regarding barrier removal. This information will in turn provide more thorough background for those submitting comments to the RFC. Following presentations by NHTSA and various stakeholders, the public will have an opportunity to provide remarks. Individuals who register to speak at the Public Meeting will have 10 minutes to present oral remarks to NHTSA staff. Clarification questions may be asked of the presenters. Those registered to provide remarks will have the first opportunity to speak. The meeting agenda follows:

Specific Guiding Questions: To help guide NHTSA's research to address testing and self-certification issues, we seek comments on the topics below (the same questions as presented in the Request for Comments). The Agency urges that, where possible, comments be supported by data and analysis to increase their usefulness. Please clearly indicate the source of such data.

1. What are the different categories of barriers that the FMVSS potentially create to the testing, certification and compliance verification of a new ADS vehicle lacking manual driving controls? Examples of barrier categories include the following:

a. Test procedures that cannot be conducted for vehicles with ADSs and with innovative interior designs; and

b. performance requirements that may serve a reduced safety purpose or even no safety purpose at all for vehicles with ADSs and thus potentially impose more cost and more restrictions on design than are warranted.

The first of the above categories is the primary focus of this document. However, the Agency seeks comments on both categories of barriers. If you believe that there are still other barrier categories, please identify them.

2. NHTSA requests comments on the statement made in NHTSA's February 2016 letter of interpretation to Google: That if a FMVSS lacks a test procedure that is suitable for the Agency's use in verifying a manufacturer's certification of compliance with a provision in that FMVSS, the manufacturer cannot validly certify the compliance of its vehicles with that provision. Do commenters agree that each of the standards identified in the letter as needing to be amended before manufacturers can certify compliance with it must be amended in order to permit certification? Why or why not? If there are other solutions, please describe them.

3. Do you agree (or disagree) that the FMVSS provisions identified in the Volpe report or Google letter as posing barriers to testing and certification are, in fact, barriers? Please explain why.

4. Do commenters think there are FMVSS provisions that pose barriers to testing and certification of innovative new vehicle designs, but were not covered in the Volpe report or Google letter? If so, what are they, how do they pose barriers, and how do you believe NHTSA should consider addressing them?

5. Are there ways to solve the problems that may be posed by any of these FMVSS provisions without conducting additional research? If so, what are they and why do you believe that no further research is necessary? For example, can some apparent problems be solved through interpretation? If so, which ones?

6. Similarly, are there ways to solve the problems that may be posed by any of these FMVSS provisions without rulemaking? For example, can some apparent problems be solved through interpretation without either additional research or through rulemaking? If so, which ones?

7. In contrast, if a commenter believes that legislation might be necessary to enable NHTSA to remove a barrier identified by the commenter, please explain why, and please identify the specific existing law that the commenter thinks should be changed and describe how it should be changed. If there are associated regulations that the commenter believes should be changed, please identify the specific CFR citation and explain why they need to be changed.

8. Many FMVSS contain test procedures that are based on the assumed presence of a human driver and will therefore likely need to be amended to accommodate vehicles that cannot be driven by humans. Other FMVSS test procedures may seem, based on a plain reading of their language, to accommodate vehicles that cannot be driven by humans, but it may nevertheless be unclear how NHTSA (or a manufacturer attempting to self-certify to the test) would instruct the vehicle to perform the test as written.

a. Do commenters believe that these procedures should apply to a vehicle that cannot be driven by a human? If so, why? If there are data to support this position, please provide it.

b. If not, can NHTSA test in some other manner? Please identify the alternative manner and explain why it would be appropriate.

9. What research would be necessary to determine how to instruct a vehicle with an ADS, but without manual means of control, to follow a driving test procedure? Is it possible to develop a single approach to inputting these “instructions” in a manner applicable to all vehicle designs and all FMVSS, or will the approach need to vary? If so, why and how? If commenters believe there is a risk of gaming, what would that risk be and how could it be reduced or prevented?

10. In lieu of the approaches suggested in questions 8 and 9, is there an alternative means of demonstrating equivalent level of safety that is reliable, objective and practicable?

11. For FMVSS that include test procedures that assume a human driver is seated in a certain seating position (for example, procedures that assess whether a rearview mirror provides an image in the correct location), should NHTSA simply amend the FMVSS to require, for instance, that “driver's seat” requirements apply to any front seating position? If so, please explain why. If not, what research would need to be conducted to determine how NHTSA should amend those requirements?

12. A variety of FMVSS require safety-related dashboard telltales and other displays, if provided, to be visible to a human driver and controls to be within reach of that driver. Generally speaking, is there a safety need for the telltales and other displays in Table 1 and 2 of FMVSS No. 101 to be visible to any of the occupants in vehicles without manual driving controls? Commenters are requested to provide their own list of the telltales and other displays they believe are most relevant to meeting any potential safety need in those vehicles. For each item on that list, please answer the following questions:

a. Should the telltale or other display be required to be visible to one or more vehicle occupants in vehicles without manual driving controls?

b. If there is a need for continued visibility, to the occupant(s) of which seating position(s) should the telltale or other display be visible?

c. Does the answer to the question about the continued need for a telltale or other display to be visible to the occupant of a vehicle without manual driving controls change if a manufacturer equips the vehicle with a device like an “emergency stop button”? Why or why not?

d. Would the informational safety needs of the occupants of vehicles with ADSs differ depending on whether the vehicle has a full set of manual driving controls, just an emergency stop button, or no controls whatsoever?

e. Conversely, if a vehicle is designed such that it can be driven only by an ADS, does the ADS need to be provided with some or all the same information currently required to be provided for a human driver? For example, does the ADS need to know if the tires are underinflated? Why or why not?

f. If commenters believe that it would enhance safety if a vehicle's ADS were required to receive information similar to some or all of that currently required to be provided to human drivers by telltales and other displays, what research needs to be conducted to develop the kinds of objective and practicable performance requirements or test procedures that would enable manufacturers and the Agency to evaluate whether that information was provided to and understood by the ADS?

13. If NHTSA is going to conduct research to determine whether there is any safety need for the occupants of fully self-driving vehicles to continue to have any access to any of the non-driving controls (e.g., controls for windshield washer/wiper system, turn signals, and lights) in a vehicle without manual driving controls, what should that research include and how should NHTSA conduct it?

a. If there is a safety need for the occupants of fully self-driving vehicles to have access to any of the existing vehicle non-driving controls, please identify those controls and explain the safety need.

b. Do commenters believe that research should be conducted to determine whether any additional controls (such as an emergency stop button) might be necessary for safety or public acceptance if manual driving controls are removed from fully-self-driving vehicles? Why or why not, and what is the basis for your belief?

c. If NHTSA is going to conduct research to determine whether there is any safety need for the occupants of fully self-driving vehicles to continue to be able to control exterior lighting like turn signals and headlamp beam switching devices, what should that research include and how should NHTSA conduct it? Separately, if NHTSA is going to conduct research on what exterior lighting continues to be needed for safety when a human is not driving, what should that research include and how should NHTSA conduct it?

14. If NHTSA is going to conduct research to determine whether there is a safety need for the occupants of vehicles with ADSs, but without manual driving controls, to be able to see to the side and behind those vehicles using mirrors or cameras, what should that research include and how should NHTSA conduct it? Separately, if NHTSA is going to conduct research to determine how NHTSA would test the ability of a vehicle's ADS to “see” around and behind the vehicle as well as (or better than) a human driver would, what should that research include and how should NHTSA conduct it?

15. Do the FMVSS create testing and certification issues for vehicles with ADSs other than those discussed above? If so, which FMVSS do so and why do you believe they present such issues? For example, FMVSS No. 108, “Lamps, reflective devices, and associated equipment,” could potentially pose obstacles to certifying the compliance of a vehicle that uses exterior lighting and messaging, through words or symbols, to communicate to nearby pedestrians, cyclists, and motorists, such as at a 4-way stop intersection, the vehicle's awareness of their presence and the vehicle's willingness to cede priority of movement to any of those people. If research is needed to eliminate the barriers in an appropriate way, please describe the research and explain why it is needed. Are there other lighting issues that should be considered? For example, what lighting will be needed to ensure the proper functioning of the different types of vehicle sensors, especially cameras whose functions include reading traffic control signs?

16. If occupants of vehicles with ADSs, especially those without manual driving controls, are less likely to sit in what is now called the driver's seating position or are less likely to sit in seats that are facing forward, how should these factors affect existing requirements for crashworthiness safety features?

17. If vehicles with ADSs have emergency controls that can be accessed through unconventional means, such as a smart phone or multi-purpose display and have unconventional interiors, how should the Agency address those controls?

18. Are there any specific regulatory barriers related to small businesses that NHTSA should consider, specifically those that may help facilitate small business participation in this emerging technology?

19. For issues about FMVSS barriers that NHTSA needs research to resolve, do commenters believe that there are specific items that would be better addressed through research by outside stakeholders, such as industry or research organizations, instead of by NHTSA itself?

a. Which issues is industry better equipped to undertake on its own, and why? Which issues are research organizations or other stakeholders better equipped to undertake on their own, and why?

b. What research is needed to determine which types of safety performance metrics should be used to evaluate a particular safety capability and to develop a test procedure for evaluating how well a vehicle performs in terms of those metrics?

c. Which questions is NHTSA better equipped to undertake and why? For example, would NHTSA, as the regulator, be the more appropriate party to conduct research needed to determine what performance threshold to require vehicles to meet with respect to that metric? Why or why not?

d. What research has industry, research organizations, and other stakeholders done related to barriers to testing and certification? What research are they planning to do? With respect to research planned but not yet completed, please identify the research and state the expected starting and end dates for that research.

e. How can NHTSA, industry, states, research organizations, and other stakeholders work together to ensure that, if the research on these issues were eventually to lead to rulemaking, it is done with the rigor and thoroughness that NHTSA would need to meet its statutory obligations, regardless of who performs it (e.g., done in a manner that enables the Agency to ensure that FMVSS are and remain objective and practicable, and continue to meet the need for safety)?

20. For the issues identified above or by commenters, which merit the most attention? How should the Agency prioritize its research and any follow-on rulemakings to remove the barriers to testing and certification?

21. Correcting barriers associated with the track testing of motor vehicles will be particularly challenging. Examples of such barriers follow:

a. FMVSS No. 126 specifies the use of an automated steering machine that depends on a vehicle's steering wheel to steer vehicles when they are tested for compliance. NHTSA will need to determine how to amend the standard to enable the Agency to conduct stability control testing in vehicles that lack a steering wheel. Further, if NHTSA is going to conduct research to consider how to change the “sine with dwell” test procedure for FMVSS No. 126 so that steering wheel angle need not be measured at the steering wheel in determining compliance with the standard, what should that research include and how should NHTSA conduct it?

b. If NHTSA is going to conduct research to develop a performance test to verify how a vehicle is activating its service brakes, what should that research include and how should NHTSA conduct it? If NHTSA is going to conduct research to determine whether there continues to be a safety need to maintain a human-operable service brake, what should that research include and how should NHTSA conduct it?

22. Are there industry standards, existing or in development, that may be suitable for incorporation by reference by NHTSA in accordance with the standards provisions of the National Technology Transfer and Advancement Act of 1995 and Office of Management and Budget Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and Conformity Assessment Activities?”

The New Jersey Department of Environmental Protection (NJDEP) has requested and the Mid-Atlantic Fishery Management Council has recommended that NMFS designate 13 New Jersey artificial reef sites, currently permitted in Federal waters by the U.S. Army Corps of Engineers, as special management zones (SMZs) under the applicable regulations implementing the Council's Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP), 50 CFR 648.148.

The summer flounder, scup, and black sea bass fisheries are managed cooperatively under the provisions of the FMP developed by the Council and the Atlantic States Marine Fisheries Commission, in consultation with the New England and South Atlantic Fishery Management Councils. General regulations governing fisheries of the Northeastern U.S. also appear at 50 CFR part 648. States manage these three species within 3 nautical miles (4.83 km) of their coasts, under the Commission's plan for summer flounder, scup, and black sea bass. The applicable species-specific Federal regulations govern vessels and individual fishermen fishing in Federal waters of the EEZ, as well as vessels possessing a summer flounder, scup, or black sea bass Federal charter/party vessel permit, regardless of where they fish.

On November 6, 2015, the NJDEP requested that the Council designate 13 artificial reef sites, currently permitted in Federal waters by the U.S. Corps of Engineers, as SMZs under the regulations implementing the Council's Summer Flounder, Scup, and Black Sea Bass FMP. The SMZ request noted that the NJDEP has received complaints from rod and reel anglers regarding fouling of their fishing gear in commercial pots and lines on ocean reef sites for more than 20 years. The request also noted that the U.S. Fish and Wildlife Service (FWS) Sportfish Restoration Program (SRP), which was the primary funding source of the New Jersey Reef Program, discontinued its funding of the program and all reef construction and monitoring activities until the gear conflicts are resolved. These gear conflicts are not consistent with the objectives of the SRP program, which provides funding for the building and maintenance of the artificial reefs. In order to comply with the goals of the SRP, the FWS is requiring that state artificial reef programs be able to limit gear conflicts by state regulations in state waters or by SMZs for sites in the EEZ.

The Council process for devising SMZ management measures is to recommend measures to NMFS for rulemaking, and is described in the following section. All meetings are open to the public and the materials used during such meetings, as well as any documents created to summarize the meeting results, are public information and typically posted on the Council's website (www.mafmc.org) or are available from the Council by request.

The SMZ recommendations from the Council were established under the FMP's black sea bass provisions (§ 648.148). A monitoring committee, consisting of representatives from the Council, NMFS Greater Atlantic Regional Fisheries Office, and NMFS Northeast Fisheries Science Center, was formed to review the NJDEP SMZ request. The FMP's implementing regulations require the monitoring committee to review scientific and other relevant information to evaluate the SMZ requests and prepare a written report, considering the following criteria:

(1) Fairness and equity;

(2) Promotion of conservation;

(3) Avoidance of excessive shares;

(4) Consistency with the objectives of Amendment 9 to the FMP, the Magnuson-Stevens Act, and other applicable law;

(5) The natural bottom in and surrounding potential SMZs; and

(6) Impacts on historical uses.

The Council considered the Monitoring Committee's recommendations and any public comment in finalizing its recommendations. The Council forwarded its final recommendations to NMFS for review. NMFS is required to review the Council's recommendations to ensure that they are consistent with the FMP and all applicable laws and Executive Orders before ultimately implementing measures for Federal waters.

The timeline for establishing the SMZs is summarized here: The NJDEP requested SMZ status for the artificial reefs in November 2015; the Council and NMFS established a monitoring committee to review the request in February 2016; the monitoring committee provided a report to the Council evaluating the SMZ request at its October 5, 2016, meeting in Galloway, NJ.

Following this meeting, the Council held three public hearings on the proposed SMZs (Brooklyn, NY, November 16, 2016; Toms River, NJ, November 16, 2016; and Cape May, NJ, November 17, 2016), and the Council made final recommendations on the SMZs at its December 21, 2016, meeting in Baltimore, Maryland. NMFS subsequently has reviewed the Council's recommendations through the development of an EA (see ADDRESSES for how to obtain a copy of the EA) and this proposed rule.

NMFS is proposing the Council's recommended measures that would apply in the Federal waters of the EEZ and to all vessels: That all 13 New Jersey artificial reefs be established as year-round SMZs. Within the established areas of the SMZs, all vessels would only be allowed to conduct fishing by handline, rod and reel, or spear fishing (including the taking of fish by hand).

The boundaries of the proposed SMZs artificial reef sites encompass 19.71 nm2 (67.6 km2) and are in Federal waters bounded by the following coordinates connected by straight lines in the sequence specified in Tables 1-13 below.

The coordinates of the 13 SMZ reef areas proposed to be created by this rule would be codified at 50 CFR 648.148(b)(2). This requires a re-organization of the existing SMZ regulations in CFR 648.148(b); no substantive changes are proposed for those provisions.