Vol. 82 Friday, No. 105 June 2, 2017

Pages 25503–25714

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 82, No. 105

Friday, June 2, 2017

Agriculture Department Approval of Alternative Final Cover Request for Phase 2 of See Office of Advocacy and Outreach the City of Wolf Point, MT, Landfill, 25532–25535 Pesticide Tolerances: Centers for Medicare & Medicaid Services Bifenthrin; Emergency Exemption, 25532 NOTICES Pesticides: Agency Information Collection Activities; Proposals, Certification of Pesticide Applicators; Delay of Effective Submissions, and Approvals, 25607–25609 Date, 25529–25532 PROPOSED RULES Civil Rights Commission Determination to Approve Alternative Final Cover Request: NOTICES Phase 2 of the City of Wolf Point, MT, Landfill, 25568 Meetings: Pesticides: Texas Advisory Committee, 25596 Technical Amendment to Data Requirements for Antimicrobial Pesticides, 25567–25568 Coast Guard NOTICES RULES Environmental Impact Statements; Availability, etc.: Safety Zones: Weekly Receipts, 25604–25605 Detroit Symphony Orchestra Fireworks, Lake St. Clair, Receipt of Information under Toxic Substances Control Act, Grosse Pointe Shores, MI, 25515–25517 25604 East River and Buttermilk Channel, Brooklyn, NY, 25517–25519 Farm Credit System Insurance Corporation Lower Mississippi River, Vidalia, LA, 25519–25521 NOTICES Special Local Regulations: Meetings: Motor City Mile; Detroit River; Detroit, MI, 25521–25523 Farm Credit System Insurance Corporation Board, 25605 Sector Ohio Valley Annual and Recurring Special Local Regulations Update, 25511–25515 Federal Aviation Administration Commerce Department RULES Special Conditions: See Foreign-Trade Zones Board Pilatus Aircraft Limited Models PC–12, PC–12/45, PC–12/ See Industry and Security Bureau 47; Autothrust System, 25509–25511 See International Trade Administration PROPOSED RULES See National Oceanic and Atmospheric Administration Airworthiness Directives: Airbus Airplanes, 25542–25545, 25552–25554 Committee for Purchase From People Who Are Blind or Bombardier, Inc., Airplanes, 25545–25547, 25554–25559 Severely Disabled The Boeing Company Airplanes, 25547–25552 NOTICES Amendment of Class D and Class E Airspace: Procurement List; Additions and Deletions, 25602–25603 Cheyenne, WY, 25561–25563 Comptroller of the Currency Establishment of Class E Airspace: NOTICES Dixon, WY, 25563–25564 Agency Information Collection Activities; Proposals, VOR Federal Airways; Amendments: Submissions, and Approvals, 25655–25657 V–66, V–189, V–260, and V–266; in the Vicinity of Franklin, VA, 25559–25561 Drug Enforcement Administration PROPOSED RULES Federal Communications Commission Schedules of Controlled Substances: RULES Temporary Placement of Acryl Fentanyl into Schedule I, Business Data Services in an Internet Protocol 25564–25567 Environment; Technology Transitions; Special Access for Price Cap Local Exchange Carriers; etc., 25660– Education Department 25713 NOTICES Jurisdictional Separations and Referral to the Federal-State Agency Information Collection Activities; Proposals, Joint Board, 25535–25538 Submissions, and Approvals: PROPOSED RULES Supplemental Information for the SF–424 form, 25603– Elimination of Main Studio Rule, 25590–25594 25604 Restoring Internet Freedom, 25568–25590 NOTICES Environmental Protection Agency Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 25605–25606 Air Quality State Implementation Plans; Approvals and Promulgations: Federal Deposit Insurance Corporation Georgia; Redesignation of the Atlanta, Georgia 2008 8- NOTICES Hour Ozone Nonattainment Area to Attainment, Agency Information Collection Activities; Proposals, 25523–25529 Submissions, and Approvals, 25655–25657

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Federal Reserve System International Trade Administration PROPOSED RULES NOTICES Availability of Funds and Collection of Checks, 25539– Antidumping or Countervailing Duty Investigations, Orders, 25542 or Reviews: NOTICES Certain New Pneumatic Off-the-Road Tires from India; Agency Information Collection Activities; Proposals, Correction, 25598–25599 Submissions, and Approvals, 25655–25657 Initiation of Five-Year Sunset Reviews, 25599–25600 Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding International Trade Commission Company, 25607 NOTICES Formations of, Acquisitions by, and Mergers of Bank Investigations; Determinations, Modifications, and Rulings, Holding Companies, 25606 etc.: Certain Digital Cameras, Software, and Components Fish and Wildlife Service Thereof, 25627–25628 NOTICES Tool Chests and Cabinets from China and Vietnam, Environmental Impact Statements; Availability, etc.: 25628–25629 Proposed Habitat Conservation Plan for South Meetings; Sunshine Act, 25627 Sacramento County, CA, 25612–25614 Permit Applications: Justice Department Endangered Species, 25615–25616 See Drug Enforcement Administration NOTICES Foreign-Trade Zones Board Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Production Activities: Drug Questionnaire, 25629–25630 Bell Sports, Inc., Foreign-Trade Zone 114, Peoria, IL, Office for Juvenile Justice and Delinquency Prevention 25597 National Training and Technical Assistance Center Hans-Mill Corp., Foreign-Trade Zone 64, Jacksonville, FL, Feedback Form Package, 25630 25596 Labor Department Health and Human Services Department See Occupational Safety and Health Administration NOTICES See Centers for Medicare & Medicaid Services Agency Information Collection Activities; Proposals, See National Institutes of Health Submissions, and Approvals: See Substance Abuse and Mental Health Services Consumer Price Index Commodities and Services Survey, Administration 25630–25631

Hearings and Appeals Office, Interior Department National Aeronautics and Space Administration NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, Tribal Listening Session; Oklahoma City Probate Hearings Submissions, and Approvals, 25632–25633 Division Field Office, 25616 National Endowment for the Arts Homeland Security Department NOTICES See Coast Guard Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25633 Housing and Urban Development Department NOTICES National Foundation on the Arts and the Humanities Agency Information Collection Activities; Proposals, See National Endowment for the Arts Submissions, and Approvals: Small Area Fair Market Rent Demonstration Evaluation, National Indian Gaming Commission 25611–25612 NOTICES 2017 Final Fee Rate and Fingerprint Fees, 25617 Industry and Security Bureau NOTICES National Institutes of Health Hearings: NOTICES National Security Investigation of Imports of Aluminum, Agency Information Collection Activities; Proposals, 25597–25598 Submissions, and Approvals: Chimpanzee Research Use Form, 25609–25610 Interior Department See Fish and Wildlife Service National Oceanic and Atmospheric Administration See Hearings and Appeals Office, Interior Department NOTICES See National Indian Gaming Commission Meetings: See National Park Service Fisheries of the South Atlantic; Southeast Data, NOTICES Assessment, and Review; Public Meetings, 25600– Requests for Nominations: 25601 Royalty Policy Committee, 25616–25617 Pacific Fishery Management Council, 25601

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National Park Service Designations as Global Terrorists: NOTICES Abu Nidal Organization, aka ANO, aka Black September, Inventory Completions: aka the Fatah Revolutionary Council, aka the Arab Kansas State Historical Society, Topeka, KS, 25620– Revolutionary Council, aka the Arab Revolutionary 25621 Brigades, aka the Revolutionary Organization of Lava Beds National Monument, Tulelake, CA, 25618– Socialist Muslims, 25654 25619 Ocmulgee National Monument, Macon, GA, 25619–25622 Substance Abuse and Mental Health Services Ocmulgee National Monument, Macon, GA; Correction, Administration 25622–25623, 25625–25626 Repatriation of Cultural Items: NOTICES Allen County-Fort Wayne Historical Society, Fort Wayne, Agency Information Collection Activities; Proposals, IN, 25624–25625 Submissions, and Approvals, 25610 Ocmulgee National Monument, Macon, GA, 25623– 25624, 25626–25627 Surface Transportation Board Occupational Safety and Health Administration NOTICES NOTICES Requests for Nominations: California State Plan; New Operational Status Agreement, Railroad-Shipper Transportation Advisory Council, 25631–25632 25654–25655

Office of Advocacy and Outreach Transportation Department NOTICES See Federal Aviation Administration Agency Information Collection Activities; Proposals, Submissions, and Approvals, 25595–25596 Treasury Department See Comptroller of the Currency Personnel Management Office NOTICES NOTICES Charter Renewals: Agency Information Collection Activities; Proposals, Treasury Borrowing Advisory Committee of the Securities Submissions, and Approvals: Industry and Financial Markets Association, 25658 Multi-State Plan Program External Review Case Intake Multiemployer Pension Plan Application to Reduce Form, 25633–25634 Benefits, 25657–25658 Railroad Retirement Board NOTICES Veterans Affairs Department Report of Matching Program: NOTICES Railroad Retirement Board and State Medicare/Medicaid Meetings: Agencies, 25634–25635 Advisory Committee on Prosthetic and Special Disabilities; Cancellation, 25658 Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Separate Parts In This Issue Submissions, and Approvals, 25648 Self-Regulatory Organizations; Proposed Rule Changes: Fixed Income Clearing Corp., 25642–25648 Part II New York Stock Exchange, LLC, 25635–25639 Federal Communications Commission, 25660–25713 NYSE Arca, Inc., 25639–25642 The NASDAQ Stock Market LLC, 25648–25654 Reader Aids Small Business Administration Consult the Reader Aids section at the end of this issue for RULES phone numbers, online resources, finding aids, and notice Rules of Procedure Governing Cases Before the Office of of recently enacted public laws. Hearings and Appeals, 25503–25509 To subscribe to the Federal Register Table of Contents State Department electronic mailing list, go to https://public.govdelivery.com/ NOTICES accounts/USGPOOFR/subscriber/new, enter your e-mail Designations as Foreign Terrorist Organizations: address, then follow the instructions to join, leave, or Abu Nidal Organization, aka ANO, et al., 25654 manage your subscription.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

12 CFR Proposed Rules: 229...... 25539 13 CFR 121...... 25503 134...... 25503 14 CFR 23...... 25509 Proposed Rules: 39 (7 documents) ...... 25542, 25545, 25547, 25550, 25552, 25554, 25556 71 (3 documents) ...... 25559, 25561, 25563 21 CFR Proposed Rules: 1308...... 25564 33 CFR 100...... 25511 165 (4 documents) ...... 25515, 25517, 25519, 25521 40 CFR 52...... 25523 81...... 25523 171...... 25529 180...... 25532 258...... 25532 Proposed Rules: 158...... 25567 258...... 25568 47 CFR 0...... 25660 1...... 25660 36...... 25535 61...... 25660 63...... 25660 69...... 25660 Proposed Rules: 8...... 25568 20...... 25568 73...... 25590

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Rules and Regulations Federal Register Vol. 82, No. 105

Friday, June 2, 2017

This section of the FEDERAL REGISTER to the Small Business Act, 15 U.S.C. date of this final rule will be considered contains regulatory documents having general 632(a)(9), to authorize OHA to hear and timely if filed within 30 calendar days applicability and legal effect, most of which decide Petitions for Reconsideration of of that effective date. are keyed to and codified in the Code of Size Standards (Size Standard Petitions Summary of Comments and SBA’s Federal Regulations, which is published under or Petitions). A Size Standard Petition 50 titles pursuant to 44 U.S.C. 1510. Response may be filed at OHA after SBA The Code of Federal Regulations is sold by publishes a final rule in the Federal A. Part 121 the Superintendent of Documents. Register to revise, modify, or establish SBA proposed adding new paragraphs a size standard. This rule creates a new (e), (f), and (g) to § 121.102 to include subpart I in OHA’s regulations (13 CFR Size Standard Petitions as part of SBA’s SMALL BUSINESS ADMINISTRATION part 134) to set out detailed rules of process for establishing size standards. practice for Size Standard Petitions, 13 CFR Parts 121 and 134 New paragraph (e) requires SBA to revises OHA’s general rules of practice include instructions for filing a Size RIN 3245–AG82 in subparts A and B of part 134 as Standard Petition in any final rule required by the new legislation, and revising, modifying, or establishing a Rules of Procedure Governing Cases amends SBA’s small business size size standard. There were no comments Before the Office of Hearings and regulations (13 CFR part 121) to include on it and SBA is adopting it exactly as Appeals Size Standard Petitions as part of SBA’s proposed. AGENCY: U.S. Small Business process for establishing size standards. New paragraph (f) requires SBA to Administration. This rule also revises the rules of publish a notice in the Federal Register practice for OHA appeals of agency ACTION: Final rule. within 14 calendar days after a Size employee disputes in subpart H of part Standard Petition is filed. SBA received SUMMARY: The U.S. Small Business 134, to comport with SBA’s revisions of one comment on proposed new Administration (SBA) is amending the its Standard Operating Procedure (SOP) § 121.102(f). The commenter requested rules of practice of its Office of Hearings 37 71, The Employee Dispute that SBA also have an online tracking and Appeals (OHA) to implement Resolution Process. system, preferably on the Web site section 869 of the National Defense On October 7, 2016, SBA published in regulations.gov, for Size Standard Authorization Act for Fiscal Year 2016 the Federal Register (81 FR 69723), a Petitions filed at OHA. The same and section 1833 of the National proposed rule to implement section commenter also suggested that SBA Defense Authorization Act for Fiscal 869(b) of NDAA 2016 and to revise include information on Size Standard Year 2017. This legislation authorizes procedures for OHA appeals of agency Petitions in the record for the applicable OHA to decide Petitions for employee disputes. The proposed rule revised, modified, or newly established Reconsideration of Size Standards (Size provided a 60-day comment period, size standard. Standard Petitions or Petitions). This with comments due on December 6, In response, SBA notes that OHA has rule also revises the rules of practice for 2016. During the comment period SBA no online tracking system as yet; OHA appeals of agency employee received three comments, each of which however, systems already in place will disputes. concerned the implementation of enable the public to track Size Standard section 869(b). No comments were DATES: Petition cases. First, notices for Federal Effective Date: This rule is effective received concerning employee disputes. Register publication appear on July 3, 2017. On December 23, 2016, President automatically on federalregister.gov, Applicability Date: Size Standard Obama signed into law the National and the public may use that site’s Petitions pertaining to size standards Defense Authorization Act for Fiscal advanced search feature to locate them. revised, modified, or established in a Year 2017, Public Law 114–328 (NDAA Second, once issued, OHA’s decisions final rule published during the interval 2017). Section 1833(b) of NDAA 2017 are public and available at sba.gov/oha/ between November 25, 2015, and July 3, added new subparagraph 3(a)(9)(E) to decisions. Regarding the inclusion of 2017 shall be considered timely if filed the Small Business Act, 15 U.S.C. information on Size Standard Petitions within 30 calendar days of the latter 632(a)(9)(E). This provision authorizes in the record for size standards date. OHA to accept Size Standard Petitions rulemakings, SBA declines to add this after SBA issues rules or guidance for requirement, leaving it up to SBA’s FOR FURTHER INFORMATION CONTACT: processing these cases; SBA is issuing Office of Size Standards to determine Linda (Lin) DiGiandomenico, Attorney those procedural rules today, in this what to include in the rulemaking Advisor, at (202) 401–8206 or OHA@ final rule. Until this final rule, SBA had record for a particular rule. Thus, SBA sba.gov. no specific rules or guidance for is adopting the proposed § 121.102(f) as SUPPLEMENTARY INFORMATION: This rule processing Size Standard Petitions, and proposed, with one editorial change to amends the rules of practice for the thus OHA dismissed without prejudice the first sentence, where ‘‘announcing a SBA’s Office of Hearings and Appeals the Size Standard Petitions that were size standard’’ is replaced with (OHA) in order to implement section filed. This new statutory provision also ‘‘announcing the size standard’’. 869(b) of the National Defense provides that Size Standard Petitions Proposed new paragraph (g) would Authorization Act for Fiscal Year 2016, pertaining to size standards revised, require SBA to publish a document in Public Law 114–92, 129 Stat. 726, modified, or established in a final rule the Federal Register where SBA grants November 25, 2015 (NDAA 2016). This published during the interval between a Petition for Reconsideration of a Size legislation added new paragraph 3(a)(9) November 25, 2015, and the effective Standard that had been revised or

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modified. There were no public Paragraph (b) provides that a business in size challenges, and under the comments on this provision. SBA is entity is not ‘‘adversely affected’’ unless process used in size challenges only a changing this provision to clarify that it conducts business in the industry small business has standing to file either OHA will remand the case to SBA’s associated with the size standard being a size protest or a size appeal, SBA Office of Size Standards for further challenged, and it either qualified as a believes it was the intent of Congress to action. small business concern before the size allow only a small business to file a Size standard was revised or modified, or it Standard Petition. Therefore, SBA is B. Part 134, Subparts A and B would qualify as a small business adopting new § 134.902 exactly as SBA proposed to revise four sections concern under the size standard as proposed. contained in subparts A and B of part revised or modified. Section 134.903(a) reiterates the 134. These are §§ 134.101 (Definitions) SBA received two comments. One statutory 30-day deadline for filing a and 134.102 (Jurisdiction of OHA) in comment supported the proposed rule Petition, requires dismissal of an subpart A; and §§ 134.201 (Scope of the because it precludes businesses that are untimely Petition, and clarifies that the rules in this subpart B) and 134.227 large under both the existing and the days counted are calendar days. Section (Finality of decisions) in subpart B. SBA modified or revised size standard from 134.903(b) requires dismissal as received no comments on any of these filing Size Standard Petitions. The premature a Petition filed in response to sections. SBA added a definition to second comment opposed the proposed a proposed rule. The retention of an clarify that Step One and Step Two refer rule for that same reason, asserting that existing size standard is not considered to the Employee Dispute Resolution the statute does not limit the availability to be the revision, modification, or Process described in SBA Standard of an OHA review only to small or establishment of a size standard and is Operating Procedure, 37 71, as denoted would-be small businesses, but was not subject to these procedures, and so in § 134.801(a). All other revisions are meant to include all adversely-affected § 134.903(c) requires OHA to dismiss a exactly as proposed. businesses, including large businesses. petition challenging the retention of an The second commenter believes that it existing size standard. C. Part 134, Subpart H is adversely affected by a change in a There were two comments. One SBA proposed to revise §§ 134.801, size standard that favors its competitors, comment expressed support for the 30- 134.803, 134.804, 134.805, 134.807, and asserts that concerns also should be day deadline and summary dismissal 134.808, and 134.809 of subpart H. All able to request review on SBA’s provisions. The second comment of these sections concern OHA appeals decision in a rulemaking not to modify requested a process whereby one may of SBA employee disputes. SBA or revise a size standard, but to keep it comment on and request a review of a received no comments regarding the the same. size standard change at any time, not proposed revision of any of these SBA disagrees with the second just within 30 days of the change, so sections, and is adopting these revisions comment. The statute provides that long as the change has produced a exactly as proposed, with three minor SBA’s OHA, in deciding Size Standard negative financial impact on businesses. changes. In § 134.805(d), the words ‘‘at Petitions, ‘‘shall use the same process it SBA notes, with respect to the second his or her home address’’ are being uses to decide challenges to the size of comment, that the 30-day deadline for removed as unnecessary since service is a small business concern.’’ Small filing a Petition is statutory and thus by email. In § 134.807(a), the words ‘‘it Business Act section 3(a)(9)(C), 15 SBA may not change it. As for wishes’’ are being replaced with ‘‘SBA U.S.C. 632(a)(9)(C). A challenge to a opportunities to comment on size wishes’’ for clarity. In § 134.809(a), an concern’s small business size status, standards, there is a public comment official’s title is being corrected. also called a size protest, occurs when period each time SBA publishes a a competitive procurement or order has proposed rule, and during this public D. Part 134, Subpart I been restricted to or reserved for small comment period any person may submit SBA proposed to add subpart I setting businesses or a particular group of small a comment for SBA to consider and forth the rules of practice before OHA businesses. The size protest, filed by address in formulating the final rule. for Petitions for Reconsideration of Size either a disappointed offeror or the During the public comment period, Standards. SBA received no comments Government, is initially decided by an commenters need not demonstrate regarding the proposed new §§ 134.901 SBA Area Office in a size determination standing, and may comment on any size (Scope of the rules in this subpart I), which may be appealed to OHA. At both standard being proposed, regardless of 134.905 (Notice and order), 134.907 the protest (Area Office) and the appeal whether the proposed rule would (Filing and service), 134.908 (The (OHA) stages, the process of deciding modify or revise that size standard. administrative record), 134.909 challenges to a concern’s small business Outside of public comment periods, (Standard of review), 134.911 (Response size status requires a non-Government persons may address their concerns to the Size Standard Petition), 134.912 person bringing the challenge to have about any size standard at any time to (Discovery and oral hearings), 134.913 standing as a small business offeror SBA’s Size Standards Office pursuant to (New evidence), 134.914 (The decision), remaining in the competition and still § 121.102(d). SBA is adopting new 134.915 (Remand), 134.917 (Equal eligible for award. See 13 CFR § 134.903 exactly as proposed. Access to Justice Act), and 134.918 121.1001(a)(1) (‘‘Any offeror whom the Section 134.904 sets out the (Judicial review). SBA is adopting these contracting officer has not eliminated requirements for a Size Standard new sections as proposed, with one for reasons unrelated to size’’), 13 CFR Petition. Among these, the Petition must minor change to the first sentence in 134.302(a) (‘‘Appeals from size include any public comments the § 134.914, where the second ‘‘the’’ is determinations . . . may be filed with Petitioner had submitted during the being deleted. OHA by the following, as applicable: rulemaking on the challenged size Proposed § 134.902 provides that any Any person adversely affected by a size standard, and the Petitioner also must person ‘‘adversely affected’’ by a new, determination . . . .’’); Size Appeal of demonstrate standing for each revised, or modified size standard has Straughan Environmental, Inc., SBA No. challenged size standard. One standing to file a Petition within 30 days SIZ–5767, at 3 (2016), available at commenter suggested an additional from the date of publication of the final www.sba.gov/oha. Because the statute requirement, that the Petitioner must rule promulgating that size standard. requires OHA to follow the process used actually have submitted a public

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comment during the rulemaking. The not a small business. Would contract the principles set forth in the Executive same commenter also noted its support award to that concern as a small Order. for the requirement to demonstrate business be valid even though the prior Executive Order 12988 standing for each challenged size size standard has been restored? standard. SBA disagrees with the SBA responds to this comment by This action meets applicable suggestion to require the Petitioner to stating that the contract award to that standards set forth in section 3(a) and have submitted a public comment concern as a small business is valid 3(b)(2) of Executive Order 12988, Civil during the rulemaking, because this despite SBA’s rescission of the revised, Justice Reform, to minimize litigation, additional requirement would be overly higher size standard. This result is eliminate ambiguity, and reduce restrictive. Thus, SBA is adopting new consistent with the general rule, stated burden. The action does not have § 134.904 as proposed, with the deletion in § 121.404(a), that a concern’s small retroactive or preemptive effect. of the unnecessary mail code in business eligibility is determined on the Executive Order 13175 § 134.904(d)(1). self-certification date and is based on Section 134.906 permits interested the size standard in effect at that time. For the purposes of Executive Order persons with a direct stake in the Thus, the procuring agency may count 13175, Consultation and Coordination outcome of the case to intervene and the award toward its small business with Indian Tribal Governments, SBA obtain a copy of the Petition, under a goals. On the other hand, if the has determined that this final rule will protective order if necessary. One procuring agency amends the not have substantial direct effects on commenter requested SBA to change solicitation and requires new self- one or more Indian Tribes, on the this provision to require potential certifications, those self-certifications relationship between the Federal intervenors to meet the same standing will be based on the size standard in Government and Indian Tribes, or on requirement as petitioners, in order to effect on the day they are made. SBA is the distribution of power and prevent large businesses from having a revising the text of § 134.916(a) to responsibilities between the Federal ‘‘back door’’ into the size standard clarify the intended effect of an OHA Government and Indian Tribes. review process. SBA disagrees with this decision granting a Size Standard Therefore, SBA determines that this comment. The proposed rule requires Petition in light of this public comment, final rule does not require consultations only ‘‘a direct stake in the outcome’’ and and also to provide that, on remand, with tribal officials or warrant the the OHA Judge will make that SBA may take any appropriate action to publication of a Tribal Summary Impact determination on a case-by-case basis. rescind the challenged revised or Statement. SBA is adopting new § 134.906 exactly modified size standard. as proposed. Executive Order 13132 Section 134.910 requires OHA to Compliance With Executive Orders This rule does not have Federalism dismiss a Petition under four scenarios. 12866, 12988, 13175 and 13132, the implications as defined in Executive One commenter stated support for Paperwork Reduction Act (44 U.S.C. Order 13132. It will not have substantial dismissal under those scenarios. SBA is Ch. 35), and the Regulatory Flexibility direct effects on the States, on the adopting new § 134.910 exactly as Act (5 U.S.C. 601–612) relationship between the national proposed. Executive Order 12866 government and the States, or on the Section 134.916 sets out the effects of distribution of power and OHA’s decision in a Size Standard OMB has determined that this rule responsibilities among the various Petition case. Paragraph (a) provides does not constitute a ‘‘significant levels of government, as specified in the that if the challenged size standard is a regulatory action’’ under Executive Executive Order. As such it does not modified or revised size standard, and Order 12866. This rule is also not a warrant the preparation of a Federalism OHA grants the Size Standard Petition, major rule under the Congressional Assessment. SBA will rescind the challenged size Review Act, 5 U.S.C. 800. This rule standard and restore the prior size establishes the procedures for Petitions Paperwork Reduction Act standard, which will remain in effect for Reconsideration of Size Standards at The SBA has determined that this rule until SBA issues a new size standard. If SBA’s Office of Hearings and Appeals does not impose additional reporting or the challenged size standard is newly (OHA) and revises procedural rules at recordkeeping requirements under the established, and OHA grants the Size OHA for agency employee disputes. As Paperwork Reduction Act, 44 U.S.C. Standard Petition, the challenged size such, the rule has no effect on the Chapter 35. standard remains in effect. Paragraph (b) amount or dollar value of any Federal provides that if OHA denies a Size contract requirements or of any Regulatory Flexibility Act Standard Petition, the challenged size financial assistance provided through The Regulatory Flexibility Act of 1980 standard remains in effect. SBA. Therefore, the rule is not likely to (RFA), 5 U.S.C. 601–612, as amended, One commenter requested have an annual economic effect of $100 requires Federal agencies to consider clarification of the effect that OHA’s million or more, result in a major the potential impact of regulations on grant of a Size Standard Petition would increase in costs or prices, or have a small entities during rulemaking. Small have on procurement actions. The significant adverse effect on competition entities include small businesses, small commenter posed the hypothetical of a or the United States economy. In not-for-profit organizations, and small concern that is a small business under addition, this rule does not create a governmental jurisdictions. Section 605 the revised size standard but is not a serious inconsistency or otherwise of the RFA allows an agency to certify small business under the prior size interfere with an action taken or a rule, in lieu of preparing an analysis, standard. The concern self-certifies as planned by another agency, materially if the rulemaking is not expected to small under the revised size standard alter the budgetary impact of have a significant economic impact on with its initial offer including price. entitlements, grants, user fees, loan a substantial number of small entities. Later, OHA grants a Size Standard programs or the rights and obligations of This final rule revises the regulations Petition and SBA rescinds the revised such recipients, nor raise novel legal or governing cases before SBA’s Office of size standard, restoring the prior size policy issues arising out of legal Hearings and Appeals (OHA), SBA’s standard, under which that concern is mandates, the President’s priorities, or administrative tribunal. These

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regulations are procedural by nature. 13 CFR Part 134 Authority: 5 U.S.C. 504; 15 U.S.C. 632, 634(b)(6), 634(i), 637(a), 648(l), 656(i), and Specifically, the final rule establishes Administrative practice and rules of practice for Petitions for 687(c); E.O. 12549, 51 FR 6370, 3 CFR, 1986 procedure, Claims, Equal access to Comp., p. 189. Reconsideration of Size Standards (Size justice, Lawyers, Organization and Standard Petitions), a new type of functions (government agencies). ■ 4. Amend § 134.101 by revising the administrative litigation mandated by For the reasons stated in the definitions of ‘‘AA/OHA’’ and ‘‘Judge’’ 869(b) of the National Defense preamble, the U.S. Small Business and adding definitions for Authorization Act for Fiscal Year 2016. Administration amends 13 CFR parts ‘‘Administrative Judge’’, ‘‘Petitioner’’, This legislation provides a new 121 and 134 as follows: ‘‘Size Standard Petition’’, and ‘‘Step statutory right to challenge a size One and Step Two’’ in alphabetical standard revised, modified, or PART 121—SMALL BUSINESS SIZE order to read as follows: REGULATIONS established by the SBA through a final § 134.101 Definitions. rule. Further, this legislation requires ■ 1. The authority citation for part 121 * * * * * OHA to hear any Size Standard continues to read as follows: AA/OHA means the Assistant Petitions that are filed. This final rule Administrator for OHA, who is also the merely provides the rules of practice for Authority: 15 U.S.C. 632, 634(b)(6), 662, Chief Hearing Officer. the orderly hearing and disposition of and 694a(9). Size Standard Petitions at OHA. While ■ 2. Amend § 121.102 by adding * * * * * SBA did not anticipate that this final paragraphs (e), (f), and (g) to read as Administrative Judge means a Hearing rule would have a significant economic follows: Officer, as described at 15 U.S.C. 634(i), appointed by OHA to adjudicate cases. impact on any small business, we did § 121.102 How does SBA establish size request comments from any small standards? * * * * * Judge means the Administrative Judge business setting out how and to what * * * * * degree this final rule would affect it (e) When SBA publishes a final rule or Administrative Law Judge who economically. No comments were in the Federal Register revising, decides an appeal or petition brought received regarding RFA issues. modifying, or establishing a size before OHA, or the AA/OHA when he or she acts as an Administrative Judge. The Small Business Size Regulations standard, SBA will include in the final provide that persons requesting to rule, an instruction that interested * * * * * change existing size standards or to persons may file a petition for Petitioner means the person who establish new size standards may reconsideration of a revised, modified, initially files a petition before OHA. address these requests to SBA’s Office of or established size standard at SBA’s * * * * * Size Standards. 13 CFR 121.102(d). Over Office of Hearings and Appeals (OHA) Size Standard Petition means a the past five years, fewer than ten letters within 30 calendar days after petition for reconsideration of a revised, concerning size standards have been publication of the final rule in modified, or established size standard submitted per year, supporting SBA’s accordance with 15 U.S.C. 632(a)(9) and filed with OHA pursuant to 15 U.S.C. belief that this final rule will not affect part 134, subpart I of this chapter. The 632(a)(9) and subpart I of this part. a substantial number of small entities. instruction will provide the mailing Step One and Step Two refer to the Further, a business adversely affected by address, facsimile number, and email steps of the Employee Dispute a final rule revising a size standard has address of OHA. Resolution Process, see § 134.801(a) for (f) Within 14 calendar days after a always had (and would continue to more information. petition for reconsideration of a size have) the option of judicial review in ■ standard is filed, unless it appears OHA 5. Amend § 134.102 by revising Federal court, yet the SBA knows of no will dismiss the petition for paragraphs (r) and (t) to read as follows: such lawsuit ever having been filed. reconsideration, SBA will publish a § 134.102 Jurisdiction of OHA. In addition to establishing rules of document in the Federal Register * * * * * practice for Size Standard Petitions, this announcing the size standard or (r) Appeals from SBA Employee rule revises OHA’s rules of practice for standards that have been challenged, the Dispute Resolution Process cases SBA Employee Disputes. This Federal Register citation of the final (Employee Disputes) under Standard rulemaking is procedural, would impose rule, the assigned OHA docket number, Operating Procedure (SOP) 37 71 no significant additional requirements and the date of the close of record. The (available at http://www.sba.gov/tools/ on small entities, and would have document will further state that resourcelibrary/sops/index.html or minimal, if any, effect on small entities. interested parties may contact OHA to through OHA’s Web site http:// intervene in the dispute pursuant to Therefore, the Administrator of SBA www.sba.gov/oha) and subpart H of this certifies under 5 U.S.C. 605(b) that this § 134.906 of this chapter. (g) Where OHA grants a petition for part; final rule does not have a significant reconsideration of a size standard that * * * * * economic impact on a substantial had been revised or modified, OHA will (t) Petitions for reconsideration of number of small entities. remand the case to SBA’s Office of Size revised, modified, or established size List of Subjects Standards for further action in standards pursuant to 15 U.S.C. accordance with § 134.916(a) of this 632(a)(9). 13 CFR Part 121 chapter. ■ 6. Amend § 134.201 by: ■ a. Removing the word ‘‘and’’ in Administrative practice and PART 134—RULES OF PROCEDURE paragraph (b)(6); procedure, Government procurement, GOVERNING CASES BEFORE THE ■ Government property, Grant programs— OFFICE OF HEARINGS AND APPEALS b. Redesignating paragraph (b)(7) as business, Individuals with disabilities, paragraph (b)(8); and Loan programs—business, Small ■ 3. The authority citation for part 134 ■ c. Adding a new paragraph (b)(7). businesses. is revised to read as follows: The addition reads as follows:

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§ 134.201 Scope of the rules in this (3) Statement of why the Step Two The PFR must specify the objections to subpart B. decision (or Step One decision, if no OHA’s decision. * * * * * Step Two decision was received), is ■ 15. Add subpart I to read as follows: (b) * * * alleged to be in error; (7) For Size Standard Petitions, in Subpart I—Rules of Practice for Petitions * * * * * for Reconsideration of Size Standards subpart I of this part (§§ 134.901 (b) * * * through 134.918); and Sec. (1) The Step Two Official; 134.901 Scope of the rules in this subpart. * * * * * * * * * * 134.902 Standing. ■ 7. Amend § 134.227 by: 134.903 Commencement of cases. ■ a. Removing the word ‘‘and’’ in § 134.805 [Amended] 134.904 Requirements for the Size Standard paragraph (b)(3); ■ 11. Amend § 134.805 in paragraph (d) Petition. ■ b. Redesignating paragraph (b)(4) as by removing the words ‘‘U.S. Mail’’ and 134.905 Notice and order. paragraph (b)(5); and adding in their place the word ‘‘email’’ 134.906 Intervention. 134.907 Filing and service. ■ c. Adding a new paragraph (b)(4). and removing the words ‘‘at his or her The addition reads as follows: 134.908 The administrative record. home address’’. 134.909 Standard of review. § 134.227 Finality of decisions. § 134.807 [Amended] 134.910 Dismissal. * * * * * 134.911 Response to the Size Standard ■ 12. Amend § 134.807 as follows: Petition. (b) * * * ■ a. By removing from paragraph (a), the 134.912 Discovery and oral hearings. (4) Size Standard Petitions; and words ‘‘a copy of the Dispute File’’ and 134.913 New evidence. * * * * * adding in their place the words ‘‘any 134.914 The decision. 134.915 Remand. § 134.801 [Amended] documentation, not already filed by the Employee, that SBA wishes OHA to 134.916 Effects of OHA’s decision. ■ 134.917 Equal Access to Justice Act. 8. Amend § 134.801 by: consider’’; ■ 134.918 Judicial review. a. Adding the word ‘‘and’’ at the end ■ b. By removing from paragraph (b), of paragraph (b)(9); the words ‘‘15 days’’ and ‘‘45 days’’ and Subpart I—Rules of Practice for ■ b. Removing ‘‘; and’’ at the end of adding in both their places the words Petitions for Reconsideration of Size paragraph (b)(10) and adding a period in ‘‘15 calendar days’’; and Standards its place; and ■ c. By removing from paragraph (c), the ■ c. Removing paragraph (b)(11). words ‘‘and the Dispute File are § 134.901 Scope of the rules in this ■ 9. Amend § 134.803 by revising the normally the last submissions’’ and by subpart. section heading and paragraphs (a) and adding in their place the words ‘‘is (a) The rules of practice in this (b) to read as follows: normally the last submission’’. subpart apply to Size Standard Petitions. § 134.803 Commencement of appeals from § 134.808 [Amended] (b) Except where inconsistent with SBA Employee Dispute Resolution Process cases (Employee Disputes). ■ 13. Amend § 134.808(a) by removing this subpart, the provisions of subparts A and B of this part apply to Size (a) An appeal from a Step Two the word ‘‘AMO’s’’ and adding in its Standard Petitions listed in paragraph decision must be commenced by filing place the words ‘‘Step One or Step (a) of this section. an appeal petition within 15 calendar Two’’. days from the date the Employee ■ 14. Revise § 134.809 to read as § 134.902 Standing. receives the Step Two decision. follows: (a) A Size Standard Petition may be (b) If the Step Two Official does not § 134.809 Review of initial decision. filed with OHA by any person that is issue a decision within 15 calendar days adversely affected by the (a) If the Chief Human Capital Officer, of receiving the SBA Dispute Form from Administrator’s decision to revise, General Counsel for SBA, or Counsel to the Employee, the Employee must file modify, or establish a size standard. his/her appeal petition at OHA no later the Inspector General (IG) believes (b) A business entity is not adversely than 15 calendar days from the date the OHA’s decision is contrary to law, rule, affected unless it conducts business in Step Two decision was due. regulation, or SBA policy, that official the industry associated with the size may file a Petition for Review (PFR) of * * * * * standard that is being challenged and: the decision with the Deputy ■ (1) The business entity qualified as a 10. Amend § 134.804 by: Administrator (or IG for disputes by OIG ■ a. Revising paragraphs (a)(1), (2), and small business concern before the size employees) for a final SBA Decision. standard was revised or modified; or (3); Only the Chief Human Capital Officer, ■ b. Adding the word ‘‘and’’ after the (2) The business entity qualifies as a General Counsel, or Counsel to the IG small business under the size standard semicolon in paragraph (a)(5); may file a PFR of an OHA decision; the ■ c. Removing paragraph (a)(6); as revised or modified. Employee may not. ■ d. Redesignating paragraph (a)(7) as (b) To file a PFR, the official must § 134.903 Commencement of cases. paragraph (a)(6); ■ e. Revising paragraph (b)(1); request a complete copy of the dispute (a) A Size Standard Petition must be ■ f. Removing paragraph (c); and file from the Assistant Administrator for filed at OHA not later than 30 calendar ■ g. Redesignating paragraphs (d) and OHA (AA/OHA) within five calendar days after the publication in the Federal (e) as paragraphs (c) and (d). days of receiving the decision. The AA/ Register of the final rule that revises, The revisions read as follows: OHA will provide a copy of the dispute modifies, or establishes the challenged file to the official, the Employee, and size standard. An untimely Size § 134.804 The appeal petition. the Employee’s representative within Standard Petition will be dismissed. (a) * * * five calendar days of the official’s (b) A Size Standard Petition filed in (1) The completed SBA Dispute Form; request. The official’s PFR is due no response to a notice of proposed (2) A copy of the Step One and Step later than 15 calendar days from the rulemaking is premature and will be Two decisions, if any; date the official receives the dispute file. dismissed.

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(c) A Size Standard Petition § 134.905 Notice and order. process employed by the Administrator challenging a size standard that has not Upon receipt of a Size Standard to revise, modify, or establish the size been revised, modified, or established Petition, OHA will assign the matter to standard was arbitrary, capricious, an through publication in the Federal a Judge in accordance with § 134.218. abuse of discretion, or otherwise not in Register will be dismissed. Unless it appears that the Size Standard accordance with the law. OHA will not Petition will be dismissed under adjudicate arguments that a different § 134.904 Requirements for the Size size standard should have been selected. Standard Petition. § 134.910, the presiding Judge will issue a notice and order initiating the The Petitioner bears the burden of proof. (a) Form. There is no required form publication required by § 121.102(f) of § 134.910 Dismissal. for a Size Standard Petition. However, it this chapter; specifying a date for the must include the following information: Office of Size Standards to transmit to The Judge must dismiss the Size (1) A copy of the final rule published OHA a copy of the administrative record Standard Petition if: in the Federal Register to revise, supporting the revision, modification, or (a) The Size Standard Petition does modify, or establish a size standard, or establishment of the challenged size not, on its face, allege specific facts that an electronic link to the final rule; standard(s); and establishing a date for if proven to be true, warrant remand of (2) A full and specific statement as to the close of record. Typically, the the size standard; which size standard(s) in the final rule administrative record will be due seven (b) The Petitioner is not adversely the Petitioner is challenging and why calendar days after issuance of the affected by the final rule revising, the process that was used to revise, notice and order, and the record will modifying, or establishing a size modify, or establish each challenged close 45 calendar days from the date of standard; (c) The Size Standard Petition is size standard is alleged to be arbitrary, OHA’s receipt of the Size Standard untimely or premature pursuant to capricious, an abuse of discretion, or Petition. otherwise not in accordance with the § 134.903 or is not otherwise filed in law, together with argument supporting § 134.906 Intervention. accordance with the requirements in such allegation; In accordance with § 134.210(b), subparts A and B of this part; or (3) A copy of any comments the interested persons with a direct stake in (d) The matter has been decided or is Petitioner submitted in response to the the outcome of the case may contact the subject of adjudication before a proposed notice of rulemaking that OHA to intervene in the proceeding and court of competent jurisdiction over pertained to the size standard(s) in obtain a copy of the Size Standard such matters. question, or a statement that no such Petition. In the event that the Size § 134.911 Response to the Size Standard comments were submitted; and Standard Petition contains confidential Petition. (4) The name, mailing address, information and the intervener is not a Although not required, any intervener telephone number, facsimile number, governmental entity, the Judge may may file and serve a response email address, and signature of the require that the intervener’s attorney be supporting or opposing the Size Petitioner or its attorney. admitted to a protective order before Standard Petition at any time prior to (b) Multiple size standards. A obtaining a complete copy of the Size the close of record. SBA may intervene Petitioner may challenge multiple size Standard Petition. as of right at any time in any case until standards that were revised, modified, § 134.907 Filing and service. 15 days after the close of record, or the or established in the same final rule in issuance of a decision, whichever comes a single Size Standard Petition, The provisions of § 134.204 apply to the filing and service of all pleadings first. The response must present provided that the Petitioner argument. demonstrates standing for each of the and other submissions permitted under challenged size standards. this subpart unless otherwise indicated § 134.912 Discovery and oral hearings. (c) Format. The formatting provisions in this subpart. Discovery will not be permitted. Oral of § 134.203(d) apply to Size Standard § 134.908 The administrative record. hearings will not be held unless the Judge determines that the dispute Petitions. The Office of Size Standards will cannot be resolved except by the taking (d) Service. In addition to filing the transmit to OHA a copy of the of live testimony and the confrontation Size Standard Petition at OHA, the documentation and analysis supporting of witnesses. Petitioner must serve a copy of the Size the revision, modification, or Standard Petition upon each of the establishment of the challenged size § 134.913 New evidence. following: standard by the date specified in the Disputes under this subpart ordinarily (1) SBA’s Office of Size Standards, notice and order. The Chief, Office of U.S. Small Business Administration, will be decided based on the pleadings Size Standards, will certify and and the administrative record. The 409 3rd Street SW., Washington, DC authenticate that the administrative 20416; facsimile number (202) 205– Judge may admit additional evidence record, to the best of his or her upon a motion establishing good cause. 6390; or [email protected]; and knowledge, is complete and correct. The (2) SBA’s Office of General Counsel, Petitioner and any interveners may, § 134.914 The decision. Associate General Counsel for upon request, review the administrative The Judge will issue his or her Procurement Law, U.S. Small Business record submitted to OHA. The decision within 45 calendar days after Administration, 409 3rd Street SW., administrative record will include the close of record, as practicable. The Washington, DC 20416; facsimile documentation and analysis supporting Judge’s decision is final and will not be number (202) 205–6873; or the revision, modification, or reconsidered. [email protected]. establishment of the challenged size (e) Certificate of service. The standard. § 134.915 Remand. Petitioner must attach to the Size If OHA grants a Size Standard Standard Petition a signed certificate of § 134.909 Standard of review. Petition, OHA will remand the matter to service meeting the requirements of The standard of review for deciding a the Office of Size Standards for further § 134.204(d). Size Standard Petition is whether the analysis. Once remanded, OHA no

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longer has jurisdiction over the matter DEPARTMENT OF TRANSPORTATION The Innovative Solutions & Support, unless a new Size Standard Petition is Inc., modification installs an autothrust filed as a result of a new final rule Federal Aviation Administration system in the PC–12, PC–12/45, and published in the Federal Register. PC–12/47 airplanes to reduce pilot 14 CFR Part 23 workload. The autothrust system is § 134.916 Effects of OHA’s decision. [Docket No. FAA–2017–0290; Special useable in all phases of flight from 400 (a) If OHA grants a Size Standard Conditions No. 23–281–SC] feet AGL after takeoff down to the Petition of a modified or revised size decision height on approach. The standard, SBA will take appropriate Special Conditions: Pilatus Aircraft system includes a torque and airspeed action to rescind that size standard and Limited Models PC–12, PC–12/45, PC– mode along with monitors to prevent 12/47; Autothrust System the system from exceeding critical to restore the one that was in effect engine or airspeed limits. A stepper before the one challenged in the Size AGENCY: Federal Aviation motor provides throttle movement by Standard Petition. The restored size Administration (FAA), DOT. acting through a linear actuator, which standard will remain in effect until SBA ACTION: Final special condition. acts as a link between the stepper motor issues a new size standard. The OHA and throttle. The pilot can override the SUMMARY: This special condition is for decision does not affect the validity of linear actuator by moving the throttle, the Pilatus Aircraft Limited PC–12, PC– a concern’s size representation made which automatically disengages the 12/45, and PC–12/47 airplanes. These under the challenged size standard prior autothrust system upon disagreement in airplanes, as modified by Innovative to the effective date of the SBA action the expected throttle position versus the Solutions & Support, Inc., will have a rescinding that challenged size actual position. standard. Such a concern remains novel or unusual design feature eligible for award as a small business, associated with the use of an autothrust Type Certification Basis and the procuring agency may count the system. The applicable airworthiness Under the provisions of 14 CFR regulations do not contain adequate or award towards its small business goals. 21.101, Innovative Solutions & Support appropriate safety standards for this If the procuring agency amends the must show that the PC–12, PC–12/45, design feature. This special condition solicitation and requires new self- and PC–12/47 airplanes, as changed, contains the additional safety standards certifications, those self-certifications continues to meet the applicable the Administrator considers necessary provisions of the regulations will be based on the size standard in to establish a level of safety equivalent effect on the day those self-certifications incorporated by reference in Type to that established by the existing Certificate No. A78EU. The regulations are made. If the size standard in airworthiness standards. question was newly established, the incorporated by reference in the type DATES: This special condition is challenged size standard remains in certificate are commonly referred to as effective June 2, 2017 and is applicable the ‘‘original type certification basis.’’ effect while SBA conducts its further beginning May 24, 2017. The regulations incorporated by analysis on remand. FOR FURTHER INFORMATION CONTACT: Jeff reference in A78EU are as follows: 14 (b) If OHA denies a Size Standard Pretz, Federal Aviation Administration, CFR part 23, amendments 23–1 through Petition, the size standard remains as Small Airplane Directorate, Aircraft 23–42.1 published in the Code of Federal Certification Service, 901 Locust, Room If the Administrator finds the Regulations. 301, Kansas City, MO 64106; telephone applicable airworthiness regulations (816) 329–3239; facsimile (816) 329– (i.e., 14 CFR part 23) do not contain § 134.917 Equal Access to Justice Act. 4090. adequate or appropriate safety standards A prevailing Petitioner is not entitled SUPPLEMENTARY INFORMATION: for the PC–12, PC–12/45, and PC–12/47 to recover attorney’s fees. Size Standard airplanes because of a novel or unusual Petitions are not proceedings that are Background design feature(s), special conditions are required to be conducted by an On April 4, 2016, Innovative prescribed under the provisions of Administrative Law Judge under Solutions & Support applied for a § 21.16. § 134.603. supplemental type certificate for In addition to the applicable installation of an autothrust system in airworthiness regulations and special § 134.918 Judicial review. the PC–12, PC–12/45, and PC–12/47 conditions, the PC–12, PC–12/45, and PC–12/47 airplanes must comply with The publication of a final rule in the airplanes. The autothrust system is the fuel vent and exhaust emission Federal Register is considered the final capable of setting forward thrust based on operation in either a pilot selectable requirements of 14 CFR part 34 and the agency action for purposes of seeking noise certification requirements of 14 judicial review. torque or airspeed mode. Operation is limited to use only when above 400 feet CFR part 36. Dated: May 11, 2017. above ground level (AGL) after takeoff, The FAA issues special conditions, as Linda E. McMahon, and requires disengagement at decision defined in 14 CFR 11.19, in accordance Administrator. height (DH) or minimum decision with § 11.38 and they become part of the altitude (MDA) on approach. The PC– type certification basis under § 21.101. [FR Doc. 2017–10471 Filed 6–1–17; 8:45 am] Special conditions are initially BILLING CODE 8025–01–P 12, PC–12/45, and PC–12/47 airplanes are nine-passenger, two-crewmember, applicable to the model for which they single-engine turbo-propeller airplanes are issued. Should the applicant apply with a 30,000-foot service ceiling and a for a supplemental type certificate to maximum takeoff weight of 9,039 to modify any other model included on the 10,450 pounds—depending on airplane 1 See Type Certification Data Sheet A78EU, model. These airplanes are powered by revision 25, ‘‘Certification Basis’’ section for the a single Pratt & Whitney PT6A–67 PC–12, PC–12/45, and PC–12/47 full certification engine. basis. (http://rgl.faa.gov/.)

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same type certificate to incorporate the Under standard practice, the effective function of a flight guidance system may same novel or unusual design feature, date of final special conditions would not cause a transient response of the the FAA would apply these special be 30 days after the date of publication airplane’s flight path any greater than a conditions to the other model under in the Federal Register; however, as the minor transient. § 21.101. certification date for the STC for the (e) Under rare normal and non-normal Pilatus Aircraft, Ltd., PC–12, PC–12/45, conditions, disengagement of any Novel or Unusual Design Features and PC–12/47 airplanes is imminent, automatic control function of a flight The PC–12, PC–12/45, and PC–12/47 pursuant to 5 U.S.C. 553(d), the FAA guidance system may not result in a airplanes will incorporate the following finds that good cause exists to make this transient any greater than a significant novel or unusual design feature: special condition effective upon transient, as defined in paragraph (l)(2) Autothrust system issuance. of this special condition. Conclusion (f) The function and direction of Discussion motion of each command reference As discussed in the summary section, This action affects only certain novel control, such as heading select or this modification makes use of an or unusual design features on PC–12, vertical speed, must be plainly autothrust system, which is a novel PC–12/45, and PC–12/47 airplanes. It is indicated on—or adjacent to—each design for this type of airplane. The not a rule of general applicability and control if necessary to prevent applicable airworthiness regulations do affects only the applicant who applied inappropriate use or confusion. not contain adequate or appropriate to the FAA for approval of these features (g) Under any condition of flight safety standards for this design feature. on the airplane. appropriate to its use, the flight Mandating additional requirements— List of Subjects in 14 CFR Part 23 guidance system may not produce developed in part—by adapting relevant hazardous loads on the airplane, nor Aircraft, Aviation safety, Signs and create hazardous deviations in the flight portions of 14 CFR 25.1329, Flight symbols. guidance systems—applicable to path. This applies to both fault-free autothrust systems—along with FAA Citation operation and in the event of a malfunction, and assumes that the pilot experience with similar autothrust The authority citation for these begins corrective action within a systems, mitigates the concerns special conditions is as follows: associated with installation of the reasonable time. proposed autothrust system. Authority: 49 U.S.C. 106(f), 106(g); 40113 (h) When the flight guidance system and 44701; 14 CFR 21.16 and 21.101; and 14 is in use, a means must be provided to The FAA has previously issued this CFR 11.38 and 11.19. proposed special condition to part 23 avoid excursions beyond an acceptable turbojet airplanes, but not for turbo- The Special Condition margin from the speed range of the propeller airplanes. The PC–12, PC–12/ Accordingly, pursuant to the normal flight envelope. If the airplane 45, and PC–12/47 airplanes are unique authority delegated to me by the experiences an excursion outside this with respect to other turbo-propeller Administrator, the following special range, a means must be provided to designs in that the basic design does not condition is issued as part of the type prevent the flight guidance system from include a separate propeller control certification basis for Pilatus Aircraft providing guidance or control to an lever. Future use of these special Ltd., PC–12, PC–12/45, and PC–12/47 unsafe speed. conditions on other turbo-propeller airplanes modified by Innovative (i) The flight guidance system designs will require evaluation of the Solutions & Support, Inc. functions, controls, indications, and engine and propeller control system to alerts must be designed to minimize determine their appropriateness. 1. Autothrust System flightcrew errors and confusion In addition to the requirements of concerning the behavior and operation Discussion of Comments §§ 23.143, 23.1309, and 23.1329, the of the flight guidance system. A means Notice of proposed special conditions following apply: must be provided to indicate the current No. 23–17–01–SC for the Pilatus (a) Quick disengagement controls for mode of operation, including any armed Aircraft Limited PC–12, PC–12/45, and the autothrust function must be modes, transitions, and reversions. PC–12/47 airplanes was published in provided for each pilot. The autothrust Selector switch position is not an the Federal Register on April 14, 2017 quick disengagement controls must be acceptable means of indication. The (82 FR 17943).2 No comments were located on the thrust control levers. controls and indications must be received, and the special condition is Quick disengagement controls must be grouped and presented in a logical and adopted as proposed. readily accessible to each pilot while consistent manner. The indications operating the thrust control levers. must be visible to each pilot under all Applicability (b) The effects of a failure of the expected lighting conditions. As discussed above, this special system to disengage the autothrust (j) Following disengagement of the condition is applicable to the PC–12, function when manually commanded by autothrust function, a caution (visual PC–12/45, and PC–12/47 airplanes. the pilot must be assessed in accordance and auditory) must be provided to each Should Innovative Solutions & Support, with the requirements of § 23.1309. pilot. Ltd. apply at a later date for a (c) Engagement or switching of the (k) During autothrust operation, it supplemental type certificate to modify flight guidance system, a mode, or a must be possible for the flightcrew to any other model included on Type sensor may not cause the autothrust move the thrust levers without requiring Certificate No. A78EU to incorporate the system to affect a transient response that excessive force. The autothrust may not same novel or unusual design feature, alters the airplane’s flight path any create a potential hazard when the the FAA would apply these special greater than a minor transient, as flightcrew applies an override force to conditions to that model as well. defined in paragraph (l)(1) of this the thrust levers. special condition. (l) For purposes of this section, a 2 Refer to the U.S. Government Printing Office at (d) Under normal conditions, the transient is a disturbance in the control https://www.gpo.gov/. disengagement of any automatic control or flight path of the airplane that is not

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consistent with response to flightcrew longer take place in Sector Ohio Valley’s others. The current list under 33 CFR inputs or environmental conditions. AOR. When these special local 100.801 requires amending to provide (1) A minor transient would not regulations are enforced, certain new information on existing special significantly reduce safety margins and restrictions are placed on marine traffic local regulations, include new special would involve flightcrew actions that in specified areas. local regulations expected to recur are well within their capabilities. A DATES: This rule is effective June 2, annually or biannually, and to remove minor transient may involve a slight 2017. special local regulations that are no increase in flightcrew workload or some longer required. Issuing individual physical discomfort to passengers or ADDRESSES: To view documents regulations for each new special local cabin crew. mentioned in this preamble as being regulation, amendment, or removal of (2) A significant transient may lead to available in the docket, go to http:// an existing special local regulation a significant reduction in safety www.regulations.gov, type USCG–2017– creates unnecessary administrative costs margins, an increase in flightcrew 0010 in the ‘‘SEARCH’’ box and click and burdens. This rulemaking reduces workload, discomfort to the flightcrew, ‘‘SEARCH.’’ Click on Open Docket administrative overhead and provides or physical distress to the passengers or Folder on the line associated with this the public with notice through cabin crew, possibly including non-fatal rule. publication in the Federal Register of injuries. Significant transients do not FOR FURTHER INFORMATION CONTACT: If the upcoming recurring special local require—in order to remain within or you have questions on this rule, call or regulations. recover to the normal flight envelope— email Petty Officer James Robinson, IV. Discussion of Comments, Changes, any of the following: Sector Ohio Valley, U.S. Coast Guard; and the Rule (i) Exceptional piloting skill, telephone (502) 779–5347, email alertness, or strength. [email protected]. No comments were received. No (ii) Forces applied by the pilot which SUPPLEMENTARY INFORMATION: changes to the proposed rule have been are greater than those specified in made. I. Table of Abbreviations § 23.143(c). V. Regulatory Analyses (iii) Accelerations or attitudes in the CFR Code of Federal Regulations airplane that might result in further DHS Department of Homeland Security We developed this rule after hazard to secured or non-secured FR Federal Register considering numerous statutes and occupants. NPRM Notice of proposed rulemaking Executive orders related to rulemaking. § Section Below we summarize our analyses Issued in Kansas City, Missouri, on May U.S.C. United States Code based on a number of these statutes and 24, 2017. II. Background Information and Executive orders, and we discuss First Wes Ryan, Amendment rights of protestors. Acting Manager, Small Airplane Directorate, Regulatory History Aircraft Certification Service. The Captain of the Port (COTP) Ohio A. Regulatory Planning and Review [FR Doc. 2017–11347 Filed 6–1–17; 8:45 am] Valley is establishing, amending, and Executive Orders 12866 and 13563 BILLING CODE 4910–13–P updating its current list of recurring direct agencies to assess the costs and special local regulations codified under benefits of available regulatory 33 CFR 100.801 in Table no. 1, for the alternatives and, if regulation is DEPARTMENT OF HOMELAND COTP Ohio Valley zone. necessary, to select regulatory SECURITY On March 27, 2017, the Coast Guard approaches that maximize net benefits. published a notice of proposed Executive Order 13563 emphasizes the Coast Guard rulemaking (NPRM) titled Sector Ohio importance of quantifying both costs Valley Annual and Recurring Special and benefits, of reducing costs, of 33 CFR Part 100 Local Regulations Update (82 FR harmonizing rules, and of promoting [Docket Number USCG–2017–0010] 15174). During the comment period that flexibility. This rule has not been ended April 26, 2017, no comments designated a ‘‘significant regulatory RIN 1625–AA08 were received. action,’’ under Executive Order 12866. We are issuing this rule, and under 5 Accordingly, it has not been reviewed Special Local Regulations; Sector Ohio U.S.C. 553(d)(3), the Coast Guard finds by the Office of Management and Valley Annual and Recurring Special that good cause exists for making it Budget. Local Regulations Update effective less than 30 days after The Coast Guard expects the AGENCY: Coast Guard, DHS. publication in the Federal Register. It economic impact of this rule to be ACTION: Final rule. would be impracticable to provide a full minimal, and therefore a full regulatory 30-days notice because this rule must be evaluation is unnecessary. This rule SUMMARY: The Coast Guard is amending effective June 16, 2017. establishes special local regulations and updating its special local limiting access to certain areas under 33 regulations relating to recurring marine III. Legal Authority and Need for Rule CFR part 100 within Sector Ohio parades, regattas, and other events that The Coast Guard’s authority for Valley’s AOR. The effect of this take place in the Coast Guard Sector establishing a special local regulation is rulemaking will not be significant Ohio Valley area of responsibility contained at 33 U.S.C. 1233. The Coast because these special local regulations (AOR). This rule informs the public of Guard is amending and updating the are limited in scope and duration. regularly scheduled events that require special local regulations under 33 CFR Additionally, the public is given additional safety measures through the part 100 to include the most up to date advance notification through local forms establishing of a special local regulation. list of recurring special local regulations of notice, the Federal Register, and/or Through this rulemaking the current list for events held on or around navigable Notices of Enforcement and thus will be of recurring special local regulations is waters within the Sector Ohio Valley able to plan around the special local updated with revisions, additional AOR. These events include marine regulations in advance. Deviation from events, and removal of events that no parades, boat races, swim events, and the special local regulations established

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through this proposed rulemaking may Small businesses may send comments $100,000,000 (adjusted for inflation) or be requested from the appropriate COTP on the actions of Federal employees more in any one year. Though this rule and requests will be considered on a who enforce, or otherwise determine will not result in such an expenditure, case-by-case basis. Broadcast Notices to compliance with, Federal regulations to we do discuss the effects of this rule Mariners and Local Notices to Mariners the Small Business and Agriculture elsewhere in this preamble. will also inform the community of these Regulatory Enforcement Ombudsman F. Environment special local regulations so that they and the Regional Small Business may plan accordingly for these short Regulatory Fairness Boards. The We have analyzed this rule under restrictions on transit. Vessel traffic may Ombudsman evaluates these actions Department of Homeland Security request permission from the COTP Ohio annually and rates each agency’s Management Directive 023–01 and Valley or a designated representative to responsiveness to small business. If you Commandant Instruction M16475.lD, enter the restricted areas. wish to comment on actions by which guide the Coast Guard in employees of the Coast Guard, call 1– complying with the National B. Impact on Small Entities 888–REG–FAIR (1–888–734–3247). The Environmental Policy Act of 1969 (42 The Regulatory Flexibility Act of Coast Guard will not retaliate against U.S.C. 4321–4370f), and have 1980, 5 U.S.C. 601–612, as amended, small entities that question or complain determined that this action is one of a requires Federal agencies to consider about this rule or any policy or action category of actions that do not of the Coast Guard. the potential impact of regulations on individually or cumulatively have a small entities during rulemaking. The C. Collection of Information significant effect on the human term ‘‘small entities’’ comprises small environment. This rule involves the This rule will not call for a new establishment of special local businesses, not-for-profit organizations collection of information under the that are independently owned and regulations related to marine event Paperwork Reduction Act of 1995 (44 permits for marine parades, regattas, operated and are not dominant in their U.S.C. 3501–3520). fields, and governmental jurisdictions and other marine events. It is with populations of less than 50,000. D. Federalism and Indian Tribal categorically excluded from further The Coast Guard received 0 comments Governments review under paragraph 34(h) of Figure 2–1 of the Commandant Instruction. A from the Small Business Administration A rule has implications for federalism Record of Environmental Consideration on this rulemaking. The Coast Guard under Executive Order 13132, (REC) supporting this determination is certifies under 5 U.S.C. 605(b) that this Federalism, if it has a substantial direct available in the docket where indicated rule will not have a significant effect on the States, on the relationship economic impact on a substantial between the national government and in the ADDRESSES section of this number of small entities. the States, or on the distribution of preamble. This rule will affect the following power and responsibilities among the G. Protest Activities various levels of government. We have entities, some of which may be small The Coast Guard respects the First analyzed this rule under that Order and entities: The owners or operators of Amendment rights of protesters. have determined that it is consistent vessels intending to transit the special Protesters are asked to contact the with the fundamental federalism local regulation areas during periods of person listed in the FOR FURTHER principles and preemption requirements enforcement. The special local INFORMATION CONTACT section to regulations will not have a significant described in Executive Order 13132. Also, this rule does not have tribal coordinate protest activities so that your economic impact on a substantial message can be received without number of small entities because they implications under Executive Order 13175, Consultation and Coordination jeopardizing the safety or security of are limited in scope and will be in effect people, places or vessels. for short periods of time. Before the with Indian Tribal Governments, because it does not have a substantial enforcement period, the Coast Guard List of Subjects in 33 CFR Part 100 direct effect on one or more Indian COTP will issue maritime advisories tribes, on the relationship between the Marine safety, Navigation (water), widely available to waterway users. Federal Government and Indian tribes, Reporting and recordkeeping Deviation from the special local or on the distribution of power and requirements, and Waterways. regulations established through this responsibilities between the Federal For the reasons discussed in the rulemaking may be requested from the Government and Indian tribes. If you preamble, the U.S. Coast Guard amends appropriate COTP and requests will be believe this rule has implications for 33 CFR part 100 as follows: considered on a case-by-case basis. federalism or Indian tribes, please PART 100—SAFETY OF LIFE ON Under section 213(a) of the Small contact the person listed in the FOR NAVIGABLE WATERWAYS Business Regulatory Enforcement FURTHER INFORMATION CONTACT section. Fairness Act of 1996 (Pub. L. 104–121), ■ we want to assist small entities in E. Unfunded Mandates Reform Act 1. The authority citation for part 100 understanding this rule. If the rule The Unfunded Mandates Reform Act continues to read as follows: would affect your small business, of 1995 (2 U.S.C. 1531–1538) requires Authority: 33 U.S.C. 1233. organization, or governmental Federal agencies to assess the effects of ■ 2. In § 100.801, revise table 1 to read jurisdiction and you have questions their discretionary regulatory actions. In as follows: concerning its provisions or options for particular, the Act addresses actions compliance, please contact the person that may result in the expenditure by a § 100.801 Annual Marine Events in the listed in the FOR FURTHER INFORMATION State, local, or tribal government, in the Eighth Coast Guard District. CONTACT section. aggregate, or by the private sector of * * * * *

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TABLE 1 OF § 100.801—OHIO VALLEY CAPTAIN OF THE PORT ZONE ANNUAL AND RECURRING MARINE EVENTS

Date Event/sponsor Ohio Valley location Regulated area

1. The first Saturday in April ...... University of Charleston Rowing/ Charleston, WV...... Kanawha River, Mile 59.9–61.4 West Virginia Governor’s Cup Re- (West Virginia). gatta. 2. 1 day—During the last week of Kentucky Derby Festival/Belle of Louisville, KY ...... Ohio River, Mile 596.0–604.3 (Ken- April or first week of May. Louisville Operating Board/Great tucky). Steamboat Race. 3. 1 day—Third or fourth weekend in REV3/REV3 Triathlon ...... Knoxville, TN ...... Tennessee River, Mile 646.0–649.0 May. (Tennessee). 4. 1 day—Third weekend in May ...... World Triathlon Corporation/ Chattanooga, TN ...... Tennessee River, Mile 463.0–466.0 IRONMAN 70.3. (Tennessee). 5. 1 day—Second weekend in June Chattanooga Parks and Rec/Chat- Chattanooga, TN ...... Tennessee River, Mile 464.0–469.0 tanooga River Rats Open Water (Tennessee). Swim. 6. 1 day—Third or fourth weekend in Greater Morgantown Convention Morgantown, WV...... Monongahela River, Mile 101.0– June. and Visitors Bureau/Mountaineer 102.0 (West Virginia). Triathlon. 7. 2 days—First weekend of June .... Kentucky Drag Boat Association ..... Pisgah Bay, KY ...... Tennessee River, Mile 30.0 (Ken- tucky). 8. 1 day—One of the first two week- Green Umbrella/Ohio River Cincinnati, OH ...... Ohio River, Mile 459.5–470.2 (Ohio ends in August. Paddlefest. and Kentucky). 9. 1 day—Fourth or fifth Sunday in Green Umbrella/Great Ohio River Cincinnati, OH ...... Ohio River, Mile 469.8–470.2 (Ohio September. Swim. and Kentucky). 10. 1 day—One of the last two Ohio River Open Water Swim ...... Prospect, KY ...... Ohio River, Mile 588.0–590.0 9 weekends in September. (Kentucky). 11. 2 days—Second or third week- Louisville Dragon Boat Festival ...... Louisville, KY ...... Ohio River, Mile 603.0–603.5 (Ken- end in September. tucky). 12. 1 day—Third or fourth Sunday of Tucson Racing/Cincinnati Triathlon Cincinnati, OH ...... Ohio River, Mile 469.3–470.2 July. (Ohio). 13. 2 days—First weekend of July ... Kentucky Drag Boat Association ..... Pisgah Bay, KY ...... Tennessee River, Mile 30.0 (Ken- tucky). 14. 1 day—Second weekend in July Bradley Dean/Renaissance Man Florence, AL ...... Tennessee River, Mile 255.0–257.0 Triathlon. (Alabama). 15. 3 days—One of the first two Madison Regatta, Inc./Madison Re- Madison, IN ...... Ohio River, Mile 555.0–560.0 (Indi- weekends in July. gatta. ana). 16. 1 day—One of the last three Louisville Race the Bridge Triathlon Louisville, KY ...... Ohio River, Mile 601.5–603.0 (Ken- weekends in June. tucky). 17. 1 day—Fourth weekend in June Team Magic/Chattanooga Water- Chattanooga, TN ...... Tennessee River, Mile 463.0–465.0 front Triathlon. (Tennessee). 18. 1 day—Fourth weekend in July .. Team Magic/Music City Triathlon .... Nashville, TN ...... Cumberland River, Mile 190.0– 192.0 (Tennessee). 19. 2 days—Last two weeks in July Friends of the Riverfront Inc./Pitts- Pittsburgh, PA...... Allegheny River, Mile 0.0–1.5 or first three weeks of August. burgh Triathlon and Adventure (Pennsylvania). Races. 20. 3 days—First week of August .... EQT Pittsburgh Three Rivers Re- Pittsburgh, PA ...... Ohio River, Mile 0.0–0.5, Allegheny gatta. River, Mile 0.0–0.6, and Monongahela River, Mile 0.0–0.5 (Pennsylvania). 21. 2 days—First weekend of August Kentucky Drag Boat Association ..... Pisgah Bay, KY ...... Tennessee River, Mile 30.0 (Ken- tucky). 22. 2 days—One of the last two Captain Quarters Regatta ...... Louisville, KY ...... Ohio River, Mile 595.0–597.0 (Ken- weekends in September. tucky). 23. 2 days—Second or third week- Norton Healthcare/Ironman Triathlon Louisville, KY ...... Ohio River, Mile 601.5–604.5 (Ken- end in October. tucky). 24. 2 days—Third full weekend (Sat- Ohio County Tourism/Rising Sun Rising Sun, IN ...... Ohio River, Mile 504.0–508.0 (Indi- urday and Sunday) in August. Boat Races. ana and Kentucky). 25. 1 day—Last weekend in August Tennessee Clean Water Network/ Knoxville, TN ...... Tennessee River, Mile 647.0–649.0 Downtown Dragon Boat Races. (Tennessee). 26. 3 days—Third weekend in Au- Governors’ Cup/UWP–IJSBA Na- Charleston, WV...... Kanawha River, Mile 56.7–57.6 gust. tional Championships. (West Virginia). 27. 2 days—Fourth weekend in July Herd Racing LLC/Huntington Classic Huntington, WV ...... Ohio River, Mile 307.3–309.3 (West Virginia). 28. 2 days—Labor Day weekend ..... Wheeling Vintage Race Boat Asso- Wheeling, WV ...... Ohio River, Mile 090.4–091.5 (West ciation Ohio/Wheeling Vintage Virginia). Regatta. 29. 2 days—Weekend before Labor SUP3Rivers The Southside Outside Pittsburgh, PA ...... Monongahela River, Mile 0.0–3.09 Day. Allegheny River Mile 0.0–0.25 (Pennsylvania). 30. 1 day—Saturday before Labor Wheeling Dragon Boat Race ...... Wheeling, WV ...... Ohio River, Mile 90.4–91.5 (West Day. Virginia). 31. 1 day—First or second weekend Cumberland River Compact/Cum- Nashville, TN...... Cumberland River, Mile 190.0– in September. berland River Dragon Boat Fes- 192.0 (Tennessee). tival.

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TABLE 1 OF § 100.801—OHIO VALLEY CAPTAIN OF THE PORT ZONE ANNUAL AND RECURRING MARINE EVENTS— Continued

Date Event/sponsor Ohio Valley location Regulated area

32. 2 days—First or second week- State Dock/Cumberland Poker Run Jamestown, KY ...... Lake Cumberland (Kentucky). end in September. 33. 3 days—First or second week- Sailing for a Cure Foundation/SFAC Louisville, KY ...... Ohio River, Mile 601.0–604.0 (Ken- end in September. Fleur de Lis Regatta. tucky). 34. 1 day—Last weekend in Sep- World Triathlon Corporation/ Chattanooga, TN ...... Tennessee River, Mile 463.0–467.0 tember. IRONMAN Chattanooga. (Tennessee). 35. 1 day—Second weekend in Sep- City of Clarksville/Clarksville Clarksville, TN...... Cumberland River, Mile 125.0– tember. Riverfest Cardboard Boat Regatta. 126.0 (Tennessee). 36. 2 days—First weekend of Octo- Three Rivers Rowing Association/ Pittsburgh, PA...... Allegheny River, Mile 0.0–4.0 ber. Head of the Ohio Regatta. (Pennsylvania). 37. 1 day—First or second weekend Lookout Rowing Club/Chattanooga Chattanooga, TN ...... Tennessee River, Mile 464.0–467.0 in October. Head Race. (Tennessee). 38. 1 day—Third weekend in No- TREC–RACE/Pangorge ...... Chattanooga, TN ...... Tennessee River, Mile 444.0–455.0 vember. (Tennessee). 39. 3 days—First weekend in No- Atlanta Rowing Club/Head of the Chattanooga, TN ...... Tennessee River, Mile 464.0–467.0 vember. Hooch Rowing Regatta. (Tennessee). 40. One Saturday in June or July ..... Paducah Summer Festival/Cross Paducah, KY...... Ohio River, Mile 934–936 (Ken- River Swim. tucky). 41. 1 day—During the last weekend Louisville Metro Government/May- Louisville, KY ...... Ohio River, Mile 602.0–603.5 (Ken- in May. or’s Healthy Hometown Subway tucky). Fresh Fit, Hike, Bike and Paddle. 42. 3 days—One of the last three Hadi Shrine/Evansville Shriners Evansville, IN ...... Ohio River, Mile 791.0–795.0 (Indi- weekends in June. Festival. ana). 43. 1 day—Second or third Saturday Allegheny Mountain LMSC/Search Pittsburgh, PA...... Allegheny River, Mile 0.0–0.6 in July. for Monongy. (Pennsylvania). 44. 1 day—During the first week of Evansville Freedom Celebration/4th Evansville, IN ...... Ohio River, Mile 791.0–796.0 (Indi- July. of July Freedom Celebration. ana). 45. 1 day—First weekend in Sep- Louisville Metro Government/May- Louisville, KY ...... Ohio River, Mile 602.0–603.5 (Ken- tember. or’s Healthy Hometown Subway tucky). Fresh Fit, Hike, Bike and Paddle. 46. 2 days—One of the last three Dare to Care/KFC Mayor’s Cup Louisville, KY ...... Ohio River, Mile 601.0–604.0 (Ken- weekends in July. Paddle Sports Races/Voyageur tucky). Canoe World Championships. 47. 3 days—Fourth weekend in Au- Kentucky Drag Boat Association/ Livermore, KY ...... Green River, Mile 70.0–71.5 (Ken- gust. Thunder on the Green. tucky). 48. 1 day—Fourth weekend in Au- Team Rocket Tri-Club/Rocketman Huntsville, AL ...... Tennessee River, Mile 333.0–334.5 gust. Triathlon. (Alabama). 49. 3 days—One of the last three Hadi Shrine/Owensboro Air Show ... Owensboro, KY ...... Ohio River, Mile 755.0–759.0 (Ken- weekends in September or first tucky). weekend in October. 50. 1 day—First Sunday in August ... HealthyHuntington.org/St. Marys Tri- Huntington, WV ...... Ohio River, Mile 307.3–308.3 (West state Triathlon. Virginia). 51. 2 days—First Weekend in Au- Buckeye Outboard Association/ Portsmouth, OH...... Ohio River, Mile 355.3–356.7 gust. Portsmouth Challenge. (Ohio). 52. 1 day—Sunday before Labor Cincinnati Bell, WEBN, and Proctor Cincinnati, OH ...... Ohio River, Mile 464.0–476.0 (Ken- Day. and Gamble/Riverfest. tucky and Ohio) and Licking River Mile 0.0–3.0 (Kentucky). 53. Second Sunday in September .... Ohio River Sternwheel Festival Marietta, OH...... Ohio River, Mile 170.5–172.5 Committee Sternwheel race reen- (Ohio). actment. 54. Second Saturday in September Parkesburg Paddle Fest ...... Parkersburg, WV ...... Ohio River, Mile 184.3–188 (West Virginia). 55. Three days during the fourth New Martinsville Records and Re- New Martinsville, WV ...... Ohio River, Mile 128–129 (West Vir- weekend in September. gatta Challenge Committee. ginia). 56. First weekend in July ...... Eddyville Creek Marina/Thunder Eddyville, KY ...... Cumberland River, Mile 46.0–47.0 Over Eddy Bay. (Kentucky). 57. First or second weekend of July Prizer Point Marina/4th of July Cele- Cadiz, KY ...... Cumberland River, Mile 54.0–55.09 bration. (Kentucky). 58. 2 days—Last weekend in May or Visit Knoxville/Racing on the Ten- Knoxville, TN ...... Tennessee River, Mile 647.0–648.0 first weekend in June. nessee. (Tennessee). 59. 1 day—First or second weekend Riverbluff Triathlon ...... Ashland City, TN ...... Cumberland River, Mile 157.0– in August. 159.0 (Tennessee). 60. 2 days—First weekend in August POWERBOAT NATIONALS— Ravenswood, WV ...... Ohio River, Mile 220.5–221.5 (West Ravenswood Regatta. Virginia). 61. 3 days—One of the last three Lawrenceburg Regatta/Whiskey City Lawrenceburg, IN ...... Ohio River, Mile 492.0–496.0 (Indi- weekends in June. Regatta. ana). 62. 2 days—One of the last three Madison Vintage Thunder ...... Madison, IN ...... Ohio River, Mile 557.5–558.5 (Indi- weekends in September. ana). 63. 1 day—Fourth weekend in Octo- Chattajack ...... Chattanooga, TN ...... Tennessee River, Mile 463.7–464.5 ber. (Tennessee).

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TABLE 1 OF § 100.801—OHIO VALLEY CAPTAIN OF THE PORT ZONE ANNUAL AND RECURRING MARINE EVENTS— Continued

Date Event/sponsor Ohio Valley location Regulated area

64. 1 day—Third weekend in March Vanderbilt Invite ...... Nashville, TN ...... Cumberland River, Mile 189.0– 192.0 (Tennessee). 65. 2 days—Last weekend in Sep- Music City Head Race ...... Nashville, TN ...... Cumberland River, Mile 190.5– tember. 195.0 (Tennessee). 66. 1 day—Last weekend in July ..... Music City SUP Race ...... Nashville, TN ...... Cumberland River, Mile 190.0– 191.5 (Tennessee). 67. 3 days—Third weekend in June Thunder on the Cumberland ...... Nashville, TN ...... Cumberland River, Mile 190.5– 194.0 (Tennessee). 68. 3 days—Second weekend in ACRA Henley...... Nashville, TN...... Cumberland River, Mile 189.0– May. 193.0 (Tennessee). 69. 2 days—Third weekend in Au- Kittanning Riverbration Boat Races Kittanning, PA ...... Allegheny River, Mile 44.0–45.5 gust. (Pennsylvania). 70. 2 days—Third Friday and Satur- Thunder Over Louisville ...... Louisville, KY ...... Ohio River, Mile 598.0–603.0 (Ken- day in April. tucky). 71. 3 days—One of the first two Evansville HydroFest ...... Evansville, IN ...... Ohio River, Mile 791.8.0–793.0. weekends in September.

* * * * * ‘‘SEARCH.’’ Click on Open Docket vessels from the hazards associated with Dated: 25 May 2017. Folder on the line associated with this this event. rule. M.B. Zamperini, III. Legal Authority and Need for Rule FOR FURTHER INFORMATION CONTACT: If Captain, U.S. Coast Guard, Captain of the The Coast Guard is issuing this rule Port Ohio Valley. you have questions on this temporary rule, call or email Tracy Girard, under authority in 33 U.S.C. 1231. The [FR Doc. 2017–11473 Filed 6–1–17; 8:45 am] Captain of the Port Detroit (COTP) has BILLING CODE 9110–04–P Prevention Department, Sector Detroit, Coast Guard; telephone 313–568–9564, determined that potential hazard or email [email protected]. associated with fireworks from 10:15 p.m. to 10:45 p.m. on July 7 and from DEPARTMENT OF HOMELAND SUPPLEMENTARY INFORMATION: SECURITY 10:15 p.m. to 10:45 p.m. on July 8, 2017 I. Table of Abbreviations will be a safety concern to anyone Coast Guard CFR Code of Federal Regulations within a 600-foot radius of the launch DHS Department of Homeland Security site. This rule is needed to protect 33 CFR Part 165 FR Federal Register personnel, vessels, and the marine NPRM Notice of Proposed Rulemaking environment in the navigable waters [Docket No. USCG–2017–0349] § Section within the safety zone while the RIN 1625–AA00 U.S.C. United States Code fireworks are being displayed. II. Background Information and Safety Zone; Detroit Symphony IV. Discussion of the Rule Regulatory History Orchestra Fireworks, Lake St. Clair, This rule establishes a safety zone Grosse Pointe Shores, MI The Coast Guard is issuing this from 10:15 p.m. through 10:45 p.m. on temporary rule without prior notice and July 7 and July 8, 2017. The safety zone AGENCY: Coast Guard, DHS. opportunity to comment pursuant to will encompass all U.S. navigable ACTION: Temporary final rule. authority under section 4(a) of the waters of Lake St. Clair, Grosse Point SUMMARY: The Coast Guard is Administrative Procedure Act (APA) (5 Shores, MI, within a 600-foot radius of establishing a temporary safety zone for U.S.C. 553(b)). This provision position 42°27.25′ N., 082°51.8′ W. navigable waters within a 600-foot authorizes an agency to issue a rule (NAD 83). No vessel or person will be radius of a portion of Lake St. Clair, without prior notice and opportunity to permitted to enter the safety zone Grosse Point, MI. This zone is necessary comment when the agency for good without obtaining permission from the to protect spectators and vessels from cause finds that those procedures are COTP or a designated representative. ‘‘impracticable, unnecessary, or contrary potential hazards associated with the V. Regulatory Analyses Detroit Symphony Orchestra Fireworks. to the public interest.’’ Under 5 U.S.C. Entry of vessels or persons into this 553(b)(B), the Coast Guard finds that We developed this rule after zone is prohibited unless specifically good cause exists for not publishing a considering numerous statutes and authorized by the Captain of the Port notice of proposed rulemaking (NPRM) executive orders related to rulemaking. Detroit. with respect to this rule because doing Below we summarize our analyses so would be impracticable. The Coast based on these statutes and executive DATES: This temporary final rule is Guard did not receive the final details orders. effective from 10:15 p.m. on July 7, of this fireworks display until there was 2017, through 10:45 p.m. on July 8, insufficient time remaining before the A. Regulatory Planning and Review 2017. event to publish an NPRM. Thus, Executive Orders 12866 and 13563 ADDRESSES: To view documents delaying the effective date of this rule to direct agencies to assess the costs and mentioned in this preamble as being wait for a comment period to run would benefits of available regulatory available in the docket, go to http:// be impracticable because it would alternatives and, if regulation is www.regulations.gov, type USCG–2017– inhibit the Coast Guard’s ability to necessary, to select regulatory 0349 in the ‘‘SEARCH’’ box and click protect participants, mariners and approaches that maximize net benefits.

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Executive Order 13563 emphasizes the we want to assist small entities in Federal agencies to assess the effects of importance of quantifying both costs understanding this rule. If the rule their discretionary regulatory actions. In and benefits, of reducing costs, of would affect your small business, particular, the Act addresses actions harmonizing rules, and of promoting organization, or governmental that may result in the expenditure by a flexibility. Executive Order 13771 jurisdiction and you have questions State, local, or tribal government, in the (‘‘Reducing Regulation and Controlling concerning its provisions or options for aggregate, or by the private sector of Regulatory Costs’’), directs agencies to compliance, please contact the person $100,000,000 (adjusted for inflation) or reduce regulation and control regulatory listed in the FOR FURTHER INFORMATION more in any one year. Though this rule costs and provides that ‘‘for every one CONTACT section. will not result in such an expenditure, new regulation issued, at least two prior Small businesses may send comments we do discuss the effects of this rule regulations be identified for elimination, on the actions of Federal employees elsewhere in this preamble. and that the cost of planned regulations who enforce, or otherwise determine be prudently managed and controlled compliance with, Federal regulations to F. Environment through a budgeting process.’’ This rule the Small Business and Agriculture We have analyzed this rule under has not been designated a ‘‘significant Regulatory Enforcement Ombudsman Department of Homeland Security regulatory action,’’ under Executive and the Regional Small Business Management Directive 023–01 and Order 12866. Accordingly, it has not Regulatory Fairness Boards. The Commandant Instruction M16475.lD, been reviewed by the Office of Ombudsman evaluates these actions which guide the Coast Guard in Management and Budget. annually and rates each agency’s complying with the National As this rule is not a significant responsiveness to small business. If you Environmental Policy Act of 1969 (42 regulatory action, this rule is exempt wish to comment on actions by U.S.C. 4321–4370f), and have from the requirements of Executive employees of the Coast Guard, call 1– determined that this action is one of a Order 13771. See OMB’s Memorandum 888–REG–FAIR (1–888–734–3247). The category of actions that do not titled ‘‘Interim Guidance Implementing Coast Guard will not retaliate against individually or cumulatively have a Section 2 of the Executive Order of small entities that question or complain significant effect on the human January 30, 2017 titled ‘Reducing about this rule or any policy or action environment. This rule involves a safety Regulation and Controlling Regulatory of the Coast Guard. zone lasting less than thirty minutes Costs’ ’’ (February 2, 2017). C. Collection of Information that will prohibit entry within 600-feet This regulatory action determination firework launch site. It is categorically is based on the size, location, duration, This rule will not call for a new excluded under section 2.B.2, figure 2– and time-of-year of the safety zone. collection of information under the 1, paragraph 34(g) of the Commandant Vessel traffic will be able to safely Paperwork Reduction Act of 1995 (44 Instruction. A Record of Environmental transit around this safety zone which U.S.C. 3501–3520). Consideration (REC) supporting this will impact a small designated area of determination is available in the docket Lake St. Clair from 10:15 p.m. to 10:45 D. Federalism and Indian Tribal Governments where indicated in the ADDRESSES p.m. on July 7 and from 10:15 p.m. to section of this preamble. 10:45 p.m. on July 8, 2017. Moreover, A rule has implications for federalism the Coast Guard will issue Broadcast under Executive Order 13132, G. Protest Activities Notice to Mariners via VHF–FM marine Federalism, if it has a substantial direct The Coast Guard respects the First channel 16 about the zone and the rule effect on the States, on the relationship Amendment rights of protesters. allows vessels to seek permission to between the national government and Protesters are asked to contact the the States, or on the distribution of enter the zone. person listed in the FOR FURTHER power and responsibilities among the B. Impact on Small Entities INFORMATION CONTACT section to various levels of government. We have coordinate protest activities so that your The Regulatory Flexibility Act of analyzed this rule under that Order and message can be received without 1980, 5 U.S.C. 601–612, as amended, have determined that it is consistent jeopardizing the safety or security of requires Federal agencies to consider with the fundamental federalism people, places or vessels. the potential impact of regulations on principles and preemption requirements small entities during rulemaking. The described in Executive Order 13132. List of Subjects in 33 CFR Part 165 term ‘‘small entities’’ comprises small Also, this rule does not have tribal Harbors, Marine safety, Navigation businesses, not-for-profit organizations implications under Executive Order (water), Reporting and recordkeeping that are independently owned and 13175, Consultation and Coordination requirements, Security measures, operated and are not dominant in their with Indian Tribal Governments, Waterways. fields, and governmental jurisdictions because it does not have a substantial with populations of less than 50,000. direct effect on one or more Indian For the reasons discussed in the The Coast Guard certifies under 5 U.S.C. tribes, on the relationship between the preamble, the Coast Guard amends 33 605(b) that this rule will not have a Federal Government and Indian tribes, CFR part 165 as follows: significant economic impact on a or on the distribution of power and PART 165—REGULATED NAVIGATION substantial number of small entities. responsibilities between the Federal AREAS AND LIMITED ACCESS AREAS While some owners or operators of Government and Indian tribes. If you vessels intending to transit the safety believe this rule has implications for ■ 1. The authority citation for part 165 zone may be small entities, for the federalism or Indian tribes, please continues to read as follows: reasons stated in section V.A above, this contact the person listed in the FOR rule will not have a significant FURTHER INFORMATION CONTACT section Authority: 33 U.S.C. 1231; 50 U.S.C. 191; economic impact on any vessel owner above. 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; or operator. Department of Homeland Security Delegation Under section 213(a) of the Small E. Unfunded Mandates Reform Act No. 0170.1. Business Regulatory Enforcement The Unfunded Mandates Reform Act ■ 2. Add § 165.T09–0349 to read as Fairness Act of 1996 (Pub. L. 104–121), of 1995 (2 U.S.C. 1531–1538) requires follows:

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§ 165.T09–0349 Safety Zone; Detroit navigable waters of the Brooklyn half of let a comment period run. It would be Symphony Orchestra Fireworks, Lake St. the East River, south of Dupont Street in impracticable and contrary to the public Clair; Grosse Pointe Shores, MI. Greenpoint, Brooklyn and East 25th interest because waiting for a comment (a) Location. A safety zone is Street in Manhattan, and Buttermilk period to run would inhibit the Coast established to include all U.S. navigable Channel, north of the Buttermilk Guard’s response to protecting the waters of Lake St. Clair, Grosse Pointe Channel Entrance Lighted Gong Buoy 1 environment and public from the Shores, MI, within a 600-foot radius of (LLNR 36985). The safety zone is dangers associated with a maritime position 42°27.25′ N., 082°51.8′ W. needed to protect personnel, vessels, pollution response and shoreside repair (NAD 83). and the marine environment from efforts. (b) Enforcement period. The regulated potential hazards associated with a We are issuing this rule, and under 5 area described in paragraph (a) will be dielectric oil spill response and U.S.C. 553(d)(3), the Coast Guard finds enforced from 10:15 p.m. through 10:45 shoreside repair operations. Entry of that good cause exists for making it p.m. on July 7 and from 10:15 p.m. vessels or persons into this zone is effective less than 30 days after through 10:45 p.m. on July 8, 2017. prohibited unless specifically publication in the Federal Register. (c) Regulations. (1) No vessel or authorized by the Captain of the Port Delaying the effective date of this rule person may enter, transit through, or New York. would be impracticable and contrary to anchor within the safety zone unless DATES: This rule is effective without public interest for the same reasons authorized by the Captain of the Port actual notice from June 2, 2017 through discussed in the preceding paragraph. Detroit, or his on-scene representative. 5 p.m. on July 14, 2017. For the III. Legal Authority and Need for Rule (2) The safety zone is closed to all purposes of enforcement, actual notice vessel traffic, except as may be will be used from 4 p.m. on May 8, 2017 The Coast Guard is issuing this rule permitted by the Captain of the Port June 2, 2017. under authority in 33 U.S.C. 1231. The Detroit or his on-scene representative. COTP has determined that the ADDRESSES: To view documents emergency pollution response activities (3) The ‘‘on-scene representative’’ of mentioned in this preamble as being pose hazards to the boating public the Captain of the Port Detroit is any available in the docket, go to http:// within the Brooklyn, NY half of the East Coast Guard commissioned, warrant or www.regulations.gov, type USCG–2017– River and Buttermilk Channel. The petty officer or a Federal, State, or local 0401 in the ‘‘SEARCH’’ box and click COTP has determined that this rule is law enforcement officer designated by ‘‘SEARCH.’’ Click on Open Docket necessary to protect the public from or assisting the Captain of the Port Folder on the line associated with this these hazards. Detroit to act on his behalf. rule. (4) Vessel operators shall contact the FOR FURTHER INFORMATION CONTACT: IV. Discussion of the Rule Captain of the Port Detroit or his on- If scene representative to obtain you have questions on this rule, call or This rule establishes a safety zone permission to enter or operate within email Mr. Jeff Yunker, Sector New York from 4 p.m. on May 8, 2017 through 5 the safety zone. The Captain of the Port Waterways Management Division; p.m. on July 14, 2017. The safety zone Detroit or his on-scene representative telephone 718–354–4195, email will cover all navigable waters of the may be contacted via VHF Channel 16 [email protected]. Brooklyn, NY half of the East River and or at 313—568–9464. Vessel operators SUPPLEMENTARY INFORMATION: Buttermilk Channel. The duration of the given permission to enter or operate in I. Table of Abbreviations zone is intended to protect personnel, the regulated area must comply with all vessels, and the marine environment in directions given to them by the Captain CFR Code of Federal Regulations these navigable waters while the of the Port Detroit or his on-scene COTP Captain of the Port New York dielectric fluid is being recovered and representative. DHS Department of Homeland Security necessary shoreside repair operations FR Federal Register are ongoing. No person or vessel will be Dated: May 22, 2017. NPRM Notice of proposed rulemaking permitted to enter the safety zone unless Scott B. LeMasters, PCB Polychlorinated Biphenyl obtaining permission from the COTP or Commander, U.S. Coast Guard, Captain of § Section a designated representative. the Port Detroit. U.S.C. United States Code [FR Doc. 2017–11427 Filed 6–1–17; 8:45 am] V. Regulatory Analyses II. Background Information and BILLING CODE 9110–04–P We developed this rule after Regulatory History considering numerous statutes and The Coast Guard is issuing this Executive orders related to rulemaking. DEPARTMENT OF HOMELAND temporary rule without prior notice and Below we summarize our analyses SECURITY opportunity to comment pursuant to based on a number of these statutes and authority under section 4(a) of the Executive orders, and we discuss First Coast Guard Administrative Procedure Act (APA) (5 Amendment rights of protestors. U.S.C. 553(b)). This provision 33 CFR Part 165 authorizes an agency to issue a rule A. Regulatory Planning and Review [Docket Number USCG–2017–0401] without prior notice and opportunity to Executive Orders 12866 and 13563 comment when the agency for good direct agencies to assess the costs and RIN 1625–AA00 cause finds that those procedures are benefits of available regulatory ‘‘impracticable, unnecessary, or contrary alternatives and, if regulation is Safety Zone; East River and Buttermilk to the public interest.’’ Under 5 U.S.C. necessary, to select regulatory Channel, Brooklyn, NY 553(b)(B), the Coast Guard finds that approaches that maximize net benefits. AGENCY: Coast Guard, DHS. good cause exists for not publishing a Executive Order 13563 emphasizes the ACTION: Temporary final rule. notice of proposed rulemaking (NPRM) importance of quantifying both costs with respect to this rule because it and benefits, of reducing costs, of SUMMARY: The Coast Guard is would be impracticable and contrary to harmonizing rules, and of promoting establishing a temporary safety zone for the public interest to delay this rule to flexibility. This rule has not been

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designated a ‘‘significant regulatory Coast Guard will not retaliate against individually or cumulatively have a action,’’ under Executive Order 12866. small entities that question or complain significant effect on the human Accordingly, it has not been reviewed about this rule or any policy or action environment. This rule involves the by the Office of Management and of the Coast Guard. establishment of a safety zone for up to Budget. two months. Therefore, it is excluded C. Collection of Information This regulatory action determination from further review under paragraph is based on the size, location, and This rule will not call for a new 34(g) of Figure 2–1 of the Commandant duration of the safety zone. Vessel collection of information under the Instruction. A Record of Environmental traffic will be able to safely transit Paperwork Reduction Act of 1995 (44 Consideration for Categorically around this safety zone which will U.S.C. 3501–3520). Excluded Actions is available in the impact a small designated area of the D. Federalism and Indian Tribal docket where indicated under East River and Buttermilk Channel for Governments ADDRESSES. We seek any comments or approximately two months. Moreover, information that may lead to the the Coast Guard will issue Broadcast A rule has implications for federalism discovery of a significant environmental Notice to Mariners via VHF–FM marine under Executive Order 13132, impact from this rule. channel 16 about the zone and the rule Federalism, if it has a substantial direct allows vessels to seek permission to effect on the States, on the relationship G. Protest Activities enter the zone if the response activities between the national government and The Coast Guard respects the First are completed in less than two months. the States, or on the distribution of Amendment rights of protesters. power and responsibilities among the B. Impact on Small Entities Protesters are asked to contact the various levels of government. We have person listed in the FOR FURTHER The Regulatory Flexibility Act of analyzed this rule under that Order and INFORMATION CONTACT section to 1980, 5 U.S.C. 601–612, as amended, have determined that it is consistent coordinate protest activities so that your requires Federal agencies to consider with the fundamental federalism message can be received without the potential impact of regulations on principles and preemption requirements jeopardizing the safety or security of small entities during rulemaking. The described in Executive Order 13132. people, places, or vessels. term ‘‘small entities’’ comprises small Also, this rule does not have tribal businesses, not-for-profit organizations implications under Executive Order List of Subjects in 33 CFR Part 165 that are independently owned and 13175, Consultation and Coordination Harbors, Marine safety, Navigation operated and are not dominant in their with Indian Tribal Governments, (water), Reporting and recordkeeping fields, and governmental jurisdictions because it does not have a substantial requirements, Security measures, and with populations of less than 50,000. direct effect on one or more Indian Waterways. The Coast Guard certifies under 5 U.S.C. tribes, on the relationship between the For the reasons discussed in the 605(b) that this rule will not have a Federal Government and Indian tribes, preamble, the Coast Guard amends 33 significant economic impact on a or on the distribution of power and CFR part 165 as follows: substantial number of small entities. responsibilities between the Federal While some owners or operators of Government and Indian tribes. If you PART 165—REGULATED NAVIGATION vessels intending to transit the safety believe this rule has implications for AREAS AND LIMITED ACCESS AREAS zone may be small entities, for the federalism or Indian tribes, please reasons stated in section V A above, this contact the person listed in the FOR ■ 1. The authority citation for part 165 rule will not have a significant FURTHER INFORMATION CONTACT section continues to read as follows: economic impact on any recreational above. Authority: 33 U.S.C. 1231; 50 U.S.C. 191; vessel owner or operator. 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Under section 213(a) of the Small E. Unfunded Mandates Reform Act Department of Homeland Security Delegation Business Regulatory Enforcement The Unfunded Mandates Reform Act No. 0170.1. Fairness Act of 1996 (Pub. L. 104–121), of 1995 (2 U.S.C. 1531–1538) requires ■ 2. Add § 165.T01–0401 to read as we want to assist small entities in Federal agencies to assess the effects of follows: understanding this rule. If the rule their discretionary regulatory actions. In would affect your small business, particular, the Act addresses actions § 165.T01–0401 Safety Zone; East River organization, or governmental that may result in the expenditure by a and Buttermilk Channel, NY. jurisdiction and you have questions State, local, or tribal government, in the (a) Location. The following area is a concerning its provisions or options for aggregate, or by the private sector of safety zone: All waters of the Brooklyn compliance, please contact the person $100,000,000 (adjusted for inflation) or half of the East River, south of a line listed in the FOR FURTHER INFORMATION more in any one year. Though this rule drawn from (pa) 40°44′07.5″ N., CONTACT section. will not result in such an expenditure, 073°57′40.3″ W. (Dupont Street, Small businesses may send comments we do discuss the effects of this rule Greenpoint, Brooklyn, NY) to on the actions of Federal employees elsewhere in this preamble. 40°44′10.1″ N., 073°58′21.6″ W. (NAD who enforce, or otherwise determine 83) (East 25th Street, Manhattan, NY) compliance with, Federal regulations to F. Environment and Buttermilk Channel, north of the the Small Business and Agriculture We have analyzed this rule under Buttermilk Channel Entrance Lighted Regulatory Enforcement Ombudsman Department of Homeland Security Gong Buoy 1 (LLNR 36985). and the Regional Small Business Management Directive 023–01 and (b) Definitions. The following Regulatory Fairness Boards. The Commandant Instruction M16475.lD, definitions apply to this section: Ombudsman evaluates these actions which guide the Coast Guard in (1) Designated representative. A annually and rates each agency’s complying with the National ‘‘designated representative’’ is any Coast responsiveness to small business. If you Environmental Policy Act of 1969 (42 Guard commissioned, warrant or petty wish to comment on actions by U.S.C. 4321–4370f), and have officer of the U.S. Coast Guard who has employees of the Coast Guard, call 1– determined that this action is one of a been designated by the COTP to act on 888–REG–FAIR (1–888–734–3247). The category of actions that do not his or her behalf. A designated

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representative may be on an official dangerously high water levels. Entry that good cause exists for making it patrol vessel or may be on shore and into the safety zone is prohibited unless effective less than 30 days after will communicate with vessels via specifically authorized by the Captain of publication in the Federal Register. VHF–FM radio or loudhailer. In the Port Lower Mississippi River or a Delaying the effective date of this rule addition, members of the Coast Guard designated representative. would be impracticable and contrary to Auxiliary may be present to inform DATES: This rule is effective from 5 p.m. the public interest because immediate vessel operators of this regulation. on May 19, 2017 through 11:59 p.m. on action is needed during the emergency (2) Official patrol vessels. Official June 2, 2017, or until the water levels operations in response to the higher patrol vessels may consist of any Coast have lowered to a less dangerous level, than normal water levels on May 19, Guard, Coast Guard Auxiliary, state, or whichever occurs earlier. For the 2017. local law enforcement vessels assigned purposes of enforcement, actual notice III. Legal Authority and Need for Rule or approved by the COTP. will be used from May 19, 2017 through (c) Enforcement period. This safety June 2, 2017. The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The zone is effective and will be enforced ADDRESSES: To view documents Coast Guard received notification from from 4 p.m. on May 8, 2017 through 5 mentioned in this preamble as being the US Army Corps of Engineers p.m. on July 14, 2017. available in the docket, go to http:// reporting high water levels are present (d) Regulations. (1) The general www.regulations.gov, type USCG–2017– in the vicinity of mile marker (MM) regulations contained in 33 CFR 165.23, 0451 in the ‘‘SEARCH’’ box and click 315.0 on the Lower Mississippi River as well as the following regulations, ‘‘SEARCH.’’ Click on Open Docket (LMR) near the Old River Control apply. Folder on the line associated with this structures. As a result, danger of (2) During periods of enforcement, no rule. vessel shall enter the safety zone unless collision with the structures exists and FOR FURTHER INFORMATION CONTACT: If permitted by the COTP or a designated is likely. The COTP Lower Mississippi you have questions on this rule, call or representative. Any person or vessel River is establishing this safety zone email LT Ryan C. Thomas, U.S. Coast allowed to enter the safety zone must effective from 5 p.m. May 19, 2017 to Guard; telephone 901–521–4825, email comply with all orders and directions 11:59 p.m. June 2, 2017 or until the [email protected]. from the COTP or a COTP’s designated water levels have lowered to a less SUPPLEMENTARY INFORMATION: representative while said person or dangerous level, whichever occurs vessel is within the safety zone. I. Table of Abbreviations earlier. This rule is needed to protect (3) During periods of enforcement, personnel, vessels, flood infrastructure, CFR Code of Federal Regulations and the marine environment in the upon being hailed by a U.S. Coast Guard COTP Captain of the Port Lower vessel by siren, radio, flashing light, or Mississippi River navigable waters within the safety zone other means, the operator of the vessel DHS Department of Homeland Security while the high water levels are present. must proceed as directed. FR Federal Register IV. Discussion of the Rule NPRM Notice of proposed rulemaking Dated: May 8, 2017. § Section The Coast Guard is establishing a Michael H. Day, U.S.C. United States Code temporary safety zone on the LMR from Captain, U.S. Coast Guard, Captain of the mile 311.0 to mile 317.0, extending the II. Background Information and Port New York. entire width of the river, from 5 p.m. Regulatory History [FR Doc. 2017–11463 Filed 6–1–17; 8:45 am] May 19, 2017 through 11:59 p.m. on BILLING CODE 9110–04–P The Coast Guard is issuing this June 2, 2017 or until the water levels temporary rule without prior notice and have lowered to a less dangerous level, opportunity to comment pursuant to whichever occurs earlier. Any vessel DEPARTMENT OF HOMELAND authority under section 4(a) of the desiring to enter this safety zone must SECURITY Administrative Procedure Act (APA) (5 first obtain permission from the Captain U.S.C. 553(b)). This provision of the Port Lower Mississippi River Coast Guard authorizes an agency to issue a rule (COTP). The U.S. Army Corps of without prior notice and opportunity to Engineers assist vessels present in the 33 CFR Part 165 comment when the agency for good vicinity of the Old River Control [Docket Number USCG–2017–0451] cause finds that those procedures are Structure (WUG–424) have been ‘‘impracticable, unnecessary, or contrary delegated the authority to permit entry RIN 1625–AA00 to the public interest.’’ Under 5 U.S.C. into this safety zone. Safety Zone; Lower Mississippi River, 553(b)(B), the Coast Guard finds that Entry into this zone is prohibited Vidalia, LA good cause exists for not publishing a unless permission has been granted by notice of proposed rulemaking (NPRM) the COTP or a designated AGENCY: Coast Guard, DHS. with respect to this rule because the representative. Broadcast Notice to ACTION: Temporary final rule. water levels have risen rapidly to Mariners (BNM) will provide any dangerous levels and immediate action changes in the schedule for this safety SUMMARY: The Coast Guard is extending is needed to protect persons, and zone. Requests to enter the zone will be an established safety zone for property during response efforts. considered and reviewed on a case-by- emergency purposes for all navigable Completing the full NPRM process is case basis. The COTP may be contacted waters of the Lower Mississippi River impracticable because we must establish by telephone at 1–901–521–4804 or can (LMR), extending the entire width from this safety zone by May 19, 2017 and be reached by VHF–FM channel 16. mile 311.0 to mile 317.0. This lacks sufficient time to provide a emergency safety zone is needed to reasonable comment period and then V. Regulatory Analyses protect persons, property, and flood consider those comments before issuing We developed this rule after control infrastructure from the potential the rule. considering numerous statutes and safety hazards associated with vessels We are issuing this rule, and under 5 Executive orders related to rulemaking. underway transiting this area with U.S.C. 553(d)(3), the Coast Guard finds Below we summarize our analyses

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based on a number of these statutes and compliance, please contact the person $100,000,000 (adjusted for inflation) or Executive orders, and we discuss First listed in the FOR FURTHER INFORMATION more in any one year. Though this rule Amendment rights of protestors. CONTACT section. will not result in such expenditure, we Small businesses may send comments do discuss the effects of this rule A. Regulatory Planning and Review on the actions of Federal employees elsewhere in this preamble. Executive Orders 12866 and 13563 who enforce, or otherwise determine direct agencies to assess the costs and compliance with, Federal regulations to F. Environment benefits of available regulatory the Small Business and Agriculture We have analyzed this rule under alternatives and, if regulation is Regulatory Enforcement Ombudsman Department of Homeland Security necessary, to select regulatory and the Regional Small Business Management Directive 023–01 and approaches that maximize net benefits. Regulatory Fairness Boards. The Commandant Instruction M16475.lD, Executive Order 13563 emphasizes the Ombudsman evaluates these actions which guide the Coast Guard in importance of quantifying both costs annually and rates each agency’s complying with the National and benefits, of reducing costs, of responsiveness to small business. If you Environmental Policy Act of 1969 (42 harmonizing rules, and of promoting wish to comment on actions by U.S.C. 4321–4370f), and have flexibility. This rule has not been employees of the Coast Guard, call 1– determined that this action is one of a designated a ‘‘significant regulatory 888–REG–FAIR (1–888–734–3247). The category of actions that do not action,’’ under Executive Order 12866. Coast Guard will not retaliate against individually or cumulatively have a Accordingly, it has not been reviewed small entities that question or complain significant effect on the human by the Office of Management and about this rule or any policy or action environment. This rule involves an Budget. of the Coast Guard. emergency safety zone that will prohibit This regulatory action determination entry into the zone unless permission C. Collection of Information is based on the size, location, duration, has been granted by the COTP or a and time-of-year of the safety zone. This This rule will not call for a new designated representative on the emergency safety zone will restrict collection of information under the Mississippi River mile 311.0 to mile navigation on the Mississippi River Paperwork Reduction Act of 1995 (44 317.0. It is categorically excluded from from mile 311.0 to 317.0 near Vidalia, U.S.C. 3501–3520). further review under paragraph L60 of Louisiana for 14 days. Vessels will be Appendix A of the Commandant allowed to transit the zone with D. Federalism and Indian Tribal Governments Instruction. A Record of Environmental direction from the COTP or its Consideration (REC) supporting this designated representative. Moreover, the A rule has implications for federalism determination is available in the docket Coast Guard will issue Broadcast Notice under Executive Order 13132, where indicated under ADDRESSES. to Mariners via VHF–FM marine Federalism, if it has a substantial direct channel 16 about the zone and the rule effect on the States, on the relationship G. Protest Activities allows vessels to seek permission to between the national government and The Coast Guard respects the First enter the zone. the States, or on the distribution of Amendment rights of protesters. power and responsibilities among the B. Impact on Small Entities Protesters are asked to contact the various levels of government. We have person listed in the FOR FURTHER The Regulatory Flexibility Act of analyzed this rule under that Order and INFORMATION CONTACT section to 1980, 5 U.S.C. 601–612, as amended, have determined that it is consistent coordinate protest activities so that your requires Federal agencies to consider with the fundamental federalism message can be received without the potential impact of regulations on principles and preemption requirements jeopardizing the safety or security of small entities during rulemaking. The described in Executive Order 13132. people, places or vessels. term ‘‘small entities’’ comprises small Also, this rule does not have tribal businesses, not-for-profit organizations implications under Executive Order List of Subjects in 33 CFR Part 165 that are independently owned and 13175, Consultation and Coordination Harbors, Marine safety, Navigation operated and are not dominant in their with Indian Tribal Governments, (water), Reporting and recordkeeping fields, and governmental jurisdictions because it does not have a substantial requirements, Security measures, with populations of less than 50,000. direct effect on one or more Indian Waterways. The Coast Guard certifies under 5 U.S.C. tribes, on the relationship between the For the reasons discussed in the 605(b) that this rule will not have a Federal Government and Indian tribes, preamble, the Coast Guard amends 33 significant economic impact on a or on the distribution of power and CFR part 165 as follows: substantial number of small entities. responsibilities between the Federal While some owners or operators of Government and Indian tribes. If you PART 165—REGULATED NAVIGATION vessels intending to transit the safety believe this rule has implications for AREAS AND LIMITED ACCESS AREAS zone may be small entities, for the federalism or Indian tribes, please reasons stated in section V.A above, this contact the person listed in the FOR ■ 1. The authority citation for part 165 rule will not have a significant FURTHER INFORMATION CONTACT section continues to read as follows: economic impact on any vessel owner above. Authority: 33 U.S.C. 1231; 50 U.S.C. 191; or operator. 33 CFR 1.05–1; 6.04–1, 6.04–6, and 160.5; Under section 213(a) of the Small E. Unfunded Mandates Reform Act Department of Homeland Security Delegation Business Regulatory Enforcement The Unfunded Mandates Reform Act No. 0170.1. Fairness Act of 1996 (Pub. L. 104–121), of 1995 (2 U.S.C. 1531–1538) requires ■ 2. Temporary § 165.T08–0451 is we want to assist small entities in Federal agencies to assess the effects of added to read as follows: understanding this rule. If the rule their discretionary regulatory actions. In would affect your small business, particular, the Act addresses actions § 165.T08–0451 Safety Zone; Mississippi organization, or governmental that may result in the expenditure by a River, Vidalia, LA. jurisdiction and you have questions State, local, or tribal government, in the (a) Location. The following area is an concerning its provisions or options for aggregate, or by the private sector of emergency safety zone: All navigable

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waters of the Mississippi River between DATES: This temporary final rule is combination of recreation vessels, mile 311.0 and mile 317.0, extending effective from 7 a.m. until 12 p.m. on commercial vessels, and an unknown the entire width of the river. July 6, 2017. number of spectators in close proximity (b) Enforcement date. This rule is ADDRESSES: To view documents to a youth swimming event along the effective from 5 p.m. on May 19, 2017 mentioned in this preamble as being water pose extra and unusual hazards to through 11:59 p.m. on June 2, 2017, or available in the docket, go to http:// public safety and property. Therefore, until the water levels have lowered to a www.regulations.gov, type USCG–2017– the COTP is establishing a Special Local less dangerous level, whichever occurs 0372 in the ‘‘SEARCH’’ box and click Regulation around the event location to earlier. For the purposes of enforcement, ‘‘SEARCH.’’ Click on Open Docket help minimize risks to safety of life and actual notice will be used from May 19, Folder on the line associated with this property during this event. 2017 through June 2, 2017. rule. IV. Discussion of the Rule (c) Regulations. (1) In accordance with FOR FURTHER INFORMATION CONTACT: If This rule establishes a temporary the general regulations in § 165.23 of you have questions on this temporary special local regulation from 7 a.m. until this part, entry into this zone is rule, call or email Tracy Girard, 12 p.m. on July 6, 2017. In light of the prohibited unless specifically Prevention Department, Sector Detroit, aforementioned hazards, the COTP has authorized by the Captain of the Port Coast Guard; telephone 313–568–9564, determined that a special local Lower Mississippi River (COTP) or a or email [email protected]. regulation is necessary to protect designated representative. SUPPLEMENTARY INFORMATION: (2) The U.S. Army Corps of Engineers spectators, vessels, and participants. assist vessels present in the vicinity of I. Table of Abbreviations The special local regulation will encompass the following waterway: All the Old River Control Structures are CFR Code of Federal Regulations designated representatives and may DHS Department of Homeland Security waters of the Detroit River, Belle Isle permit entry into this safety zone. They FR Federal Register Beach between the following two lines: may be contacted on VHF–FM Channel NPRM Notice of proposed rulemaking The first line is drawn directly across ° ′ 16 or Channel 13. § Section the channel from position 42 20.517 N., COTP Captain of the Port 082°59.159′ W. to 42°20.705′ N., (d) Informational broadcasts. The ° ′ COTP or a designated representative U.S.C. United States Code 082 59.233 W. (NAD 83); the second will inform the public through II. Background Information and line, to the north, is drawn directly across the channel from position broadcast notices to mariners of the Regulatory History ° ′ ° ′ ° enforcement period for the emergency 42 20.754 N., 082 58.681 W. to 42 The Coast Guard is issuing this 20.997′ N., 082°58.846″ W. (NAD 83). safety zone as well as any changes in the temporary rule without prior notice and dates and times of enforcement. An on-scene representative of the opportunity to comment pursuant to COTP or event sponsor representatives Dated: May 19, 2017. authority under section 4(a) of the may permit vessels to transit the area T.J. Wendt, Administrative Procedure Act (APA) (5 when no race activity is occurring. The Captain, U.S. Coast Guard, Captain of the U.S.C. 553(b)). This provision on-scene representative may be present Port, Lower Mississippi River. authorizes an agency to issue a rule on any Coast Guard, state, or local law [FR Doc. 2017–11462 Filed 6–1–17; 8:45 am] without prior notice and opportunity to enforcement vessel assigned to patrol BILLING CODE 9110–04–P comment when the agency for good the event. Vessel operators desiring to cause finds that those procedures are transit through the regulated area must ‘‘impracticable, unnecessary, or contrary contact the Coast Guard Patrol DEPARTMENT OF HOMELAND to the public interest.’’ Under 5 U.S.C. Commander to obtain permission to do SECURITY 553(b)(B), the Coast Guard finds that so. The COTP or his designated on- good cause exists for not publishing a scene representative may be contacted Coast Guard notice of proposed rulemaking (NPRM) via VHF Channel 16 or at 313–568– with respect to this rule because doing 9560. 33 CFR Part 165 so would be impracticable. The Coast The COTP or his designated on-scene Guard did not receive the final details representative will notify the public of [Docket No. USCG–2017–0372] of this swimming event until there was the enforcement of this rule by all insufficient time remaining before the appropriate means, including a RIN 1625–AA08 event to publish an NPRM. Thus, Broadcast Notice to Mariners and Local delaying the effective date of this rule to Notice to Mariners. Special Local Regulation; Motor City wait for a comment period to run would V. Regulatory Analyses Mile; Detroit River; Detroit, MI be impracticable because it would inhibit the Coast Guard’s ability to We developed this rule after AGENCY: Coast Guard, DHS. protect participants, mariners and considering numerous statutes and ACTION: Temporary final rule. vessels from the hazards associated with executive orders related to rulemaking. this event. Below we summarize our analyses SUMMARY: The Coast Guard is We are issuing this rule under 5 based on these statutes and executive establishing a special local regulation U.S.C. 553(d)(3), as the Coast Guard orders. for certain waters of the Detroit River, finds that good cause exists for making A. Regulatory Planning and Review Detroit, MI. This action is necessary and it effective less than 30 days after is intended to ensure safety of life on publication in the Federal Register for Executive Orders 12866 (‘‘Regulatory navigable waters to be used for a the same reason noted above. Planning and Review’’) and 13563 swimming event immediately prior to, (‘‘Improving Regulation and Regulatory during, and immediately after this III. Legal Authority and Need for Rule Review’’) direct agencies to assess the event. This regulation requires vessels The Coast Guard is issuing this rule costs and benefits of available regulatory to maintain a minimum speed for safe under authority in 33 U.S.C. 1233. The alternatives and, if regulation is navigation and maneuvering. COTP has determined that the likely necessary, to select regulatory

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approaches that maximize net benefits significant economic impact on any FURTHER INFORMATION CONTACT section (including potential economic, vessel owner or operator. above. environmental, public health and safety Under section 213(a) of the Small E. Unfunded Mandates Reform Act effects, distributive impacts, and Business Regulatory Enforcement equity). Executive Order 13563 Fairness Act of 1996 (Pub. L. 104–121), The Unfunded Mandates Reform Act emphasizes the importance of we want to assist small entities in of 1995 (2 U.S.C. 1531–1538) requires quantifying both costs and benefits, of understanding this rule. If the rule Federal agencies to assess the effects of reducing costs, of harmonizing rules, would affect your small business, their discretionary regulatory actions. In and of promoting flexibility. Executive organization, or governmental particular, the Act addresses actions Order 13771 (‘‘Reducing Regulation and jurisdiction and you have questions that may result in the expenditure by a Controlling Regulatory Costs’’), directs concerning its provisions or options for State, local, or tribal government, in the agencies to reduce regulation and compliance, please contact the person aggregate, or by the private sector of control regulatory costs and provides listed in the FOR FURTHER INFORMATION $100,000,000 (adjusted for inflation) or that ‘‘for every one new regulation CONTACT section. more in any one year. Though this rule will not result in such expenditure, we issued, at least two prior regulations be Small businesses may send comments do discuss the effects of this rule identified for elimination, and that the on the actions of Federal employees elsewhere in this preamble. cost of planned regulations be prudently who enforce, or otherwise determine managed and controlled through a compliance with, Federal regulations to F. Environment budgeting process.’’ the Small Business and Agriculture The Office of Management and Budget We have analyzed this rule under Regulatory Enforcement Ombudsman Department of Homeland Security (OMB) has not designated this rule a and the Regional Small Business significant regulatory action under Management Directive 023–01 and Regulatory Fairness Boards. The Commandant Instruction M16475.lD, section 3(f) of Executive Order 12866. Ombudsman evaluates these actions Accordingly, the Office of Management which guide the Coast Guard in annually and rates each agency’s and Budget (OMB) has not reviewed it. complying with the National responsiveness to small business. If you As this rule is not a significant Environmental Policy Act of 1969 (42 wish to comment on actions by regulatory action, this rule is exempt U.S.C. 4321–4370f), and have employees of the Coast Guard, call 1– from the requirements of Executive determined that this action is one of a 888–REG–FAIR (1–888–734–3247). The Order 13771. See OMB’s Memorandum category of actions that do not Coast Guard will not retaliate against titled ‘‘Interim Guidance Implementing individually or cumulatively have a small entities that question or complain Section 2 of the Executive Order of significant effect on the human about this rule or any policy or action January 30, 2017 titled ‘Reducing environment. This rule involves a of the Coast Guard. Regulation and Controlling Regulatory special local regulation lasting nine Costs’ ’’ (February 2, 2017). C. Collection of Information hours that will limit entry to a This regulatory action determination designated area. It is categorically is based on the size, location, duration, This rule will not call for a new excluded under section 2.B.2, figure 2– and time-of-year of the special local collection of information under the 1, and paragraph 34(h) of the regulation. Vessel traffic will be able to Paperwork Reduction Act of 1995 (44 Instruction. A Record of Environmental safely transit around this special local U.S.C. 3501–3520). Consideration (REC) is available in the regulation zone which will impact a D. Federalism and Indian Tribal docket where indicated in the small designated area of 7 a.m. to 12 Governments ADDRESSES section of this preamble. p.m. July 6, 2017. Moreover, the Coast G. Protest Activities Guard will issue Broadcast Notice to A rule has implications for federalism Mariners via VHF–FM marine channel under Executive Order 13132, The Coast Guard respects the First 16 about the special local regulation and Federalism, if it has a substantial direct Amendment rights of protesters. the rule allows vessels to seek effect on the States, on the relationship Protesters are asked to contact the permission to enter the area. between the national government and person listed in the FOR FURTHER the States, or on the distribution of INFORMATION CONTACT section to B. Impact on Small Entities power and responsibilities among the coordinate protest activities so that your The Regulatory Flexibility Act of various levels of government. We have message can be received without 1980, 5 U.S.C. 601–612, as amended, analyzed this rule under that Order and jeopardizing the safety or security of requires Federal agencies to consider have determined that it is consistent people, places or vessels. with the fundamental federalism the potential impact of regulations on List of Subjects in 33 CFR Part 165 small entities during rulemaking. The principles and preemption requirements term ‘‘small entities’’ comprises small described in Executive Order 13132. Harbors, Marine safety, Navigation businesses, not-for-profit organizations Also, this rule does not have tribal (water), Reporting and recordkeeping that are independently owned and implications under Executive Order requirements, Waterways. operated and are not dominant in their 13175, Consultation and Coordination For the reasons discussed in the fields, and governmental jurisdictions with Indian Tribal Governments, preamble, the Coast Guard amends 33 with populations of less than 50,000. because it does not have a substantial CFR part 100 as follows: The Coast Guard certifies under 5 U.S.C. direct effect on one or more Indian 605(b) that this rule will not have a tribes, on the relationship between the PART 165—REGULATED NAVIGATION significant economic impact on a Federal Government and Indian tribes, AREAS AND LIMITED ACCESS AREAS substantial number of small entities. or on the distribution of power and ■ 1. The authority citation for part 165 While some owners or operators of responsibilities between the Federal continues to read as follows: vessels intending to transit the special Government and Indian tribes. If you local regulation may be small entities, believe this rule has implications for Authority: 33 U.S.C. 1233. for the reasons stated in section V.A federalism or Indian tribes, please ■ 2. Add § 165.T09–0372 to read as above, this rule will not have a contact the person listed in the FOR follows:

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§ 165.T09–0372 Special local regulation; ENVIRONMENTAL PROTECTION requests that if at all possible, you Motor City Mile; Detroit River; Detroit, MI. AGENCY contact the person listed in the FOR (a) Location. A regulated area is FURTHER INFORMATION CONTACT section to 40 CFR Parts 52 and 81 established to encompass the following schedule your inspection. The Regional waterway: All waters of the Detroit [EPA–R04–OAR–2016–0583; FRL–9962–27– Office’s official hours of business are Monday through Friday 8:30 a.m. to River, Belle Isle Beach between the Region 4] 4:30 p.m., excluding federal holidays. following two lines: The first line is Air Plan Approval; Air Plan Approval FOR FURTHER INFORMATION CONTACT: drawn directly across the channel from Jane and Air Quality Designation; GA; Spann, Air Regulatory Management position 42°20.517′ N., 082°59.159′ W. Redesignation of the Atlanta, Georgia Section, Air Planning and to 42°20.705′ N., 082°59.233′ W. (NAD 2008 8-Hour Ozone Nonattainment Implementation Branch, Pesticides and 83); the second line, to the north, is Area to Attainment Toxics Management Division, Region 4, drawn directly across the channel from ° ′ ° ′ AGENCY: Environmental Protection U.S. Environmental Protection Agency, position 42 20.754 N., 082 58.681 W. 61 Forsyth Street SW., Atlanta, Georgia ° ′ ° ″ Agency. to 42 20.997 N., 082 58.846 W. (NAD 30303–8960. Ms. Spann can be reached ACTION: Final rule. 83). by phone at (404) 562–9029 or via (b) Enforcement period. This section SUMMARY: On July 18, 2016, the State of electronic mail at [email protected]. is effective and will be enforced from 7 Georgia, through the Georgia SUPPLEMENTARY INFORMATION: a.m. until 12 p.m. on July 6, 2017. Environmental Protection Division (GA I. Background for Final Actions (c) Regulations. EPD) of the Department of Natural Resources, submitted a request for the Effective July 20, 2012, EPA (1) Vessels transiting through the Environmental Protection Agency (EPA) designated areas as unclassifiable/ regulated area are to maintain the to redesignate the Atlanta, Georgia 2008 attainment or nonattainment for the minimum speeds for safe navigation. 8-hour ozone nonattainment area 2008 8-hour ozone NAAQS that was (2) Vessel operators desiring to (hereinafter referred to as the ‘‘Atlanta promulgated on March 27, 2008. See 77 operate in the regulated area must Area’’ or ‘‘Area’’) to attainment for the FR 30088 (May 21, 2012). The Atlanta contact the Coast Guard Patrol 2008 8-hour ozone National Ambient Area was designated as nonattainment Commander to obtain permission to do Air Quality Standards (NAAQS) and to for the 2008 8-hour ozone NAAQS and approve a State Implementation Plan classified as a marginal nonattainment so. The Captain of the Port Detroit 1 (COTP) or his on-scene representative (SIP) revision containing a maintenance area. On July 14, 2016, EPA issued a plan for the Area. EPA is approving the determination that the Area had may be contacted via VHF Channel 16 State’s maintenance plan, including the attained the 2008 8-hour ozone NAAQS or at 313–568–9560. Vessel operators motor vehicle emission budgets (81 FR 45419). On July 18, 2016, Georgia given permission to operate within the (MVEBs) for nitrogen oxides (NOX) and requested that EPA redesignate the regulated area must comply with all volatile organic compounds (VOC) for Atlanta Area to attainment for the 2008 directions given to them by the COTP or the years 2014 and 2030 for the Area, 8-hour ozone NAAQS and submitted a his on-scene representative. and redesignating the Area to SIP revision containing the State’s plan (3) The ‘‘on-scene representative’’ of attainment for the 2008 8-hour ozone for maintaining attainment of the 2008 the COTP Detroit is any Coast Guard NAAQS. Additionally, EPA finds the 8-hour ozone standard in the Area, commissioned, warrant or petty officer 2014 and 2030 MVEBs for the Atlanta including 2014 and 2030 MVEBs for or a Federal, State, or local law Area adequate for the purposes of NOX and VOC for the Atlanta Area. In enforcement officer designated by or transportation conformity. a notice of proposed rulemaking assisting the Captain of the Port Detroit DATES: This rule will be effective June (NPRM) published on December 23, to act on his behalf. 2, 2017. 2016 (81 FR 94283), EPA proposed to ADDRESSES: EPA has established a approve the maintenance plan, (4) Vessel operators shall contact the including the 2014 and 2030 MVEBs for COTP Detroit or his on-scene docket for this action under Docket Identification No. EPA–R04–OAR– NOX and VOC, and incorporate the plan representative to obtain permission to 2016–0583. All documents in the docket into the Georgia SIP and to redesignate enter or operate within the special local are listed on the www.regulations.gov the Area to attainment for the 2008 8- regulation. The COTP Detroit or his on- Web site. Although listed in the index, hour ozone NAAQS. In that notice, EPA scene representative may be contacted some information may not be publicly also notified the public of the status of via VHF Channel 16 or at 313–568– available, i.e., Confidential Business the Agency’s adequacy determination 9464. Vessel operators given permission Information or other information whose for the NOX and VOC MVEBs for the to enter or operate in the regulated area disclosure is restricted by statute. Atlanta Area. The details of Georgia’s must comply with all directions given to Certain other material, such as submittal and the rationale for EPA’s them by the COTP Detroit or his on- copyrighted material, is not placed on actions are further explained in the scene representative. the Internet and will be publicly NPRM. Dated: May 26, 2017. available only in hard copy form. II. Response to Comments Scott B. Lemasters, Publicly available docket materials are available either electronically through EPA received one set of comments on Commander, U.S. Coast Guard, Captain of www.regulations.gov or in hard copy at its December 23, 2016, proposed the Port Detroit. the Air Regulatory Management Section, rulemaking actions. Specifically, EPA [FR Doc. 2017–11465 Filed 6–1–17; 8:45 am] Air Planning and Implementation received adverse comments from the BILLING CODE 9110–04–P Branch, Air, Pesticides and Toxics Sierra Club (‘‘Commenter’’). These Management Division, U.S. 1 The Atlanta Area consists of Bartow, Cherokee, Environmental Protection Agency, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Region 4, 61 Forsyth Street SW., Forsyth, Fulton, Gwinnett, Henry, Newton, Atlanta, Georgia 30303–8960. EPA Paulding and Rockdale Counties in Georgia.

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comments are provided in the docket for during 2014. The results of this attainment designation—such as this final action. See Docket number technical analysis indicate that even 110(a)(2)(D) interstate transport EPA–R04–OAR–2016–0583. A summary under the most conservative estimates, requirements, 176(c) conformity of the adverse comments and EPA’s it is very unlikely that the monitor requirements, section 184 ozone responses are provided below. would have violated the 2008 8-hour transport region measures, and section Comment 1: The Commenter contends ozone NAAQS of 75 ppb. 211(m) oxygenated fuels requirements— that EPA may not approve Georgia’s Following publication of the proposed from those requirements in section 110 request to redesignate the Atlanta Area redesignation, Georgia certified its 2016 and part D that are linked to the to attainment because, according to the data for the Atlanta Area which shows nonattainment designation of an area Commenter, the Atlanta Area failed to that the Area continues to attain the and thus no longer need be complied attain the 2008 8-hour ozone NAAQS. NAAQS with a 2014–2016 design value with upon redesignation to attainment The Commenter believes that the Area of 75 ppb.3 Incomplete data for the status. If a requirement applies to an failed to attain this NAAQS ‘‘by law’’ Kennesaw National Guard monitor in area regardless of whether its because the Cobb County ozone monitor 2014 does not affect this conclusion designation is nonattainment, did not meet the 75 percent data because, as discussed above, EPA maintenance, or attainment, and thus completeness requirement for 2014 or conducted an analysis and has other parts of the CAA will continue to the 90 percent data completeness concluded that it is very unlikely that obligate the area to meet the requirement for the 2013–2015 period. the monitor would have violated the requirement after redesignation, EPA Response 1: EPA disagrees with the NAAQS if it had collected completed has interpreted the requirement as not Commenter that the Area has not data.4 ‘‘applicable’’ for purposes of section attained the 2008 8-hour ozone NAAQS. Comment 2: The Commenter argues 107(d)(3)(E)(ii) or (v). See, e.g., 66 FR EPA issued a final determination of that the interstate transport provision at 53094 (October 19, 2001), 65 FR 37879 attainment on July 14, 2016, based on CAA section 110(a)(2)(D)(i)(I) is an (June 19, 2000), 62 FR 24826 (May 7, the same 2013–2015 air quality data it applicable requirement for the purposes 1997), 61 FR 53174 (October 10, 1996), is using as the basis of this of redesignation. Therefore, the 61 FR 20458 (May 7, 1996), 60 FR 62748 redesignation action. See 81 FR 45419. Commenter does not believe that EPA (December 7, 1995). Courts have upheld EPA took notice and comment on its can redesignate a nonattainment area to EPA’s authority to interpret what determination of attainment and the attainment unless the state has constitutes an ‘‘applicable’’ requirement Commenter could have raised its submitted, and EPA has approved, a SIP under section 107(d)(3)(E), and have concern to the Agency regarding data revision that contains adequate deferred to EPA’s interpretation that from the Kennesaw National Guard provisions prohibiting any source requirements that continue to apply monitor (also known as the Cobb located in the state from emitting any air after a redesignation are not County monitor) at that time, but failed pollutant in amounts which will ‘‘applicable’’ for purposes of section to do so. In any case, EPA does not find contribute significantly to 107(d)(3)(E)(ii) and (v). See Sierra Club reason to alter its conclusion that the nonattainment in, or interfere with v. EPA, 375 F.3d 537 (7th Cir. 2004); Area has attained the 2008 ozone maintenance by, any other state with Wall v. EPA, 265 F.3d 426 (6th Cir. NAAQS based on concerns raised in the respect to any NAAQS. Because Georgia 2001). comment, and the most recent available did not submit a SIP revision satisfying We note that EPA has acted consistently with this interpretation by data and information continues to the good neighbor provision for the issuing a number of actions outside the support this finding. With regard to the 2008 8-hour ozone NAAQS, the context of area redesignations to address Commenter’s concern regarding the Commenter contends that Georgia has CAA 110(a)(2)(D)(i)(I)’s transport 2014 ozone season data from the not met all applicable requirements for provision. On October 26, 2016, EPA Kennesaw National Guard monitor, redesignation of the Area under CAA issued a final rulemaking (CSAPR EPA’s technical analysis, available in a section 107(d)(3)(E)(v) (requiring the Update) updating the regional NOx technical support document located in State to have met all applicable ozone season trading program the docket for this rulemaking, requirements under section 110 and Part established under the original 2011 demonstrates that the 2013–2015 design D) and section 107(d)(3)(E)(ii) (requiring value would not have violated the Cross-State Air Pollution Rule. See 81 the State to have a fully approved FR 74504. As described in more detail standard even assuming the most applicable SIP under section 110(k)). in the CSAPR Update, EPA conducted conservative estimates for the missing Response 2: As discussed in the air quality modeling and concluded that data from that monitor. NPRM and in numerous other Georgia did not significantly contribute As described in greater detail in the redesignation actions, EPA has long technical support document, in EPA’s to nonattainment or interfere with interpreted the section 110(a)(2)(D) maintenance of the 2008 8-hour ozone technical judgment, the Area has interstate transport requirements as not NAAQS in other states. Therefore, even attained the 2008 8-hour ozone NAAQS. applicable for the purposes of though, as the Commenter points out, In making its determination, EPA redesignation. See, e.g., 81 FR 94283 EPA did issue a finding of failure to evaluated all valid certified monitoring (December 23, 2016), 78 FR 43096 (July submit a 110(a)(2)(D)(i)(I) transport SIP data collected during 2013–2015 by 19, 2013), 76 FR 79579 (December 22, to Georgia, the Agency later determined monitors in or near the nonattainment 2011), 74 FR 53198 (October 16, 2009), that the State had no substantive area.2 EPA also conducted the 72 FR 56312 (October 3, 2007). The obligation to reduce its emissions to additional technical analysis described Agency has consistently distinguished meet its transport obligations for the in the technical support document for the section 110 and part D requirements 2008 ozone NAAQS. the Kennesaw National Guard monitor, that apply regardless of an area’s Comment 3: The Commenter claims which did not collect complete data that neither Georgia nor EPA have 3 The air quality data is located at https:// sufficiently shown that the 2 EPA retrieved data for the monitors in the www.epa.gov/outdoor-air-quality-data. Atlanta Area and the Georgia Station CASTNET 4 The fourth-highest daily maximum 8-hour improvement in air quality is due to monitoring site in Pike County near the Atlanta average value for 2016 at the Kennesaw National permanent and enforceable emissions Area. Guard monitor is 70 ppb. reductions rather than to temporary

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fluctuations in weather or the economy, when using its ‘‘experience, expertise, weather conditions. The Commenter did from decreased electricity production in and professional judgment’’ in not provide any climatological data to the Area, or from impermanent and determining whether the improvement refute this proposed determination. unenforceable measures. The in air quality is reasonably attributable Although the Commenter claims that Commenter believes that EPA did to permanent and enforceable measures. EPA and the State must also nothing more than cite to and See Sierra Club, 774 F.3d at 395–96 demonstrate that the improvement in air summarize certain applicable pollutant (agreeing with EPA that its approach quality was not due to the economy or control regulations and that EPA must sufficed, and that an ‘‘elaborate decreased electricity production, EPA estimate the percent reduction achieved analytical exercise is not required by the does not have any information from each of the cited measures ‘‘in CAA’’). In this case, the Commenter indicating that the improvement was order to clearly show that the air quality claims that EPA’s demonstration is due to these factors and the Commenter improvements are indeed the result of inadequate and charges that the Agency has not provided any such information. implemented permanent and must estimate the percent reduction Consistent with EPA’s long-standing enforceable controls.’’ The Commenter achieved from each of the permanent practice and policy, a comparison of also states that the Utility Mercury Air and enforceable measures in order for nonattainment period emissions with Toxics Standards (MATS), listed in the the Agency to redesignate an area. In attainment period emissions is relevant section of the NPRM discussing fact, for the measures that were in demonstrating permanent and permanent and enforceable measures, primarily responsible for the enforceable emissions reductions. EPA cannot have improved air quality during improvement in ozone concentrations in has evaluated the ozone precursor the relevant time period and that MATS the Area, EPA did estimate the emissions data in the Area and found does not have any relevance for ozone. percentage reduction in emissions. The that there were significant reductions in Response 3: EPA does not agree with majority of ozone precursor emissions these emissions in multiple source the Commenter that the Agency has not in the Area are generated by mobile categories from 2011 (a nonattainment properly determined that the Area’s sources, and the vast majority of year) to 2014 (an attainment year). attainment is due to permanent and emission reductions in the Area are During this time period, the emissions enforceable reductions in emissions, as similarly associated with the permanent data show that non-road NOX and VOC required by CAA section and enforceable mobile source measures emissions decreased, point source NOX 6 107(d)(3)(E)(iii). EPA’s approach in this identified in the NPRM. emissions decreased, and mobile NOX action is consistent with its long- Consistent with the Calcagni and VOC emissions decreased. During standing interpretation that to satisfy Memorandum, Georgia and EPA also this time period, mobile source that provision, as set forth in the took steps in the analysis, as outlined in emissions provided the greatest Calcagni Memorandum cited by the the NPRM, to ensure that the reductions, with NOX emissions Commenter, EPA must show that the improvement in air quality was not due decreasing by approximately 60 tons per improvement in air quality necessary for to temporary weather conditions. summer day (tpsd) (equating to 72 an area to attain the relevant NAAQS is Georgia provided and EPA evaluated percent of the total NOX emissions reasonably attributable to permanent ozone season temperature and reductions) and mobile source VOC and enforceable reductions in precipitation data for the Area from emissions decreased by approximately emissions.5 As recently affirmed by the 1930 through 2015. See 81 FR 94288. 34 tpsd (equating to 68 percent of the U.S. Court of Appeals for the Seventh This data shows that the average total VOC emissions reductions). It is Circuit, EPA’s approach to temperature and precipitation in 2013 not necessary for every change in demonstrating that section fluctuates around the average emissions between the nonattainment 107(d)(3)(E)(iii) has been met is a meteorological conditions; the years year and the attainment year to be reasonable and appropriate method of 2014 and 2015 were hotter than the permanent and enforceable. Rather, as meeting the CAA’s requirements. See 1930–2000 average temperature; and discussed above, the CAA requires that Sierra Club v. EPA, 774 F.3d 383 (7th precipitation in 2014 was less than the improvement in air quality necessary for Cir. 2014). As noted by the court, it is 1930–2000 average. Therefore, EPA an area to attain the relevant NAAQS not necessary for EPA to ‘‘prove proposed to determine that the must be reasonably attributable to causation to an absolute certainty,’’ and improvement in ozone air quality was permanent and enforceable emission the Agency is entitled to deference not the result of unusually favorable reductions in emissions.

TABLE 1—NOX EMISSIONS FOR THE ATLANTA 2008 8-HOUR OZONE NAAQS NONATTAINMENT AREA [Tons per summer day] 7

Year Point source Area source On-road Non-road Total

2011 ...... 54.63 4.63 214.98 91.92 366.16 2014 ...... 31.36 4.88 170.15 76.69 283.08

5 Memorandum from John Calcagni, Director, Air 48036 (August 11, 2015). In 2014, mobile sources reductions) and mobile source VOC emissions Quality Management Division, to EPA regional air accounted for approximately 87 percent of NOX decreased by approximately 34 tpsd (equating to 68 directors re: Procedures for Processing Requests to emissions and 51 percent of VOC emissions. See 81 percent of the total VOC emissions reductions). Redesignate Areas to Attainment (September 4, FR 94283. The comparison of the 2011 and 2014 7 For 2011, Georgia also reported 3.45 tpsd of 1992), p.4. emissions inventories in Table 2, below, shows that biogenic emissions not included in this total; for 6 In 2011, mobile sources accounted for mobile source NOX emissions decreased by 2014, the area source emissions total includes 0.01 approximately 84 percent of NOX emissions and 53 approximately 60 tons per summer day (tpsd) percent of VOC emissions in the Area. See 80 FR (equating to 72 percent of the total NOX emissions tons per summer day of wild and prescribed fires.

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TABLE 2—VOC EMISSIONS FOR THE ATLANTA 2008 8-HOUR OZONE NAAQS NONATTAINMENT AREA [Tons per summer day] 8

Year Point source Area source On-road Non-road Total

2011 ...... 10.36 137.06 108.62 60.56 316.60 2014 ...... 11.24 119.88 81.76 53.38 266.26

The State calculated the on-road and standards began in 2004, and as newer, in ozone air quality is reasonably non-road mobile source emissions cleaner cars enter the national fleet, attributable to the remaining measures summarized in Tables 2 and 3 using these standards continue to significantly identified in the NPRM. Although EPA-approved models and procedures reduce NOX emissions. As discussed in MATS did not result in permanent and that account for fleet turnover, increased the NPRM, EPA expects that these enforceable reductions until April 2016, population, and the federal mobile standards will reduce NOX emissions it is expected to result in further source measures identified as from vehicles by approximately 74 reductions in NOx emissions during the permanent and enforceable measures in percent by 2030, translating to nearly 3 maintenance period.16 the NPRM such as the Tier 2 vehicle million tons annually by 2030.15 Comment 4: The Commenter asserts and fuel standards, the large non-road Regarding MATS, EPA acknowledges that Georgia’s maintenance plan is diesel engines rule,9 heavy-duty that it inadvertently included this rule inadequate to ensure maintenance of the gasoline and diesel highway vehicle as a permanent and enforceable 2008 8-hour ozone standard in the Area standards,10 medium and heavy duty measure. As the Commenter correctly over the next ten years. The specific vehicle fuel consumption and notes, MATS did not result in arguments offered by the Commenter in greenhouse gas (GHG) standards,11 non- permanent and enforceable emissions support of its assertion are summarized road spark-ignition engines and reductions in the Area during the in Comments 4(a) through 4(c), below. recreational engines standards,12 and relevant time period because the State Comment 4a: The Commenter states the national program for GHG emissions extended the compliance date for the that neither Georgia nor EPA can be sure and fuel economy standards.13 14 These relevant sources in the Area to April that the attainment inventory for 2014, mobile source measures have resulted 2016. the attainment year used by the State to in, and continue to result in, large The SIP-approved state measures demonstrate maintenance throughout reductions in NOX emissions over time resulting in permanent and enforceable the first 10-year maintenance period, is due to fleet turnover (i.e., the emission reductions include Georgia sufficient to attain the standard because replacement of older vehicles that Rule 391–3–1–.02(2)(yy)—Emissions of ‘‘2014 is the year that the ozone season predate the standards with newer Nitrogen Oxides, Georgia Rule 391–3–1– monitoring data for the Cobb County vehicles that meet the standards). For .02(2)(jjj)—NOX from EGUs, Georgia monitor failed to meet either of the example, implementation of the Tier 2 Rule 391–3–1–.02(2)(lll)—NOX from statutory completeness requirements for Fuel Burning Equipment, Georgia Rule an attainment designation.’’ 8 For 2011, Georgia also reported 914.88 tpsd of 391–3–1–.02(2)(nnn)—NOX from Response 4a: As discussed above in biogenic emissions that are not included in this Stationary Gas Turbines, Georgia Rule response to Comment 1, EPA total; for 2014, the area source emissions total includes 0.02 tpsd of wild and prescribed fires. 391–3–1–.02(2)(rrr)—NOX from Small determined that the Area is attaining the 9 EPA estimated that compliance with this rule Fuel Burning Equipment, and Georgia standard and has conducted technical will cut NOX emissions from non-road diesel Rule Chapter 391–3–20—Enhanced analyses to support this determination. engines by up to 90 percent nationwide. Inspection and Maintenance. The For NAAQS based on a three-year 10 EPA projects a 2.6 million ton reduction in federal measures resulting in permanent averaging period, EPA allows states to NOX emissions by 2030 when the heavy-duty vehicle fleet is completely replaced with newer and enforceable emission reductions develop attainment emissions heavy-duty vehicles that comply with these include the Clean Air Interstate Rule inventories in their section 175A emission standards. 66 FR 5002, 5012 (January 18, (CAIR)/Cross-State Air Pollution Rule maintenance plans using any of the 2001). (CSAPR), Tier 2 vehicle and fuel three years on which an attainment 11 When fully implemented in 2018, this rule is standards, large non-road diesel engines determination is based. See, e.g., 80 FR expected to reduce NOX emissions from the covered vehicles by 20 percent. rule, medium and heavy-duty vehicle 54577 (July 30, 2015), 79 FR 16734 12 When fully implemented, the standards will fuel consumption and GHG standards, (March 26, 2014), 78 FR 72040 result in an 80 percent reduction in NOX by 2020. heavy-duty gasoline and diesel highway (December 2, 2013), 78 FR 38648 (June 13 Georgia used EPA’s MOVES2010b and vehicle standards, nonroad spark- 27, 2013). This approach is consistent MOVES2014a model to calculate on-road emissions ignition engines and recreational with the guidance provided to states in factors and used the NEI2011 and MOVES2014a for non-road emissions. engines standards, national program for preparing attainment inventories for 14 Georgia used the interagency consultation GHG emissions and fuel economy 110(a)(1) maintenance plans for the process required by 40 CFR part 93 (known as the standards, and Boiler and Reciprocating 1997 8-hour ozone NAAQS. See Transportation Conformity Rule) which requires Internal Combustion Engine (RICE) Memorandum from Lydia Wegman, EPA, the United States Department of Transportation, metropolitan planning National Emissions Standards for Director, Air Quality Strategies and organizations, state departments of transportation, Hazardous Air Pollutants (NESHAP). Standards Division, to Air Division and State and local air quality agencies to work The inadvertent inclusion of the Directors, re: Maintenance Plan together to develop applicable implementation MATS Rule in the NPRM does not affect Guidance Document for Certain 8-hour plans. The on-road emissions were generated by an aggregate of the vehicle activity (generated from the EPA’s conclusion that the improvement Ozone Areas under Section 110(a)(1) of travel demand model) on individual roadways multiplied by the appropriate emissions factor from 15 EPA, Regulatory Announcement, EPA420–F– 16 See Regulatory Impact Analysis for Final MOVES2014. The assumptions which are included 99–051 (December 1999), available at: https:// Mercury and Air Toxics Standards, EPA–452/R–11– in the travel demand model, such as population, www.epa.gov/regulations-emissions-vehicles-and- 011/December 2011. Available at https:// were reviewed through the interagency consultation engines/regulations-greenhouse-gas-emissions- www.epa.gov/sites/production/files/2015-11/ process. passenger-cars-and. documents/matsriafinal.pdf.

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Clean Air Act (May 20, 2005), p. 4. determining what is ‘necessary to redesignation. Once the redesignation is Therefore, it is appropriate to use 2014 assure’ prompt correction’’ under effective, the State will follow its as the attainment year in the section 175A, and ‘‘no pre-determined maintenance plan and implement maintenance demonstration for the schedule for adoption of the measures is contingency measures pursuant to that Atlanta Area. Also, the Commenter has necessary in each specific case.’’ In plan. If Georgia observes a fourth not raised any issues regarding the making this determination, EPA highest value of 0.076 ppm or greater at accuracy of the emissions inventory that accounts for the time that is required for a single monitor for which the previous was developed for 2014. states to analyze data and address the ozone season had a fourth highest value Comment 4b: The Commenter claims causes and appropriate means of of 0.076 ppm or greater, a Tier 1 trigger that the implementation schedules in remedying a violation. EPA also will be activated and the State will take the maintenance plan for the Tier I and considers the time required to adopt and action consistent with the Tier I Tier II contingency measures, allowing implement appropriate measures in procedure described in the maintenance for up to 24 months for implementation, assessing what ‘‘promptly’’ means in plan. are ‘‘unacceptably long and fail to this context. Comment 4c: The Commenter satisfy the prompt response timing In the case of the Atlanta Area, EPA believes that the maintenance plan is required by CAA Section 175A’’ to believes that the contingency measures ‘‘likely inadequate’’ to maintain the correct ‘‘potential monitored set forth in the submittal, combined 2008 8-hour ozone NAAQS because, violations.’’ The Commenter believes with the State’s commitment to according to the Commenter, the that Georgia should commit to selecting implement contingency measures as assumptions underlying Georgia’s and implementing Tier I and Tier II expeditiously as practicable but no later maintenance determination ‘‘likely contingency measures within 12 months than 24 months of a trigger, provide underestimate the level of ozone of a trigger. The Commenter also states assurance that the State will promptly reductions actually required to maintain that ‘‘[t]his issue is compounded by the correct a future violation. Given the the standard in light of increasingly fact that Georgia’s most recent ozone uncertainty regarding the nature of the warming temperatures to come.’’ monitoring data from 2016 demonstrate contingency measures required to Response 4c: EPA does not agree that that a number of the Atlanta Area address a violation, the State may need the maintenance plan is inadequate monitors continues to record annual up to 24 months to enact new statutes; because it does not specifically consider fourth highest daily maximum 8-hour develop new or modified regulations the impacts of climate change on future average ozone concentrations above the and complete notice and comment ozone concentrations. EPA believes that NAAQS.’’ rulemaking; or take actions authorized the broad range of potential future Response 4b: EPA disagrees with the by current state law that require the climate outcomes and variability of Commenter’s contention that the purchase and installation of equipment projected response to these outcomes maintenance plan’s implementation (e.g., diesel retrofits) or the development limits EPA’s ability to develop specific schedules for contingency measures fail and implementation of new programs. actionable SIP policies for any specific to satisfy the ‘‘prompt response’’ In addition, EPA has previously location. Additionally, EPA generally requirement in CAA section 175A(d). approved implementation of believes that the natural variability in This section of the CAA requires that a contingency measures within 24 months meteorological patterns will have a maintenance plan include such of a violation to comply with the larger influence on ozone contingency provisions as the requirements of section 175A in several concentrations than climate influences Administrator deems necessary to instances. See, e.g., 81 FR 76891 over the relatively short-term SIP assure that the state will promptly (November 4, 2016), 80 FR 61775 maintenance period. Thus, EPA believes correct a violation of the NAAQS that (October 14, 2015), 79 FR 67120 it is appropriate to rely upon the occurs after redesignation of an area. (November 12, 2014), 78 FR 44494 (July existing technical guidance and Thus, Congress gave EPA discretion to 24, 2013), 77 FR 34819 (June 12, 2012), applicable CAA provisions to ensure evaluate and determine the contingency 76 FR 59512 (Sept. 27, 2011), 75 FR that ozone maintenance areas do not measures that EPA ‘‘deems necessary’’ 2091 (January 14, 2010). EPA also notes violate the NAAQS. to assure that the state will promptly that the Commenter did not provide any III. Final Action correct any subsequent violation. rationale for concluding that a 12-month Section 175A does not establish any implementation period is necessary to EPA is taking two separate, but deadlines for implementation of satisfy section 175A and that the Tier I related, final actions. First, EPA is contingency measures after response is not subject to section approving the maintenance plan for the redesignation to attainment. It also 175A(d) because it is triggered before Atlanta Area, including the NOX and provides far more latitude than does any violation has occurred. VOC MVEBs for 2014 and 2030, and section 172(c)(9), which applies to a The Commenter’s statement that ‘‘this incorporating it into the Georgia SIP. different set of contingency measures issue is compounded by’’ fourth-highest The maintenance plan demonstrates applicable to nonattainment areas. daily maximum 2016 ozone that the Area will continue to maintain Section 172(c)(9) contingency measures concentrations ‘‘above the NAAQS’’ is the 2008 8-hour ozone NAAQS, and the must ‘‘take effect . . . without further unclear. In accordance with 40 CFR part MVEBs meet all of the adequacy criteria action by the State or [EPA].’’ By 50, appendix I, the determination as to contained in 40 CFR 93.118(e)(4) and contrast, section 175A(d) allows EPA to whether the Area meets the NAAQS is (5). take into account the need of a state to based on the three-year average of the Second, EPA is approving Georgia’s assess, adopt, and implement annual fourth-highest readings at a redesignation request for the 2008 8- contingency measures if and when a monitor, not on a monitor’s fourth- hour ozone NAAQS for the Atlanta violation occurs after an area’s highest ozone value in a single year. No Area. Approval of the redesignation redesignation to attainment. As noted by monitored value in a single year can request changes the official designation the U.S. Court of Appeals for the Sixth itself be a violation. The Area has of Bartow County, Cherokee County, Circuit in Greenbaum v. EPA, 370 F.3d attained the NAAQS, as discussed in the Clayton County, Cobb County, Coweta 527, 540 (6th Cir. 2004), EPA ‘‘has been response to Comment 1, and met the County, DeKalb County, Douglas granted broad discretion by Congress in other criteria necessary for County, Fayette County, Forsyth

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County, Fulton County, Gwinnett the CAA. Accordingly, these actions report containing this action and other County, Henry County, Newton County, merely approve state law as meeting required information to the U.S. Senate, Paulding County, and Rockdale County federal requirements and do not impose the U.S. House of Representatives, and in the Atlanta Area for the 2008 8-hour additional requirements beyond those the Comptroller General of the United ozone NAAQS from nonattainment to imposed by state law. For this reason, States prior to publication of the rule in attainment, as found at 40 CFR part 81. these actions: the Federal Register. A major rule EPA is also notifying the public that • Are not significant regulatory cannot take effect until 60 days after it EPA finds the newly-established NOX actions subject to review by the Office is published in the Federal Register. and VOC MVEBs for the Atlanta Area of Management and Budget under This action is not a ‘‘major rule’’ as adequate for the purpose of Executive Orders 12866 (58 FR 51735, defined by 5 U.S.C. 804(2). transportation conformity. Within 24 October 4, 1993) and 13563 (76 FR 3821, Under section 307(b)(1) of the CAA, months from this final rule, the January 21, 2011); • petitions for judicial review of this transportation partners will need to Do not impose an information action must be filed in the United States

demonstrate conformity to the new NOX collection burden under the provisions Court of Appeals for the appropriate and VOC MVEBs pursuant to 40 CFR of the Paperwork Reduction Act (44 circuit by August 1, 2017. Filing a 93.104(e). U.S.C. 3501 et seq.); petition for reconsideration by the EPA has determined that these actions • Are certified as not having a Administrator of this final rule does not are effective immediately upon significant economic impact on a affect the finality of this action for the publication under the authority of 5 substantial number of small entities purposes of judicial review nor does it U.S.C. 553(d)(1) and (d)(3). The purpose under the Regulatory Flexibility Act (5 extend the time within which a petition of the 30-day waiting period prescribed U.S.C. 601 et seq.); in section 553(d) is to give affected • Do not contain any unfunded for judicial review may be filed, and parties a reasonable time to adjust their mandate or significantly or uniquely shall not postpone the effectiveness of behavior and prepare before the final affect small governments, as described such rule or action. This action may not rule takes effect. Section 553(d)(1) in the Unfunded Mandates Reform Act be challenged later in proceedings to allows an effective date less than 30 of 1995 (Pub. L. 104–4); enforce its requirements. See section days after publication if a substantive • Do not have Federalism 307(b)(2). rule ‘‘relieves a restriction.’’ These implications as specified in Executive List of Subjects actions qualify for the exception under Order 13132 (64 FR 43255, August 10, section 553(d)(1) because they relieve 1999); 40 CFR Part 52 • the State of various requirements for the Are not economically significant Environmental protection, Air Area. Furthermore, section 553(d)(3) regulatory actions based on health or pollution control, Incorporation by allows an effective date less than 30 safety risks subject to Executive Order reference, Intergovernmental relations, days after publication ‘‘as otherwise 13045 (62 FR 19885, April 23, 1997); • Lead, Nitrogen dioxide, Ozone, provided by the agency for good cause Are not significant regulatory Reporting and recordkeeping found and published with the rule.’’ actions subject to Executive Order requirements, Volatile organic EPA finds good cause to make these 13211 (66 FR 28355, May 22, 2001); compounds. actions effective immediately pursuant • Are not subject to requirements of to section 553(d)(3) because they do not section 12(d) of the National 40 CFR Part 81 create any new regulatory requirements Technology Transfer and Advancement Environmental protection, Air such that affected parties would need Act of 1995 (15 U.S.C. 272 note) because pollution control. time to prepare before the actions take application of those requirements would effect. be inconsistent with the CAA; and Dated: April 27, 2017. • Will not have disproportionate V. Anne Heard, IV. Statutory and Executive Order human health or environmental effects Acting Regional Administrator, Region 4. Reviews under Executive Order 12898 (59 FR Under the CAA, redesignation of an 7629, February 16, 1994). 40 CFR parts 52 and 81 are amended area to attainment and the The SIP is not approved to apply on as follows: accompanying approval of a any Indian reservation land or in any maintenance plan under section other area where EPA or an Indian tribe PART 52—APPROVAL AND 107(d)(3)(E) are actions that affect the has demonstrated that a tribe has PROMULGATION OF status of a geographical area and do not jurisdiction. In those areas of Indian IMPLEMENTATION PLANS impose any additional regulatory country, the rule does not have tribal requirements on sources beyond those implications as specified by Executive ■ 1. The authority citation for part 52 imposed by state law. A redesignation to Order 13175 (65 FR 67249, November 9, continues to read as follows: attainment does not in and of itself 2000), nor will it impose substantial Authority: 42 U.S.C. 7401 et seq. create any new requirements, but rather direct costs on tribal governments or results in the applicability of preempt tribal law. Subpart L—Georgia requirements contained in the CAA for The Congressional Review Act, 5 areas that have been redesignated to U.S.C. 801 et seq., as added by the Small ■ 2. In § 52.570, the table in paragraph attainment. Moreover, the Administrator Business Regulatory Enforcement (e) is amended by adding the entry is required to approve a SIP submission Fairness Act of 1996, generally provides ‘‘2008 8-hour ozone Maintenance Plan that complies with the provisions of the that before a rule may take effect, the for the Atlanta Area’’ at the end of the Act and applicable federal regulations. agency promulgating the rule must table to read as follows: See 42 U.S.C. 7410(k); 40 CFR 52.02(a). submit a rule report, which includes a Thus, in reviewing SIP submissions, copy of the rule, to each House of the § 52.570 Identification of plan. EPA’s role is to approve state choices, Congress and to the Comptroller General * * * * * provided that they meet the criteria of of the United States. EPA will submit a (e) * * *

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EPA-APPROVED GEORGIA NON-REGULATORY PROVISIONS

State Name of Applicable submittal nonregulatory geographic or date/ EPA approval Explanation SIP provision nonattainment effective date area date

******* 2008 8-hour ozone Main- Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, 7/18/2016 6/2/2017, [insert Federal tenance Plan for the At- Douglas, Fayette, Forsyth, Fulton, Gwinnett, Register citation]. lanta Area. Henry, Newton, Paulding and Rockdale Counties.

PART 81—DESIGNATION OF AREAS Authority: 42 U.S.C. 7401, et seq. by revising the entry for ‘‘Atlanta, GA: 2’’ to read as follows: FOR AIR QUALITY PLANNING ■ PURPOSES 4. In § 81.311, the table entitled ‘‘Georgia—2008 8-Hour Ozone NAAQS § 81.311 Georgia. ■ 3. The authority citation for part 81 (Primary and secondary)’’ is amended * * * * * continues to read as follows:

GEORGIA—2008 8-HOUR OZONE NAAQS [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

Atlanta, GA: 2 ...... 6/2/2017 Attainment. Bartow County ...... Attainment. Cherokee County ...... Attainment. Clayton County ...... Attainment. Cobb County ...... Attainment. Coweta County ...... Attainment. DeKalb County ...... Attainment. Douglas County ...... Attainment. Fayette County ...... Attainment. Forsyth County ...... Attainment. Fulton County ...... Attainment. Gwinnett County ...... Attainment. Henry County ...... Attainment. Newton County ...... Attainment. Paulding County ...... Attainment. Rockdale County ...... Attainment.

******* 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted.

* * * * * rule issued in the Federal Register on Constitution Ave. NW., Washington, DC [FR Doc. 2017–10934 Filed 6–1–17; 8:45 am] January 4, 2017, from June 5, 2017 to 20460–0001. The Public Reading Room BILLING CODE 6560–50–P May 22, 2018. That rule addressed is open from 8:30 a.m. to 4:30 p.m., revisions to the Certification of Pesticide Monday through Friday, excluding legal Applicators rule. holidays. The telephone number for the ENVIRONMENTAL PROTECTION Public Reading Room is (202) 566–1744, DATES: The effective date of the rule AGENCY and the telephone number for the OPP amending 40 CFR part 171 that Docket is (703) 305–5805. Please review published at 82 FR 952, January 4, 2017, 40 CFR Part 171 the visitor instructions and additional delayed at 82 FR 8499, January 26, 2017, information about the docket available and 82 FR 14324, March 20, 2017, is [EPA–HQ–OPP–2011–0183; FRL–9963–34] at http://www.epa.gov/dockets. further delayed until May 22, 2018. Pesticides; Certification of Pesticide FOR FURTHER INFORMATION CONTACT: ADDRESSES: The docket for this action, Applicators; Delay of Effective Date Kevin Keaney, Field and External identified by docket identification (ID) Affairs Division (7506P), Office of AGENCY: Environmental Protection number EPA–HQ–OPP–2011–0183, is Pesticide Programs, Environmental Agency (EPA). available at http://www.regulations.gov Protection Agency, 1200 Pennsylvania or at the Office of Pesticide Programs ACTION: Final rule; delay of effective Ave. NW., Washington, DC 20460; Regulatory Public Docket (OPP Docket) date. telephone number: (703) 305–5557; in the Environmental Protection Agency email address: [email protected]. SUMMARY: With this action, EPA is Docket Center (EPA/DC), West William delaying the effective date for the final Jefferson Clinton Bldg., Rm. 3334, 1301 SUPPLEMENTARY INFORMATION:

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I. General Information 2017 in order to allow additional time effective date and the rest opposed the On January 4, 2017, EPA published a for Agency officials to consider and proposed 12-month extension. final rule revising the regulation respond to the public comments. Comments—specific provisions. concerning the certification of Section 553(d) of the Administrative About 20 of the comments included input on the specific provisions of the applicators of restricted use pesticides Procedure Act, 5 U.S.C. 553(d), allows January 4, 2017 Certification of (RUPs), promulgated in 40 CFR part 171 the effective date of an action to be less Pesticide Applicators rule. (82 FR 952; FRL–9956–70). The original than 30 days from its publication date when a good cause finding is made. The EPA response—specific provisions. effective date of March 6, 2017 was This final rule focuses on the extension extended to March 21, 2017 by a final primary reason for the 30-day waiting period between publication and of the effective date of the certification rule published in the Federal Register rule. Comments on the specific on January 26, 2017, entitled ‘‘Delay of effective date is to allow affected parties to adjust to new requirements. This rule provisions of the revised certification Effective Date for 30 Final Regulations rule are outside of the scope of this final Published by the Environmental does not impose any new requirements but rather postpones the effective date rule and will be considered within the Protection Agency Between October 28, review of the rule through the 2016 and January 17, 2017’’ (82 FR of requirements that are not yet in effect. As noted below, allowing the rule to go Regulatory Reform Agenda efforts. 8499). In that rule, EPA delayed the Comments—support. The comments into effect could cause confusion and effective dates of the thirty regulations, supporting the 12-month extension of disruption for affected parties if the rule including the final rule revising the the effective date came from state were subsequently substantially revised regulation concerning the certification pesticide regulatory agencies, a or repealed. Thus, EPA finds there is of applicators of restricted use pesticide safety education program and good cause to make this rule effective pesticides (RUPs) issued on January 4, a number of organizations representing immediately upon publication. 2017 (82 FR 952) (FR–9956–70), as state departments of agriculture, requested in the memorandum of In addition, EPA still has only one pesticide safety education programs, January 20, 2017, from the Assistant to Senate-confirmed official, and the new pesticide applicators, growers, pesticide the President and Chief of Staff, entitled Administration has not had the time to manufacturers, and pesticide retailers. ‘‘Regulatory Freeze Pending Review’’ adequately review the January 4, 2017 The commenters supported the 12- (January 20 Memorandum). The January certification rule. This extension to May month extension for a variety of reasons. 20 Memorandum directed the heads of 22, 2018, will prevent the confusion and The most common reason was to allow Executive Departments and Agencies to disruption among regulatees and EPA and states more time to prepare for postpone for 60 days from the date of stakeholders that would result if the the revisions to state certification the January 20 Memorandum the January 4, 2017 rule were to become programs, engage stakeholders, and effective dates of all regulations that had effective (displace the existing develop information the states need to been published in the Federal Register regulation) and then substantially efficiently implement the January 4, but had not yet taken effect. revised or repealed as a result of 2017 rule. Some commenters supported The January 20 Memorandum further administrative review. the 12-month extension to give EPA directed that where appropriate and as In this final rule, EPA is delaying the time to revisit certain aspects of the permitted by applicable law, agencies effective date of the January 4, 2017 January 4, 2017 rule and identified should consider a rule to delay the revisions to the Certification of Pesticide specific requirements, such as minimum effective date for regulations beyond Applicators rule until May 22, 2018. age. that 60-day period. Accordingly, on EPA is delaying the effective date of the EPA response—support. EPA March 20, 2017, EPA published the final January 4, 2017 revisions to the generally agrees with these comments. rule ‘‘Further Delay of Effective Dates Certification of Pesticide Applicators During the next 12 months, EPA plans for Five Final Regulations Published by rule until May 22, 2018 in accordance to engage and work with the certifying the Environmental Protection Agency with the Presidential directives as authorities (states, tribes and federal Between December 12, 2016 and expressed in the memorandum of agencies), pesticide safety education January 17, 2017’’ (82 FR 14324), to give January 20, 2017, from the Assistant to programs, pesticide applicators and recently arrived Agency officials the the President and Chief of Staff, entitled other stakeholders to develop checklists, opportunity to conduct a substantive ‘‘Regulatory Freeze Pending Review,’’ guidance and tools to facilitate the review of those five regulations, which and the principles identified in the development of revised certification included the revised Certification of April 25, 2017 Executive Order plans and to discuss how to effectively Pesticide Applicators rule. Pursuant to ‘‘Promoting Agriculture and Rural implement the certification rule. In that March 20, 2017 rule, the effective Prosperity in America.’’ addition, EPA will conduct a date of the revised Certification of substantive review of the questions of II. Comments and Responses Pesticide Applicators rule was extended fact, law and policy—all within the to May 22, 2017. EPA received more than 130 context of the very broad cost-benefit On May 15, 2017, EPA solicited comments relevant to the proposal to standard in FIFRA—during this period. public comment on a proposed 12- further delay the effective date of the As mentioned above, comments on the month delay of the effective date until January 4, 2017 Certification of specific provisions of the revised May 22, 2018 (82 FR 22294; FRL–9962– Pesticide Applicators rule until May 22, certification rule will be considered 31). EPA received more than 130 2018. Seventeen comments were not within the review of the rule through comments in response to the May 15, relevant to this action because they did the Regulatory Reform Agenda efforts. 2017 request for comments on the not address the extension of the Comments—adjust implementation proposal to further delay the effective effective date and instead urged EPA to schedule. One state pesticide regulatory date until May 22, 2018. On May 22, ban chlorpyrifos or only included agency supported the 12-month 2017, EPA published a rule that made specific comments about the January 4, extension of the effective date of the an interim extension of the effective 2017 rule. Out of the relevant Certification of Pesticide Applicators date of the revised Certification of comments, 18 commenters supported Rule as long as the implementation Pesticide Applicators rule until June 5, the proposed 12-month extension of the schedule in the January 4, 2017 rule is

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extended as well. This implementation with one stating that, for that reason, the rule that a full 30-day comment period schedule allowed three years for rule to extend the compliance date is is impractical, unnecessary and contrary certifying authorities to submit revised arbitrary and capricious and an abuse of to the public interest. plans and an additional two years for discretion. The commenters questioned EPA response—APA. The May 15, EPA to review the plans and agree upon what steps have been taken during the 2017 FR Notice was styled as a final rule a timeline for the certifying authority to previous 4 months of extensions, what to be consistent with standard implement the plan. analyses would be done in the next year procedures of the Office of the Federal EPA response—adjust and why EPA needs 12 more months. Register, which require that rules that implementation schedule. EPA agrees EPA response—basis for extension. affect existing rules (in the case of rules with this comment and intends to make Out of the 30 final regulations whose that address changing the effective date corresponding changes to the effective dates were delayed by the of an existing rule) must appear in the implementation dates in 40 CFR 171.5 January 26, 2017 final rule, this is one ‘‘Final Rules’’ section of the Federal in a subsequent rulemaking. of the few regulations with an effective Register. See OFR Document Drafting Comments—implement protections date that has been extended several Handbook (https://www.archives.gov/ sooner. The commenters opposing the more times. The Administrator has files/federal-register/write/handbook/ 12-month extension included over 30 determined that the certification rule ddh.pdf ) at section 3.1. Irrespective of non-governmental organizations requires a substantive review of the the ‘‘Final Rule’’ caption, EPA considers representing a range of interests, questions of fact, law and policy—all the May 15 Federal Register Notice to including but not limited to farm within the context of the very broad have the effect of a proposed rule under workers, environmental advocates, cost-benefit standard in FIFRA—so an the APA. This is clear from the phrase occupational or migrant health clinics additional 12 months is necessary and ‘‘request for comments’’ in the action and employment law, and many private will provide more certainty to certifying line, as well as from the text of the FR citizens. The concerns raised by the authorities, pesticide safety education Notice, where EPA expressly stated that commenters opposed to the delay programs, pesticide applicators and it was ‘‘proposing to further delay the covered several areas, which are other stakeholders than to have several effective date’’ and requested comment summarized and responded to below. medium term extensions. Extending the on the proposed extension. The commenters urged EPA to begin rule by 12 months is also more efficient The Agency’s implementation of this implementing the rule in May 2017 to for EPA staff and allows them to focus action with an abbreviated opportunity allow the intended protections to apply on the substantive review rather than for public comment is based on the good sooner. A few commenters argued that drafting and implementing several cause exception in 5 U.S.C. 553(b)(B), in the extension would increase the risk of medium term extensions. The 12-month that providing additional time for public serious adverse effects on human health extension also provides time for EPA to comment is impracticable, unnecessary and the environment and one consider revisions to the certification and contrary to the public interest. The commenter pointed out that EPA rule based on input received through delay of the effective date until May 22, identified preventable restricted use the Regulatory Reform Agenda efforts. 2018, is necessary to give Agency pesticide exposures to humans and the Comments—Administrative officials the opportunity for further environment in the January 4, 2017 rule. Procedures Act. Several comments review and consideration of the This commenter stated that delaying the argued that the May 15, 2017 rule certification rule, consistent with the rule by a year means these types of violated the Administrative Procedures memorandum of the Assistant to the exposures will occur for an additional Act (APA) in several ways. First, President and Chief of Staff, dated year. commenters argued that the May 15 rule January 20, 2017, and the principles EPA response—implement is a ‘‘final rule’’ that makes a significant identified in the April 25, 2017 protections sooner. The January 4, 2017 amendment to a lawfully promulgated Executive Order ‘‘Promoting Agriculture final certification rule would not have regulation without first proposing the and Rural Prosperity in America.’’ immediately put in place additional change and seeking public comment. Given the imminence of the certification protections that would prevent or Second, commenters raised a number of rule effective date, allowing a longer eliminate the types of exposures concerns about the five-day comment period for comment on this delay would identified by EPA in its benefits period. Specifically, commenters argued have been impractical, as well as analysis. The January 4, 2017 rule that a delay of the effective date for 12 contrary to the public interest in the included an implementation schedule months is functionally a substantive orderly promulgation and where the certifying authorities would amendment or rescission of the implementation of regulations. have up to three years to submit revised certification rule so the APA and FIFRA The 90-day comment period for the certification plans that conform to the require a notice and comment period of 2015 proposed rule, combined with revised standards, so there already was at least 30 days. Commenters also stated EPA’s extensive stakeholder outreach, going to be a delay in the protections that sections 553(d)(1) and (d)(3) of the provided EPA with robust public actually being implemented by the APA are inapposite (not pertinent) as comment regarding the risks and certifying authorities. If EPA develops legal authority for dispensing with a benefits associated with the January 4, checklists, guidance and tools to ‘‘full . . . comment period’’ because 2017 certification rule. Inasmuch as facilitate the development of revised these sections provide grounds to the there was already a robust public certification plans during the 12-month generally applicable requirement that no comment on the merits of the delay, it is possible that many certifying final rule take effect sooner than 30 days certification rule, the narrow issue of authorities will be able to submit the after its publication but not the length when the rule should become effective revised certification plans well before of the comment period. Some could reasonably be addressed in a short the three-year deadline for submitting commenters argued that the good cause period of time. If EPA had not shortened plans. exception to the APA’s notice the comment period to five days, the Comments—basis for extension. requirement in 5 U.S.C. 553(b)(B) is not January 4, 2017 certification rule would Several commenters argued that EPA relevant to the May 15, 2017 rule. have gone into effect. It would have did not provide a rational basis for Lastly, commenters disagreed with caused unnecessary confusion and extending the effective date by a year, EPA’s reasoning in the May 15, 2017 disruption to certifying authorities,

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pesticide safety education programs, C. Regulatory Flexibility Act (RFA) Executive Order 12898 (59 FR 7629, pesticide applicators and other I certify that this action will not have February 16, 1994). stakeholders for the certification rule to a significant economic impact on a K. Congressional Review Act (CRA) go into effect and then potentially be substantial number of small entities This action is subject to the CRA, 5 substantially revised or repealed under RFA, 5 U.S.C. 601 et seq. following a substantive review. U.S.C. 801 et seq., and EPA will submit Comments—FIFRA. Some D. Unfunded Mandates Reform Act a rule report to each House of the commenters argued that the May 15, (UMRA) Congress and to the Comptroller General 2017 rule violates FIFRA, which This action does not contain an of the United States. This action is not requires rules to be reviewed by the U.S. unfunded mandate of $100 million or a ‘‘major rule’’ as defined by 5 U.S.C. Department of Agriculture and the more as described in UMRA, 2 U.S.C. 804(2). FIFRA Scientific Advisory Panel. FIFRA 1531–1538, and does not significantly or List of Subjects in 40 CFR Part 171 uniquely affect small governments. also requires a 60-day effective date and Environmental protection, Applicator requires EPA to transmit a copy of the E. Executive Order 13132: Federalism competency, Agricultural worker safety, final rule to Congress at the beginning This action does not have federalism Certified applicator, Pesticide safety of this 60-day period. training, Pesticide worker safety, EPA response—FIFRA. EPA disagrees implications, as specified in Executive Order 13132 (64 FR 43255, August 10, Pesticides and pests, Restricted use that the proposed extension of the pesticides. effective date of the certification rule 1999). It will not have substantial direct Dated: May 26, 2017. violates FIFRA. EPA is issuing this effects on the States, on the relationship extension of the effective date of the between the national government and Wendy Cleland-Hamnett, certification rule as an APA rule and not the States, or on the distribution of Acting Assistant Administrator, Office of a FIFRA rule because today’s rule is power and responsibilities among the Chemical Safety and Pollution Prevention. only changing the effective date of a various levels of government. [FR Doc. 2017–11458 Filed 6–1–17; 8:45 am] final rule that had not become effective. F. Executive Order 13175: Consultation BILLING CODE 6560–50–P Comments—Endangered Species Act. and Coordination With Indian Tribal Governments A few commenters argued that the May ENVIRONMENTAL PROTECTION 15, 2017 rule violates the Endangered This action does not have Tribal AGENCY Species Act. Section 7 of the ESA implications, as specified in Executive requires federal agencies to consult with Order 13175 (65 FR 67249, November 9, 40 CFR Part 180 the Fish and Wildlife Service and the 2000). National Marine Fisheries Service [EPA–HQ–OPP–2016–0236; FRL–9954–47] unless EPA determined that its G. Executive Order 13045: Protection of Children From Environmental Health Bifenthrin; Pesticide Tolerances for extension of the effective date has ‘‘no Emergency Exemptions effect’’ on threatened and endangered Risks and Safety Risks species and their designated critical This action is not subject to Executive Correction habitat. Order 13045 (62 FR 19885, April 23, In rule document 2016–29882, EPA response—Endangered Species 1997) because it is not an economically appearing on pages 93824–93831, in the Act. EPA believes that its actions with significant regulatory action as defined Issue of Thursday, December 22, 2016, respect to deferring the implementation by Executive Order 12866. make the following correction: of this rule are not inconsistent with its On page on page 93827, in the second H. Executive Order 13211: Actions ≤ obligations under the Endangered Concerning Regulations That column, in the last line ‘‘( 15% CT)’’ Species Act. Significantly Affect Energy Supply, should be ‘‘(>15% CT)’’. III. Statutory and Executive Order Distribution, or Use [FR Doc. C2–2016–29882 Filed 6–1–17; 8:45 am] Reviews This action is not a ‘‘significant BILLING CODE 6560–50–P energy action’’ as defined in Executive Additional information about these Order 13211 (66 FR 28355, May 22, statutes and Executive Orders can be ENVIRONMENTAL PROTECTION 2001), because it is not likely to have a found at http://www2.epa.gov/laws- AGENCY significant adverse effect on the supply, regulations/laws-and-executive-orders. distribution or use of energy. 40 CFR Part 258 A. Executive Order 12866: Regulatory I. National Technology Transfer and Planning and Review; and, Executive [EPA–R08–RCRA–2016–0505; FRL–9962– Advancement Act (NTTAA) Order 13563: Improving Regulation and 18–Region 8] This rulemaking does not involve Regulatory Review Approval of Alternative Final Cover technical standards that would require Request for Phase 2 of the City of Wolf This action is not a significant Agency consideration under NTTAA Point, Montana, Landfill regulatory action and was therefore not section 12(d), 15 U.S.C. 272 note. submitted to the Office of Management AGENCY: J. Executive Order 12898: Federal Environmental Protection and Budget (OMB) for review under Agency (EPA). Executive Orders 12866 (58 FR 51735, Actions To Address Environmental ACTION: Direct final rule. October 4, 1993) and 13563 (76 FR 3821, Justice in Minority Populations and January 21, 2011). Low-Income Populations SUMMARY: The U.S. Environmental B. Paperwork Reduction Act EPA believes that this action would Protection Agency (EPA) is taking direct not have disproportionately high and final action to approve an alternative This action does not involve any adverse human health or environmental final cover for Phase 2 of the City of information collection activities subject effects on minority, low-income, or Wolf Point landfill, a municipal solid to the PRA, 44 U.S.C. 3501 et seq. indigenous populations, as specified in waste landfill (MSWLF) owned and

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operated by the City of Wolf Point, you for clarification, the EPA may not site-specific flexibility request to install Montana, on the Assiniboine and Sioux be able to consider your comment. an alternative final cover that varies Tribes’ Fort Peck Reservation in Electronic files should avoid the use of from the final closure requirements of Montana. special characters, any form of 40 Code of Federal Regulations (CFR) DATES: This rule is effective on August encryption and be free of any defects or 258.60(a), but meets the criteria at 40 1, 2017 without further notice, unless viruses. Multimedia submissions (audio, CFR 258.60(b). This approval applies to the EPA receives relevant adverse video, etc.) must be accompanied by a the 3.5 acres of the landfill that have not comment by July 3, 2017. If the EPA written comment. The written comment been previously closed. receives relevant adverse comment, we is considered the official comment and III. What is a site-specific flexibility will publish a timely withdrawal in the should include discussion of all points request? you wish to make. The EPA will Federal Register informing the public Under Sections 1008, 2002, 4004, and that the rule will not take effect. generally not consider comments or comment contents located outside of the 4010 of the Resource Conservation and ADDRESSES: Submit your comments, primary submission (i.e., on the web, Recovery Act of 1976 (RCRA), as identified by Docket ID No. EPA–R08– cloud, or other file sharing system). For amended by the Hazardous and Solid RCRA–2016–0505, by one of the additional submission methods, the full Waste Amendments of 1984 (HSWA), following methods: the EPA established revised minimum • EPA public comment policy, Online: http://www.regulations.gov. federal criteria for MSWLFs, including Follow the online instructions for information about CBI or multimedia submissions, and general guidance on landfill location restrictions, operating submitting comments. Once submitted, standards, design standards and comments cannot be edited or removed making effective comments, please visit http://www2.epa.gov/dockets/ requirements for ground water from regulations.gov. monitoring, corrective action, closure • commenting-epa-dockets. Email: [email protected]. and post-closure care, and financial • Mail: Michael Roach, FOR FURTHER INFORMATION CONTACT: assurance. Under RCRA Section 4005(c), Environmental Protection Agency Michael Roach, Resource Conservation states are required to develop permit Region 8, Mail Code 8P–R, 1595 and Recovery Program, Environmental programs for facilities that may receive Wynkoop Street, Denver, Colorado Protection Agency Region 8, Mail Code: household hazardous waste or waste 80202. 8P–R, 1595 Wynkoop Street, Denver, from conditionally exempt small • Hand delivery: Environmental Colorado 80202; telephone number: quantity generators, and the EPA Protection Agency Region 8, 1595 (303) 312–6369; email address: determines whether the program is Wynkoop Street, Denver, Colorado [email protected]. adequate to ensure that facilities will 80202. Such deliveries are only SUPPLEMENTARY INFORMATION: comply with the revised criteria. accepted during normal hours of The MSWLF criteria are at 40 CFR I. Why is EPA using a direct final rule? operation, which are Monday through part 258. These regulations are self- Friday from 8:00 a.m. until 4:30 p.m. The EPA is publishing this rule implementing and apply directly to Instructions: Direct your comments to without a prior proposal because we owners and operators of MSWLFs. For Docket ID No. EPA–R08–RCRA–2016– view this as a noncontroversial action many of these criteria, 40 CFR part 258 0505. The EPA may publish any and anticipate no relevant adverse includes a flexible performance comment received to its public docket, comment. However, in the ‘‘Proposed standard as an alternative to the self- without change and may be available Rules’’ section of the Federal Register, implementing regulation. The flexible online at http://www.regulations.gov, we are publishing a separate document standard is not self-implementing, and including any personal information that will serve as the proposed rule to use of the alternative standard requires provided, unless the comment includes approve the alternative final cover approval by the Program Director of a information claimed to be Confidential request for Phase 2 of the City of Wolf state with an EPA-approved program. Business Information (CBI) or other Point, Montana, landfill if relevant Because the EPA’s approval of a state information whose disclosure is adverse comments are received on this program does not extend to Indian restricted by statute. Do not submit direct final rule. We will not institute a country, as that term is defined at 18 information that you consider to be CBI second comment period on this action. United States Code (U.S.C.) 1151, or otherwise protected through http:// Any parties interested in commenting owners and operators of MSWLF units www.regulations.gov or by email. The must do so at this time. For further located in Indian country cannot take http://regulations.gov Web site is an information about commenting on this advantage of the flexibilities available to ‘‘anonymous’’ system, which means the rule, see the ADDRESSES section of this those facilities subject to an approved EPA will not know your identity or document. state program. However, the EPA has contact information unless you provide If the EPA receives relevant adverse the authority under Sections 2002, 4004, it in the body of your comment. If you comments, we will publish a timely and 4010 of RCRA to promulgate site- send an email comment directly to the withdrawal in the Federal Register specific rules that may provide for use EPA rather than going through http:// informing the public that this direct of alternative standards in Indian www.regulations.gov, your email final rule will not take effect. We would country. See Yankton Sioux Tribe v. address will be captured automatically address all public comments in any EPA, 950 F. Supp. 1471 (D.S.D. 1996); and included as part of the comment subsequent final rule based on the Backcountry Against Dumps v. EPA, that is placed in the public docket and proposed rule. 100 F.3d. 147 (D.C. Cir. 1996). made available on the Internet. If you The regulation at 40 CFR 258.60(a) II. What did EPA approve? submit an electronic comment, the EPA establishes closure criteria for MSWLF recommends that you include your After completing a review of the City units that are designed to minimize name and other contact information in of Wolf Point’s final site-specific infiltration and erosion. The regulation the body of your comment and with any flexibility request, dated May 1, 2011, requires final cover systems to be disk or CD–ROM you submit. If the EPA and the amendments to that request, designed and constructed to: cannot read your comment due to dated February 23, 2015, and February (1) Have a permeability of less than or technical difficulties and cannot contact 9, 2016, the EPA approves Wolf Point’s equal to the permeability of any bottom

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liner system or natural sub-soils present, install an alternative final landfill cover have federalism implications. It will not or a permeability no greater than 1 × that meets the requirements of 40 CFR have substantial direct effects on the 10¥5 cm/sec, whichever is less, and 258.60(b). states, on the relationship between the (2) Minimize infiltration through the The EPA is basing its approval on a national government and the states, or closed MSWLF by the use of an number of factors, including final cover on the distribution of power and infiltration layer that contains a design, numerical soil modeling and responsibilities among the various minimum of 18 inches of earthen site-specific climatic and soils data. The levels of government, as specified in material, and numerical soil modeling consisted of a Executive Order 13132, ‘‘Federalism,’’ (3) Minimize erosion of the final cover sensitivity analysis of the proposed (64 FR 43255, August 10, 1999). Thus, by the use of an erosion layer that evapotranspiration alternative final Executive Order 13132 does not apply contains a minimum of 6 inches of cover system under a range of climate to this rule. earthen material that is capable of and vegetative growth conditions, This rule is also not subject to sustaining native plant growth. compared to the performance of the Executive Order 13045, ‘‘Protection of The regulation at 40 CFR 258.60(b) standard final cover prescribed in 40 Children From Environmental Health allows for variances from these CFR 258.60. The EPA has determined Risks and Safety Risks’’ (62 FR 19885, specified MSWLF closure criteria. that the evapotranspiration cover will April 23, 1997), because it is not Specifically, the rule allows for the perform equivalently to the standard economically significant as defined in Program Director of an approved state to prescriptive cover in 40 CFR 258.60(a) Executive Order 12866, and because the approve an alternative final cover in preventing the movement of leachate agency does not have reason to believe design that includes: through the system and erosion caused the environmental health or safety risks (1) An infiltration layer that achieves by wind and water. addressed by this action present a an equivalent reduction in infiltration as As part of this approval, the EPA is disproportionate risk to children. The the infiltration layer specified in requiring that upon finalization, the City basis for this belief is the EPA’s paragraphs (a)(1) and (a)(2) of 40 CFR of Wolf Point submit a complete set of conservative analysis of the potential 258.60, and final cover plans and specifications, risks posed by the City of Wolf Point’s (2) An erosion layer that provides including a construction quality proposal and the controls and standards equivalent protection from wind and assurance/quality control plan and set forth in the application. water erosion as the erosion layer closure/post-closure plan to the EPA. This rule is not subject to Executive specified in paragraph (a)(3) of 40 CFR The EPA further requires the City of Order 13211, ‘‘Actions Concerning 258.60. Wolf Point achieve revegetation rates of Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 IV. Overview of the City of Wolf Point’s greater than 75 percent on Phase 2 of the FR 28355, May 22, 2001), because it is Site-Specific Flexibility Request and closed landfill by the end of the third not a significant regulatory action under EPA’s Action year after revegetation. Finally, the EPA requires that the City of Wolf Point Executive Order 12866. The City of Wolf Point landfill is a maintain all documentation As required by section 3 of Executive MSWLF owned and operated by the demonstrating compliance with plans Order 12988, ‘‘Civil Justice Reform,’’ (61 City of Wolf Point on the Assiniboine and specifications, and 40 CFR FR 4729, February 7, 1996), in issuing and Sioux Tribes’ Fort Peck Reservation 258.60(a)(1), (2), and (3) in the landfill this rule, the EPA has taken the in Montana. The landfill site is operating record. necessary steps to eliminate drafting approximately 25 acres in size and errors and ambiguity, minimize served approximately 10,000 people in V. Statutory and Executive Order potential litigation and provide a clear Roosevelt County, including the City of Reviews legal standard for affected conduct. Wolf Point and the City of Poplar. The Under Executive Order 12866, Executive Order 13175, entitled landfill lies within the boundaries of the ‘‘Regulatory Planning and Review’’ (58 ‘‘Consultation and Coordination with Fort Peck Reservation. The landfill itself FR 51735, October 4, 1993), this rule is Indian Tribal Governments’’ (65 FR consists of two phases, or units, used as not a ‘‘significant regulatory action’’ and 67249, November 9, 2000), calls for the the area’s municipal landfill. Phase 1, therefore is not a regulatory action EPA to develop an accountable process constructed in 1960, was closed and subject to review by the Office of to ensure ‘‘meaningful and timely input covered in 1999. Phase 2 was Management and Budget (OMB). by tribal officials in the development of constructed in 2000 and stopped This rule does not impose an regulatory policies that have Tribal receiving waste in August 2008. information collection burden under the implications.’’ The EPA has concluded On May 1, 2011, the City of Wolf provisions of the Paperwork Reduction that this action may have Tribal Point submitted a site-specific flexibility Act of 1995 (44 U.S.C. 3501 et seq.) implications because it is directly request to the EPA Region 8 and the because it applies to a particular facility applicable to a facility operating on the Assiniboine and Sioux Tribes for Phase only. Assiniboine and Sioux Tribes’ Fort Peck 2 of the Wolf Point landfill. The request Because this rule is of particular Reservation. However, this sought EPA approval for the use of an applicability relating to a particular determination will neither impose alternative final cover that differs from facility, it is not subject to the regulatory substantial direct compliance costs on the final closure requirements of 40 CFR flexibility provisions of the Regulatory Tribal governments nor preempt Tribal 258.60. This request applies only to Flexibility Act (5 U.S.C. 601 et seq.), or law. This determination to approve the Phase 2, the 3.5 acres of the landfill not to sections 202, 204, and 205 of the City of Wolf Point’s application will previously closed. Unfunded Mandates Reform Act of 1995 affect only the operation of the Wolf Between May 1, 2011, and February 9, (UMRA) (Pub. L. 104–4). Because this Point landfill. 2016, the City of Wolf Point made rule will affect only a particular facility, The EPA consulted with the revisions to its request in response to it will not significantly or uniquely Assiniboine and Sioux Tribes early in concerns raised by the EPA Region 8 affect small governments, as specified in the process of making this and the Assiniboine and Sioux Tribes. section 203 of UMRA. determination to approve Wolf Point’s Today, the EPA is approving Wolf Because this rule will affect only a alternative final cover request so that Point’s site-specific flexibility request to particular facility, this rule does not the Tribes had the opportunity to

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provide meaningful and timely input. Authority: 33 U.S.C. 1345(d) and (e); 42 FEDERAL COMMUNICATIONS Between May 1, 2011, and February 9, U.S.C. 6902(a), 6907, 6912(a), 6944, 6945(c), COMMISSION 2016, technical issues were raised and 6949a(c) and 6981(a). 47 CFR Part 36 addressed by the EPA concerning the Subpart F—Closure and Post-Closure City of Wolf Point’s proposal. The EPA’s Care [CC Docket 80–286; FCC 17–55] consultation with the Tribes culminated in a May 19, 2016 letter from the Tribes ■ 2. Section 258.62 is amended by Jurisdictional Separations and Referral in which they stated that they have no adding paragraph (c) to read as follows: to the Federal-State Joint Board issues with the Wolf Point proposal. * * * * * The EPA specifically solicits any AGENCY: Federal Communications additional comment on this § 258.62 Approval of site-specific flexibility Commission. determination from Tribal officials of requests in Indian country. ACTION: Final rule. the Assiniboine and Sioux Tribes. (c) City of Wolf Point Municipal SUMMARY: In this document, the Section 12(d) of the National Landfill final cover requirements. Commission extends the existing freeze Technology Transfer and Advancement Paragraph (c) of this section applies to of jurisdictional separations rules. The Act of 1995 (15 U.S.C. 272 note) directs the City of Wolf Point Landfill Phase 2, current extension allows the the EPA to use voluntary consensus a municipal solid waste landfill owned Commission, in cooperation with the standards in its regulatory activities and operated by the City of Wolf Point Federal-State Joint Board, to consider unless doing so would be inconsistent on the Assiniboine and Sioux Tribes’ further changes to the separations with applicable law or otherwise Fort Peck Reservation in Montana. The process in light of changes taking place impractical. Voluntary consensus facility owner and/or operator may close in the telecommunications market standards are technical standards, (e.g., the facility in accordance with this place. The freeze also serves to ease the materials specification, test methods, application, including the following burdens of regulatory compliance and sampling procedures, and business activities more generally described as uncertainty for Local Exchange Carriers. practices) that are developed or adopted follows: by voluntary consensus standard bodies. (1) The owner and operator may DATES: Effective June 2, 2017. The NTTAA directs the EPA to provide install an evapotranspiration system as ADDRESSES: Federal Communications Congress, through OMB, explanations an alternative final cover for the 3.5-acre Commission, 445 12th Street SW., when the agency decides not to use Phase 2 area. Washington, DC 20554. available and applicable voluntary (2) The final cover system shall FOR FURTHER INFORMATION CONTACT: consensus standards. consist of a 4-foot-thick multi-layer Rhonda Lien, Pricing Policy Division, The technical standards included in cover system comprised of the following Wireline Competition Bureau, at (202) the application were proposed by the from bottom to top: A 12-inch 418–1540 or at [email protected]. intermediate layer, a 24-inch native City of Wolf Point. Given the EPA’s SUPPLEMENTARY INFORMATION: This is a silty-clay till layer, and a 12-inch native obligations under Executive Order summary of the Commission’s Report topsoil layer, as well as seeding and 13175 (see above), the agency has, to the and Order, FCC 17–55 released May 15, extent appropriate, applied the erosion control. (3) The final cover system shall be 2017. The full text of this document is standards established by Wolf Point and constructed to achieve an equivalent available for public inspection during accepted by the Tribes. In addition, the reduction in infiltration as the regular business hours in the FCC agency evaluated the proposal’s design infiltration layer specified in Reference Center, Room CY–A257, 445 against the engineering design and § 258.60(a)(1) and (a)(2), and provide an 12th Street SW., Washington, DC 20554. construction criteria contained in the equivalent protection from wind and The full-text copy of this document can EPA draft guidance document, ‘‘Water also be found at the following internet water erosion as the erosion layer _ Balance Covers for Waste Containment: specified in paragraph (a)(3) of this address: https://apps.fcc.gov/edocs Principles and Practice (2009).’’ section. public/attachmatch/FCC-17-55A1.docx. Authority: Sections 1008, 2002, 4004, and (4) In addition to meeting the Synopsis 4010 of the Solid Waste Disposal Act, as specifications of ‘‘The City of Wolf Point amended, 42 U.S.C. 6907, 6912, 6944, and Landfill License #3—Phase 2 I. Background 6949a. Alternative Final Cover Demonstration 1. Historically, incumbent LECs List of Subjects in 40 CFR Part 258 (Revised)’’ application of February 9, (ILECs) were subject to rate-of-return 2016, the owner and operator shall: rate regulation at both the federal and Environmental protection, (i) At finalization, submit to the EPA state levels. After the adoption of the Incorporation by reference, Municipal for approval final cover plans and 1996 Telecommunications Act (1996 landfills, Reporting and recordkeeping specifications, including the final Act), the Commission initiated a requirements, Waste treatment and Construction Quality Assurance/Quality proceeding to comprehensively reform disposal. Control Plan and final Closure/Post- the part 36 separations procedures to Dated: April 17, 2017. Closure Plan; and ensure compliance with the objectives Debra H. Thomas, (ii) Achieve re-vegetation rates greater of the 1996 Act, and to address Acting Regional Administrator, Region 8. than 75% by the end of the third year statutory, technological, and market after revegetation. For the reasons stated in the changes in the telecommunications (5) The owner and operator shall industry. preamble, 40 CFR part 258 is amended place documentation demonstrating as follows: 2. Jurisdictional separations is the compliance with the provisions of this third step in a four-step regulatory PART 258—CRITERIA FOR MUNICIPAL section in the operating record. process that begins with a carrier’s (6) All other applicable provisions of SOLID WASTE LANDFILLS accounting system and ends with the 40 CFR part 258 remain in effect. establishment of tariffed rates for the ■ 1. The authority citation for part 258 [FR Doc. 2017–11227 Filed 6–1–17; 8:45 am] ILEC’s interstate and intrastate regulated continues to read as follows: BILLING CODE 6560–50–P services. First, carriers record their costs

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into various accounts in accordance only required to freeze their allocation of recent reforms to part 32 rules. As we with the Uniform System of Accounts factors, but were given the option of also explained in the 2017 FNPRM, we for Telecommunications Companies freezing their category relationships at anticipate that the Joint Board will meet (USOA) prescribed by part 32 of our the outset of the freeze. Those that have in July 2017 to consider reform of the rules. Second, carriers divide the costs chosen to freeze relationships calculate: separations process and we expect to in these accounts between regulated and (1) The relationships between categories receive the Joint Board’s nonregulated activities in accordance of investment and expenses within part recommendations for comprehensive with part 64 of our rules. This division 32 accounts; and (2) the jurisdictional separations reform within nine months ensures that the costs of nonregulated allocation factors, as of a specific point thereafter. activities will not be recovered in in time, and then lock or ‘‘freeze’’ those II. Discussion regulated interstate service rates. Third, category relationships and allocation carriers separate the regulated costs factors in place for a set period of time. 8. To allow us to move forward with between the intrastate and interstate The carriers use the ‘‘frozen’’ category orderly reform of the separations rules, jurisdictions in accordance with our relationships and allocation factors for based on the record before us, we part 36 separations rules. In certain their calculations of separations results extend through December 31, 2018, the instances, costs are further and therefore are not required to freeze on part 36 category relationships disaggregated among service categories. conduct separations studies for the and jurisdictional cost allocation factors Finally, carriers apportion the interstate duration of the freeze. that the Commission adopted in the regulated costs among the interexchange 5. Over time, the Commission has 2001 Separations Freeze Order. As a services and rate elements that form the repeatedly extended the freeze, which is result of the extension, price cap cost basis for their exchange access currently set to expire on June 30, 2017. carriers that have not availed tariffs. For carriers subject to rate-of- The Commission has consistently themselves of conditional forbearance return regulation, this apportionment is consulted with the Joint Board about from the part 36 rules will use the same performed in accordance with part 69 of separations reform, pursuant to the relationships between categories of our rules. Act’s requirement that the Commission investment and expenses within part 32 3. In 1997, the Commission initiated refer to the Joint Board proceedings accounts and the same jurisdictional a proceeding seeking comment on the regarding ‘‘the jurisdictional separations allocation factors that have been in extent to which legislative, of common carrier property and place since the inception of the current technological, and market changes expenses between interstate and freeze on July 1, 2001. Rate-of-return warranted comprehensive reform of the intrastate operations.’’ The Joint Board carriers will use the same frozen separations process. In the 2001 recommended the initial freeze and has jurisdictional allocation factors, and Separations Freeze Order, the made a number of recommendations to will, absent a waiver, use the same Commission froze, on an interim basis, the Commission about how best to frozen category relationships if they had the part 36 jurisdictional separation proceed with reform of the separations opted in 2001 to freeze those. rules for a five-year period beginning rules. The state members of the Joint 9. The issues involved with July 1, 2001, or until the Commission Board made their most recent modernizing separations are broad and completed comprehensive separations recommendations in 2011. complex. As commenters point out, the reform, whichever came first. 6. Since the Joint Board’s policy changes the Commission has Specifically, the Commission adopted a recommendations, the Commission adopted in recent years, particularly freeze of all part 36 category comprehensively reformed its universal those arising from the Commission’s relationships and allocation factors for service and intercarrier compensation fundamental reform of the high cost price cap carriers, and a freeze of all systems and proposed additional universal service support program, the allocation factors for rate-of-return reforms. On March 30, 2016, the intercarrier compensation systems, and carriers. The Commission concluded Commission adopted the Rate-of-Return the part 32 accounting rules, will that several issues, including the Reform Order, which instituted significantly affect our analysis of separations treatment of Internet traffic, significant reforms to the rules interim and comprehensive separations should be addressed in the context of governing the provision of universal reform, as well as that of the Joint comprehensive separations reform. The service support to rate-of-return LECs. Board. Extending the freeze provides Commission further concluded that the On February 23, 2017, we completed time for the Joint Board to consider the freeze would provide stability and our review of the part 32 Uniform impact of our recent reforms on the regulatory certainty for ILECs by System of Accounts (USOA) rules and separations rules and gives us the time minimizing any impacts on separations streamlined various accounting necessary to tackle rule changes results that might occur due to requirements for all carriers and informed by the Joint Board’s circumstances not contemplated by the eliminated certain accounting recommendations. We strongly urge Commission’s part 36 rules, such as requirements for large carriers. interested parties to provide detailed growth in local competition and new 7. On March 20, 2017, in a Further and constructive feedback about how technologies. The Commission also Notice of Proposed Rulemaking (2017 best to revise or eliminate the found that a freeze of the separations FNPRM), 82 FR 16152–01, April 3, separations process as we work towards process would reduce regulatory 2017, we proposed and sought comment separations reform with the Joint Board. burdens on ILECs during the transition on a further eighteen month extension 10. We agree with those commenters from a regulated monopoly to a of the separations freeze while we that argue that allowing the existing deregulated, competitive environment continue to work with the Joint Board. freeze to lapse and frozen separations in the local telecommunications Comments were received from eight rules to be reinstated during the marketplace. parties. On April 24, 2017, the Joint pendency of our work with the Joint 4. Price cap carriers have since Board signaled its intent to move Board would create undue instability received conditional forbearance from forward by releasing two public notices and administrative burdens on affected the part 36 jurisdictional separations seeking comment on issues related to carriers. As WTA has explained, rules. As a result, the freeze primarily comprehensive permanent separations reinstating these long-unused impacts rate-of-return carriers who were reform, and separations reform in light separations rules, many of which are

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now outmoded, would not only require tied to the completion of a July 1, 2001, or until the Commission substantial training and investment by comprehensive rulemaking. Some completed comprehensive separations rural LECs, but also could cause stakeholders have expressed concern reform, whichever came first. On May significant disruptions in their regulated about the amount of time needed to 16, 2006, concluding that more time was rates, cost recovery and other operating operationalize any changes we needed to implement comprehensive conditions. If we were to allow the ultimately make to the separations rules. separations reform, the Commission freeze to expire, carriers would have to While those concerns are legitimate, extended the freeze for three years or reinstitute their former separations they are premature at this point in the until such comprehensive reform could processes, even those that no longer process, and would be more be completed, whichever came first. On have the necessary employees and appropriately raised and addressed May 15, 2009, the Commission extended systems in place to comply with the when considering the implementation the freeze through June 30, 2010; on separations rules. Many carriers likely of any reform measures as part of the May 24, 2010, extended the freeze would have to hire or reassign and train on-going, comprehensive rulemaking through June 30, 2011; on May 3, 2011, employees and redevelop systems for proceeding. extended the freeze through June 30, collecting and analyzing the data 14. We find that extending the freeze 2012; on May 8, 2012, extended the necessary to perform separations in the by eighteen months, the length of time freeze through June 30, 2104; and on prior manner. Requiring carriers to proposed in the 2017 FNPRM, is June 12, 2014, extending the freeze reinstate their separations systems appropriate. We fully agree with through June 30, 2017. ‘‘would be unduly burdensome when NASUCA that the freeze should not 17. The purpose of the current there is a significant likelihood that continue indefinitely. While we extension of the freeze is to allow the there would be no lasting benefit to recognize that an eighteen-month freeze Commission and the Joint Board doing so.’’ extension is shorter than those the additional time to consider changes that 11. Two commenters, a group of Commission previously adopted, as we may need to be made to the separations concerned individuals called the explained in the 2017 FNPRM, ‘‘now is process in light of changes in the law, Irregulators and Terral Telephone the time to address the separations technology, and market structure of the Company, Inc. (Terral), oppose the rules.’’ We are committed to moving this telecommunications industry without extension of the freeze. According to the process forward and believe that creating the undue instability and Irregulators, the freeze is being used to eighteen months is a sufficient amount administrative burdens that would deliberately hide ‘‘massive financial of time to carefully consider the issues occur were the Commission to eliminate cross subsidies and data manipulation.’’ in the record and work with the Joint the freeze. However, the evidence offered does not Board toward meaningful separations 18. Implementation of the freeze support this claim. We thus find the reform. We intend to work diligently extension will ease the administrative harm alleged by the Irregulators to be with the Joint Board toward that goal. burden of regulatory compliance for speculative and insufficient to outweigh LECs, including small incumbent LECs. III. Procedural Matters the clear benefits that will result from The freeze has eliminated the need for granting a further extension. Terral 15. Final Regulatory Flexibility all incumbent LECs, including opposes the extension as it applies to Certification. The Regulatory Flexibility incumbent LECs with 1500 employees Terral and then uses its comments to Act of 1980, as amended (RFA), requires or fewer, to complete certain annual ask the Commission to grant its pending that a regulatory flexibility analysis be studies formerly required by the petition for waiver of the categories of prepared for notice-and-comment Commission’s rules. The effect of the frozen separations. We decline, rulemaking proceedings, unless the freeze extension is to reduce a however, to substantively address agency certifies that ‘‘the rule will not, regulatory compliance burden for small individual requests for relief or a waiver if promulgated, have a significant incumbent LECs, by abating the of the separations rules in this Order as economic impact on a substantial aforementioned separations studies and those requests are beyond the scope of number of small entities.’’ The RFA providing these carriers with greater this proceeding. We do welcome the generally defines the term ‘‘small regulatory certainty. Therefore, we input of these commenters as we move entity’’ as having the same meaning as certify that the requirement of the report toward full consideration of how best to the terms ‘‘small business,’’ ‘‘small and order will not have a significant reform the separations rules and note organization,’’ and ‘‘small governmental economic impact on a substantial that the decision to extend the freeze jurisdiction.’’ In addition, the term number of small entities. does not affect the Commission’s ability ‘‘small business’’ has the same meaning 19. The Commission will send a copy to address pending or future waiver as the term ‘‘small business concern’’ of the report and order, including a copy petitions. under the Small Business Act. A ‘‘small of this Final Regulatory Flexibility 12. Separately, we deny the request of business concern’’ is one that: (1) Is Certification, in a report to Congress USTelecom to modify frozen category independently owned and operated; (2) pursuant to the Congressional Review relationships for carriers electing the is not dominant in its field of operation; Act. In addition, the report and order Alternative Connect America Cost and (3) satisfies any additional criteria and this final certification will be sent Model and to make other changes to the established by the Small Business to the Chief Counsel for Advocacy of the separations process. These issues fall Administration (SBA). SBA, and will be published in the within the pending referral to the Joint 16. As discussed above, in 2001 the Federal Register. Board and may be addressed in the Joint Commission adopted a Joint Board 20. Paperwork Reduction Act Board’s recommended decision. We will recommendation to impose an interim Analysis. This Report and Order does therefore not grant USTelecom’s request freeze of the part 36 category not contain new, modified, or proposed here. relationships and jurisdictional cost information collections subject to the 13. With regard to the length of the allocation factors, pending Paperwork Reduction Act of 1995 extension, the majority of commenters comprehensive reform of the part 36 (PRA), Public Law 104–13. In addition, support extending the freeze for at least separations rules. The Commission therefore, it does not contain any new, eighteen months. Some argue that the ordered that the freeze would be in modified, or proposed information freeze should be longer, and should be effect for a five-year period beginning collection burden for small business

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concerns with fewer than 25 employees, 25. It is further ordered, pursuant to §§ 36.3, 36.123, 36.124, 36.125, 36.126, pursuant to the Small Business section 553(d)(3) of the Administrative 36.141, 36.142, 36.152, 36.154, 36.155, Paperwork Relief Act of 2002, Public Procedure Act, 5 U.S.C. 553(d)(3), and 36.157, 36.191, 36.212, 36.214, 36.372, Law 107–198, see 44 U.S.C. 3506(c)(4). sections 1.4(b)(1) and 1.427(b) of the 36.374, 36.375, 36.377, 36.378, 36.379, 36.380, 36.381, and 36.382 [Amended] 21. Congressional Review Act. The Commission’s rules, 47 CFR 1.4(b)(1), Commission will send a copy of this 1.427(b), that this Report and Order ■ 2. In 47 CFR part 36, remove the date Report and Order in a report to be sent shall be effective June 2, 2017. ‘‘June 30, 2017’’ and add, in its place, to Congress and the Government the date ‘‘December 30, 2018’’ in the List of Subjects in 47 CFR Part 36 Accountability Office pursuant to the following places: ■ Congressional Review Act, see 5 U.S.C. Communications common carriers, a. Section 36.3(a) through (c), (d) 801(a)(1)(A). Reporting and recordkeeping introductory text, and (e); ■ 22. Effective Date. We find good cause requirements, Telephone, Uniform b. Section 36.123(a)(5) and (6); ■ to make these rule changes effective System of Accounts. c. Section 36.124(c) and (d); June 2, 2017. As explained above, the ■ d. Section 36.125(h) and (i); Federal Communications Commission. current freeze is scheduled to expire on ■ e. Section 36.126(b)(6), (c)(4), (e)(4), June 30, 2017. To avoid unnecessary Katura Jackson, and (f)(2); disruption to carriers subject to these Federal Register Liaison Officer, Office of the ■ f. Section 36.141(c); rules, we preserve the status quo by Secretary. ■ g. Section 36.142(c); ■ making the extension of the freeze Final Rules h. Section 36.152(d); effective before the scheduled ■ i. Section 36.154(g); expiration date. For the reasons discussed in the ■ j. Section 36.155(b); preamble, the Federal Communications ■ k. Section 36.156(c); IV. Ordering Clauses Commission amends 47 CFR part 36 as ■ l. Section 36.157(b); 23. Accordingly, it is ordered, follows: ■ m. Section 36.191(d); pursuant to sections 1, 2, 4(i), 201–05, ■ n. Section 36.212(c); 215, 218, 220, and 410 of the PART 36—JURISDICTIONAL ■ o. Section 36.214(a); Communications Act of 1934, as SEPARATIONS PROCEDURES; ■ p. Section 36.372; amended, 47 U.S.C. 151, 152, 154(i), STANDARD PROCEDURES FOR ■ q. Section 36.374(b) and (d); 201–205, 215, 218, 220, and 410, that SEPARATING ■ r. Section 36.375(b)(4) and (5); this Report and Order is adopted. TELECOMMUNICATIONS PROPERTY ■ s. Section 36.377(a) introductory text, 24. It is further ordered that the COSTS, REVENUES, EXPENSES, (a)(1)(ix), (a)(2)(vii), (a)(3)(vii), Commission’s Consumer and TAXES AND RESERVES FOR (a)(4)(vii), (a)(5)(vii), and (a)(6)(vii); Governmental Affairs Bureau, Reference TELECOMMUNICATIONS COMPANIES ■ t. Section 36.378(b)(1); Information Center, shall send a copy of ■ u. Section 36.379(b)(1) and (2); this Report and Order, including the ■ 1. The authority citation for part 36 ■ v. Section 36.380(d) and (e); Final Regulatory Flexibility continues to read as follows: ■ w. Section 36.381(c) and (d); and ■ x. Section 36.382(a). Certification, to the Chief Counsel for Authority: 47 U.S.C. 151, 154(i) and (j), Advocacy of the Small Business 205, 221(c), 254, 303(r), 403, 410 and 1302 [FR Doc. 2017–11418 Filed 6–1–17; 8:45 am] Administration. unless otherwise noted. BILLING CODE 6712–01–P

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Proposed Rules Federal Register Vol. 82, No. 105

Friday, June 2, 2017

This section of the FEDERAL REGISTER proposedregs.aspx as submitted, except forgery is a check on which the contains notices to the public of the proposed as necessary for technical reasons. signature of the drawer (i.e., the issuance of rules and regulations. The Accordingly, your comments will not be account-holder at the paying bank) was purpose of these notices is to give interested edited to remove any identifying or made without authorization at the time persons an opportunity to participate in the contact information. Public comments 3 rule making prior to the adoption of the final of the check’s issuance. In general, rules. may also be viewed electronically or in under UCC 4–401, the paying bank may paper in Room 3515, 1801 K Street NW. charge the drawer’s account only for (between 18th and 19th Street NW.), checks that are properly payable.4 FEDERAL RESERVE SYSTEM Washington, DC 20006 between 9:00 Neither altered checks nor forged checks a.m. and 5:00 p.m. on weekdays. are properly payable. In the case of an 12 CFR Part 229 FOR FURTHER INFORMATION CONTACT: altered check under the UCC, the banks [Regulation CC; Docket No. R–1564] Clinton N. Chen, Attorney (202/452– that received the check during forward 3952), Legal Division; or Ian C.B. Spear, RIN 7100 AE 78 collection, including the paying bank, Senior Financial Services Analyst (202/ have warranty claims against the banks Availability of Funds and Collection of 452–3959), Division of Reserve Bank that transferred the check (e.g., a Checks Operations and Payment Systems; for collecting bank or the depositary bank). users of Telecommunication Devices for In the case of a forged check, however, AGENCY: Board of Governors of the the Deaf (TDD) only, contact 202/263– the UCC places the responsibility on the Federal Reserve System. 4869; Board of Governors of the Federal paying bank for identifying the forgery.5 ACTION: Reserve System, 20th and C Streets Proposed rule, request for Therefore, the depositary bank typically comment. NW., Washington, DC 20551. bears the loss related to an altered SUPPLEMENTARY INFORMATION: SUMMARY: The Board is proposing to check, whereas the paying bank bears amend Regulation CC to address I. Statutory and Regulatory Background the loss related to a forged check. situations where there is a dispute as to Congress enacted the Expedited These provisions of the UCC reflect whether a check has been altered or is Funds Availability Act of 1987 (EFA the long-standing rule set forth in Price a forgery, and the original paper check Act) to provide prompt funds v. Neal that the paying bank must bear is not available for inspection. The availability for deposits in transaction the loss when a check it pays is not proposed rule would adopt a accounts and to foster improvements in properly payable by virtue of the fact presumption of alteration for any the check collection and return that the drawer did not authorize the dispute over whether the dollar amount processes. Section 609(c) authorizes the item.6 The Price v. Neal rule reflects the or the payee on a substitute check or Board to regulate any aspect of the assumption that the paying bank, rather electronic check has been altered or payment system and any related than the depositary bank, is in the best whether the substitute check or function of the payment system with position to judge whether the drawer’s electronic check is derived from an respect to checks in order to carry out signature on a check is the authorized original check that is a forgery. This rule 1 the provisions of the EFA Act. signature of the account-holder. By is intended to provide clarity as to the Regulation CC implements the EFA burden of proof in these situations. contrast, the depositary bank is arguably Act. Subpart C of Regulation CC in a better position than the paying bank DATES: Comments must be submitted by implements the EFA Act’s provisions to inspect the check at the time of August 1, 2017. regarding forward collection and return deposit and detect an alteration to the ADDRESSES: You may submit comments, of checks. face of the check, to determine that the identified by Docket No. R–1564 by any II. UCC Provisions Regarding Altered of the following methods: amount of the check is unusual for the • Agency Web site: http:// and Forged Checks depositary bank’s customer, or to www.federalreserve.gov. Follow the Under the Uniform Commercial Code otherwise take responsibility for the instructions for submitting comments at (UCC), an alteration is a change to the items it accepts for deposit. http://www.federalreserve.gov/apps/ terms of a check that is made after the foia/proposedregs.aspx. check is issued that modifies an check and other negotiable instruments while • Email: regs.comments@ obligation of a party by, for example, Article 4 addresses bank deposits. federalreserve.gov. Include the docket changing the payee’s name or the 3 The term ‘‘forgery’’ is not defined in the UCC. number in the subject line of the 2 However, the term ‘‘unauthorized signature’’ is amount of the check. By contrast, a defined as ‘‘a signature made without actual, message. implied, or apparent authority’’ and ‘‘includes a • Fax: (202) 452–3819 or (202) 452– 1 EFA Act section 609(c)(1) states that ‘‘[i]n order forgery.’’ UCC 1–201(41). 3102. to carry out the provisions of this title, the Board 4 The term ‘‘bank’’ as used in this notice and in of Governors of the Federal Reserve System shall • Mail: Ann E. Misback, Secretary, Regulation CC (12 CFR 229.2(e)) includes a have the responsibility to regulate—(A) any aspect commercial bank, savings bank, savings and loan Board of Governors of the Federal of the payment system, including the receipt, Reserve System, 20th Street and payment, collection, or clearing of checks; and (B) association, credit union, and a U.S. agency or Constitution Avenue NW., Washington, any related function of the payment system with branch of a foreign bank. 5 The presenting bank warrants to the paying DC 20551. respect to checks.’’ 12 U.S.C. 4008(c)(1). 2 UCC 3–407. The UCC is a uniform body of laws bank only that it has no knowledge of an All public comments are available on promulgated by the American Law Institute and the unauthorized drawer’s signature. See UCC 3–417 the Board’s Web site at http:// Uniform Law Commission, which may be enacted and 4–208. www.federalreserve.gov/apps/foia/ by state legislatures. Article 3 addresses payment by 6 Price v. Neal, 97 Eng. Rep. 871 (K.B. 1762).

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III. Proposed Presumption of Alteration fraud than altering the payee name or by which a bank may seek to make a amount on the check. claim against another bank on a check Regulation CC does not currently The Board received four comments that the bank alleges to be altered. address whether a check should be concerning the adoption of an presumed to be altered or forged in evidentiary presumption.11 All four, IV. Competitive Impact Analysis cases of doubt. For example, an including a comment letter submitted The Board conducts a competitive unauthorized payee name could result by a group of institutions and trade impact analysis when it considers an from an alteration of the original check associations, supported the adoption of operational or legal change, if that that the drawer issued, or from the an evidentiary presumption of alteration change would have a direct and material creation of a forged check bearing the in the event that there is insufficient adverse effect on the ability of other unauthorized payee name and an evidence to determine whether a service providers to compete with the unauthorized/forged drawer’s signature. particular check was altered or is a Federal Reserve in providing similar Courts have reached opposite forged item. One commenter believed services due to legal differences or due conclusions as to whether a paid, but that a presumption of alteration to the Federal Reserve’s dominant fraudulent, check should be presumed (imposing the risk of loss on the market position deriving from such legal to be altered or forged in the absence of depositary bank as described above) is differences. All operational or legal evidence (such as the original check).7 appropriate in today’s virtually all- changes having a substantial effect on Since the time of these decisions, the electronic environment. The commenter payments-system participants will be check collection system has become reasoned that in today’s environment subject to a competitive-impact analysis, overwhelmingly electronic, and the the vast majority of checks are truncated even if competitive effects are not number of instances in which the by the depositary banks or their apparent on the face of the proposal. If original paper check is available for customers, the depositary bank has the such legal differences exist, the Board inspection in such cases will be quite option of retaining the original check, will assess whether the same objectives low.8 Unlike the 2006 court cases, and if the depositary bank presents a could be achieved by a modified where the paying bank received and substitute check, the paying bank does proposal with lesser competitive impact destroyed the original check, in today’s not have the right to demand or, if not, whether the benefits of the check environment the original check is presentment of the original check. proposal (such as contributing to typically truncated by the depositary Based on these comments, the Board payments-system efficiency or integrity bank or a collecting bank before it is proposing to adopt a presumption of or other Board objectives) outweigh the reaches the paying bank. In light of alteration with respect to any dispute materially adverse effect on requests from members of the industry, arising under federal or state law as to competition.12 the Board requested comment on the whether the dollar amount or the payee The Board does not believe that the adoption of an evidentiary presumption on a substitute check or electronic check proposed amendments to Regulation CC in Regulation CC.9 Specifically, the has been altered or whether the will have a direct and material adverse Board requested comment on whether it substitute check or electronic check is effect on the ability of other service should adopt an evidentiary derived from an original check that is a providers to compete effectively with presumption, and if yes, whether the forgery. The Board requests comment on the Reserve Banks in providing similar check should be presumed to be altered whether the presumption should also services due to legal differences. The or forged in cases of doubt.10 The Board apply to a claim that the date was proposed amendments would apply to also requested comment on whether altered. the Reserve Banks and private-sector banks are aware of or have information Under the proposed rule, the service providers alike and would not pertaining to whether forged checks are presumption of alteration may be affect the competitive position of a more common method of committing overcome by a preponderance of private-sector presenting banks vis-a`-vis evidence that the substitute check or the Reserve Banks. 7 See, e.g., Chevy Chase Bank v. Wachovia Bank, electronic check accurately represents N.A., 208 Fed. App’x. 232, 235 (4th Cir. 2006) and the dollar amount and payee as V. Paperwork Reduction Act Wachovia Bank, N.A. v. Foster Bancshares, Inc., authorized by the drawer, or that the In accordance with the Paperwork 457 F.3d 619 (7th Cir. 2006). substitute check or electronic check is Reduction Act (PRA) of 1995 (44 U.S.C. 8 For example, by the beginning of 2017 the derived from an original check that is a Federal Reserve Banks received over 99.99 percent 3506; 5 CFR part 1320 Appendix A.1), of checks electronically from 99.06 percent of forgery. The proposed rule would also the Board may not conduct or sponsor, routing numbers and presented over 99.99 percent state that the presumption of alteration and a respondent is not required to of checks electronically to over 99.76 percent of shall cease to apply if the original check respond to, an information collection routing numbers. As of the same time, the Federal is made available for examination by all Reserve Banks received 99.63 percent of returned unless it displays a valid Office of checks electronically from over 99.37 percent of parties involved in the dispute. The Management and Budget (OMB) control routing numbers and delivered 99.41 percent of Board requests comment on whether the number. The Board reviewed the returned checks electronically to 92.84 percent of presumption of alteration should apply proposed rule under the authority routing numbers. if the bank claiming the presumption delegated to the Board by the OMB and 9 Although the Board did not raise the issue, two received and destroyed the original commenters requested that the Board address the determined that it contains no uncertainty caused by the divergent appellate court check. collections of information under the decisions in response to a 2011 proposed The Board is also proposing PRA.13 Accordingly, there is no rulemaking. 76 FR 16862 (March 25, 2011). The accompanying commentary provisions paperwork burden associated with the Board describes these comments in greater detail as to explain the operation of the rule, part of its 2014 proposal. 79 FR 6673, 6703 (Feb. rule. 4, 2014). including clarification that the 10 The Board believes that the substance of the presumption does not alter the process VI. Regulatory Flexibility Act UCC’s loss-allocation framework for altered and The Regulatory Flexibility Act (the forged checks, under which the depositary bank 11 The Board received an additional comment ‘‘RFA’’) (5 U.S.C. 601 et seq.) requires generally bears the loss for altered checks and the about the applicability of the UCC to alterations by paying bank generally bears the loss for forged persons other than the payee. The commenter did checks, continues to be appropriate in the current not address whether the Board should adopt an 12 Federal Reserve Regulatory Service, 7–145.2. check-processing environment. evidentiary presumption. 13 See 44 U.S.C. 3502(3).

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agencies either to provide an initial 3. Projected Reporting, Recordkeeping, burden on all entities, including small regulatory flexibility analysis with a and Other Compliance Requirements issuers. proposed rule or to certify that the List of Subjects in 12 CFR Part 229 proposed rule will not have a significant A presumption of alteration shifts the economic impact on a substantial burden to the bank that warrants that a Banks, Banking, Federal Reserve number of small entities. In accordance check has not been altered, which could System, Reporting and recordkeeping with section 3(a) of the RFA, the Board be a depositary bank or collecting bank. requirements. has reviewed the proposed regulation. In order to overcome the proposed Authority and Issuance In this case, the proposed rule would presumption of alteration, a depositary apply to all depository institutions. This bank or collecting bank must prove by For the reasons set forth in the Initial Regulatory Flexibility Analysis a preponderance of evidence that either preamble, the Board proposes to amend has been prepared in accordance with 5 the substitute check or electronic check 12 CFR part 229 as follows: U.S.C. 603 in order for the Board to accurately represents the dollar amount solicit comment on the effect of the and payee as authorized by the drawer, PART 229—AVAILABILITY OF FUNDS proposal on small entities. The Board or that the substitute check or electronic AND COLLECTION OF CHECKS will, if necessary, conduct a final check is derived from an original check (REGULATION CC) regulatory flexibility analysis after that is a forgery. Under the proposed ■ consideration of comments received rule, the presumption of alteration shall 1. The authority citation for part 229 during the public comment period. cease to apply if the original check is continues to read as follows: made available for examination by all Authority: 12 U.S.C. 4001–4010, 12 U.S.C. 1. Statement of the Need for, Objectives parties involved in the dispute. 5001–5018. of, and Legal Basis for, the Proposed A depositary bank or collecting bank Rule ■ 2. In § 229.38, paragraph (i) is added that destroys all original checks after to read as follows: truncation may incur additional risk, as The Board is proposing the foregoing * * * * * amendments to Regulation CC pursuant it may not be able to overcome the to its authority under the EFA Act. The presumption of alteration. The Board Subpart C—Collection of Checks proposal addresses situations where expects depositary banks and collecting there is a dispute as to whether a check banks to weigh the costs and benefits of * * * * * has been altered or is a forgery, and the destroying or retaining original checks, such as for large dollar amounts, so that § 229.38 Liability. original paper check is not available for * * * * * inspection. The check collection system the presumption of alteration will not (i) Presumption of Alteration. (1) has become overwhelmingly electronic, apply. Presumption. Subject to paragraph (i)(2), and the number of instances in which 4. Identification of Duplicative, the presumption in this paragraph the original paper check will be Overlapping, or Conflicting Federal applies with respect to any dispute available for inspection in such cases Rules arising under federal or state law as to will be quite low. Under the UCC, the whether— depositary bank typically bears the loss As mentioned above, courts have (i) The dollar amount or the payee on related to an altered check, whereas the reached opposite conclusions as to a substitute check or electronic check paying bank bears the loss related to a whether, under the Uniform has been altered or forged check. The proposed rule would Commercial Code, a paid, but adopt a presumption of alteration with fraudulent, check should be presumed (ii) The substitute check or electronic respect to any dispute as to whether the to be altered or forged in the absence of check is derived from an original check dollar amount or the payee on a evidence, such as the original check. that is a forgery. substitute check or electronic check has The proposal would resolve that When such a dispute arises, there is been altered or whether the substitute discrepancy under the conditions a rebuttable presumption that the check or electronic check is derived described above. The Board knows of no substitute check or electronic check from an original check that is a forgery. other duplicative, overlapping, to contains an alteration of the dollar conflicting Federal rules related to this amount or the payee. The presumption 2. Small Entities Affected by the proposal. of alteration may be overcome by Proposed Rule proving by a preponderance of evidence 5. Significant Alternatives to the that either the substitute check or The proposed rule would apply to all Proposed Rule electronic check accurately represents depository institutions regardless of the dollar amount and payee as 14 As discussed above, the Board their size. Pursuant to regulations authorized by the drawer, or that the issued by the Small Business requested comment as part of its 2014 Regulation CC proposal on whether it substitute check or electronic check is Administration (13 CFR 121.201), a derived from an original check that is a ‘‘small banking organization’’ includes a should adopt an evidentiary presumption, and if so, whether the forgery. depository institution with $550 million (2) Effect of producing original check. or less in total assets. Based on call check should be presumed to be altered or forged in cases of doubt.15 All If the original check made available for report data as of December 2016, there examination by all parties involved in are approximately 10,185 depository comments received supported the adoption of an evidentiary presumption the dispute, the presumption in institutions that have total domestic paragraph (i)(1) shall no longer apply. assets of $550 million or less and thus of alteration. The Board welcomes are considered small entities for comment on the impact of the proposed * * * * * ■ purposes of the RFA. rule on small entities and any 3. In Appendix E to part 229, under approaches, other than the proposed ‘‘XXIV. Section 229.38 Liabilities,’’ add alternatives, that would reduce the paragraph ‘‘I. 229.38(i) Presumption of 14 The proposed rule would not impose costs on any small entities other than depository Alteration’’ institutions. 15 79 FR 6673, 6703 (Feb. 4, 2014). The addition reads as follows:

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Appendix E to Part 229—Commentary the THSA. This proposed AD would FOR FURTHER INFORMATION CONTACT: * * * * * require repetitive detailed inspections of Sanjay Ralhan, Aerospace Engineer, certain THSAs, and related investigative International Branch, ANM–116, XXIV. Section 229.38 Liability and corrective actions if necessary. We Transport Airplane Directorate, FAA, * * * * * are proposing this AD to address the 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1405; I. 229.38(i) Presumption of Alteration unsafe condition on these products. DATES: fax 425–227–1149. 1. This paragraph establishes an We must receive comments on SUPPLEMENTARY INFORMATION: evidentiary presumption of alteration of a this proposed AD by July 17, 2017. check when the original check has been ADDRESSES: You may send comments, Comments Invited converted to an image and only an electronic using the procedures found in 14 CFR We invite you to send any written check or a substitute check is available for 11.43 and 11.45, by any of the following relevant data, views, or arguments about inspection. This provision does not alter the methods: this proposed AD. Send your comments transfer and presentment warranties under • Federal eRulemaking Portal: Go to to an address listed under the the UCC that allocate liability among the http://www.regulations.gov. Follow the parties to a check transaction with respect to ADDRESSES section. Include ‘‘Docket No. instructions for submitting comments. an altered or forged item. The UCC or other • FAA–2017–0498; Directorate Identifier applicable check law continues to apply with Fax: 202–493–2251. • 2016–NM–175–AD’’ at the beginning of respect to other rights, duties, and obligations Mail: U.S. Department of your comments. We specifically invite related to altered or forged checks. Transportation, Docket Operations, M– comments on the overall regulatory, 2. The presumption of alteration applies 30, West Building Ground Floor, Room economic, environmental, and energy when the original check is unavailable for W12–140, 1200 New Jersey Avenue SE., aspects of this proposed AD. We will review by the banks in context of the dispute. Washington, DC 20590. If the original check is produced, through • consider all comments received by the Hand Delivery: Deliver to Mail closing date and may amend this discovery or other means, and is made address above between 9 a.m. and 5 available for examination by all the parties, proposed AD based on those comments. the presumption no longer applies. There is p.m., Monday through Friday, except We will post all comments we no presumption of alteration as between two Federal holidays. receive, without change, to http:// banks that exchange an original check. For Airbus service information www.regulations.gov, including any identified in this NPRM, contact Airbus, By order of the Board of Governors of the personal information you provide. We Federal Reserve System, May 26, 2017. Airworthiness Office—EIAS, 1 Rond will also post a report summarizing each Point Maurice Bellonte, 31707 Blagnac Ann E. Misback, substantive verbal contact we receive Cedex, France; telephone +33 5 61 93 36 about this proposed AD. Secretary of the Board. 96; fax +33 5 61 93 44 51; email [FR Doc. 2017–11380 Filed 6–1–17; 8:45 am] [email protected]; Discussion BILLING CODE P Internet http://www.airbus.com. On July 12, 2015, we issued AD 2015– For United Technologies Corporation 15–10, Amendment 39–18219 (80 FR Aerospace Systems (UTAS) service 43928, July 24, 2015) (‘‘AD 2015–15– DEPARTMENT OF TRANSPORTATION information identified in this NPRM, 10’’), for all Airbus Model A318, A319, contact Goodrich Corporation, A320, and A321 series airplanes. AD Federal Aviation Administration Actuation Systems, Stafford Road, 2015–15–10 was prompted by reports of Fordhouses, Wolverhampton WV10 wear of the THSA. AD 2015–15–10 14 CFR Part 39 7EH, England; phone: +44 (0) 1902 requires repetitive inspections of the [Docket No. FAA–2017–0498; Directorate 624938; fax: +44 (0) 1902 788100; email: THSA for damage, and replacement if Identifier 2016–NM–175–AD] techpubs.wolverhampton@ necessary; and replacement of the THSA goodrich.com; Internet: http:// after reaching a certain life limit. We RIN 2120–AA64 www.goodrich.com/TechPubs. issued AD 2015–15–10 to detect and Airworthiness Directives; Airbus You may view this referenced service correct wear on the THSA, which would Airplanes information at the FAA, Transport reduce the remaining life of the THSA, Airplane Directorate, 1601 Lind Avenue possibly resulting in premature failure AGENCY: Federal Aviation SW., Renton, WA. For information on and consequent reduced controllability Administration (FAA), DOT. the availability of this material at the of the airplane. ACTION: Notice of proposed rulemaking FAA, call 425–227–1221. Since we issued AD 2015–15–10, an additional life limit for the THSA has (NPRM). Examining the AD Docket been established, based on flight cycles. SUMMARY: We propose to supersede You may examine the AD docket on In addition, the THSA manufacturer has Airworthiness Directive (AD) 2015–15– the Internet at http:// issued service information which, when 10, for all Airbus Model A318, A319, www.regulations.gov by searching for accomplished, increases the life limit of A320, and A321 series airplanes. AD and locating Docket No. FAA–2017– the THSA. 2015–15–10 currently requires 0498; or in person at the Docket The European Aviation Safety Agency repetitive inspections of the trimmable Management Facility between 9 a.m. (EASA), which is the Technical Agent horizontal stabilizer actuator (THSA) for and 5 p.m., Monday through Friday, for the Member States of the European damage, and replacement if necessary; except Federal holidays. The AD docket Union, has issued EASA Airworthiness and replacement of the THSA after contains this proposed AD, the Directive 2016–0184, dated September reaching a certain life limit. Since we regulatory evaluation, any comments 13, 2016 (referred to after this as the issued AD 2015–15–10, an additional received, and other information. The Mandatory Continuing Airworthiness life limit for the THSA has been street address for the Docket Operations Information, or ‘‘the MCAI’’), to correct established, based on flight cycles. In office (telephone 800–647–5527) is in an unsafe condition for all Airbus addition, the THSA manufacturer has the ADDRESSES section. Comments will Model A318 and A319 series airplanes; issued service information which, when be available in the AD docket shortly Model A320–211, –212, –214, –231, accomplished, increases the life limit of after receipt. –232, and –233 airplanes; and Model

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A321–111, –112, –131, –211, –212, introduces an additional FC life limit for the describes procedures for repetitive –213, –231, and –232 airplanes. The affected THSA. This [EASA] AD also special detailed inspections for wear of MCAI states: provides a revised life limit for the THSA the THSA, and related investigative and after UTAS SB accomplishment on that corrective actions. In the frame of the A320 Extended Service THSA. Goal (ESG) project and the study on the This service information is reasonably Trimmable Horizontal Stabilizer Actuator The required action is repetitive available because the interested parties (THSA), a sampling programme of in-service special detailed inspections of the have access to it through their normal units was performed and several cases of THSA. The optional terminating action course of business or by the means wear at different THSA levels were reported. is overhaul of the THSA. The related identified in the ADDRESSES section. This condition, if not detected and investigative action is a spectrometric corrected, would reduce the remaining life of analysis of the oil drained from the FAA’s Determination and Requirements the THSA, possibly resulting in premature of This Proposed AD failure and consequent reduced control of the THSA gearbox. The corrective action is aeroplane. replacement of a THSA with a This product has been approved by Prompted by these findings, Airbus issued serviceable THSA. the aviation authority of another Service Bulletin (SB) A320–27–1227 to The compliance time for the related country, and is approved for operation provide THSA inspection instructions. investigative and corrective actions in the United States. Pursuant to our Consequently, EASA issued AD 2014–0011 varies depending on the findings, and bilateral agreement with the State of (later revised) [which corresponds to AD ranges from before further flight to 4 Design Authority, we have been notified 2015–15–10] to require repetitive inspections months or between 1,000 and 1,250 of the unsafe condition described in the of the THSA [and related investigative and corrective actions] and to introduce a life flight hours since the first THSA oil MCAI and service information limit for the THSA, based on flight hours drain. referenced above. We are proposing this (FH). You may examine the MCAI in the AD because we evaluated all pertinent Since EASA AD 2014–0011R1 was issued, AD docket on the Internet at http:// information and determined an unsafe an additional life limitation has been www.regulations.gov by searching for condition exists and is likely to exist or established, based on flight cycles (FC). and locating Docket No. FAA–2017– develop on other products of these same Furthermore, United Technologies 0498. type designs. Corporation Aerospace Systems (UTAS), the THSA manufacturer, issued an SB which, Related Service Information Under 1 Costs of Compliance after accomplishment on THSA, increases the CFR Part 51 life limit of the THSA. We estimate that this proposed AD For the reasons described above, this Airbus has issued Service Bulletin affects 1,182 airplanes of U.S. registry. [EASA] AD retains the requirements of EASA A320–27–1227, Revision 03, dated April We estimate the following costs to AD 2014–0011R1, which is superseded, and 29, 2016. This service information comply with this proposed AD:

ESTIMATED COSTS

Action Labor cost Parts cost Cost per product Cost on U.S. operators

Inspections ...... 6 work-hours × $85 per hour = $510 per in- $0 $510 per inspection $602,820 per inspection spection cycle. cycle. cycle.

We have received no definitive data gearbox. We estimate the following costs inspection. We have no way of that would enable us to provide cost to do any necessary replacements or determining the number of aircraft that estimates for the spectrometric analysis overhauls that would be required based might need these replacements or of the oil drained from the THSA on the results of the proposed overhauls:

ON-CONDITION COSTS

Cost per Action Labor cost Parts cost product

Replacement of THSA (retained from AD 2015–15– 11 work-hours × $85 per hour = $935 ...... $240,000 $240,935 10). Overhaul of THSA (new proposed action) ...... 66 work-hours × $85 per hour = $5,610 ...... 115,000 120,610

Authority for This Rulemaking section, Congress charges the FAA with Regulatory Findings Title 49 of the United States Code promoting safe flight of civil aircraft in We determined that this proposed AD specifies the FAA’s authority to issue air commerce by prescribing regulations would not have federalism implications rules on aviation safety. Subtitle I, for practices, methods, and procedures under Executive Order 13132. This section 106, describes the authority of the Administrator finds necessary for proposed AD would not have a the FAA Administrator. ‘‘Subtitle VII: safety in air commerce. This regulation substantial direct effect on the States, on Aviation Programs,’’ describes in more is within the scope of that authority the relationship between the national detail the scope of the Agency’s because it addresses an unsafe condition Government and the States, or on the authority. that is likely to exist or develop on distribution of power and We are issuing this rulemaking under products identified in this rulemaking responsibilities among the various the authority described in ‘‘Subtitle VII, action. levels of government. Part A, Subpart III, Section 44701: For the reasons discussed above, I General requirements.’’ Under that certify this proposed regulation:

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1. Is not a ‘‘significant regulatory Authority: 49 U.S.C. 106(g), 40113, 44701. (3) Airbus Model A320–211, –212, –214, action’’ under Executive Order 12866; –231, –232, and –233 airplanes. 2. Is not a ‘‘significant rule’’ under the § 39.13 [Amended] (4) Airbus Model A321–111, –112, –131, DOT Regulatory Policies and Procedures ■ 2. The FAA amends § 39.13 by –211, –212, –213, –231, and –232 airplanes. (44 FR 11034, February 26, 1979); removing Airworthiness Directive (AD) (d) Subject 3. Will not affect intrastate aviation in 2015–15–10, Amendment 39–18219 (80 Alaska; and FR 43928, July 24, 2015), and adding the Air Transport Association (ATA) of America Code 27, Flight controls. 4. Will not have a significant following new AD: economic impact, positive or negative, (e) Reason on a substantial number of small entities Airbus: Docket No. FAA–2017–0498; under the criteria of the Regulatory Directorate Identifier 2016–NM–175–AD. This AD was prompted by reports of wear at different levels in the trimmable horizontal Flexibility Act. (a) Comments Due Date stabilizer actuator (THSA). We are issuing List of Subjects in 14 CFR Part 39 We must receive comments by July 17, this AD to detect and correct wear of the 2017. Air transportation, Aircraft, Aviation THSA, which could reduce the remaining life safety, Incorporation by reference, (b) Affected ADs of the THSA, possibly resulting in premature failure and consequent reduced Safety. This AD replaces AD 2015–15–10, controllability of the airplane. The Proposed Amendment Amendment 39–18219 (80 FR 43928, July 24, 2105) (‘‘AD 2015–15–10’’). (f) Compliance Accordingly, under the authority delegated to me by the Administrator, (c) Applicability Comply with this AD within the the FAA proposes to amend 14 CFR part This AD applies to the airplanes identified compliance times specified, unless already 39 as follows: in paragraphs (c)(1) through (c)(4) of this AD, done. certificated in any category, all manufacturer (g) Serviceable THSA Definition PART 39—AIRWORTHINESS serial numbers. DIRECTIVES (1) Airbus Model A318–111, –112, –121, For the purposes of this AD, a serviceable and –122 airplanes. THSA is a THSA that does not exceed the life ■ 1. The authority citation for part 39 (2) Airbus Model A319–111, –112, –113, limits as identified in table 1 to paragraphs continues to read as follows: –114, –115, –131, –132, and –133 airplanes. (g) and (j) of this AD.

TABLE 1 TO PARAGRAPHS (g) AND (j) OF THIS AD—THSA LIFE LIMITS

Configuration, based on service bulletin (SB) embodiment Compliance time (whichever occurs first)

THSA on which United Technologies Corporation Aerospace Systems Before exceeding 67,500 flight hours (FH) since first installation on an (UTAS) SB 47145–27–19 has not been embodied. airplane, or before exceeding 48,000 flight cycles (FC) since first in- stallation on an airplane. THSA on which UTAS SB 47145–27–19 has been embodied ...... Before exceeding 52,500 FH after embodiment of UTAS SB 47145– 27–19 on an airplane, without exceeding 120,000 FH since first in- stallation on an airplane; or before exceeding 27,000 FC after em- bodiment of UTAS SB 47145-27-19 on an airplane, without exceed- ing 75,000 FC since first installation on an airplane.

(h) Repetitive Inspection and Related Airbus Service Bulletin A320–27–1227, (l) Optional Terminating Action: Overhaul of Investigative Actions Revision 03, dated April 29, 2016, replace the THSA For any airplane on which UTAS Service THSA with a serviceable THSA, as specified Accomplishment of a modification of an in paragraph (g) of this AD, in accordance Bulletin 47145–27–19 has not been airplane by installing a THSA that has been with the Accomplishment Instructions of embodied: Before the THSA exceeds 48,000 overhauled as specified in UTAS Service flight hours or 30,000 flight cycles, Airbus Service Bulletin A320–27–1227, Revision 03, dated April 29, 2016. Bulletin 47145–27–19 constitutes terminating whichever occurs first since first installation action for the repetitive inspections required on an airplane, do a special detailed (j) THSA Replacement by paragraph (h) of this AD, provided that, inspection of the THSA and do all applicable related investigative actions, in accordance Within the applicable compliance time following modification, no THSA is with the Accomplishment Instructions of specified in table 1 to paragraphs (g) and (j) reinstalled on the airplane unless it has been Airbus Service Bulletin A320–27–1227, of this AD, replace each THSA with a overhauled as specified in UTAS Service Revision 03, dated April 29, 2016. Do all serviceable THSA, as specified in paragraph Bulletin 47145–27–19. applicable related investigative actions at the (g) of this AD, in accordance with the (m) Replacement THSA Equivalency applicable times specified in paragraph 1.E., Accomplishment Instructions of Airbus ‘‘Compliance’’ of Airbus Service Bulletin Service Bulletin A320–27–1227, Revision 03, As of the effective date of this AD: A THSA A320–27–1227, Revision 03, dated April 29, dated April 29, 2016. that has been repaired in shop as specified 2016. Repeat the inspections thereafter at (k) Replacement THSA: No Terminating in UTAS Component Maintenance Manual intervals not to exceed 24 months. Action 27–44–51 is acceptable for compliance with the initial inspection required by paragraph (i) Corrective Action Replacement of a THSA on an airplane, as (h) of this AD. If, during any inspection required by required by paragraph (i) or (j) of this AD, paragraph (h) of this AD, any finding as does not constitute terminating action for the (n) Parts Installation Limitation described in the Accomplishment repetitive inspections required by paragraph As of the effective date of this AD, do not Instructions of Airbus Service Bulletin A320– (h) of this AD for that airplane, unless the 27–1227, Revision 03, dated April 29, 2016, THSA is overhauled as specified in the install on any airplane a THSA unless it is is identified: At the applicable time Accomplishment Instructions of UTAS a serviceable THSA as specified in paragraph (depending on the applicable finding) Service Bulletin 47145–27–19 (i.e., post- (g) of this AD. specified in paragraph 1.E., ‘‘Compliance,’’ of service bulletin).

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(o) Credit for Previous Actions by searching for and locating Docket No. 11.43 and 11.45, by any of the following This paragraph provides credit for the FAA–2017–0498. methods: actions required by paragraphs (h) and (i) of (2) For more information about this AD, • Federal eRulemaking Portal: Go to this AD, if those actions were performed contact Sanjay Ralhan, Aerospace Engineer, http://www.regulations.gov. Follow the International Branch, ANM–116, Transport before the effective date of this AD using any instructions for submitting comments. of the service information specified in Airplane Directorate, FAA, 1601 Lind • Avenue SW., Renton, WA 98057–3356; Fax: 202–493–2251. paragraphs (o)(1), (o)(2), or (o)(3) of this AD. • Mail: U.S. Department of (1) Airbus Service Bulletin A320–27–1227, telephone 425–227–1405; fax 425–227–1149. dated July 1, 2013, which is not incorporated (3) For Airbus service information Transportation, Docket Operations, M– by reference in this AD. identified in this AD, contact Airbus, 30, West Building Ground Floor, Room (2) Airbus Service Bulletin A320–27–1227, Airworthiness Office—EIAS, 1 Rond Point W12–140, 1200 New Jersey Avenue SE., Revision 01, dated October 7, 2013, which Maurice Bellonte, 31707 Blagnac Cedex, Washington, DC 20590. was incorporated by reference in AD 2015– France; telephone +33 5 61 93 36 96; fax +33 • Hand Delivery: Deliver to Mail 5 61 93 44 51; email account.airworth-eas@ 15–10. address above between 9 a.m. and 5 (3) Airbus Service Bulletin A320–27–1227, airbus.com; Internet http://www.airbus.com. You may view this service information at the p.m., Monday through Friday, except Revision 02, dated February 2, 2015, which Federal holidays. is not incorporated by reference in this AD. FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For For service information identified in (p) Other FAA AD Provisions information on the availability of this this NPRM, contact Bombardier, Inc., The following provisions also apply to this material at the FAA, call 425–227–1221. 400 Coˆte-Vertu Road West, Dorval, AD: (4) For UTAS service information in this Que´bec H4S 1Y9, Canada; Widebody (1) Alternative Methods of Compliance AD, contact Goodrich Corporation, Actuation Customer Response Center North (AMOCs): The Manager, International Systems, Stafford Road, Fordhouses, Wolverhampton WV10 7EH, England; phone: America toll-free telephone 1–866–538– Branch, ANM–116, Transport Airplane 1247 or direct-dial telephone: 1–514– Directorate, FAA, has the authority to +44 (0) 1902 624938; fax: +44 (0) 1902 approve AMOCs for this AD, if requested 788100; email: techpubs.wolverhampton@ 855–2999; fax: 514–855–7401; email: using the procedures found in 14 CFR 39.19. goodrich.com; Internet: http:// [email protected]; Internet: In accordance with 14 CFR 39.19, send your www.goodrich.com/TechPubs. http://www.bombardier.com. You may request to your principal inspector or local Issued in Renton, Washington, on May 17, view this referenced service information Flight Standards District Office, as 2017. at the FAA, Transport Airplane appropriate. If sending information directly Michael Kaszycki, Directorate, 1601 Lind Avenue SW., to the manager of the International Branch Acting Manager, Transport Airplane Renton, WA. For information on the send it to the attention of the person availability of this material at the FAA, identified in paragraph (q)(2) of this AD. Directorate, Aircraft Certification Service. Information may be emailed to: 9-ANM-116- [FR Doc. 2017–10607 Filed 6–1–17; 8:45 am] call 425–227–1221. [email protected]. Before using BILLING CODE 4910–13–P Examining the AD Docket any approved AMOC, notify your appropriate principal inspector, or lacking a principal You may examine the AD docket on inspector, the manager of the local flight DEPARTMENT OF TRANSPORTATION the Internet at http:// standards district office/certificate holding www.regulations.gov by searching for district office. Federal Aviation Administration and locating Docket No. FAA–2017– (2) Contacting the Manufacturer: For any 0512; or in person at the Docket requirement in this AD to obtain corrective 14 CFR Part 39 Management Facility between 9 a.m. actions from a manufacturer, the action must and 5 p.m., Monday through Friday, be accomplished using a method approved [Docket No. FAA–2017–0512; Directorate except Federal holidays. The AD docket by the Manager, International Branch, ANM– Identifier 2017–NM–031–AD] 116, Transport Airplane Directorate, FAA; or contains this proposed AD, the the European Aviation Safety Agency RIN 2120–AA64 regulatory evaluation, any comments (EASA); or Airbus’s EASA Design received, and other information. The Organization Approval (DOA). If approved by Airworthiness Directives; Bombardier, street address for the Docket Operations the DOA, the approval must include the Inc., Airplanes office (telephone: 800–647–5527) is in DOA-authorized signature. AGENCY: the ADDRESSES section. Comments will (3) Required for Compliance (RC): If any Federal Aviation Administration (FAA), DOT. be available in the AD docket shortly service information contains procedures or after receipt. tests that are identified as RC, those ACTION: Notice of proposed rulemaking procedures and tests must be done to comply (NPRM). FOR FURTHER INFORMATION CONTACT: with this AD; any procedures or tests that are Cesar Gomez, Aerospace Engineer, not identified as RC are recommended. Those SUMMARY: We propose to adopt a new Airframe and Mechanical Systems procedures and tests that are not identified airworthiness directive (AD) for certain Branch, ANE–171, FAA, New York as RC may be deviated from using accepted Bombardier, Inc., Model CL–600–2E25 Aircraft Certification Office (ACO), 1600 methods in accordance with the operator’s (Regional Jet Series 1000) airplanes. Stewart Avenue, Suite 410, Westbury, maintenance or inspection program without This proposed AD was prompted by NY 11590; telephone: 516–228–7318; obtaining approval of an AMOC, provided reports of failures of the landing gear fax: 516–794–5531. the procedures and tests identified as RC can alternate-extension system. This be done and the airplane can be put back in SUPPLEMENTARY INFORMATION: an airworthy condition. Any substitutions or proposed AD would require changes to procedures or tests identified as replacement of certain nose landing gear Comments Invited RC require approval of an AMOC. and main landing gear electro- We invite you to send any written mechanical actuators. We are proposing (q) Related Information relevant data, views, or arguments about this AD to address the unsafe condition this proposed AD. Send your comments (1) Refer to Mandatory Continuing on these products. Airworthiness Information (MCAI) EASA to an address listed under the DATES: Airworthiness Directive 2016–0184, dated We must receive comments on ADDRESSES section. Include ‘‘Docket No. September 13, 2016, for related information. this proposed AD by July 17, 2017. FAA–2017–0512; Directorate Identifier This MCAI may be found in the AD docket ADDRESSES: You may send comments, 2017–NM–031–AD’’ at the beginning of on the Internet at http://www.regulations.gov using the procedures found in 14 CFR your comments. We specifically invite

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comments on the overall regulatory, experienced. Failure of the landing gear AES or by the means identified in the economic, environmental, and energy could prevent the landing gear from ADDRESSES section. aspects of this proposed AD. We will extending in the case of a failure of the consider all comments received by the primary landing gear extension system. FAA’s Determination and Requirements closing date and may amend this This [Canadian] AD is issued to mandate of This Proposed AD the replacement of the [nose landing gear] proposed AD based on those comments. NLG and [main landing gear] MLG [electro- This product has been approved by We will post all comments we mechanical actuators] EMA P/Ns BA698– the aviation authority of another receive, without change, to http:// 85006–1 and BA698–85007–1. www.regulations.gov, including any country, and is approved for operation personal information you provide. We You may examine the MCAI in the in the United States. Pursuant to our will also post a report summarizing each AD docket on the Internet at http:// bilateral agreement with the State of substantive verbal contact we receive www.regulations.gov by searching for Design Authority, we have been notified about this proposed AD. and locating Docket No. FAA–2017– of the unsafe condition described in the 0512. MCAI and service information Discussion referenced above. We are proposing this Transport Canada Civil Aviation Related Service Information Under 1 CFR Part 51 AD because we evaluated all pertinent (TCCA), which is the aviation authority information and determined an unsafe for Canada, has issued Canadian AD We reviewed Bombardier Service condition exists and is likely to exist or CF–2017–08, dated March 8, 2017 Bulletin 670BA–32–047, Revision A, develop on other products of the same (referred to after this as the Mandatory dated December 5, 2016. The service type design. Continuing Airworthiness Information, information describes procedures for or ‘‘the MCAI’’), to correct an unsafe replacing certain nose landing gear and Costs of Compliance condition for certain Bombardier, Inc., main landing gear electro-mechanical We estimate that this proposed AD Model CL–600–2E25 (Regional Jet Series actuators. This service information is affects 39 airplanes of U.S. registry. 1000) airplanes. The MCAI states: reasonably available because the Malfunctions of the landing gear Alternate- interested parties have access to it We estimate the following costs to Extension System (AES) have been through their normal course of business comply with this proposed AD:

ESTIMATED COSTS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Replacement ...... 4 work-hours × $85 per hour = $340 ...... Not available ...... $340 $13,260

According to the manufacturer, some Regulatory Findings The Proposed Amendment of the costs of this proposed AD may be Accordingly, under the authority covered under warranty, thereby We determined that this proposed AD delegated to me by the Administrator, reducing the cost impact on affected would not have federalism implications the FAA proposes to amend 14 CFR part individuals. We do not control warranty under Executive Order 13132. This 39 as follows: coverage for affected individuals. As a proposed AD would not have a substantial direct effect on the States, on result, we have included all available PART 39—AIRWORTHINESS the relationship between the national costs in our cost estimate. DIRECTIVES Government and the States, or on the Authority for This Rulemaking distribution of power and ■ 1. The authority citation for part 39 Title 49 of the United States Code responsibilities among the various continues to read as follows: specifies the FAA’s authority to issue levels of government. Authority: 49 U.S.C. 106(g), 40113, 44701. rules on aviation safety. Subtitle I, For the reasons discussed above, I section 106, describes the authority of certify this proposed regulation: § 39.13 [Amended] the FAA Administrator. ‘‘Subtitle VII: ■ Aviation Programs,’’ describes in more 1. Is not a ‘‘significant regulatory 2. The FAA amends § 39.13 by adding detail the scope of the Agency’s action’’ under Executive Order 12866; the following new airworthiness authority. 2. Is not a ‘‘significant rule’’ under the directive (AD): We are issuing this rulemaking under DOT Regulatory Policies and Procedures Bombardier, Inc.: Docket No. FAA–2017– the authority described in ‘‘Subtitle VII, (44 FR 11034, February 26, 1979); 0512; Directorate Identifier 2017–NM– 031–AD. Part A, Subpart III, Section 44701: 3. Will not affect intrastate aviation in General requirements.’’ Under that Alaska; and (a) Comments Due Date section, Congress charges the FAA with 4. Will not have a significant We must receive comments by July 17, promoting safe flight of civil aircraft in 2017. air commerce by prescribing regulations economic impact, positive or negative, for practices, methods, and procedures on a substantial number of small entities (b) Affected ADs the Administrator finds necessary for under the criteria of the Regulatory None. Flexibility Act. safety in air commerce. This regulation (c) Applicability is within the scope of that authority List of Subjects in 14 CFR Part 39 This AD applies to Bombardier, Inc., because it addresses an unsafe condition Model CL–600–2E25 (Regional Jet Series that is likely to exist or develop on Air transportation, Aircraft, Aviation 1000) airplanes, certificated in any category, products identified in this rulemaking safety, Incorporation by reference, serial numbers 19001 through 19039 action. Safety. inclusive.

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(d) Subject (2) Contacting the Manufacturer: For any proposed AD was prompted by reports Air Transport Association (ATA) of requirement in this AD to obtain corrective of cracking of various structures in the America Code 32, Landing gear. actions from a manufacturer, the action must bulkhead. This proposed AD would be accomplished using a method approved require an inspection for cracking in (e) Reason by the Manager, New York ACO, ANE–170, FAA; or Transport Canada Civil Aviation these structures, and corrective actions This AD was prompted by failures of the if necessary. We are proposing this AD landing gear alternate-extension system (TCCA); or Bombardier, Inc.’s TCCA Design (AES). We are issuing this AD to prevent Approval Organization (DAO). If approved by to address the unsafe condition on these failure of the landing gear AES and the DAO, the approval must include the products. consequent landing with some or all of the DAO-authorized signature. DATES: We must receive comments on landing gear not extended. (k) Related Information this proposed AD by July 17, 2017. ADDRESSES: (f) Compliance (1) Refer to Mandatory Continuing You may send comments, Comply with this AD within the Airworthiness Information (MCAI) Canadian using the procedures found in 14 CFR compliance times specified, unless already AD CF–2017–08, dated March 8, 2017, for 11.43 and 11.45, by any of the following done. related information. This MCAI may be methods: found in the AD docket on the Internet at • Federal eRulemaking Portal: Go to (g) Replacement http://www.regulations.gov by searching for http://www.regulations.gov. Follow the Within 1,200 flight hours or 12 months and locating Docket No. FAA–2017–0512. instructions for submitting comments. after the effective date of this AD, whichever (2) For more information about this AD, • Fax: 202–493–2251. occurs first: Replace the nose landing gear contact Cesar Gomez, Aerospace Engineer, • Mail: U.S. Department of (NLG) and main landing gear (MLG) electro- Airframe and Mechanical Systems Branch, Transportation, Docket Operations, M– mechanical actuators (EMA) having part ANE–171, FAA, New York ACO, 1600 30, West Building Ground Floor, Room numbers (P/Ns) BA698–85006–1 and BA698– Stewart Avenue, Suite 410, Westbury, NY W12–140, 1200 New Jersey Avenue SE., 85007–1 with P/Ns BA698–85006–3 and 11590; telephone: 516–228–7318; fax: 516– BA698–85007–3, as applicable, in Washington, DC 20590. 794–5531. • Hand Delivery: Deliver to Mail accordance with the Accomplishment (3) For service information identified in Instructions of Bombardier Service Bulletin this AD, contact Bombardier, Inc., 400 Coˆte- address above between 9 a.m. and 5 670BA–32–047, Revision A, dated December Vertu Road West, Dorval, Que´bec H4S 1Y9, p.m., Monday through Friday, except 5, 2016 (‘‘670BA–32–047, RA’’). Where Canada; Widebody Customer Response Federal holidays. 670BA–32–047, RA, instructs operators to Center North America toll-free telephone 1– For service information identified in contact Bombardier if it is not possible to 866–538–1247 or direct-dial telephone: 1– this NPRM, contact Boeing Commercial complete all the instructions in 670BA–32– 514–855–2999; fax: 514–855–7401; email: Airplanes, Attention: Contractual & Data 047, RA, because of the configuration of the [email protected]; Internet: Services (C&DS), 2600 Westminster airplane, this AD requires that any deviation http://www.bombardier.com. You may view Blvd., MC 110–SK57, Seal Beach, CA from the instructions provided in 670BA–32– this service information at the FAA, 047, RA, must be approved as an alternative 90740–5600; telephone 562–797–1717; Transport Airplane Directorate, 1601 Lind Internet https:// method of compliance (AMOC) under the Avenue SW., Renton, WA. For information provisions of paragraph (j)(1) of this AD. on the availability of this material at the www.myboeingfleet.com. You may view this service information at the FAA, (h) Parts Installation Prohibition FAA, call 425–227–1221. Transport Airplane Directorate, 1601 As of the effective date of this AD, no Issued in Renton, Washington, on May 18, Lind Avenue SW., Renton, WA. For person may install an NLG or MLG EMA 2017. information on the availability of this having P/N BA698–85006–1 or BA698– Michael Kaszycki, 85007–1, on any airplane. material at the FAA, call 425–227–1221. Acting Manager, Transport Airplane It is also available on the Internet at (i) Credit for Previous Actions Directorate, Aircraft Certification Service. http://www.regulations.gov by searching This paragraph provides credit for actions [FR Doc. 2017–11005 Filed 6–1–17; 8:45 am] for and locating Docket No. FAA–2017– required by paragraph (g) of this AD, if those BILLING CODE 4910–13–P 0503. actions were performed before the effective date of this AD using Bombardier Service Examining the AD Docket Bulletin 670BA–32–047, dated February 28, DEPARTMENT OF TRANSPORTATION You may examine the AD docket on 2014. the Internet at http:// (j) Other FAA AD Provisions Federal Aviation Administration www.regulations.gov by searching for The following provisions also apply to this and locating Docket No. FAA–2017– AD: 14 CFR Part 39 0503; or in person at the Docket (1) Alternative Methods of Compliance [Docket No. FAA–2017–0503; Directorate Management Facility between 9 a.m. (AMOCs): The Manager, New York Aircraft Identifier 2017–NM–032–AD] and 5 p.m., Monday through Friday, Certification Office (ACO), ANE–170, FAA, except Federal holidays. The AD docket has the authority to approve AMOCs for this RIN 2120–AA64 contains this NPRM, the regulatory AD, if requested using the procedures found Airworthiness Directives; The Boeing evaluation, any comments received, and in 14 CFR 39.19. In accordance with 14 CFR other information. The street address for 39.19, send your request to your principal Company Airplanes inspector or local Flight Standards District the Docket Office (phone: 800–647– Office, as appropriate. If sending information AGENCY: Federal Aviation 5527) is in the ADDRESSES section. directly to the manager of the ACO, send it Administration (FAA), DOT. Comments will be available in the AD to ATTN: Program Manager, Continuing ACTION: Notice of proposed rulemaking docket shortly after receipt. Operational Safety, FAA, New York ACO, (NPRM). FOR FURTHER INFORMATION CONTACT: 1600 Stewart Avenue, Suite 410, Westbury, George Garrido, Aerospace Engineer, NY 11590; telephone: 516–228–7300; fax: SUMMARY: We propose to adopt a new Airframe Branch, ANM–120L, FAA, Los 516–794–5531. Before using any approved AMOC, notify your appropriate principal airworthiness directive (AD) for all The Angeles Aircraft Certification Office inspector, or lacking a principal inspector, Boeing Company Model DC–9–81 (MD– (ACO), 3960 Paramount Boulevard, the manager of the local flight standards 81), DC–9–82 (MD–82), DC–9–83 (MD– Lakewood, CA 90712–4137; phone: district office/certificate holding district 83), and DC–9–87 (MD–87) airplanes, 562–627–5232; fax: 562–627–5210; office. and Model MD–88 airplanes. This email: [email protected].

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SUPPLEMENTARY INFORMATION: corrected, could result in reduced actions correct or address any condition structural integrity of the airplane. found. Corrective actions in an AD Comments Invited could include, for example, repairs. Related Service Information Under 1 We invite you to send any written CFR Part 51 Differences Between This Proposed AD relevant data, views, or arguments about and the Service Information this proposed AD. Send your comments We reviewed Boeing Alert Service to an address listed under the Bulletin MD80–53A316, dated Boeing Alert Service Bulletin MD80– ADDRESSES section. Include ‘‘Docket No. December 15, 2016. The service 53A316, dated December 15, 2016, FAA–2017–0503; Directorate Identifier information describes procedures for a specifies to contact the manufacturer for 2017–NM–032–AD’’ at the beginning of detailed inspection on the left and right certain instructions, but this proposed your comments. We specifically invite sides of the forward and aft surfaces of AD would require using repair methods, comments on the overall regulatory, cant station 1463 bulkhead and cant modification deviations, and alteration economic, environmental, and energy station 1254 bulkhead for cracking in deviations in one of the following ways: the upper caps, upper cap doublers, aspects of this NPRM. We will consider • In accordance with a method that all comments received by the closing bulkhead webs and doublers, stiffeners, lower caps, and vertical stabilizer rear we approve; or date and may amend this NPRM • because of those comments. spar caps and webs, between longerons Using data that meet the We will post all comments we L–11L through L–11R, and corrective certification basis of the airplane, and receive, without change, to http:// actions. This service information is that have been approved by the Boeing www.regulations.gov, including any reasonably available because the Commercial Airplanes Organization personal information you provide. We interested parties have access to it Designation Authorization (ODA) whom will also post a report summarizing each through their normal course of business we have authorized to make those substantive verbal contact we receive or by the means identified in the findings. about this NPRM. ADDRESSES section. Boeing Alert Service Bulletin MD80– FAA’s Determination 53A316, dated December 15, 2016, Discussion specifies doing the inspection at cant We are proposing this AD because we station 1463 bulkhead for Model MD–88 We have received reports of cracking evaluated all the relevant information airplanes. However, Model MD–88 of various structures in The Boeing and determined the unsafe condition airplanes are similar in design to Model Company Model DC–9–81 (MD–81), described previously is likely to exist or DC–9–87 (MD–87) airplanes, and should DC–9–82 (MD–82), and DC–9–83 (MD– develop in other products of these same instead be inspected at cant station 1254 83) airplanes at the cant station 1463 type designs. bulkhead, and the Model DC–9–87 bulkhead. Therefore, this proposed AD (MD–87) airplanes at the cant station Proposed AD Requirements specifies that the proposed actions for 1254 bulkhead. One incident of cracking This proposed AD would require Model MD–88 airplanes be was discovered during a heavy accomplishing the actions specified in accomplished using the maintenance visit on an airplane with the service information described Accomplishment Instructions for Model 63,480 total flight hours, and 45,809 previously, except as discussed under DC–9–87 (MD–87) airplanes in Boeing total flight cycles. The cracks were in ‘‘Differences Between this Proposed AD Alert Service Bulletin MD80–53A316, the upper left area of the bulkhead, and the Service Information.’’ For dated December 15, 2016. This between longerons L–2 and L–3, in the information on the procedures and difference has been coordinated with frame web, horizontal stiffeners, lower compliance times, see this service Boeing. frame cap, rear spar cap, and spar cap information at http:// Costs of Compliance web. An analysis has determined that www.regulations.gov by searching for the operational and limit loads cannot and locating Docket No. FAA–2017– We estimate that this proposed AD duplicate this condition and the root 0503. affects 361 airplanes of U.S. registry. We cause is suspected to be the result of a The phrase ‘‘corrective actions’’ is estimate the following costs to comply high load event(s). This condition, if not used in this proposed AD. Corrective with this proposed AD:

ESTIMATED COSTS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Inspection ...... 3 work-hours × $85 per hour = $255 ...... $0 $255 $92,055

We have received no definitive data detail the scope of the Agency’s is within the scope of that authority that would enable us to provide cost authority. because it addresses an unsafe condition estimates for the on-condition actions We are issuing this rulemaking under that is likely to exist or develop on specified in this proposed AD. the authority described in Subtitle VII, products identified in this rulemaking action. Authority for This Rulemaking Part A, Subpart III, Section 44701: ‘‘General requirements.’’ Under that Regulatory Findings Title 49 of the United States Code section, Congress charges the FAA with specifies the FAA’s authority to issue promoting safe flight of civil aircraft in We determined that this proposed AD rules on aviation safety. Subtitle I, air commerce by prescribing regulations would not have federalism implications section 106, describes the authority of for practices, methods, and procedures under Executive Order 13132. This the FAA Administrator. Subtitle VII: the Administrator finds necessary for proposed AD would not have a Aviation Programs, describes in more safety in air commerce. This regulation substantial direct effect on the States, on

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the relationship between the national bulkhead, which could result in reduced paragraph (l)(1) of this AD. Information may Government and the States, or on the structural integrity of the airplane. be emailed to: 9-ANM-LAACO-AMOC- [email protected]. distribution of power and (f) Compliance (2) Before using any approved AMOC, responsibilities among the various Comply with this AD within the levels of government. notify your appropriate principal inspector, compliance times specified, unless already or lacking a principal inspector, the manager For the reasons discussed above, I done. certify this proposed regulation: of the local flight standards district office/ (1) Is not a ‘‘significant regulatory (g) Inspection and Corrective Action certificate holding district office. action’’ under Executive Order 12866, Within 700 flight cycles or 6 months after (3) An AMOC that provides an acceptable (2) Is not a ‘‘significant rule’’ under the effective date of this AD, whichever level of safety may be used for any repair, modification, or alteration required by this the DOT Regulatory Policies and occurs first, do a detailed inspection for cracking on the left and right sides of the AD if it is approved by the Boeing Procedures (44 FR 11034, February 26, forward and aft surfaces of the cant station Commercial Airplanes Organization 1979), 1463 bulkhead (for Model DC–9–81 (MD–81), Designation Authorization (ODA) that has (3) Will not affect intrastate aviation DC–9–82 (MD–82), and DC–9–83 (MD–83) been authorized by the Manager, Los Angeles in Alaska, and airplanes) and cant station 1254 bulkhead ACO, to make those findings. To be (4) Will not have a significant (for DC–9–87 (MD–87) airplanes and MD–88 approved, the repair method, modification economic impact, positive or negative, airplanes); and do all applicable corrective deviation, or alteration deviation must meet on a substantial number of small entities actions; in accordance with the the certification basis of the airplane, and the Accomplishment Instructions of Boeing Alert under the criteria of the Regulatory approval must specifically refer to this AD. Service Bulletin MD80–53A316, dated Flexibility Act. (4) Except as required by paragraph (h) of December 15, 2016, except as required in this AD: For service information that List of Subjects in 14 CFR Part 39 paragraphs (h)(1) and (h)(2) of this AD. Do all applicable corrective actions before further contains steps that are labeled as Required Air transportation, Aircraft, Aviation flight. for Compliance (RC), the provisions of safety, Incorporation by reference, paragraphs (k)(4)(i) and (k)(4)(ii) of this AD Safety. (h) Exceptions to Service Information apply. (1) For Model MD–88 airplanes: This AD (i) The steps labeled as RC, including The Proposed Amendment requires that instead of inspecting at cant substeps under an RC step and any figures Accordingly, under the authority station 1463 bulkhead, operators must identified in an RC step, must be done to delegated to me by the Administrator, inspect at cant station 1254 bulkhead, which comply with the AD. If a step or substep is the FAA proposes to amend 14 CFR part is identified as ‘‘DC–9–87 (MD–87) CANT labeled ‘‘RC Exempt,’’ then the RC STA 1254 BULKHEAD’’ in the 39 as follows: requirement is removed from that step or Accomplishment Instructions of Boeing Alert substep. An AMOC is required for any Service Bulletin MD80–53A316, dated deviations to RC steps, including substeps PART 39—AIRWORTHINESS December 15, 2016. DIRECTIVES (2) Where Boeing Alert Service Bulletin and identified figures. MD80–53A316, dated December 15, 2016, (ii) Steps not labeled as RC may be ■ 1. The authority citation for part 39 specifies to contact Boeing for appropriate deviated from using accepted methods in continues to read as follows: action and specifies that action as ‘‘RC’’ accordance with the operator’s maintenance or inspection program without obtaining Authority: 49 U.S.C. 106(g), 40113, 44701. (Required for Compliance): Before further flight, repair the cracking using a method approval of an AMOC, provided the RC steps, § 39.13 [Amended] approved in accordance with the procedures including substeps and identified figures, can ■ 2. The FAA amends § 39.13 by adding specified in paragraph (k) of this AD. still be done as specified, and the airplane the following new airworthiness (i) Credit for Previous Actions can be put back in an airworthy condition. directive (AD): This paragraph provides credit for the (l) Related Information The Boeing Company: Docket No. FAA– actions specified in paragraph (g) of this AD, (1) For more information about this AD, 2017–0503; Directorate Identifier 2017– if those actions were performed before the contact George Garrido, Aerospace Engineer, NM–032–AD. effective date of this AD using Boeing Multi Airframe Branch, ANM–120L, FAA, Los Operator Message MOM–MOM–16–0684– Angeles Aircraft Certification Office (ACO), (a) Comments Due Date 01B, dated October 7, 2016. 3960 Paramount Boulevard, Lakewood, CA We must receive comments by July 17, (j) Special Flight Permit 90712–4137; phone: 562–627–5232; fax: 562– 2017. Special flight permits, as described in 627–5210; email: [email protected]. (b) Affected ADs Section 21.197 and Section 21.199 of the (2) For service information identified in None. Federal Aviation Regulations (14 CFR 21.197 this AD, contact Boeing Commercial and 21.199), may be issued to operate the Airplanes, Attention: Contractual & Data (c) Applicability airplane to a location where the requirements Services (C&DS), 2600 Westminster Blvd., This AD applies to all The Boeing of this AD can be accomplished, but MC 110–SK57, Seal Beach, CA 90740–5600; Company Model DC–9–81 (MD–81), DC–9– concurrence by the Manager, Los Angeles telephone 562–797–1717; Internet https:// 82 (MD–82), DC–9–83 (MD–83), and DC–9– Aircraft Certification Office (ACO), FAA, is www.myboeingfleet.com. You may view this 87 (MD–87) airplanes, and Model MD–88 required before issuance of the special flight referenced service information at the FAA, airplanes, certificated in any category. permit. Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information (d) Subject (k) Alternative Methods of Compliance (AMOCs) on the availability of this material at the Air Transport Association (ATA) of FAA, call 425–227–1221. America Code 53; Fuselage. (1) The Manager, Los Angeles ACO, FAA, has the authority to approve AMOCs for this Issued in Renton, Washington, on May 18, (e) Unsafe Condition AD, if requested using the procedures found 2017. This AD was prompted by reports of in 14 CFR 39.19. In accordance with 14 CFR Michael Kaszycki, cracking of various structures at the cant 39.19, send your request to your principal Acting Manager, Transport Airplane station 1463 bulkhead and at the cant station inspector or local Flight Standards District Directorate, Aircraft Certification Service. 1254 bulkhead. We are issuing this AD to Office, as appropriate. If sending information detect and correct cracking at the cant station directly to the manager of the ACO, send it [FR Doc. 2017–11006 Filed 6–1–17; 8:45 am] 1463 bulkhead and cant station 1254 to the attention of the person identified in BILLING CODE 4910–13–P

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DEPARTMENT OF TRANSPORTATION availability of this material at the FAA, floor line at stringer S–17L, was found call 425–227–1221. It is also available during a routine maintenance visit. The Federal Aviation Administration on the Internet at http:// crack was not easily detected because it www.regulations.gov by searching for was hidden by adjacent structure. 14 CFR Part 39 and locating Docket No. FAA–2017– Analysis revealed that the crack was [Docket No. FAA–2017–0519; Directorate 0519. caused by fatigue. Cracking of the fuselage frame, if not detected and Identifier 2017–NM–001–AD] Examining the AD Docket corrected, could result in reduced RIN 2120–AA64 You may examine the AD docket on structural integrity of the airplane. the Internet at http:// Airworthiness Directives; The Boeing www.regulations.gov by searching for Related Service Information Under 1 Company Airplanes and locating Docket No. FAA–2017– CFR Part 51 AGENCY: Federal Aviation 0519; or in person at the Docket We reviewed Boeing Alert Service Administration (FAA), DOT. Management Facility between 9 a.m. Bulletin 757–53A0100, dated November and 5 p.m., Monday through Friday, ACTION: Notice of proposed rulemaking 14, 2016. The service information except Federal holidays. The AD docket (NPRM). describes procedures for inspecting the contains this proposed AD, the fuselage frame for existing frame and SUMMARY: We propose to adopt a new regulatory evaluation, any comments floor beam repairs, and repetitive high airworthiness directive (AD) for certain received, and other information. The frequency eddy current inspections for The Boeing Company Model 757–200, street address for the Docket Office cracking in any area with no existing –200CB, and –300 series airplanes. This (phone: 800–647–5527) is in the frame repair, repetitive high and low proposed AD was prompted by a report ADDRESSES section. Comments will be frequency eddy current inspections for of fatigue cracking found in a certain available in the AD docket shortly after cracking in any area with no existing fuselage frame web. This proposed AD receipt. frame or floor beam repair, and repair. would require inspecting the fuselage FOR FURTHER INFORMATION CONTACT: This service information is reasonably frame for existing repairs, repetitive Muoi Vuong, Aerospace Engineer, available because the interested parties inspections of the frame, and applicable Airframe Branch, ANM–120L, FAA, Los have access to it through their normal repairs. We are proposing this AD to Angeles Aircraft Certification Office course of business or by the means address the unsafe condition on these (ACO), 3960 Paramount Boulevard, identified in the ADDRESSES section. Lakewood, CA 90712–4137; phone: products. FAA’s Determination 562–627–5205; fax: 562–627–5210; DATES: We must receive comments on email: [email protected]. We are proposing this AD because we this proposed AD by July 17, 2017. SUPPLEMENTARY INFORMATION: evaluated all the relevant information ADDRESSES: You may send comments, and determined the unsafe condition using the procedures found in 14 CFR Comments Invited described previously is likely to exist or 11.43 and 11.45, by any of the following We invite you to send any written develop in other products of the same methods: relevant data, views, or arguments about type design. • Federal eRulemaking Portal: Go to this proposed AD. Send your comments Proposed AD Requirements http://www.regulations.gov. Follow the to an address listed under the instructions for submitting comments. ADDRESSES section. Include ‘‘Docket No. This proposed AD would require • Fax: 202–493–2251. FAA–2017–0519; Directorate Identifier accomplishment of the actions • Mail: U.S. Department of 2017–NM–001–AD’’ at the beginning of identified as ‘‘RC’’ (required for Transportation, Docket Operations, M– your comments. We specifically invite compliance) in the Accomplishment 30, West Building Ground Floor, Room comments on the overall regulatory, Instructions of Boeing Alert Service W12–140, 1200 New Jersey Avenue SE., economic, environmental, and energy Bulletin 757–53A0100, dated November Washington, DC 20590. aspects of this proposed AD. We will 14, 2016, described previously, except • Hand Delivery: Deliver to Mail consider all comments received by the for differences between this proposed address above between 9 a.m. and 5 closing date and may amend this AD and the service information that are p.m., Monday through Friday, except proposed AD because of those identified in the regulatory text of this Federal holidays. comments. proposed AD. For service information identified in We will post all comments we For information on the procedures this NPRM, contact Boeing Commercial receive, without change, to http:// and compliance times, see this service Airplanes, Attention: Contractual & Data www.regulations.gov, including any information at http:// Services (C&DS), 2600 Westminster personal information you provide. We www.regulations.gov by searching for Blvd., MC 110–SK57, Seal Beach, CA will also post a report summarizing each and locating Docket No. FAA–2017– 90740; telephone 562–797–1717; substantive verbal contact we receive 0519. Internet https:// about this proposed AD. www.myboeingfleet.com. You may view Costs of Compliance this referenced service information at Discussion We estimate that this proposed AD the FAA, Transport Airplane We have received a report indicating affects 606 airplanes of U.S. registry. We Directorate, 1601 Lind Avenue SW., a 6-inch-long crack in the fuselage frame estimate the following costs to comply Renton, WA. For information on the web at station (STA) 1681, below the with this proposed AD:

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ESTIMATED COSTS

Cost on U.S. Action Labor cost Parts cost Cost per product operators

Inspection for existing frame and floor 1 work-hour × $85 per hour = $85 ...... $0 $85 ...... $51,510. beam repairs. Repetitive inspections ...... Up to 32 work-hours × $85 per hour = $0 Up to $2,720 ...... Up to $1,648,320. up to $2,720 per inspection cycle.

We have received no definitive data List of Subjects in 14 CFR Part 39 accordance with, the Accomplishment that would enable us to provide cost Instructions of Boeing Alert Service Bulletin Air transportation, Aircraft, Aviation 757–53A0100, dated November 14, 2016. Do estimates for the on-condition repair safety, Incorporation by reference, specified in this proposed AD. the actions at the applicable times specified Safety. in paragraph 1.E., ‘‘Compliance,’’ of Boeing Authority for This Rulemaking Alert Service Bulletin 757–53A0100, dated The Proposed Amendment November 14, 2016. Title 49 of the United States Code Accordingly, under the authority (h) Exceptions specifies the FAA’s authority to issue delegated to me by the Administrator, rules on aviation safety. Subtitle I, the FAA proposes to amend 14 CFR part (1) Where Boeing Alert Service Bulletin section 106, describes the authority of 757–53A0100, dated November 14, 2016, 39 as follows: uses the phrase ‘‘after the original issue of the FAA Administrator. Subtitle VII: this service bulletin’’ for determining Aviation Programs, describes in more PART 39—AIRWORTHINESS compliance, for purposes of this AD, detail the scope of the Agency’s DIRECTIVES compliance is based on the effective date of authority. this AD. ■ 1. The authority citation for part 39 We are issuing this rulemaking under (2) Where Boeing Alert Service Bulletin continues to read as follows: the authority described in Subtitle VII, 757–53A0100, dated November 14, 2016, Authority: 49 U.S.C. 106(g), 40113, 44701. specifies contacting Boeing for instructions, Part A, Subpart III, Section 44701: and specifies that action as ‘‘RC’’ (Required ‘‘General requirements.’’ Under that § 39.13 [Amended] for Compliance): This AD requires using a section, Congress charges the FAA with ■ method approved in accordance with the promoting safe flight of civil aircraft in 2. The FAA amends § 39.13 by adding procedures specified in paragraph (i) of this air commerce by prescribing regulations the following new airworthiness AD. directive (AD): for practices, methods, and procedures (i) Alternative Methods of Compliance the Administrator finds necessary for The Boeing Company: Docket No. FAA– (AMOCs) safety in air commerce. This regulation 2017–0519; Directorate Identifier 2017– NM–001–AD. (1) The Manager, Los Angeles Aircraft is within the scope of that authority Certification Office (ACO), FAA, has the because it addresses an unsafe condition (a) Comments Due Date authority to approve AMOCs for this AD, if that is likely to exist or develop on We must receive comments by July 17, requested using the procedures found in 14 products identified in this rulemaking 2017. CFR 39.19. In accordance with 14 CFR 39.19, action. send your request to your principal inspector (b) Affected ADs or local Flight Standards District Office, as Regulatory Findings None. appropriate. If sending information directly to the manager of the ACO, send it to the We determined that this proposed AD (c) Applicability attention of the person identified in would not have federalism implications This AD applies to The Boeing Company paragraph (j)(1) of this AD. Information may under Executive Order 13132. This Model 757–200, –200CB, and –300 series be emailed to 9-ANM-LAACO-AMOC- proposed AD would not have a airplanes, certificated in any category, as [email protected]. substantial direct effect on the States, on identified in Boeing Alert Service Bulletin (2) Before using any approved AMOC, the relationship between the national 757–53A0100, dated November 14, 2016. notify your appropriate principal inspector, Government and the States, or on the or lacking a principal inspector, the manager (d) Subject of the local flight standards district office/ distribution of power and Air Transport Association (ATA) of certificate holding district office. responsibilities among the various America Code 53; Fuselage. (3) An AMOC that provides an acceptable levels of government. level of safety may be used for any repair, (e) Unsafe Condition For the reasons discussed above, I modification, or alteration required by this certify this proposed regulation: This AD was prompted by a report of AD if it is approved by the Boeing fatigue cracking found in the fuselage frame Commercial Airplanes Organization (1) Is not a ‘‘significant regulatory web at station (STA) 1681. We are issuing Designation Authorization (ODA) that has action’’ under Executive Order 12866, this AD to detect and correct cracking of the been authorized by the Manager, Los Angeles (2) Is not a ‘‘significant rule’’ under fuselage frame at STA 1681, which could ACO, to make those findings. To be the DOT Regulatory Policies and result in reduced structural integrity of the approved, the repair method, modification Procedures (44 FR 11034, February 26, airplane. deviation, or alteration deviation must meet the certification basis of the airplane, and the 1979), (f) Compliance approval must specifically refer to this AD. (3) Will not affect intrastate aviation Comply with this AD within the (4) Except as required by paragraph (h)(2) in Alaska, and compliance times specified, unless already of this AD: For service information that done. contains steps that are labeled as Required (4) Will not have a significant for Compliance (RC), the provisions of economic impact, positive or negative, (g) Actions Required for Compliance paragraphs (i)(4)(i) and (i)(4)(ii) of this AD on a substantial number of small entities Except as required by paragraph (h) of this apply. under the criteria of the Regulatory AD: Do all applicable actions identified as (i) The steps labeled as RC, including Flexibility Act. required for compliance (‘‘RC’’) in, and in substeps under an RC step and any figures

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identified in an RC step, must be done to require more restrictive maintenance SUPPLEMENTARY INFORMATION: comply with the AD. If a step or substep is requirements and airworthiness Comments Invited labeled ‘‘RC Exempt,’’ then the RC limitations. This proposed AD would requirement is removed from that step or require revising the maintenance or We invite you to send any written substep. An AMOC is required for any inspection program, as applicable, to relevant data, views, or arguments about deviations to RC steps, including substeps this proposed AD. Send your comments and identified figures. incorporate new maintenance (ii) Steps not labeled as RC may be requirements and airworthiness to an address listed under the deviated from using accepted methods in limitations. We are proposing this AD to ADDRESSES section. Include ‘‘Docket No. accordance with the operator’s maintenance address the unsafe condition on these FAA–2017–0514; Directorate Identifier or inspection program without obtaining products. 2016–NM–206–AD’’ at the beginning of approval of an AMOC, provided the RC steps, your comments. We specifically invite DATES: We must receive comments on including substeps and identified figures, can comments on the overall regulatory, this proposed AD by July 17, 2017. still be done as specified, and the airplane economic, environmental, and energy can be put back in an airworthy condition. ADDRESSES: You may send comments, aspects of this proposed AD. We will (j) Related Information using the procedures found in 14 CFR consider all comments received by the 11.43 and 11.45, by any of the following (1) For more information about this AD, closing date and may amend this methods: contact Muoi Vuong, Aerospace Engineer, • proposed AD based on those comments. Airframe Branch, ANM–120L, FAA, Los Federal eRulemaking Portal: Go to We will post all comments we Angeles ACO, 3960 Paramount Boulevard, http://www.regulations.gov. Follow the receive, without change, to http:// Lakewood, CA 90712–4137; phone: 562–627– instructions for submitting comments. www.regulations.gov, including any 5205; fax: 562–627–5210; email: • Fax: 202–493–2251. • personal information you provide. We [email protected]. Mail: U.S. Department of will also post a report summarizing each (2) For service information identified in Transportation, Docket Operations, M– substantive verbal contact we receive this AD, contact Boeing Commercial 30, West Building Ground Floor, Room about this proposed AD. Airplanes, Attention: Contractual & Data W12–140, 1200 New Jersey Avenue SE., Services (C&DS), 2600 Westminster Blvd., Washington, DC 20590. Discussion MC 110–SK57, Seal Beach, CA 90740; • Hand Delivery: Deliver to Mail The European Aviation Safety Agency telephone 562–797–1717; Internet https:// address above between 9 a.m. and 5 www.myboeingfleet.com. You may view this (EASA), which is the Technical Agent referenced service information at the FAA, p.m., Monday through Friday, except for the Member States of the European Transport Airplane Directorate, 1601 Lind Federal holidays. Union, has issued EASA AD 2016–0218, Avenue SW., Renton, WA. For information For service information identified in dated November 2, 2016 (referred to on the availability of this material at the this NPRM, contact Airbus SAS, after this as the Mandatory Continuing FAA, call 425–227–1221. Airworthiness Office—EAW, 1 Rond Airworthiness Information, or ‘‘the Issued in Renton, Washington, on May 19, Point Maurice Bellonte, 31707 Blagnac MCAI’’), to correct an unsafe condition 2017. Cedex, France; telephone +33 5 61 93 36 for all Airbus Model A300 B4–600, B4– Victor Wicklund, 96; fax +33 5 61 93 44 51; email 600R, and F4–600R series airplanes, and Acting Manager, Transport Airplane [email protected]; Model A300 C4–605R Variant F Directorate, Aircraft Certification Service. Internet http://www.airbus.com. You airplanes (collectively called Model may view this referenced service [FR Doc. 2017–11004 Filed 6–1–17; 8:45 am] A300–600 series airplanes). The MCAI information at the FAA, Transport states: BILLING CODE 4910–13–P Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on The airworthiness limitations for Airbus A300–600 aeroplanes, which are approved by DEPARTMENT OF TRANSPORTATION the availability of this material at the EASA, are currently defined and published FAA, call 425–227–1221. in the Airbus A300–600 Airworthiness Federal Aviation Administration Examining the AD Docket Limitations Section (ALS) document(s). These instructions have been identified as 14 CFR Part 39 You may examine the AD docket on mandatory actions for continued the Internet at http:// airworthiness. [Docket No. FAA–2017–0514; Directorate www.regulations.gov by searching for Failure to accomplish these instructions Identifier 2016–NM–206–AD] and locating Docket No. FAA–2017– could result in an unsafe condition. EASA previously issued [EASA] AD 2014– RIN 2120–AA64 0514; or in person at the Docket 0124 (later revised)[which includes actions Management Facility between 9 a.m. for Airbus A300–600 airplanes; those actions Airworthiness Directives; Airbus and 5 p.m., Monday through Friday, are included in FAA AD 2013–13–13, Airplanes except Federal holidays. The AD docket Amendment 39–17501 (79 FR 48957, August 19, 2014) (‘‘AD 2013–13–13’’)], requiring the AGENCY: Federal Aviation contains this proposed AD, the actions described in Airbus A300–600 Administration (FAA), DOT. regulatory evaluation, any comments received, and other information. The Airworthiness Limitation Item (ALI) ACTION: Notice of proposed rulemaking street address for the Docket Operations Document at issue 13 and Temporary (NPRM). Revision (TR) 13.1. office (telephone 800–647–5527) is in Since EASA AD 2014–0124R1 was issued, SUMMARY: We propose to adopt a new the ADDRESSES section. Comments will Airbus replaced A300–600 ALI Document airworthiness directive (AD) for all be available in the AD docket shortly issue 13, with A300–600 ALS Part 2 Revision Airbus Model A300 B4–600, B4–600R, after receipt. 01 and then published the A300–600 ALS and F4–600R series airplanes, and FOR FURTHER INFORMATION CONTACT: Dan Part 2 Variation 1.1 and Variation 1.2, to Model A300 C4–605R Variant F Rodina, Aerospace Engineer, introduce more restrictive maintenance airplanes (collectively called Model International Branch, ANM–116, requirements and/or airworthiness limitations. A300–600 series airplanes). This Transport Airplane Directorate, FAA, A300–600 ALS Part 2 Variation 1.1 also proposed AD was prompted by a 1601 Lind Avenue SW., Renton, WA includes ALI 571067 and ALI 571068, revision of certain airworthiness 98057–3356; telephone 425–227–2125; superseding Service Bulletin A300–53–6154, limitation item (ALI) documents, which fax 425–227–1149. which is referenced in EASA AD 2006–0257

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[which corresponds to FAA AD 2007–22–05, • Airbus A300–600 Airworthiness appropriate to address the changes in Amendment 39–15241 (72 FR 60236, October Limitations Section (ALS), Part 2, the MCAI. This NPRM would require 24, 2007) (‘‘AD 2007–22–05’’)]. ‘‘Damage Tolerant Airworthiness revising the maintenance or inspection For the reasons described above, this Limitation Items (DT–ALI),’’ Variation program to incorporate the new [EASA] AD retains part of the requirements of EASA AD 2014–0124R1, which will be 1.2, dated July 22, 2016. maintenance requirements and superseded, and requires accomplishment of The service information describes airworthiness limitations. the actions specified in Airbus A300–600 airworthiness limitations applicable to Accomplishment of the proposed ALS Part 2 Revision 01, and ALS Part 2 the DT ALIs. These documents are actions would then terminate all the Variation 1.1 and ALS Part 2 Variation 1.2 distinct because they contain unique requirements of AD 2007–22–05 and AD (hereafter collectively referred to as ‘the ALS’ tasks. This service information is 2013–13–13. in this [EASA] AD), and supersedes EASA reasonably available because the This AD requires revisions to certain AD 2006–0257. The remaining requirements interested parties have access to it operator maintenance documents to of EASA AD 2014–0124R1 are retained in AD through their normal course of business include new actions (e.g., inspections). 2016–0217, applicable to A310 aeroplanes, published at the same time as this [EASA] or by the means identified in the Compliance with these actions is AD. ADDRESSES section. required by 14 CFR 91.403(c). For airplanes that have been previously FAA’s Determination and Requirements You may examine the MCAI in the modified, altered, or repaired in the of This Proposed AD AD docket on the Internet at http:// areas addressed by this proposed AD, www.regulations.gov by searching for This product has been approved by the operator may not be able to and locating Docket No. FAA–2017– the aviation authority of another accomplish the actions described in the 0514. country, and is approved for operation revisions. In this situation, to comply Related Service Information Under 1 in the United States. Pursuant to our with 14 CFR 91.403(c), the operator CFR Part 51 bilateral agreement with the State of must request approval for an alternative Design Authority, we have been notified method of compliance according to We reviewed the following service of the unsafe condition described in the paragraph (j)(1) of this proposed AD. information: MCAI and service information The request should include a • Airbus A300–600 Airworthiness referenced above. We are proposing this description of changes to the required Limitations Section (ALS), Part 2, AD because we evaluated all pertinent actions that will ensure the continued ‘‘Damage Tolerant Airworthiness information and determined an unsafe damage tolerance of the affected Limitation Items (DT–ALI),’’ Revision condition exists and is likely to exist or structure. 01, dated August 7, 2015. develop on other products of the same • Airbus A300–600 Airworthiness type design. Costs of Compliance Limitations Section (ALS), Part 2, This NPRM would not supersede AD We estimate that this proposed AD ‘‘Damage Tolerant Airworthiness 2007–22–05 and AD 2013–13–13. affects 128 airplanes of U.S. registry. Limitation Items (DT–ALI),’’ Variation Rather, we have determined that a We estimate the following costs to 1.1, dated January 25, 2016. stand-alone AD would be more comply with this proposed AD:

ESTIMATED COSTS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Maintenance program revision ...... 1 work-hour × $85 per hour = $85 ...... None ...... $85 $10,880

Authority for This Rulemaking products identified in this rulemaking 4. Will not have a significant action. economic impact, positive or negative, Title 49 of the United States Code on a substantial number of small entities Regulatory Findings specifies the FAA’s authority to issue under the criteria of the Regulatory rules on aviation safety. Subtitle I, We determined that this proposed AD Flexibility Act. section 106, describes the authority of would not have federalism implications List of Subjects in 14 CFR Part 39 the FAA Administrator. ‘‘Subtitle VII: under Executive Order 13132. This Aviation Programs,’’ describes in more proposed AD would not have a Air transportation, Aircraft, Aviation detail the scope of the Agency’s substantial direct effect on the States, on safety, Incorporation by reference, authority. the relationship between the national Safety. We are issuing this rulemaking under Government and the States, or on the The Proposed Amendment the authority described in ‘‘Subtitle VII, distribution of power and Part A, Subpart III, Section 44701: responsibilities among the various Accordingly, under the authority General requirements.’’ Under that levels of government. delegated to me by the Administrator, section, Congress charges the FAA with For the reasons discussed above, I the FAA proposes to amend 14 CFR part promoting safe flight of civil aircraft in certify this proposed regulation: 39 as follows: air commerce by prescribing regulations 1. Is not a ‘‘significant regulatory for practices, methods, and procedures action’’ under Executive Order 12866; PART 39—AIRWORTHINESS the Administrator finds necessary for 2. Is not a ‘‘significant rule’’ under the DIRECTIVES safety in air commerce. This regulation DOT Regulatory Policies and Procedures is within the scope of that authority (44 FR 11034, February 26, 1979); ■ 1. The authority citation for part 39 because it addresses an unsafe condition 3. Will not affect intrastate aviation in continues to read as follows: that is likely to exist or develop on Alaska; and Authority: 49 U.S.C. 106(g), 40113, 44701.

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§ 39.13 [Amended] (h) No Alternative Actions or Intervals Lind Avenue SW., Renton, WA. For information on the availability of this ■ After the maintenance or inspection 2. The FAA amends § 39.13 by adding material at the FAA, call 425–227–1221. the following new airworthiness program has been revised as required by paragraph (g) of this AD, no alternative directive (AD): Issued in Renton, Washington, on May 18, actions (e.g., inspections), or intervals, may 2017. Airbus: Docket No. FAA–2017–0514; be used unless the actions, or intervals, are Michael Kaszycki, Directorate Identifier 2016–NM–206–AD. approved as an alternative method of compliance (AMOC) in accordance with the Acting Manager, Transport Airplane (a) Comments Due Date procedures specified in paragraph (j)(1) of Directorate, Aircraft Certification Service. We must receive comments by July 17, this AD. [FR Doc. 2017–11003 Filed 6–1–17; 8:45 am] 2017. (i) Terminating Actions BILLING CODE 4910–13–P (b) Affected ADs Accomplishing the actions required by this This AD affects AD 2007–22–05, AD terminates all of the requirements of AD DEPARTMENT OF TRANSPORTATION Amendment 39–15241 (72 FR 60236, October 2007–22–05 and AD 2013–13–13 for that 24, 2007) (‘‘AD 2007–22–05’’) and AD 2013– airplane only. Federal Aviation Administration 13–13, Amendment 39–17501 (79 FR 48957, (j) Other FAA AD Provisions August 19, 2014) (‘‘AD 2013–13–13’’). The following provisions also apply to this 14 CFR Part 39 (c) Applicability AD: [Docket No. FAA–2017–0518; Directorate This AD applies to all Airbus Model A300 (1) Alternative Methods of Compliance Identifier 2016–NM–167–AD] (AMOCs): The Manager, International B4–601, B4–603, B4–620, B4–622, B4–605R, Branch, ANM–116, Transport Airplane RIN 2120–AA64 B4–622R, F4–605R, F4–622R, and C4–605R Directorate, FAA, has the authority to Variant F airplanes, certificated in any approve AMOCs for this AD, if requested Airworthiness Directives; Bombardier, category, all manufacturer serial numbers. using the procedures found in 14 CFR 39.19. Inc., Airplanes (d) Subject In accordance with 14 CFR 39.19, send your request to your principal inspector or local AGENCY: Federal Aviation Air Transport Association (ATA) of Flight Standards District Office, as Administration (FAA), DOT. America Code 05, Time limits/maintenance appropriate. If sending information directly checks. ACTION: Notice of proposed rulemaking to the manager of the International Branch, (NPRM). (e) Reason send it to the attention of the person This AD was prompted by a revision of identified in paragraph (k)(2) of this AD. SUMMARY: We propose to adopt a new Before using any approved AMOC, notify certain airworthiness limitation item (ALI) airworthiness directive (AD) for certain your appropriate principal inspector, or documents, which require more restrictive lacking a principal inspector, the manager of Bombardier, Inc., Model DHC–8–400 maintenance requirements and airworthiness the local flight standards district office/ series airplanes. This AD was prompted limitations. We are issuing this AD to prevent certificate holding district office. by the failure of the fire control fatigue cracking, damage, or corrosion in (2) Contacting the Manufacturer: For any amplifier, which was likely caused by principal structural elements, which could requirement in this AD to obtain corrective an electrical short in a discharged squib result in reduced structural integrity of the actions from a manufacturer, the action must for a fire extinguishing bottle. This airplane. be accomplished using a method approved proposed AD would require replacing (f) Compliance by the Manager, International Branch, ANM– certain circuit breakers. We are 116, Transport Airplane Directorate, FAA; or Comply with this AD within the proposing this AD to address the unsafe the European Aviation Safety Agency compliance times specified, unless already (EASA); or Airbus’s EASA Design condition on these products. done. Organization Approval (DOA). If approved by DATES: We must receive comments on (g) Revision of Maintenance or Inspection the DOA, the approval must include the this proposed AD by July 17, 2017. Program DOA-authorized signature. ADDRESSES: You may send comments, Within 3 months after the effective date of (k) Related Information using the procedures found in 14 CFR this AD, revise the maintenance or inspection (1) Refer to Mandatory Continuing 11.43 and 11.45, by any of the following program, as applicable, to incorporate the Airworthiness Information (MCAI) EASA methods: information specified in paragraphs (g)(1), Airworthiness Directive 2016–0218, dated • Federal eRulemaking Portal: Go to (g)(2), and (g)(3) of this AD. The initial November 2, 2016, for related information. http://www.regulations.gov. Follow the compliance times for doing the tasks are at This MCAI may be found in the AD docket instructions for submitting comments. the time specified in the service information on the Internet at http://www.regulations.gov • Fax: 202–493–2251. identified in paragraphs (g)(1), (g)(2), and by searching for and locating Docket No. • Mail: U.S. Department of (g)(3) of this AD, or within 3 months after the FAA–2017–0514. effective date of this AD, whichever occurs Transportation, Docket Operations, (2) For more information about this AD, M–30, West Building Ground Floor, later. contact Dan Rodina, Aerospace Engineer, (1) Airbus A300–600 Airworthiness International Branch, ANM–116, Transport Room W12–140, 1200 New Jersey Limitations Section (ALS), Part 2, ‘‘Damage Airplane Directorate, FAA, 1601 Lind Avenue SE., Washington, DC 20590. Tolerant Airworthiness Limitation Items Avenue SW., Renton, WA 98057–3356; • Hand Delivery: Deliver to Mail (DT–ALI),’’ Revision 01, dated August 7, telephone 425–227–2125; fax 425–227–1149. address above between 9 a.m. and 5 2015. Information may be emailed to: 9-ANM-116- p.m., Monday through Friday, except (2) Airbus A300–600 Airworthiness [email protected]. Federal holidays. Limitations Section (ALS), Part 2, ‘‘Damage (3) For service information identified in For service information identified in Tolerant Airworthiness Limitation Items this AD, contact Airbus SAS, Airworthiness this NPRM, contact Bombardier, Inc., (DT–ALI),’’ Variation 1.1, dated January 25, Office—EAW, 1 Rond Point Maurice Q-Series Technical Help Desk, 123 2016. Bellonte, 31707 Blagnac Cedex, France; (3) Airbus A300–600 Airworthiness telephone +33 5 61 93 36 96; fax +33 5 61 Garratt Boulevard, Toronto, Ontario Limitations Section (ALS), Part 2, ‘‘Damage 93 44 51; email account.airworth-eas@ M3K 1Y5, Canada; telephone 416–375– Tolerant Airworthiness Limitation Items airbus.com; Internet http://www.airbus.com. 4000; fax 416–375–4539; email (DT–ALI),’’ Variation 1.2, dated July 22, You may view this service information at the [email protected]; 2016. FAA, Transport Airplane Directorate, 1601 Internet http://www.bombardier.com.

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You may view this referenced service www.regulations.gov, including any This [Canadian] AD mandates the information at the FAA, Transport personal information you provide. We incorporation of [Bombardier Service Airplane Directorate, 1601 Lind Avenue will also post a report summarizing each Bulletin] SB 84–26–16 to prevent the SW., Renton, WA. For information on substantive verbal contact we receive inadvertent discharge of fire extinguishing the availability of this material at the about this proposed AD. bottles; [leaving the flight crew with less firefighting capability in the event of a real FAA, call 425–227–1221. Discussion fire]. Examining the AD Docket Transport Canada Civil Aviation You may examine the MCAI in the You may examine the AD docket on (TCCA), which is the aviation authority AD docket on the Internet at http:// the Internet at http:// for Canada, has issued Canadian www.regulations.gov by searching for www.regulations.gov by searching for Airworthiness Directive CF–2016–25, and locating Docket No. FAA–2017– and locating Docket No. FAA–2017– dated September 5, 2016 (referred to 0518. 0518; or in person at the Docket after this as the Mandatory Continuing Management Facility between 9 a.m. Airworthiness Information, or ‘‘the Related Service Information Under 1 and 5 p.m., Monday through Friday, MCAI’’), to correct an unsafe condition CFR Part 51 except Federal holidays. The AD docket for certain Bombardier, Inc. Model We reviewed Bombardier Service contains this proposed AD, the DHC–8–400 series airplanes. The MCAI Bulletin 84–26–16, Revision A, dated regulatory evaluation, any comments states: February 12, 2016. This service received, and other information. The An operator reported having a false information describes procedures for street address for the Docket Operations SMOKE warning light for the Aft Baggage locating and replacing certain 7.5-amp office (telephone 800–647–5527) is in compartment, which caused the pilots to circuit breakers with 1-amp circuit the ADDRESSES section. Comments will discharge the Aft Baggage compartment fire extinguishing bottles per Aircraft Flight breakers. This service information is be available in the AD docket shortly reasonably available because the after receipt. Manual procedures. Subsequently, there were continuous engine and Auxiliary Power interested parties have access to it FOR FURTHER INFORMATION CONTACT: Unit (APU) fire warning lights, and the fire through their normal course of business Assata Dessaline, Aerospace Engineer, extinguishing bottles for both engines or by the means identified in the Avionics and Services Branch, ANE– (forward and aft) and the APU were ADDRESSES section. 172, FAA, New York Aircraft automatically discharged. Post event Certification Office (ACO), 1600 Stewart investigation of the Fire Control Amplifier FAA’s Determination and Requirements Avenue, Suite 410, Westbury, NY (FCA) revealed a burnt 2600–P2 connector. of This Proposed AD 11590; telephone 516–228–7301; fax The FCA was also found to have sustained significant thermal damage. In a separate This product has been approved by 516–794–5531. event involving a different operator, several the aviation authority of another SUPPLEMENTARY INFORMATION: fire extinguishing bottles discharged after an country, and is approved for operation electrical short was introduced into the FCA Comments Invited in the United States. Pursuant to our by a shorted squib tester (external ground bilateral agreement with the State of We invite you to send any written support equipment) during maintenance. Design Authority, we have been notified relevant data, views, or arguments about The FCA manufacturer has identified the of the unsafe condition described in the this proposed AD. Send your comments most likely failure condition to be an MCAI and service information to an address listed under the electrical short at the discharged squib. The squib’s burst disk may have caused a short referenced above. We are proposing this ADDRESSES section. Include ‘‘Docket No. circuit of the bridgewires, which caused the AD because we evaluated all pertinent FAA–2017–0518; Directorate Identifier FCA’s internal power wires to experience information and determined an unsafe 2016–NM–167–AD’’ at the beginning of thermal damage, consequently powering condition exists and is likely to exist or your comments. We specifically invite other squibs and fire alarm lines and develop on other products of the same comments on the overall regulatory, resulting in the uncommanded discharge of type design. economic, environmental, and energy the fire extinguishing bottles and false fire aspects of this proposed AD. We will indications. Costs of Compliance Bombardier (BA) has issued service consider all comments received by the bulletin (SB) 84–26–16 to change two 7.5 closing date and may amend this We estimate that this proposed AD amp circuit breakers to lower current rating affects 53 airplanes of U.S. registry. proposed AD based on those comments. 1 amp circuit breakers to prevent damage to We will post all comments we squib discharge circuits and the inadvertent We estimate the following costs to receive, without change, to http:// discharge of fire extinguishing bottles. comply with this proposed AD:

ESTIMATED COSTS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Replacement of Circuit Breakers ...... 3 work-hours × $85 per hour = $255 ...... $0 $255 $13,515

Authority for This Rulemaking detail the scope of the Agency’s for practices, methods, and procedures authority. the Administrator finds necessary for Title 49 of the United States Code We are issuing this rulemaking under safety in air commerce. This regulation specifies the FAA’s authority to issue the authority described in ‘‘Subtitle VII, is within the scope of that authority rules on aviation safety. Subtitle I, Part A, Subpart III, Section 44701: because it addresses an unsafe condition section 106, describes the authority of General requirements.’’ Under that that is likely to exist or develop on the FAA Administrator. ‘‘Subtitle VII: section, Congress charges the FAA with products identified in this rulemaking Aviation Programs,’’ describes in more promoting safe flight of civil aircraft in action. air commerce by prescribing regulations

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Regulatory Findings (e) Reason on the Internet at http://www.regulations.gov by searching for and locating Docket No. We determined that this proposed AD This AD was prompted by the failure of the fire control amplifier (FCA), which was likely FAA–2017–0518. would not have federalism implications caused by an electrical short in a discharged (2) For more information about this AD, under Executive Order 13132. This squib for a fire extinguishing bottle. We are contact Assata Dessaline, Aerospace proposed AD would not have a issuing this AD to prevent failure of the FCA Engineer, Avionics and Services Branch, substantial direct effect on the States, on and subsequent discharge of fire ANE–172, FAA, New York ACO, 1600 the relationship between the national extinguishing bottles and false fire Stewart Avenue, Suite 410, Westbury, NY Government and the States, or on the indications, leaving the flightcrew with less 11590; telephone 516–228–7301; fax 516– 794–5531. distribution of power and firefighting capability in the event of a real fire. (3) For service information identified in responsibilities among the various this AD, contact Bombardier, Inc., Q-Series levels of government. (f) Compliance Technical Help Desk, 123 Garratt Boulevard, For the reasons discussed above, I Comply with this AD within the Toronto, Ontario M3K 1Y5, Canada; certify this proposed regulation: compliance times specified, unless already telephone 416–375–4000; fax 416–375–4539; 1. Is not a ‘‘significant regulatory done. email [email protected]; Internet http://www.bombardier.com. You action’’ under Executive Order 12866; (g) Replacement of Affected Circuit Breakers may view this service information at the 2. Is not a ‘‘significant rule’’ under the Within 6,000 flight hours or 3 years, FAA, Transport Airplane Directorate, 1601 DOT Regulatory Policies and Procedures whichever occurs first, after the effective date Lind Avenue SW., Renton, WA. For (44 FR 11034, February 26, 1979); of this AD: Replace the 7.5-amp circuit information on the availability of this 3. Will not affect intrastate aviation in breakers specified in Bombardier Service material at the FAA, call 425–227–1221. Alaska; and Bulletin 84–26–16, Revision A, dated Issued in Renton, Washington, on May 19, February 12, 2016, with 1-amp circuit 2017. 4. Will not have a significant breakers, part number MS3320–1, in economic impact, positive or negative, accordance with the Accomplishment Victor Wicklund, on a substantial number of small entities Instructions of Bombardier Service Bulletin Acting Manager, Transport Airplane under the criteria of the Regulatory 84–26–16, Revision A, dated February 12, Directorate, Aircraft Certification Service. Flexibility Act. 2016. [FR Doc. 2017–10981 Filed 6–1–17; 8:45 am] List of Subjects in 14 CFR Part 39 (h) Credit for Previous Actions BILLING CODE 4910–13–P This paragraph provides credit for actions Air transportation, Aircraft, Aviation required by paragraph (g) of this AD, if those DEPARTMENT OF TRANSPORTATION safety, Incorporation by reference, actions were performed before the effective Safety. date of this AD using Bombardier Service Federal Aviation Administration The Proposed Amendment Bulletin 84–26–16, dated August 14, 2015. (i) Other FAA AD Provisions Accordingly, under the authority 14 CFR Part 39 delegated to me by the Administrator, The following provisions also apply to this [Docket No. FAA–2017–0521; Directorate the FAA proposes to amend 14 CFR part AD: Identifier 2016–NM–189–AD] (1) Alternative Methods of Compliance 39 as follows: (AMOCs): The Manager, New York Aircraft RIN 2120–AA64 Certification Office (ACO), ANE–170, FAA, PART 39—AIRWORTHINESS has the authority to approve AMOCs for this Airworthiness Directives; Bombardier, DIRECTIVES AD, if requested using the procedures found Inc., Airplanes in 14 CFR 39.19. In accordance with 14 CFR ■ 1. The authority citation for part 39 39.19, send your request to your principal AGENCY: Federal Aviation continues to read as follows: inspector or local Flight Standards District Administration (FAA), DOT. Authority: 49 U.S.C. 106(g), 40113, 44701. Office, as appropriate. If sending information ACTION: Notice of proposed rulemaking directly to the ACO send it to ATTN: (NPRM). § 39.13 [Amended] Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart ■ SUMMARY: We propose to adopt a new 2. The FAA amends § 39.13 by adding Avenue, Suite 410, Westbury, NY 11590; the following new airworthiness airworthiness directive (AD) for certain telephone 516–228–7300; fax 516–794–5531. Bombardier, Inc., Model CL–600–2B16 directive (AD): Before using any approved AMOC, notify (CL–601–3A, CL–601–3R, and CL–604 Bombardier, Inc.: Docket No. FAA–2017– your appropriate principal inspector, or lacking a principal inspector, the manager of Variants) airplanes. This proposed AD 0518; Directorate Identifier 2016–NM– was prompted by reports of fuel leaks in 167–AD. the local flight standards district office/ certificate holding district office. the engine and auxiliary power unit (a) Comments Due Date (2) Contacting the Manufacturer: For any (APU) electrical fuel pump (EFP) We must receive comments by July 17, requirement in this AD to obtain corrective cartridge/canister electrical connectors 2017. actions from a manufacturer, the action must and conduits. This proposed AD would be accomplished using a method approved (b) Affected ADs require repetitive inspections for fuel by the Manager, New York ACO, ANE–170, leakage at the engine and APU fuel None. FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.’s TCCA Design pumps, and related investigative and (c) Applicability Approval Organization (DAO). If approved by corrective actions if necessary. We are This AD applies to Bombardier, Inc., the DAO, the approval must include the proposing this AD to address the unsafe Model DHC–8–400, –401, and –402 DAO-authorized signature. condition on these products. airplanes, certificated in any category, serial (j) Related Information DATES: We must receive comments on numbers 4001, and 4003 through 4504 this proposed AD by July 17, 2017. inclusive. (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian ADDRESSES: You may send comments, (d) Subject Airworthiness Directive CF–2016–25, dated using the procedures found in 14 CFR Air Transport Association (ATA) of September 5, 2016, for related information. 11.43 and 11.45, by any of the following America Code 26, Fire Protection. This MCAI may be found in the AD docket methods:

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• Federal eRulemaking Portal: Go to your comments. We specifically invite rectification [related investigative and http://www.regulations.gov. Follow the comments on the overall regulatory, corrective actions] of subject fuel leaks on instructions for submitting comments. economic, environmental, and energy affected aeroplanes. [Canadian] AD CF– • Fax: 202–493–2251. aspects of this proposed AD. We will 2016–32 was issued on 29 September 2016 to • mandate compliance with applicable Mail: U.S. Department of consider all comments received by the Bombardier SBs, to mitigate any potential Transportation, Docket Operations, M– closing date and may amend this safety hazard resulting from fuel leaks. 30, West Building Ground Floor, Room proposed AD based on those comments. Revision 1 of this [Canadian] AD is being W12–140, 1200 New Jersey Avenue SE., We will post all comments we issued to correct a typographic error in Washington, DC 20590. receive, without change, to http:// paragraph B.1. of the [Canadian AD] • Hand Delivery: Deliver to Mail www.regulations.gov, including any Corrective Actions. address above between 9 a.m. and 5 personal information you provide. We Related investigative actions involve, p.m., Monday through Friday, except will also post a report summarizing each for certain airplanes, further inspections Federal holidays. substantive verbal contact we receive for fuel leakage. Corrective actions For service information identified in about this proposed AD. involve repair, and for certain other this NPRM, contact Bombardier, Inc., Discussion airplanes, those actions could include 400 Coˆte-Vertu Road West, Dorval, replacing O-rings, and replacing the fuel Transport Canada Civil Aviation Que´bec H4S 1Y9, Canada; Widebody cartridge. You may examine the MCAI (TCCA), which is the aviation authority Customer Response Center North in the AD docket on the Internet at for Canada, has issued Canadian America toll-free telephone 1–866–538– http://www.regulations.gov by searching Airworthiness Directive CF–2016–32R1, 1247 or direct-dial telephone 1–514– for and locating Docket No. FAA–2017– dated October 12, 2016 (referred to after 855–2999; fax 514–855–7401; email 0521. [email protected]; Internet this as the Mandatory Continuing http://www.bombardier.com. You may Airworthiness Information, or ‘‘the Related Service Information Under 1 view this referenced service information MCAI’’), to correct an unsafe condition CFR Part 51 at the FAA, Transport Airplane for certain Bombardier, Inc., Model CL– Bombardier, Inc., has issued the Directorate, 1601 Lind Avenue SW., 600–2B16 (CL–601–3A, CL–601–3R, and following service bulletins: Renton, WA. For information on the CL–604 variants) airplanes. The MCAI • Bombardier Service Bulletin 604– availability of this material at the FAA, states: 28–022, dated October 19, 2015; and call 425 227–1221. Fuel leaks have been reported in the engine • Bombardier Service Bulletin 605– Examining the AD Docket and auxiliary power unit (APU) electrical 28–010, dated October 19, 2015. fuel pump (EFP) cartridge/canister electrical The service information describes You may examine the AD docket on connectors and conduits on production procedures for repetitive general visual the Internet at http:// aeroplanes. Initially, Bombardier had inspections, and related investigative www.regulations.gov by searching for determined that the subject discrepancy was and corrective actions if necessary. and locating Docket No. FAA–2017– limited to the new pump canister These documents are distinct since they 0521; or in person at the Docket installations on 24 production aeroplanes. Bombardier also reported the possibility of apply to airplanes in different Management Facility between 9 a.m. cut insulation on the electric harness wires configurations. This service information and 5 p.m., Monday through Friday, of the newly installed canister housing is reasonably available because the except Federal holidays. The AD docket assemblies. interested parties have access to it contains this proposed AD, the Emergency [Canadian] AD CF–2014–17 through their normal course of business regulatory evaluation, any comments [which corresponds to FAA AD 2014–15–17, or by the means identified in the received, and other information. The Amendment 39–17919 (79 FR 44268, July 31, ADDRESSES section. street address for the Docket Operations 2014)] was issued to limit landing light office (telephone 800–647–5527) is in operation on-ground in order to address a FAA’s Determination and Requirements potential fire hazard as result of possible fuel the ADDRESSES section. Comments will of This Proposed AD leak from APU, EFP electrical conduit in the be available in the AD docket shortly landing light compartment. In addition, This product has been approved by after receipt. [Canadian] AD CF–2014–21 [which the aviation authority of another FOR FURTHER INFORMATION CONTACT: corresponds to FAA AD 2014–20–01, country, and is approved for operation Steven Dzierzynski, Aerospace Amendment 39–17974 (79 FR 59640, October in the United States. Pursuant to our Engineer, Avionics and Services Branch, 3, 2014), superseded by FAA AD 2016–10– bilateral agreement with the State of 10, Amendment 39–18521 (81 FR 31497, May ANE–172, FAA, New York Aircraft Design Authority, we have been notified Certification Office, 1600 Stewart 19, 2016)(‘‘AD 2016–10–10’’)] was issued to mandate removal of then identified 24 of the unsafe condition described in the Avenue, Suite 410, Westbury, NY discrepant EFP canister assemblies from MCAI and service information 11590; telephone 516–228–7367; fax service. referenced above. We are proposing this 516–794–5531. Bombardier has recently determined that AD because we evaluated all pertinent SUPPLEMENTARY INFORMATION: the subject fuel leaks may not be limited to information and determined an unsafe the 24 units affected by [Canadian] AD CF– condition exists and is likely to exist or Comments Invited 2014–21 [(AD 2016–10–10)], but may develop on other products of the same We invite you to send any written potentially affect other in-service type design. relevant data, views, or arguments about [Bombardier Model] CL–600–2B16 aeroplanes. Until such time that a final fix for Costs of Compliance this proposed AD. Send your comments the fuel leak problem is realized, Bombardier to an address listed under the as an interim mitigating action, has issued We estimate that this proposed AD ADDRESSES section. Include ‘‘Docket No. [Service Bulletins] SB 604–28–022 and SB affects 121 airplanes of U.S. registry. FAA–2017–0521; Directorate Identifier 605–28–010 that introduces [a] repeat We estimate the following costs to 2016–NM–189–AD’’ at the beginning of [general visual] inspection and if required, comply with this proposed AD:

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ESTIMATED COSTS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

General Visual Inspection ...... 1 work-hour × $85 per hour = $85 ...... $0 $85 $10,285

For Model CL–600–2B16 airplanes, and 5981, we estimate the following have no way of determining the number having serial numbers 5701 through costs to do any necessary replacements of aircraft that might need these 5955 inclusive, 5957, 5960 through 5966 that would be required based on the replacements: inclusive, 5968 through 5971 inclusive, results of the proposed inspection. We

ON-CONDITION COSTS

Cost per Action Labor cost Parts cost product

Replace O-Ring in Affected Pump ...... 3 work-hours × $85 per hour = $255 ...... $17 $272 Replace Cartridge in Affected Pump ...... 2 work-hours × $85 per hour = $170 ...... 8,618 8,788

For Model CL–600–2B16 airplanes the relationship between the national (b) Affected ADs having serial numbers 5301 through Government and the States, or on the None. 5665 inclusive, we have received no distribution of power and (c) Applicability definitive data that would enable us to responsibilities among the various provide cost estimates for the on- levels of government. This AD applies to Bombardier, Inc., For the reasons discussed above, I Model CL–600–2B16 (CL–601–3A, CL–601– condition actions specified in this 3R, and CL–604 variants) airplanes, proposed AD. certify this proposed regulation: certificated in any category, having serial According to the manufacturer, some 1. Is not a ‘‘significant regulatory numbers 5301 through 5665 inclusive, 5701 of the costs of this proposed AD may be action’’ under Executive Order 12866; through 5955 inclusive, 5957, 5960 Through covered under warranty, thereby 2. Is not a ‘‘significant rule’’ under the 5966 inclusive, 5968 through 5971 inclusive, reducing the cost impact on affected DOT Regulatory Policies and Procedures and 5981. (44 FR 11034, February 26, 1979); individuals. We do not control warranty (d) Subject coverage for affected individuals. As a 3. Will not affect intrastate aviation in Alaska; and Air Transport Association (ATA) of result, we have included all costs in our 4. Will not have a significant America Code 28, Fuel. cost estimate. economic impact, positive or negative, (e) Reason Authority for This Rulemaking on a substantial number of small entities This proposed AD was prompted by under the criteria of the Regulatory Title 49 of the United States Code reports of fuel leaks in the engine and Flexibility Act. specifies the FAA’s authority to issue auxiliary power unit (APU) electrical fuel rules on aviation safety. Subtitle I, List of Subjects in 14 CFR Part 39 pump (EFP) cartridge/canister electrical connectors and conduits. We are issuing this section 106, describes the authority of Air transportation, Aircraft, Aviation AD to detect and correct fuel leaks in certain the FAA Administrator. ‘‘Subtitle VII: safety, Incorporation by reference, fuel pumps to remove a potential fuel Aviation Programs,’’ describes in more Safety. ignition hazard. detail the scope of the Agency’s (f) Compliance authority. The Proposed Amendment We are issuing this rulemaking under Accordingly, under the authority Comply with this AD within the compliance times specified, unless already the authority described in ‘‘Subtitle VII, delegated to me by the Administrator, done. Part A, Subpart III, Section 44701: the FAA proposes to amend 14 CFR part General requirements.’’ Under that 39 as follows: (g) General Visual Inspection and Corrective section, Congress charges the FAA with Action—Model CL–600–2B16 Airplanes, promoting safe flight of civil aircraft in PART 39—AIRWORTHINESS Serial Numbers 5301 Through 5665 Inclusive air commerce by prescribing regulations DIRECTIVES for practices, methods, and procedures For Model CL–600–2B16 airplanes, having ■ 1. The authority citation for part 39 the Administrator finds necessary for serial numbers 5301 through 5665 inclusive: continues to read as follows: Within 600 flight hours or 12 months, safety in air commerce. This regulation Authority: 49 U.S.C. 106(g), 40113, 44701. whichever occurs first, after the effective date is within the scope of that authority of this AD, do general visual inspections of because it addresses an unsafe condition § 39.13 [Amended] the locations specified in paragraphs (g)(1), that is likely to exist or develop on ■ 2. The FAA amends § 39.13 by adding (g)(2), and (g)(3) of this AD, and do all products identified in this rulemaking applicable corrective actions, in accordance the following new airworthiness action. with the Accomplishment Instructions of directive (AD): Bombardier Service Bulletin 604–28–022, Regulatory Findings Bombardier, Inc.: Docket No. FAA–2017– dated October 19, 2015; except where the We determined that this proposed AD 0521; Directorate Identifier 2016–NM– Bombardier Service Bulletin 604–28–022, 189–AD. dated October 19, 2015 specifies to contact would not have federalism implications the manufacturer, before further flight under Executive Order 13132. This (a) Comments Due Date accomplish corrective action in accordance proposed AD would not have a We must receive comments by July 17, with the procedures specified in paragraph substantial direct effect on the States, on 2017. (i)(2) of this AD. Do all applicable corrective

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actions before further flight. Repeat the telephone: 516–228–7300; fax: 516–794– SUMMARY: This action proposes to general visual inspections at intervals not 5531. Before using any approved AMOC, modify VHF Omnidirectional Range exceeding 600 flight hours or 12 months, notify your appropriate principal inspector, (VOR) Federal airways V–66, V–189, V– whichever occurs first. or lacking a principal inspector, the manager 260, and V–266 in the Vicinity of (1) Do a general visual inspection for traces of the local flight standards district office/ of fuel coming from the right-hand side certificate holding district office. Franklin, VA. The modifications are engine boost pump at the location of the (2) Contacting the Manufacturer: For any required due to the planned belly fairing screw (FS412, BL 0.0). requirement in this AD to obtain corrective decommissioning of the Franklin, VA, (2) Do a general visual inspection for traces actions from a manufacturer, the action must VORTAC navigation aid which provides of fuel coming from the left-hand side engine be accomplished using a method approved navigation guidance for portions of the boost pump at the location of the belly fairing by the Manager, New York ACO, ANE–170, above routes. FAA; or Transport Canada Civil Aviation screw (FS412, BL 0.0). DATES: Comments must be received on (TCCA); or Bombardier, Inc.’s TCCA Design (3) Do a general visual inspection for traces or before July 17, 2017. of fuel coming from the EFP electrical wiring Approval Organization (DAO). If approved by conduit outlet at the lower body fairing area the DAO, the approval must include the ADDRESSES: Send comments on this for engine EFPs and at the right-hand landing DAO-authorized signature. proposal to the U.S. Department of light compartment for the APU EFP. (j) Related Information Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building (h) General Visual Inspection and Corrective (1) Refer to Mandatory Continuing Ground Floor, Room W12–140, Action—Model CL–600–2B16 Airplanes, Airworthiness Information (MCAI) Canadian Having Serial Numbers 5701 Through 5955 Airworthiness Directive CF–2016–32R1, Washington, DC 20590; telephone: 1 Inclusive, 5957, 5960 Through 5966 dated October 12, 2016, for related (800) 647–5527 or (202) 366–9826. You Inclusive, 5968 Through 5971 Inclusive, and information. This MCAI may be found in the must identify FAA Docket No. FAA– 5981 AD docket on the Internet at http:// 2017–0438 and Airspace Docket No. 17– For Model CL–600–2B16 airplanes, having www.regulations.gov by searching for and AEA–6 at the beginning of your serial numbers 5701 through 5955 inclusive, locating Docket No. FAA–2017–0521. comments. You may also submit 5957, 5960 through 5966 inclusive, 5968 (2) For more information about this AD, comments through the Internet at http:// through 5971 inclusive, and 5981: Within contact Steven Dzierzynski, Aerospace www.regulations.gov. You may review Engineer, Avionics and Services Branch, 600 flight hours or 12 months, whichever the public docket containing the occurs first, after the effective date of this ANE–172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart proposal, any comments received, and AD, do general visual inspections of the any final disposition in person in the locations specified in paragraphs (h)(1), Avenue, Suite 410, Westbury, NY 11590; (h)(2), and (h)(3) of this AD, and do all telephone 516–228–7367; fax 516–794–5531; Dockets Office between 9:00 a.m. and applicable related investigative and email: [email protected]. 5:00 p.m., Monday through Friday, corrective actions, in accordance with the (3) For service information identified in except federal holidays. The Docket ˆ Accomplishment Instructions in Bombardier this AD, contact Bombardier, Inc., 400 Cote- Office (telephone 1 (800) 647–5527), is ´ Service Bulletin 605–28–010, dated October Vertu Road West, Dorval, Quebec H4S 1Y9, on the ground floor of the building at Canada; Widebody Customer Response 19, 2015; except where Bombardier Service the above address. Bulletin 605–28–010, dated October 19, 2015 Center North America toll-free telephone 1– 866–538–1247 or direct-dial telephone 1– FAA Order 7400.11A, Airspace specifies to contact the manufacturer, before Designations and Reporting Points, and further flight accomplish corrective actions 514–855–2999; fax 514–855–7401; email [email protected]; Internet http:// subsequent amendments can be viewed in accordance with the procedures specified _ in paragraph (i)(2) of this AD. Do all www.bombardier.com. You may view this online at http://www.faa.gov/air traffic/ applicable related investigative and service information at the FAA, Transport publications/. For further information, corrective actions before further flight. Airplane Directorate, 1601 Lind Avenue SW., you can contact the Airspace Policy Repeat the general visual inspections at Renton, WA. For information on the Group, Federal Aviation intervals not exceeding 600 flight hours or 12 availability of this material at the FAA, call Administration, 800 Independence months, whichever occurs first. 425–227–1221. Avenue SW., Washington, DC 20591; (1) Do a general visual inspection for traces Issued in Renton, Washington, on May 19, telephone: (202) 267–8783. The Order is of fuel coming from the right-hand side 2017. also available for inspection at the engine boost pump at the location of the Victor Wicklund, National Archives and Records belly fairing screw (FS412, BL 0.0). Acting Manager, Transport Airplane (2) Do a general visual inspection for traces Administration (NARA). For Directorate, Aircraft Certification Service. of fuel coming from the left-hand side engine information on the availability of FAA boost pump at the location of the belly fairing [FR Doc. 2017–11002 Filed 6–1–17; 8:45 am] Order 7400.11A at NARA, call (202) screw (FS412, BL 0.0). BILLING CODE 4910–13–P 741–6030, or go to http:// (3) Do a general visual inspection of the www.archives.gov/federal_register/ right-hand side landing light compartment code_of_federal-regulations/ibr_ for traces of fuel coming from the APU EFP. DEPARTMENT OF TRANSPORTATION locations.html. (i) Other FAA AD Provisions FAA Order 7400.11, Airspace Federal Aviation Administration Designations and Reporting Points, is The following provisions also apply to this published yearly and effective on AD: 14 CFR Part 71 (1) Alternative Methods of Compliance September 15. (AMOCs): The Manager, New York ACO, [Docket No. FAA–2017–0438; Airspace FOR FURTHER INFORMATION CONTACT: Paul ANE–170, FAA, has the authority to approve Docket No. 17–AEA–6] Gallant, Airspace Policy Group, Office AMOCs for this AD, if requested using the of Airspace Services, Federal Aviation procedures found in 14 CFR 39.19. In Proposed Amendment VOR Federal Administration, 800 Independence accordance with 14 CFR 39.19, send your Airways V–66, V–189, V–260, and V– Avenue SW., Washington, DC 20591; request to your principal inspector or local 266; in the Vicinity of Franklin, VA telephone: (202) 267–8783. Flight Standards District Office, as appropriate. If sending information directly AGENCY: Federal Aviation SUPPLEMENTARY INFORMATION: to the manager of the ACO, send it to ATTN: Administration (FAA), DOT. Authority for This Rulemaking Program Manager, Continuing Operational ACTION: Notice of proposed rulemaking The FAA’s authority to issue rules Safety, FAA, New York ACO, 1600 Stewart (NPRM). Avenue, Suite 410, Westbury, NY 11590; regarding aviation safety is found in

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Title 49 of the United States Code. the FAA’s Web page at http:// amended route would, therefore, extend Subtitle I, Section 106 describes the www.faa.gov/air_traffic/publications/ between the Electric City, SC, VORTAC authority of the FAA Administrator. airspace_amendments/. and the South Boston, VA, VORTAC; Subtitle VII, Aviation Programs, You may review the public docket and between the Elizabeth City, NC, describes in more detail the scope of the containing the proposal, any comments VORTAC and the Wright Brothers, NC, agency’s authority. This rulemaking is received and any final disposition in VOR/DME. Consequently, there would promulgated under the authority person in the Dockets Office (see be a gap in the route between the South described in Subtitle VII, Part A, ADDRESSES section for address and Boston, VA, VORTAC and the Elizabeth Subpart I, Section 40103. Under that phone number) between 9:00 a.m. and City, NC, VORTAC. section, the FAA is charged with 5:00 p.m., Monday through Friday, Domestic VOR Federal airways are prescribing regulations to assign the use except Federal holidays. An informal published in paragraph 6010(a) of FAA of the airspace necessary to ensure the docket may also be examined during Order 7400.11A, dated August 3, 2016 safety of aircraft and the efficient use of normal business hours at the office of and effective September 15, 2016, which airspace. This regulation is within the the Eastern Service Center, Federal is incorporated by reference in 14 CFR scope of that authority as it would Aviation Administration, Room 210, 71.1. The VOR Federal airways listed in modify the VOR Federal airway route 1701 Columbia Ave., College Park, GA, this document would be subsequently structure in the eastern United States to 30337. published in the Order. maintain the efficient flow of air traffic. Availability and Summary of Regulatory Notices and Analyses Comments Invited Documents for Incorporation by Interested parties are invited to Reference The FAA has determined that this proposed regulation only involves an participate in this proposed rulemaking This document proposes to amend established body of technical by submitting such written data, views, FAA Order 7400.11A, Airspace regulations for which frequent and or arguments as they may desire. Designations and Reporting Points, routine amendments are necessary to Comments that provide the factual basis dated August 3, 2016 and effective keep them operationally current. It, supporting the views and suggestions September 15, 2016. FAA Order therefore: (1) Is not a ‘‘significant presented are particularly helpful in 7400.11A is publicly available as listed regulatory action’’ under Executive developing reasoned regulatory in the ADDRESSES section of this Order 12866; (2) is not a ‘‘significant decisions on the proposal. Comments proposed rule. FAA Order 7400.11A rule’’ under Department of are specifically invited on the overall lists Class A, B, C, D, and E airspace Transportation (DOT) Regulatory regulatory, aeronautical, economic, areas, air traffic service routes, and Policies and Procedures (44 FR 11034; environmental, and energy-related reporting points. aspects of the proposal. February 26, 1979); and (3) does not Communications should identify both The Proposal warrant preparation of a regulatory docket numbers (FAA Docket No. FAA– The FAA is proposing an amendment evaluation as the anticipated impact is 2017–0438 and Airspace Docket No. 17– to Title 14, Code of Federal Regulations so minimal. Since this is a routine AEA–6) and be submitted in triplicate to (14 CFR) part 71 to modify the matter that will only affect air traffic the Docket Management Facility (see descriptions of VOR Federal airways V– procedures and air navigation, it is ADDRESSES section for address and 66, V–189, V–260, and V–266 due to the certified that this proposed rule, when phone number). You may also submit planned decommissioning of the promulgated, will not have a significant comments through the Internet at http:// Franklin, VA, VORTAC. The proposed economic impact on a substantial www.regulations.gov. route changes are described below. number of small entities under the Commenters wishing the FAA to V–66: V–66 currently extends criteria of the Regulatory Flexibility Act. acknowledge receipt of their comments between the Mission Bay, CA, VORTAC Environmental Review on this action must submit with those and the Franklin, VA, VORTAC. The comments a self-addressed, stamped amended route would be terminated on This proposal will be subject to an postcard on which the following the east end at the Raleigh-Durham, NC, environmental analysis in accordance statement is made: ‘‘Comments to FAA VORTAC instead of Franklin, VA. with FAA Order 1050.1F, Docket No. FAA–2017–0438 and V–189: V–189 currently extends ‘‘Environmental Impacts: Policies and Airspace Docket No. 17–AEA–6.’’ The between the Wright Brothers, NC, VOR/ Procedures’’ prior to any FAA final postcard will be date/time stamped and DME and the Hopewell, VA, VORTAC. regulatory action. returned to the commenter. The amended route would be List of Subjects in 14 CFR Part 71 All communications received on or terminated at the Tar River, NC, before the specified comment closing VORTAC eliminating the segments to Airspace, Incorporation by reference, date will be considered before taking Franklin, VA and Hopewell, VA. Navigation (air). action on the proposed rule. The V–260: V–260 currently extends The Proposed Amendment proposal contained in this action may between the Charleston, WV, VORTAC be changed in light of comments and the Cofield, NC, VORTAC. The In consideration of the foregoing, the received. A report summarizing each amended route would be terminated at Federal Aviation Administration substantive public contact with FAA the Hopewell, VA, VORTAC, proposes to amend 14 CFR part 71 as personnel concerned with this eliminating the segments to Franklin, follows: rulemaking will be filed in the docket. VA and Cofield, NC. V–266: V–266 currently extends PART 71—DESIGNATION OF CLASS A, Availability of NPRMs between the Electric City, SC, VORTAC B, C, D, AND E AIRSPACE AREAS; AIR An electronic copy of this document and the Wright Brothers, NC, VOR/ TRAFFIC SERVICE ROUTES; AND may be downloaded through the DME. The proposed amendment would REPORTING POINTS Internet at http://www.regulations.gov. remove the route segment between the Recently published rulemaking South Boston, VA, VORTAC and the ■ 1. The authority citation for part 71 documents can also be accessed through Elizabeth City, NC, VORTAC. The continues to read as follows:

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Authority: 49 U.S.C. 106(f), 106(g); 40103, ACTION: Notice of proposed rulemaking Renton, WA 98057; telephone (425) 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, (NPRM). 203–4511. 1959–1963 Comp., p. 389. SUPPLEMENTARY INFORMATION: SUMMARY § 71.1 [Amended] : This action proposes to modify Class D airspace, Class E surface Authority for This Rulemaking ■ 2. The incorporation by reference in area airspace, Class E airspace extending The FAA’s authority to issue rules 14 CFR 71.1 of FAA Order 7400.11A, upward from 700 feet above the surface, regarding aviation safety is found in Airspace Designations and Reporting and Class E airspace extending upward Title 49 of the United States Code. Points, dated August 3, 2016 and from 1,200 feet above the surface at Subtitle I, Section 106 describes the effective September 15, 2016, is Cheyenne Regional/Jerry Olson Field authority of the FAA Administrator. amended as follows: Airport (formerly, Cheyenne Airport), Subtitle VII, Aviation Programs, Paragraph 6010(a) Domestic VOR Federal Cheyenne, WY. Airspace redesign is describes in more detail the scope of the Airways. necessary due to the decommissioning agency’s authority. This rulemaking is * * * * * of the Cheyenne instrument landing promulgated under the authority system (ILS) locator outer marker and described in Subtitle VII, Part A, V–66 [Amended] removal of the Cheyenne VHF Subpart I, Section 40103. Under that From Mission Bay, CA; Imperial, CA; 13 Omnidirectional Range/Tactical Air section, the FAA is charged with miles, 24 miles, 25 MSL; Bard, AZ; 12 miles, Navigation (VORTAC) from the airspace prescribing regulations to assign the use 35 MSL; INT Bard 089° and Gila Bend, AZ, ° description as the FAA transitions from of airspace necessary to ensure the 261 radials; 46 miles, 35 MSL; Gila Bend; safety of aircraft and the efficient use of Tucson, AZ, 7 miles wide (3 miles south and ground-based navigation aids to 4 miles north of centerline); Douglas, AZ; satellite-based navigation. Also, this airspace. This regulation is within the INT Douglas 064° and Columbus, NM, 277° action would update the airport name scope of that authority as it would radials; Columbus; El Paso, TX; 6 miles wide; and geographic coordinates for Class D amend Class D and Class E airspace at INT El Paso 109° and Hudspeth, TX, 287° and E airspace areas to reflect the FAA’s Cheyenne Regional/Jerry Olson Field radials; 6 miles wide; Hudspeth; Pecos, TX; current aeronautical database. Airport, Cheyenne, WY to support Midland, TX; INT Midland 083° and Abilene, instrument flight rules operations at the DATES: Comments must be received on TX, 252° radials; Abilene; to Millsap, TX. airport. From Crimson, AL, Brookwood, AL; or before July 17, 2017. ° LaGrange, GA; INT LaGrange 120 and ADDRESSES: Send comments on this Comments Invited Columbus, GA, 068° radials; INT Columbus ° ° proposal to the U.S. Department of Interested parties are invited to 068 and Athens, GA, 195 radials; Athens; participate in this proposed rulemaking Greenwood, SC; Sandhills, NC; to Raleigh- Transportation, Docket Operations, 1200 Durham, NC. New Jersey Avenue SE., West Building by submitting such written data, views, Ground Floor, Room W12–140, or arguments, as they may desire. V–189 [Amended] Washington, DC 20590; telephone: 1– Comments that provide the factual basis From Wright Brothers, NC; to Tar River, 800–647–5527, or (202) 366–9826. You supporting the views and suggestions NC. The airspace within R–5302 and R–5314 must identify FAA Docket No. FAA– presented are particularly helpful in is excluded when activated. 2016–9473; Airspace Docket No. 16– developing reasoned regulatory V–260 [Amended] ANM–7, at the beginning of your decisions on the proposal. Comments From Charleston, WV, Rainelle, WV; comments. You may also submit are specifically invited on the overall Roanoke, VA, Lynchburg, VA; Flat Rock, VA; comments through the Internet at http:// regulatory, aeronautical, economic, Richmond, VA; to Hopewell, VA. www.regulations.gov. environmental, and energy-related aspects of the proposal. V–266 [Amended] FAA Order 7400.11, Airspace Designations and Reporting Points, and Communications should identify both From Electric City, SC, to Spartanburg, SC. subsequent amendments can be viewed docket numbers and be submitted in From Greensboro, NC; to South Boston, VA. online at http://www.faa.gov/air_traffic/ triplicate to the address listed above. From Elizabeth City, NC; to Wright Brothers, Persons wishing the FAA to NC. publications/. For further information, you can contact the Airspace Policy acknowledge receipt of their comments * * * * * Group, Federal Aviation on this notice must submit with those Issued in Washington, DC, on May 23, Administration, 800 Independence comments a self-addressed, stamped 2017. Avenue SW., Washington, DC 20591; postcard on which the following Rodger A. Dean Jr., telephone: (202) 267–8783. The Order is statement is made: ‘‘Comments to Manager, Airspace Policy Group. also available for inspection at the Docket No. FAA–2016–9473/Airspace [FR Doc. 2017–11080 Filed 6–1–17; 8:45 am] National Archives and Records Docket No. 16–ANM–7.’’ The postcard BILLING CODE 4910–13–P Administration (NARA). For will be date/time stamped and returned information on the availability of FAA to the commenter. Order 7400.11A at NARA, call (202) All communications received before DEPARTMENT OF TRANSPORTATION 741–6030, or go to http:// the specified closing date for comments www.archives.gov/federal_register/ will be considered before taking action Federal Aviation Administration code_of_federal-regulations/ibr_ on the proposed rule. The proposal locations.html. contained in this notice may be changed 14 CFR Part 71 in light of the comments received. A FAA Order 7400.11, Airspace report summarizing each substantive [Docket No. FAA–2016–9473; Airspace Designations and Reporting Points, is public contact with FAA personnel Docket No. 16–ANM–7] published yearly and effective on concerned with this rulemaking will be September 15. Proposed Amendment of Class D and filed in the docket. Class E Airspace; Cheyenne, WY FOR FURTHER INFORMATION CONTACT: Tom Clark, Federal Aviation Administration, Availability of NPRMs AGENCY: Federal Aviation Operations Support Group, Western An electronic copy of this document Administration (FAA), DOT. Service Center, 1601 Lind Avenue SW., may be downloaded through the

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Internet at http://www.regulations.gov. from the airport extending from the Environmental Review Recently published rulemaking airport 9.1-mile radius to 10.6 miles documents can also be accessed through west of the airport, and with another This proposal will be subject to an the FAA’s Web page at http:// segment on each side of a 028° bearing environmental analysis in accordance www.faa.gov/air_traffic/publications/ from the airport extending from the with FAA Order 1050.1F, airspace_amendments/. airport 8.1 mile radius to 10.8 miles ‘‘Environmental Impacts: Policies and You may review the public docket northeast of the airport. The airspace Procedures’’ prior to any FAA final containing the proposal, any comments extending upward from 1,200 feet above regulatory action. received, and any final disposition in the surface would be modified to within List of Subjects in 14 CFR Part 71 person in the Dockets Office (see the a 43.6 mile radius of the airport (from ADDRESSES section for the address and a polygon of similar area) to provide Airspace, Incorporation by reference, phone number) between 9:00 a.m. and controlled airspace for diverse Navigation (air). 5:00 p.m., Monday through Friday, departures until reaching the overlying The Proposed Amendment except federal holidays. An informal Class E airspace. docket may also be examined during This proposed airspace redesign is Accordingly, pursuant to the normal business hours at the Northwest authority delegated to me, the Federal Mountain Regional Office of the Federal necessary due to the decommissioning of the Cheyenne ILS outer marker, Aviation Administration proposes to Aviation Administration, Air Traffic amend 14 CFR part 71 as follows: Organization, Western Service Center, removal of the Cheyenne VORTAC from the airspace description, and the Operations Support Group, 1601 Lind PART 71—DESIGNATION OF CLASS A, Avenue SW., Renton, WA 98057. availability of diverse departure B, C, D, AND E AIRSPACE AREAS; AIR headings as the FAA transitions from Availability and Summary of TRAFFIC SERVICE ROUTES; AND ground-based navigation aids to REPORTING POINTS Documents Proposed for Incorporation satellite-based navigation. Also, this by Reference action would update the airport’s ■ 1. The authority citation for 14 CFR This document proposes to amend geographic coordinates for Class D and part 71 continues to read as follows: FAA Order 7400.11A, Airspace E airspace areas to reflect the FAA’s Designations and Reporting Points, current aeronautical database. Finally, Authority: 49 U.S.C. 106(f), 106(g), 40103, dated August 3, 2016, and effective this action would make an editorial 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, September 15, 2016. FAA Order change in the legal description by 1959–1963 Comp., p. 389. 7400.11A is publicly available as listed replacing Airport/Facility Directory § 71.1 [Amended] in the ADDRESSES section of this with the term Chart Supplement. ■ 2. The incorporation by reference in document. FAA Order 7400.11A lists Class D and Class E airspace 14 CFR 71.1 of FAA Order 7400.11A, Class A, B, C, D, and E airspace areas, designations are published in paragraph Airspace Designations and Reporting air traffic service routes, and reporting 5000, 6002, and 6005, respectively, of Points, dated August 3, 2016, and points. FAA Order 7400.11A, dated August 3, effective September 15, 2016, is 2016 and effective September 15, 2016, The Proposal amended as follows: which is incorporated by reference in 14 The FAA is proposing an amendment CFR 71.1. The Class D and Class E Paragraph 5000 Class D Airspace. to Title 14 Code of Federal Regulations airspace designations listed in this (14 CFR) part 71 by modifying Class D * * * * * document will be published airspace, Class E surface area airspace, ANM WY D Cheyenne, WY [Amended] subsequently in the Order. Class E airspace extending upward from Cheyenne Regional/Jerry Olson Field Airport, 700 feet above the surface, and Class E Regulatory Notices and Analyses WY airspace extending upward from 1,200 (Lat. 41°09′20″ N., long. 104°48′38″ W.) feet above the surface at Cheyenne The FAA has determined that this That airspace extending upward from the Regional/Jerry Olson Field Airport, regulation only involves an established surface to and including 8,700 feet MSL Cheyenne, WY. This action would also body of technical regulations for which within a 5.6-mile radius of Cheyenne update the airport name to Cheyenne frequent and routine amendments are Regional/Jerry Olson Field Airport. This Regional/Jerry Olson Field Airport (from necessary to keep them operationally Class D airspace area is effective during the Cheyenne Airport). current, is non-controversial and specific dates and times established in Class D airspace would be amended unlikely to result in adverse or negative advance by a Notice to Airmen. The effective by removing the segment on each side comments. It, therefore: (1) Is not a date and time will thereafter be continuously published in the Chart Supplement. of the Cheyenne ILS localizer east ‘‘significant regulatory action’’ under course extending from the 5.6-mile Executive Order 12866; (2) is not a Paragraph 6002 Class E Airspace radius to the outer marker. ‘‘significant rule’’ under DOT Designated as Surface Areas. Class E surface area airspace would be Regulatory Policies and Procedures (44 * * * * * modified coincident with the Class D FR 11034; February 26, 1979); and (3) ANM WY E2 Cheyenne, WY [Amended] airspace, and effective during the times does not warrant preparation of a the Class D is not in effect. regulatory evaluation as the anticipated Cheyenne Regional/Jerry Olson Field Airport, WY Class E airspace extending upward impact is so minimal. Since this is a ° ′ ″ ° ′ ″ from 700 feet above the surface would routine matter that will only affect air (Lat. 41 09 20 N., long. 104 48 38 W.) be modified to within an 8.1-mile radius traffic procedures and air navigation, it That airspace extending upward from the (from 12.2 miles) of Cheyenne Regional/ is certified that this rule, when surface within a 5.6-mile radius of Cheyenne Regional/Jerry Olson Field Airport. This Jerry Olson Field Airport, and within a promulgated, would not have a Class E airspace area is effective during the 9.1-mile radius of the airport from a significant economic impact on a ° specific dates and times established in 240 bearing from the airport clockwise substantial number of small entities advance by a Notice to Airmen. The effective to the 300° bearing from the airport with under the criteria of the Regulatory date and time will thereafter be continuously a segment on each side of a 275° bearing Flexibility Act. published in the Chart Supplement.

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Paragraph 6005 Class E Airspace Areas You must identify FAA Docket No. or arguments, as they may desire. Extending Upward From 700 Feet or More FAA–2017–0315; Airspace Docket No. Comments that provide the factual basis Above the Surface of the Earth. 17–ANM–5, at the beginning of your supporting the views and suggestions * * * * * comments. You may also submit presented are particularly helpful in ANM WY E5 Cheyenne, WY [Amended] comments through the Internet at http:// developing reasoned regulatory www.regulations.gov. decisions on the proposal. Comments Cheyenne Regional/Jerry Olson Field Airport, WY FAA Order 7400.11A, Airspace are specifically invited on the overall (Lat. 41°09′20″ N., long. 104°48′38″ W.) Designations and Reporting Points, and regulatory, aeronautical, economic, subsequent amendments can be viewed environmental, and energy-related That airspace extending upward from 700 _ feet above the surface within an 8.1-mile online at http://www.faa.gov/air traffic/ aspects of the proposal. radius of Cheyenne Regional/Jerry Olson publications/. For further information, Communications should identify both Field Airport from the 300° bearing from the you can contact the Airspace Policy docket numbers (FAA Docket No. FAA– airport clockwise to the 240° bearing, and Group, Federal Aviation 2017–0315; Airspace Docket No. 17– within a 9.1-mile radius of the airport from Administration, 800 Independence ANM–5) and be submitted in triplicate the 240° bearing from the airport clockwise to DOT Docket Operations (see ° Avenue SW., Washington, DC 20591; to the 300 bearing from the airport, and telephone: (202) 267–8783. The Order is ADDRESSES section for address and within 2.2 miles each side of the 275° bearing also available for inspection at the phone number). from the airport extending from the airport Persons wishing the FAA to 9.1-mile radius to 10.6 miles west of the National Archives and Records airport, and within 2.4 miles each side of a Administration (NARA). For acknowledge receipt of their comments 028° bearing from the airport extending from information on the availability of FAA on this notice must submit with those the airport 8.1 mile radius to 10.8 miles Order 7400.11A at NARA, call (202) comments a self-addressed, stamped northeast of the airport; and that airspace 741–6030, or go to http:// postcard on which the following extending upward from 1,200 feet above the www.archives.gov/federal_register/ statement is made: ‘‘Comments to FAA surface within a 43.6-mile radius of the code_of_federal-regulations/ibr_ Docket No. FAA–2017–0315 and airport. locations.html. Airspace Docket No. 17–ANM–5’’. The Issued in Seattle, Washington, on May 22, FAA Order 7400.11, Airspace postcard will be date/time stamped and 2017. Designations and Reporting Points, is returned to the commenter. Sam S.L. Shrimpton, published yearly and effective on All communications received on or Acting Group Manager, Operations Support September 15. before the specified closing date will be Group, Western Service Center. considered before taking action on the FOR FURTHER INFORMATION CONTACT: Tom proposed rule. The proposal contained [FR Doc. 2017–11079 Filed 6–1–17; 8:45 am] Clark, Federal Aviation Administration, in this notice may be changed in light BILLING CODE 4910–13–P Operations Support Group, Western of the comments received. A report Service Center, 1601 Lind Avenue SW., summarizing each substantive public Renton, WA 98057; telephone (425) DEPARTMENT OF TRANSPORTATION contact with FAA personnel concerned 203–4511. with this rulemaking will be filed in the Federal Aviation Administration SUPPLEMENTARY INFORMATION: docket. Authority for This Rulemaking 14 CFR Part 71 Availability of NPRMs The FAA’s authority to issue rules An electronic copy of this document [Docket No. FAA–2017–0315; Airspace regarding aviation safety is found in Docket No. 17–ANM–5] may be downloaded through the Title 49 of the United States Code. Internet at http://www.regulations.gov. Proposed Establishment of Class E Subtitle I, Section 106 describes the Recently published rulemaking Airspace, Dixon, WY authority of the FAA Administrator. documents can also be accessed through Subtitle VII, Aviation Programs, the FAA’s Web page at http:// AGENCY: Federal Aviation describes in more detail the scope of the www.faa.gov/air_traffic/publications/ Administration (FAA), DOT. agency’s authority. This rulemaking is airspace_amendments/. ACTION: Notice of proposed rulemaking promulgated under the authority You may review the public docket (NPRM). described in Subtitle VII, Part A, containing the proposal, any comments Subpart I, Section 40103. Under that received, and any final disposition in SUMMARY: This action proposes to section, the FAA is charged with person in the Dockets Office (see the establish Class E airspace extending prescribing regulations to assign the use ADDRESSES section for the address and upward from 700 feet above the surface of airspace necessary to ensure the phone number) between 9:00 a.m. and at Dixon Airport, Dixon, WY, to support safety of aircraft and the efficient use of 5:00 p.m., Monday through Friday, the development of instrument flight airspace. This regulation is within the except federal holidays. An informal rules (IFR) operations under standard scope of that authority as it would docket may also be examined during instrument approach and departure establish Class E airspace extending normal business hours at the Northwest procedures at the airport, for the safety upward from 700 feet above the surface Mountain Regional Office of the Federal and management of aircraft within the at Dixon Airport, Dixon, WY to support Aviation Administration, Air Traffic National Airspace System. IFR operations in standard instrument Organization, Western Service Center, DATES: Comments must be received on approach and departure procedures at Operations Support Group, 1601 Lind or before July 17, 2017. the airport for the safety and Avenue SW., Renton, WA 98057. ADDRESSES: Send comments on this management of aircraft within the proposal to the U.S. Department of National Airspace System. Availability and Summary of Transportation, Docket Operations, 1200 Documents Proposed for Incorporation New Jersey Avenue SE., West Building Comments Invited by Reference Ground Floor, Room W12–140, Interested parties are invited to This document proposes to amend Washington, DC 20590; telephone: participate in this proposed rulemaking FAA Order 7400.11A, Airspace 1–800–647–5527, or (202) 366–9826. by submitting such written data, views, Designations and Reporting Points,

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dated August 3, 2016, and effective List of Subjects in 14 CFR Part 71 order to schedule the synthetic opioid, September 15, 2016. FAA Order Airspace, Incorporation by reference, N-(1-phenethylpiperidin-4-yl)-N- 7400.11A is publicly available as listed Navigation (air). phenylacrylamide (acryl fentanyl or in the ADDRESSES section of this acryloylfentanyl), into Schedule I document. FAA Order 7400.11A lists The Proposed Amendment pursuant to the temporary scheduling Class A, B, C, D, and E airspace areas, Accordingly, pursuant to the provisions of the Controlled Substances air traffic service routes, and reporting authority delegated to me, the Federal Act. This action is based on a finding by points. Aviation Administration proposes to the Administrator that the placement of amend 14 CFR part 71 as follows: this synthetic opioid into Schedule I of The Proposal the Controlled Substances Act is The FAA is proposing an amendment PART 71—DESIGNATION OF CLASS A, necessary to avoid an imminent hazard to Title 14 Code of Federal Regulations B, C, D, AND E AIRSPACE AREAS; AIR to the public safety. When it is issued, (14 CFR) part 71 by establishing Class E TRAFFIC SERVICE ROUTES; AND the temporary scheduling order will airspace extending upward from 700 REPORTING POINTS impose the administrative, civil, and feet above the surface at Dixon Airport, criminal sanctions and regulatory ■ 1. The authority citation for 14 CFR Dixon, WY. Class E airspace would be controls applicable to Schedule I part 71 continues to read as follows: established within a 7-mile radius of controlled substances under the Dixon Airport with a segment 8 miles Authority: 49 U.S.C. 106(f), 106(g); 40103, Controlled Substances Act on the wide (4 miles each side of a 045° 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, manufacture, distribution, reverse bearing from the airport) extending to 1959–1963 Comp., p. 389. distribution, possession, importation, exportation, research, and conduct of 15.5 miles northeast of the airport. This § 71.1 [Amended] instructional activities, and chemical airspace is necessary to support IFR ■ 2. The incorporation by reference in analysis of this synthetic opioid. operations in standard instrument 14 CFR 71.1 of FAA Order 7400.11A, DATES: The date of this notice of intent approach and departure procedures at Airspace Designations and Reporting is June 2, 2017. the airport. Points, dated August 3, 2016, and Class E airspace designations are effective September 15, 2016, is FOR FURTHER INFORMATION CONTACT: published in paragraph 6005 of FAA amended as follows: Michael J. Lewis, Diversion Control Order 7400.11A, dated August 3, 2016, Division, Drug Enforcement Paragraph 6005 Class E Airspace Areas Administration; Mailing Address: 8701 and effective September 15, 2016, which Extending Upward From 700 Feet or More is incorporated by reference in 14 CFR Morrissette Drive, Springfield, Virginia Above the Surface of the Earth. 22152; Telephone: (202) 598–6812. 71.1. The Class E airspace designations * * * * * listed in this document will be SUPPLEMENTARY INFORMATION: This published subsequently in the Order. ANM WY E5 Dixon, WY [New] notice of intent is issued pursuant to the Dixon Airport temporary scheduling provisions of 21 Regulatory Notices and Analyses (Lat. 41°02′15″ N., long. 107°29′33″ W.) U.S.C. 811(h). The Drug Enforcement Administration (DEA) intends to issue a The FAA has determined that this That airspace extending upward from 700 temporary order to add acryl fentanyl to regulation only involves an established feet above the surface within a 7-miles radius of the Dixon Airport, and within 4 miles each Schedule I under the Controlled body of technical regulations for which side of a 045° bearing from the airport Substances Act.1 The temporary frequent and routine amendments are extending from the 7-mile radius to 15.5 scheduling order will be published in necessary to keep them operationally miles northeast of the airport. the Federal Register, but that order will current, and is non-controversial and Issued in Seattle, Washington, on May 22, not be issued before July 3, 2017. unlikely to result in adverse or negative 2017. comments. It, therefore: (1) Is not a Legal Authority Sam S.L. Shrimpton, ‘‘significant regulatory action’’ under Section 201 of the Controlled Executive Order 12866; (2) is not a Acting Group Manager, Operations Support Group, Western Service Center. Substances Act (CSA), 21 U.S.C. 811, ‘‘significant rule’’ under DOT provides the Attorney General with the Regulatory Policies and Procedures (44 [FR Doc. 2017–11078 Filed 6–1–17; 8:45 am] BILLING CODE 4910–13–P authority to temporarily place a FR 11034; February 26, 1979); and (3) substance into Schedule I of the CSA for does not warrant preparation of a two years without regard to the regulatory evaluation as the anticipated DEPARTMENT OF JUSTICE requirements of 21 U.S.C. 811(b) if he impact is so minimal. Since this is a finds that such action is necessary to routine matter that will only affect air Drug Enforcement Administration avoid imminent hazard to the public traffic procedures and air navigation, it safety. 21 U.S.C. 811(h)(1). In addition, is certified that this rule, when 21 CFR Part 1308 if proceedings to control a substance are promulgated, would not have a initiated under 21 U.S.C. 811(a)(1), the significant economic impact on a [Docket No. DEA–460] Attorney General may extend the substantial number of small entities temporary scheduling for up to one under the criteria of the Regulatory Schedules of Controlled Substances: Temporary Placement of Acryl year. 21 U.S.C. 811(h)(2). Flexibility Act. Where the necessary findings are Fentanyl Into Schedule I Environmental Review made, a substance may be temporarily AGENCY: Drug Enforcement scheduled if it is not listed in any other This proposal would be subject to an Administration, Department of Justice. 1 environmental analysis in accordance ACTION: Notice of intent. Though DEA has used the term ‘‘final order’’ with FAA Order 1050.1F, with respect to temporary scheduling orders in the SUMMARY: past, this notice of intent adheres to the statutory ‘‘Environmental Impacts: Policies and The Administrator of the Drug language of 21 U.S.C. 811(h), which refers to a Procedures’’ prior to any FAA final Enforcement Administration is issuing ‘‘temporary scheduling order.’’ No substantive regulatory action. this notice of intent to issue a temporary change is intended.

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schedule under section 202 of the CSA, manufacture, or distribution. 21 U.S.C. Kentucky, Louisiana, Minnesota, 21 U.S.C. 812, or if there is no 811(h)(3). Missouri, North Carolina, South exemption or approval in effect for the A substance meeting the statutory Carolina, Tennessee, Texas, and West substance under section 505 of the requirements for temporary scheduling Virginia. According to STARLiMS, the Federal Food, Drug, and Cosmetic Act may only be placed in Schedule I. 21 first laboratory submission of acryl (FDCA), 21 U.S.C. 355. 21 U.S.C. U.S.C. 811(h)(1). Substances in fentanyl occurred in July 2016 in Texas. 811(h)(1); 21 CFR part 1308. The Schedule I are those that have a high The National Forensic Laboratory Attorney General has delegated potential for abuse, no currently Information System (NFLIS) is a scheduling authority under 21 U.S.C. accepted medical use in treatment in the national drug forensic laboratory 811 to the Administrator of the DEA. 28 United States, and a lack of accepted reporting system that systematically CFR 0.100. safety for use under medical collects results from drug chemistry supervision. 21 U.S.C. 812(b)(1). analyses conducted by other federal, Background Acryl Fentanyl state and local forensic laboratories Section 201(h)(4) of the CSA, 21 across the country. NFLIS registered 74 U.S.C. 811(h)(4), requires the Acryl fentanyl was first described in reports containing acryl fentanyl from Administrator to notify the Secretary of 1981 in the scientific literature where its state or local forensic laboratories in the Department of Health and Human chemical structure and its in vivo Arkansas, California, Connecticut, Iowa, Services (HHS) of his intention to antinociceptive effects were reported. Kentucky, Ohio, Pennsylvania, South temporarily place a substance into No approved medical use has been Carolina, Texas, and Wisconsin (query Schedule I of the CSA.2 The identified for acryl fentanyl, nor has it date: May 5, 2017).3 The first report of Administrator transmitted notice of his been approved by the FDA for human acryl fentanyl was reported in intent to place acryl fentanyl in consumption. The recent identification Wisconsin in May 2016. The DEA is not Schedule I on a temporary basis to the of acryl fentanyl in drug evidence and aware of any laboratory identifications Assistant Secretary for Health of HHS by the identification of this substance in of acryl fentanyl prior to 2016. letter dated April 17, 2017. The association with fatal overdose events Evidence suggests that the pattern of Assistant Secretary responded to this indicate that this substance is being abuse of fentanyl analogues, including notice by letter dated May 2, 2017, and abused for its opioid properties. acryl fentanyl, parallels that of heroin advised that based on a review by the Available data and information for and prescription opioid analgesics. Food and Drug Administration (FDA), acryl fentanyl, summarized below, Seizures of acryl fentanyl have been there are currently no investigational indicate that this synthetic opioid has a encountered in powder form, in new drug applications or approved new high potential for abuse, no currently solution, and packaged similar to that of drug applications for acryl fentanyl. The accepted medical use in treatment in the heroin. Acryl fentanyl has been Assistant Secretary also stated that the United States, and a lack of accepted encountered as a single substance as HHS has no objection to the temporary safety for use under medical well as in combination with other placement of acryl fentanyl into supervision. The DEA’s three-factor substances of abuse, including heroin, Schedule I of the CSA. Acryl fentanyl is analysis is available in its entirety under fentanyl, 4-fluoroisobutyryl fentanyl, not currently listed in any schedule ‘‘Supporting and Related Material’’ of and furanyl fentanyl. Acryl fentanyl has under the CSA, and no exemptions or the public docket for this action at been connected to fatal overdoses, in approvals are in effect for acryl fentanyl www.regulations.gov under Docket which insufflation and intravenous under section 505 of the FDCA, 21 Number DEA–460. routes of administration are U.S.C. 355. The DEA has found that the Factor 4. History and Current Pattern of documented. control of acryl fentanyl in Schedule I Abuse on a temporary basis is necessary to Factor 5. Scope, Duration and avoid an imminent hazard to the public The recreational abuse of fentanyl-like Significance of Abuse safety. substances continues to be a significant Reports collected by the DEA To find that placing a substance concern. These substances are demonstrate acryl fentanyl is being temporarily into Schedule I of the CSA distributed to users, often with abused for its opioid properties. This is necessary to avoid an imminent unpredictable outcomes. Acryl fentanyl abuse of acryl fentanyl has resulted in hazard to the public safety, the has recently been encountered by law morbidity and mortality (see DEA 3- Administrator is required to consider enforcement and public health officials Factor Analysis for full discussion). The three of the eight factors set forth in 21 and the adverse health effects and DEA has received reports for at least 83 U.S.C. 811(c): The substance’s history outcomes are demonstrated by fatal confirmed fatalities associated with and current pattern of abuse; the scope, overdose cases. The documented acryl fentanyl. Information on these duration and significance of abuse; and negative effects of acryl fentanyl are deaths, occurring as early as September what, if any, risk there is to the public consistent with those of other opioids. 2016, was collected by the DEA from On October 1, 2014, the DEA health. 21 U.S.C. 811(h)(3). post-mortem toxicology and medical implemented STARLiMS (a web-based, Consideration of these factors includes examiner reports. These deaths were commercial laboratory information actual abuse, diversion from legitimate reported from, and occurred in, Illinois management system) to replace the channels, and clandestine importation, (27), Maryland (22), New Jersey (1), System to Retrieve Information from Ohio (31), and Pennsylvania (2). NFLIS 2 As discussed in a memorandum of Drug Evidence (STRIDE) as its and STARLiMS have a total of 110 drug understanding entered into by the Food and Drug laboratory drug evidence data system of reports in which acryl fentanyl was Administration (FDA) and the National Institute on record. DEA laboratory data submitted Drug Abuse (NIDA), the FDA acts as the lead agency identified in drug exhibits submitted to after September 30, 2014, are reposited within the HHS in carrying out the Secretary’s forensic laboratories in 2016 and 2017 scheduling responsibilities under the CSA, with the in STARLiMS. Data from STRIDE and from law enforcement encounters in concurrence of NIDA. 50 FR 9518, Mar. 8, 1985. STARLiMS were queried on May 5, The Secretary of the HHS has delegated to the Assistant Secretary for Health of the HHS the 2017. STARLiMS registered 36 reports 3 Data are still being collected for February 2017– authority to make domestic drug scheduling containing acryl fentanyl, from April 2017 due to the normal lag period for labs recommendations. 58 FR 35460, July 1, 1993. Alabama, Connecticut, Illinois, Indiana, reporting to NFLIS.

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Alabama, Arkansas, California, Ohio, and Pennsylvania in 2016 and Administrator hereby finds that it is Connecticut, Illinois, Indiana, Iowa, 2017. As the data demonstrates, the necessary to temporarily place acryl Kentucky, Louisiana, Minnesota, potential for fatal and non-fatal fentanyl into Schedule I to avoid an Missouri, North Carolina, Ohio, overdoses exists for acryl fentanyl and imminent hazard to the public safety, Pennsylvania, South Carolina, acryl fentanyl poses an imminent the temporary order scheduling this Tennessee, Texas, West Virginia, and hazard to the public safety. substance will be effective on the date Wisconsin. It is likely that the Finding of Necessity of Schedule I that order is published in the Federal prevalence of acryl fentanyl in opioid Placement To Avoid Imminent Hazard Register, and will be in effect for a analgesic-related emergency room to Public Safety period of two years, with a possible admissions and deaths is underreported extension of one additional year, as standard immunoassays may not In accordance with 21 U.S.C. pending completion of the regular differentiate this substance from 811(h)(3), based on the available data (permanent) scheduling process. 21 fentanyl. and information, summarized above, the U.S.C. 811(h)(1) and (2). It is the The population likely to abuse acryl continued uncontrolled manufacture, intention of the Administrator to issue fentanyl overlaps with the population distribution, reverse distribution, a temporary scheduling order as soon as abusing prescription opioid analgesics, importation, exportation, conduct of possible after the expiration of 30 days heroin, fentanyl, and other fentanyl- research and chemical analysis, from the date of publication of this related substances. This is evidenced by possession, and abuse of acryl fentanyl notice. Upon publication of the the routes of drug administration and poses an imminent hazard to the public temporary order, acryl fentanyl will drug use history documented in acryl safety. The DEA is not aware of any then be subject to the regulatory fentanyl fatal overdose cases and currently accepted medical uses for controls and administrative, civil, and encounters of the substance by law acryl fentanyl in the United States. A criminal sanctions applicable to the enforcement officials. Because abusers substance meeting the statutory manufacture, distribution, reverse of acryl fentanyl are likely to obtain this requirements for temporary scheduling, distribution, importation, exportation, substance through unregulated sources, 21 U.S.C. 811(h)(1), may only be placed research, conduct of instructional the identity, purity, and quantity are in Schedule I. Substances in Schedule I activities and chemical analysis, and uncertain and inconsistent, thus posing are those that have a high potential for possession of a Schedule I controlled significant adverse health risks to the abuse, no currently accepted medical substance. end user. Individuals who initiate (i.e. use in treatment in the United States, The CSA sets forth specific criteria for use a drug for the first time) acryl and a lack of accepted safety for use scheduling a drug or other substance. fentanyl abuse are likely to be at risk of under medical supervision. Available Regular scheduling actions in developing substance use disorder, data and information for acryl fentanyl accordance with 21 U.S.C. 811(a) are overdose, and death similar to that of indicate that this substance has a high subject to formal rulemaking procedures other opioid analgesics (e.g., fentanyl, potential for abuse, no currently done ‘‘on the record after opportunity morphine, etc.). accepted medical use in treatment in the United States, and a lack of accepted for a hearing’’ conducted pursuant to Factor 6. What, if Any, Risk There Is to safety for use under medical the provisions of 5 U.S.C. 556 and 557. the Public Health supervision. As required by section 21 U.S.C. 811. The regular scheduling Acryl fentanyl exhibits 201(h)(4) of the CSA, 21 U.S.C. process of formal rulemaking affords pharmacological profiles similar to that 811(h)(4), the Administrator, through a interested parties with appropriate of fentanyl and other m-opioid receptor letter dated April 17, 2017, notified the process and the government with any agonists. The toxic effects of acryl Assistant Secretary of the DEA’s additional relevant information needed fentanyl in humans are demonstrated by intention to temporarily place this to make a determination. Final overdose fatalities involving this substance in Schedule I. decisions that conclude the regular substance. Abusers of acryl fentanyl scheduling process of formal may not know the origin, identity, or Conclusion rulemaking are subject to judicial purity of this substance, thus posing This notice of intent initiates a review. 21 U.S.C. 877. Temporary significant adverse health risks when temporary scheduling process and scheduling orders are not subject to compared to abuse of pharmaceutical provides the 30-day notice pursuant to judicial review. 21 U.S.C. 811(h)(6). preparations of opioid analgesics, such section 201(h) of the CSA, 21 U.S.C. Regulatory Matters as morphine and oxycodone. 811(h), of DEA’s intent to issue a Based on information reviewed by the temporary scheduling order. In Section 201(h) of the CSA, 21 U.S.C. DEA, the misuse and abuse of acryl accordance with the provisions of 811(h), provides for a temporary fentanyl leads to the same qualitative section 201(h) of the CSA, 21 U.S.C. scheduling action where such action is public health risks as heroin, fentanyl, 811(h), the Administrator considered necessary to avoid an imminent hazard and other opioid analgesic substances. available data and information, herein to the public safety. As provided in this As with any non-medically approved set forth the grounds for his subsection, the Attorney General may, opioid, the health and safety risks for determination that it is necessary to by order, schedule a substance in users are high. The public health risks temporarily schedule acryl fentanyl in Schedule I on a temporary basis. Such attendant to the abuse of heroin and Schedule I of the CSA, and finds that an order may not be issued before the opioid analgesics are well established placement of this synthetic opioid expiration of 30 days from (1) the and have resulted in large numbers of substance into Schedule I of the CSA is publication of a notice in the Federal drug treatment admissions, emergency necessary in order to avoid an imminent Register of the intention to issue such department visits, and fatal overdoses. hazard to the public safety. order and the grounds upon which such Acryl fentanyl has been associated The temporary placement of acryl order is to be issued, and (2) the date with numerous fatalities. At least 83 fentanyl into Schedule I of the CSA will that notice of the proposed temporary confirmed overdose deaths involving take effect pursuant to a temporary scheduling order is transmitted to the acryl fentanyl abuse have been reported scheduling order, which will not be Assistant Secretary of HHS. 21 U.S.C. from Illinois, Maryland, New Jersey, issued before July 3, 2017. Because the 811(h)(1).

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Inasmuch as section 201(h) of the submitted by the Assistant Secretary levels of government. Therefore, in CSA directs that temporary scheduling with regard to the proposed temporary accordance with Executive Order 13132 actions be issued by order and sets forth scheduling order. (Federalism) it is determined that this the procedures by which such orders are Further, the DEA believes that this action does not have sufficient to be issued, the DEA believes that the temporary scheduling action is not a federalism implications to warrant the notice and comment requirements of ‘‘rule’’ as defined by 5 U.S.C. 601(2), preparation of a Federalism Assessment. section 553 of the Administrative and, accordingly, is not subject to the List of Subjects in 21 CFR Part 1308 Procedure Act (APA), 5 U.S.C. 553, do requirements of the Regulatory not apply to this notice of intent. In the Flexibility Act (RFA). The requirements Administrative practice and alternative, even assuming that this for the preparation of an initial procedure, Drug traffic control, notice of intent might be subject to regulatory flexibility analysis in 5 U.S.C. Reporting and recordkeeping section 553 of the APA, the 603(a) are not applicable where, as here, requirements. Administrator finds that there is good the DEA is not required by section 553 For the reasons set out above, the DEA cause to forgo the notice and comment of the APA or any other law to publish proposes to amend 21 CFR part 1308 as requirements of section 553, as any a general notice of proposed follows: further delays in the process for rulemaking. issuance of temporary scheduling orders Additionally, this action is not a PART 1308—SCHEDULES OF would be impracticable and contrary to significant regulatory action as defined CONTROLLED SUBSTANCES the public interest in view of the by Executive Order 12866 (Regulatory ■ manifest urgency to avoid an imminent Planning and Review), section 3(f), and, 1. The authority citation for part 1308 hazard to the public safety. accordingly, this action has not been continues to read as follows: Although the DEA believes this notice reviewed by the Office of Management Authority: 21 U.S.C. 811, 812, 871(b), of intent to issue a temporary and Budget. unless otherwise noted. scheduling order is not subject to the This action will not have substantial ■ 2. In § 1308.11, add paragraph (h)(17) notice and comment requirements of direct effects on the States, on the to read as follows: section 553 of the APA, the DEA notes relationship between the national that in accordance with 21 U.S.C. government and the States, or on the § 1308.11 Schedule I. 811(h)(4), the Administrator will take distribution of power and * * * * * into consideration any comments responsibilities among the various (h) * * *

(17) N-(1-phenethylpiperidin-4-yl)-N-phenylacrylamide, its isomers, esters, ethers, salts and salts of isomers, esters and ethers (Other names: acryl fentanyl, acryloylfentanyl) ...... (9811)

* * * * * United States Department of Agriculture FOR FURTHER INFORMATION CONTACT: Dated: May 24, 2017. (USDA) and the Secretary of the United Cameo Smoot, Field and External Chuck Rosenberg, States Department of Health and Human Affairs Division (7506P), Office of Services (HHS) a draft regulatory Pesticide Programs, Environmental Acting Administrator. document concerning Pesticides; Protection Agency, 1200 Pennsylvania [FR Doc. 2017–11215 Filed 6–1–17; 8:45 am] Technical Amendment to Data Ave. NW., Washington DC 20460–0001; BILLING CODE 4410–09–P Requirements for Antimicrobial telephone number: (703) 305–5454; Pesticides. The draft regulatory email address: [email protected]. document is not available to the public SUPPLEMENTARY INFORMATION: ENVIRONMENTAL PROTECTION until after it has been signed and made AGENCY available by EPA. I. What action is EPA taking? Section 25(a)(2)(A) of FIFRA requires DATES: See Unit I. under SUPPLEMENTARY 40 CFR Part 158 the EPA Administrator to provide the INFORMATION. [EPA–HQ–OPP–2015–0683; FRL–9962–67] Secretary of USDA with a copy of any ADDRESSES: The docket for this action, draft proposed rule at least 60 days RIN 2070–AK00 identified by docket identification (ID) before signing it in proposed form for Notification of Submission to the number EPA–HQ–OPP–2015–0683, is publication in the Federal Register. Secretaries of Agriculture and Health available at http://www.regulations.gov Similarly, FIFRA section 21(b) requires and Human Services; Pesticides; or at the Office of Pesticide Programs the EPA Administrator to provide the Technical Amendment to Data Regulatory Docket (OPP Docket) in the Secretary of HHS with a copy of any Requirements for Antimicrobial Environmental Protection Agency draft proposed rule pertaining to a Pesticides Docket Center (EPA/DC), West William public health pesticide at least 60 days Jefferson Clinton Bldg., Rm. 3334, 1301 before publishing it in the Federal AGENCY: Environmental Protection Constitution Ave. NW., Washington, DC Register. The draft proposed rule is not Agency (EPA). 20460–0001. The Public Reading Room available to the public until after it has ACTION: Notification of submission to is open from 8:30 a.m. to 4:30 p.m., been signed by EPA. If either Secretary the Secretaries of Agriculture and Monday through Friday, excluding legal comments in writing regarding the draft Health and Human Services. holidays. The telephone number for the proposed rule within 30 days after Public Reading Room is (202) 566–1744, receiving it, the EPA Administrator SUMMARY: This document notifies the and the telephone number for the OPP shall include the comments of the public as required by the Federal Docket is (703) 305–5805. Please review Secretary and the EPA Administrator’s Insecticide, Fungicide, and Rodenticide the visitor instructions and additional response to those comments with the Act (FIFRA) that the EPA Administrator information about the docket available proposed rule that publishes in the has forwarded to the Secretary of the at http://www.epa.gov/dockets. Federal Register. If either Secretary

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does not comment in writing within 30 comments cannot be edited or removed http://www2.epa.gov/dockets/ days after receiving the draft proposed from regulations.gov. commenting-epa-dockets. • rule, the EPA Administrator may sign Email: [email protected]. FOR FURTHER INFORMATION CONTACT: • the proposed rule for publication in the Mail: Michael Roach, Michael Roach, Resource Conservation Federal Register any time after the 30- Environmental Protection Agency, and Recovery Program, Mail Code: 8P– day period. Region 8, Mail Code: 8P–R, 1595 R, Environmental Protection Agency, Wynkoop Street, Denver, Colorado II. Do any Statutory and Executive Region 8, 1595 Wynkoop Street, Denver, 80202. Colorado, 80202; telephone number: Order reviews apply to this • Hand delivery: Environmental notification? (303) 312–6369; email address: Protection Agency Region 8, Mail Code: [email protected]. 8P–R, 1595 Wynkoop Street, Denver, No. This document is merely a SUPPLEMENTARY INFORMATION: Colorado 80202. Such deliveries are In the notification of submission to the ‘‘Rules and Regulations’’ section of this Secretaries of USDA and HHS. As such, only accepted during normal hours of operation, which are Monday through Federal Register, the EPA is none of the regulatory assessment promulgating a site-specific rule that requirements apply to this document. Friday from 8:00 a.m. until 4:30 p.m. Instructions: Direct your comments to approves an alternative final cover for Dated: May 17, 2017. Docket ID No. EPA–R08–RCRA–2016– Phase 2 of the City of Wolf Point Marietta Echeverria, 0505. The EPA may publish any landfill, a municipal solid waste landfill Acting Director, Office of Pesticide Programs. comment received to its public docket (MSWLF) owned and operated by the [FR Doc. 2017–11569 Filed 6–1–17; 8:45 am] without change and may be available City of Wolf Point, Montana, on the BILLING CODE 6560–50–P online at http://www.regulations.gov, Assiniboine and Sioux Tribes’ Fort Peck including any personal information Reservation in Montana, as a direct final provided, unless the comment includes rule. The EPA did not make a proposal ENVIRONMENTAL PROTECTION information claimed to be Confidential prior to the direct final rule because we AGENCY Business Information (CBI) or other believe these actions are not information whose disclosure is controversial and do not expect relevant 40 CFR Part 258 restricted by statute. Do not submit adverse comments. We have explained [EPA–R08–RCRA–2016–0505; FRL–9962– information that you consider to be CBI the reasons for this approval in the 17-Region 8] or otherwise protected through http:// preamble to the direct final rule. www.regulations.gov or by email. The Unless the EPA receives relevant Determination To Approve Alternative http://regulations.gov Web site is an adverse comments that oppose the site- Final Cover Request for Phase 2 of the ‘‘anonymous’’ system, which means specific rule during the comment City of Wolf Point, Montana, Landfill EPA will not know your identity or period, the direct final rule will become contact information unless you provide effective on the date it establishes, and AGENCY: Environmental Protection it in the body of your comment. If you we will not take further action on this Agency (EPA). send an email comment directly to EPA proposal. If we get relevant adverse ACTION: Proposed rulemaking. rather than going through http:// comments that oppose the site-specific rule, we will withdraw the direct final SUMMARY: www.regulations.gov, your email The Environmental Protection rule and it will not take immediate Agency (EPA) is proposing to approve address will be captured automatically and included as part of the comment effect. We will then respond to public an alternative final cover for Phase 2 of comments in a later final rule based on the City of Wolf Point landfill, a that is placed in the public docket and made available on the Internet. If you this proposal. You may not have another municipal solid waste landfill (MSWLF) opportunity for comment. If you want to owned and operated by the City of Wolf submit an electronic comment, EPA recommends that you include your comment on this action, you must do so Point, Montana, on the Assiniboine and name and other contact information in at this time Sioux Tribes’ Fort Peck Reservation in the body of your comment and with any Montana. The EPA is seeking public Dated: April 17, 2017. disk or CD–ROM you submit. If the EPA comment on EPA’s determination to Debra H. Thomas, cannot read your comment due to approve the City of Wolf Point’s Acting Regional Administrator, Region 8. technical difficulties and cannot contact alternative final cover proposal. [FR Doc. 2017–11228 Filed 6–1–17; 8:45 am] your for clarification, the EPA may not In the ‘‘Rules and Regulations’’ be able to consider your comment. BILLING CODE 6560–50–P section of this Federal Register, we are Electronic files should avoid the use of making the final determination to special characters, any form of approve the alternative final cover for encryption and be free of any defects or FEDERAL COMMUNICATIONS Phase 2 of the City of Wolf Point viruses. Multimedia submissions (audio, COMMISSION landfill, as a direct final rule without a video, etc.) must be accompanied by a prior proposed rule. If we receive no 47 CFR Parts 8 and 20 written comment. The written comment relevant adverse comment, we will not is considered the official comment and [WC Docket No. 17–108; FCC 17–60] take further action on this proposed should include discussion of all points rule. you wish to make. The EPA will Restoring Internet Freedom DATES: Written comments must be generally not consider comments or AGENCY: Federal Communications received on or before July 3, 2017. comment contents located outside of the Commission. ADDRESSES: Submit your comments, primary submission (i.e., on the web, ACTION: Proposed rule. identified by Docket ID No. EPA–R08– cloud, or other file sharing system). For RCRA–2016–0505, by one of the additional submission methods, the full SUMMARY: In this document, a Notice of following methods: EPA public comment policy, Proposed Rulemaking (NPRM) proposes • Online: http://www.regulations.gov. information about CBI or multimedia to end the Commission’s public-utility Follow the online instructions for submissions, and general guidance on regulation of the Internet and seeks submitting comments. Once submitted, making effective comments, please visit comment on returning to the bipartisan,

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light-touch regulatory framework that print, electronic files, audio format), other forms of information technology; saw the free and open Internet flourish send an email to [email protected] or call and (e) way to further reduce the prior to the 2015 adoption of the the Consumer & Governmental Affairs information collection burden on small Commission’s Title II Order. Bureau at 202–418–0530 (voice), 202– business concerns with fewer than 25 Specifically, the NPRM proposes to 418–0432 (tty). employees. In addition, pursuant to the return broadband Internet access service For detailed instructions for Small Business Paperwork Relief Act of to its classification as an information submitting comments and additional 2002, Public Law 107–198, see 44 U.S.C. service, return the classification of information on the rulemaking process, 3506(c)(4), we seek specific comment on mobile broadband to its classification as see the SUPPLEMENTARY INFORMATION how we might further reduce the a private mobile service, and eliminate section of this document. In addition to information collection burden for small the Internet standard. The NPRM also filing comments with the Secretary, a business concerns with fewer than 25 seeks comment whether the copy of any comments on the employees. Commission should keep, modify, or Paperwork Reduction Act information Pursuant to sections 1.415 and 1.419 eliminate the bright-line rules set forth collection requirements contained of the Commission’s rules, 47 CFR in the Title II Order. herein should be submitted to the 1.415, 1.419, interested parties may file DATES: Comments are due on or before Federal Communications Commission comments and reply comments on or July 17, 2017, and reply comments are via email to [email protected] and to Nicole before the dates indicated on the first due on or before August 16, 2017. Ongele, Federal Communications page of this document. Comments may Written comments on the Paperwork Commission, via email to be filed using the Commission’s Reduction Act proposed information [email protected]. Electronic Comment Filing System collection requirements must be FOR FURTHER INFORMATION CONTACT: (ECFS). See Electronic Filing of submitted by the public, Office of Wireline Competition Bureau, Documents in Rulemaking Proceedings, 63 FR 24121 (1998), http://www.fcc.gov/ Management and Budget (OMB), and Competition Policy Division, at (202) Bureaus/OGC/Orders/1998/ other interested parties on or before 418–1580. For additional information concerning the Paperwork Reduction fcc98056.pdf. August 1, 2017. • Electronic Filers: Comments may be Act information collection requirements ADDRESSES: You may submit comments, filed electronically using the Internet by contained in this document, send an identified by WC Docket No. 17–108, by accessing the ECFS: https:// email to [email protected] or contact Nicole any of the following methods: www.fcc.gov/ecfs/. Parties who seek to Ongele at (202) 418–2991. D Federal Communications file a large number of comments or Commission’s Web site: http:// SUPPLEMENTARY INFORMATION: This is a ‘‘group’’ comments may do so through apps.fcc.gov/ecfs/. Follow the summary of the Commission’s Notice of the public API or the Commission’s instructions for submitting comments. Proposed Rulemaking (NPRM) in WC electronic inbox established for this D Mail: Parties who choose to file by Docket No. 17–108, adopted May 18, proceeding, called Restoring Internet paper must file an original and one copy 2017 and released May 23, 2017. The Freedom Comments at https:// of each filing. If more than one docket full text of this document is available for www.fcc.gov/restoring-internet-freedom- or rulemaking number appears in the public inspection during regular comments. To ensure that bulk caption of this proceeding, filers must business hours in the FCC Reference comments are properly recorded in submit two additional copies for each Information Center, Portals II, 445 12th ECFS, commenters must use the .CSV additional docket or rulemaking Street SW., Room CY–A257, template provided. number. Filings can be sent by hand or Washington, DC 20554. It is available on • Paper Filers: Parties who choose to messenger delivery, by commercial the Commission’s Web site at https:// file by paper must file an original and overnight courier, or by first-class or apps.fcc.gov/edocs_public/attachmatch/ one copy of each filing. If more than one overnight U.S. Postal Service mail. All FCC-17-60A1.docx. docket or rulemaking number appears in filings must be addressed to the This document contains proposed the caption of this proceeding, filers Commission’s Secretary, Office of the information collection requirements. must submit two additional copies for Secretary, Federal Communications The Commission, as part of its each additional docket or rulemaking Commission. All hand-delivered or continuing effort to reduce paperwork number. Filings can be sent by hand or messenger-delivered paper filings for burdens, invites the general public and messenger delivery, by commercial the Commission’s Secretary must be the Office of Management and Budget overnight courier, or by first-class or delivered to FCC Headquarters at 445 (OMB) to comment on the information overnight U.S. Postal Service mail. All 12th St. SW., Room TW–A325, collection requirements contained in filings must be addressed to the Washington, DC 20554. The filing hours this document, as required by the Commission’s Secretary, Office of the are 8:00 a.m. to 7:00 p.m. All hand Paperwork Reduction Act of 1995, Secretary, Federal Communications deliveries must be held together with Public Law 104–13. Public and agency Commission. All hand-delivered or rubber bands or fasteners. Any comments are due August 1, 2017. messenger-delivered paper filings for envelopes and boxes must be disposed Comments should address: (a) Whether the Commission’s Secretary must be of before entering the building. the proposed collection of information delivered to FCC Headquarters at 445 Commercial overnight mail (other than is necessary for the proper performance 12th St. SW., Room TW–A325, U.S. Postal Service Express Mail and of the functions of the Commission, Washington, DC 20554. The filing hours Priority Mail) must be sent to 9300 East including whether the information shall are 8:00 a.m. to 7:00 p.m. All hand Hampton Drive, Capitol Heights, MD have practical utility; (b) the accuracy of deliveries must be held together with 20743. U.S. Postal Service first-class, the Commission’s burden estimates; (c) rubber bands or fasteners. Any Express, and Priority mail must be ways to enhance the quality, utility, and envelopes and boxes must be disposed addressed to 445 12th Street SW., clarity of the information collected; (d) of before entering the building. Washington DC 20554. ways to minimize the burden of the Commercial overnight mail (other than D People with Disabilities: To request collection of information on the U.S. Postal Service Express Mail and materials in accessible formats for respondents, including the use of Priority Mail) must be sent to 9300 East people with disabilities (braille, large automated collection techniques or Hampton Drive, Capitol Heights, MD

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20743. U.S. Postal Service first-class, stripping the Federal Trade competition. We seek comment on our Express, and Priority mail must be Commission—the nation’s premier proposals and these analyses. addressed to 445 12th Street SW., consumer protection agency—of its 1. The Text and Structure of the Act Washington, DC 20554. jurisdiction over ISPs’ privacy and data • People with Disabilities: To request security practices. 9. We start with the text of the Act materials in accessible formats for 5. Today, we take a much-needed first itself. Section 3 of the Act defines an people with disabilities (braille, large step toward returning to the successful ‘‘information service’’ as ‘‘the offering of print, electronic files, audio format), bipartisan framework that created the a capability for generating, acquiring, send an email to [email protected] or call free and open Internet and, for almost storing, transforming, processing, the Consumer & Governmental Affairs twenty years, saw it flourish. By retrieving, utilizing, or making available Bureau at 202–418–0530 (voice), 202– proposing to end the utility-style information via telecommunications, 418–0432 (tty). regulatory approach that gives and includes electronic publishing, but government control of the Internet, we does not include any use of any such Synopsis aim to restore the market-based policies capability for the management, control, I. Introduction necessary to preserve the future of or operation of a telecommunications Internet Freedom, and to reverse the system or the management of a 1. Americans cherish a free and open decline in infrastructure investment, telecommunications service.’’ Section 3 Internet. And for almost twenty years, innovation, and options for consumers defines a ‘‘telecommunications service’’ the Internet flourished under a light- put into motion by the FCC in 2015. Our as ‘‘the offering of telecommunications touch regulatory approach. It was a actions today continue our critical work for a fee directly to the public, or to framework that our nation’s elected to promote broadband deployment to such classes of users as to be effectively leaders put in place on a bipartisan rural consumers and infrastructure available directly to the public, basis. President Clinton and a investment throughout our nation, to regardless of the facilities used.’’ Republican Congress passed the brighten the future of innovation both Section 3 also defines Telecommunications Act of 1996, which within networks and at their edge, and ‘‘telecommunications,’’ used in each of established the policy of the United to close the digital divide. the prior two definitions, as ‘‘the States ‘‘to preserve the vibrant and transmission, between or among points competitive free market that presently II. Ending Public-Utility Regulation of specified by the user, of information of exists for the Internet . . . unfettered by the Internet the user’s choosing, without change in Federal or State regulation.’’ 6. Between enactment of the the form or content of the information 2. During this time, the Internet Telecommunications Act and the 2015 as sent and received.’’ underwent rapid, and unprecedented, adoption of the Title II Order, the free 10. We believe that Internet service growth. Internet service providers (ISPs) and open Internet flourished: Providers providers offer the ‘‘capability for invested over $1.5 trillion in the invested over $1.5 trillion to construct generating, acquiring, storing, Internet ecosystem and American networks; high-speed Internet access transforming, processing, retrieving, consumers enthusiastically responded. proliferated at affordable rates; and utilizing, or making available Businesses developed in ways that the consumers were able to enjoy all that information via telecommunications.’’ policy makers could not have fathomed the Internet had to offer. In 2015, the Whether posting on social media or even a decade ago. Google, Facebook, Commission abruptly departed from its drafting a blog, a broadband Internet Netflix, and countless other online prior posture and classified broadband user is able to generate and make businesses launched in this country and Internet access service as a available information online. Whether became worldwide success stories. The telecommunications service subject to reading a newspaper’s Web site or Internet became an ever-increasing part public-utility regulations under Title II. browsing the results from a search of the American economy, offering new 7. Today, we propose to reinstate the engine, a broadband Internet user is able and innovative changes in how we information service classification of to acquire and retrieve information work, learn, receive medical care, and broadband Internet access service and online. Whether it’s an address book or entertain ourselves. return to the light-touch regulatory a grocery list, a broadband Internet user 3. But two years ago, the FCC changed framework first established on a is able to store and utilize information course. It decided to apply utility-style bipartisan basis during the Clinton online. Whether uploading filtered regulation to the Internet. This decision Administration. We also propose to photographs or translating text into a represented a massive and reinstate the determination that mobile foreign language, a broadband Internet unprecedented shift in favor of broadband Internet access service is not user is able to transform and process government control of the Internet. a commercial mobile service. information online. In short, broadband 4. The Commission’s Title II Order Internet access service appears to offer has put at risk online investment and A. Reinstating the Information Service its users the ‘‘capability’’ to perform innovation, threatening the very open Classification of Broadband Internet each and every one of the functions Internet it purported to preserve. Access Service listed in the definition—and Investment in broadband networks 8. Our proposal to classify broadband accordingly appears to be an declined. Internet service providers Internet access service as an information information service by definition. We have pulled back on plans to deploy service is based on a number of factors. seek comment on this analysis. Can new and upgraded infrastructure and First, we examine the text, structure, broadband Internet users indeed access services to consumers. This is and history of the Communications Act these capabilities? Are there other particularly true of the smallest Internet and the Telecommunications Act, capabilities that a broadband Internet service providers that serve consumers combined with the technical details of user may receive with service? If in rural, low-income, and other how the Internet works. Second, we broadband Internet access service does underserved communities. Many good- examine Commission precedent. Third, not afford one of the listed capabilities paying jobs were lost as the result of we examine public policy and our goal to users, what effect would that have on these pull backs. And the order has of benefiting consumers through greater our statutory analysis? More weakened Americans’ online privacy by innovation, investment, and fundamentally, we seek comment on

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how the Commission should assess the other end, however, broadband (We note that the Title II Order asserted whether a broadband provider is Internet access transmission service that ‘‘[i]t is not uncommon in the toll- ‘‘offering’’ a capability. Should we only transmits data to a carrier’s central free arena for a single number to route assess this from the perspective of the office (or other aggregation point) as it to multiple locations, and such a user, from the provider, or through some does not itself offer the capabilities that circumstance does not transform that other lens? come with Internet access.) Or are we service to something other than 11. In the Cable Modem Order, the correct that offering Internet access is telecommunications.’’ Despite that Commission recognized that broadband precisely what makes the service assertion, the Commission has expressly Internet users often used services from capable of ‘‘generating, acquiring, found that the management of toll-free third parties: ‘‘[S]ubscribers, by ‘click- storing, transforming, processing, numbers is ‘‘not a common carrier through’ access, may obtain many retrieving, utilizing, or making available service’’ and that providers that manage functions from companies with whom information’’ to consumers? toll-free numbers ‘‘do not need to be the cable operator has not even a 12. In contrast, Internet service carriers.’’). contractual relationship. For example, a providers do not appear to offer 13. For another, Internet service subscriber to Comcast’s cable modem ‘‘telecommunications,’’ i.e., ‘‘the providers routinely change the form or service may bypass that company’s web transmission, between or among points content of the information sent over browser, proprietary content, and email. specified by the user, of information of their networks—for example, by using The subscriber is free to download and the user’s choosing, without change in firewalls to block harmful content or use instead, for example, a web browser the form or content of the information using protocol processing to interweave from Netscape, content from Fox News, as sent and received,’’ to their users. For IPv4 networks with IPv6 networks. The and email in the form of Microsoft’s one, broadband Internet users do not Commission has acknowledged that ‘Hotmail.’’’ It nonetheless found the typically specify the ‘‘points’’ between broadband Internet networks must be classification appropriate ‘‘regardless of and among which information is sent reasonably managed since at least the whether subscribers use all of the online. Instead, routing decisions are 2005 Internet Policy Statement. We functions provided as part of the based on the architecture of the believe that consumers want and pay for service, such as email or web-hosting, network, not on consumers’ these functionalities that go beyond and regardless of whether every cable instructions, and consumers are often mere transmission—and that they have modem service provider offers each unaware of where online content is come to expect them as part and parcel function that could be included in the stored. Domain names must be of broadband Internet access service. We service.’’ In the Title II Order, the translated into IP addresses (and there is seek comment on our analysis. What Commission in turn found that no one-to-one correspondence between constitutes a ‘‘change in the form’’ of ‘‘consumers are very likely to use their the two). Even IP addresses may not information? If not the protocol- high-speed Internet connections to take specify where information is processing for internetworking or other advantage of competing services offered transmitted to or from because caching protocol-processing performed as part of by third parties’’ and asserted the servers store and serve popular Internet access service, how should we service ‘‘is useful to consumers today information to reduce network loads. In interpret this phase so it carries with it primarily as a conduit for reaching short, broadband Internet users are independent meaning and is not mere modular content, applications, and paying for the access to information surplusage? How could we plausibly services that are provided by ‘‘with no knowledge of the physical conclude that it is not a ‘‘change in the unaffiliated third parties.’’ We seek location of the server where that . . . content’’ to use firewalls and other comment on how consumers are using information resides.’’ We believe that reasonable network management tools broadband Internet access service today. consumers want and pay for these to shield broadband Internet users from It appears that, as in 2002 and 2013, functionalities that go beyond mere unwanted intrusions and thereby alter broadband Internet users ‘‘obtain many transmission—and that they have come what information reaches the user for functions from companies’’ other than to expect them as part and parcel of the user’s benefit? We seek comment on their Internet service provider. It also broadband Internet access service. We other ways in which Internet service appears that many broadband Internet seek comment on our analysis. How are providers change the form or content of users rely on services, such as Domain broadband Internet users’ requests for information to facilitate a broadband Name Service (DNS) and email, from information handled by Internet service Internet user’s experience online. their ISP. Is that correct? If not, what providers today? What functionalities 14. Other provisions of the Act appear services are broadband Internet users beyond mere transmission do Internet to confirm our analysis that broadband accessing from what providers? More service providers incorporate into their Internet access services should be generally, we seek comment on the broadband Internet access service? We classified as information services. For relevance of this analysis. The particularly seek comment on the Title instance, section 230 defines an definition of ‘‘information service’’ II Order’s assertion that the phrase interactive computer service to mean speaks to the ‘‘capability’’ to perform ‘‘points specified by the user’’ is ‘‘any information service, system, or certain functions. Is a consumer capable ambiguous—how should we interpret access software provider that provides of accessing these online services that phrase so that it carries with it or enables computer access by multiple without Internet access service? Could a independent meaning and is not mere users to a computer server, including consumer access these online services surplusage? Is it enough, as the Title II specifically a service or system that using traditional telecommunications Order asserted, for a broadband Internet provides access to the Internet and such services like telephone service or point- user to specify the information he is systems operated or services offered by to-point special access? (In the past, trying to access but not the ‘‘points’’ libraries or educational institutions.’’ rate-of-return carriers have offered between or among which the On its face, the plain language of this broadband Internet access transmission information will be transmitted? Does it provision deems Internet access service service as a common-carriage last-mile matter that the Internet service provider an information service. We seek service that transmits data between and specifies the points between and among comment on this analysis, on the end user and an ISP. Absent an ISP at which information will be transmitted? language of section 230, and on how it

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should impact our classification of Or as Congress codified its intent in reason to think consumers might want broadband Internet access service. section 230: It is the policy of the a fast or reliable ‘‘transmission . . . of 15. Section 231 is even more direct. United States ‘‘to preserve the vibrant information’’ but not a fast or reliable It expressly states that ‘‘Internet access and competitive free market that ‘‘capability for generating, acquiring, service’’ ‘‘does not include presently exists for the Internet and storing, transforming, processing, telecommunications services.’’ And it other interactive computer services, retrieving, utilizing, or making available defines Internet access service as one unfettered by Federal or State information.’’ Indeed, many of the offering many capabilities (like an regulation.’’ An information service advertisements discussed by the Title II information service): ‘‘a service that classification would ‘‘reduce Order speak directly to the capabilities enables users to access content, regulation’’ and preserve a free market offered through high-speed service. We information, electronic mail, or other ‘‘unfettered by Federal or State seek comment on this analysis and on services offered over the Internet, and regulation’’—but a telecommunications any other relevant facts regarding may also include access to proprietary service classification would not. Indeed, whether broadband Internet users content, information, and other services as Judge Brown of the D.C. Circuit receive the capabilities of an as part of a package of services offered recently noted, ‘‘[b]y incorporating [the] information service or the mere to consumers.’’ Although inserted into FCC’s distinction between ‘enhanced transmission between points of a user’s the Communications Act one year after service’ and ‘basic service’ into the choosing of a telecommunications the Telecommunications Act’s passage statutory scheme, and by placing service. and previously interpreted to ‘‘clarify Internet access on the ‘enhanced 20. Second, the Title II Order found that section 231 was not intended to service’ side, Congress prohibited the that DNS and caching used in impair our or a state commission’s FCC from construing the ‘offering’ of broadband Internet access service were ability to regulate basic ‘telecommunications service’ to be the just used ‘‘for the management, control, telecommunications services,’’ this ‘information service’ of Internet access.’’ or operation of a telecommunications language on its face makes clear that We seek comment on this analysis, as system or the management of a Internet access service is not a well as whether there are any other telecommunications service.’’ The telecommunications service. We seek provisions of the Communications Act Commission has previously held this comment on this analysis, on the or Telecommunications Act that category applies to ‘‘adjunct-to-basic’’ language of section 231, and on how it establish congressional intent with functions that are ‘‘incidental’’ to a should impact our classification of respect to the appropriate regulatory telecommunications service’s broadband Internet access service. framework for broadband Internet underlying use and ‘‘do not alter [its] 16. The structure of Title II appears to access services. fundamental character.’’ As such, these be a poor fit for broadband Internet 18. More broadly, we seek comment functions generally are not ‘‘useful to access service. In the Title II Order, the on the text, structure, and purposes of end users, rather than carriers.’’ We seek Commission, on its own motion, forbore the Communications Act and the comment on how DNS and caching either in whole or in part on a Telecommunications Act, as well as any functions are now used, whether they permanent or temporary basis from 30 additional facts about what Internet benefit end users, Internet service separate sections of Title II as well as service providers offer, how broadband providers, or both, and whether they fit from other provisions of the Act and Internet access service works, and what within the adjunct-to-basic exception. Commission rules. The significant broadband Internet users expect that How would broadband Internet access forbearance the Commission granted in might inform our analysis. service work without DNS or caching? the Title II Order suggests the highly 19. We seek special comment on two Would removing DNS have a merely prescriptive regulatory framework of aspects of the Title II Order’s incidental effect on broadband Internet Title II is unsuited for the dynamic interpretation of the Act. First, the Title users, or would it fundamentally change broadband Internet access service II Order claimed its interpretation their online experience? Absent marketplace. We seek comment on this sprang in part from a change in caching, would broadband Internet analysis, and on what weight we should ‘‘broadband providers’ marketing and users that now expect high-quality give this analysis in examining the pricing strategies, which emphasize video streaming see only incidental future of this model of regulation. speed and reliability of transmission changes or more fundamental changes? 17. The purposes of the separately from and over the extra Are there other ways that DNS or Telecommunications Act appear to be features of the service packages they caching are used for ‘‘for the better served by classifying broadband offer.’’ It claimed this marketing ‘‘leaves management, control, or operation of a Internet access service as an information a reasonable consumer with the telecommunications system’’? Are there service. Congress passed the impression that a certain level of any other aspects of the Title II Order’s Telecommunications Act to ‘‘promote transmission capability—measured in treatment of DNS or caching that should competition and reduce regulation’’ and terms of ‘speed’ or ‘reliability’—is being be reconsidered here? ‘‘[n]othing in the 1996 Act or its offered in exchange for the subscription legislative history suggests that Congress fee, even if complementary services are 2. Commission Precedent Supports intended to alter the current also included as part of the offer.’’ We Classification as an Information Service classification of Internet and other note that even before the Cable Modem 21. Our proposed classification of information services or to expand Order, the Commission recognized that broadband Internet access service as an traditional telephone regulation to new Internet service providers marketed the information service is firmly rooted in and advanced services.’’ Or as Senator speed of their connections. We seek Commission precedent. For two John McCain put it, ‘‘[i]t certainly was comment on whether Internet service decades, a consistent bipartisan not Congress’s intent in enacting the providers’ marketing has decidedly framework supported a free and open supposedly pro-competitive, changed in recent decades. More Internet. That same consensus led to six deregulatory 1996 Act to extend the generally, we seek comment on the separate Commission decisions burdens of current Title II regulation to relevance of this argument. Neither confirming that Internet access service Internet services, which historically statutory service definition speaks of is an information service, subject to have been excluded from regulation.’’ speed or reliability, and there is little Title I. Chairman Kennard first led the

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FCC in determining that Internet access II Order apparently accepted these 3. Public Policy Supports Classification service is an information service in the parallels. We thus seek comment on any as an Information Service Stevens Report. Chairman Powell led evidence that the court in the MFJ 27. The Commission’s decision to the Commission to classify broadband thought that Internet access service was reclassify broadband Internet access Internet access service over cable a telecommunications service. Did the service as a telecommunications service systems as an information service in the court and the Department of Justice subject to Title II regulation has resulted Cable Modem Order. Chairman Martin intend to exclude Internet access in negative consequences for American led the Commission to classify several services from the prohibitions on what consumers—including depressed broadband Internet access services as Bell Operating Companies could offer? broadband investment and reduced information services in the Wireline Did the court and the Department of innovation because of increased Broadband Classification Order, the Justice intend for Internet access regulatory burdens and regulatory BPL-Enabled Broadband Order, and the services to be regulated via tariff (as uncertainty stemming from the rules Wireless Broadband Internet Access adopted under Title II. As providers Order. Finally, Chairman Genachowski other telecommunications services were)? We similarly seek comment on have devoted more resources to declined to reclassify broadband complying with new regulations, the Internet access services in the Open any evidence that the Commission in threat of regulatory enforcement of Internet Order. the Computer Inquiries thought that vague rules and standards has 22. We believe the Commission under Internet access service was a basic Democratic and Republican leadership service. Did the Commission intend for dampened providers’ incentive to invest alike was correct in these decisions to facilities-based carriers to offer Internet and innovate. Additionally, although reclassifying broadband Internet access classify broadband Internet access access service without the protections of service as a telecommunications service service as an information service and the Computer Inquiries (as they could has led to significant regulatory that, 20 years after the passage of the for basic services)? The Supreme Court Telecommunications Act, we should be burdens, it has not solved any discrete, has said that statutory interpretation identifiable problems. Restoring reluctant to second-guess the ‘‘must be guided to a degree by common interpretations of those more likely to broadband Internet access service to its sense as to the manner in which previous status as an information understand the contemporary meaning Congress is likely to delegate a policy of the terms of the Telecommunications service subject to Title I is in the public decision of such economic and political interest because it will alleviate the Act. We seek comment on our magnitude to an administrative agency.’’ assessment. Did the Commission’s harms caused by Title II reclassification. How is that canon relevant here? historical information service We seek detailed comment on this classification better enable flexibility in 25. Finally, the Title II Order deviated analysis below. marketplace offerings? Did the further from Commission precedent to 28. Following the 2014 Notice and in regulatory certainty of maintaining the extend its authority to Internet traffic the lead up to the Title II Order, Internet same regulatory environment for exchange or ‘‘interconnection,’’ an area service providers stated that the approximately three decades (since the historically unregulated and beyond the increased regulatory burdens of Title II Computer Inquiries) foster additional Commission’s reach. We believe classification would lead to depressed investment. Recent data indicate how investment or innovative business Internet traffic exchange, premised on accurate those predictions were. A models to benefit consumers? How privately negotiated agreements or case- recent study indicates that capital should we evaluate the prior by-case basis, is not a Commissions’ predictions of intermodal expenditure from the nation’s twelve telecommunications service. Moreover, largest Internet service providers has competition given the 4,559 Internet we find nothing in the Act that would service providers now in the market? fallen by $3.6 billion, a 5.6% decline extend our jurisdiction as previously relative to 2014 levels. Another study How many providers would likely have suggested by the Title II Order. We entered the market if traditional Title II indicated that between 2011 and 2015, further do not believe there exists any regulation had been the norm? What the threat of reclassification reduced non-Title II basis for the Commission to actual harms, if any, resulted from light- telecommunications investment by touch regulation? exercise ongoing regulatory oversight about 20–30%, or about $30–40 billion 23. The Commission has previously over Internet traffic exchange. We annually. Other sources also explain concluded that Congress formally accordingly propose to relinquish any that other countries’ experiences should codified information services and authority over Internet traffic exchange. caution the United States that ongoing telecommunications services as two, We seek comment on the consequences utility-style regulation should be mutually exclusive types of service in and implications of relinquishing the expected to have even more dramatic the Telecommunications Act. The Title Commission’s regulatory authority in impacts on investment beyond what has II Order did not appear to disagree with this manner. already occurred. Other interested this analysis, finding that broadband 26. We note that the Commission’s parties have come to different conclusions. (Free Press, Internet Internet access service was a Title II Order also went well beyond telecommunications service and not an Service Providers’ Capital Expenditures agency precedent in important ways. information service. We believe this (Feb. 28, 2017), (noting a decrease in For instance, the Commission did not conclusion regarding mutual exclusivity investment from 2015 to 2016, but limit its analysis to the ‘‘last mile’’ is correct based on the text and history claiming an increase in investment in of the Act. We seek comment on this connections at issue in the Brand X and the 2-year period of 2015–16 compared analysis. the FCC’s underlying proceeding in that to 2013–14). We observe, however, that 24. The Commission has previously case. Rather, the Commission’s Title II these figures showing increased found that Congress intended the Order defined Internet access service as investment do not incorporate the definitions of information service and extending far deeper into the network. generally accepted accounting practice telecommunications service in the Act We seek comment on the significance of of maintaining consistency over time, as to parallel those definitions in the MFJ this expansive departure from agency they include AT&T’s foreign capital and in the Computer Inquiries. The Title precedent. expenditures in Mexico as well as

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expenditures related to DirectTV, and depressed investment from outside isolated examples justify the regulatory do not adjust for Sprint’s changed investors. This depressed investment shift that Title II reclassification accounting treatment of leased handset has had particularly strong impacts on entailed? Do such isolated examples devices from an operating expense to a the deployment of broadband to constitute market failure sufficient to capital expense.). previously unserved and rural areas. warrant pre-emptive, industry-wide 29. We believe that these reduced What other impacts have small regulation? Were pre-existing federal expenditures are a direct and providers felt as a result of and state competition and consumer unavoidable result of Title II reclassification? Have there been any protection regimes, in addition to reclassification, and exercise our corresponding benefits for small private sector initiatives, insufficient to predictive judgment that reversing the providers? address such isolated examples, and if Title II classification and restoring 31. In addition to imposing significant so, why? What are the costs and benefits broadband Internet access service to a regulatory costs on Internet service of pre-emptive, industry-wide Title I service will increase investment. providers, Title II reclassification regulation in such circumstances? In Among other things, Internet service created significant regulatory particular, does that approach deter providers have finite resources, and uncertainty. USTelecom specifically competition and competitive entry, and requiring providers to divert some of identified ‘‘regulatory uncertainty’’ as does it have unintended consequences those resources to newly imposed one of the causes of reduced investment. with respect to infrastructure regulatory requirements adopted under Regulatory uncertainty may have investment? Do those unintended Title II will, unsurprisingly, reduce particularly significant effects on small consequences outweigh any purported expenditures that benefit consumers. Internet service providers, which may benefits in addressing such isolated We seek comment on how the burdens be poorly equipped to address the legal, cases pre-emptively? Is there evidence associated with Title II regulation have technical, and financial burdens of actual harm to consumers sufficient impacted broadband investment and, as associated with an uncertain regulatory to support maintaining the Title II a result, consumers. Has the environment. That uncertainty has telecommunications service Commission’s increased regulation of directly led to reduced investment, classification for broadband Internet broadband adversely impacted which has harmed consumers. We seek access service? Is there any evidence broadband investment and innovation? comment on what other effects that the likelihood of these events What impact has Title II reclassification regulatory uncertainty has had on occurring decreased with the shift to had on providers’ business models, broadband Internet access service Title II? including any lost opportunity costs, providers’ investment decisions. 34. Conversely, what, if any, changes and how has this impact been passed on 32. We also seek comment on other have been made as a result of Title II to consumers? Is there any evidence that consumer benefits that would result reclassification that have had a positive increased regulation has promoted from restoring broadband Internet impact on consumers? Was Title II broadband investment, as some claim? access service classification to an reclassification necessary for any of What are the long-term implications of information service, rather than those changes to occur? Is there any utility-style regulation with respect to subjecting these services to utility-style evidence, for example, that consumers’ capital expenditures on high-speed regulation. We note that increased online experiences and Internet access networks? investment is likely to lead to a faster have improved due to policies adopted 30. We also seek specific comment on closing of the digital divide for rural and in the Title II Order? how the classification of broadband low-income consumers, higher speeds Internet access service as a and more competition for all consumers, 4. The Commission Has Legal Authority telecommunications service has as well as more affordable prices. We To Classify Broadband Internet Access impacted smaller broadband Internet seek comment on the magnitude of Service as an Information Service access service providers, many of whom these effects, and what further steps the 35. As the D.C. Circuit has held, ‘‘[i]t lack the dedicated compliance staffs and Commission should take to maximize is axiomatic that administrative financial resources of the nation’s facilities-based investment and agencies may issue regulations only largest providers. Before the competition. Specifically, we seek pursuant to authority delegated to them Commission adopted the Title II Order, comment on the trade-offs from by Congress.’’ And that authority is not many small providers made it clear that changing the classification status. We unbounded. The Commission has reclassification would harm their also seek comment more broadly on the authority, as the Supreme Court businesses and the customers they effects on innovation of regulatory recognized in Brand X, to interpret the serve. Since reclassification, small uncertainty, and other examples of Communications Act, including providers—including non-profit, reduced innovation from Internet ambiguous definitional provisions. municipal ISPs—have been forced to service providers as a result of the Title However, when interpreting a statute it reduce their investment and halt the II classification. administers, the Commission, like all expansion of their networks, and slow, 33. We also seek comment on specific agencies, ‘‘must operate ‘within the if not delay, the development and ways in which consumers were harmed bounds of reasonable interpretation.’ deployment of innovative new offerings. under the light-touch regulatory And reasonable statutory interpretation For example, one small ISP had planned framework that existed before the must account for both ‘the specific to ‘‘triple the number of new base Commission’s Title II Order. Much of context in which . . . language is used’ stations’’ that would be deployed each the Title II Order focused extensively on and ‘the broader context of the statute month to provide fixed wireless hypothetical actions Internet service as a whole.’ ’’ broadband service to new customers, providers ‘‘might’’ take, and how those 36. An agency also is free to change but put those plans on hold as a result actions ‘‘might’’ harm consumers, but its approach to interpreting and of the Commission’s reclassification. the Title II Order only articulated four implementing a statute so long as it Other small providers have had to examples of actions Internet service acknowledges that it is doing so and modify or abandon altogether past providers arguably took to justify its justifies the new approach. Evaluating business models to account for adoption of the Internet conduct the change in regulatory approach in the increased compliance costs and standard under Title II. Do these Title II Order, the D.C. Circuit majority

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in USTelecom applied a ‘‘highly and purpose of the Act; highlighting the ‘‘public switched network,’’ appears to deferential standard’’ to the agency’s limited ways in which USTelecom better accord with the text of section predictive judgments regarding the challenged the Title II Order for failing 332(d)(2) by clearly covering only a investment effects of reclassification, to demonstrate that the NARUC test for single, integrated network, and was not and deferred to the Commission’s common carriage was met; rejecting disturbed by Congress in amendments ‘‘‘evaluat[ion of] complex market arguments that the statute completely to section 332 of the Act. We seek conditions’’’ underlying its rejection of precludes the Commission from comment on this analysis and our providers’ reliance interests in the prior defining ‘‘public switched network’’ proposed approach. classification. D.C. Circuit precedent more broadly than the public switched 40. We also propose to return to our also recognizes, however, that should telephone network; rejecting arguments prior definition of ‘‘interconnected the Commission’s predictions ‘‘prove that the statute necessarily compels the service’’ by restoring the word ‘‘all’’ in erroneous, the Commission will need to Commission to distinguish between the codified definition. Although the reconsider’’ the associated regulatory ‘‘mobile broadband alone enabling a court in USTelecom found the deletion actions ‘‘in accordance with its connection’’ and ‘‘mobile broadband of ‘‘all’’ to be ‘‘of no consequence’’ to continuing obligation to practice enabling a connection through use of the reclassification of mobile broadband reasoned decision-making.’’ We believe adjunct applications such as VoIP’’). Internet access service, it did so based that the Commission’s predictions and Thus, although we are in any case free on an argument that the Commission expectations regarding broadband to revisit previously affirmed never mentioned in its brief—namely, investment and the nature and effects of interpretations of ambiguous statutory that mobile broadband users can reach reclassification on the operation of the language, we note that the USTelecom telephone customers ‘‘via VoIP’’ and marketplace were mistaken and have decision did not reach many aspects of that this determination is sufficient not been borne out by subsequent the statutory analysis we propose here. (regardless of the deletion of the word events. Moreover, we believe that a We seek comment on this analysis and ‘‘all’’) to render mobile broadband restoration of the information service on our reasoning that the statutory Internet access service interconnected classification for broadband Internet interpretation proposed in this NPRM with the public switched network. We access service is likely to increase more faithfully adheres to the Act and seek comment on that view and whether reflects the better reading of the relevant infrastructure investment. In such a the Commission erred in 2015 by provisions than the views adopted in case, principles of administrative law modifying the definition based on the the Title II Order. give us more than ample latitude to view that two separate networks can be revisit our approach. We seek comment B. Reinstating the Private Mobile Service interconnected if they do not allow all on this overall approach, and we seek Classification of Mobile Broadband users to communicate with each other. comment on these specific issues in the Internet Access Service (Had all the elements of the Title II sections below. 38. We propose to classify all Order’s mobile broadband Internet 37. Even more fundamentally, we broadband Internet access services— access service classification remained, a believe that the Commission’s statutory both fixed and mobile—as information future Commission might have interpretation in the Title II Order did services. With respect to mobile incentives to continue pursuing such an not adequately reflect proper standards broadband Internet access service, we approach to avoid the potentially absurd of statutory construction, and that further propose to return it to its result that traditional wireless voice classifying broadband Internet access original classification as a private service no longer constituted service as an information service is the mobile service, and in conjunction to commercial mobile service. While not better reading of the statute, revisit the elements of the Title II Order finding it a sufficient basis to reject the independent of the factual that modified or reinterpreted key terms Title II Order’s treatment of mobile developments subsequent to the Title II in section 332 of the Act and our broadband Internet access service, the Order. We note that the Supreme Court implementing rules. We seek comment D.C. Circuit acknowledged the has expressly upheld the Commission’s on that proposal, including on the possibility that the revised definition of prior information service classification. specific issues discussed below. We also public switched network raised We seek comment on this analysis. generally seek comment on whether questions about whether traditional Although the Title II Order’s certain and, if so, which, aspects of the wireless voice service was sufficiently telecommunications service D.C. Circuit’s analysis of mobile interconnected with the public switched classification was upheld in broadband Internet access service in network to still constitute a commercial USTelecom, the court emphasized that USTelecom necessitate modifications or mobile service.) The FCC’s prior it ‘‘sit[s] to resolve only legal questions additions to the Commission’s proposals decision in this respect appears to run presented and argued by the parties,’’’ with respect to mobile broadband contrary to the focus on a single, and not ‘‘‘arguments a party could have Internet access service here. We also integrated network that we believe made but did not.’’ Many arguments as seek comment on the scope of the Congress likely intended in section to why an information service authority delegated by sections 332(d)(2). We seek comment on these classification of broadband Internet 332(d)(1) through (3) to the Commission views. In the Title II Order, the access service reflects the better reading to define or specify the terms used in Commission noted that the prior of ambiguous provisions of the Act were section 332 and discussed below. definition of ‘‘interconnected service’’ not addressed by the court because the 39. We propose to restore the meaning would encompass a service that arguments were raised in support of a of ‘‘public switched network’’ under ‘‘provides general access to points on claim that the Act unambiguously section 332(d)(2) to its pre-Title II Order the PSN [but] also restricts calling in required a particular service focus on the traditional public switched certain limited ways’’ (such as blocking classification. (Or, in other cases they telephone network. We find persuasive of 900 numbers), but cited no evidence were not addressed at all. rejecting the Commission’s reasoning when that the prior definition led to any arguments that information service originally adopting the prior definition, confusion. We question the need for classification was unambiguously which also appears more consistent changes to the prior definition to required based on the text, structure, with the historical usage of the term account for that limited exception to

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general access, but nonetheless seek public,’’ would eviscerate the statutory 48. We also seek comment on the comment on whether modified rule scheme. We believe that the standard for effect of reinstating an information language is warranted, and if so, what demonstrating functional equivalency service classification on providers that language targeted narrowly to that issue under our rules is instead more likely to voluntarily offered broadband should be incorporated. properly implement section 332(d)(3) of transmission on a common carrier basis 41. We also seek comment on whether the Act, and we thus propose to under the Wireline Broadband any other interpretations of section 332 reconsider the Title II Order’s position Classification Order framework. The or our implementing rules from the Title that the Commission is free to depart Title II Order allowed such providers to II Order should be revisited here in from that standard. In addition, the Title opt-in to the Title II Order’s forbearance connection with our proposed II Order made no claim that the framework. Should providers classification of mobile broadband functional equivalency standard in our voluntarily electing to offer broadband Internet access service. For example, rules was met by mobile broadband transmission on a common carrier basis would a narrower interpretation of Internet access service, and we similarly be able to do so under the Title II ‘‘capability’’ for purposes of the propose here that it does not meet that Order’s forbearance framework if we definition of ‘‘interconnected service’’ standard. We seek comment on these reclassify broadband Internet access under our rules be warranted based on proposals and on any other or different service as an information service? If not, the Act or the regulatory history of that definition of ‘‘functional equivalent’’ what transition mechanisms are language? Are there other that the FCC should adopt. required for such providers that opted- interpretations that should be 45. Given the apparent historical in to the Title II Order’s forbearance reconsidered? In addition to the changes success of the wireless marketplace framework to enable them to revert back to the definitions in section 20.3 of the prior to the Title II Order, we anticipate to the Wireline Broadband Classification rules discussed above, would any that returning mobile broadband Order framework? Should we extend additional changes to our codified rules Internet access service to its original forbearance to any other rules or be warranted? classification of a private mobile service statutory provisions for carriers that 42. In applying the definitions and and restoring prior definitions and choose to offer broadband transmission interpretations of key terms in section interpretations of key concepts in on a common carrier basis? 332 and our implementing rules under section 332 is likely to substantially the proposals above, we also propose to 49. Section 222 Regulations. benefit the wireless marketplace and reach the same conclusions regarding Historically, the Federal Trade consumers and have few, if any, policy the application of those terms to mobile Commission (FTC) protected the privacy disadvantages. We seek comment on broadband Internet access service as we of broadband consumers, policing every this view. To the extent any commenters did in the Wireless Broadband Internet online company’s privacy practices Access Order. We seek comment on that believe that these proposals will have consistently and initiating numerous proposal and whether there have been negative policy consequences, we seek enforcement actions. When the any material changes in technology, the specific information regarding the scope Commission reclassified broadband marketplace, or other facts that would or significance of any such Internet access service as a common warrant refinement or revision of any of consequences and whether they can be carriage telecommunications service in that analysis. mitigated in whole or in part through 2015, however, that action stripped FTC 43. Furthermore, insofar as mobile modifications to our proposals. authority over Internet service providers broadband Internet access service is best C. Effects on Regulatory Structures because the FTC is prohibited from interpreted to be an information service, Created by the Title II Order regulating common carriers. (One Ninth we believe that likely also would Circuit case held that the common counsel in favor of classifying it as a 46. The Title II Order imposed carrier exemption precluded FTC private mobile service to avoid the additional regulatory frameworks under oversight of ISPs that otherwise were inconsistency of the service being both Title II, including forbearance and common carriers with respect to non an information service and a common privacy. We seek comment on how we ISP services. As the FCC recently carrier service. The Commission should treat those structures and explained in that case, the panel explained this reasoning when proceedings moving forward. decision erred by overlooking the originally classifying mobile broadband 47. Forbearance. If we adopt our lead textual relationship between the statutes Internet access service as both an proposal to remove the Title II governing the FTC’s and FCC’s information service and a private mobile reclassification of broadband Internet jurisdiction. The FCC’s letter called on service, and we propose to apply that access service, what effect does that the Ninth Circuit to grant rehearing, same reasoning again here. We seek action have on the provisions of the Act which it recently did, and in doing so comment on this proposal. from which the Commission forbore in it set aside the earlier and erroneous 44. We also believe that mobile the Title II Order? We believe that panel opinion. The recent en banc order broadband Internet access service is not restoring the classification status of by the Ninth Circuit means that the Title the ‘‘functional equivalent’’ of broadband Internet access service to an II Order’s reclassification of broadband commercial mobile service, and seek information service will render any Internet access service serves as the only comment on that view. The Commission additional forbearance moot in most limit on the authority of the FTC to previously has observed, in light of cases. We seek comment on this oversee the conduct of Internet service Congress’s determinations in section analysis. At the same time, we seek providers). To address the gap created 332, that ‘‘very few mobile services that comment on whether, with respect to by the Commission’s reclassification of do not meet the definition of CMRS will broadband Internet access service, the broadband Internet access service as a be a close substitute for a commercial Commission should maintain and common carriage service, the Title II mobile radio service.’’ By contrast, we extend forbearance to even more Order called for a new rulemaking to are concerned that the Title II Order’s provisions of Title II as a way of further apply section 222’s customer test, which focuses on whether the ensuring that our decision in this proprietary network information service merely ‘‘enables ubiquitous proceeding will prove to reduce provisions to Internet service providers. access to the vast majority of the regulatory burdens. In October 2016, the Commission

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adopted rules governing Internet service III. A Light-Touch Regulatory practice that it believes violates any one providers’ privacy practices and applied Framework of the non-exhaustive list of factors the rules it adopted to other providers 53. Proposing to restore broadband adopted in the Title II Order. 56. We propose eliminating this of telecommunications services. In Internet access service to its long- Internet conduct standard and the non- March 2017, Congress voted under the established classification as an exhaustive list of factors intended to Congressional Review Act (CRA) to information service reflects our guide application of the rule, and we disapprove the Commission’s 2016 commitment to a free and open Internet. Privacy Order, which prevents us from seek comment on this proposal. What Indeed, our lead proposal reaffirms the are the costs of the present Internet adopting rules in substantially the same long-standing, bipartisan consensus form. conduct standard and implementing begun in the Clinton Administration by factors? Do the standard and its 50. We propose to respect the restoring the Internet to the dynamic implementing factors provide carriers jurisdictional lines drawn by Congress state that allowed it to flourish prior to with adequate notice of what they are whereby the FTC oversees Internet the Title II Order. To determine how to and are not allowed to do? Does the service providers’ privacy practices, best honor our commitment to restoring standard benefit consumers in any way given its decades of experience and the free and open Internet, we propose and, if so, how? We believe that expertise in this area. We seek comment re-evaluating the Commission’s existing eliminating the Internet conduct on this proposal. rules and enforcement regime to analyze standard will promote network whether ex ante regulatory intervention investment and service-related 51. Lifeline. We propose to maintain in the market is necessary. To the extent support for broadband in the Lifeline innovation by eliminating the we decide to retain any of the uncertainty caused by vague and program after reclassification. In the Commission’s ex ante regulations, we Universal Service Transformation undefined regulation. Do commenters seek comment on whether, and how, we agree? Order, the Commission recognized that should modify them, specifically ‘‘[s]ection 254 grants the Commission 57. Because the Internet conduct considering different approaches such standard is premised on theoretical the authority to support not only voice as self-governance or ex post problems that will be adjudicated on an telephony service but also the facilities enforcement that may effectuate our individual, case-by-case basis, Internet over which it is offered’’ and ‘‘allows us goals better than across-the-board rules. service providers must guess at what to . . . require carriers receiving federal Finally, we discuss the Commission’s they are permitted and not permitted to universal service support to invest in legal authority to adopt rules governing do. The now-retracted so-called Zero modern broadband-capable networks.’’ Internet service provider practices. Rating Report issued by the Wireless Accordingly, as the Commission did in Telecommunications Bureau illustrates the Universal Service Transformation A. Re-Evaluating the Existing Rules and Enforcement Regime the dilemma providers experience Order, we propose requiring Lifeline under a Title II regulatory regime. After carriers to use Lifeline support ‘‘for the 54. Below, we explore the best a thirteen-month investigation, the provision, maintenance, and upgrading’’ method to restore the long-standing Report did not specifically call for an of broadband services and facilities consensus under both Democratic and end to any provider’s practices or capable of providing supported services. Republican-led Commissions, identify any particular harm from We seek comment on this proposal. We represented by the four Internet offering consumers free data. Instead, it also seek comment on any rule changes Freedoms, that consumers should have stated that the free-data plans ‘‘may necessary to effectuate this change in access to the content, applications, and raise’’ economic and public policy our underlying authority to support devices of their choosing as well as issues that ‘‘may harm consumers and broadband for low-income individuals meaningful information about their competition.’’ It then reiterated that any and families. service, all without deterring the determination about the harm from free investment and innovation that has 52. Other. Beyond the issues raised data offerings would be made by the allowed the Internet to flourish. We above, we seek comment on the impact Commission on a ‘‘case-by-case’’ basis, examine these freedoms and the of reclassification on other Commission using a ‘‘non-exhaustive list of factors.’’ Commission’s current rules related to proceedings and proposals. For Instead of giving providers clear rules of them, and for each, ask whether we the road to govern future conduct, this instance, how should we take into should keep, modify, or eliminate them. report put a provider on notice that an account our proposed reclassification in enforcement action could be just around our proposals with respect to pole 1. Eliminating the Internet Conduct the corner. The Report, and the Standard attachments and our inquiries with investigation that preceded it, left respect to preemption under section 253 55. In the Title II Order, the Internet service providers with two of the Act? How should the Broadband Commission created a catch-all standard options: Either wait for a regulatory Deployment Advisory Committee factor intended to prohibit ‘‘current or future enforcement action that could arrive at in the reduced regulatory burdens and practices that cause the type of harms some unspecified future point or stop increased investment that we anticipate [the Commission’s] rules are intended to providing consumers with innovative will flow from reclassification? More address.’’ This standard allows the offerings. We seek comment on whether generally, if broadband Internet access Commission to prohibit practices that it this roving mandate has impacted service is classified as an interstate determines unreasonably interfere with innovation, and what impact that has information service, how would that or unreasonably disadvantage the ability had on consumers. We seek comment impact jurisdiction? We encourage of consumers to reach the Internet on whether eliminating this vague commenters to offer specific content, services, and applications of standard will spur innovation and recommendations as to how we can their choosing or of online content, benefit consumers. leverage our proposed reclassification in applications, and service providers to 58. We propose not to adopt any other proceedings to further encourage access consumers. This standard also alternatives to the Internet conduct rule, broadband deployment to all gives the Commission discretion to and we seek comment on this proposal. Americans. prohibit any Internet service provider Is there a need for any general non-

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discrimination standard in today’s on whether rules are necessary for or The no-blocking rule, originally adopted Internet marketplace? If so, what would burdensome on smaller providers. in 2010, invalidated by the Verizon that general non-discrimination 61. The Commission partially justified court, and re-adopted in the Title II standard be? The 2014 Notice proposed the 2015 rules on the theory that the Order, prohibits Internet service prohibiting ‘‘commercially unreasonable rules would prevent anti-competitive providers from blocking competitors’ practices.’’ Should we consider that behavior by ISPs seeking to advantage content by mandating that a customer alternative? Or should we consider affiliated content. With the existence of has a right to access lawful content, another general rule and framework antitrust regulations aimed at curbing applications, services, and to use non- (such as Commission adjudication of various forms of anticompetitive harmful devices, subject to reasonable non-discrimination complaints)? If we conduct, such as collusion and vertical network management. adopt our proposals to eliminate the restraints under certain circumstances, 65. If we determine that a no-blocking Internet conduct standard and not to we seek comment on whether these rule is indeed necessary to ensure a free, adopt any alternative general rules are necessary in light of these open, and dynamic Internet, what are requirement, we seek comment on how other regulatory regimes. Could the the best means to achieve this outcome we can encourage innovative business continued existence of these rules consistent with the goals of maintaining models that give consumers more negatively impact future innovative, Internet freedom and maximizing choices and lower prices while also pro-competitive business deals that investment? Should we consider promoting consumer freedom on the would not by themselves run afoul of modifying the existing no-blocking rule Internet. merger conditions or established to better align with our proposed legal antitrust law? classification of broadband Internet 2. Determining the Need for the Bright 62. In addition, the D.C. Circuit access service as an information service? Line Rules and the Transparency Rule majority that reviewed the Title II Order The Verizon court made clear that the 59. In the Title II Order, despite stated that ‘‘[i]f a broadband provider Commission’s 2010 no-blocking rule virtually no quantifiable evidence of . . . were to choose to exercise editorial impermissibly subjected Internet service consumer harm, the Commission discretion—for instance, by picking a providers to common-carriage nevertheless determined that it needed limited set of Web sites to carry and regulation. We seek comment on bright line rules banning three specific offering that service as a curated whether there are other formulations of practices by providers of both fixed and internet experience,’’ then the Title II a no-blocking rule that are consistent mobile broadband Internet access Order ‘‘excludes such [a] provider[ ] with our proposed legal classification of service: Blocking, throttling, and paid from the rules.’’ Given that an ISP can broadband Internet access service as an prioritization. The Commission also avoid Title II classification simply by information service and for which we ‘‘enhanced’’ the transparency rule by blocking enough content, are the would have legal authority. adopting additional disclosure purported benefits of the existing rules 66. Need for the No-Throttling Rule. requirements. Today, we revisit these more illusory than they initially appear? In the Title II Order, the Commission determinations and seek comment on By disclosing to consumers that it is concluded that throttling was a whether we should keep, modify, or offering a ‘‘curated internet experience,’’ sufficiently severe and distinct threat eliminate the bright line and can an ISP escape from the ambit of the that it required its own, separate, transparency rules. rules entirely? We seek comment on the codified rule. The no-throttling rule 60. At the outset of our review of the implications of the D.C. Circuit’s mirrors the no-blocking rule and bans Commission’s existing rules, we seek observation. the impairment or degradation of lawful comment on whether ex ante regulatory 63. Need for the No-Blocking Rule. Internet traffic or use of a non-harmful intervention in the market is necessary We emphasize that we oppose blocking device, subject to reasonable network in the broadband context. Beyond the lawful material. The Commission has management practices. We seek few, scattered anecdotes cited by the repeatedly found the need for a no- comment on whether this rule is still Title II Order, have there been blocking rule on principle, asserting that necessary, particularly for smaller additional, concrete incidents that ‘‘the freedom to send and receive lawful providers. How does the rule benefit threaten the four Internet Freedoms content and to use and provide consumers, and what are its costs? sufficient to warrant adopting across- applications and services without fear of When is ‘‘throttling’’ harmful to the-board rules? Is there any evidence of blocking is essential to the Internet’s consumers? Does the no-throttling rule market failure, or is there likely to be, openness.’’ We merely seek comment on prevent providers from offering sufficient to warrant pre-emptive, the appropriate means to achieve this broadband Internet access service with comprehensive regulation? How have outcome consistent with the goals of differentiated prioritization that benefits marketplace developments impacted the maintaining Internet freedom, consumers? Does the no-throttling rule incentive and ability, if any, of maximizing investment, and respecting harm latency-sensitive applications and broadband Internet access service the rule of law. We seek comment on content? Does it prevent product providers to engage in conduct that is whether a codified no-blocking rule is differentiation among ISPs? If we contrary to the four Internet Freedoms? needed to protect such freedoms. For eliminate the no-blocking rule, should Must we find that market power exists example, prior to 2015, many large we also eliminate the no-throttling rule? to retain rules in this space, and if so Internet service providers voluntarily If we determine that a no-throttling rule must the rules only apply to providers abided by the 2010 no-blocking rule in is indeed necessary to ensure a free, that have market power? Further, the absence of a regulatory obligation to open, and dynamic Internet, are there should any approach we adopt— do so. Do we have reason to think ways in which we could modify the no- whether ex ante rules, expectations providers would behave differently throttling rule so it aligns with our regarding industry self-governance, or today if the Commission were to proposed legal classification of ex post enforcement practices—vary eliminate the no-blocking rule? Is the broadband Internet access service as an based on the size, financial resources, no-blocking rule necessary for or information service and for which we customer base of the broadband Internet burdensome on smaller providers? would have legal authority? access service provider, and/or other 64. We seek comment on the 67. The Commission justified the factors? Specifically, we seek comment continuing need for a no-blocking rule. separate, codified no-throttling rule on

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the theory of preventing anti- are the varying service characteristics of Verizon court upheld the 2010 competitive behavior for broadband these options and their varying costs? It transparency rule, we seek comment on Internet access providers’ affiliated appears that some larger online content our authority to retain the 2015 content. With the existence of antitrust providers like Netflix host their own ‘‘enhancements’’ or to modify the and other regulations aimed at curbing data centers and interconnect directly transparency rule in a manner distinct collusion, we seek comment on whether with Internet service providers. Is that from the Open Internet Order or Title II a no-throttling rule is duplicative of still true? What are the service Order. For example, does the full and these other regulatory regimes. Could characteristics and costs of this option? accurate disclosure of service plan the continued existence of this rule How should the existence of these information to consumers carry with it negatively impact future innovative, arrangement impact our evaluation of most of the benefits of the rule? How pro-competitive business deals that whether Internet service providers often do non-consumers rely on the would not by themselves run afoul of should be able to offer an alternative additional disclosures required by the merger conditions or established delivery option such paid prioritization? transparency rule? Are those additional antitrust law? 71. For those parties that believe an ex benefits worth the additional cost of 68. Need for the No Paid Prioritization ante flat ban on paid prioritization is compliance, especially for small Rule. The Commission concluded in the necessary, are there other formulations businesses? Title II Order that ‘‘fast lanes’’ or ‘‘paid of a no-paid-prioritization rule that are 74. Assuming we find a transparency prioritization’’ practices ‘‘harm consistent with our proposed legal rule necessary, how should we treat the consumers, competition, and classification of broadband Internet additional guidance related to the innovation, as well as create access service as an information service transparency rule? For example, should disincentives to promote broadband and for which we would have legal we continue to enforce guidance from deployment.’’ The Commission adopted authority? Are there any other the Commission’s Chief Technology this ex ante flat ban on individual formulations that are consistent with Officer regarding acceptable negotiations to address an apparently allowing pro-competitive or pro- methodologies for disclosure of network nonexistent problem. The ban on paid consumer paid prioritization performance to satisfy the enhanced prioritization did not exist prior to the arrangements? Would we need to transparency rule? Is there merit in Title II Order and even then the record modify the rule and, if so, how? continuing to promote the broadband evidence confirmed that no such rule 72. Need for the Transparency Rule. consumer labels that provided ISPs with was needed since several large Internet We seek comment on whether to keep, a safe harbor—or do those standardized service providers made it clear that that modify, or eliminate the transparency notices harm consumers by preventing they did not engage in paid rule. When the Commission adopted the them from obtaining additional prioritization and had no plans to do so. transparency rule in 2010 and enhanced information? Does the repeated need for We seek comment on the continued it in 2015, it found that ‘‘effective advisory guidance following the original need for such a rule and our authority disclosure of Internet service providers’ 2010 transparency rule indicate that the to retain it. network management practices, rule itself is too open-ended? 69. What are the trade-offs in banning performance, and commercial terms of business models dependent on paid service promotes competition, 3. Additional Considerations Applicable prioritization versus allowing them to innovation, investment, end-user to Existing Rules occur when overseen by a regulator or choice, and broadband adoption.’’ We 75. Should we decide to keep or industry actors? Is there a risk that continue to support these objectives and modify any of our existing open Internet banning paid prioritization suppresses seek comment on whether the existing rules, we propose and seek comment on pro-competitive activity? For example, transparency rule is the best way to several issues related to their continued could allowing paid prioritization give accomplish them, or if there are other operation. Internet service providers a methods we can employ to achieve the 76. Scope. Should we keep any of the supplemental revenue stream that goals of competition, innovation, existing bright-line rules or the would enable them to offer lower-priced investment, end-user choice, and transparency rule, we propose broadband Internet access service to broadband adoption. maintaining the definitions of the end-users? What would be the impacts 73. Although we agree that the services applicable to the rules, the on new startups and innovation? Does a disclosure requirements were among scope of the term ‘‘lawful content,’’ the no-paid-prioritization rule harm the some of the least intrusive regulatory exception for reasonable network development of real-time or interactive measures imposed by the Title II Order, management, and other provisions services? Could allowing paid we seek comment on whether the adopted in the Title II Order so as not prioritization enable certain critical additional reporting obligations from to impact ISPs rights or obligations with information, such as consumers’ health that rule remains necessary in today’s respect to other laws or safety and care vital signs that are being monitored competitive broadband marketplace. security considerations. Reasonable remotely, to be transmitted more What are the benefits and drawbacks of network management ‘‘allow[s] service efficiently or reliably? What other those additional reporting obligations? providers the freedom to address considerations mitigate any potential Is the length of time necessary to obtain legitimate needs such as avoiding negative impacts from business models approval of these rules, first adopted in network congestion and combating like paid prioritization? Should the February 2015 and yet not going into harmful or illegal content’’ without Commission impose restrictions on effect until nearly two years later, running afoul of the rules. With respect these business models at all? illustrative of just how burdensome the to the definition of ‘‘reasonable network 70. We seek comment on current new enhancements are in comparison to management,’’ we seek comment on traffic delivery arrangements online. the 2010 rule? Would the original whether we should eliminate the How do content, application, and transparency rule, which has been restriction imposed by the Title II Order service providers host their data online? continuously operational since it came that the exception will only be Do they rely on installing their own into effect following adoption of the considered if used for a ‘‘technical servers in data centers, content delivery Open Internet Order, be sufficient to management justification rather than networks, or cloud-based hosting? What protect consumers? Although the other business justifications,’’ or if we

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should return to the 2010 definition of 4. Enforcement Regime an information service, should that alter ‘‘reasonable network management’’ that 79. Should we keep or modify any of our complaint and enforcement process did not contain that qualifier. the Commission’s existing rules in this context? If so, in what way 77. For the reasonable network discussed above, we seek comment on should the processes be altered? Are there methods other than formal management exception and definition of how we should enforce them. In the complaints we can employ to ensure a non-broadband Internet access service Open Internet Order the Commission set forth procedures for filing both informal free and open Internet? data services that fall outside the scope 82. In addition to the enforcement and formal complaints. Commission of the rules, we seek comment on how regime, the Title II Order delegated rules currently provide for filing fees in we should view any additional guidance authority to several Bureaus and Offices the case of complaints to enforce Part 8 explaining those terms as set forth in the to make further decisions involving the rules governing broadband Internet Title II Order, but not codified as part rules following their adoption. For access service and in the case of data of the rules. Should we follow the case- example, the Title II Order delegated roaming complaints. Would those rules by-case approach taken for evaluating authority to the Chief Technologist to need to be modified in the event that we reasonable network management? For provide guidance under the non-broadband Internet access service reclassify broadband Internet access transparency rule and further delegated data services, should we adhere to the service? Could some rules subject to authority to several Bureaus to those complaint procedures remain? Are characteristics of non-broadband determine whether the safe harbor there other similar issues the Internet access service data services disclosures under the transparency rule Commission would need to address? described in the Title II Order? Or, aligned with the Commission’s The Title II Order also allowed the should we revert to the general concept expectations. If we determine there is no Enforcement Bureau to issue advisory of non-broadband Internet access need for the existing transparency rule opinions and enforcement advisories, or enforcement regime, then we believe service data services discussed in the and it created an ombudsperson Open Internet Order (and then known as that the technological and safe harbor position to provide effective access to guidance would become irrelevant. We ‘‘specialized services’’)? Further, for dispute resolution. We seek comment non-broadband Internet access service also believe that the safe harbor on whether advisory opinions or disclosure guidance would be rendered data services, should we eliminate the enforcement advisories have benefitted guidance that if non-broadband Internet moot. We seek comment on this analysis consumers or broadband Internet access and on whether there nonetheless are access service data services ‘‘are service providers. If we restore the any affirmative steps the Commission undermining investment, innovation, broadband Internet access service should take with respect either to those competition, and end-user benefits,’’ classification to an information service, delegations of authority or to actions then the Commission will take should that alter our complaint and already taken in reliance on that enforcement action—including the enforcement process in this context? delegated authority. particularized focus on ensuring that 80. Additionally, we seek comment ‘‘over-the-top services offered over the on streamlining future enforcement B. Legal Authority To Adopt Rules Internet are not impeded in their ability processes. For instance, we propose 83. We seek comment on the legal to compete with other data services?’’ eliminating the ombudsperson role. Is authority that the Commission would 78. Application to Mobile. To the the role of an ombudsperson necessary have in this area if we adopted our lead extent we keep or modify any of the to protect consumer, business, and other proposal to classify broadband Internet existing rules, we seek comment on organizations’ interests when the access service as an information service. whether mobile broadband should be Commission has a Bureau—the 84. Section 706. We seek comment on Consumer and Governmental Affairs treated differently from fixed whether section 706(a) and (b) of the Bureau (CGB)—dedicated to protecting 1996 Act are best interpreted as broadband. The Title II Order applied consumer interests? Our experience hortatory rather than as delegations of the Internet openness rules equally to suggests that consumers are comfortable regulatory authority. Such an both fixed and mobile broadband working with CGB, and typically did interpretation generally is reflected in Internet access services. This approach not call on the ombudsperson the Commission’s approach to section departed from the Open Internet Order’s specifically. Has the ombudsperson 706 prior to 2010. The text of these framework, which adopted a different been called to action to assist in provisions also appears more naturally no-blocking standard for mobile circumstances that otherwise could not read as hortatory, particularly given the broadband Internet access service and have been handled by CGB? lack of any express grant of rulemaking excluded mobile from the no 81. What have been the benefits and authority, authority to prescribe or unreasonable discrimination rule. Are drawbacks of the complaint procedures proscribe the conduct of any party, or to there legal, technical, economic, and/or instituted in 2010 and 2015? Since these enforce compliance. Although some policy reasons to distinguish mobile and rules were formally codified in 2010, courts have held that the Commission’s fixed broadband with respect to rules in only one formal complaint has been post-2010 interpretation of section this context, and if so how should we filed under them to date. Can we infer 706(a) and/or (b) as a grant of regulatory differentiate the two in any rules that that parties heeded the Commission’s authority was not unreasonable, we seek we keep or modify? For instance, encouragement to ‘‘resolve disputes comment on whether interpreting those several mobile providers who opposed through informal discussions and provisions as hortatory nonetheless is application of the broader rules in 2015 private negotiations’’ without the better reading. Or should we argued that additional rules were Commission involvement, except maintain our post-2010 interpretation of unnecessary because competition for through the informal complaint process? these provisions? Alternatively, we seek mobile broadband service adequately Does the lack of formal complaints comment whether section 706 reflects a restrained the behavior of mobile indicate that dedicated, formal ‘‘deregulatory bent,’’ and, if so, how we Internet service providers. We seek enforcement procedures are should interpret that with respect to comment on whether this contention is unwarranted? If we restore broadband obligations for regulated entities. If correct in today’s marketplace. Internet access service’s classification as section 706 reflects a deregulatory

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emphasis, what authority does it give in the USTelecom v. FCC case argued evaluate whether the decision will have the Commission, particularly in that compelling an Internet service net positive benefits. Our presumption situations in which capital expenditures provider to carry all speech violates the is that the effects of the decision would by Internet service providers have First Amendment. Others have argued have an annual effect on the economy slowed, as they have in the past year that ‘‘[t]here is no principled basis for of at least $100 million which is the under Title II regulation? If we interpret distinguishing the speech of broadband federal government’s standard threshold section 706(a) as a grant of authority, providers from other speakers using for requiring agencies covered by does that mean state commissions older technologies.’’ The D.C. Circuit Executive Order 12866 to conduct a would have coequal authority? If we Court of Appeals disagreed, finding that regulatory analysis. (A ‘‘regulatory interpret section 706(b) as a grant of ‘‘the First Amendment poses no bar to analysis’’ has three key components: (1) authority, what would happen to any the rules.’’ However, at least one judge A statement of the need for a proposed rules adopted using that authority if the on the D.C. Circuit believes that the action, (2) an examination of alternative Commission later found that advanced Commission’s current ‘‘net neutrality approaches, and (3) an evaluation of the telecommunications capability is being rule violates the First Amendment to the benefits and the costs). The other parts deployed to all Americans in a U.S. Constitution .... [because] the of this NPRM effectively seek comment reasonable and timely fashion? Are First Amendment bars the Government on the first and second pieces of the there other interpretations of section from restricting the editorial discretion regulatory analysis). Executive Order 706 of the 1996 Act that we should of Internet service providers, absent a 12866 indicates regulatory actions are consider? showing that an Internet service economically significant if they ‘‘[h]ave 85. Section 230. We also seek provider possesses market power in a an annual effect on the economy of $100 comment on whether section 230 gives relevant geographic market.’’ We seek million or more or adversely affect in a us the authority to retain any rules that comment on whether the First material way the economy, a sector of were adopted in the Title II Order. In Amendment or any other constitutional the economy, productivity, competition, Comcast, the D.C. Circuit observed that provision, or any other federal law, jobs, the environment, public health or the Commission there ‘‘acknowledge[d] would constrain the Commission from safety, or State, local, or tribal that section 230(b)’’ is a ‘‘statement [ ] of adopting rules here. If a rule poses governments or communities.’’ While policy that [itself] delegate[s] no serious constitutional concerns, how the Commission is not required by law regulatory authority.’’ Are there grounds should we modify it? Does the to comply with this Executive Order, we for the Commission to revisit that continued classification of broadband believe the $100 million threshold interpretation or otherwise invoke Internet access service as a common- provides a helpful guideline for when a section 230 here? For example, the D.C. carriage service itself raise any CBA is clearly appropriate. (While we Circuit in Comcast speculated that constitutional concerns? believe it is clearly appropriate for ‘‘[p]erhaps the Commission could use actions in excess of $100 million, we C. Cost-Benefit Analysis section 230(b) . . . to demonstrate . . . make no suggestion here about whether a connection’’ to an ‘‘express statutory 88. We propose as part of this the Commission should conduct CBAs delegation of authority,’’ although it had proceeding to conduct a cost-benefit below that threshold). We seek not done so there. If the Commission analysis (CBA). We propose to compare comment on our assertion that were to demonstrate a connection to an the costs and the benefits of maintaining conducting a CBA is appropriate and express statutory delegation of the classification of broadband Internet that the decision is likely to be authority, what would such a access service as a telecommunications economically significant. demonstration look like? What, if any, service (i.e. Title II regulation); 90. In conducting the CBA, we express statutory delegations of (Throughout this section, when propose to follow standard practices authority over broadband Internet discussing maintaining broadband employed by the federal government. access service exist? Internet access service as a Specifically we propose to follow the 86. Other Sources of Legal Authority. telecommunications service, we mean guidelines in section E (‘‘Identifying and Should we determine rules are indeed as actually implemented by the Title II Measuring Benefits and Costs’’) of the necessary in this space, we seek Order, where the Commission forbore Office of Management and Budget’s comment on any other sources of from applying some sections of the Act Circular A–4. This publication provides independent legal authority we might and some Commission rules) guidelines that an agency can follow for use to support such rules. For example, maintaining the Internet conduct rule; identifying and quantifying costs and we seek comment on the maintaining the no-blocking rule; benefits associated with regulatory Communications Act authority cited by maintaining the no-throttling rule; decisions while allowing for appropriate the Commission in its Open Internet maintaining the ban on paid latitude in how the analysis is Order. If any other sources of legal prioritization; maintaining the conducted for a particular regulatory authority exist, to what extent could transparency rules; and acting on the situation. We seek comment on they be used? And, what are the trade- other interpretive and policy changes following Circular A–4 generally. We offs, including the advantages and for which we seek comment above. We also seek comment on any specific disadvantages, of using any of these seek comment on how the CBA should portions of Circular A–4 where the other sources of legal authority in lieu be conducted to appropriately separate Commission should diverge from the of Title II provisions that depend on the or combine the analyses of each piece guidance provided. Commenters should classification of broadband Internet discussed above. We also seek comment explain why particular guidance in access service as a telecommunications generally on the importance of Circular A–4 should not be followed in service and/or section 706 of the 1996 conducting a CBA as well as the this circumstance and should propose Act? interaction between the Commission’s alternatives. 87. Constraints on our Legal public interest standard and a weighing 91. Any CBA should be conducted by Authority. The Commission has of the costs and benefits. comparing the costs and benefits repeatedly recognized that adopting 89. Given the size of the economic relative to the ‘‘baseline’’ scenario. As rules like these raises constitutional impacts due to our decisions in this OMB Circular A–4 explains, ‘‘[t]his concerns. For example, some petitioners proceeding, it is especially important to baseline should be the best assessment

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of the way the world would look absent Since the networks built with capital prioritization carries over the FTC’s the proposed action.’’ Care should be investments are only a means to an end, authority to police anticompetitive taken to recognize that in certain cases we believe that the private costs borne conduct. repealing or eliminating a rule does not by consumers and businesses of 98. We particularly seek comments result in a total lack of regulation but maintaining the status quo result from that attempt to quantify the benefits instead means that other regulations decreased value derived from using the rather than merely suggest the existence continue to operate or other regulatory networks. We seek comment on this of benefits without any indication of bodies will have authority. For example, analysis. What approaches should we their magnitude. We also ask as we evaluate the costs and benefits of use to capture these costs? We seek commenters to particularly highlight maintaining the current classification of comment on particular methods and benefits where actual misconduct has broadband Internet access service as a data sources we might use to estimate been observed. To the extent the telecommunications service, the CBA the private costs of forgoing the baseline scenario allows any market should recognize that changing the building, maintaining, or upgrading of failures to go unregulated, commenters classification of broadband Internet these networks. should clearly identify the market access service to an information service 94. In addition to the private costs failure and the estimated economic would result in the FTC having discussed above, foregone networks may benefit associated with addressing it jurisdiction over certain aspects of such also impose additional societal costs. In through the maintenance of current services. Therefore, the benefits and particular, fewer network effects created policies. by increased connectivity will occur. As costs of the FCC maintaining Title II IV. Initial Regulatory Flexibility another example, society will not realize jurisdiction over broadband Internet Analysis access service should be calculated with some efficiencies and savings from FTC enforcement as the appropriate governments delivering services over 99. As required by the Regulatory baseline. In this example, the benefits of the networks. Additionally, there are Flexibility Act of 1980, as amended maintaining the Commission’s Title II likely long run costs due to forgoing (RFA), the Commission has prepared classification are those benefits that better connectivity that would allow this Initial Regulatory Flexibility exist over and above the ‘‘baseline’’ new products and services to be created. Analysis (IRFA) of the possible scenario of FTC jurisdiction (and, at a We seek comment on this analysis. How significant economic impact on a minimum, FCC Title I protections). should our CBA incorporate these types substantial number of small entities Likewise, the costs of maintaining Title of cost into the analysis? What other from the policies and rules proposed in II should be estimated as those costs of ancillary costs might exist? What data is this Notice of Proposed Rulemaking ex ante FCC regulation relative to FTC appropriate to use? (NPRM). The Commission requests ex post regulation. We seek comment on 95. It is also likely that the foregone written public comment on this IRFA. the appropriate baseline scenarios that investment per se results in economic Comments must be identified as should be used and on our proposed costs (e.g., fewer network construction responses to the IRFA and must be filed course of action above. jobs), and we seek comment on how the by the deadlines for comments on the 92. In weighing the costs and benefits Commission should incorporate any of NPRM provided on the first page of the of any policy, there always exists an these costs into the analysis. For NPRM. The Commission will send a element of uncertainty. As commenters example, should the Commission use a copy of the NPRM, including this IRFA, suggest costs and benefits the multiplier to account for economic to the Chief Counsel for Advocacy of the Commission should consider, we ask activity missed due to tempered Small Business Administration (SBA). that to the extent possible information investment? If so, what are the In addition, the NPRM and IRFA (or could also be provided about the level appropriate multipliers to use? summaries thereof) will be published in of certainty surrounding a scenario or Commenters should provide sources to the Federal Register. particular value. Also, various costs and justify recommendations for multiplier A. Need for, and Objectives of, the values. benefits are likely to occur at different Proposed Rules points in time. When suggesting costs 96. Lastly, there may be other costs and benefits, we seek comment on the that are not directly the result of 100. With this NPRM, the timing of those costs and benefits. (As decreased investment in networks. Commission initiates a new rulemaking explained in OMB Circular A–4, section Maintaining current policies may that proposes to restore the market- E, the timing of costs and benefits is prevent new business models or new based policies necessary to preserve the important because ultimately the CBA products and services from being viable future of Internet Freedom, and to will need to discount future costs and and ultimately delivering value to reverse the decline in infrastructure benefits for the purpose of calculating society. We seek comment on such costs investment, innovation, and options for net present benefits.) We also seek and how we may incorporate them into American consumers put into motion by comment on how uncertainty around our analysis. the Commission in 2015. The and timing of costs and benefits should 97. Benefits. There are various Commission’s Title II Order has put at interact in the analysis. theoretical possibilities for economic risk online investment and innovation, 93. Costs. There is evidence that the benefits created by the current policies. threatening the very open Internet it actions taken by the Commission in the We therefore seek comment on these purported to preserve. Investment in Title II Order have reduced investments benefits. Commenters should identify broadband networks declined. Internet by ISPs. We presume that maintaining these benefits relative to an appropriate service providers (ISPs) have pulled those actions would depress investment baseline, not relative to a situation back on plans to deploy new and relative to the baseline. Many of the where there is no regulation or statute upgraded infrastructure and services to costs of lower or misallocated to govern behavior. For example, if the consumers. This is particularly true of investment in networks and in other ban on paid prioritization is maintained the smallest Internet service providers sectors of the digital economy will be but broadband Internet access service is that serve consumers in rural, low- due to consumers and businesses having classified as an information service, income, and other underserved less broadband Internet access service then commenters should identify the communities. This rulemaking coverage and lower quality of service. benefits a blanket ban on paid continues the critical work to promote

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broadband deployment to rural 1. Total Small Entities that there were 3,117 firms that operated consumers and infrastructure 104. Small Businesses, Small that year. Of this total, 3,083 operated investment throughout our nation, to Organizations, Small Governmental with fewer than 1,000 employees. For brighten the future of innovation both Jurisdictions. Our actions, over time, the second category, census data for within networks and at their edge, and may affect small entities that are not 2012 show that there were 1,442 firms to close the digital divide. easily categorized at present. We that operated for the entire year Of those 101. The NPRM sets forth the therefore describe here, at the outset, firms, a total of 1,400 had annual following three main proposals: three comprehensive small entity size receipts less than $25 million. Returning broadband Internet access standards that could be directly affected Consequently, we estimate that the service to its previously-settled herein. First, while there are industry majority of broadband Internet access classification as an information service, specific size standards for small service provider firms are small entities. restoring the definition of ‘‘public businesses that are used in the 106. The broadband Internet access switched telephone network’’ to its regulatory flexibility analysis, according service provider industry has changed original meaning, and eliminating the to data from the SBA’s Office of since this definition was introduced in Internet conduct standard. The NPRM Advocacy, in general a small business is 2007. The data cited above may also seeks comment on a variety of an independent business having fewer therefore include entities that no longer issues relating to the effects of the than 500 employees. These types of provide broadband Internet access Commission’s Title II Order, including small businesses represent 99.9% of all service, and may exclude entities that the burdens imposed by the Title II businesses in the United States which now provide such service. To ensure Order that have led to decreased translates to 28.8 million businesses. that this IRFA describes the universe of investment and reduced innovation and Next, the type of small entity described small entities that our action might have been felt by Internet service as a ‘‘small organization’’ is generally affect, we discuss in turn several providers (ISPs) and consumers. ‘‘any not-for-profit enterprise which is different types of entities that might be Additionally, the NPRM seeks comment independently owned and operated and providing broadband Internet access on the effects of reclassifying broadband is not dominant in its field.’’ service. We note that, although we have Internet access service as an information Nationwide, as of 2007, there were no specific information on the number service on the existing enforcement approximately 1,621,215 small of small entities that provide broadband regime and the necessity of the other organizations. Finally, the small entity Internet access service over unlicensed spectrum, we include these entities in rules adopted in the Title II Order. described as a ‘‘small governmental our Initial Regulatory Flexibility Specifically, the NPRM seeks comment jurisdiction’’ is defined generally as Analysis. on the usefulness and necessity of the ‘‘governments of cities, towns, no-blocking rule, the no-throttling rule, townships, villages, school districts, or 3. Wireline Providers the no paid prioritization rule, and the special districts, with a population of transparency rule. less than fifty thousand.’’ U.S. Census 107. Wired Telecommunications Bureau data published in 2012 indicate Carriers. The U.S. Census Bureau B. Legal Basis that there were 89,476 local defines this industry as ‘‘establishments governmental jurisdictions in the primarily engaged in operating and/or 102. The legal basis for any action that United States. We estimate that, of this providing access to transmission may be taken pursuant to the NPRM is total, as many as 88,761 entities may facilities and infrastructure that they contained in sections 3, 10, 201(b), 230, qualify as ‘‘small governmental own and/or lease for the transmission of 254(e), 303(r), 332, of the jurisdictions.’’ Thus, we estimate that voice, data, text, sound, and video using Communications Act of 1934, as most governmental jurisdictions are wired communications networks. amended, and section 706 of the small. Transmission facilities may be based on Telecommunications Act of 1996, as a single technology or a combination of amended, 47 U.S.C. 153, 160, 201(b), 2. Broadband Internet Access Service technologies. Establishments in this 254(e), 303(r), 332, 1302. Providers industry use the wired C. Description and Estimate of the 105. The proposed rules would apply telecommunications network facilities Number of Small Entities To Which the to broadband Internet access service that they operate to provide a variety of Rules Would Apply providers. The Economic Census places services, such as wired telephony these firms, whose services might services, including VoIP services, wired 103. The RFA directs agencies to include Voice over Internet Protocol (cable) audio and video programming provide a description of, and where (VoIP), in either of two categories, distribution, and wired broadband feasible, an estimate of the number of depending on whether the service is internet services. By exception, small entities that may be affected by provided over the provider’s own establishments providing satellite the proposed rules, if adopted. The RFA telecommunications facilities (e.g., cable television distribution services using generally defines the term ‘‘small and DSL ISPs), or over client-supplied facilities and infrastructure that they entity’’ as having the same meaning as telecommunications connections (e.g., operate are included in this industry.’’ the terms ‘‘small business,’’ ‘‘small dial-up ISPs). The former are within the The SBA has developed a small organization,’’ and ‘‘small governmental category of Wired Telecommunications business size standard for Wired jurisdiction.’’ In addition, the term Carriers, which has an SBA small Telecommunications Carriers, which ‘‘small business’’ has the same meaning business size standard of 1,500 or fewer consists of all such companies having as the term ‘‘small-business concern’’ employees. These are also labeled 1,500 or fewer employees. Census data under the Small Business Act. A small- ‘‘broadband.’’ The latter are within the for 2012 show that there were 3,117 business concern’’ is one which: (1) Is category of All Other firms that operated that year. Of this independently owned and operated; (2) Telecommunications, which has a size total, 3,083 operated with fewer than is not dominant in its field of operation; standard of annual receipts of $32.5 1,000 employees. Thus, under this size and (3) satisfies any additional criteria million or less. These are labeled non- standard, the majority of firms in this established by the SBA. broadband. Census data for 2012 show industry can be considered small.

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108. Local Exchange Carriers (LECs). these 1,442 carriers, an estimated 1,256 a business is small if it has 1,500 or Neither the Commission nor the SBA have 1,500 or fewer employees. In fewer employees. According to has developed a size standard for small addition, 17 carriers have reported that Commission data, 33 carriers have businesses specifically applicable to they are Shared-Tenant Service reported that they are engaged in the local exchange services. The closest Providers, and all 17 are estimated to provision of operator services. Of these, applicable NAICS Code category is have 1,500 or fewer employees. Also, 72 an estimated 31 have 1,500 or fewer Wired Telecommunications Carriers as carriers have reported that they are employees and two have more than defined above. Under the applicable Other Local Service Providers. Of this 1,500 employees. Consequently, the SBA size standard, such a business is total, 70 have 1,500 or fewer employees. Commission estimates that the majority small if it has 1,500 or fewer employees. Consequently, based on internally of OSPs are small entities that may be According to Commission data, census researched FCC data, the Commission affected by our proposed rules. data for 2012 shows that there were estimates that most providers of 114. Other Toll Carriers. Neither the 3,117 firms that operated that year. Of competitive local exchange service, Commission nor the SBA has developed this total, 3,083 operated with fewer competitive access providers, Shared- a definition for small businesses than 1,000 employees. The Commission Tenant Service Providers, and Other specifically applicable to Other Toll therefore estimates that most providers Local Service Providers are small Carriers. This category includes toll of local exchange carrier service are entities. carriers that do not fall within the small entities that may be affected by 111. We have included small categories of interexchange carriers, the rules adopted. incumbent LECs in this present RFA operator service providers, prepaid 109. Incumbent LECs. Neither the analysis. As noted above, a ‘‘small calling card providers, satellite service Commission nor the SBA has developed business’’ under the RFA is one that, carriers, or toll resellers. The closest a small business size standard inter alia, meets the pertinent small applicable NAICS Code category is for specifically for incumbent local business size standard (e.g., a telephone Wired Telecommunications Carriers as exchange services. The closest communications business having 1,500 defined above. Under the applicable applicable NAICS Code category is or fewer employees), and ‘‘is not SBA size standard, such a business is Wired Telecommunications Carriers as dominant in its field of operation.’’ The small if it has 1,500 or fewer employees. defined above. Under that size standard, SBA’s Office of Advocacy contends that, Census data for 2012 shows that there such a business is small if it has 1,500 for RFA purposes, small incumbent were 3,117 firms that operated that year. or fewer employees. According to LECs are not dominant in their field of Of this total, 3,083 operated with fewer Commission data, 3,117 firms operated operation because any such dominance than 1,000 employees. Thus, under this in that year. Of this total, 3,083 operated is not ‘‘national’’ in scope. We have category and the associated small with fewer than 1,000 employees. therefore included small incumbent business size standard, the majority of Consequently, the Commission LECs in this RFA analysis, although we Other Toll Carriers can be considered estimates that most providers of emphasize that this RFA action has no incumbent local exchange service are effect on Commission analyses and small. According to internally small businesses that may be affected by determinations in other, non-RFA developed Commission data, 284 the rules and policies adopted. Three contexts. companies reported that their primary hundred and seven (307) Incumbent 112. Interexchange Carriers (IXCs). telecommunications service activity was Local Exchange Carriers reported that Neither the Commission nor the SBA the provision of other toll carriage. Of they were incumbent local exchange has developed a definition for these, an estimated 279 have 1,500 or service providers. Of this total, an Interexchange Carriers. The closest fewer employees. Consequently, the estimated 1,006 have 1,500 or fewer NAICS Code category is Wired Commission estimates that most Other employees. Telecommunications Carriers as defined Toll Carriers are small entities that may 110. Competitive Local Exchange above. The applicable size standard be affected by rules adopted pursuant to Carriers (Competitive LECs), under SBA rules is that such a business the NPRM. Competitive Access Providers (CAPs), is small if it has 1,500 or fewer 4. Wireless Providers—Fixed and Shared-Tenant Service Providers, and employees. U.S. Census data for 2012 Mobile Other Local Service Providers. Neither indicates that 3,117 firms operated the Commission nor the SBA has during that year. Of that number, 3,083 115. The broadband Internet access developed a small business size operated with fewer than 1,000 service provider category covered by standard specifically for these service employees. According to internally these proposed rules may cover providers. The appropriate NAICS Code developed Commission data, 359 multiple wireless firms and categories of category is Wired Telecommunications companies reported that their primary regulated wireless services. Thus, to the Carriers, as defined above. Under that telecommunications service activity was extent the wireless services listed below size standard, such a business is small the provision of interexchange services. are used by wireless firms for broadband if it has 1,500 or fewer employees. U.S. Of this total, an estimated 317 have Internet access service, the proposed Census data for 2012 indicate that 3,117 1,500 or fewer employees. actions may have an impact on those firms operated during that year. Of that Consequently, the Commission small businesses as set forth above and number, 3,083 operated with fewer than estimates that the majority of IXCs are further below. In addition, for those 1,000 employees. Based on this data, the small entities that may be affected by services subject to auctions, we note Commission concludes that the majority our proposed rules. that, as a general matter, the number of of Competitive LECS, CAPs, Shared- 113. Operator Service Providers winning bidders that claim to qualify as Tenant Service Providers, and Other (OSPs). Neither the Commission nor the small businesses at the close of an Local Service Providers, are small SBA has developed a small business auction does not necessarily represent entities. According to Commission data, size standard specifically for operator the number of small businesses 1,442 carriers reported that they were service providers. The appropriate size currently in service. Also, the engaged in the provision of either standard under SBA rules is for the Commission does not generally track competitive local exchange services or category Wired Telecommunications subsequent business size unless, in the competitive access provider services. Of Carriers. Under that size standard, such context of assignments and transfers or

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reportable eligibility events, unjust license was awarded. The winning for grant. On February 15, 2005, the enrichment issues are implicated. bidder was not a small entity. Commission completed an auction of 116. Wireless Telecommunications 120. Wireless Telephony. Wireless 242 C-, D-, E-, and F-Block licenses in Carriers (except Satellite). This industry telephony includes cellular, personal Auction No. 58. Of the 24 winning comprises establishments engaged in communications services, and bidders in that auction, 16 claimed operating and maintaining switching specialized mobile radio telephony small business status and won 156 and transmission facilities to provide carriers. As noted, the SBA has licenses. On May 21, 2007, the communications via the airwaves. developed a small business size Commission completed an auction of 33 Establishments in this industry have standard for Wireless licenses in the A, C, and F Blocks in spectrum licenses and provide services Telecommunications Carriers (except Auction No. 71. Of the 12 winning using that spectrum, such as cellular Satellite). Under the SBA small business bidders in that auction, five claimed services, paging services, wireless size standard, a business is small if it small business status and won 18 internet access, and wireless video has 1,500 or fewer employees. licenses. On August 20, 2008, the services. The appropriate size standard According to Commission data, 413 Commission completed the auction of under SBA rules is that such a business carriers reported that they were engaged 20 C-, D-, E-, and F-Block Broadband is small if it has 1,500 or fewer in wireless telephony. Of these, an PCS licenses in Auction No. 78. Of the employees. For this industry, U.S. estimated 261 have 1,500 or fewer eight winning bidders for Broadband Census data for 2012 show that there employees and 152 have more than PCS licenses in that auction, six claimed were 967 firms that operated for the 1,500 employees. Therefore, a little less small business status and won 14 entire year. Of this total, 955 firms had than one third of these entities can be licenses. employment of 999 or fewer employees considered small. 123. Specialized Mobile Radio and 12 had employment of 1000 121. Broadband Personal Licenses. The Commission awards employees or more. Thus under this Communications Service. The ‘‘small entity’’ bidding credits in category and the associated size broadband personal communications auctions for Specialized Mobile Radio standard, the Commission estimates that services (PCS) spectrum is divided into (SMR) geographic area licenses in the the majority of wireless six frequency blocks designated A 800 MHz and 900 MHz bands to firms telecommunications carriers (except through F, and the Commission has held that had revenues of no more than $15 satellite) are small entities. auctions for each block. The million in each of the three previous 117. The Commission’s own data— Commission initially defined a ‘‘small calendar years. The Commission awards available in its Universal Licensing business’’ for C- and F-Block licenses as ‘‘very small entity’’ bidding credits to System—indicate that, as of October 25, an entity that has average gross revenues firms that had revenues of no more than 2016, there are 280 Cellular licensees of $40 million or less in the three $3 million in each of the three previous that will be affected by our actions previous calendar years. For F-Block calendar years. The SBA has approved today. The Commission does not know licenses, an additional small business these small business size standards for how many of these licensees are small, size standard for ‘‘very small business’’ the 900 MHz Service. The Commission as the Commission does not collect that was added and is defined as an entity has held auctions for geographic area information for these types of entities. that, together with its affiliates, has licenses in the 800 MHz and 900 MHz Similarly, according to internally average gross revenues of not more than bands. The 900 MHz SMR auction began developed Commission data, 413 $15 million for the preceding three on December 5, 1995, and closed on carriers reported that they were engaged calendar years. These small business April 15, 1996. Sixty bidders claiming in the provision of wireless telephony, size standards, in the context of that they qualified as small businesses including cellular service, Personal broadband PCS auctions, have been under the $15 million size standard won Communications Service, and approved by the SBA. No small 263 geographic area licenses in the 900 Specialized Mobile Radio Telephony businesses within the SBA-approved MHz SMR band. The 800 MHz SMR services. Of this total, an estimated 261 small business size standards bid auction for the upper 200 channels have 1,500 or fewer employees, and 152 successfully for licenses in Blocks A began on October 28, 1997, and was have more than 1,500 employees. Thus, and B. There were 90 winning bidders completed on December 8, 1997. Ten using available data, we estimate that that claimed small business status in the bidders claiming that they qualified as the majority of wireless firms can be first two C-Block auctions. A total of 93 small businesses under the $15 million considered small. bidders that claimed small business size standard won 38 geographic area 118. Wireless Communications status won approximately 40 percent of licenses for the upper 200 channels in Services. This service can be used for the 1,479 licenses in the first auction for the 800 MHz SMR band. A second fixed, mobile, radiolocation, and digital the D, E, and F Blocks. On April 15, auction for the 800 MHz band was held audio broadcasting satellite uses. The 1999, the Commission completed the on January 10, 2002 and closed on Commission defined ‘‘small business’’ reauction of 347 C-, D-, E-, and F-Block January 17, 2002 and included 23 BEA for the wireless communications licenses in Auction No. 22. Of the 57 licenses. One bidder claiming small services (WCS) auction as an entity with winning bidders in that auction, 48 business status won five licenses. average gross revenues of $40 million claimed small business status and won 124. The auction of the 1,053 800 for each of the three preceding years, 277 licenses. MHz SMR geographic area licenses for and a ‘‘very small business’’ as an entity 122. On January 26, 2001, the the General Category channels began on with average gross revenues of $15 Commission completed the auction of August 16, 2000, and was completed on million for each of the three preceding 422 C and F Block Broadband PCS September 1, 2000. Eleven bidders won years. The SBA has approved these licenses in Auction No. 35. Of the 35 108 geographic area licenses for the definitions. winning bidders in that auction, 29 General Category channels in the 800 119. 1670–1675 MHz Services. This claimed small business status. MHz SMR band and qualified as small service can be used for fixed and mobile Subsequent events concerning Auction businesses under the $15 million size uses, except aeronautical mobile. An 35, including judicial and agency standard. In an auction completed on auction for one license in the 1670–1675 determinations, resulted in a total of 163 December 5, 2000, a total of 2,800 MHz band was conducted in 2003. One C and F Block licenses being available Economic Area licenses in the lower 80

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channels of the 800 MHz SMR service licenses: 5 EAG licenses and 476 million for the preceding three years. were awarded. Of the 22 winning Cellular Market Area licenses. SBA approval of these definitions is not bidders, 19 claimed small business Seventeen winning bidders claimed required. An auction of 52 Major status and won 129 licenses. Thus, small or very small business status and Economic Area licenses commenced on combining all four auctions, 41 winning won 60 licenses, and nine winning September 6, 2000, and closed on bidders for geographic licenses in the bidders claimed entrepreneur status and September 21, 2000. Of the 104 licenses 800 MHz SMR band claimed status as won 154 licenses. On July 26, 2005, the auctioned, 96 licenses were sold to nine small businesses. Commission completed an auction of 5 bidders. Five of these bidders were 125. In addition, there are numerous licenses in the Lower 700 MHz band small businesses that won a total of 26 incumbent site-by-site SMR licenses and (Auction No. 60). There were three licenses. A second auction of 700 MHz licensees with extended implementation winning bidders for five licenses. All Guard Band licenses commenced on authorizations in the 800 and 900 MHz three winning bidders claimed small February 13, 2001, and closed on bands. We do not know how many firms business status. February 21, 2001. All eight of the provide 800 MHz or 900 MHz 127. In 2007, the Commission licenses auctioned were sold to three geographic area SMR service pursuant reexamined its rules governing the 700 bidders. One of these bidders was a to extended implementation MHz band in the 700 MHz Second small business that won a total of two authorizations, nor how many of these Report and Order. An auction of 700 licenses. providers have annual revenues of no MHz licenses commenced January 24, 130. Air-Ground Radiotelephone more than $15 million. One firm has 2008 and closed on March 18, 2008, Service. The Commission has previously over $15 million in revenues. In which included, 176 Economic Area used the SBA’s small business size addition, we do not know how many of licenses in the A Block, 734 Cellular standard applicable to Wireless these firms have 1,500 or fewer Market Area licenses in the B Block, and Telecommunications Carriers (except employees, which is the SBA- 176 EA licenses in the E Block. Twenty Satellite), i.e., an entity employing no determined size standard. We assume, winning bidders, claiming small more than 1,500 persons. There are for purposes of this analysis, that all of business status (those with attributable approximately 100 licensees in the Air- the remaining extended implementation average annual gross revenues that Ground Radiotelephone Service, and authorizations are held by small exceed $15 million and do not exceed under that definition, we estimate that entities, as defined by the SBA. $40 million for the preceding three almost all of them qualify as small 126. Lower 700 MHz Band Licenses. years) won 49 licenses. Thirty three entities under the SBA definition. For The Commission previously adopted winning bidders claiming very small purposes of assigning Air-Ground criteria for defining three groups of business status (those with attributable Radiotelephone Service licenses small businesses for purposes of average annual gross revenues that do through competitive bidding, the determining their eligibility for special not exceed $15 million for the preceding Commission has defined ‘‘small provisions such as bidding credits. The three years) won 325 licenses. business’’ as an entity that, together Commission defined a ‘‘small business’’ 128. Upper 700 MHz Band Licenses. with controlling interests and affiliates, as an entity that, together with its In the 700 MHz Second Report and has average annual gross revenues for affiliates and controlling principals, has Order, the Commission revised its rules the preceding three years not exceeding average gross revenues not exceeding regarding Upper 700 MHz licenses. On $40 million. A ‘‘very small business’’ is $40 million for the preceding three January 24, 2008, the Commission defined as an entity that, together with years. A ‘‘very small business’’ is commenced Auction 73 in which controlling interests and affiliates, has defined as an entity that, together with several licenses in the Upper 700 MHz average annual gross revenues for the its affiliates and controlling principals, band were available for licensing: 12 preceding three years not exceeding $15 has average gross revenues that are not Regional Economic Area Grouping million. These definitions were more than $15 million for the preceding licenses in the C Block, and one approved by the SBA. In May 2006, the three years. Additionally, the lower 700 nationwide license in the D Block. The Commission completed an auction of MHz Service had a third category of auction concluded on March 18, 2008, nationwide commercial Air-Ground small business status for Metropolitan/ with 3 winning bidders claiming very Radiotelephone Service licenses in the Rural Service Area (MSA/RSA) small business status (those with 800 MHz band (Auction No. 65). On licenses—‘‘entrepreneur’’—which is attributable average annual gross June 2, 2006, the auction closed with defined as an entity that, together with revenues that do not exceed $15 million two winning bidders winning two Air- its affiliates and controlling principals, for the preceding three years) and Ground Radiotelephone Services has average gross revenues that are not winning five licenses. licenses. Neither of the winning bidders more than $3 million for the preceding 129. 700 MHz Guard Band Licenses. claimed small business status. three years. The SBA approved these In 2000, in the 700 MHz Guard Band 131. AWS Services (1710–1755 MHz small size standards. An auction of 740 Order, the Commission adopted size and 2110–2155 MHz bands (AWS–1); licenses (one license in each of the 734 standards for ‘‘small businesses’’ and 1915–1920 MHz, 1995–2000 MHz, 2020– MSAs/RSAs and one license in each of ‘‘very small businesses’’ for purposes of 2025 MHz and 2175–2180 MHz bands the six Economic Area Groupings determining their eligibility for special (AWS–2); 2155–2175 MHz band (AWS– (EAGs)) commenced on August 27, provisions such as bidding credits and 3)). For the AWS–1 bands, the 2002, and closed on September 18, installment payments. A small business Commission has defined a ‘‘small 2002. Of the 740 licenses available for in this service is an entity that, together business’’ as an entity with average auction, 484 licenses were won by 102 with its affiliates and controlling annual gross revenues for the preceding winning bidders. Seventy-two of the principals, has average gross revenues three years not exceeding $40 million, winning bidders claimed small not exceeding $40 million for the and a ‘‘very small business’’ as an entity business, very small business or preceding three years. Additionally, a with average annual gross revenues for entrepreneur status and won a total of very small business is an entity that, the preceding three years not exceeding 329 licenses. A second auction together with its affiliates and $15 million. For AWS–2 and AWS–3, commenced on May 28, 2003, closed on controlling principals, has average gross although we do not know for certain June 13, 2003, and included 256 revenues that are not more than $15 which entities are likely to apply for

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these frequencies, we note that the small business size standard. business) received a 25 percent discount AWS–1 bands are comparable to those Consequently, the Commission on its winning bid; and (iii) a bidder used for cellular service and personal estimates that there are up to 36,708 with attributed average annual gross communications service. The common carrier fixed licensees and up revenues that do not exceed $3 million Commission has not yet adopted size to 59,291 private operational-fixed for the preceding three years standards for the AWS–2 or AWS–3 licensees and broadcast auxiliary radio (entrepreneur) received a 35 percent bands but proposes to treat both AWS– licensees in the microwave services that discount on its winning bid. Auction 86 2 and AWS–3 similarly to broadband may be small and may be affected by the concluded in 2009 with the sale of 61 PCS service and AWS–1 service due to rules and policies adopted herein. We licenses. Of the ten winning bidders, the comparable capital requirements note, however, that the common carrier two bidders that claimed small business and other factors, such as issues microwave fixed licensee category status won 4 licenses; one bidder that involved in relocating incumbents and includes some large entities. claimed very small business status won developing markets, technologies, and 134. Broadband Radio Service and three licenses; and two bidders that services. Educational Broadband Service. claimed entrepreneur status won six 132. 3650–3700 MHz band. In March Broadband Radio Service systems, licenses. 2005, the Commission released a Report previously referred to as Multipoint 136. In addition, the SBA’s Cable and Order and Memorandum Opinion Distribution Service (MDS) and Television Distribution Services small and Order that provides for nationwide, Multichannel Multipoint Distribution business size standard is applicable to non-exclusive licensing of terrestrial Service (MMDS) systems, and ‘‘wireless EBS. There are presently 2,436 EBS operations, utilizing contention-based cable,’’ transmit video programming to licensees. All but 100 of these licenses technologies, in the 3650 MHz band subscribers and provide two-way high are held by educational institutions. (i.e., 3650–3700 MHz). As of April 2010, speed data operations using the Educational institutions are included in more than 1270 licenses have been microwave frequencies of the this analysis as small entities. Thus, we granted and more than 7433 sites have Broadband Radio Service (BRS) and estimate that at least 2,336 licensees are been registered. The Commission has Educational Broadband Service (EBS) small businesses. Since 2007, Cable not developed a definition of small (previously referred to as the Television Distribution Services have entities applicable to 3650–3700 MHz Instructional Television Fixed Service been defined within the broad economic band nationwide, non-exclusive (ITFS)). In connection with the 1996 census category of Wired licensees. However, we estimate that the BRS auction, the Commission Telecommunications Carriers; that majority of these licensees are Internet established a small business size category is defined as follows: ‘‘This Access Service Providers (ISPs) and that standard as an entity that had annual industry comprises establishments most of those licensees are small average gross revenues of no more than primarily engaged in operating and/or businesses. $40 million in the previous three providing access to transmission 133. Fixed Microwave Services. calendar years. The BRS auctions facilities and infrastructure that they Microwave services include common resulted in 67 successful bidders own and/or lease for the transmission of carrier, private-operational fixed, and obtaining licensing opportunities for voice, data, text, sound, and video using broadcast auxiliary radio services. They 493 Basic Trading Areas (BTAs). Of the wired telecommunications networks. also include the Local Multipoint 67 auction winners, 61 met the Transmission facilities may be based on Distribution Service (LMDS), the Digital definition of a small business. BRS also a single technology or a combination of Electronic Message Service (DEMS), and includes licensees of stations authorized technologies.’’ The SBA has developed the 24 GHz Service, where licensees can prior to the auction. At this time, we a small business size standard for this choose between common carrier and estimate that of the 61 small business category, which is: All such firms non-common carrier status. At present, BRS auction winners, 48 remain small having 1,500 or fewer employees. To there are approximately 36,708 common business licensees. In addition to the 48 gauge small business prevalence for carrier fixed licensees and 59,291 small businesses that hold BTA these cable services we must, however, private operational-fixed licensees and authorizations, there are approximately use the most current census data that broadcast auxiliary radio licensees in 392 incumbent BRS licensees that are are based on the previous category of the microwave services. There are considered small entities. After adding Cable and Other Program Distribution approximately 135 LMDS licensees, the number of small business auction and its associated size standard; that three DEMS licensees, and three 24 GHz licensees to the number of incumbent size standard was: All such firms having licensees. The Commission has not yet licensees not already counted, we find $13.5 million or less in annual receipts. defined a small business with respect to that there are currently approximately According to Census Bureau data for microwave services. For purposes of the 440 BRS licensees that are defined as 2007, there were a total of 996 firms in IRFA, we will use the SBA’s definition small businesses under either the SBA this category that operated for the entire applicable to Wireless or the Commission’s rules. year. Of this total, 948 firms had annual Telecommunications Carriers (except 135. In 2009, the Commission receipts of under $10 million, and 48 satellite)—i.e., an entity with no more conducted Auction 86, the sale of 78 firms had receipts of $10 million or than 1,500 persons. Under the present licenses in the BRS areas. The more but less than $25 million. Thus, and prior categories, the SBA has Commission offered three levels of the majority of these firms can be deemed a wireless business to be small bidding credits: (i) A bidder with considered small. if it has 1,500 or fewer employees. The attributed average annual gross revenues Commission does not have data that exceed $15 million and do not 5. Satellite Service Providers specifying the number of these licensees exceed $40 million for the preceding 137. Satellite Telecommunications that have more than 1,500 employees, three years (small business) received a Providers. Two economic census and thus is unable at this time to 15 percent discount on its winning bid; categories address the satellite industry. estimate with greater precision the (ii) a bidder with attributed average Both categories have a small business number of fixed microwave service annual gross revenues that exceed $3 size standard of $32.5 million or less in licensees that would qualify as small million and do not exceed $15 million average annual receipts, under SBA business concerns under the SBA’s for the preceding three years (very small rules.

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138. Satellite Telecommunications. 141. Cable and Other Subscription revenues of all its affiliates, do not This category comprises firms Programming. This industry comprises exceed $250 million in the aggregate. ‘‘primarily engaged in providing establishments primarily engaged in Based on available data, we find that all telecommunications services to other operating studios and facilities for the but nine incumbent cable operators are establishments in the broadcasting of programs on a small entities under this size standard. telecommunications and broadcasting subscription or fee basis. The broadcast We note that the Commission neither industries by forwarding and receiving programming is typically narrowcast in requests nor collects information on communications signals via a system of nature (.e.g. limited format, such as whether cable system operators are satellites or reselling satellite news, sports, education, or youth- affiliated with entities whose gross telecommunications.’’ The category has oriented). These establishments produce annual revenues exceed $250 million. a small business size standard of $32.5 programming in their own facilities or Although it seems certain that some of million or less in average annual acquire programming from external these cable system operators are receipts, under SBA rules. For this sources. The programming material is affiliated with entities whose gross category, Census Bureau data for 2012 usually delivered to a third party, such annual revenues exceed $250 million, show that there were a total of 333 firms as cable systems or direct-to-home we are unable at this time to estimate that operated for the entire year. Of this satellite systems, for transmission to with greater precision the number of total, 299 firms had annual receipts of viewers. The SBA has established a size cable system operators that would less than $25 million. Consequently, we standard for this industry stating that a qualify as small cable operators under estimate that the majority of satellite business in this industry is small if it the definition in the Communications telecommunications providers are small has 1,500 or fewer employees. The 2012 Act. entities. Economic Census indicates that 367 7. All Other Telecommunications 139. All Other Telecommunications. firms were operational for that entire ‘‘All Other Telecommunications’’ is year. Of this total, 357 operated with 144. Electric Power Generators, defined as follows: This U.S. industry is less than 1,000 employees. Accordingly Transmitters, and Distributors. This U.S. comprised of establishments that are we conclude that a substantial majority industry is comprised of establishments primarily engaged in providing of firms in this industry are small under that are primarily engaged in providing specialized telecommunications the applicable SBA size standard. specialized telecommunications services, such as satellite tracking, 142. Cable Companies and Systems services, such as satellite tracking, communications telemetry, and radar (Rate Regulation). The Commission has communications telemetry, and radar station operation. This industry also developed its own small business size station operation. This industry also includes establishments primarily standards for the purpose of cable rate includes establishments primarily engaged in providing satellite terminal regulation. Under the Commission’s engaged in providing satellite terminal stations and associated facilities rules, a ‘‘small cable company’’ is one stations and associated facilities connected with one or more terrestrial serving 400,000 or fewer subscribers connected with one or more terrestrial systems and capable of transmitting nationwide. Industry data indicate that systems and capable of transmitting telecommunications to, and receiving there are currently 4,600 active cable telecommunications to, and receiving telecommunications from, satellite systems in the United States. Of this telecommunications from, satellite systems. Establishments providing total, all but eleven cable operators systems. Establishments providing Internet services or voice over Internet nationwide are small under the 400,000- Internet services or voice over Internet protocol (VoIP) services via client- subscriber size standard. In addition, protocol (VoIP) services via client- supplied telecommunications under the Commission’s rate regulation supplied telecommunications connections are also included in this rules, a ‘‘small system’’ is a cable system connections are also included in this industry. The SBA has developed a serving 15,000 or fewer subscribers. industry. The SBA has developed a small business size standard for ‘‘All Current Commission records show 4,600 small business size standard for ‘‘All Other Telecommunications,’’ which cable systems nationwide. Of this total, Other Telecommunications,’’ which consists of all such firms with gross 3,900 cable systems have fewer than consists of all such firms with gross annual receipts of $32.5 million or less. 15,000 subscribers, and 700 systems annual receipts of $32.5 million or less. For this category, census data for 2012 have 15,000 or more subscribers, based For this category, census data for 2012 show that there were 1,442 firms that on the same records. Thus, under this show that there were 1,442 firms that operated for the entire year. Of these standard as well, we estimate that most operated for the entire year. Of these firms, a total of 1,400 had gross annual cable systems are small entities. firms, a total of 1,400 had gross annual receipts of less than $25 million. 143. Cable System Operators receipts of less than $25 million. Consequently, we estimate that the (Telecom Act Standard). The Consequently, we estimate that the majority of All Other Communications Act also contains a majority of these firms are small entities Telecommunications firms are small size standard for small cable system that may be affected by rules adopted entities that might be affected by our operators, which is ‘‘a cable operator pursuant to the NPRM. action. that, directly or through an affiliate, serves in the aggregate fewer than 1 D. Description of Projected Reporting, 6. Cable Service Providers percent of all subscribers in the United Recordkeeping, and Other Compliance 140. Because section 706 requires us States and is not affiliated with any Requirements for Small Entities to monitor the deployment of broadband entity or entities whose gross annual 145. As indicated above, the NPRM using any technology, we anticipate that revenues in the aggregate exceed seeks comment on modifications to the some broadband service providers may $250,000,000.’’ There are approximately Commission’s existing no-blocking rule, not provide telephone service. 52,403,705 cable video subscribers in no-throttling rule, no paid prioritization Accordingly, we describe below other the United States today. Accordingly, an rule, and transparency rule, and it types of firms that may provide operator serving fewer than 524,037 proposes eliminating the Internet broadband services, including cable subscribers shall be deemed a small conduct standard. While we anticipate companies, MDS providers, and operator if its annual revenues, when that the removal or modification of utilities, among others. combined with the total annual burdensome regulations will lead to a

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long-term reduction in reporting, Commission expressing their support effort to reduce paperwork burdens, recordkeeping, or other compliance for the Commission’s proposed changes. invites the general public and the Office requirements on some small entities, the 149. We seek comment here on the of Management and Budget (‘‘OMB’’) to potential modifications, if adopted, effect the various proposals described in comment on the information collection could initially impose additional the NPRM, and summarized above, will requirements contained in this reporting, recordkeeping, or other have on small entities, and on what document, as required by the Paperwork compliance requirements on some small effect alternative rules would have on Reduction Act of 1995, Public Law 104– entities. We seek comment on any other those entities. How can the Commission 13. In addition, pursuant to the Small potential effects that could result from achieve its goal of protecting and Business Paperwork Relief Act of 2002, the changes proposed in the NPRM, promoting an open Internet while also Public Law 107–198, see 44 U.S.C. particularly as they relate to small imposing minimal burdens on small 3506(c)(4), we seek specific comment on businesses. entities? We specifically note that how we might further reduce the information collection burden for small E. Steps Taken To Minimize the within this NPRM, we have sought Significant Economic Impact on Small comment on the effects on small business concerns with fewer than 25 Entities, and Significant Alternatives business of the disclosures required by employees. Considered the transparency rule, and we have C. Other Procedural Matters emphasized the outsize regulatory 146. The RFA requires an agency to burdens that Title II reclassification has 1. Ex Parte Rules—Permit-But-Disclose describe any significant alternatives that placed on small internet providers. it has considered in reaching its 154. The proceeding this NPRM What other specific steps could the initiates shall be treated as a ‘‘permit- proposed approach, which may include Commission take in this regard? (among others) the following four but-disclose’’ proceeding in accordance 150. Since this NPRM seeks to reduce with the Commission’s ex parte rules. alternatives: (1) The establishment of the compliance burdens of ISPs through differing compliance or reporting Persons making ex parte presentations the removal of unnecessary regulation, must file a copy of any written requirements or timetables that take into it does not propose any alternative account the resources available to small presentation or a memorandum methods of reducing those burdens. summarizing any oral presentation entities; (2) the clarification, However, we seek comment from consolidation, or simplification of within two business days after the interested parties or any potential presentation (unless a different deadline compliance or reporting requirements method of reducing compliance burdens under the rule for small entities; (3) the applicable to the Sunshine period and restoring Internet freedom that has use of performance, rather than design, applies). Persons making oral ex parte not been proposed in this NPRM. standards; and (4) an exemption from presentations are reminded that coverage of the rule, or any part thereof, F. Federal Rules That May Duplicate, memoranda summarizing the for small entities. Overlap, or Conflict With the Proposed presentation must (1) list all persons 147. The NPRM specifically seeks Rules attending or otherwise participating in comment on the reporting requirements the meeting at which the ex parte 151. None. imposed by the enhanced transparency presentation was made, and (2) rule, and whether modifying that rule V. Procedural Matters summarize all data presented and would alleviate any regulatory burdens. arguments made during the A. Initial Regulatory Flexibility Analysis Additionally, we believe that the presentation. If the presentation proposals contained within this NPRM 152. As required by the Regulatory consisted in whole or in part of the represent a significant consolidation Flexibility Act of 1980 (RFA), the presentation of data or arguments and simplification for small entities Commission has prepared an Initial already reflected in the presenter’s from the rules imposed by the Title II Regulatory Flexibility Analysis (IRFA) written comments, memoranda or other Order. The rules imposed by the Title II for this NPRM of Proposed Rulemaking, filings in the proceeding, the presenter Order created heavy compliance of the possible significant economic may provide citations to such data or burdens, and those burdens were impact on small entities of the policies arguments in his or her prior comments, particularly onerous for smaller and rules addressed in this document. memoranda, or other filings (specifying providers without dedicated compliance The IRFA is set forth in Appendix B. the relevant page and/or paragraph staffs. By proposing the elimination of Written public comments are requested numbers where such data or arguments the general conduct standard, and on this IRFA. Comments must be can be found) in lieu of summarizing seeking comment on the other rules identified as responses to the IRFA and them in the memorandum. Documents imposed by the Title II Order, the NPRM must be filed on or before the dates on shown or given to Commission staff attempts to understand and mitigate the the first page of this NPRM of Proposed during ex parte meetings are deemed to negative effects the Title II Order had on Rulemaking. The Commission’s be written ex parte presentations and small businesses. More generally, by Consumer and Governmental Affairs must be filed consistent with rule proposing to return to an information Bureau, Reference Information Center, 1.1206(b). In proceedings governed by service classification for broadband will send a copy of this NPRM of rule 1.49(f) or for which the Internet access services, the NPRM seeks Proposed Rulemaking, including the Commission has made available a to reduce the burdens that Title II IRFA, to the Chief Counsel for Advocacy method of electronic filing, written ex classification imposed. of the Small Business Administration parte presentations and memoranda 148. The Commission also expects to (SBA). summarizing oral ex parte consider the economic impact on small presentations, and all attachments entities, as identified in comments filed B. Initial Paperwork Reduction Act thereto, must be filed through the in response to the NPRM and this IRFA, Analysis electronic comment filing system in reaching its final conclusions and 153. This document contains available for that proceeding, and must taking action in this proceeding. We proposed modified information be filed in their native format (e.g., .doc, note that numerous small providers collection requirements. The .xml, .ppt, searchable .pdf). Participants have already filed comments with the Commission, as part of its continuing in this proceeding should familiarize

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themselves with the Commission’s ex (b) The functional equivalent of such • Mail: Filings can be sent by hand or parte rules. a mobile service described in paragraph messenger delivery, by commercial (a) of this section. overnight courier, or by first-class or VI. Ordering Clauses * * * * * overnight U.S. Postal Service mail. All 155. Accordingly, it is ordered that, (a) That is interconnected with the filings must be addressed to the pursuant to sections 3, 10, 201(b), 230, public switched network, or Commission’s Secretary, Office of the 254(e), 303(r), and 332 of the interconnected with the public switched Secretary, Federal Communications Communications Act of 1934, as network through an interconnected Commission. amended, and section 706 of the service provider, that gives subscribers • People with Disabilities: Contact Telecommunications Act of 1996, as the capability to communicate to or the FCC to request reasonable amended, 47 U.S.C. 153, 160, 201(b), receive communication from all other accommodations (accessible format 254(e), 303(r), 332, 1302, this Notice of users on the public switched network; documents, sign language interpreters, Proposed Rulemaking is adopted. or CART, etc.) by email: [email protected] 156. It is further ordered that pursuant * * * * * or phone: (202) 418–0530 or TTY: (202) to applicable procedures set forth in Public Switched Network. Any 418–0432. sections 1.415 and 1.419 of the common carrier switched network, FOR FURTHER INFORMATION CONTACT: For Commission’s rules, 47 CFR 1.415, whether by wire or radio, including additional information on this 1.419, interested parties may file local exchange carriers, interexchange proceeding, contact Diana Sokolow, comments on this Notice of Proposed carriers, and mobile service providers, [email protected], of the Policy Rulemaking on or before July 17, 2017 that use the North American Numbering Division, Media Bureau, (202) 418– and reply comments on or before Plan in connection with the provision of 2120. August 16, 2017. switched services. SUPPLEMENTARY INFORMATION: This is a 157. It is further ordered that the * * * * * summary of the Commission’s Notice of Commission’s Consumer & [FR Doc. 2017–11455 Filed 6–1–17; 8:45 am] Proposed Rulemaking, FCC 17–59, Governmental Affairs Bureau, Reference BILLING CODE 6712–01–P adopted and released on May 18, 2017. Information Center, shall send a copy of The full text is available for public this Notice of Proposed Rulemaking, inspection and copying during regular including the Initial Regulatory FEDERAL COMMUNICATIONS business hours in the FCC Reference COMMISSION Flexibility Analysis, to the Chief Center, Federal Communications Counsel for Advocacy of the Small 47 CFR Part 73 Commission, 445 12th Street SW., Room Business Administration. CY–A257, Washington, DC 20554. This [MB Docket No. 17–106; FCC 17–59] List of Subjects document will also be available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Elimination of Main Studio Rule 47 CFR Part 8 Documents will be available Protecting and promoting the open AGENCY: Federal Communications electronically in ASCII, Microsoft Word, internet. Commission. and/or Adobe Acrobat. The complete ACTION: Proposed rule. text may be purchased from the 47 CFR Part 20 Commission’s copy contractor, 445 12th Commercial mobile services. SUMMARY: In this document, the Street SW., Room CY–B402, Commission proposes to eliminate its Washington, DC 20554. Alternative Federal Communications Commission. rule that requires each AM, FM, and formats are available for people with Katura Jackson, television broadcast station to maintain disabilities (Braille, large print, Federal Register Liaison Officer. Office of the a main studio located in or near its electronic files, audio format), by Secretary. community of license. The Commission sending an email to [email protected] or Proposed Rules tentatively finds that the main studio calling the Commission’s Consumer and rule is now outdated and unnecessarily Governmental Affairs Bureau at (202) For the reasons discussed in the burdensome for broadcast stations. The 418–0530 (voice), (202) 418–0432 preamble, the Federal Communications Commission also proposes to eliminate (TTY). Commission proposes to amend 47 CFR existing requirements associated with parts 8 and 20 as follows: the main studio rule, including the Synopsis requirement that the main studio must 1. In this Notice of Proposed PART 8—PROTECTING AND have full-time management and staff Rulemaking (NPRM), we propose to PROMOTING THE OPEN INTERNET present during normal business hours, eliminate the Federal Communications § 8.11 [Remove and Reserve]. and that it must have program Commission (Commission) rule that origination capability. requires each AM, FM, and television ■ 1. Remove and reserve § 8.11. DATES: Comments are due on or before broadcast station to maintain a main July 3, 2017; reply comments are due on studio located in or near its community PART 20—COMMERCIAL MOBILE 1 SERVICES or before July 17, 2017. of license. When the rule was ADDRESSES: You may submit comments, conceived almost eighty years ago, local ■ 2. Amend § 20.3 by revising paragraph identified by MB Docket No. 17–106, by access to the main studio was designed (b) under the definition of ‘‘Commercial any of the following methods: to facilitate input from community mobile radio service;’’ paragraph (a) • Federal eRulemaking Portal: http:// members as well as the station’s under the definition of ‘‘Interconnected www.regulations.gov. Follow the participation in community activities. Service;’’ and the definition of ‘‘Public instructions for submitting comments. Today, however, widespread Switched Network’’ to read as follows: • Federal Communications availability of electronic communication Commission’s Web site: http:// enables stations to participate in their § 20.3 Definitions. fjallfoss.fcc.gov/ecfs2/. Follow the * * * * * instructions for submitting comments. 1 47 CFR 73.1125(a) through (d).

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communities of license, and members of traditional functions that they have radio service to each of the same.’’ 6 We the community to contact broadcast served. In particular, it appears that a seek comment on whether the current radio and television stations, without local main studio with staffing sufficient main studio rules and related the physical presence of a local to accommodate visits from community requirements are necessary to broadcast studio. In addition, because members no longer will be justified implement section 307(b) of the the Commission has adopted online once broadcasters fully transition to Communications Act of 1934, as public inspection file requirements for online public inspection files. We invite amended. Relatedly, we ask commenters AM, FM, and television broadcast comment on these proposals. to describe any remaining benefits of the stations, community members no longer main studio requirements and the 3. We also seek comment on the costs will need to visit a station’s main studio associated staffing requirements. that AM, FM, and television broadcast to access its public inspection file. 5. Although the Commission stations face in complying with the Television broadcasters completed their eliminated its program origination current main studio rule and associated transition to the online public file in requirement in 1987, it subsequently 2014, and radio broadcasters will requirements. How significant are these clarified that stations must nonetheless complete their transition by March 1, costs, particularly for small stations? ‘‘equip the main studio with production 2018.2 Given these changes, in this Would eliminating the main studio rule, and transmission facilities that meet proceeding we tentatively find that the as well as the associated staffing and applicable standards [and] maintain main studio rule is now outdated and program origination capability continuous program transmission unnecessarily burdensome for broadcast requirements, enable broadcasters to capability . . . [to] allow broadcasters to stations and propose to eliminate it. We allocate greater resources to continue, at their option, and as the also propose to eliminate existing programming and other matters? Would marketplace demands, to produce local requirements associated with our main eliminating the rule make it more programs at the studio.’’ We invite studio rule.3 efficient for co-owned or jointly comment on the continued relevance of 2. We propose to eliminate our rule operated broadcast stations to co-locate the program origination capability requiring each AM, FM,4 and television their offices, rather than operating a requirement that currently applies to broadcast station to maintain a local main studio in or near each station’s main studios. What function does it main studio.5 We also propose to community of license? We invite serve today? To what extent do stations eliminate the associated staffing and comment on these and other efficiencies produce local programming at their program origination capability that could be achieved by eliminating main studios? If we eliminate the main requirements that apply to main studios. the main studio rule. Are there any studio rule, should we maintain the We tentatively conclude that particular issues we should be aware of program origination capability technological innovations have with regard to eliminating the main requirement, and, if so, how? Would rendered a local studio unnecessary as studio rule for non-commercial program origination, to the extent it a means for viewers and listeners to broadcast stations? happens today, occur anyway absent communicate with or access their local 4. How frequently do stations receive any capability requirement as stations stations and to carry out the other in-person visits from members of the seek to continue to meet viewers’ and community, and are those visits to listeners’ interests? 2 As of June 24, 2016, commercial broadcast radio 6. We propose to retain section request access to hard copy public stations in the top 50 Nielsen Audio radio markets 73.1125(e) of our rules, which requires inspection files or for other purposes? with five or more full-time employees were ‘‘[e]ach AM, FM, TV and Class A TV required to place new public and political file To what extent do people contact broadcast station [to] maintain a local documents in the online file on a going-forward stations by telephone, by mail, or basis. By December 24, 2016, these entities were telephone number in its community of required to upload their existing public file online, rather than through in-person license or a toll-free number.’’ We invite documents to the online file, with the exception of visits? Have technological advances, comment on this proposal. Would existing political file material. As of March 1, 2018, including widespread access to the retention of this requirement help all noncommercial educational (NCE) broadcast Internet, mobile telephones, email, and radio stations, commercial broadcast radio stations ensure that members of the community in the top 50 Nielsen Audio radio markets with social media, obviated the need to continue to have access to their local fewer than five full-time employees, and accommodate in-person visits from broadcast stations, for example, to share commercial broadcast radio stations in markets community members? If we eliminate concerns or seek information, if the below the top 50 or outside all markets must have the main studio rule, would competitive placed all existing public file material in the online current main studio requirements are public file, with the exception of existing political market conditions ensure that stations eliminated? Stations currently are file material, and must begin placing all new public will continue to keep apprised of required to post their telephone and political file material in the online file on a significant local needs and issues? numbers in their online public files. If going-forward basis. Would eliminating the main studio rule 3 The associated requirements include the we eliminate the main studio rule, requirement that the main studio must have full- impact a station’s ability to should we encourage stations to also time management and staff present during normal communicate time-sensitive or publicize their phone numbers in business hours, and that it must have program emergency information to the public? If additional ways, such as on their Web origination capability. the existence of a local main studio no sites? Should we require the telephone 4 Although LPFM stations have no main studio longer plays a significant role in requirement, points are awarded under the service’s number to be staffed during normal comparative selection procedures to those ensuring that broadcast stations serve business hours so that community applicants that pledge to locally originate at least their local communities, then members may seek assistance during eight hours of programming per day and to eliminating the main studio requirement that time? Or, should we require the maintain a main studio with local origination likely will not significantly impact the capability. telephone number to be staffed at all 5 We note that on April 19, 2017, Garvey Schubert requirement that the Commission ‘‘make times in which the AM, FM, or Class A Barer’s (GSB) Media, Telecom and Technology such distribution of licenses, group filed a petition asking the Commission to frequencies, hours of operation, and of 6 47 U.S.C. 307(b). We do not herein propose any initiate a rulemaking to repeal its main studio rule. power among the several States and modifications to the existing requirements Because our proposals effectively satisfy GSB’s communities as to provide for a fair, pertaining to submission of quarterly issues/ request, we dismiss GSB’s rulemaking petition as programs lists and requirements pertaining to a moot. efficient, and equitable distribution of station’s coverage of the community served.

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TV station is on the air? Alternatively, main studio rule only for stations that and associated location restrictions are is a staffed telephone number have fully transitioned all public file eliminated, how does that impact the requirement unnecessary so long as material to the online public file, third option? Could a Class A station station staff regularly retrieves and including existing political file locate a ‘‘main studio’’ at a distance responds promptly to voicemail materials? 8 Would it be reasonable to outside its contour and still qualify as messages from the public left at that permit a station to eliminate its local having ‘‘locally produced telephone number? If community main studio if it has transitioned all of programming’’? We seek comment on members must leave a voicemail its public file materials to the online how to address this issue. Should we message in order to reach a local public file except for its political file eliminate the main studio option from broadcast station, will this impede the materials for which it has a two-year this rule? If so, how should we address station’s ability to relay time-sensitive retention period? We seek comment on Class A stations with main studios emergency information to the public? the pros and cons of these various currently located outside the applicable Should we instead require each station approaches. contour? Is there some other relevant to designate a point of contact to 8. In addition to the proposed requirement we can substitute, to the respond to communications from the revisions to section 73.1125 of the extent necessary to meet our statutory public? We invite comment on these Commission’s rules, we propose to requirements for Class A stations? alternatives and any other approaches eliminate other Commission rules that 9. We also invite comment on any we should consider to ensure that currently reference section 73.1125. other issues related to our proposals in members of the public can easily Specifically, if we eliminate the main this proceeding. What impact would contact station representatives and studio rule, we also will need to delete elimination of the main studio rule and receive timely responses. Should sections 73.3538(b)(2) (informal the associated staffing and program broadcasters establish processes to application to relocate main studio), origination requirements have on other ensure their ability to receive time- 73.1690(c)(8)(ii) (location of FM studio Commission proceedings? 11 sensitive or emergency information within station principal community 10. Finally, we invite comment on during non-business hours? contour), and 73.1690(d)(1) (permissive any alternate proposals we should 7. To the extent that stations are no change in studio location) of the consider, rather than completely longer required to have a local main Commission’s rules, all of which are eliminating the main studio rule and studio, we seek comment on how we premised on the existing main studio associated requirements. For example, should ensure that community members rule.9 We invite comment on this should we only eliminate the rule for a have access to a station’s public file. In proposal. Are any other rule changes certain subset of stations, such as those this regard, we note that television needed to conform to the proposed that are located in small and mid-sized stations already have fully transitioned elimination of the main studio rule and markets or those that have fewer than a their public file materials to the online associated requirements, including with certain number of employees? public file as have some radio stations. respect to any rules that reference Commenters advocating this approach We recognize that under current rules, ‘‘studio’’ or ‘‘main studio’’ instead of should explain with specificity how we some stations may continue maintaining section 73.1125? 10 For example, Class A should define those stations that will be public inspection files locally, and not stations are required to broadcast an permitted to eliminate their main online, even after the applicable average of at least three hours per week studio. We have proposed to eliminate compliance deadline. In addition, of ‘‘locally produced programming’’ the main studio rule and the associated certain existing political materials that each quarter. The Commission’s rules requirements for all AM, FM, and are part of the public inspection file define ‘‘locally produced programming’’ television broadcast stations. Is there may remain in the local public as programming ‘‘(1) Produced within any reason to distinguish between our inspection file, rather than the online the predicted Grade B contour ...; (2) treatment of AM, FM, and television public inspection file, until the station Produced within the predicted DTV broadcast stations in this context? We is no longer required to retain the noise-limited contour ...; or (3) also invite comment on alternative ways materials in question. If all or a portion Programming produced at the station’s we can reduce main studio-related of a station’s public inspection file is main studio.’’ If the main studio rule burdens on broadcast stations. not available via the online public file, 11. As required by the Regulatory Flexibility Act of 1980, as amended we invite comment on how best to 8 For example, because television stations without ensure that community members have waivers, and some radio stations, have fully (RFA), the Commission has prepared an access to the relevant materials in the transitioned all public file material to the online Initial Regulatory Flexibility Analysis absence of a local main studio. For public file, they could eliminate their main studio (IRFA) concerning the possible upon the effective date of an order in this docket, significant economic impact on small example, should we require the station if any, eliminating the main studio rule; whereas, to provide community members with radio stations that have not yet complied with the entities by the policies and rules access to its local public inspection file online public file requirements would not be able proposed in the NPRM. Written public at another location in the community of to take advantage of this potential rule change until comments are requested on the IRFA. license, such as a local library or they too had fully transitioned, if we only eliminate Comments must be identified as the main studio requirement for stations that have 7 another station’s main studio? fully transitioned to an online public file. A station responses to the IRFA and must be filed Commenters advocating that approach has ‘‘fully transitioned,’’ and thus could eliminate by the deadlines for comments provided should explain how stations would the main studio under this approach, only if all on the first page of the NPRM. The notify community members of the existing political file material was either voluntarily Commission will send a copy of the transitioned to the online public file, or, in the case NPRM, including the IRFA, to the Chief location of their public inspection file. of television stations, is older than the two year Alternatively, should we eliminate the retention period. Counsel for Advocacy of the Small 9 In preparing this NPRM, we determined that Business Administration (SBA). In 7 Applicants without a main studio currently section 73.1690(d)(2) of our rules references section have a similar requirement. See 47 CFR 73.1410 of our rules, which has been deleted, and 11 For example, in certain cases Commission staff 73.3526(b)(1) (‘‘. . . An applicant for a new station we thus propose to delete that outdated reference. has assessed if one station is exercising de facto or change of community shall maintain its file at 10 See, e.g., 47 CFR 73.3526(b)(1), (b)(2)(ii), (c)(2), control over another by considering, among other an accessible place in the proposed community of (e)(4); Id. 73.3527(b)(1), (b)(2)(iii), (c)(2), (e)(3); Id. things, compliance with the main studio minimum license or at its proposed main studio.’’). 73.3544(b)(3). staffing requirements.

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summary, the NPRM proposes to of its continuing effort to reduce themselves with the Commission’s ex eliminate the rule that requires each paperwork burdens, invites the general parte rules. AM, FM, and television broadcast public and the Office of Management 14. The proposed action is authorized station to maintain a main studio and Budget (OMB) to comment on the pursuant to sections 4(i), 4(j), 303, located in or near its community of information collection requirements that 307(b), and 336(f) of the license.12 The NPRM also proposes to would be impacted by the proposals Communications Act of 1934, as eliminate existing requirements contained in this document, as required amended, 47 U.S.C. 154(i), 154(j), 303, associated with our main studio rule, by the Paperwork Reduction Act of 307(b), 336(f). including the requirement that the main 1995, Public Law 104–13 (44 U.S.C. List of Subjects in 47 CFR Part 73 studio must have full-time management 3501 through 3520). In addition, and staff present during normal pursuant to the Small Business Radio, Television. business hours, and that it must have Paperwork Relief Act of 2002, Public Federal Communications Commission. program origination capability. The Law 107–198, see 44 U.S.C. 3506(c)(4), Katura Jackson, proposed action is authorized pursuant the Commission seeks specific comment Federal Register Liaison Officer. to sections 4(i), 4(j), 303, 307(b), and on how it might ‘‘further reduce the 336(f) of the Communications Act of information collection burden for small Proposed Rules 1934, as amended, 47 U.S.C. 154(i), business concerns with fewer than 25 For the reasons discussed in the 154(j), 303, 307(b), 336(f). The types of employees.’’ preamble, the Federal Communications small entities that may be affected by 13. Permit-But-Disclose. This Commission proposes to amend 47 CFR the proposals contained in the NPRM proceeding shall be treated as a ‘‘permit- part 73 as follows: fall within the following categories: but-disclose’’ proceeding in accordance Television Broadcasting, Radio with the Commission’s ex parte rules. PART 73—RADIO BROADCAST Broadcasting. The projected reporting, Persons making ex parte presentations SERVICES recordkeeping, and other compliance must file a copy of any written requirements are: (1) A proposal to ■ 1. The authority citation for part 73 presentation or a memorandum continues to read as follows: eliminate the rule requiring each AM, summarizing any oral presentation FM, and television broadcast station to within two business days after the Authority: 47 U.S.C. 154, 303, 309, 310, maintain a local main studio; and (2) a presentation (unless a different deadline 334, 336, and 339. proposal to eliminate the associated applicable to the Sunshine period ■ 2. Revise § 73.1125 to read as follows: staffing and program origination applies). Persons making oral ex parte capability requirements that apply to § 73.1125 Station telephone number. presentations are reminded that main studios. There is no overlap with memoranda summarizing the Each AM, FM, TV and Class A TV other regulations or laws. The presentation must (1) list all persons broadcast station shall maintain a local Commission invites comment on attending or otherwise participating in telephone number in its community of alternative ways it can reduce main the meeting at which the ex parte license or a toll-free number. studio-related burdens on small entities, presentation was made, and (2) ■ 3. In § 73.1690, revise paragraphs including whether a requirement that (c)(8) and (d) to read as follows: the local telephone number for a main summarize all data presented and studio be staffed during normal business arguments made during the § 73.1690 Modification of transmission hours is unnecessary so long as station presentation. If the presentation systems. staff regularly retrieves and responds consisted in whole or in part of the * * * * * promptly to voicemail messages from presentation of data or arguments (c) * * * the public left at that telephone number, already reflected in the presenter’s (8) FM commercial stations and FM or whether the Commission instead written comments, memoranda or other noncommercial educational stations should require each station to designate filings in the proceeding, the presenter may decrease ERP on a modification of a point of contact to respond to may provide citations to such data or license application provided that communication from the public; arguments in his or her prior comments, exhibits are included to demonstrate whether instead of eliminating the main memoranda, or other filings (specifying that all five of the following studio rule entirely, the Commission the relevant page and/or paragraph requirements are met: could only eliminate the rule for a numbers where such data or arguments (i) Commercial FM stations must certain subset of stations, such as those can be found) in lieu of summarizing continue to provide a 70 dBu principal that are located in small and mid-sized them in the memorandum. Documents community contour over the community markets or those that have fewer than a shown or given to Commission staff of license, as required by § 73.315(a). certain number of employees; and during ex parte meetings are deemed to Noncommercial educational FM stations whether to adopt an alternate approach be written ex parte presentations and must continue to provide a 60 dBu pursuant to which, if the Commission must be filed consistent with rule contour over at least a portion of the does not eliminate the main studio rule 1.1206(b). In proceedings governed by community of license. The 60 and 70 entirely, it could eliminate the rule only rule 1.49(f) or for which the dBu contours must be predicted by use for stations that have fully transitioned Commission has made available a of the standard contour prediction their public file materials to the online method of electronic filing, written ex method in § 73.313(b), (c), and (d). public file. parte presentations and memoranda (ii) For commercial FM stations only, 12. This document does not contain summarizing oral ex parte there is no change in the authorized any proposed new information presentations, and all attachments station class as defined in § 73.211. collection requirements. It does, thereto, must be filed through the (iii) For commercial FM stations only, however, contain proposals to delete electronic comment filing system the power decrease is not necessary to rules that contain information collection available for that proceeding, and must achieve compliance with the multiple requirements. The Commission, as part be filed in their native format (e.g., .doc, ownership rule, § 73.3555. .xml, .ppt, searchable .pdf). Participants (iv) Commercial FM stations, 12 47 CFR 73.1125(a) through (d). in this proceeding should familiarize noncommercial educational FM stations

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on Channels 221 through 300, and through 220, or Class D stations on ■ 4. In § 73.3538, revise paragraph (b) to noncommercial educational FM stations Channel 200, which employ separate read as follows: on Channels 200 through 220 which are horizontally and vertically polarized located in excess of the distances in antennas mounted at different heights, § 73.3538 Application to make changes in Table A of § 73.525 with respect to a may not use the license modification an existing station. Channel 6 TV station, may not use this process to increase or decrease either * * * * * rule to decrease the horizontally the horizontal ERP or vertical ERP (b) An informal application filed in polarized ERP below the value of the without a construction permit. accordance with § 73.3511 is to be used vertically polarized ERP. * * * * * to obtain authority to modify or (v) Noncommercial educational FM (d) The following changes may be discontinue the obstruction marking or stations on Channels 201 through 220 made without authorization from the which are within the Table A distance lighting of the antenna supporting FCC, however informal notification of separations of § 73.525, or Class D structure where that specified on the the changes must be made according to stations on Channel 200, may not use station authorization either differs from the rule sections specified: the license modification process to that specified in 47 CFR part 17, or is eliminate an authorized horizontally (1) Commencement of remote control not appropriate for other reasons. polarized component in favor of operation pursuant to § 73.1400. [FR Doc. 2017–11425 Filed 6–1–17; 8:45 am] (2) Modification of an AM directional vertically polarized-only operation. In BILLING CODE 6712–01–P addition, noncommercial educational antenna sampling system. See § 73.68. stations operating on Channels 201 * * * * *

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Notices Federal Register Vol. 82, No. 105

Friday, June 2, 2017

This section of the FEDERAL REGISTER Department of Agriculture. Comments interested in attending, and desired contains documents other than rules or received in response to this docket will major); and extracurricular activities. proposed rules that are applicable to the be made available for public inspection The second section of the application is public. Notices of hearings and investigations, and posted without change, including completed by the student’s guidance committee meetings, agency decisions and any personal information, to http:// counselor and requests information rulings, delegations of authority, filing of petitions and applications and agency www.regulations.gov. pertaining to the student’s academic statements of organization and functions are Docket: For access to background status and grade point average. The last examples of documents appearing in this documents or comments received, section of the application, which is to be section. please contact the Office of Advocacy completed by a teacher, provides and Outreach, 1400 Independence information that assesses the applicant’s Avenue SW., Whitten Building Room interests, character, and potential. In DEPARTMENT OF AGRICULTURE 520–A, Mailstop 0601, Washington, DC addition to the application form, the 20250, between 8:00 a.m. and 4:30 p.m., college submission requires two letters Office of Advocacy and Outreach Monday through Friday. of recommendation—one from a FOR FURTHER INFORMATION CONTACT: Department Head, Dean or University Notice of Request for Approval of Jacqueline Padron, Program Director, Vice President, and another from a Information Collection Hispanic-Serving Institutions National College Professor. There are no sections AGENCY: Office of Advocacy and Program (HSINP), USDA OAO, 1400 included in the application that these Outreach, USDA. Independence Avenue SW., Room 520– individuals will need to complete. ACTION: Notice and request for A, Mailstop 0601, Washington, DC Frequency: Annually. comments. 20250, email: [email protected], Estimate of Burden: Public reporting Telephone: (202) 720–6506, Fax: (202) burden for this collection of information SUMMARY: In accordance with the 720–7704. is estimated to average one to two hours Paperwork Reduction Act of 1995, this SUPPLEMENTARY INFORMATION: per response. notice announces the Office of Title: USDA/HSI Scholars Program. Respondents: High School students, Advocacy and Outreach’s (OAO) intent OMB Number: 0503–New. freshman and sophomore college to request approval from the Office of Expiration Date of Approval: 3 years students, teachers, principals, guidance Management and Budget (OMB) to from approval date. counselors, and school administrators. conduct data collection for the U.S. Type of Request: New information Estimated Number of Respondents: Department of Agriculture (USDA) collection. 600 (200 applications). Hispanic-Serving Institutions (HSI) Abstract: The purpose of the USDA/ Estimated Number of Responses per Scholars Program. HSI Scholars Program is to strengthen Respondent: 1. DATES: Comments on this notice must be the long-term partnership between Estimated Total Annual Burden on received by August 1, 2017 to be USDA and the Hispanic-Serving Respondents: 700 hours. assured of consideration. Institutions; to increase the number of Comments are invited on: (1) Whether ADDRESSES: The Office of Advocacy and students studying and graduating in the proposed collection of information Outreach invites interested persons to food, agriculture, natural resources, and is necessary for the proper performance submit comments on this notice. other related fields of study; to develop of the functions of the agency, including Comments may be submitted by one of a pool of scientists and professionals to whether the information will have the following methods: fill jobs in the food, agricultural, or practical utility; (2) the accuracy of the Federal eRulemaking Portal: This natural resources system; and to create agency’s estimate of the burden of the Web site (http://www.regulations.gov) a talent pipeline for USDA. proposed collection of information; (3) provides the ability to type short The USDA/HSI Scholars Program is a ways to enhance the quality, utility, and comments directly into the comment joint human capital initiative between clarity of the information to be field on this Web page or attach a file USDA and Hispanic-Serving collected; and (4) ways to minimize the for lengthier comments. Follow the on- Institutions. Through the program, the burden of the collection of information line instructions at that site for USDA offers scholarships to high school on respondents, including the use of submitting comments. Send mail, and college students who are seeking a appropriate automated, electronic, including CD–ROMs, etc., to: Jacqueline bachelor’s degree in the fields of mechanical, or other technological Padron, U.S. Department of Agriculture, agriculture, food, or natural resource collection techniques or other forms of Office of Advocacy and Outreach, 1400 sciences, and related disciplines at information technology. Independence Avenue SW., Whitten Hispanic-Serving Institutions. In order Comments may be sent to Jacqueline Building Room 520–A, Mailstop 0601, for graduating high school students and Padron, Program Director, Hispanic- Washington, DC 20250. current freshmen and sophomores to be Serving Institutions National Program, Hand or courier submittals should be considered for the scholarship, a USDA Office of Advocacy and delivered to: Office of Advocacy and completed application is required. The Outreach, 1400 Independence Avenue Outreach, 1400 Independence Avenue first section of the high school SW., Room 520–A, Mail Stop 0601, SW., Whitten Building Room 520–A, application requests the applicant to Washington, DC 20250, or via email at: Mailstop 0601, Washington, DC 20250. include biographical information (e.g., [email protected]. All comments Instructions: All items submitted by name, address, etc.); educational received will be available for public mail or electronic mail must include background information (e.g., grade inspection during regular business Office of Advocacy and Outreach, U.S. point average, name of university(ies) hours at the same address.

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All responses to this notice will be comments; the comments must be The facility is used for the production summarized and included in the request received in the Regional Programs Unit of household trash cans and plastic for OMB’s approval. within 30 days following the meeting. storage totes. Pursuant to 15 CFR All comments will become a matter of Written comments may be mailed to the 400.14(b), FTZ activity would be limited public record. Western Regional Office, U.S. to the specific foreign-status materials/ Signed this 23rd day of May 2017. Commission on Civil Rights, 300 North components and specific finished Christian Obineme, Los Angeles Street, Suite 2010, Los products described in the submitted Angeles, CA 90012. They may be faxed Associate Director, Office of Advocacy and notification (as described below) and Outreach. to the Commission at (213) 894–0508, or subsequently authorized by the FTZ emailed Ana Victoria Fortes at afortes@ [FR Doc. 2017–11389 Filed 6–1–17; 8:45 am] Board. usccr.gov. Persons who desire BILLING CODE 3412–89–P additional information may contact the Production under FTZ procedures Regional Programs Unit at (213) 894– could exempt Hans-Mill from customs 3437. duty payments on the foreign-status COMMISSION ON CIVIL RIGHTS Records and documents discussed materials/components used in export production (an estimated five percent of Notice of Public Meeting of the Texas during the meeting will be available for shipments). On its domestic sales, Hans- Advisory Committee public viewing prior to and after the meeting at http://facadatabase.gov/ Mill would be able to choose the duty AGENCY: U.S. Commission on Civil committee/meetings.aspx?cid=276. rates during customs entry procedures Rights. Please click on the ‘‘Meeting Details’’ that apply to stainless steel/plastic trash ACTION: Announcement of meeting. and ‘‘Documents’’ links. Records cans and plastic storage totes, trash cans generated from this meeting may also be and liners (duty rates—2 or 3%) for the SUMMARY: Notice is hereby given, inspected and reproduced at the foreign-status materials/components pursuant to the provisions of the rules Regional Programs Unit, as they become noted below. Customs duties also could and regulations of the U.S. Commission available, both before and after the possibly be deferred or reduced on on Civil Rights (Commission) and the meeting. Persons interested in the work foreign-status production equipment. Federal Advisory Committee Act of this Committee are directed to the (FACA) that a meeting of the Texas Commission’s Web site, http:// The materials/components sourced Advisory Committee (Committee) to the www.usccr.gov, or may contact the from abroad include pre-cut/pre-treated Commission will be held at 2:00 p.m. Regional Programs Unit at the above stainless steel sheets, plastic lids, plastic (Central Time) Wednesday, June 28, email or street address. bases, pulp packaging material and 2017. The purpose of the meeting is for polypropylene resin material (duty rates the Committee to receive orientation Agenda range from free to 6.5%). The request from Commission staff and share project I. Welcome indicates that stainless steel sheets are process. II. Committee Meeting Discussion subject to an antidumping/ DATES: The meeting will be held on III. Discussion on FY17 Civil Rights Project countervailing duty (AD/CVD) order. Wednesday, June 28, 2017, at 2:00 p.m. Ideas The FTZ Board’s regulations (15 CFR CDT. IV. Public Comment 400.14(e)) require that merchandise V. Next Steps PUBLIC CALL INFORMATION: VI. Adjournment subject to AD/CVD orders be admitted Dial: 800–310–7032. to the zone in privileged foreign status Dated: May 26, 2017. Conference ID: 6093907. (19 CFR 146.41). David Mussatt, FOR FURTHER INFORMATION CONTACT: Ana Supervisory Chief, Regional Programs Unit. Public comment is invited from Victoria Fortes (DFO) at afortes@ interested parties. Submissions shall be [FR Doc. 2017–11403 Filed 6–1–17; 8:45 am] usccr.gov or (213) 894–3437. addressed to the FTZ Board’s Executive BILLING CODE P SUPPLEMENTARY INFORMATION: This Secretary at the address below. The meeting is available to the public closing period for their receipt is July through the following toll-free call-in 12, 2017. number: 800–310–7032, conference ID DEPARTMENT OF COMMERCE number: 6093907. Any interested A copy of the notification will be member of the public may call this Foreign-Trade Zones Board available for public inspection at the number and listen to the meeting. Office of the Executive Secretary, [B–36–2017] Callers can expect to incur charges for Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, calls they initiate over wireless lines, Foreign-Trade Zone (FTZ) 64— and the Commission will not refund any Jacksonville, Florida; Notification of 1401 Constitution Avenue NW., incurred charges. Callers will incur no Proposed Production Activity; Hans- Washington, DC 20230–0002, and in the charge for calls they initiate over land- Mill Corporation; Subzone 64D; ‘‘Reading Room’’ section of the FTZ line connections to the toll-free (Household Trash Cans and Plastic Board’s Web site, which is accessible telephone number. Persons with hearing Storage Totes); Jacksonville, Florida via www.trade.gov/ftz. impairments may also follow the For further information, contact Diane Hans-Mill Corporation (Hans-Mill), proceedings by first calling the Federal Finver at [email protected] or Relay Service at 1–800–977–8339 and operator of Subzone 64D, submitted a (202) 482–1367. providing the Service with the notification of proposed production conference call number and conference activity to the FTZ Board for its facility Dated: May 26, 2017. ID number. within Subzone 64D, in Jacksonville, Elizabeth Whiteman, Members of the public are entitled to Florida. The notification conforming to Acting Executive Secretary. make comments during the open period the requirements of the regulations of [FR Doc. 2017–11416 Filed 6–1–17; 8:45 am] at the end of the meeting. Members of the FTZ Board (15 CFR 400.22) was BILLING CODE 3510–DS–P the public may also submit written received on May 10, 2017.

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DEPARTMENT OF COMMERCE Foreign-Trade Zones Board, Room must be received no later than June 23, 21013, U.S. Department of Commerce, 2017. Foreign-Trade Zones Board 1401 Constitution Avenue NW., ADDRESSES: Send written comments to [B–37–2017] Washington, DC 20230–0002, and in the Brad Botwin, Director, Industrial ‘‘Reading Room’’ section of the FTZ Studies, Office of Technology Foreign-Trade Zone (FTZ) 114—Peoria, Board’s Web site, which is accessible Evaluation, Bureau of Industry and Illinois; Notification of Proposed via www.trade.gov/ftz. Security, U.S. Department of Commerce, Production Activity; Bell Sports, Inc.; For further information, contact Diane 1401 Constitution Avenue NW., Room Subzone 114F; (Sports Equipment); Finver at [email protected] or 1093, Washington, DC 20230 or by Rantoul, Illinois (202) 482–1367. email to [email protected]. Bell Sports, Inc. (Bell Sports) Dated: May 26, 2017. FOR FURTHER INFORMATION CONTACT: Brad submitted a notification of proposed Elizabeth Whiteman, Botwin, Director, Industrial Studies, production activity to the FTZ Board for Acting Executive Secretary. Office of Technology Evaluation, Bureau its facility in Rantoul, Illinois, within [FR Doc. 2017–11417 Filed 6–1–17; 8:45 am] of Industry and Security, U.S. Subzone 114F. The notification BILLING CODE 3510–DS–P Department of Commerce (202) 482– conforming to the requirements of the 4060, [email protected]. For regulations of the FTZ Board (15 CFR more information about the section 232 400.22) was received on May 15, 2017. DEPARTMENT OF COMMERCE program, including the regulations and Bell Sports already has authority to the text of previous investigations, see produce certain sports equipment Bureau of Industry and Security www.bis.doc.gov/232. within Subzone 114F. The current Submit public comments to request would add foreign status Change in Comment Deadline for [email protected]. materials/components to the scope of Section 232 National Security SUPPLEMENTARY INFORMATION: authority. Pursuant to 15 CFR 400.14(b), Investigation of Imports of Aluminum Background additional FTZ authority would be AGENCY: Bureau of Industry and limited to the specific foreign-status Security, Office of Technology On May 9, 2017 (82 FR 21509), the materials/components described in the Evaluation, U.S. Department of Bureau of Industry and Security (BIS) submitted notification (as described Commerce. published the Notice of Request for below) and subsequently authorized by Public Comments and Public Hearing on ACTION: Notice on change in comment the FTZ Board. Section 232 National Security Production under FTZ procedures period for previously published notice Investigation of Imports of Aluminum. could exempt Bell Sports from customs of request for public comments and The May 9 notice specified that on April duty payments on the foreign-status public hearing. 26, 2017, the Secretary of Commerce (‘‘Secretary’’) initiated an investigation materials/components used in export SUMMARY: On May 9, 2017, the Bureau production. On its domestic sales, Bell of Industry and Security (BIS), under section 232 of the Trade Sports would be able to choose the duty published the Notice of Request for Expansion Act of 1962, as amended (19 rates during customs entry procedures Public Comments and Public Hearing on U.S.C. 1862), to determine the effects on that apply to bicycle, motorcycle, Section 232 National Security the national security of imports of football and baseball helmets; bicycle Investigation of Imports of Aluminum. aluminum. (See the May 9 notice for baby seats; bicycle car carrier racks; and, The May 9 notice specified that the additional details on the investigation collectible football helmets (duty rates Secretary of Commerce initiated an and the request for public comments.) range from free to 10%) for the foreign- investigation to determine the effects on The May 9 notice also announced that status materials/components noted the national security of imports of the Department of Commerce will hold below. Customs duties also could aluminum. This investigation has been a public hearing on the investigation on possibly be deferred or reduced on initiated under section 232 of the Trade June 22, 2017 in Washington, DC. (See foreign-status production equipment. Expansion Act of 1962, as amended. the May 9 notice for additional details The materials/components sourced (See the May 9 notice for additional on the public hearing.) from abroad include polypropylene details on the investigation and the Change in Comment Period Deadline webbing for bike helmets, stainless steel request for public comments.) The May pins, aluminum screws, LED lights for The May 9 notice included a 9 notice also announced that the comment period deadline of June 29, bike helmets, and knee and elbow pad Department of Commerce will hold a sets (duty rates range from 2.5% to 2017 and required that written public hearing on the investigation on statements related to the public hearing 6.2%). The request indicates that the June 22, 2017 in Washington, DC (See polypropylene webbing for bike helmets also be submitted by June 29, 2017. The the May 9 notice for additional details Department of Commerce has (classified under HTSUS 5806.32) will on the public hearing.) The deadline for be admitted to the subzone in privileged determined at this time that it is the written comments was June 29, warranted to shorten the written foreign status (19 CFR 146.41), thereby 2017. Today’s notice moves the precluding inverted tariff savings on submission period by six calendar days. deadline for all written submissions up Today’s notice specifies that this item. by six calendar days. Commenters now Public comment is invited from commenters are encouraged to submit are encouraged to submit their interested parties. Submissions shall be their comments by June 20, 2017, but all comments by June 20, 2017, but all addressed to the FTZ Board’s Executive written submissions must now be written submissions must be received Secretary at the address below. The received by no later than June 23, 2017 by no later than June 23, 2017 to be closing period for their receipt is July to be considered in the drafting of the considered in the drafting of the final 12, 2017. final report. Submit public comments to A copy of the notification will be report. [email protected]. available for public inspection at the DATES: Comments are encouraged to be Receiving comments by June 20, 2017 Office of the Executive Secretary, submitted by June 20, but comments will assist the Commerce Department in

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preparing for the public hearing on the excluded from the Antidumping Duty withdrawn from warehouse, for investigation scheduled for June 22, Order. consumption on or after February 2, 2017. Moving the deadline for all 2017, the date of publication of the Correction written submissions to June 23, 2017 Amended Final Determination.5 will enable the Commerce Department Because the Department calculated a Continuation of Suspension of to more expeditiously finalize the weighted-average antidumping duty Liquidation, in Part report, taking account of the time- margin of zero percent for BKT in the sensitive nature of the national security Final Determination,2 which was In accordance with section implications related to this section 232 unchanged in the Amended Final 735(c)(1)(B) of the Act, the Department investigation of aluminum, and of the Determination,3 BKT is partially will instruct CBP to continue to suspend President’s direction to move quickly on excluded from the Antidumping Duty liquidation on all relevant entries of off this important matter. The Commerce Order. Therefore, we are correcting the road tires from India. These instructions Department has included one additional Antidumping Duty Order to specify that suspending liquidation will remain in day after the hearing concludes to allow merchandise produced and exported by effect until further notice. BKT is excluded from the Order. This people who attend or view remotely the We will also instruct CBP to require exclusion does not apply to hearing to submit any additional cash deposits equal to the estimated merchandise produced by BKT and comments they may have in response to weighted-average dumping margins exported by any other company or testimony during the hearing. indicated below. Accordingly, effective merchandise produced by any other Dated: May 31, 2017. on the date of publication of the ITC’s company and exported by BKT. final affirmative injury determinations, Wilbur Ross, Resellers of merchandise produced by CBP will require, at the same time as Secretary of Commerce. BKT, are also not entitled to this importers would normally deposit [FR Doc. 2017–11557 Filed 5–31–17; 4:15 pm] exclusion. The sections explaining the estimated duties on this subject BILLING CODE 3510–33–P suspension of liquidation and listing the merchandise, a cash deposit equal to the weighted-average antidumping duty estimated weighted-average margins and cash deposit rates should antidumping duty margins listed DEPARTMENT OF COMMERCE have appeared as follows: below.6 The all-others rate applies to all International Trade Administration Antidumping Duty Order producers or exporters not specifically listed. For the purposes of determining [A–533–869] In accordance with sections 735(b)(1)(A)(i) and 735(d) of the Tariff cash deposit rates, the estimated Certain New Pneumatic Off-the-Road Act of 1930, as amended (the Act), the weighted-average dumping margins for Tires From India: Notice of Correction International Trade Commission (ITC) imports of subject merchandise from to Antidumping Duty Order notified the Department of its final India have been adjusted for export determination that the industry in the subsidies found in the amended final AGENCY: Enforcement and Compliance, United States producing off road tires is determination of the companion International Trade Administration, materially injured by reason of the less- countervailing duty investigation of this Department of Commerce. 7 than-fair value imports of off road tires merchandise (i.e., 4.72 percent). FOR FURTHER INFORMATION CONTACT: Lilit from India.4 Therefore, in accordance Because the estimated weighted- Astvatsatrian or Trisha Tran, AD/CVD with section 735(c)(2) of the Act, we are average dumping margin for BKT’s Operations, Office IV, Enforcement and publishing this antidumping duty order. producer and exporter combination is Compliance, International Trade As a result of the ITC’s final zero, the Department is directing U.S. Administration, U.S. Department of determination, in accordance with Customs and Border Protection not to Commerce, 1401 Constitution Avenue section 736(a)(1) of the Act, the suspend liquidation of entries of subject NW., Washington, DC 20230; telephone: Department will direct U.S. Customs merchandise where BKT acted as both (202) 482–6412 or (202) 482–4852, and Border Protection (CBP) to assess, the producer and exporter. Entries of respectively. upon further instruction by the subject merchandise exported to the SUPPLEMENTARY INFORMATION: Department, antidumping duties equal United States by any other producer and to the amount by which the normal exporter combination are not entitled to Background value of the merchandise exceeds the this exclusion from suspension of On March 6, 2017, the Department of export price (or constructed export liquidation and are subject to the cash Commerce (Department) published the price) of the merchandise, for all deposit rate for the all-others entity. Antidumping Duty Order on certain new relevant entries of off-road tires from 1 Estimated Weighted-Average Dumping pneumatic off-the-road tires from India. India, which specifically excludes Margins In the Antidumping Duty Order, the merchandise exported and produced by Department inadvertently omitted a BKT. Antidumping duties will be The estimated weighted-average statement to explain that Balkrishna assessed on unliquidated entries of off antidumping duty margin percentages Industries Limited (BKT) is partially road tires from India entered, or are as follows:

1 See Certain New Pneumatic Off-the-Road Tires India and Countervailing Duty Orders, 82 FR 9056, 552–553 and 731–TA–1308 (Final), USITC from India: Antidumping Duty Order, 82 FR 12553 9058 (February 2, 2017) (Amended Final Publication 4669 (February 2017). (March 6, 2017) (Antidumping Duty Order). Determination). 5 See Amended Final Determination, 82 FR at 2 See Certain New Pneumatic Off-the-Road Tires 4 See Letter to Ronald Lorentzen, Acting Assistant 9056. From India: Final Negative Determination of Sales Secretary of Commerce for Enforcement and 6 See Section 736(a)(3) of the Act. at Less Than Fair Value and Final Determination Compliance, from Rhonda K. Schmidtlein, 7 of Critical Circumstances, 82 FR 4848, 4849 Chairman of the U.S. International Trade See Certain New Pneumatic Off-the-Road Tires (January 17, 2017) (‘‘Final Determination’’). Commission, regarding off the road tires from the from India and Sri Lanka: Amended Final 3 See Certain New Pneumatic Off-the-Road Tires India and Sri Lanka (February 23, 2017). See also Affirmative Countervailing Duty Determination for from India and Sri Lanka: Amended Final Certain New Pneumatic Off-the-Road Tires from India and Countervailing Duty Orders, 82 FR 12556 Affirmative Countervailing Duty Determination for India and Sri Lanka, Investigation Nos. 701–TA– (March 6, 2017).

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Weighted- Cash deposit average rate adjusted Exporter/producer dumping for subsidy margin offset (percent) (percent)

ATC Tires Private Ltd ...... 3.67 0.00 All-Others ...... 3.67 0.00

This correction to the Antidumping Commerce (the Department) is Background Duty Order is issued and published in automatically initiating the five-year accordance with section 736(a) of the reviews (Sunset Reviews) of the The Department’s procedures for the Act. antidumping and countervailing duty conduct of Sunset Reviews are set forth (AD/CVD) order(s) listed below. The in its Procedures for Conducting Five- Dated: May 26, 2017. Year (‘‘Sunset’’) Reviews of Ronald K. Lorentzen, International Trade Commission (the Commission) is publishing concurrently Antidumping and Countervailing Duty Acting Assistant Secretary for Enforcement Orders, 63 FR 13516 (March 20, 1998) and Compliance. with this notice its notice of Institution of Five-Year Reviews which covers the and 70 FR 62061 (October 28, 2005). [FR Doc. 2017–11424 Filed 6–1–17; 8:45 am] same order(s). Guidance on methodological or BILLING CODE 3510–DS–P analytical issues relevant to the DATES: Effective June 2, 2017. Department’s conduct of Sunset FOR FURTHER INFORMATION CONTACT: The Reviews is set forth in Antidumping DEPARTMENT OF COMMERCE Department official identified in the Proceedings: Calculation of the Initiation of Review section below at Weighted-Average Dumping Margin and International Trade Administration AD/CVD Operations, Enforcement and Assessment Rate in Certain Initiation of Five-Year (Sunset) Compliance, International Trade Antidumping Duty Proceedings; Final Reviews Administration, U.S. Department of Modification, 77 FR 8101 (February 14, Commerce, 1401 Constitution Avenue 2012). AGENCY: Enforcement and Compliance, NW., Washington, DC 20230. For International Trade Administration, information from the Commission Initiation of Review Department of Commerce. contact Mary Messer, Office of In accordance with 19 CFR SUMMARY: In accordance with section Investigations, U.S. International Trade 351.218(c), we are initiating Sunset 751(c) of the Tariff Act of 1930, as Commission at (202) 205–3193. Reviews of the following antidumping amended (the Act), the Department of SUPPLEMENTARY INFORMATION: and countervailing duty order(s):

DOC case No. ITC case No. Country Product Department contact

A–351–809 ...... 731–TA–532 ...... Brazil ...... Circular Welded Non-Alloy Steel Pipe (4th Jacqueline Arrowsmith Review). (202) 482–5255. A–533–502 ...... 731–TA–271 ...... India ...... Welded Carbon Steel Pipe and Tube (4th Robert James (202) Review). 482–0649. A–475–828 ...... 731–TA–865 ...... Italy ...... Stainless Steel Butt-Weld Pipe Fittings (4th Jacqueline Arrowsmith Review). (202) 482–5255. A–557–809 ...... 731–TA–866 ...... Malaysia ...... Stainless Steel Butt-Weld Pipe Fittings (3rd Jacqueline Arrowsmith Review). (202) 482–5255. A–201–805 ...... 731–TA–534 ...... Mexico ...... Circular Welded Non-Alloy Steel Pipe (4th Jacqueline Arrowsmith Review). (202) 482–5255. A–565–801 ...... 731–TA–867 ...... Philippines ...... Stainless Steel Butt-Weld Pipe Fittings (3rd Jacqueline Arrowsmith Review). (202) 482–5255. A–580–809 ...... 731–TA–533 ...... Republic of Korea ...... Circular Welded Non-Alloy Steel Pipe (4th Jacqueline Arrowsmith Review). (202) 482–5255. A–583–008 ...... 731–TA–132 ...... Taiwan ...... Certain Circular Welded Carbon Steel Pipes Jacqueline Arrowsmith and Tubes (4th Review). (202) 482–5255. A–549–502 ...... 731–TA–252 ...... Thailand ...... Certain Circular Welded Carbon Steel Pipes Jacqueline Arrowsmith and Tubes (4th Review). (202) 482–5255. A–489–501 ...... 731–TA–273 ...... Turkey ...... Certain Circular Welded Carbon Steel Pipes Robert James (202) and Tubes (4th Review). 482–0649. C–489–502 ...... 701–TA–253 ...... Turkey ...... Certain Circular Welded Carbon Steel Pipes Robert James (202) and Tubes (4th Review). 482–0649.

Filing Information revocations and continuations, and Department’s regulations regarding As a courtesy, we are making current service lists, available to the format, translation, and service of information related to sunset public on the Department’s Web site at documents. These rules, including proceedings, including copies of the the following address: http:// electronic filing requirements via pertinent statute and Department’s enforcement.trade.gov/sunset/. All Enforcement and Compliance’s regulations, the Department’s schedule submissions in these Sunset Reviews Antidumping and Countervailing Duty for Sunset Reviews, a listing of past must be filed in accordance with the Centralized Electronic Service System

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(ACCESS), can be found at 19 CFR of appearance within 10 days of the Dated: May 26, 2017. 351.303.1 publication of the Notice of Initiation. Gary Taverman, This notice serves as a reminder that Because deadlines in Sunset Reviews Deputy Assistant Secretary for Antidumping any party submitting factual information can be very short, we urge interested and Countervailing Duty Operations. in an AD/CVD proceeding must certify parties who want access to proprietary [FR Doc. 2017–11419 Filed 6–1–17; 8:45 am] to the accuracy and completeness of that information under administrative BILLING CODE 3510–DS–P information.2 Parties are hereby protective order (‘‘APO’’) to file an APO reminded that revised certification application immediately following requirements are in effect for company/ publication in the Federal Register of DEPARTMENT OF COMMERCE government officials as well as their this notice of initiation. The 3 National Oceanic and Atmospheric representatives in these segments. The Department’s regulations on submission Administration formats for the revised certifications are of proprietary information and provided at the end of the Final Rule. eligibility to receive access to business RIN 0648–XF447 The Department intends to reject factual proprietary information under APO can submissions if the submitting party does be found at 19 CFR 351.304–306. Fisheries of the South Atlantic; not comply with the revised Southeast Data, Assessment, and certification requirements. Information Required From Interested Review (SEDAR); Public Meetings On April 10, 2013, the Department Parties modified two regulations related to AD/ AGENCY: National Marine Fisheries CVD proceedings: The definition of Domestic interested parties, as Service, National Oceanic and factual information (19 CFR defined in section 771(9)(C), (D), (E), (F), Atmospheric Administration, 351.102(b)(21)), and the time limits for and (G) of the Act and 19 CFR Commerce. the submission of factual information 351.102(b), wishing to participate in a ACTION: Notice of SEDAR 50 Assessment (19 CFR 351.301).4 Parties are advised to Sunset Review must respond not later Webinars 3 and 4. review the final rule, available at http:// than 15 days after the date of enforcement.trade.gov/frn/2013/ publication in the Federal Register of SUMMARY: The SEDAR 50 assessment of 1304frn/2013-08227.txt, prior to this notice of initiation by filing a notice the Atlantic stock of Blueline Tilefish submitting factual information in these of intent to participate. The required will consist of a series of workshops and segments. To the extent that other contents of the notice of intent to webinars: Stock ID Work Group regulations govern the submission of participate are set forth at 19 CFR Meeting; Data Workshop; Assessment factual information in a segment (such 351.218(d)(1)(ii). In accordance with the Workshop and Webinars; and a Review as 19 CFR 351.218), these time limits Department’s regulations, if we do not Workshop. will continue to be applied. Parties are receive a notice of intent to participate DATES: The SEDAR 50 Assessment also advised to review the final rule from at least one domestic interested Webinars 3 and 4 will be held on concerning the extension of time limits party by the 15-day deadline, the Monday, June 19, 2017 and Monday, for submissions in AD/CVD Department will automatically revoke July 10, 2017, from 9 a.m. to 1 p.m. The 6 proceedings, available at http:// the order without further review. Review Workshop dates and times will enforcement.trade.gov/frn/2013/ If we receive an order-specific notice publish in a subsequent issue in the 1309frn/2013-22853.txt, prior to of intent to participate from a domestic Federal Register. submitting factual information in these interested party, the Department’s ADDRESSES: segments.5 regulations provide that all parties Meeting address: The meetings will be wishing to participate in a Sunset held via webinar. The webinar is open Letters of Appearance and Review must file complete substantive to members of the public. Those Administrative Protective Orders responses not later than 30 days after interested in participating should Pursuant to 19 CFR 351.103(d), the the date of publication in the Federal contact Julia Byrd at SEDAR (see FOR Department will maintain and make Register of this notice of initiation. The FURTHER INFORMATION CONTACT) to available a public service list for these required contents of a substantive request an invitation providing webinar proceedings. Parties wishing to response, on an order-specific basis, are access information. Please request participate in any of these five-year set forth at 19 CFR 351.218(d)(3). Note webinar invitations at least 24 hours in reviews must file letters of appearance that certain information requirements advance of each webinar. as discussed at 19 CFR 351.103(d)). To differ for respondent and domestic SEDAR address: South Atlantic facilitate the timely preparation of the parties. Also, note that the Department’s Fishery Management Council, 4055 public service list, it is requested that information requirements are distinct Faber Place Drive, Suite 201, N. those seeking recognition as interested from the Commission’s information Charleston, SC 29405; parties to a proceeding submit an entry requirements. Consult the Department’s www.sedarweb.org. regulations for information regarding FOR FURTHER INFORMATION CONTACT: Julia 1 See also Antidumping and Countervailing Duty the Department’s conduct of Sunset Proceedings: Electronic Filing Procedures; Byrd, SEDAR Coordinator, 4055 Faber Administrative Protective Order Procedures, 76 FR Reviews. Consult the Department’s Place Drive, Suite 201, North 39263 (July 6, 2011). regulations at 19 CFR part 351 for Charleston, SC 29405; phone: (843) 571– 2 See section 782(b) of the Act. definitions of terms and for other 4366; email: [email protected]. 3 See Certification of Factual Information To general information concerning SUPPLEMENTARY INFORMATION: Import Administration During Antidumping and The Gulf antidumping and countervailing duty of Mexico, South Atlantic, and Countervailing Duty Proceedings, 78 FR 42678 (July proceedings at the Department. 17, 2013) (Final Rule) (amending 19 CFR Caribbean Fishery Management 351.303(g)). This notice of initiation is being Councils, in conjunction with NOAA 4 See Definition of Factual Information and Time published in accordance with section Fisheries and the Atlantic and Gulf Limits for Submission of Factual Information: Final Rule, 78 FR 21246 (April 10, 2013). 751(c) of the Act and 19 CFR 351.218(c). States Marine Fisheries Commissions, 5 See Extension of Time Limits, 78 FR 57790 have implemented the Southeast Data, (September 20, 2013). 6 See 19 CFR 351.218(d)(1)(iii). Assessment and Review (SEDAR)

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process, a multi-step method for Note: The times and sequence specified in FOR FURTHER INFORMATION CONTACT: Dr. determining the status of fish stocks in this agenda are subject to change. Kit Dahl, Pacific Council Staff Officer; the Southeast Region. SEDAR is a three- Authority: 16 U.S.C. 1801 et seq. phone: (503) 820–2422; email: kit.dahl@ step process including: (1) Data noaa.gov. Workshop; (2) Assessment Process Dated: May 30, 2017. utilizing a workshop and/or webinars; Tracey L. Thompson, SUPPLEMENTARY INFORMATION: In March and (3) Review Workshop. The product Acting Deputy Director, Office of Sustainable 2017, the Pacific Council requested the of the Data Workshop is a data report Fisheries, National Marine Fisheries Service. EWG to discuss the two ecosystem which compiles and evaluates potential [FR Doc. 2017–11430 Filed 6–1–17; 8:45 am] initiatives identified in Appendix A to datasets and recommends which BILLING CODE 3510–22–P the Council’s Fishery Ecosystem Plan: A datasets are appropriate for assessment combined initiative on the socio- analyses. The product of the Assessment economic effects of fisheries Process is a stock assessment report DEPARTMENT OF COMMERCE management practices on fishing which describes the fisheries, evaluates communities (A.2.7) and on human the status of the stock, estimates National Oceanic and Atmospheric recruitment to the fisheries (A.2.6), and biological benchmarks, projects future Administration an initiative on the effects of near-term population conditions, and recommends RIN 0648–XF446 climate shift and long-term climate research and monitoring needs. The change on our fish, fisheries, and fishing assessment is independently peer Pacific Fishery Management Council; communities (A.2.8). The EWG intends reviewed at the Review Workshop. The Public Meeting to discuss the specific objectives of the product of the Review Workshop is a initiatives, inventory available summary documenting panel opinions AGENCY: National Marine Fisheries information, and propose a timeline for regarding the strengths and weaknesses Service, National Oceanic and completing either or both initiatives. Atmospheric Administration, of the stock assessment and input data. The Council directed the EWG to report Commerce. Participants for SEDAR Workshops are back at the September 2017 Pacific appointed by the Gulf of Mexico, South ACTION: Notice; public meeting. Council meeting. The purpose of this Atlantic, and Caribbean Fishery webinar is for the EWG to discuss the Management Councils and NOAA SUMMARY: The Pacific Fishery tasks outlined above and begin planning Fisheries Southeast Regional Office, Management Council’s Ad Hoc Highly Migratory Species Management Ecosystem Workgroup will hold a their report for the September 2017 Division, and Southeast Fisheries webinar, which is open to the public. Pacific Council meeting. Science Center. Participants include: DATES: The webinar will be held on Although nonemergency issues not Data collectors and database managers; Monday, June 19, 2017, from 2 p.m. to contained in the meeting agenda may be stock assessment scientists, biologists, 4:30 p.m., or when business for the day discussed, those issues may not be the and researchers; constituency is completed. subject of formal action during this representatives including fishermen, ADDRESSES: To join the webinar visit meeting. Action will be restricted to environmentalists, and non- this link: http://www.gotomeeting.com/ those issues specifically listed in this governmental organizations (NGOs); online/webinar/join-webinar. Enter the document and any issues arising after international experts; and staff of Webinar ID: 473–224–379. Enter your publication of this document that Councils, Commissions, and state and name and email address (required). You require emergency action under section federal agencies. must use your telephone for the audio 305(c) of the Magnuson-Stevens Fishery The items of discussion at the portion of the meeting by dialing this Conservation and Management Act, Assessment webinars are as follows: TOLL number +1 (631) 992–3221. Enter provided the public has been notified of Participants will discuss any remaining the Attendee phone audio access code the intent to take final action to address modeling issues from the Assessment 887–175–225. Enter your audio phone the emergency. Workshop. pin (shown after joining the webinar). Although non-emergency issues not Note: We have disabled Mic/Speakers as Special Accommodations an option and require all participants to contained in this agenda may come This meeting is physically accessible use a telephone or cell phone to before this group for discussion, those to people with disabilities. Requests for issues may not be the subject of formal participate. Technical Information and sign language interpretation or other action during these meetings. Action System Requirements: PC-based ® auxiliary aids should be directed to Mr. will be restricted to those issues attendees are required to use Windows ® Kris Kleinschmidt at (503) 820–2411 at specifically identified in this notice and 7, Vista, or XP; Mac -based attendees ® any issues arising after publication of are required to use Mac OS X 10.5 or least 10 business days prior to the this notice that require emergency newer; Mobile attendees are required to meeting date. ® ® action under section 305(c) of the use iPhone , iPad , AndroidTM phone Dated: May 30, 2017. Magnuson-Stevens Fishery or Android tablet (See the GoToMeeting Tracey L. Thompson, WebinarApps). You may send an email Conservation and Management Act, Acting Deputy Director, Office of Sustainable to Mr. Kris Kleinschmidt provided the public has been notified of Fisheries, National Marine Fisheries Service. the intent to take final action to address ([email protected]) or contact [FR Doc. 2017–11429 Filed 6–1–17; 8:45 am] the emergency. him at (503) 820–2411 for technical assistance. A public listening station BILLING CODE 3510–22–P Special Accommodations will also be provided at the Pacific These meetings are accessible to Council office. people with disabilities. Requests for Council office address: Pacific Fishery auxiliary aids should be directed to the Management Council, 7700 NE. SAFMC office (see ADDRESSES) at least Ambassador Place, Suite 101, Portland, 10 business days prior to the meeting. OR 97220–1384.

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COMMITTEE FOR PURCHASE FROM Mason, Buildings 101, 201 and 204, San Industries, Roseville, CA PEOPLE WHO ARE BLIND OR Francisco, CA. Contracting Activity: Dept of the Air Force, SEVERELY DISABLED Mandatory Source(s) of Supply: Toolworks, FA2823 AFTC PZIO Inc., San Francisco, CA. Amy B. Jensen, Procurement List; Proposed Additions Contracting Activity: Department of the Interior, National Park Service. Director, Business Operations. and Deletions Service Type: Individual Equipment [FR Doc. 2017–11468 Filed 6–1–17; 8:45 am] Elements (IEE) Store Service. AGENCY: Committee for Purchase From BILLING CODE 6353–01–P People Who Are Blind or Severely Mandatory for: US Air Force, Elmendorf AFB, 10480 Sijan Avenue, Joint Base Disabled. Elmendorf-Richardson, AK. ACTION: Proposed additions to and Mandatory Source(s) of Supply: RLCB, Inc., COMMITTEE FOR PURCHASE FROM deletions from the Procurement List. Raleigh, NC. PEOPLE WHO ARE BLIND OR Contracting Activity: Dept of the Air Force, SEVERELY DISABLED SUMMARY: The Committee is proposing FA5000 673 CONS LGC to add a product and services to the Service Type: Dispenser Machine Support Procurement List; Deletions Procurement List that will be furnished Service AGENCY: by nonprofit agencies employing Mandatory for: US Navy, Naval Medical Committee for Purchase From persons who are blind or have other Center San Diego, 34800 Bob Wilson People Who Are Blind or Severely severe disabilities, and deletes products Drive, San Diego, CA Disabled. Mandatory Source(s) of Supply: Job Options, and services previously furnished by ACTION: Deletions from the Procurement Inc., San Diego, CA List. such agencies. Contracting Activity: Dept of the Navy, Naval Comments must be received on or Medical Center SUMMARY: This action deletes products before: July 2, 2017. from the Procurement List previously ADDRESSES: Deletions Committee for Purchase furnished by nonprofit agencies from People Who are Blind or Severely The following products and services employing persons who are blind or Disabled, 1401 S. Clark Street, Suite are proposed for deletion from the have other severe disabilities. 715, Arlington, Virginia 22202–4149. Procurement List: DATES: Effective: July 2, 2017. FOR FURTHER INFORMATION OR TO SUBMIT Products COMMENTS CONTACT: Amy B. Jensen, ADDRESSES: Committee for Purchase NSN(s)—Product Name(s): Telephone: (703) 603–7740, Fax: (703) From People Who Are Blind or Severely FS1349B—Windbreaker, SCSEP, Forest Disabled, 1401 S. Clark Street, Suite 603–0655, or email CMTEFedReg@ Service, Dark/Green/Pantone, Various AbilityOne.gov. Sizes 715, Arlington, Virginia 22202–4149. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: This FS509A—Vest, Forest Service, SCSEP, notice is published pursuant to 41 Various Sizes Amy B. Jensen, Telephone: (703) 603– FS240—Jeans, Field, Forest Service, Men’s, U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its 7740, Fax: (703) 603–0655, or email Various Sizes [email protected]. purpose is to provide interested persons FS400—Pants, Field, Forest Service, Men’s, SUPPLEMENTARY INFORMATION: an opportunity to submit comments on Dark Green/Pantone, Wool, Various the proposed actions. Sizes Deletions FS326—Cap, Baseball, Forest Service, Dark Additions Green/Pantone, Nylon Mesh, Various On April 28, 2017 (82 FR 19662– If the Committee approves the Sizes 19663), the Committee for Purchase proposed additions, the entities of the FS521—Cap, SCSEP, Forest Service, Dark From People Who Are Blind or Severely Federal Government identified in this Green/Pantone, Nylon Mesh, Various Disabled published notice of proposed notice will be required to procure the Sizes deletions from the Procurement List. product and services listed below from FS9552—Patches, Volunteer, Forest After consideration of the relevant Service, Pkg. of 10 matter presented, the Committee has nonprofit agencies employing persons FS875—Nameplate, Forest Service, Law who are blind or have other severe Enforcement, Gold Plated determined that the products listed disabilities. 8455–00–NSH–0012—Patches, Volunteer, below are no longer suitable for The following product and services Forest Service, Pkg. of 10 procurement by the Federal Government are proposed for addition to the 8455–00–NSH–0022—Nameplate, Forest under 41 U.S.C. 8501–8506 and 41 CFR Procurement List for production by the Service, Law Enforcement, Gold Plated 51–2.4. nonprofit agencies listed: 8455–00–NSH–0023—Patch, Forest Service, Law Enforcement, Large Regulatory Flexibility Act Certification Product 8455–00–NSH–0024—Patch, Forest I certify that the following action will NSN(s)—Product Name(s): MR 13008— Service, Law Enforcement, Small not have a significant impact on a Melon Baller. Mandatory Source(s) of Supply: Human substantial number of small entities. Technologies Corporation, Utica, NY Mandatory Source(s) of Supply: Cincinnati The major factors considered for this Association for the Blind, Cincinnati, Contracting Activity: Department Of OH. Agriculture, Washington Office certification were: Mandatory for: The requirements of military 1. The action will not result in commissaries and exchanges in Services additional reporting, recordkeeping or accordance with the Code of Federal Service Type: Grounds Maintenance Service other compliance requirements for small Regulations, 41 CFR 51–6.4. Mandatory for: entities. Contracting Activity: Defense Commissary Eglin Air Force Base: Duke Field, Eglin, FL 2. The action may result in Agency. Eglin Air Force Base: East of Memorial authorizing small entities to furnish the Distribution: C-List Trail (excluding the airfield), Eglin, FL Eglin Air Force Base: Navy EOD, Eglin, FL products to the Government. Services Eglin Air Force Base: Ranger Camp, Eglin, 3. There are no known regulatory Service Type: Custodial Service. FL alternatives which would accomplish Mandatory for: National Park Service, Golden Eglin Air Force Base: Site C–6, Eglin, FL the objectives of the Javits-Wagner- Gate National Recreation Area, Fort Mandatory Source(s) of Supply: PRIDE O’Day Act (41 U.S.C. 8501–8506) in

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connection with the products deleted Solutions, Inc., Lexington, KY SUPPLEMENTARY INFORMATION: The from the Procurement List. Contracting Activity: Department of Justice, Department of Education (ED), in Federal Prison System accordance with the Paperwork End of Certification NSN(s)—Product Name(s): MR 942—Cloth, Reduction Act of 1995 (PRA) (44 U.S.C. Accordingly, the following products Dish, 2 pack 3506(c)(2)(A)), provides the general are deleted from the Procurement List: Mandatory Source(s) of Supply: Lions Services, Inc., Charlotte, NC public and Federal agencies with an Products Contracting Activity: Defense Commissary opportunity to comment on proposed, revised, and continuing collections of NSN(s)—Product Name(s): Agency 7530-01-368-3491—Index Dividers, NSN(s)—Product Name(s): 1430–01–133– information. This helps the Department White Tabs with Black Print, January– 8435—Bag, Storage assess the impact of its information December Mandatory Source(s) of Supply: Huntsville collection requirements and minimize Mandatory Source(s) of Supply: South Texas Rehabilitation Foundation, Huntsville, the public’s reporting burden. It also Lighthouse for the Blind, Corpus Christi, AL helps the public understand the TX Contracting Activity: Defense Logistics Department’s information collection Contracting Activities: Agency Land and Maritime requirements and provide the requested General Services Administration, New Amy B. Jensen, data in the desired format. ED is York, NY soliciting comments on the proposed Department of Veterans Affairs, Strategic Director, Business Operations. Acquisition Center [FR Doc. 2017–11469 Filed 6–1–17; 8:45 am] information collection request (ICR) that is described below. The Department of NSN(s)—Product Name(s): BILLING CODE 6353–01–P 7930–00–NIB–0210 Cleaner, Phenolic Education is especially interested in Disinfectant, Concentrate, 2 Liter public comment addressing the 7930–01–381–5957 Cleaner, Pretreatment DEPARTMENT OF EDUCATION following issues: (1) Is this collection Carpet, Concentrate, 2 Liter necessary to the proper functions of the 7930–01–412–1031 Cleaner, Scotchgard [Docket No.: ED–2017–ICCD–0075] Department; (2) will this information be Bonnet, Concentrate, 2 Liter processed and used in a timely manner; Mandatory Source(s) of Supply: Beacon Agency Information Collection (3) is the estimate of burden accurate; Lighthouse, Inc., Wichita Falls, TX Activities; Comment Request; U.S. (4) how might the Department enhance Contracting Activity: Department of Veterans Department of Education Affairs, Strategic Acquisition Center the quality, utility, and clarity of the Supplemental Information for the SF– information to be collected; and (5) how NSN(s)—Product Name(s): 7350–01–359– 424 Form 9524—Cup, Paper, Recyclable, White, 9 might the Department minimize the oz. AGENCY: Office of the Secretary (OS), burden of this collection on the Mandatory Source(s) of Supply: Clovernook Department of Education (ED). respondents, including through the use Center for the Blind and Visually ACTION: Notice. of information technology. Please note Impaired, Cincinnati, OH that written comments received in Contracting Activity: General Services SUMMARY: In accordance with the response to this notice will be Administration, Fort Worth, TX Paperwork Reduction Act of 1995, ED is considered public records. NSN(s)—Product Name(s): proposing an extension of an existing Title of Collection: U.S. Department of 7520–01–624–9379—Pen, Roller Ball, information collection. Education Supplemental Information for Liquid Ink, Retractable, Needle Point, DATES: Interested persons are invited to the SF–424 Form. Airplane Safe, 0.5mm, Refillable, Black, OMB Control Number: 1894–0007. EA submit comments on or before August 1, 7520–01–624–9383—Pen, Roller Ball, 2017. Type of Review: An extension of an existing information collection. Liquid Ink, Retractable, Needle Point, ADDRESSES: To access and review all the Airplane Safe, 0.5mm, Refillable, Blue, Respondents/Affected Public: State, documents related to the information Local, and Tribal Governments. EA collection listed in this notice, please 7520–01–624–9384—Pen, Roller Ball, Total Estimated Number of Annual Liquid Ink, Retractable, Needle Point, use http://www.regulations.gov by Responses: 8,078. Airplane Safe, 0.7mm, Refillable, Black, searching the Docket ID number ED– Total Estimated Number of Annual EA 2017–ICCD–0075. Comments submitted Burden Hours: 2,666. 7520–01–624–9385—Pen, Roller Ball, in response to this notice should be Abstract: The U.S. Department of Liquid Ink, Retractable, Needle Point, submitted electronically through the Education Supplemental Information Airplane Safe, 0.7mm, Refillable, Blue, Federal eRulemaking Portal at http:// form for the SF–424 is used together EA www.regulations.gov by selecting the with the SF–424, Application for Mandatory Source(s) of Supply: San Antonio Docket ID number or via postal mail, Lighthouse for the Blind, San Antonio, Federal Assistance. Several years ago ED TX commercial delivery, or hand delivery. made a decision to switch from its Contracting Activity: General Services Please note that comments submitted by previously cleared form, the Administration, New York, NY fax or email and those submitted after Application for Federal Education NSN(s)—Product Name(s): 7520–01–466– the comment period will not be Assistance or ED 424 (1890–0017) 0485—Tray, Desk, Plastic accepted. Written requests for collection (now 1894–0007). ED made a Mandatory Source(s) of Supply: LC information or comments submitted by policy decision to switch to the SF–424 Industries, Inc., Durham, NC postal mail or delivery should be in keeping with Federal-wide forms Contracting Activity: General Services addressed to the Director of the standardization and streamlining efforts, Administration, New York, NY Information Collection Clearance especially with widespread agency use NSN(s)—Product Name(s): Division, U.S. Department of Education, of Grants.gov. 891500–NSH–0145—Diced Green Peppers 400 Maryland Avenue SW., LBJ, Room There were several data elements/ Diced Green Peppers 216–32, Washington, DC 20202–4537. 891500–NSH–0146—Sliced Yellow Onions questions on the ED 424 that were Sliced Yellow Onions FOR FURTHER INFORMATION CONTACT: For required for ED applicants that were not 891500–NSH–0147—Cole Slaw with specific questions related to collection included on the SF–424. Therefore, ED Carrots activities, please contact Alfreida put these questions that were already Mandatory Source(s) of Supply: Employment Pettiford, 202–245–6110. cleared as part of the 1890–0017

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collection (now 1894–0007) on a form Octamethylcyclotetrasiloxane (D4) in polishes, sanitation, soaps, entitled the, U.S. Department of (CASRN 556–67–2). detergents, adhesives, and sealants. Education Supplemental Information for 2. Applicable Rule, Order, or Consent II. Authority the SF–424. Agreement: Enforceable Consent The questions on this form deal with Section 4(d) of TSCA (15 U.S.C. Agreement for Environmental Testing the following areas: Project Director 2603(d)) requires EPA to publish a for Octamethylcyclotetrasiloxane (D4) identifying and contact information; notice in the Federal Register reporting (CASRN 556–67–2). Novice Applicants; and Human Subjects the receipt of information submitted 3. Information Received: The Research. The ED supplemental pursuant to a rule, order, or consent following listing describes the nature of information form could be used with agreement promulgated under TSCA the information received. The any of the SF–424 forms in the SF–424 section 4 (15 U.S.C. 2603). information will be added to the docket forms family, as applicable. for the applicable TSCA section 4 rule, III. Docket Information Dated: May 30, 2017. order, or consent agreement and can be Tomakie Washington, A docket, identified by the docket found by referencing the docket ID Acting Director, Information Collection identification (ID) number EPA–HQ– number provided. EPA reviews of Clearance Division, Office of the Chief Privacy OPPT–2013–0677, has been established information will be added to the same Officer, Office of Management. for this Federal Register document, docket upon completion. [FR Doc. 2017–11406 Filed 6–1–17; 8:45 am] which announces the receipt of the 4. D4 Environmental Testing ECA— Interim Progress Report #6. The docket BILLING CODE 4000–01–P information. Upon EPA’s completion of its quality assurance review, the ID number assigned to this information information received will be added to is EPA–HQ–OPPT–2012–0209. ENVIRONMENTAL PROTECTION the docket identified in Unit IV., which Authority: 15 U.S.C. 2601 et seq. AGENCY represents the docket used for the TSCA section 4 rule, order, and/or consent Dated: April 10, 2017. [EPA–HQ–OPPT–2013–0677; FRL–9961–06] agreement. In addition, once completed, Maria J. Doa, EPA reviews of the information received Director, Chemical Control Division, Office Receipt of Information Under the Toxic will be added to the same docket. Use of Pollution Prevention and Toxics. Substances Control Act the docket ID number provided in Unit [FR Doc. 2017–11460 Filed 6–1–17; 8:45 am] AGENCY: Environmental Protection IV. to access the information received BILLING CODE 6560–50–P Agency (EPA). and any available EPA review. EPA’s dockets are available ACTION: Notice. ENVIRONMENTAL PROTECTION electronically at http:// AGENCY SUMMARY: EPA is announcing its receipt www.regulations.gov or in person at the of information submitted pursuant to a Office of Pollution Prevention and [ER–FRL–9033–5] rule, order, or consent agreement issued Toxics Docket (OPPT Docket), under the Toxic Substances Control Act Environmental Protection Agency Environmental Impact Statements; (TSCA). As required by TSCA, this Docket Center (EPA/DC), West William Notice of Availability document identifies each chemical Jefferson Clinton Bldg., Rm. 3334, 1301 Responsible Agency: Office of Federal substance and/or mixture for which Constitution Ave. NW., Washington, Activities, General Information (202) information has been received; the uses DC. The Public Reading Room is open 564–7146 or http://www.epa.gov/nepa. or intended uses of such chemical from 8:30 a.m. to 4:30 p.m., Monday substance and/or mixture; and describes through Friday, excluding legal Weekly receipt of Environmental Impact the nature of the information received. holidays. The telephone number for the Statements (EISs) Each chemical substance and/or mixture Public Reading Room is (202) 566–1744, Filed 05/22/2017 Through 05/26/2017 related to this announcement is and the telephone number for the OPPT Pursuant to 40 CFR 1506.9. identified in Unit I. under Docket is (202) 566–0280. Please review Notice SUPPLEMENTARY INFORMATION. the visitor instructions and additional FOR FURTHER INFORMATION CONTACT: For information about the docket available Section 309(a) of the Clean Air Act technical information contact: John at http://www.epa.gov/dockets. requires that EPA make public its Schaeffer, Chemical Control Division comments on EISs issued by other IV. Information Received (7405M), Office of Pollution Prevention Federal agencies. EPA’s comment letters and Toxics, Environmental Protection As specified by TSCA section 4(d), on EISs are available at: http:// Agency, 1200 Pennsylvania Ave. NW., this unit identifies the information www.epa.gov/compliance/nepa/ Washington, DC 20460–0001; telephone received by EPA. eisdata.html. number: (202) 564–8173; email address: EIS No. 20170091, Draft, USAF, OH, Octamethylcyclotetrasiloxane (D4) [email protected]. Wright-Patterson Air Force Base For general information contact: The (CASRN 556–67–2). Housing Program, Comment Period TSCA-Hotline, ABVI-Goodwill, 422 1. Chemical Use: D4 is used as an Ends: 07/17/2017, Contact: Mike South Clinton Ave., Rochester, NY intermediate for silicone copolymers Ackerman 210–925–2741 14620; telephone number: (202) 554– and other chemicals. D4 is also used in EIS No. 20170092, Draft, USACE, 1404; email address: TSCA-Hotline@ industrial processing applications as a USFWS, CA, South Sacramento epa.gov. solvent (which becomes part of a Habitat Conservation Plan, Comment SUPPLEMENTARY INFORMATION: product formulation or mixture), Period Ends: 09/05/2017, Contact: finishing agent, and an adhesive and John Robles 916–414–6731 (USFWS), I. Chemical Substances and/or Mixtures sealant chemical. It is also used for both Michael Jewell 916–557–6605 Information received about the consumer and commercial purposes in (USACE) following chemical substance and/or paints and coatings, and plastic and The U.S. Department of the Interior’s mixture is provided in Unit IV.: rubber products and has consumer uses Fish and Wildlife Service and U.S.

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Army Corps of Engineers are joint lead prepared to show a photo identification the burden of the collection of agencies on this project. when you arrive. If you need assistance information on the respondents, EIS No. 20170093, Draft Supplement, for accessibility reasons, or if you have including the use of automated FTA, CA, Westside Purple Line any questions, contact Dale L. Aultman, collection techniques or other forms of Extension, Comment Period Ends: Secretary to the Farm Credit System information technology; and ways to 07/17/2017, Contact: Ray Tellis 213– Insurance Corporation Board, at (703) further reduce the information 202–3950 883–4009. The matters to be considered collection burden on small business at the meeting are: concerns with fewer than 25 employees. Amended Notices The FCC may not conduct or sponsor Closed Session EIS No. 20170031, Draft, USFS, ID, Big a collection of information unless it Creek Hot Springs Geothermal • FCSIC Report on System Performance displays a currently valid Office of Leasing, Comment Period Ends: and Liquidity Management and Budget (OMB) control 07/03/2017, Contact: Julie Hopkins Open Session number. No person shall be subject to 208–756–5279. any penalty for failing to comply with Revision to FR Notice Published 03/ A. Approval of Minutes a collection of information subject to the 17/2017; Reopening the Comment • March 9, 2017 PRA that does not display a valid OMB Period to End 07/03/2017. control number. B. Business Reports Dated: May 30, 2017. DATES: Written comments should be • Dawn Roberts, FCSIC Financial Reports submitted on or before August 1, 2017. • Report on Insured Obligations If you anticipate that you will be Management Analyst, NEPA Compliance • Quarterly Report on Annual Division, Office of Federal Activities. submitting comments, but find it Performance Plan [FR Doc. 2017–11464 Filed 6–1–17; 8:45 am] difficult to do so within the period of BILLING CODE 6560–50–P C. New Business time allowed by this notice, you should • advise the contacts below as soon as Policy Statement on Strategic possible. Planning FARM CREDIT SYSTEM INSURANCE • Mid-Year Review of Insurance ADDRESSES: Direct all PRA comments to CORPORATION Premium Rates Cathy Williams, FCC, via email: PRA@ fcc.gov and to [email protected]. Notice of Regular Meeting Dated: May 30, 2017. Dale L. Aultman, FOR FURTHER INFORMATION CONTACT: For additional information about the AGENCY: Farm Credit System Insurance Secretary, Farm Credit System Insurance Corporation Board. Corporation Board. information collection, contact Cathy Williams at (202) 418–2918. ACTION: Notice of regular meeting. [FR Doc. 2017–11408 Filed 6–1–17; 8:45 am] BILLING CODE 6710–01–P SUPPLEMENTARY INFORMATION: As part of SUMMARY: Notice is hereby given of the its continuing effort to reduce regular meeting of the Farm Credit paperwork burdens, and as required by System Insurance Corporation Board FEDERAL COMMUNICATIONS the PRA, 44 U.S.C. 3501–3520, the FCC (Board). COMMISSION invites the general public and other DATES: The meeting of the Board will be Federal agencies to take this [OMB 3060–xxxx] held at the offices of the Farm Credit opportunity to comment on the following information collections. Administration in McLean, Virginia, on Information Collection Being Reviewed June 8, 2017, from 2:00 p.m. until such Comments are requested concerning: by the Federal Communications Whether the proposed collection of time as the Board concludes its Commission business. information is necessary for the proper AGENCY: Federal Communications performance of the functions of the ADDRESSES: Farm Credit System Commission. Commission, including whether the Insurance Corporation, 1501 Farm information shall have practical utility; Credit Drive, McLean, Virginia 22102. ACTION: Notice and request for comments. the accuracy of the Commission’s Submit attendance requests via email to burden estimate; ways to enhance the [email protected]. See SUMMARY: As part of its continuing effort quality, utility, and clarity of the SUPPLEMENTARY INFORMATION for further to reduce paperwork burdens, and as information collected; ways to minimize information about attendance requests. required by the Paperwork Reduction the burden of the collection of FOR FURTHER INFORMATION CONTACT: Dale Act of 1995 (PRA), the Federal information on the respondents, L. Aultman, Secretary to the Farm Communications Commission (FCC or including the use of automated Credit System Insurance Corporation Commission) invites the general public collection techniques or other forms of Board, (703) 883–4009, TTY (703) 883– and other Federal agencies to take this information technology; and ways to 4056. opportunity to comment on the further reduce the information SUPPLEMENTARY INFORMATION: Parts of following information collections. collection burden on small business this meeting of the Board will be open Comments are requested concerning: concerns with fewer than 25 employees. to the public (limited space available), Whether the proposed collection of OMB Control Number: 3060–xxxx. and parts will be closed to the public. information is necessary for the proper Title: FCC Form 2100, Application for Please send an email to VisitorRequest@ performance of the functions of the Media Bureau Video Service FCA.gov at least 24 hours before the Commission, including whether the Authorization, Schedule 387 (Transition meeting. In your email include: Name, information shall have practical utility; Progress Report). postal address, entity you are the accuracy of the Commission’s Form Number: FCC Form 2100, representing (if applicable), and burden estimate; ways to enhance the Schedule 387 (Transition Progress telephone number. You will receive an quality, utility, and clarity of the Report Form). email confirmation from us. Please be information collected; ways to minimize Type of Review: New collection.

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Respondents: Business or other for- Reports following the filing procedures Board of Governors of the Federal Reserve profit entities; not-for-profit institutions. adopted for Reimbursable Stations. System, May 30, 2017. Number of Respondents and The Commission is seeking from the Yao-Chin Chao, Responses: 1,000 respondents; 3,333 Office of Management and Budget Assistant Secretary of the Board. responses. (OMB) approval for FCC Form 2100, [FR Doc. 2017–11437 Filed 6–1–17; 8:45 am] Schedule 387 (Transition Progress Estimated Time per Response: 2 hours BILLING CODE 6210–01–P (1 hour to complete the form, 1 hour to Report). respond to technical questions). Federal Communications Commission. Frequency of Response: On occasion Marlene H. Dortch, FEDERAL RESERVE SYSTEM reporting requirement. Secretary, Office of the Secretary. Total Annual Burden: 6,666 hours. Formations of, Acquisitions by, and [FR Doc. 2017–11336 Filed 6–1–17; 8:45 am] Total Annual Costs: $260,241. Mergers of Bank Holding Companies Obligation to Respond: Required to BILLING CODE 6712–01–P obtain or retain benefits. The statutory The companies listed in this notice authority for this collection is contained have applied to the Board for approval, in Public Law 112–96, § 6402 (codified FEDERAL RESERVE SYSTEM pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) at 47 U.S.C. 309(j)(8)(G)), 6403 (codified Formations of, Acquisitions by, and (BHC Act), Regulation Y (12 CFR part at 47 U.S.C. 1452), 126 Stat. 156 (2012) Mergers of Bank Holding Companies (Spectrum Act). 225), and all other applicable statutes Nature and Extent of Confidentiality: The companies listed in this notice and regulations to become a bank There is no need for confidentiality with have applied to the Board for approval, holding company and/or to acquire the this collection of information. pursuant to the Bank Holding Company assets or the ownership of, control of, or Privacy Impact Assessment(s): No Act of 1956 (12 U.S.C. 1841 et seq.) the power to vote shares of a bank or impact(s). (BHC Act), Regulation Y (12 CFR part bank holding company and all of the Needs and Uses: By Public Notice 225), and all other applicable statutes banks and nonbanking companies released January 10, 2017, The Incentive and regulations to become a bank owned by the bank holding company, Auction Task Force and Media Bureau holding company and/or to acquire the including the companies listed below. Release Transition Progress Report Form assets or the ownership of, control of, or The applications listed below, as well and Filing Requirements for Stations the power to vote shares of a bank or as other related filings required by the Eligible for Reimbursement from the TV bank holding company and all of the Board, are available for immediate Broadcast Relocation Fund and Seek banks and nonbanking companies inspection at the Federal Reserve Bank Comment on the Filing of the Report by owned by the bank holding company, indicated. The applications will also be Non-Reimbursable Stations, MB Docket including the companies listed below. available for inspection at the offices of No. 16–306, Public Notice, 32 FCC Rcd The applications listed below, as well the Board of Governors. Interested 256 (IATF/Med. Bur. 2017). The as other related filings required by the persons may express their views in Incentive Auction Task Force and Board, are available for immediate writing on the standards enumerated in Media Bureau described the information inspection at the Federal Reserve Bank the BHC Act (12 U.S.C. 1842(c)). If the that must be provided in the adopted indicated. The applications will also be proposal also involves the acquisition of FCC Form 2100, Schedule 387 available for inspection at the offices of a nonbanking company, the review also (Transition Progress Report Form) to be the Board of Governors. Interested includes whether the acquisition of the filed by Reimbursable Stations and persons may express their views in nonbanking company complies with the when and how the Transition Progress writing on the standards enumerated in standards in section 4 of the BHC Act Reports must be filed. We also proposed the BHC Act (12 U.S.C. 1842(c)). If the (12 U.S.C. 1843). Unless otherwise to require broadcast television stations proposal also involves the acquisition of noted, nonbanking activities will be that are not eligible to receive a nonbanking company, the review also conducted throughout the United States. reimbursement of associated expenses includes whether the acquisition of the Unless otherwise noted, comments from the Reimbursement Fund (Non- nonbanking company complies with the regarding each of these applications Reimbursable Stations), but must standards in section 4 of the BHC Act must be received at the Reserve Bank transition to new channels as part of the (12 U.S.C. 1843). Unless otherwise indicated or the offices of the Board of Commission’s channel reassignment noted, nonbanking activities will be Governors not later than June 26, 2017. plan, to file progress reports in the same conducted throughout the United States. manner and on the same schedule as Unless otherwise noted, comments A. Federal Reserve Bank of Reimbursable Stations, and sought regarding each of these applications Minneapolis (Jacquelyn K. Brunmeier, comment on that proposal. By Public must be received at the Reserve Bank Assistant Vice President) 90 Hennepin Notice released May 18, 2017. The indicated or the offices of the Board of Avenue, Minneapolis, Minnesota Incentive Auction Task Force and Governors not later than June 30, 2017. 55480–0291: Media Bureau Adopt Filing A. Federal Reserve Bank of 1. Waseca Bancshares, Inc., Waseca, Requirements for the Transition Minneapolis (Jacquelyn K. Brunmeier, Minnesota; to merge with Freedom Progress Report Form by Stations That Assistant Vice President), 90 Hennepin Bancorporation, Inc., and thereby Are Not Eligible for Reimbursement Avenue, Minneapolis, Minnesota indirectly acquire Lake Area Bank, both from the TV Broadcast Relocation Fund, 55480–0291: of Lindstrom, Minnesota. MB Docket No. 16–306, Public Notice, 1. Bank Forward Employee Stock Board of Governors of the Federal Reserve DA 17–484 (rel. May 18, 2017) (referred Ownership Plan and Trust, Fargo, North System, May 26, 2017. to collectively with Public Notice cited Dakota; to acquire up to 30 percent of above as Transition Progress Report Security State Bank Holding Company, Ann E. Misback, Public Notices). We concluded that Fargo, North Dakota, and thereby Secretary of the Board. Non-Reimbursable Stations will be indirectly acquire shares of Bank [FR Doc. 2017–11398 Filed 6–1–17; 8:45 am] required to file Transition Progress Forward, Hannaford, North Dakota. BILLING CODE 6210–01–P

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FEDERAL RESERVE SYSTEM Paperwork Reduction Act of 1995 (the Contents PRA), federal agencies are required to This notice sets out a summary of the Change in Bank Control Notices; publish notice in the Federal Register use and burden associated with the Acquisitions of Shares of a Bank or concerning each proposed collection of following information collections. More Bank Holding Company information (including each proposed detailed information can be found in The notificants listed below have extension or reinstatement of an existing each collection’s supporting statement applied under the Change in Bank collection of information) and to allow and associated materials (see 60 days for public comment on the Control Act (12 U.S.C. 1817(j)) and ADDRESSES). § 225.41 of the Board’s Regulation Y (12 proposed action. Interested persons are CMS–10380 Reporting Requirements CFR 225.41) to acquire shares of a bank invited to send comments regarding our for Grants to States for Rate Review or bank holding company. The factors burden estimates or any other aspect of Cycle IV and Effective Rate Review that are considered in acting on the this collection of information, including Program notices are set forth in paragraph 7 of the necessity and utility of the proposed the Act (12 U.S.C. 1817(j)(7)). information collection for the proper Under the PRA (44 U.S.C. 3501– The notices are available for performance of the agency’s functions, 3520), federal agencies must obtain immediate inspection at the Federal the accuracy of the estimated burden, approval from the Office of Management Reserve Bank indicated. The notices ways to enhance the quality, utility, and and Budget (OMB) for each collection of also will be available for inspection at clarity of the information to be information they conduct or sponsor. the offices of the Board of Governors. collected, and the use of automated The term ‘‘collection of information’’ is Interested persons may express their collection techniques or other forms of defined in 44 U.S.C. 3502(3) and 5 CFR views in writing to the Reserve Bank information technology to minimize the 1320.3(c) and includes agency requests indicated for that notice or to the offices information collection burden. or requirements that members of the of the Board of Governors. Comments DATES: Comments must be received by public submit reports, keep records, or must be received not later than June 12, August 1, 2017. provide information to a third party. 2017. ADDRESSES: When commenting, please Section 3506(c)(2)(A) of the PRA A. Federal Reserve Bank of Richmond reference the document identifier or requires federal agencies to publish a (Adam M. Drimer, Assistant Vice OMB control number. To be assured 60-day notice in the Federal Register President) 701 East Byrd Street, consideration, comments and concerning each proposed collection of Richmond, Virginia 23261–4528. recommendations must be submitted in information, including each proposed Comments can also be sent any one of the following ways: extension or reinstatement of an existing electronically to Comments. collection of information, before 1. Electronically. You may send your [email protected]: submitting the collection to OMB for comments electronically to http:// 1. Pamela Fowler, Bonita Springs, approval. To comply with this www.regulations.gov. Follow the Florida, individually and together as a requirement, CMS is publishing this instructions for ‘‘Comment or group acting in concert with Dawneda notice. F. Williams, Wise, Virginia; to retain Submission’’ or ‘‘More Search Options’’ voting shares of Miners and Merchants to find the information collection Information Collection Bancorp and indirectly, retain shares of document(s) that are accepting 1. Type of Information Collection Trupoint Bank, both of Grundy, comments. Request: Revision of a currently Virginia. 2. By regular mail. You may mail approved collection; Title of written comments to the following Board of Governors of the Federal Reserve Information Collection: Reporting System, May 26, 2017. address: CMS, Office of Strategic Requirements for Grants to States for Operations and Regulatory Affairs, Ann E. Misback, Rate Review Cycle IV and Effective Rate Division of Regulations Development, Secretary of the Board. Review Program; Use: Section 2794(c) Attention: Document Identifier/OMB directs the Secretary to carry out a [FR Doc. 2017–11399 Filed 6–1–17; 8:45 am] Control Number, Room C4–26–05, 7500 program to award grants to states, which BILLING CODE 6210–01–P Security Boulevard, Baltimore, are to serve the following purposes: (1) Maryland 21244–1850. Establish or enhance rate review To obtain copies of a supporting programs, referred to as ‘‘Rate Review’’ DEPARTMENT OF HEALTH AND statement and any related forms for the activities; (2) Help states to provide data HUMAN SERVICES proposed collection(s) summarized in to the Secretary regarding trends in rate this notice, you may make your request Centers for Medicare & Medicaid increases as well as recommendations using one of following: Services regarding plan participation in the 1. Access CMS’ Web site address at Exchange, referred to as ‘‘Required Rate [Document Identifier: CMS–10380] https://www.cms.gov/Regulations-and- Reporting’’ activities; (3) Establish or Guidance/Legislation/ enhance Data Centers that collect, Agency Information Collection PaperworkReductionActof1995/PRA- analyze, and disseminate health care Activities: Proposed Collection; Listing.html. pricing data to the public, referred to as Comment Request 2. Email your request, including your ‘‘Data Center’’ activities. AGENCY: Centers for Medicare & address, phone number, OMB number, CMS has released Premium Review Medicaid Services, HHS. and CMS document identifier, to Grants in four funding opportunity ACTION: Notice. [email protected]. cycles. Grant recipients must states 3. Call the Reports Clearance Office at submit the following to the Secretary for SUMMARY: The Centers for Medicare & (410) 786–1326. each grant cycle, as applicable: Medicaid Services (CMS) is announcing Quarterly reports—30 days after the an opportunity for the public to FOR FURTHER INFORMATION CONTACT: quarter has ended for the entire duration comment on CMS’ intention to collect William Parham at (410) 786–4669. of the grant; Annual report—This report information from the public. Under the SUPPLEMENTARY INFORMATION: does not contain data, but instead

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documents the progress toward comment on CMS’ intention to collect includes agency requests or establishing or enhancing an Effective information from the public. Under the requirements that members of the public Rate Review Program and/or a Data Paperwork Reduction Act of 1995 submit reports, keep records, or provide Center; Final report—This report is due (PRA), federal agencies are required to information to a third party. Section at the end of the grant period. publish notice in the Federal Register 3506(c)(2)(A) of the PRA (44 U.S.C. The final rule ‘‘Patient Protection and concerning each proposed collection of 3506(c)(2)(A)) requires federal agencies Affordable Care Act; Health Insurance information, including each proposed to publish a 30-day notice in the Market Rules; Rate Review’’ (78 FR extension or reinstatement of an existing Federal Register concerning each 13406, February 27, 2013) modified collection of information, and to allow proposed collection of information, criteria and factors for states to have an a second opportunity for public including each proposed extension or Effective Rate Review Program. These comment on the notice. Interested reinstatement of an existing collection changes were necessary to reflect market persons are invited to send comments of information, before submitting the reform provisions and to fulfill the regarding the burden estimate or any collection to OMB for approval. To statutory requirement that the Secretary, other aspect of this collection of comply with this requirement, CMS is in conjunction with the states, monitor information, including the necessity and publishing this notice that summarizes premium increases of health insurance utility of the proposed information the following proposed collection(s) of coverage offered through an Exchange collection for the proper performance of information for public comment: and outside of an Exchange. the agency’s functions, the accuracy of 1. Type of Information Collection CMS is authorized under 45 CFR the estimated burden, ways to enhance Request: Reinstatement without change 154.301(d) to evaluate whether, and to the quality, utility, and clarity of the of a previously collection; Title of what extent, a state’s circumstances information to be collected; and the use Information Collection: Home Health have changed such that it has begun to of automated collection techniques or Agency Survey and Deficiencies Report; or has ceased to satisfy the Effective other forms of information technology to Use: In order to participate in the Rate Review Program criteria. States minimize the information collection Medicare Program as a Home Health respond to a questionnaire annually via burden. Agency (HHA) provider, the HHA must meet federal standards. This form is the Health Insurance Oversight System DATES: Comments on the collection(s) of used to record information and patients’ (HIOS), a web-based data collection information must be received by the health and provider compliance with system commonly used on a regular OMB desk officer by July 3, 2017. basis. All submissions are made requirements and to report the ADDRESSES: When commenting on the electronically and no paper submissions information to the federal government. proposed information collections, are required. CMS is not requesting any Form Number: CMS–1572 (OMB please reference the document identifier changes to the questionnaire at this Control Number: 0938–0355); or OMB control number. To be assured time. Form Number: CMS–10380 (OMB Frequency: Yearly; Affected Public: consideration, comments and Control Number: 0938–1121); State, Local or Tribal Government; recommendations must be received by Frequency: Quarterly and Yearly; Number of Respondents: 3,830; Total the OMB desk officer via one of the Affected Public: State agencies; Number Annual Responses: 3,830; Total Annual following transmissions: OMB, Office of of Respondents: 51; Total Annual Hours: 849. (For policy questions Information and Regulatory Affairs, Responses: 571; Total Annual Hours: regarding this collection contact Sarah Attention: CMS Desk Officer, Fax 15,415. (For policy questions regarding Fahrendorf at 410–786–3112.) Number: (202) 395–5806 OR Email: this collection contact Lisa Cuozzo at 2. Type of Information Collection [email protected]. 410–786–1746.) Request: New Collection (Request for a To obtain copies of a supporting new OMB control number); Title of Dated: May 30, 2017. statement and any related forms for the Information Collection: QIC William N. Parham, III, proposed collection(s) summarized in Demonstration Evaluation Contractor Director, Paperwork Reduction Staff, Office this notice, you may make your request (QDEC): Analyze Medicare Appeals to of Strategic Operations and Regulatory using one of following: Conduct Formal Discussions and Affairs. 1. Access CMS’ Web site address at Reopenings with Suppliers; Use: The [FR Doc. 2017–11431 Filed 6–1–17; 8:45 am] Web site address at https:// Formal Telephone Discussions BILLING CODE 4120–01–P www.cms.gov/Regulations-and- Demonstration is designed to improve Guidance/Legislation/ the efficiency of Medicare’s five-level PaperworkReductionActof1995/PRA- appeals system for fee-for-service (FFS) DEPARTMENT OF HEALTH AND Listing.html. claims, which currently is experiencing HUMAN SERVICES 2. Email your request, including your a backlog. In the Demonstration, the address, phone number, OMB number, Qualified Independent Contractor (QIC) Centers for Medicare & Medicaid and CMS document identifier, to provides education through a formal Services [email protected]. telephone discussion process to [Document Identifiers: CMS–1572 and CMS– 3. Call the Reports Clearance Office at improve suppliers’ understanding of the 10633] (410) 786–1326. reasons for claim denials, and FOR FURTHER INFORMATION CONTACT: ultimately improve the quality of future Agency Information Collection William Parham at (410) 786–4669. claims submissions. CMS is interested Activities: Submission for OMB SUPPLEMENTARY INFORMATION: Under the in determining whether engagement Review; Comment Request Paperwork Reduction Act of 1995 (PRA) between suppliers and the QIC will AGENCY: Centers for Medicare & (44 U.S.C. 3501–3520), federal agencies improve the understanding of the cause Medicaid Services, HHS. must obtain approval from the Office of of Level 2 appeal denials, and over time, ACTION: Notice. Management and Budget (OMB) for each whether this results in increased collection of information they conduct submission of accurate and complete SUMMARY: The Centers for Medicare & or sponsor. The term ‘‘collection of claims at the Medicare Administrative Medicaid Services (CMS) is announcing information’’ is defined in 44 U.S.C. Contractor (MAC) level. The evaluation an opportunity for the public to 3502(3) and 5 CFR 1320.3(c) and of the Demonstration will use both

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quantitative and qualitative techniques SUMMARY: In compliance with the clarity of the information to be to analyze the outcomes and impact of requirement of the Paperwork collected; and (4) Ways to minimizes the Demonstration. Claims analysis, a Reduction Act of 1995 to provide the burden of the collection of web-based supplier survey, and supplier opportunity for public comment on information on those who are to key informant interviews will inform proposed data collection projects, the respond, including the use of the evaluation, and: (1) Focus Division of Program Coordination, appropriate automated, electronic, specifically on outcomes including Planning, and Strategic Initiatives mechanical, or other technological supplier satisfaction with the (DPCPSI), Office of the Director (OD), collection techniques or other forms of discussions, the rate of claims denials, National Institutes of Health (NIH), will information technology. and the number of claims that go publish periodic summaries of proposed Proposed Collection Title: through appeals Levels 2 and 3; (2) seek projects to be submitted to the Office of Chimpanzee Research Use Form, 0925– to determine whether further Management and Budget (OMB) for 0705, Extension Division of Program engagement between suppliers and the review and approval. Coordination, Planning, and Strategic QIC improves understanding of the DATES: Comments regarding this reasons for claim denials; and (3) Initiatives (DPCPSI), Office of the information collection are best assured Director (OD), National Institutes of support CMS in assessing the QIC’s of having their full effect if received Health (NIH). effectiveness in meeting a number of within 60 days of the date of this criteria established by CMS, including publication. Need and Use of Information how satisfied participating suppliers Collection: The purpose of this form is FOR FURTHER INFORMATION CONTACT: To were with the formal telephone to obtain information needed by the NIH obtain a copy of the data collection discussion process. Form Number: to assess whether the proposed research plans and instruments, submit CMS–10633 (OMB control number: satisfies the agency’s policy for comments in writing, or request more 0938–NEW); Frequency: Monthly; permitting only noninvasive research Affected Public: Private Sector Business information on the proposed project, contact: The Division of Program involving chimpanzees. The NIH will or other for-profits, Not-for-Profit consider the information submitted Institutions; Number of Respondents: Coordination, Planning, and Strategic Initiatives, OD, NIH, Building 1, Room through this form prior to the agency 10,560; Total Annual Responses: 2,640; making funding decisions or otherwise Total Annual Hours: 473.3. (For policy 260, 1 Center Drive, Bethesda, MD 20892; or call non-toll-free number 301– allowing the research to begin. questions regarding this collection Completion of this form is a mandatory contact Lynnsie Doty at 410–786–2175.) 402–9852; or email your request, including your address, to dpcpsi@ step toward receiving NIH support or Dated: May 30, 2017. od.nih.gov. Formal requests for approval for non-invasive research William N. Parham, III, additional plans and instruments must involving chimpanzees. The NIH does Director, Paperwork Reduction Staff, Office be requested in writing. not fund any research involving of Strategic Operations and Regulatory chimpanzees proposed in new or other SUPPLEMENTARY INFORMATION: Section Affairs. competing projects (renewals or 3506(c)(2)(A) of the Paperwork [FR Doc. 2017–11428 Filed 6–1–17; 8:45 am] revisions) unless the research is Reduction Act of 1995 requires: Written BILLING CODE 4120–01–P comments and/or suggestions from the consistent with the definition of public and affected agencies are invited ‘‘noninvasive research,’’ as described in to address one or more of the following the ‘‘Standards of Care for Chimpanzees DEPARTMENT OF HEALTH AND Held in the Federally Supported HUMAN SERVICES points: (1) Whether the proposed collection of information is necessary Chimpanzee Sanctuary System’’ (42 National Institutes of Health for the proper performance of the CFR part 9). See NOT–OD–16–095 at function of the agency, including https://grants.nih.gov/grants/guide/ Proposed Collection; 60-Day Comment whether the information will have notice-files/NOT-OD-16-095.html and Request: Chimpanzee Research Use practical utility; (2) The accuracy of the 81 FR 6873. Form (Office of the Director) agency’s estimate of the burden of the OMB approval is requested for three years. There are no costs to respondents AGENCY: National Institutes of Health, proposed collection of information, HHS. including the validity of the other than their time. The total methodology and assumptions used; (3) estimated annualized burden hours is ACTION: Notice. Ways to enhance the quality, utility, and 10.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of time per Total annual Type of respondent respondents responses per response burden hour respondent (in hours)

Research Community ...... 20 1 30/60 10

Total ...... 20 1 ...... 10

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Dated: May 23, 2017. AIDD is the lead federal P&A agency. and transmit to the Secretary HHS and Lawrence A. Tabak, The PAIMI Program supports the same to the head of its State mental health Principal Deputy Director, National Institutes governor-designated P&A systems agency a report on January 1. This of Health. established under the DD Act by report describes the activities, [FR Doc. 2017–11393 Filed 6–1–17; 8:45 am] providing legal-based individual and accomplishments, and expenditures of BILLING CODE 4140–01–P systemic advocacy services to the system during the most recently individuals with significant (severe) completed fiscal year, including a mental illness (adults) and significant section prepared by the advisory DEPARTMENT OF HEALTH AND (severe) emotional impairment council (the PAIMI Advisory Council or HUMAN SERVICES (children/youth) who are at risk for PAC) that describes the activities of the abuse, neglect and other rights council and its independent assessment Substance Abuse and Mental Health violations while residing in a care or of the operations of the system. Services Administration treatment facility. The Substance Abuse Mental Health In 2000, the PAIMI Act amendments Services Administration (SAMHSA) Agency Information Collection created a 57th P&A system—the proposes no revisions to its annual Activities: Submission for OMB American Indian Consortium (the PAIMI Program Performance Report Review; Comment Request Navajo and Hopi Tribes in the Four (PPR), including the advisory council Corners region of the Southwest). The Periodically, the Substance Abuse and section, at this time for the following Act, at 42 U.S.C. 10804(d), states that a Mental Health Services Administration reasons: (1) The revisions revise the P&A system may use its allotment to (SAMHSA) will publish a summary of SAMHSA PPR, as appropriate, for provide representation to individuals information collection requests under consistency with the annual reporting with mental illness, as defined by OMB review, in compliance with the requirements under the PAIMI Act and Paperwork Reduction Act (44 U.S.C. section 42 U.S.C. 10802 (4)(B)(iii) Rules [42 CFR part 51]; (2) The revisions Chapter 35). To request a copy of these residing in the community, including simplify the electronic data entry by documents, call the SAMHSA Reports their own home, only, if the total state PAIMI programs; (3) GPRA Clearance Officer on (240) 276–1243. allotment under this title for any fiscal requirements for the PAIMI Program year is $30 million or more, and in such Project: Protection and Advocacy for will be revised as appropriate to ensure cases an eligible P&A system must give Individuals With Mental Illness that SAMHSA obtains information that priority to representing PAIMI-eligible (PAIMI) Annual Program Performance closely measures actual outcomes of individuals, as defined by 42 U.S.C. Report (OMB No. 0930–0169)— programs that it funds and (4) SAMHSA 10802(4)(A) and (B)(i). Extension The Children’s Health Act of 2000 will reduce wherever feasible the The Protection and Advocacy for (CHA) also referenced the state P&A current reporting burden by removing Individuals with Mental Illness (PAIMI) system authority to obtain information any information that does not facilitate Act at 42 U.S.C. 10801 et seq., on incidents of seclusion, restraint and evaluation of the programmatic and authorized funds to the same protection related deaths [see, CHA, Part H at 42 fiscal effectiveness of a state P&A and advocacy (P&A) systems created U.S.C. 290ii–1]. PAIMI Program formula system (5) The new electronic version under the Developmental Disabilities grants awarded by SAMHSA go directly will expedite SAMHSA’s ability to Assistance and Bill of Rights Act of to each of the 57 governor-designated prepare the biennial report; (6) The new 1975, known as the DD Act (as amended P&A systems. These systems are located electronic version will improve in 2000, 42 U.S.C. 15001 et seq.]. The in each of the 50 states, the District of SAMHSA’s ability to generate reports, DD Act supports the Protection and Columbia, the American Indian analyze trends and more expeditiously Advocacy for Developmental Consortium, American Samoa, Guam, provide feedback to PAIMI programs. Disabilities (PADD) Program the Commonwealth of the Northern The current report formats will be administered by the Administration on Mariana Islands, the Commonwealth of effective for the FY 2017 PPR reports Intellectual and Developmental Puerto Rico, and the U.S. Virgin Islands. due on January 1, 2018 Disabilities (AIDD) within the The PAIMI Act at 42 U.S.C. 10805(7) The annual burden estimate is as Administration on Community Living. requires that each P&A system prepare follows:

Number of Number of responses per Hours per Total hour respondents respondent response burden

Program Performance Report ...... 57 1 20 1,140 Advisory Council Report ...... 57 1 10 570

Total ...... 57 ...... 1,710

Written comments and through the U.S. Postal Service, Office of Information and Regulatory recommendations concerning the commenters are encouraged to submit Affairs, New Executive Office Building, proposed information collection should their comments to OMB via email to: Room 10102, Washington, DC 20503. be sent by July 3, 2017 to the SAMHSA [email protected]. Summer King, Desk Officer at the Office of Information Although commenters are encouraged to and Regulatory Affairs, Office of send their comments via email, Statistician. Management and Budget (OMB). To commenters may also fax their [FR Doc. 2017–11421 Filed 6–1–17; 8:45 am] ensure timely receipt of comments, and comments to: 202–395–7285. BILLING CODE 4162–20–P to avoid potential delays in OMB’s Commenters may also mail them to: receipt and processing of mail sent Office of Management and Budget,

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DEPARTMENT OF HOUSING AND with hearing or speech impairments schools, low crime rates, and other URBAN DEVELOPMENT may access this number through TTY by indicators of opportunity, as well as calling the toll-free Federal Relay integrated neighborhoods in furtherance [Docket No. FR–5997–N–25] Service at (800) 877–8339. of HUD’s goal of affirmatively furthering 30-Day Notice of Proposed Information Copies of available documents fair housing. Collection: Small Area Fair Market submitted to OMB may be obtained HUD is evaluating the SAFMR Rent Demonstration Evaluation from Ms. Guido. demonstration and an important SUPPLEMENTARY INFORMATION: This consideration in this evaluation is how AGENCY: Office of the Chief Information notice informs the public that HUD is voucher holders and landlords perceive Officer, HUD. seeking approval from OMB for the the shift from traditional area-wide ACTION: Notice. information collection described in FMRs to SAFMRs. HUD will look into Section A. whether both existing and new voucher SUMMARY: HUD submitted the proposed The Federal Register notice that information collection requirement holders understood how the change to solicited public comment on the using SAFMRs affected their housing described below to the Office of information collection for a period of 60 Management and Budget (OMB) for options and whether it led movers to days was published on September 21, search in new neighborhoods or affected review, in accordance with the 2016 at 81 FR 64929. Paperwork Reduction Act. The purpose the rate of moving of existing voucher of this notice is to allow for an A. Overview of Information Collection holders. Similarly, HUD wants to know additional 30 days of public comment. Title of Information Collection: Small whether landlords were aware of the change in the HCV program and DATES: Area Fair Market Rent Demonstration Comments Due Date: July 3, whether this affected their willingness 2017. Evaluation. OMB Approval Number: Pending. to rent to voucher holders and the level ADDRESSES: Interested persons are Type of Request: 2528—New. at which they set rents. In order to invited to submit comments regarding Form Number: No forms. address these perceptions, 70 tenants this proposal. Comments should refer to Description of the need for the and 35 landlords will be interviewed in the proposal by name and/or OMB information and proposed use: HUD the areas served by the five PHAs that Control Number and should be sent to: generally publishes a single FMR for are in the SAFMR demonstration: HUD Desk Officer, Office of each metropolitan area and provides Housing Authority of Cook County (IL); Management and Budget, New public housing agencies with discretion Housing Authority of the City of Long Executive Office Building, Washington, to vary local voucher payment standards Beach (CA); Chattanooga (TN) Housing DC 20503; fax: 202–395–5806. Email: between 90 and 110 percent of the Fair Authority; Town of Mamaroneck (NY) [email protected]. Market Rent (FMR) (unless HUD Housing Authority; Housing Authority FOR FURTHER INFORMATION CONTACT: approves an exception). The SAFMR of the City of Laredo (TX); and two Anna P. Guido, Reports Management demonstration is testing the alternative PHAs from the Dallas metropolitan Officer, QDAM, Department of Housing approach of setting FMRs at the ZIP area—Dallas Housing Authority (TX), and Urban Development, 451 7th Street Code level. The core hypothesis is that and the Plano Housing Authority (TX). SW., Washington, DC 20410; email this will significantly expand the ability To build rapport during recruitment, by Anna P. Guido at Anna.P.Guido@ of Housing Choice Vouchers (HCV) acknowledging the value of their time, hud.gov or telephone 202–402–5535. holders to access housing in an incentive payment of $20 for tenants This is not a toll-free number. Persons neighborhoods with high-quality and $40 for landlords will be made.

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B. Solicitation of Public Comment technology, e.g., permitting electronic DEPARTMENT OF THE INTERIOR submission of responses. This notice is soliciting comments Fish and Wildlife Service from members of the public and affected HUD encourages interested parties to parties concerning the collection of submit comment in response to these [FWS–R8–ES–2017–N050; FF08ESMF00– information described in Section A on questions. FXES11140800000–178] the following: Authority: Section 3507 of the Paperwork Proposed Habitat Conservation Plan (1) Whether the proposed collection Reduction Act of 1995, 44 U.S.C. Chapter 35. for South Sacramento County, of information is necessary for the California; Joint Draft Environmental proper performance of the functions of Dated: May 25, 2017. Impact Statement/Environmental the agency, including whether the Anna P. Guido, Impact Report information will have practical utility; Department Reports Management Officer, (2) The accuracy of the agency’s Office of the Chief Information Officer. AGENCY: Fish and Wildlife Service, estimate of the burden of the proposed [FR Doc. 2017–11396 Filed 6–1–17; 8:45 am] Interior. collection of information; BILLING CODE 4210–67–P ACTION: Notice of availability; receipt of (3) Ways to enhance the quality, permit application; request for public utility, and clarity of the information to comment. be collected; and (4) Ways to minimize the burden of SUMMARY: We, the U.S. Fish and the collection of information on those Wildlife Service, announce the who are to respond; including using availability of a draft environmental appropriate automated collection impact statement and draft techniques or other forms of information environmental impact report (EIS/EIR),

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which evaluates the impacts of, and Sacramento address above, or call (916) November 4, 2013 (78 FR 66058), in alternatives to, the proposed South 874–6141 to make an appointment which we announced the intent to Sacramento Habitat Conservation Plan during regular business hours to drop prepare a NEPA document for the draft (SSHCP). The SSHCP was submitted by off written comments at that location; or SSHCP. (2) submit by U.S. mail to Jan C. Knight, six permit applicants in support of Background permit applications under the Deputy Field Supervisor, at the Endangered Species Act of 1973 as Sacramento Fish and Wildlife Office Section 9 of the ESA prohibits the amended (ESA), for the incidental take address above, or by facsimile to (916) ‘‘take’’ of fish and wildlife species that of federally listed and other covered 414–6714, or call (916) 414–6700 to are federally listed as endangered under species resulting from the make an appointment during regular section 4 of the ESA (16 U.S.C. 1533, implementation or approval of future business hours to drop off written 1538). The ESA implementing SSHCP covered activities, including comments at that location. regulations extend, under certain urban development projects, within a Meeting addresses: See Meetings circumstances, the prohibition of take to 317,656-acre planning area. We request below under SUPPLEMENTARY threatened species (50 CFR 17.31). review and comment on the draft INFORMATION for locations and addresses Regulations governing permits for SSHCP and the draft EIS/EIR from local, of public meetings. endangered and threatened species are State, and Federal agencies; Tribes; and FOR FURTHER INFORMATION CONTACT: (1) at 50 CFR 17.22 and 17.32. For more the public. Contact Nina Bicknese, Endangered about the Federal HCP program, go to http://www.fws.gov/endangered/esa- DATES: Submitting Comments: To ensure Species Division, or Jan C. Knight, Deputy Field Supervisor, at the library/pdf/hcp.pdf. consideration, we must receive written The purpose of issuing an ITP to the Sacramento Fish and Wildlife Office comments by 5 p.m. on August 31, five permit applicants would be to address shown above, or at (916) 414– 2017. Meeting Dates: See Meetings permit incidental take of 28 covered 6700 (telephone) for information on the under SUPPLEMENTARY INFORMATION for species resulting from planned urban SSHCP EIS/EIR. If you use a public meeting dates. development and associated ADDRESSES: You may obtain documents telecommunications device for the deaf, transportation and infrastructure by one of the following methods: please call the Federal Relay Service at projects that would be permitted or • Internet: You may obtain electronic (800) 877–8339, or (2) County authorized by the County of copies of the draft EIS/EIR and proposed Environmental Coordinator, or Sacramento, City of Galt, City of Rancho HCP document on the SSHCP Web site Marianne Biner, Senior Planner, at the Cordova, the Sacramento County Water at http://www.southsachcp.com, or on County of Sacramento address shown Agency, and the Capital SouthEast the Sacramento County Project Viewer above, or at (916) 874–6141 for Connector Joint Powers Authority Web site at information on the draft SSHCP EIS/ (together, the permit applicants). The https://planningdocuments.saccounty. EIR; or (3) Richard Radmacher, Senior approval of the draft SSHCP and net/ViewProjectDetails.aspx?Control Planner, at the County of Sacramento issuance of the ITP is conditioned on Num=2003-0637. address shown above, or at (916) 874– the draft SSHCP meeting the criteria in • U.S. Mail: CD–ROMs of the draft 5369 for information on the draft SSHCP section 10(a)(2)(B) of the ESA. The draft EIR/EIS and the draft SSHCP are and associated documents. SSHCP is a regional, multi-agency available, by request, from the County SUPPLEMENTARY INFORMATION: We, the strategy to assure permanent Environmental Coordinator, at the U.S. Fish and Wildlife Service (Service), conservation of the 28 covered species County of Sacramento, Office of announce the availability of the draft and their habitats within the planning Planning and Environmental Review, SSHCP in compliance with section 10(c) area, while providing future urban 827 7th Street, Room 225, Sacramento, of the Endangered Species Act of 1973 development and infrastructure covered CA 95814; or by email at (16 U.S.C. 1531–1544; ESA), and we activities with a more streamlined and [email protected]; or by phone at announce the availability of the draft more predictable Federal and State (916) 874–6141. Please note that your environmental impact statement and authorization and permitting process. request is in reference to the SSHCP. environmental impact report (SSHCP The draft SSHCP covered activities • In-Person: Copies of the draft EIR/ EIS/EIR), prepared pursuant to the incorporate measures that are intended EIS and the draft SSHCP documents are National Environmental Policy Act of to minimize and mitigate the impacts of also available for public inspection and 1970 as amended (42 U.S.C. 4321 et the taking to the maximum extent review at the following locations, during seq.; NEPA) and its implementing practicable. The covered species include normal business hours: regulations (40 CFR 1500–1508), and the federally endangered vernal pool Æ Sacramento Fish and Wildlife also prepared pursuant to the California tadpole shrimp (Lepidurus packardi), Office, 2800 Cottage Way, Room W– Environmental Quality Act (CEQA) as threatened vernal pool fairy shrimp 2605, Sacramento CA 95825. further described in the draft SSHCP (Branchinecta lynchi), threatened Valley Æ County of Sacramento, 827 7th EIS/EIR. We have prepared a joint EIS/ elderberry longhorn beetle (Desmocerus Street, Room 225, Sacramento, CA EIR due to the combined local, State, californicus dimorphus), threatened 95814. and Federal discretionary actions and California tiger salamander (Ambystoma Æ Sacramento Public Library, Central permits associated with the SSHCP. The californiense), and threatened giant Library, 828 I Street, Sacramento, CA co-lead agencies for the SSHCP EIS/EIR garter snake (Thamnophis gigas), as well 95814. are Sacramento County, pursuant to as 23 unlisted species that have the You may submit written comments by CEQA, and the Service, pursuant to potential to become listed during the one of the following methods: NEPA. The cooperating agencies are the proposed permit term. The draft SSHCP • Electronically: Submit via email to: U.S. Army Corps of Engineers, the U.S. also proposes to provide a [email protected], and include Environmental Protection Agency, and comprehensive approach to the ‘‘SSHCP’’ in the subject line, the California Department of Fish and protection and long-term management • By hard copy: (1) Submit by U.S. Wildlife. With this notice, we continue of the relatively undisturbed vernal pool mail to: County Environmental the HCP process, which started through ecosystem remaining in the 317,656- Coordinator, at the County of a notice in the Federal Register on acre Planning Area.

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Alternatives preserve system. All preserves will have desired results for the covered species The EIR/EIS studies three alternatives endowments to cover long-term in this Planning Area, the sufficiency of in detail. Other reasonable alternatives management needs. A preserve system the EIS/EIR in discussing possible were considered during the process of management, monitoring, and reporting impacts upon the environment, the developing the HCP and the EIS/EIR, plan would assess the draft SSHCP’s ways in which adverse effects would be but others were not evaluated in detail progress toward achievement of each minimized, and alternatives to the because they did not meet the biological goal and objective, and ensure proposed action. underlying needs or the purposes and that habitat conservation keeps pace Public Availability of Comments objectives of the lead-agencies, as with impacts. Reduced Permit Term Alternative. As discussed in the EIS/EIR. The three Before including your address, phone alternatives are: with the proposed action, the Service would issue an ITP to the five permit number, email address, or other No Action Alternative: No ESA personal identifying information in your section 10(a)(1)(B) permit would be applicants. However, the ITP would have a permit term of 30 years, which comment, you should be aware that the issued to the five permit applicants. entire comment—including your Instead, future urban development would more closely coincide with the personal identifying information—might projects and activities with potential to durations of the approved general plans be made publicly available at any time. impact federally listed species would and other planning documents of the continue to obtain individual ESA permit applicants. The categories of While you can ask us in your comment authorizations on a project-by-project covered activities for the reduced permit to withhold your personal identifying basis through section 7 consultations, if term alternative would be the same as information from public review, we a Federal nexus exists, or through an described for the proposed action, and cannot guarantee that we will be able to individual ITP under section 10 of the approximately 19,371 acres natural land do so. covers and species-habitat would be ESA. Under the No Action Alternative, Next Steps there would be no regional or directly and indirectly impacted by the comprehensive means to coordinate and covered activities. The biological goals The lead agencies will accept public standardize mitigation provided by for the planning area would be the same comments on the draft SSHCP and the multiple projects implemented over as those identified for the proposed draft SSHCP EIS/EIR during a public many years, or to provide action/proposed project. The preserve review and comment period, which system would have less connectivity comprehensive management of new ends 90 days after publication of this and would be smaller, totaling mitigation lands in south Sacramento notice in the Federal Register. We will County. approximately 20,044 acres. Approximately 1,723 acres of aquatic evaluate all public comments we receive Proposed Action Alternative: This on the draft HCP, the associated alternative is issuance of an ITP by the resources would be re-established or established. Similarly as with the documents, and the draft EIS/EIR to Service to the five permit applicants, determine whether the permit with a permit term of 50 years. The ITP proposed action alternative, a preserve application and draft HCP meets would authorize take from covered system management, monitoring, and requirements of ESA section 10(a), and activities on non-Federal lands in the reporting plan would assess progress planning area. Covered activities toward achievement of biological goals draft EIS/EIR meets the requirements of include planned land uses described in for a 30-year permit term. the NEPA regulations. If the Service general plans of Sacramento County, the Meetings: The meeting dates are: determines that those requirements are City of Rancho Cordova, and City of 1. June 21, 2017, 7 p.m. to 9 p.m., met, we will prepare a final SSHCP and Galt, including residential, commercial, Wilton, CA. EIS/EIR, which will be available for a and industrial development, and 2. June 26, 2017, 7 p.m. to 9 p.m., 30-day minimum review period prior to specific transportation, irrigation water, Rancho Cordova, CA. the Service’s final permit decision. 3. July 6, 2017, 7 p.m. to 9 p.m., Galt, and wastewater projects. Current in- Authority stream maintenance activities will also CA. continue as a covered activity. Each The meeting addresses are: We provide this notice under section category of proposed covered activities 1. Wilton: Wilton Community Center, 10(c) of the ESA (16 U.S.C. 1531 et seq.) includes measures to avoid or minimize 9717 Colony Road, Wilton, CA and its implementing regulations (50 incidental take of the covered species, 95693. CFR 17.22), and the National including project design modifications. 2. Rancho Cordova: Rancho Cordova Environmental Policy Act (42 U.S.C. Approximately 33,639 acres of natural City Hall, American River Room 4721 et seq.) and its implementing land covers and species habitat would North, 2729 Prospect Park Drive, regulations (40 CFR 1506.6). be directly and indirectly impacted over Rancho Cordova, CA 95670. the permit term. The proposed 3. Galt: Littleton Community Center, Michael Fris, conservation strategy includes the 410 Civic Drive, Galt, CA 95632. Assistant Regional Director, U.S. Fish and establishment of a 36,282-acre Wildlife Service Pacific Southwest Region, interconnected regional preserve system Request for Comments Sacramento, California. that would be comprised of relatively Consistent with section 10(c) of the [FR Doc. 2017–11293 Filed 6–1–17; 8:45 am] large, contiguous blocks of natural land ESA, we invite the submission of BILLING CODE 4333–15–P covers with species-habitat. All lands in written comments, data, views, or the 36,282-acre preserve system would arguments with respect to the proposed be permanently preserved, monitored, incidental take permit application, the and managed in perpetuity. In addition, draft SSHCP, and the permitting the proposed conservation strategy decision. We particularly seek includes approximately 1,787 acres of comments on the efficacy and aquatic resources that would be re- effectiveness of the proposals contained established or established within this in the draft SSHCP in producing the

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DEPARTMENT OF THE INTERIOR Wild Bird Conservation Act your entire comment—including your Applications: Craig Hoover, Chief, personal identifying information—may Fish and Wildlife Service Division of Management Authority, U.S. be made publicly available at any time. [Docket No. FWS–HQ–IA–2017–0020; Fish and Wildlife Service Headquarters, While you can ask us in your comment FXIA16710900000–178–FF09A30000] MS: IA; 5275 Leesburg Pike, Falls to withhold your personal identifying Church, VA 22041–3803; telephone information from public review, we Endangered Species; Receipt of 703–358–2095; facsimile 703–358–2298. cannot guarantee that we will be able to Applications for Permit If you use a telecommunications do so. device for the deaf (TDD), call the II. Background AGENCY: Fish and Wildlife Service, Federal Relay Service at 800–877–8339. Interior. SUPPLEMENTARY INFORMATION: To help us carry out our conservation ACTION: Notice of receipt of applications responsibilities for affected species, and for permit. I. Public Comment Procedures in consideration of section 10(a)(1)(A) of A. How Do I Request Copies of the Endangered Species Act of 1973, as SUMMARY: We, the U.S. Fish and Applications or Comment on Submitted amended (16 U.S.C. 1531 et seq.), along Wildlife Service, invite the public to Applications? with Executive Order 13576, comment on applications to conduct ‘‘Delivering an Efficient, Effective, and certain activities with endangered Send your request for copies of Accountable Government,’’ and the species. With some exceptions, the applications or comments and materials President’s Memorandum for the Heads Endangered Species Act (ESA) prohibits concerning any of the applications to of Executive Departments and Agencies activities with listed species unless the contact listed under ADDRESSES. of January 21, 2009—Transparency and Federal authorization is acquired that Please include the Federal Register Open Government (74 FR 4685, January allows such activities. notice publication date, the PRT- 26, 2009), which call on all Federal DATES: We must receive comments or number, and the name of the applicant agencies to promote openness and requests for documents on or before July in your request or submission. We will transparency in Government by 3, 2017. not consider requests or comments sent disclosing information to the public, we to an email or address not listed under invite public comment on these permit ADDRESSES: Submitting Comments: You ADDRESSES. If you provide an email applications before final action is taken. may submit comments by one of the address in your request for copies of following methods: applications, we will attempt to respond III. Permit Applications • Federal eRulemaking Portal: http:// to your request electronically. A. Endangered Species www.regulations.gov. Follow the Please make your requests or instructions for submitting comments We invite the public to comment on comments as specific as possible. Please applications to conduct certain on Docket No. FWS–HQ–IA–2017–0020. confine your comments to issues for • U.S. mail or hand-delivery: Public activities with endangered species. With which we seek comments in this notice, some exceptions, the Endangered Comments Processing, Attn: Docket No. and explain the basis for your FWS–HQ–IA–2017–0020; U.S. Fish and Species Act (16 U.S.C. 531 et seq.; ESA) comments. Include sufficient prohibits activities with listed species Wildlife Service Headquarters, MS: information with your comments to BPHC; 5275 Leesburg Pike, Falls unless Federal authorization is acquired allow us to authenticate any scientific or that allows such activities. Church, VA 22041–3803. commercial data you include. When submitting comments, please The comments and recommendations Applicant: Tony Goldberg, University of indicate the name of the applicant and that will be most useful and likely to Wisconsin, Madison, WI; PRT–16647C the PRT# you are commenting on. We influence agency decisions are: (1) The applicant requests a permit to will post all comments on http:// Those supported by quantitative www.regulations.gov. This generally import blood, saliva, and hair samples information or studies; and (2) Those from 48 Wild born chimpanzees (Pan means that we will post any personal that include citations to, and analyses information you provide us (see the troglodytes) and two captive-born of, the applicable laws and regulations. chimpanzees (Pan troglodytes) for the Public Comments section below for We will not consider or include in our more information). purpose of scientific research. This administrative record comments we notification covers activities to be Viewing Comments: Comments and receive after the close of the comment materials we receive will be available conducted by the applicant over a 5- period (see DATES) or comments year period. for public inspection on http:// delivered to an address other than those www.regulations.gov, or by listed above (see ADDRESSES). Applicant: U.S. Centers for Disease appointment, between 8 a.m. and 4 Control and Prevention, Atlanta, GA; p.m., Monday through Friday, except B. May I Review Comments Submitted PRT–14106C by Others? Federal holidays, at the U.S. Fish and The applicant requests a permit to Wildlife Service, Division of Comments, including names and import biological samples, common Management Authority, 5275 Leesburg street addresses of respondents, will be chimpanzee (Pan troglodytes), from Pike, Falls Church, VA 22041–3803; available for public review at the street captive-bred or wild species for the telephone 703–358–2095. address listed under ADDRESSES. The purpose of scientific research. This FOR FURTHER INFORMATION CONTACT: public may review documents and other notification covers activities to be Endangered Species Applications: Joyce information applicants have sent in conducted by the applicant over a 5- Russell, Government Information support of the application unless our year period. Specialist, Division of Management allowing viewing would violate the Authority, U.S. Fish and Wildlife Privacy Act or Freedom of Information Applicant: Schubot Exotic Bird Health Service Headquarters, MS: IA; 5275 Act. Before including your address, Center, College Station, TX; PRT– Leesburg Pike, Falls Church, VA 22041– phone number, email address, or other 19878C 3803; telephone 703–358–2023; personal identifying information in your The applicant requests a permit to facsimile 703–358–2280. comment, you should be aware that import biological samples from the

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Great green macaw, (Ara Ambiguus) for oedipus), Goeldi’s marmoset (Callimico VI. Authorities the purpose of scientific research. This goeldii), Diana monkey (Cerocpithecus Endangered Species Act of 1973 (16 notification covers activities to be diana), Siamang (Symphalangus U.S.C. 1531). conducted by the applicant over a 1- syndactylus). This notification covers year period. activities to be conducted by the Joyce Russell, applicant over a 5-year period. Government Information Specialist, Branch Applicant: University of Alaska of Permits, Division of Management Fairbanks, Dept. Veterinary Medicine, Applicant: Michael Lloret, Miami, FL; Authority. Fairbanks, AK; PRT–24212C PRT–04218C [FR Doc. 2017–11444 Filed 6–1–17; 8:45 am] The applicant requests a permit to The applicant requests a captive-bred BILLING CODE 4333–15–P import biological samples from green wildlife registration under 50 CFR sea turtle, (Chelonia mydas) for the 17.21(g) for the following species to DEPARTMENT OF THE INTERIOR purpose of scientific research. This enhance species propagation or notification covers activities to be survival: Galapagos tortoise Office of Hearings and Appeals conducted by the applicant over a 1- (Chelonoidis nigra), Radiated tortoise year period. (Astrocheleys radiata), aquatic box [17XD0120OS.DX68201 .QAGENLAM.DOTN00000 Applicant: Crocodile Conservation turtle (Terrapene coahuila), Yellow-spot .000000.DS68241000] Institute, Hamer, SC; PRT–00190C river turtle (Podocnemis unifilis), The applicant requests a captive-bred Spotted pond turtle (Geoclemys Tribal Listening Session; Oklahoma wildlife registration under 50 CFR hamiltoni), River tarrapin (Batagur City Probate Hearings Division Field 17.21(g) for the following species to baska), Grand cayman inguana (Cyclura Office lewisii). This notification covers enhance species propagation or In notice document 2017–11186, survival: Galapagos tortoise activities to be conducted by the applicant over a 5-year period. beginning on page 24990 in the issue of (Chelonoidis nigra), Siamese crocodile Wednesday, May 31, 2017, make the (Crocodylus siamensis), African slender- Applicant: James Lee; Livermore, CA; following corrections: snouted crocodile (Crocodylus PRT–93493B 1. On page 24990, lines three and four cataphractus), Chinese alligator in the SUMMARY section: ‘‘Probate (alligator sinensis), Dwarf crocodile The applicant requests a captive-bred Hearings Division (Ph.D.)’’ should read (osteolamus tetraspis), Broad-snouted wildlife registration under 50 CFR ‘‘Probate Hearings Division (PHD)’’. caiman (Caiman latirostris). This 17.21(g) for the following species to 2. On page 24990, line six in the notification covers activities to be enhance species propagation or SUMMARY section: ‘‘Ph.D.’’ should read conducted by the applicant over a 5- survival: Galapagos tortoise (Geochelone ‘‘PHD’’. year period. nigra) and an Aquatic box turtle 3. On page 24990, line seven in (Terrapene coahuila). This notification column two: ‘‘Ph.D.’’ should read Applicant: McCarthy’s Wildlife covers activities to be conducted by the ‘‘PHD’’. Sanctuary, West Palm Beach, FL; PRT– applicant over a 5-year period. 4. On page 24990, line three in the 95720B IV. Next Steps ADDRESSES section: ‘‘email—Ph.D@ The applicant requests a captive-bred oha.doi.gov’’ should read ‘‘email—phd@ wildlife registration under 50 CFR If the Service decides to issue permits oha.doi.gov’’. 17.21(g) for the following species to to any of the applicants listed in this 5. On page 24991, lines two and three enhance species propagation or notice, we will publish a notice in the in the first column, ‘‘email—Ph.D@ survival: Galapagos tortoise Federal Register. You may locate the oha.doi.gov’’ should read ‘‘email—phd@ (Chelonoidis nigra), Radiated tortoise Federal Register notice announcing the oha.doi.gov’’. (Astrochelys radiate), Grand cayman permit issuance date by searching in 6. On page 24991, line fifty-seven in inguana (Cyclura nubilis lewisii), Ring- www.regulations.gov under the permit the first column, ‘‘Ph.D.’’ should read tailed lemur (Lemur catta), Black and number listed above in this document. ‘‘PHD’’. white ruffed lemur (Varecia variegate), 7. On page 24991, line nineteen in the Red ruffed lemur (Varecia rubra), V. Public Comments second column, ‘‘Ph.D.’’ should read cottontop tamarin (Saguigus oedipus), You may submit your comments and ‘‘PHD’’. [FR Doc. C1–2017–11186 Filed 6–1–17; 8:45 am] Clouded leopard (Neofelis nebulosa), materials concerning this notice by one BILLING CODE 1301–00–D Snow leopard (Unicia unicia), Spotted of the methods listed in ADDRESSES. We leopard (Panthera pardus), Africian lion will not consider comments sent by (Panthera leo). This notification covers email or fax or to an address not listed DEPARTMENT OF THE INTERIOR activities to be conducted by the in ADDRESSES. applicant over a 5-year period. If you submit a comment via http:// Office of the Secretary Applicant: Zooworld Zoological and www.regulations.gov, your entire [Docket No. ONRR–2012–0003; DS63600000 Botanical Conservatory, Panama City comment, including any personal DR2000000.PMN000 178D0102R2] Beach, FL; PRT–99140B identifying information, will be posted The applicant requests a captive-bred on the Web site. If you submit a 30-Day Extension of Nomination wildlife registration under 50 CFR hardcopy comment that includes Period for the Royalty Policy 17.21(g) for the following species to personal identifying information, you Committee may request at the top of your document enhance species propagation or AGENCY: Office of Natural Resources that we withhold this information from survival: Military macaw (Ara miliaris), Revenue, Interior. public review. However, we cannot Ring-tailed lemur, (Lemur catta), Black ACTION: Notice. and white ruffed lemur (Varecia guarantee that we will be able to do so. variegate), Red-ruffed lemur (Varecia We will post all hardcopy comments SUMMARY: On April 3, 2017, the U.S. rubra), Cottontop tamarin (Saguinus on http://www.regulations.gov. Department of the Interior (DOI)

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published a notice establishing the contact a potential member. If you has also adopted its 2017 final Royalty Policy Committee (Committee) already submitted a nomination by one fingerprint processing fees of $18 per and requesting nominations and of the methods described in the card effective June 1, 2017. These fees comments. This notice extends the ADDRESSES section of this Notice, you remain the same as the 2017 nomination period end date by 30 need not re-submit the nomination. We preliminary fingerprint processing fees. additional days. will consider all nominations received FOR FURTHER INFORMATION CONTACT: DATES: The deadline for nominations by these methods from April 3, 2017 published in the notice of April 3, 2017 through July 3, 2017. Additional Yvonne Lee, National Indian Gaming (82 FR 16222) is extended. Nominations information is available in the Royalty Commission, 1849 C Street NW., Mail for the Committee must be submitted by Policy Committee Establishment; Stop #1621, Washington, DC 20240; July 3, 2017. Request for Nominations notice telephone (202) 632–7003; fax (202) 632–7066. ADDRESSES: You may submit published on April 3, 2017 (82 FR nominations by any of the following 16222). SUPPLEMENTARY INFORMATION: The methods: Public Disclosure of Comments: Indian Gaming Regulatory Act (IGRA) • Mail or hand-carry nominations to Before including your address, phone established the National Indian Gaming Ms. Kim Oliver, Department of the number, email address, or other Commission, which is charged with Interior, Office of Natural Resources personal identifying information in your regulating gaming on Indian lands. Revenue, 1849 C Street, NW., MS comment, you should be aware that your entire nomination submission— Commission regulations (25 CFR part 5134, Washington, DC 20240. 514) provide for a system of fee • Email nominations to: Kimiko.oliver@ including your personal identifying assessment and payment that is self- onrr.gov. information—may be made publicly administered by gaming operations. FOR FURTHER INFORMATION CONTACT: Ms. available at any time. While you can ask us in your submission to withhold your Pursuant to those regulations, the Judy Wilson, Office of Natural Commission is required to adopt and Resources Revenue; telephone (202) personal identifying information from communicate assessment rates and the 208–4410; email: judith.wilson@ public review, we cannot guarantee that gaming operations are required to apply onrr.gov. we will be able to do so. Authority: 5 U.S.C. Appendix 2. those rates to their revenues, compute SUPPLEMENTARY INFORMATION: The the fees to be paid, report the revenues, Committee is established under the Gregory J. Gould, and remit the fees to the Commission. authority of the Secretary of the Interior Director, Office of Natural Resources All gaming operations within the (Secretary) and regulated by the Federal Revenue. jurisdiction of the Commission are Advisory Committee Act. The purpose [FR Doc. 2017–11441 Filed 6–1–17; 8:45 am] required to self-administer the of the Committee is to ensure that the BILLING CODE 4335–30–P provisions of these regulations, and public receives the full value of the report and pay any fees that are due to natural resources produced from the Commission. Federal lands. The duties of the NATIONAL INDIAN GAMING Committee are solely advisory in nature. COMMISSION Pursuant to 25 CFR part 514, the The Committee will not exceed 28 Commission must also review regularly members and will be composed of 2017 Final Fee Rate and Fingerprint the costs involved in processing Federal and non-Federal members in Fees fingerprint cards and set a fee based on order to ensure fair and balanced fees charged by the Federal Bureau of AGENCY: National Indian Gaming representation. Commission. Investigation and costs incurred by the The Secretary will appoint non- Commission. Commission costs include ACTION: Notice. Federal members in the following Commission personnel, supplies, categories: SUMMARY: Notice is hereby given, equipment costs, and postage to submit • Up to six members representing the pursuant to 25 CFR 514.2, that the the results to the requesting tribe. Governors of States that receive more National Indian Gaming Commission Dated: May 25, 2017. than $10,000,000 annually in royalty has adopted its 2017 final annual fee Jonodev Osceola Chaudhuri, revenues from onshore and offshore rates of 0.00% for tier 1 and 0.062% Federal leases (.00062) for tier 2, which remain the Chairman. • Up to four members representing the same as the 2017 preliminary fee rates. Dated: May 25, 2017. Indian Tribes that are engaged in The tier 2 annual fee rate maintains the Kathryn C. Isom-Clause, activities subject to laws relating to lowest fee rate adopted by the Vice Chair. mineral development that is specific Commission since 2010. These rates to one or more Indian Tribes shall apply to all assessable gross Dated: May 25, 2017. • Up to six members representing revenues from each gaming operation E. Sequoyah Simermeyer, various mineral and/or energy under the jurisdiction of the Associate Commissioner. stakeholders in Federal and Indian Commission. If a tribe has a certificate [FR Doc. 2017–11434 Filed 6–1–17; 8:45 am] royalty policy of self-regulation under 25 CFR part • BILLING CODE 7565–01–P Up to four members representing 518, the 2017 final fee rate on Class II academia and public interest groups revenues shall be 0.031% (.00031) Nominations should include a resume which is one-half of the annual fee rate. providing an adequate description of the The final fee rates being adopted here nominee’s qualifications, including are effective June 1, 2017, and will information that would enable DOI to remain in effect until new rates are make an informed decision regarding adopted. meeting the membership requirements Pursuant to 25 CFR 514.16, the of the Committee and to permit DOI to National Indian Gaming Commission

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DEPARTMENT OF THE INTERIOR The human remains and associated archeological site context and types of funerary objects were removed from funerary objects, indicates that all three National Park Service within the boundaries of Lava Beds sites were occupied by ancestral Modoc [NPS–WASO–NAGPRA–23210; National Monument, Modoc and peoples. PPWOCRADN0–PCU00RP14.R50000] Siskiyou Counties, CA. During consultation, representatives This notice is published as part of the from associated tribes stated that their Notice of Inventory Completion: U.S. National Park Service’s administrative oral traditions indicate affiliation with responsibilities under NAGPRA, 25 Department of the Interior, National the Modoc. The Modoc have been U.S.C. 3003(d)(3). The determinations in Park Service, Lava Beds National identified as aboriginal to the area this notice are the sole responsibility of Monument, Tulelake, CA where the three sites are located by the the Superintendent, Lava Beds National U.S. Indian Claims Commission. AGENCY: National Park Service, Interior. Monument. Geographical, archeological, linguistic, ACTION: Notice. Consultation folklore, oral tradition, and historical SUMMARY: The U.S. Department of the A detailed assessment of the human evidence support that association. Interior, National Park Service, Lava remains was made by Lava Beds Today, contemporary descendants of the Beds National Monument has National Monument professional staff in Modoc are members of both the Klamath completed an inventory of human consultation with representatives of the Tribes and The Modoc Tribe of remains and associated funerary objects, Klamath Tribes and The Modoc Tribe of Oklahoma. in consultation with the appropriate Oklahoma. Determinations Made by Lava Beds Indian tribes or Native Hawaiian History and Description of the Remains National Monument organizations, and has determined that there is a cultural affiliation between the In 1952, human remains representing, Officials of Lava Beds National human remains and associated funerary at minimum, two individuals were Monument have determined that: removed from site CA–SIS–0142 in objects and present-day Indian tribes or • Pursuant to 25 U.S.C. 3001(9), the Siskiyou County, CA, during legally Native Hawaiian organizations. Lineal human remains described in this notice authorized excavations by Robert J. descendants or representatives of any represent the physical remains of 18 Squier and Gordon L. Grosscup under Indian tribe or Native Hawaiian individuals of Native American the auspices of the Department of organization not identified in this notice ancestry. Anthropology, University of California, that wish to request transfer of control • of these human remains and associated Berkeley, CA. No known individuals Pursuant to 25 U.S.C. 3001(3)(A), funerary objects should submit a written were identified. No associated funerary the 15 objects described in this notice request to Lava Beds National objects are present. are reasonably believed to have been Monument. If no additional requestors In 1952, human remains representing, placed with or near individual human come forward, transfer of control of the at minimum, two individuals were remains at the time of death or later as human remains and associated funerary removed from site CA–MOD–0048 in part of the death rite or ceremony. objects to the lineal descendants, Indian Modoc County, CA, during legally • Pursuant to 25 U.S.C. 3001(2), there tribes, or Native Hawaiian organizations authorized excavations by Robert J. is a relationship of shared group stated in this notice may proceed. Squier and Gordon L. Grosscup under identity that can be reasonably traced the auspices of the Department of DATES: Lineal descendants or between the Native American human representatives of any Indian tribe or Anthropology, University of California, remains and associated funerary objects Native Hawaiian organization not Berkeley, CA. No known individuals and the Klamath Tribes and The Modoc identified in this notice that wish to were identified. No associated funerary Tribe of Oklahoma. request transfer of control of these objects are present. In 1952, human remains representing, Additional Requestors and Disposition human remains and associated funerary at minimum, 14 individuals were objects should submit a written request removed from site CA–MOD–0049 in Lineal descendants or representatives with information in support of the Modoc County, CA, during legally of any Indian tribe or Native Hawaiian request to Lava Beds National authorized excavations by Robert J. organization not identified in this notice Monument at the address in this notice Squier and Gordon L. Grosscup under that wish to request transfer of control by July 3, 2017. the auspices of the Department of of these human remains and associated ADDRESSES: Lawrence J. Whalon Jr., Anthropology, University of California, funerary objects should submit a written Superintendent, Lava Beds National Berkeley, CA. No known individuals request with information in support of Monument, P.O. Box 1240, Tulelake, CA were identified. The 15 associated the request to Lawrence J. Whalon Jr., 96134, telephone (530) 677–8101, email funerary objects are 3 cordage Superintendent, Lava Beds National _ larry [email protected]. fragments, 1 projectile point fragment, 2 Monument, P.O. Box 1240, Tulelake, CA SUPPLEMENTARY INFORMATION: 96134, telephone (530) 677–8101, email Notice is scrapers, 3 basketry fragments, 1 _ here given in accordance with the charcoal fragment, and 5 matting larry [email protected], by July 3, 2017. Native American Graves Protection and fragments. After that date, if no additional Repatriation Act (NAGPRA), 25 U.S.C. Based on burial type and location, as requestors have come forward, transfer 3003, of the completion of an inventory well as available archeological and of control of the human remains and of human remains and associated historical information, it is likely that associated funerary objects to the funerary objects under the control of the the remains are Native American. Klamath Tribes and The Modoc Tribe of U.S. Department of the Interior, Artifacts found near the burial locations Oklahoma may proceed. National Park Service, Lava Beds suggest a late prehistoric age and are Lava Beds National Monument is National Monument, Tulelake, CA, and characteristic of prehistoric Modoc responsible for notifying the Klamath in the physical custody of the Phoebe A. funerary practices in this region. In Tribes and The Modoc Tribe of Hearst Museum of Anthropology, addition, ethnographic and Oklahoma that this notice has been University of California, Berkeley, CA. archeological evidence, including published.

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Dated: April 3, 2017. funerary objects under the control of the the remains. The historic Creek town Melanie O’Brien, U.S. Department of the Interior, associated with the trading post near Manager, National NAGPRA Program. National Park Service, Ocmulgee Mound C has long been thought to be [FR Doc. 2017–11454 Filed 6–1–17; 8:45 am] National Monument, Macon, GA. The Ocmulgee. Residents of Ocmulgee BILLING CODE 4312–52–P human remains and associated funerary moved to the Chattahoochee River after objects were removed from Funeral 1717. Mound, Bibb County, GA. Historical documentation reflects a DEPARTMENT OF THE INTERIOR This notice is published as part of the great deal of movement and National Park Service’s administrative reorganization among the Creeks and National Park Service responsibilities under NAGPRA, 25 the Creek Confederacy during the 18th U.S.C. 3003(d)(3). The determinations in and 19th centuries. Ten present-day [NPS–WASO–NAGPRA–23203; PPWOCRADN0–PCU00RP14.R50000] this notice are the sole responsibility of Indian tribes include Creek the Superintendent, Ocmulgee National descendants—the Alabama-Coushatta Notice of Inventory Completion: U.S. Monument. Tribe of Texas (previously listed as the Department of the Interior, National Consultation Alabama-Coushatta Tribes of Texas), Park Service, Ocmulgee National Alabama-Quassarte Tribal Town, Monument, Macon, GA A detailed assessment of the human Coushatta Tribe of Louisiana, Kialegee remains was made by Ocmulgee Tribal Town, Miccosukee Tribe of AGENCY: National Park Service, Interior. National Monument professional staff in Indians, Poarch Band of Creeks ACTION: Notice. consultation with representatives of the (previously listed as the Poarch Band of Absentee-Shawnee Tribe of Indians of Creek Indians of Alabama), Seminole SUMMARY: The U.S. Department of the Oklahoma, Alabama-Coushatta Tribe of Tribe of Florida (previously listed as the Interior, National Park Service, Texas (previously listed as the Alabama- Seminole Tribe of Florida (Dania, Big Ocmulgee National Monument has Coushatta Tribes of Texas), Alabama- Cypress, Brighton, Hollywood & Tampa completed an inventory of human Quassarte Tribal Town, Catawba Indian Reservations)), The Muscogee (Creek) remains and associated funerary objects, Nation (aka Catawba Tribe of South Nation, The Seminole Nation of in consultation with the appropriate Carolina), Cherokee Nation, Coushatta Oklahoma, and Thlopthlocco Tribal Indian tribes or Native Hawaiian Tribe of Louisiana, Eastern Band of Town. organizations, and has determined that Cherokee Indians, Eastern Shawnee there is a cultural affiliation between the Tribe of Oklahoma, Jena Band of Determinations Made by Ocmulgee human remains and associated funerary Choctaw Indians, Kialegee Tribal Town, National Monument objects and present-day Indian tribes or Miccosukee Tribe of Indians, Officials of Ocmulgee National Native Hawaiian organizations. Lineal Mississippi Band of Choctaw Indians, Monument have determined that: descendants or representatives of any Poarch Band of Creeks (previously listed • Pursuant to 25 U.S.C. 3001(9), the Indian tribe or Native Hawaiian as the Poarch Band of Creek Indians of human remains described in this notice organization not identified in this notice Alabama), Seminole Tribe of Florida represent the physical remains of four that wish to request transfer of control (previously listed as the Seminole Tribe individuals of Native American of these human remains and associated of Florida (Dania, Big Cypress, Brighton, ancestry. funerary objects should submit a written Hollywood & Tampa Reservations)), • Pursuant to 25 U.S.C. 3001(3)(A), request to Ocmulgee National Shawnee Tribe, The Chickasaw Nation, the 42 objects described in this notice Monument. If no additional requestors The Choctaw Nation of Oklahoma, The are reasonably believed to have been come forward, transfer of control of the Muscogee (Creek) Nation, The Seminole placed with or near individual human human remains and associated funerary Nation of Oklahoma, Thlopthlocco remains at the time of death or later as objects to the lineal descendants, Indian Tribal Town, and United Keetowah part of the death rite or ceremony. tribes, or Native Hawaiian organizations Band of Cherokee Indians in Oklahoma. • Pursuant to 25 U.S.C. 3001(2), there stated in this notice may proceed. is a relationship of shared group History and Description of the Remains DATES: Lineal descendants or identity that can be reasonably traced representatives of any Indian tribe or Between 1933 and 1934, human between the Native American human Native Hawaiian organization not remains representing, at minimum, four remains and associated funerary objects identified in this notice that wish to individuals were removed from Funeral and the Alabama-Coushatta Tribe of request transfer of control of these Mound C in Bibb County, GA, during Texas (previously listed as the Alabama- human remains and associated funerary legally authorized projects sponsored by Coushatta Tribes of Texas), Alabama- objects should submit a written request the Works Progress Administration. No Quassarte Tribal Town, Coushatta Tribe with information in support of the known individuals were identified. The of Louisiana, Kialegee Tribal Town, request to Ocmulgee National 42 associated funerary objects are 1 adz, Miccosukee Tribe of Indians, Poarch Monument at the address in this notice 1 biface, 1 bowl, 1 animal bone, 2 Band of Creeks (previously listed as the by July 3, 2017. gorgets, 1 jar, 1 elbow pipe, 2 projectile Poarch Band of Creek Indians of points, 4 scrapers, 1 piece of shatter, 2 Alabama), Seminole Tribe of Florida ADDRESSES: Jim David, Superintendent, worked shells, 5 spoons, and 20 vessel (previously listed as the Seminole Tribe Ocmulgee National Monument, 1207 fragments. Emery Highway, Macon, GA 31217, of Florida (Dania, Big Cypress, Brighton, While Mound C is a burial mound Hollywood & Tampa Reservations)), The telephone (478) 752–8257, email dating to the Macon Plateau phase of the [email protected]. Muscogee (Creek) Nation, The Seminole Early Mississippian period (A.D. 900 to Nation of Oklahoma, and Thlopthlocco SUPPLEMENTARY INFORMATION: Notice is A.D. 1100), several historic burials were Tribal Town. here given in accordance with the placed in the upper levels of the mound Native American Graves Protection and and in the adjacent village area. Burials Additional Requestors and Disposition Repatriation Act (NAGPRA), 25 U.S.C. excavated at this site were identified as Lineal descendants or representatives 3003, of the completion of an inventory historic Creek on the basis of European of any Indian tribe or Native Hawaiian of human remains and associated trade goods found in association with organization not identified in this notice

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that wish to request transfer of control DEPARTMENT OF THE INTERIOR Consultation of these human remains and associated A detailed assessment of the human National Park Service funerary objects should submit a written remains was made by the Kansas State request with information in support of [NPS–WASO–NAGPRA–23291; Historical Society professional staff in the request to Jim David, PPWOCRADN0–PCU00RP14.R50000] consultation with representatives of the Superintendent, Ocmulgee National Kaw Nation, Oklahoma. Monument, 1207 Emery Highway, Notice of Inventory Completion: History and Description of the Remains Macon, GA 31217, telephone (478) 752– Kansas State Historical Society, 8257, email [email protected], by July Topeka, KS On June 12, 2012, human remains representing, at minimum, one 3, 2017. After that date, if no additional AGENCY: National Park Service, Interior. individual were removed from midden requestors have come forward, transfer ACTION: Notice. of control of the human remains and area 230 of site 14SH305 in Shawnee associated funerary objects to the SUMMARY: The Kansas State Historical County, KS, during excavation of the site. Excavation in the immediate area Alabama-Coushatta Tribe of Texas Society has completed an inventory of human remains, in consultation with ceased and the Shawnee County Sheriff (previously listed as the Alabama- was contacted (case no. 12–03361). Coushatta Tribes of Texas), Alabama- the appropriate Indian tribes or Native Hawaiian organizations, and has Further excavation in site 14SH305 Quassarte Tribal Town, Coushatta Tribe determined that there is a cultural found no other human remains. No of Louisiana, Kialegee Tribal Town, affiliation between the human remains other provenience information is Miccosukee Tribe of Indians, Poarch and present-day Indian tribes or Native available. The human remains consist of Band of Creeks (previously listed as the Hawaiian organizations. Lineal one molar tooth. No known individual Poarch Band of Creek Indians of descendants or representatives of any was identified. No associated funerary Alabama), Seminole Tribe of Florida Indian tribe or Native Hawaiian objects are present. (previously listed as the Seminole Tribe organization not identified in this notice In or about 2013, human remains of Florida (Dania, Big Cypress, Brighton, that wish to request transfer of control representing, at minimum, one Hollywood & Tampa Reservations)), The of these human remains should submit individual were removed from feature Muscogee (Creek) Nation, The Seminole a written request to the Kansas State 303 of site 14SH305 by an analyst while Nation of Oklahoma, and Thlopthlocco Historical Society. If no additional sorting very small skeletal remains. No Tribal Town may proceed. requestors come forward, transfer of other provenience information is control of the human remains to the available. The human remains consist of Ocmulgee National Monument is two human phalanges. No known responsible for notifying the Absentee- lineal descendants, Indian tribes, or Native Hawaiian organizations stated in individual was identified. No associated Shawnee Tribe of Indians of Oklahoma, this notice may proceed. funerary objects are present. Alabama-Coushatta Tribe of Texas DATES: Site 14SH305 is a known historic (previously listed as the Alabama- Lineal descendants or representatives of any Indian tribe or Kansa village, specifically Fool Chief’s Coushatta Tribes of Texas), Alabama- Native Hawaiian organization not Village. Based on historical sources, it Quassarte Tribal Town, Catawba Indian identified in this notice that wish to was originally recorded as an Nation (aka Catawba Tribe of South request transfer of control of these archeological site by Kansas State Carolina), Cherokee Nation, Coushatta human remains should submit a written Archeologist Roscoe Wilmeth in 1957. Tribe of Louisiana, Eastern Band of request with information in support of The village was part of the Kansa Cherokee Indians, Eastern Shawnee the request to the Kansas State Reservation, and was occupied from Tribe of Oklahoma, Jena Band of Historical Society at the address in this 1828 to 1844 by approximately 700–800 Choctaw Indians, Kialegee Tribal Town, notice by July 3, 2017. members of the Kansa tribe. In 2012 and 2013, the Kansas Historical Society Miccosukee Tribe of Indians, ADDRESSES: Dr. Robert J. Hoard, Kansas Mississippi Band of Choctaw Indians, State Historical Society, 6425 SW. 6th conducted archeological excavations of Poarch Band of Creeks (previously listed Avenue, Topeka, KS 66615–1099, the site in order to mitigate the effects as the Poarch Band of Creek Indians of telephone (785) 272–8681, extension of Kansas Department of Transportation Alabama), Seminole Tribe of Florida 269, [email protected]. Project Number 24–89 K–7431–01. The present-day descendants of the Kansa (previously listed as the Seminole Tribe SUPPLEMENTARY INFORMATION: Notice is are the Kaw Nation, Oklahoma. of Florida (Dania, Big Cypress, Brighton, here given in accordance with the Hollywood & Tampa Reservations)), Native American Graves Protection and Determinations Made by the Kansas Shawnee Tribe, The Chickasaw Nation, Repatriation Act (NAGPRA), 25 U.S.C. State Historical Society The Choctaw Nation of Oklahoma, The 3003, of the completion of an inventory Officials of the Kansas State Historical Muscogee (Creek) Nation, The Seminole of human remains under the control of Society have determined that: Nation of Oklahoma, Thlopthlocco the Kansas State Historical Society, • Pursuant to 25 U.S.C. 3001(9), the Tribal Town, and United Keetowah Topeka, KS. The human remains were human remains described in this notice Band of Cherokee Indians in Oklahoma removed from site 14SH305 in Shawnee represent the physical remains of two that this notice has been published. County, KS. individuals of Native American This notice is published as part of the Dated: April 3, 2017. ancestry. National Park Service’s administrative • Pursuant to 25 U.S.C. 3001(2), there Melanie O’Brien, responsibilities under NAGPRA, 25 is a relationship of shared group Manager, National NAGPRA Program. U.S.C. 3003(d)(3). The determinations in identity that can be reasonably traced [FR Doc. 2017–11448 Filed 6–1–17; 8:45 am] this notice are the sole responsibility of between the Native American human BILLING CODE 4312–52–P the museum, institution, or Federal remains and the Kaw Nation, Oklahoma. agency that has control of the Native American human remains. The National Additional Requestors and Disposition Park Service is not responsible for the Lineal descendants or representatives determinations in this notice. of any Indian tribe or Native Hawaiian

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organization not identified in this notice ADDRESSES: Jim David, Superintendent, the remains. Residents of the Creek that wish to request transfer of control Ocmulgee National Monument, 1207 town of Ocmulgee moved to the of these human remains should submit Emery Highway, Macon, GA 31217, Chattahoochee River after 1717. a written request with information in telephone (478) 752–8257, email Historical documentation reflects a great support of the request to Dr. Robert J. [email protected]. deal of movement and reorganization among the Creeks and the Creek Hoard, Kansas State Historical Society, SUPPLEMENTARY INFORMATION: Notice is 6425 SW. 6th Avenue, Topeka, KS here given in accordance with the Confederacy during the 18th and 19th 66615–1099, telephone (785) 272–8681, Native American Graves Protection and centuries. Ten present-day Indian tribes are thought to include Creek extension 269, [email protected], by July Repatriation Act (NAGPRA), 25 U.S.C. descendants including the Alabama- 3, 2017. After that date, if no additional 3005, of the intent to repatriate cultural Coushatta Tribe of Texas, Alabama- requestors have come forward, transfer items under the control of the U.S. Quassarte Tribal Town, Coushatta Tribe of control of the human remains to the Department of the Interior, National of Louisiana, Kialegee Tribal Town, Kaw Nation, Oklahoma may proceed. Park Service, Ocmulgee National Miccosukee Tribe of Indians, Poarch The Kansas State Historical Society is Monument, Macon, GA, that meet the Band of Creeks, Seminole Tribe of responsible for notifying the Kaw definition of unassociated funerary Florida, The Muscogee (Creek) Nation, Nation, Oklahoma that this notice has objects under 25 U.S.C. 3001. The Seminole Nation of Oklahoma, and been published. This notice is published as part of the Thlopthlocco Tribal Town. Dated: April 21, 2017. National Park Service’s administrative Melanie O’Brien, responsibilities under NAGPRA, 25 Determinations Made by Ocmulgee Manager, National NAGPRA Program. U.S.C. 3003(d)(3). The determinations in National Monument [FR Doc. 2017–11446 Filed 6–1–17; 8:45 am] this notice are the sole responsibility of Officials of Ocmulgee National BILLING CODE 4312–52–P the Superintendent, Ocmulgee National Monument have determined that: Monument. • Pursuant to 25 U.S.C. 3001(3)(B), History and Description of the Cultural the 25,127 cultural items described DEPARTMENT OF THE INTERIOR Items above are reasonably believed to have been placed with or near individual National Park Service Between 1933 and 1958, 25,127 human remains at the time of death or cultural items were removed from the later as part of the death rite or [NPS–WASO–NAGPRA–23205; Trading Post area of the Macon Plateau ceremony and are believed, by a PPWOCRADN0–PCU00RP14.R50000] in Bibb County, GA, during multiple preponderance of the evidence, to have legally authorized excavations. The been removed from a specific burial site Notice of Intent To Repatriate Cultural human remains were repatriated to of a Native American individual. Items: U.S. Department of the Interior, culturally affiliated tribes in 2015 by the • Pursuant to 25 U.S.C. 3001(2), there National Park Service, Ocmulgee Smithsonian Institution, National is a relationship of shared group National Monument, Macon, GA Museum of Natural History. The 25,127 identity that can be reasonably traced unassociated funerary objects are 2 between the unassociated funerary AGENCY: National Park Service, Interior. abraders, 2 armbands, 41 balls, 22,045 objects and the Alabama-Coushatta ACTION: Notice. beads, 16 bells, 10 bifaces, 499 animal Tribe of Texas (previously listed as the remains, 3 bags of animal bone, 1 liquor Alabama-Coushatta Tribes of Texas), SUMMARY: The U.S. Department of the bottle, 2 bowls, 1 bullet, 33 buttons, 5 Alabama-Quassarte Tribal Town, Interior, National Park Service, charcoal fragments, 1 chopper, 29 pieces Coushatta Tribe of Louisiana, Kialegee Ocmulgee National Monument, in of fired clay, 2 pieces of unfired clay, 10 Tribal Town, Miccosukee Tribe of consultation with the appropriate concretions, 3 cores, 2 cuff links, 11 Indians, Poarch Band of Creeks Indian tribes or Native Hawaiian pieces of daub, 101 pieces of debitage, (previously listed as the Poarch Band of organizations, has determined that the 303 flakes, 28 flake tools, 2 flat Creek Indians of Alabama), Seminole cultural items listed in this notice meet rectangular copper fragments, 98 shells, Tribe of Florida (previously listed as the the definition of unassociated funerary 1 glass fragment, 1 gorget, 1 graver, 6 Seminole Tribe of Florida (Dania, Big objects. Lineal descendants or gun flints, 1 knife, 2 metal fragments, 1 Cypress, Brighton, Hollywood & Tampa representatives of any Indian tribe or metal pendant, 1 mug, 4 musket balls, Reservations)), The Muscogee (Creek) Native Hawaiian organization not 3 nails, 2 plant fragments, 1 nutting Nation, The Seminole Nation of identified in this notice that wish to stone, 1 pipe, 15 projectile points, 7 Oklahoma, and Thlopthlocco Tribal claim these cultural items should preforms, 1 rivet, 5 scrapers, 1 seed, 33 Town. submit a written request to Ocmulgee pieces of shatter, 2 bags of shell, 2 National Monument. If no additional worked shells, 4 pieces of slag, 1 spiral Additional Requestors and Disposition claimants come forward, transfer of spring, 53 unmodified stones, 2 sword Lineal descendants or representatives control of the cultural items to the lineal fragments, 3 tobacco pipes, 1 tack, 1 bag of any Indian tribe or Native Hawaiian descendants, Indian tribes, or Native of unmodified stone, 1,705 vessel organization not identified in this notice Hawaiian organizations stated in this fragments, 5 windowpane fragments, 6 that wish to claim these cultural items notice may proceed. wires, 1 worked stone, and 4 flintlock should submit a written request with DATES: Lineal descendants or muskets. information in support of the claim to representatives of any Indian tribe or The trading post at Macon was Jim David, Superintendent, Ocmulgee Native Hawaiian organization not operated by the British from 1685–1717. National Monument, 1207 Emery identified in this notice that wish to The historic Creek town associated with Highway, Macon, GA 31217, telephone claim these cultural items should the trading post has long been thought (478) 752–8257, email submit a written request with to have been Ocmulgee. Burials [email protected], by July 3, 2017. information in support of the claim to excavated at this site were identified as After that date, if no additional Ocmulgee National Monument at the historic Creek on the basis of European claimants have come forward, transfer address in this notice by July 3, 2017. trade goods found in association with of control of the unassociated funerary

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objects to Alabama-Coushatta Tribe of Ocmulgee National Monument has Correction Texas (previously listed as the Alabama- corrected an inventory of human In the Federal Register (66 FR 32838, Coushatta Tribes of Texas), Alabama- remains and associated funerary objects, June 18, 2001), column 3, paragraph 4, Quassarte Tribal Town, Coushatta Tribe published in a Notice of Inventory sentence 3 is corrected by substituting of Louisiana, Kialegee Tribal Town, Completion in the Federal Register on the following sentence: Miccosukee Tribe of Indians, Poarch June 18, 2001. This notice corrects the Band of Creeks (previously listed as the number of associated funerary objects. The 65 associated funerary objects are 1 Poarch Band of Creek Indians of bead, 1 biface, 21 animal bones, 1 celt, 1 core, Lineal descendants or representatives of 1 ear plug, 1 shell, 12 pins, 1 tobacco pipe, Alabama), Seminole Tribe of Florida any Indian tribe or Native Hawaiian 1 projectile point, 1 paint pot, 8 unmodified (previously listed as the Seminole Tribe organization not identified in this notice stones, 1 flake tool, and 14 vessel fragments. of Florida (Dania, Big Cypress, Brighton, that wish to request transfer of control In the Federal Register (66 FR 32839, Hollywood & Tampa Reservations)), The of these human remains and associated June 18, 2001), column 2, paragraph 2, Muscogee (Creek) Nation, The Seminole funerary objects should submit a written Nation of Oklahoma, and Thlopthlocco sentence 2 is corrected by substituting request to Ocmulgee National the following sentence: Tribal Town may proceed. Monument. If no additional requestors Ocmulgee National Monument is come forward, transfer of control of the The superintendent of Ocmulgee National responsible for notifying the Absentee- human remains and associated funerary Monument also has determined that, Shawnee Tribe of Indians of Oklahoma, pursuant to 43 CFR 10.2(d)(2), the 121 objects objects to the lineal descendants, Indian listed above are reasonably believed to have Alabama-Coushatta Tribe of Texas tribes, or Native Hawaiian organizations (previously listed as the Alabama- been placed with or near individual human stated in this notice may proceed. remains at the time of death or later as part Coushatta Tribes of Texas), Alabama- of the death rite or ceremony. Quassarte Tribal Town, Catawba Indian DATES: Lineal descendants or representatives of any Indian tribe or Nation (aka Catawba Tribe of South Additional Requestors and Disposition Carolina), Cherokee Nation, Coushatta Native Hawaiian organization not Tribe of Louisiana, Eastern Band of identified in this notice that wish to Lineal descendants or representatives Cherokee Indians, Eastern Shawnee request transfer of control of these of any Indian tribe or Native Hawaiian Tribe of Oklahoma, Jena Band of human remains and associated funerary organization not identified in this notice Choctaw Indians, Kialegee Tribal Town, objects should submit a written request that wish to request transfer of control Miccosukee Tribe of Indians, with information in support of the of these human remains and associated Mississippi Band of Choctaw Indians, request to Ocmulgee National funerary objects should submit a written Poarch Band of Creeks (previously listed Monument at the address in this notice request with information in support of as the Poarch Band of Creek Indians of by July 3, 2017. the request to Jim David, Alabama), Seminole Tribe of Florida ADDRESSES: Jim David, Superintendent, Superintendent, Ocmulgee National (previously listed as the Seminole Tribe Ocmulgee National Monument, 1207 Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752– of Florida (Dania, Big Cypress, Brighton, Emery Highway, Macon, GA 31217, _ Hollywood & Tampa Reservations)), telephone (478) 752–8257, email jim_ 8257, email jim [email protected], by July Shawnee Tribe, The Chickasaw Nation, [email protected]. 3, 2017. After that date, if no additional requestors have come forward, transfer The Choctaw Nation of Oklahoma, The SUPPLEMENTARY INFORMATION: Notice is Muscogee (Creek) Nation, The Seminole of control of the human remains and here given in accordance with the associated funerary objects to the Nation of Oklahoma, Thlopthlocco Native American Graves Protection and Tribal Town, and United Keetowah Alabama-Coushatta Tribe of Texas Repatriation Act (NAGPRA), 25 U.S.C. (previously listed as the Alabama- Band of Cherokee Indians in Oklahoma 3003, of the correction of an inventory that this notice has been published. Coushatta Tribes of Texas), Alabama- of human remains and associated Quassarte Tribal Town, Cherokee Dated: April 3, 2017. funerary objects under the control of the Nation, Coushatta Tribe of Louisiana, Melanie O’Brien, U.S. Department of the Interior, Eastern Band of Cherokee Indians, Manager, National NAGPRA Program. National Park Service, Ocmulgee Kialegee Tribal Town, Miccosukee Tribe [FR Doc. 2017–11451 Filed 6–1–17; 8:45 am] National Monument, Macon, GA. The of Indians, Poarch Band of Creeks BILLING CODE 4312–52–P human remains and associated funerary (previously listed as the Poarch Band of objects were removed from Lamar Creek Indians of Alabama), Seminole Mounds and Village, Bibb County, GA. Tribe of Florida (previously listed as the DEPARTMENT OF THE INTERIOR This notice is published as part of the Seminole Tribe of Florida (Dania, Big National Park Service’s administrative Cypress, Brighton, Hollywood & Tampa National Park Service responsibilities under NAGPRA, 25 Reservations)), The Muscogee (Creek) [NPS–WASO–NAGPRA–23204; U.S.C. 3003(d)(3). The determinations in Nation, The Seminole Nation of PPWOCRADN0–PCU00RP14.R50000] this notice are the sole responsibility of Oklahoma, Thlopthlocco Tribal Town, the Superintendent, Ocmulgee National and United Keetowah Band of Cherokee Notice of Inventory Completion for Monument. Indians in Oklahoma may proceed. Native American Human Remains and This notice corrects the number of Ocmulgee National Monument is Associated Funerary Objects in the associated funerary objects published in responsible for notifying the Absentee- Control of the U.S. Department of the a Notice of Inventory Completion in the Shawnee Tribe of Indians of Oklahoma, Interior, National Park Service, Federal Register (66 FR 32838–32840, Alabama-Coushatta Tribe of Texas Ocmulgee National Monument, Macon, June 18, 2001). During review of (previously listed as the Alabama- GA; Correction collections additional associated Coushatta Tribes of Texas), Alabama- AGENCY: National Park Service, Interior. funerary objects were identified and Quassarte Tribal Town, Catawba Indian ACTION: Notice; correction. some objects were determined to be Nation (aka Catawba Tribe of South unassociated funerary objects. Transfer Carolina), Cherokee Nation, Coushatta SUMMARY: The U.S. Department of the of control of the items in this correction Tribe of Louisiana, Eastern Band of Interior, National Park Service, notice has not occurred. Cherokee Indians, Eastern Shawnee

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Tribe of Oklahoma, Jena Band of ADDRESSES: Jim David, Superintendent, to the river later called the Ocmulgee Choctaw Indians, Kialegee Tribal Town, Ocmulgee National Monument, 1207 River. The towns and people living Miccosukee Tribe of Indians, Emery Highway, Macon, GA 31217, along Ochese Creek during that period Mississippi Band of Choctaw Indians, telephone (478) 752–8257, email jim_ were referred to as the Ochese (various Poarch Band of Creeks (previously listed [email protected]. spellings) Creek Nation, the Ochese as the Poarch Band of Creek Indians of SUPPLEMENTARY INFORMATION: Notice is Creek people, and, finally, simply the Alabama), Seminole Tribe of Florida here given in accordance with the Creeks. The word Ochese and its (previously listed as the Seminole Tribe Native American Graves Protection and variations has been traced from middle of Florida (Dania, Big Cypress, Brighton, Repatriation Act (NAGPRA), 25 U.S.C. Georgia to the Chattahoochee River, Hollywood & Tampa Reservations)), 3005, of the intent to repatriate cultural then to Florida, and finally to Shawnee Tribe, The Chickasaw Nation, items under the control of the U.S. Oklahoma. A squareground of this name The Choctaw Nation of Oklahoma, The Department of the Interior, National existed in Oklahoma until the 1950s. Muscogee (Creek) Nation, The Seminole Park Service, Ocmulgee National There is an Ochese Street in Okmulgee, Nation of Oklahoma, Thlopthlocco Monument, Macon, GA, that meet the Oklahoma. Ethnohistorical information Tribal Town, and United Keetowah definition of unassociated funerary indicates that the Ichisi-Ochese were Band of Cherokee Indians in Oklahoma objects under 25 U.S.C. 3001. probably Hitchiti speakers, which that this notice has been published. This notice is published as part of the would link them directly to Hitchiti speakers among the later Seminole and Dated: April 3, 2017. National Park Service’s administrative responsibilities under NAGPRA, 25 Miccosukee tribes. The Ichisi-Ochese Melanie O’Brien, U.S.C. 3003(d)(3). The determinations in may also be linked less directly to Manager, National NAGPRA Program. this notice are the sole responsibility of speakers of closely related Alabama and [FR Doc. 2017–11449 Filed 6–1–17; 8:45 am] the Superintendent, Ocmulgee National Koasati languages among the latter-day BILLING CODE 4312–52–P Monument. Alabama and Coushatta tribes. History and Description of the Cultural Determinations Made by Ocmulgee DEPARTMENT OF THE INTERIOR Items National Monument Between 1933 and 1938, 436 cultural Officials of Ocmulgee National National Park Service items were removed from Lamar Monument have determined that: Mounds and Village in Bibb County, • Pursuant to 25 U.S.C. 3001(3)(B), [NPS–WASO–NAGPRA–23207; GA, during legally authorized projects the 436 cultural items described above PPWOCRADN0–PCU00RP14.R50000] sponsored by the Works Progress are reasonably believed to have been Administration. The human remains placed with or near individual human Notice of Intent To Repatriate Cultural were repatriated to culturally affiliated remains at the time of death or later as Items: U.S. Department of the Interior, tribes in 2015 by the Smithsonian part of the death rite or ceremony and National Park Service, Ocmulgee Institution, National Museum of Natural are believed, by a preponderance of the National Monument, GA History. The 436 unassociated funerary evidence, to have been removed from a specific burial site of a Native American AGENCY: National Park Service, Interior. objects are 3 awls, 25 beads, 1 bag of beads, 1 blade, 1 burin, 3 celts, 1 piece individual. ACTION: Notice. of fired clay, 1 piece of daub, 4 • Pursuant to 25 U.S.C. 3001(2), there discoidals, 2 earplugs, 24 flakes, 2 is a relationship of shared group SUMMARY: The U.S. Department of the animal bones, 5 shells, 1 gorget, 1 jar, identity that can be reasonably traced Interior, National Park Service, 1 projectile point, 3 scrapers, 1 worked between the unassociated funerary Ocmulgee National Monument, in shell, 7 soil samples, 1 flake tool, and objects and Alabama-Coushatta Tribe of consultation with the appropriate 348 vessel fragments. Texas (previously listed as the Alabama- Indian tribes or Native Hawaiian The Lamar Mounds and Village site Coushatta Tribes of Texas), Alabama- organizations, has determined that the consists of two mounds, A and B, and Quassarte Tribal Town, Cherokee cultural items listed in this notice meet a palisaded village area. Archeological Nation, Coushatta Tribe of Louisiana, the definition of unassociated funerary evidence indicates that the Lamar Eastern Band of Cherokee Indians, objects. Lineal descendants or Mounds and Village site was occupied Kialegee Tribal Town, Miccosukee Tribe representatives of any Indian tribe or during the entire Middle and Late of Indians, Poarch Band of Creeks Native Hawaiian organization not Mississippian periods (A.D. 1200–1650). (previously listed as the Poarch Band of identified in this notice that wish to The regional manifestation of Creek Indians of Alabama), Seminole claim these cultural items should archeological resources from the Tribe of Florida (previously listed as the submit a written request to Ocmulgee Mississippian period has been Seminole Tribe of Florida (Dania, Big National Monument. If no additional identified as the Lamar Culture. Cypress, Brighton, Hollywood & Tampa claimants come forward, transfer of Archeological evidence indicates that Reservations)), The Muscogee (Creek) control of the cultural items to the lineal the Lamar Culture ceramic types found Nation, The Seminole Nation of descendants, Indian tribes, or Native at Lamar Mounds and Village are Oklahoma, Thlopthlocco Tribal Town, Hawaiian organizations stated in this closely related to historic Creek and and United Keetowah Band of Cherokee notice may proceed. Cherokee ceramic traditions. Indians in Oklahoma. DATES: Lineal descendants or The Lamar site is also believed to be representatives of any Indian tribe or the town of Ichisi (Spanish) or Ochisi Additional Requestors and Disposition Native Hawaiian organization not (Portuguese) encountered by the Lineal descendants or representatives identified in this notice that wish to Hernando de Soto expedition in 1540. of any Indian tribe or Native Hawaiian claim these cultural items should Occupation of the site may have organization not identified in this notice submit a written request with continued into the early 18th century. that wish to claim these cultural items information in support of the claim to Between A.D. 1685 and 1717, the should submit a written request with Ocmulgee National Monument at the English used variations of the name information in support of the claim to address in this notice by July 3, 2017. Ochesehatchee or Ochese Creek to refer Jim David, Superintendent, Ocmulgee

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National Monument, 1207 Emery DEPARTMENT OF THE INTERIOR History and Description of the Cultural Highway, Macon, GA 31217, telephone Items (478) 752–8257, email jim_david@ National Park Service On an unknown date, two cultural nps.gov, by July 3, 2017. After that date, items were removed from a grave in the if no additional claimants have come [NPS–WASO–NAGPRA–23289; Lakeside District of Fort Wayne, Allen PPWOCRADN0–PCU00RP14.R50000] forward, transfer of control of the County, IN. At some time prior to 1947, unassociated funerary objects to Notice of Intent To Repatriate Cultural the funerary objects were acquired from Alabama-Coushatta Tribe of Texas Items: Allen County-Fort Wayne Mr. W.T. Angel by the Allen County- (previously listed as the Alabama- Historical Society, Fort Wayne, IN Fort Wayne Historical Society. No other Coushatta Tribes of Texas), Alabama- provenience information is available. Quassarte Tribal Town, Cherokee AGENCY: National Park Service, Interior. The 2 unassociated funerary objects are Nation, Coushatta Tribe of Louisiana, ACTION: Notice. 1 animal tusk and 1 hatchet head. Eastern Band of Cherokee Indians, In 1928, one cultural item was Kialegee Tribal Town, Miccosukee Tribe SUMMARY: The Allen County-Fort Wayne removed from a grave on Prospect of Indians, Poarch Band of Creeks Historical Society, in consultation with Avenue in Fort Wayne, Allen County, (previously listed as the Poarch Band of the appropriate Indian tribes or Native IN. In 1933, the funerary object was Creek Indians of Alabama), Seminole Hawaiian organizations, has determined acquired from Mr. Theodore Waldo by Tribe of Florida (previously listed as the that the cultural items listed in this the Allen County-Fort Wayne Historical Seminole Tribe of Florida (Dania, Big notice meet the definition of Society. No other provenience Cypress, Brighton, Hollywood & Tampa unassociated funerary objects. Lineal information is available. The 1 Reservations)), The Muscogee (Creek) descendants or representatives of any unassociated funerary object is a stone Nation, The Seminole Nation of Indian tribe or Native Hawaiian pipe bowl. Oklahoma, Thlopthlocco Tribal Town, organization not identified in this notice On an unknown date, five cultural and United Keetowah Band of Cherokee that wish to claim these cultural items items were removed from a grave in the should submit a written request to the Indians in Oklahoma may proceed. Spy Run District of Fort Wayne, Allen Allen County-Fort Wayne Historical County, IN. At some time prior to 1947, Ocmulgee National Monument is Society. If no additional claimants come the funerary objects were acquired from responsible for notifying the Absentee- forward, transfer of control of the an unknown source by the Allen Shawnee Tribe of Indians of Oklahoma, cultural items to the lineal descendants, County-Fort Wayne Historical Society. Alabama-Coushatta Tribe of Texas Indian tribes, or Native Hawaiian Catalog records state that the funerary (previously listed as the Alabama- organizations stated in this notice may objects were found in an ‘‘Indian grave Coushatta Tribes of Texas), Alabama- proceed. in the Spy Run District, Fort Wayne.’’ Quassarte Tribal Town, Catawba Indian DATES: Lineal descendants or The 5 unassociated funerary objects are Nation (aka Catawba Tribe of South representatives of any Indian tribe or 4 silver brooches and 1 brass button. Carolina), Cherokee Nation, Coushatta Native Hawaiian organization not On an unknown date, two cultural Tribe of Louisiana, Eastern Band of identified in this notice that wish to items were removed from a grave on Cherokee Indians, Jena Band of Choctaw claim these cultural items should West Washington Street in Fort Wayne, Indians, Kialegee Tribal Town, submit a written request with Allen County, IN. In 1934, the objects Miccosukee Tribe of Indians, information in support of the claim to were acquired from an unknown source Mississippi Band of Choctaw Indians, the Allen County-Fort Wayne Historical by the Allen County-Fort Wayne Poarch Band of Creeks (previously listed Society at the address in this notice by Historical Society. Catalog records state as the Poarch Band of Creek Indians of July 3, 2017. that the funerary objects were found in Alabama), Seminole Tribe of Florida ADDRESSES: Walter Font, Curator, Allen a grave at ‘‘1415 W. Washington Street.’’ (previously listed as the Seminole Tribe County-Fort Wayne Historical Society, The 2 unassociated funerary objects are of Florida (Dania, Big Cypress, Brighton, 302 East Berry Street, Fort Wayne, IN 2 steel strikers. Hollywood & Tampa Reservations)), 46802, telephone (260) 426–2882, email On unknown dates, seven cultural Shawnee Tribe, The Chickasaw Nation, [email protected]. items were removed from graves in ‘‘the The Choctaw Nation of Oklahoma, The SUPPLEMENTARY INFORMATION: Notice is Miami burial ground’’ in the Spy Run Muscogee (Creek) Nation, The Seminole here given in accordance with the District of Fort Wayne, Allen County, Nation of Oklahoma, Thlopthlocco Native American Graves Protection and IN. In about 1928, the funerary objects Tribal Town, and United Keetowah Repatriation Act (NAGPRA), 25 U.S.C. were acquired from Mr. Jacob M. Band of Cherokee Indians in Oklahoma 3005, of the intent to repatriate cultural Stouder, a local collector, by the Allen that this notice has been published. items under the control of the Allen County-Fort Wayne Historical Society. County-Fort Wayne Historical Society, The 7 unassociated funerary objects are Dated: April 3, 2017. Fort Wayne, IN, that meet the definition 1 set of pistol fragments, 1 tomahawk, Melanie O’Brien, of unassociated funerary objects under 1 stone pipe, 2 clay pipes, and 2 stone Manager, National NAGPRA Program. 25 U.S.C. 3001. tools. [FR Doc. 2017–11452 Filed 6–1–17; 8:45 am] This notice is published as part of the On an unknown date, one cultural BILLING CODE 4312–52–P National Park Service’s administrative item was removed from a grave at responsibilities under NAGPRA, 25 Lawton Place in Fort Wayne, Allen U.S.C. 3003(d)(3). The determinations in County, IN. In 1932, the funerary object this notice are the sole responsibility of was acquired from Mrs. George Gillie by the museum, institution, or Federal the Allen County-Fort Wayne Historical agency that has control of the Native Society. No other provenience American cultural items. The National information is available. The 1 Park Service is not responsible for the unassociated funerary object is an iron determinations in this notice. hoe blade.

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In May of 1933, 10 cultural items Determinations Made by the Allen SUMMARY: The U.S. Department of the were removed from a grave on Prospect County-Fort Wayne Historical Society Interior, National Park Service, Avenue in Fort Wayne, Allen County, Officials of the Allen County-Fort Ocmulgee National Monument has IN. In 1935, the funerary objects were Wayne Historical Society have corrected an inventory of human purchased from Mr. Orville Smith by determined that: remains and associated funerary objects, the Allen County Fort Wayne-Historical • Pursuant to 25 U.S.C. 3001(3)(B), published in a Notice of Inventory Society. No other provenience the 30 cultural items described above Completion in the Federal Register on information is available. The 10 are reasonably believed to have been June 18, 2001. This notice corrects the unassociated funerary objects are 1 set placed with or near individual human minimum number of individuals and of musket fragments, 1 clay pipe, 1 remains at the time of death or later as number of associated funerary objects. metal tack hammer, 2 metal files, 2 part of the death rite or ceremony and Lineal descendants or representatives of metal harpoon tips, 1 copper tube bead, are believed, by a preponderance of the any Indian tribe or Native Hawaiian organization not identified in this notice 1 pair of scissors fragments, and 1 evidence, to have been removed from that wish to request transfer of control whetstone. specific burial sites of Native American of these human remains and associated In about 1910, one cultural item was individuals. • Pursuant to 25 U.S.C. 3001(2), there funerary objects should submit a written removed from Lawton Place in Fort is a relationship of shared group request to Ocmulgee National Wayne, Allen County, IN, by Vernon identity that can be reasonably traced Monument. If no additional requestors Ferguson. Mr. Ferguson removed the between the unassociated funerary come forward, transfer of control of the funerary object from a grave exposed objects and the Miami Tribe of human remains and associated funerary during excavation for a house basement. Oklahoma. objects to the lineal descendants, Indian In 1984, the funerary object was tribes, or Native Hawaiian organizations acquired from Mr. Ferguson by the Additional Requestors and Disposition stated in this notice may proceed. Allen County-Fort Wayne Historical Lineal descendants or representatives DATES: Lineal descendants or Society. The 1 unassociated funerary of any Indian tribe or Native Hawaiian representatives of any Indian tribe or object is a copper pot with iron bail. organization not identified in this notice Native Hawaiian organization not In 1907, one cultural item was that wish to claim these cultural items identified in this notice that wish to removed from the grave of Miami Indian should submit a written request with request transfer of control of these Chief Coesse in Huntington County, IN. information in support of the claim to human remains and associated funerary At some time prior to 1947, the funerary Walter Font, Curator, Allen County-Fort objects should submit a written request object was acquired from Mr. Charles Wayne Historical Society, 302 East with information in support of the Berry Street, Fort Wayne, IN 46802, request to Ocmulgee National More by the Allen County Fort Wayne- telephone (260) 426–2882, email wfont@ Monument at the address in this notice Historical Society. No other provenience comcast.net, by July 3, 2017. After that by July 3, 2017. information is known. Chief Coesse was date, if no additional claimants have ADDRESSES: Jim David, Superintendent, a Miami Indian who resided in come forward, transfer of control of the northeast Indiana. He died in about Ocmulgee National Monument, 1207 unassociated funerary objects to the Emery Highway, Macon, GA 31217, 1853, and was buried near Roanoke, IN, Miami Tribe of Oklahoma may proceed. _ and has no known descendants. telephone (478) 752–8257, email jim The Allen County-Fort Wayne [email protected]. Evidence from Society records and Historical Society is responsible for secondary sources indicate that the notifying the Miami Tribe of Oklahoma SUPPLEMENTARY INFORMATION: Notice is unassociated funerary object is affiliated and Pokagon Band of Potawatomi here given in accordance with the with a Miami Tribal chief. The 1 Indians, Michigan and Indiana, that this Native American Graves Protection and unassociated funerary object is a small notice has been published. Repatriation Act (NAGPRA), 25 U.S.C. glass vial containing beads. 3003, of the correction of an inventory Dated: April 21, 2017. of human remains and associated The above listed sites are estimated to Melanie O’Brien, funerary objects under the control of the date from the late 1700s to the early Manager, National NAGPRA Program. U.S. Department of the Interior, 1800s. The evidence available indicates [FR Doc. 2017–11447 Filed 6–1–17; 8:45 am] National Park Service, Ocmulgee that the sites are related to the Miami BILLING CODE 4312–52–P National Monument, Macon, GA. The Tribe of Oklahoma, whose tribal lands human remains and associated funerary were located in northeast Indiana from objects were removed from Trading about 1710 to the early 1800s. Their DEPARTMENT OF THE INTERIOR Post, Bibb County, GA. villages were at or near the present This notice is published as part of the National Park Service location of Fort Wayne, IN, primarily National Park Service’s administrative north of the confluence of the St. Joseph [NPS–WASO–NAGPRA–23209; responsibilities under NAGPRA, 25 and St. Mary’s Rivers which, together, PPWOCRADN0–PCU00RP14.R50000] U.S.C. 3003(d)(3). The determinations in form the Maumee River. These areas this notice are the sole responsibility of include the Spy Run District, including Notice of Inventory Completion for the Superintendent, Ocmulgee National Prospect Avenue and Lawton Place, and Native American Human Remains and Monument. the Lakeside area of Fort Wayne. The Associated Funerary Objects in the This notice corrects the minimum assessment that these unassociated Control of the U.S. Department of the number of individuals and number of funerary objects should be attributed to Interior, National Park Service, associated funerary objects published in the Miami Tribe of Oklahoma was Ocmulgee National Monument, Macon, a Notice of Inventory Completion in the confirmed by the Miami Tribe of GA; Correction Federal Register (66 FR 32842–32843, Oklahoma and Pokagon Band of AGENCY: National Park Service, Interior. June 18, 2001). Additional individuals Potawatomi Indians, Michigan and and associated funerary objects were ACTION: Notice; correction. Indiana, during consultation. identified during review of collections.

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Transfer of control of the items in this Poarch Band of Creek Indians of identified in this notice that wish to correction notice has not occurred. Alabama), Seminole Tribe of Florida claim these cultural items should (previously listed as the Seminole Tribe submit a written request to Ocmulgee Correction of Florida (Dania, Big Cypress, Brighton, National Monument. If no additional In the Federal Register (66 FR 32842, Hollywood & Tampa Reservations)), The claimants come forward, transfer of June 18, 2001), column 2, paragraph 1, Muscogee (Creek) Nation, The Seminole control of the cultural items to the lineal sentences 1–3 are corrected by Nation of Oklahoma, and Thlopthlocco descendants, Indian tribes, or Native substituting the following sentences: Tribal Town may proceed. Hawaiian organizations stated in this Between 1957 and 1958, human remains Ocmulgee National Monument is notice may proceed. representing 17 individuals were recovered responsible for notifying the Absentee- DATES: Lineal descendants or from the Trading Post area of the Macon Shawnee Tribe of Indians of Oklahoma, representatives of any Indian tribe or Plateau unit of Ocmulgee National Alabama-Coushatta Tribe of Texas Native Hawaiian organization not Monument. No known individuals were (previously listed as the Alabama- identified. The 17,037 associated funerary identified in this notice that wish to Coushatta Tribes of Texas), Alabama- claim these cultural items should objects are 2 axes, 4 balls, 1 musket ball, Quassarte Tribal Town, Catawba Indian 16,147 beads, 1 biface, 2 blades, 217 animal submit a written request with remains, 1 piece of charcoal, 6 pieces of fired Nation (aka Catawba Tribe of South information in support of the claim to clay, 1 concretion, 2 cores, 3 pieces of daub, Carolina), Cherokee Nation, Coushatta Ocmulgee National Monument at the 46 flakes, 7 flake tools, 2 glass fragments, 1 Tribe of Louisiana, Eastern Band of address in this notice by July 3, 2017. gorget, 5 gunflints, 1 stone knife, 38 jars, 2 Cherokee Indians, Eastern Shawnee ADDRESSES: Jim David, Superintendent, iron knives, 4 metal fragments, 2 shells, 1 Tribe of Oklahoma, Jena Band of Ocmulgee National Monument, 1207 ornament, 4 tobacco pipes, 2 flintlock pistols, Choctaw Indians, Kialegee Tribal Town, Emery Highway, Macon, GA 31217, 2 plant fragments, 1 projectile point, 3 Miccosukee Tribe of Indians, telephone (478) 752–8257, email preforms, 1 rifle, 3 scrapers, 4 seeds, 3 pieces Mississippi Band of Choctaw Indians, of shatter, 13 gun shots, 1 shotgun shell, 2 [email protected]. spiral springs, 6 unmodified stones, 1 Poarch Band of Creeks (previously listed uniface, 1 bag of unmodified stone, and 494 as the Poarch Band of Creek Indians of SUPPLEMENTARY INFORMATION: Notice is vessel fragments. Alabama), Seminole Tribe of Florida here given in accordance with the (previously listed as the Seminole Tribe Native American Graves Protection and In the Federal Register (66 FR 32842, of Florida (Dania, Big Cypress, Brighton, Repatriation Act (NAGPRA), 25 U.S.C. June 18, 2001), column 3 paragraph 2, Hollywood & Tampa Reservations)), The 3005, of the intent to repatriate cultural sentences 1–2 are corrected by Chickasaw Nation, The Choctaw Nation items under the control of the U.S. substituting the following sentences: of Oklahoma, The Muscogee (Creek) Department of the Interior, National Based on the above-mentioned Nation, The Seminole Nation of Park Service, Ocmulgee National information, the superintendent of Ocmulgee Oklahoma, Shawnee Tribe, Monument, Macon, GA, that meet the National Monument has determined that, Thlopthlocco Tribal Town, and United definition of unassociated funerary pursuant to 43 CFR 10.2(d)(1), the human remains listed above represent the physical Keetowah Band of Cherokee Indians in objects under 25 U.S.C. 3001. remains of 21 individuals of Native American Oklahoma that this notice has been This notice is published as part of the ancestry. The superintendent of Ocmulgee published. National Park Service’s administrative National Monument also has determined Dated: April 3, 2017. responsibilities under NAGPRA, 25 that, pursuant to 43 CFR 10.2(d)(2), the U.S.C. 3003(d)(3). The determinations in Melanie O’Brien, 32,022 objects listed above are reasonably this notice are the sole responsibility of believed to have been placed with or near Manager, National NAGPRA Program. the Superintendent, Ocmulgee National individual human remains at the time of [FR Doc. 2017–11450 Filed 6–1–17; 8:45 am] Monument. death or late as part of the death rite or BILLING CODE 4312–52–P ceremony. History and Description of the Cultural Items Additional Requestors and Disposition DEPARTMENT OF THE INTERIOR Between 1933 and 1934, 99 cultural Lineal descendants or representatives items were removed from Funeral National Park Service of any Indian tribe or Native Hawaiian Mound C in Bibb County, GA, during organization not identified in this notice [NPS–WASO–NAGPRA–23208; legally authorized projects sponsored by that wish to request transfer of control PPWOCRADN0–PCU00RP14.R50000] the Works Progress Administration. The of these human remains and associated human remains were repatriated to funerary objects should submit a written Notice of Intent To Repatriate Cultural culturally affiliated tribes in 2015 by the request with information in support of Items: U.S. Department of the Interior, Smithsonian Institution, National the request to Jim David, National Park Service, Ocmulgee Museum of Natural History. The 99 Superintendent, Ocmulgee National National Monument, Macon, GA unassociated funerary objects are 3 Monument, 1207 Emery Highway, AGENCY: National Park Service, Interior. spoons, 61 beads, 1 bottle, 1 bowl, 4 Macon, GA 31217, telephone (478) 752– ACTION: Notice. vessel fragments, 1 metal fragment, 1 8257, email [email protected], by July animal bone, 1 nail, 4 pendants, 2 3, 2017. After that date, if no additional SUMMARY: The U.S. Department of the projectile points, 1 scraper, 17 worked requestors have come forward, transfer Interior, National Park Service, shells, 1 folding knife, and 1unmodified of control of the human remains and Ocmulgee National Monument, in basalt stone. associated funerary objects to the consultation with the appropriate While Mound C is a burial mound Alabama-Coushatta Tribe of Texas Indian tribes or Native Hawaiian dating to the Macon Plateau phase of the (previously listed as the Alabama- organizations, has determined that the Early Mississippian period (A.D. 900 to Coushatta Tribes of Texas), Alabama- cultural items listed in this notice meet A.D. 1100), several historic burials were Quassarte Tribal Town, Coushatta Tribe the definition of unassociated funerary placed in the upper levels of the mound of Louisiana, Kialegee Tribal Town, objects. Lineal descendants or and in the adjacent village area. Burials Miccosukee Tribe of Indians, Poarch representatives of any Indian tribe or excavated at this site were identified as Band of Creeks (previously listed as the Native Hawaiian organization not historic Creek on the basis of European

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trade goods found in association with that wish to claim these cultural items INTERNATIONAL TRADE the remains. The historic Creek town should submit a written request with COMMISSION associated with the trading post near information in support of the claim to [USITC SE–17–025] Mound C has long been thought to be Jim David, Superintendent, Ocmulgee Ocmulgee. Residents of Ocmulgee National Monument, 1207 Emery Government In The Sunshine Act moved to the Chattahoochee River after Highway, Macon, GA 31217, telephone Meeting Notice 1717. (478) 752–8257, email Historical documentation reflects a [email protected], by July 3, 2017. AGENCY HOLDING THE MEETING: United great deal of movement and After that date, if no additional States International Trade Commission. reorganization among the Creeks and claimants have come forward, transfer TIME AND DATE: June 9, 2017 at 11:00 the Creek Confederacy during the 18th a.m. and 19th centuries. Ten present-day of control of the unassociated funerary Indian tribes include Creek objects to Alabama-Coushatta Tribe of PLACE: Room 101, 500 E Street SW., descendants—the Alabama-Coushatta Texas (previously listed as the Alabama- Washington, DC 20436, Telephone: Tribe of Texas (previously listed as the Coushatta Tribes of Texas), Alabama- (202) 205–2000. Alabama-Coushatta Tribes of Texas), Quassarte Tribal Town, Coushatta Tribe STATUS: Open to the public. Alabama-Quassarte Tribal Town, of Louisiana, Kialegee Tribal Town, MATTERS TO BE CONSIDERED: Coushatta Tribe of Louisiana, Kialegee Miccosukee Tribe of Indians, Poarch 1. Agendas for future meetings: none. Tribal Town, Miccosukee Tribe of Band of Creeks (previously listed as the 2. Minutes. Indians, Poarch Band of Creeks Poarch Band of Creek Indians of 3. Ratification List. (previously listed as the Poarch Band of Alabama), Seminole Tribe of Florida 4. Vote in Inv. Nos. 701–TA–578 and Creek Indians of Alabama), Seminole (previously listed as the Seminole Tribe 731–TA–1368 (Preliminary)(100- to 150- Tribe of Florida (previously listed as the of Florida (Dania, Big Cypress, Brighton, Seat Large Civil Aircraft from Canada). Seminole Tribe of Florida (Dania, Big Hollywood & Tampa Reservations)), The The Commission is currently scheduled Cypress, Brighton, Hollywood & Tampa Muscogee (Creek) Nation, The Seminole to complete and file its determinations Reservations)), The Muscogee (Creek) Nation of Oklahoma, and Thlopthlocco on June 12, 2017; views of the Nation, The Seminole Nation of Tribal Town may proceed. Commission are currently scheduled to Oklahoma, and Thlopthlocco Tribal be complete and filed on June 19, 2017. Ocmulgee National Monument is Town. 5. Outstanding action jackets: none. responsible for notifying the Absentee- Determinations Made by Ocmulgee Shawnee Tribe of Indians of Oklahoma, In accordance with Commission policy, subject matter listed above, not National Monument Alabama-Coushatta Tribe of Texas disposed of at the scheduled meeting, (previously listed as the Alabama- Officials of Ocmulgee National may be carried over to the agenda of the Coushatta Tribes of Texas), Alabama- Monument have determined that: following meeting. • Pursuant to 25 U.S.C. 3001(3)(B), Quassarte Tribal Town, Catawba Indian the 99 cultural items described above Nation (aka Catawba Tribe of South By order of the Commission. are reasonably believed to have been Carolina), Cherokee Nation, Coushatta Issued: May 30, 2017. placed with or near individual human Tribe of Louisiana, Eastern Band of William R. Bishop, remains at the time of death or later as Cherokee Indians, Eastern Shawnee Supervisory Hearings and Information part of the death rite or ceremony and Tribe of Oklahoma, Jena Band of Officer. are believed, by a preponderance of the Choctaw Indians, Kialegee Tribal Town, [FR Doc. 2017–11568 Filed 5–31–17; 4:15 pm] evidence, to have been removed from a Miccosukee Tribe of Indians, BILLING CODE 7020–02–P specific burial site of a Native American Mississippi Band of Choctaw Indians, individual. Poarch Band of Creeks (previously listed • Pursuant to 25 U.S.C. 3001(2), there INTERNATIONAL TRADE as the Poarch Band of Creek Indians of is a relationship of shared group COMMISSION identity that can be reasonably traced Alabama), Seminole Tribe of Florida between the unassociated funerary (previously listed as the Seminole Tribe [Investigation No. 337–TA–1059] objects and the Alabama-Coushatta of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), Certain Digital Cameras, Software, and Tribe of Texas (previously listed as the Components Thereof; Institution of Shawnee Tribe, The Chickasaw Nation, Alabama-Coushatta Tribes of Texas), Investigation Alabama-Quassarte Tribal Town, The Choctaw Nation of Oklahoma, The Coushatta Tribe of Louisiana, Kialegee Muscogee (Creek) Nation, The Seminole AGENCY: U.S. International Trade Tribal Town, Miccosukee Tribe of Nation of Oklahoma, Thlopthlocco Commission. Indians, Poarch Band of Creeks Tribal Town, and United Keetowah ACTION: Notice. (previously listed as the Poarch Band of Band of Cherokee Indians in Oklahoma Creek Indians of Alabama), Seminole that this notice has been published. SUMMARY: Notice is hereby given that a complaint was filed with the U.S. Tribe of Florida (previously listed as the Dated: April 3, 2017. Seminole Tribe of Florida (Dania, Big International Trade Commission on Cypress, Brighton, Hollywood & Tampa Melanie O’Brien, April 28, 2017, under section 337 of the Reservations)), The Muscogee (Creek) Manager, National NAGPRA Program. Tariff Act of 1930, as amended, on Nation, The Seminole Nation of [FR Doc. 2017–11453 Filed 6–1–17; 8:45 am] behalf of Carl Zeiss AG of Germany and Oklahoma, and Thlopthlocco Tribal BILLING CODE 4312–52–P ASML Netherlands B.V. of the Town. Netherlands. A supplement to the complaint was filed on May 17, 2017. Additional Requestors and Disposition The complaint alleges violations of Lineal descendants or representatives section 337 based upon the importation of any Indian tribe or Native Hawaiian into the United States, the sale for organization not identified in this notice importation, and the sale within the

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United States after importation of United States, the sale for importation, Commission of the complaint and the certain digital cameras, software, and or the sale within the United States after notice of investigation. Extensions of components thereof by reason of importation of certain digital cameras, time for submitting responses to the infringement of certain claims of U.S. software, and components thereof by complaint and the notice of Patent No. 6,301,440 (‘‘the ’440 patent’’); reason of infringement of one or more of investigation will not be granted unless U.S. Patent No. 6,463,163 (‘‘the ’163 claims 1–4, 6–10, 12–14, 16–19, 21–28, good cause therefor is shown. patent’’); U.S. Patent No. 6,714,241 (‘‘the 30–35, 37–44, 46–50, and 52–56 of the Failure of a respondent to file a timely ’241 patent’’); U.S. Patent No. 6,731,335 ’440 patent; claims 1–4, 6, 7, 9–11, 14– response to each allegation in the (‘‘the ’335 patent’’); U.S. Patent No. 16, and 19 of the ’163 patent; claims 1– complaint and in this notice may be 6,834,128 (‘‘the ’128 patent’’); U.S. 3, 5–12, and 14–18 of the ’241 patent; deemed to constitute a waiver of the Patent No. 7,297,916 (‘‘the ’916 patent’’); claims 1–12 of the ’335 patent; claims 1, right to appear and contest the and U.S. Patent No. 7,933,454 (‘‘the ’454 2, 4, 5, 12, 13, 16, 17, and 19 of the ’128 allegations of the complaint and this patent’’). The complaint further alleges patent; claims 1–9 of the ’916 patent; notice, and to authorize the that an industry in the United States is and claims 1, 2, 4–12, and 16–28 of the administrative law judge and the in the process of being established as ’454 patent, and whether an industry in Commission, without further notice to required by the applicable Federal the United States is in the process of the respondent, to find the facts to be as Statute. being established as required by alleged in the complaint and this notice The complainants request that the subsection (a)(2) of section 337; and to enter an initial determination Commission institute an investigation (2) For the purpose of the and a final determination containing and, after the investigation, issue a investigation so instituted, the following such findings, and may result in the limited exclusion order and cease and are hereby named as parties upon which issuance of an exclusion order or a cease desist orders. this notice of investigation shall be and desist order or both directed against ADDRESSES: The complaint, except for served: the respondent. any confidential information contained (a) The complainants are: By order of the Commission. + therein, is available for inspection Carl Zeiss AG, Carl-Zeiss-Stra e, Issued: May 26, 2017. during official business hours (8:45 a.m. Oberkochen, Germany 73447. Lisa R. Barton, to 5:15 p.m.) in the Office of the ASML Netherlands B.V., De Run 6501, Secretary, U.S. International Trade 5504DR, Veldhoven, Netherlands. Secretary to the Commission. Commission, 500 E Street SW., Room (b) The respondents are the following [FR Doc. 2017–11390 Filed 6–1–17; 8:45 am] 112, Washington, DC 20436, telephone entities alleged to be in violation of BILLING CODE 7020–02–P (202) 205–2000. Hearing impaired section 337, and are the parties upon individuals are advised that information which the complaint is to be served: INTERNATIONAL TRADE on this matter can be obtained by Nikon Corporation, Shinagawa Intercity COMMISSION contacting the Commission’s TDD Tower C, 2–15–3, Konan, Minato-ku, terminal on (202) 205–1810. Persons Tokyo 108–6290, Japan. [Investigation Nos. 701–TA–575 and 731– with mobility impairments who will Sendai Nikon Corporation, 277, Aza- TA–1360–1361 (Preliminary)] need special assistance in gaining access hara, Tako, Natori, Miyagi 981–1221, to the Commission should contact the Tool Chests and Cabinets From China Japan. and Vietnam Office of the Secretary at (202) 205– Nikon Inc., 1300 Walt Whitman Road, 2000. General information concerning Melville, NY 11747–3064. Determinations the Commission may also be obtained Nikon (Thailand) Co., Ltd., 1/42 Moo 5, 1 by accessing its internet server at Rojana Industrial Park, Rojana Road, On the basis of the record developed https://www.usitc.gov. The public Tambol Kanham, Amphur U-Thai, in the subject investigations, the United record for this investigation may be Ayutthaya 13210, Thailand. States International Trade Commission viewed on the Commission’s electronic Nikon Imaging (China) Co., Ltd., No. 11, (‘‘Commission’’) determines, pursuant docket (EDIS) at https://edis.usitc.gov. Changjian South Road, New District, to the Tariff Act of 1930 (‘‘the Act’’), that there is a reasonable indication that FOR FURTHER INFORMATION CONTACT: Wuxi, Jiangsu 214028, China. Katherine Hiner, Office of the Secretary, PT Nikon Indonesia, 35th Floor, Wisma an industry in the United States is Docket Services, U.S. International 46-Kota BNI, Jl. Jend. Sudirman Kav. materially injured by reason of imports Trade Commission, telephone (202) 1, Jakarta, 10220, Indonesia. of tool chests and cabinets from China and Vietnam, provided for in 205–1802. (3) For the investigation so instituted, subheadings 7326.90.35, 7326.90.86, SUPPLEMENTARY INFORMATION: the Chief Administrative Law Judge, and 9403.20.00 of the Harmonized Tariff U.S. International Trade Commission, Authority: The authority for institution of Schedule of the United States, that are shall designate the presiding this investigation is contained in section 337 alleged to be sold in the United States Administrative Law Judge. of the Tariff Act of 1930, as amended, 19 at less than fair value (‘‘LTFV’’) and to U.S.C. 1337 and in section 210.10 of the The Office of Unfair Import be subsidized by the government of Commission’s Rules of Practice and Investigations will not participate as a China. Procedure, 19 CFR 210.10 (2017). party in this investigation. Scope of Investigation: Having Responses to the complaint and the Commencement of Final Phase considered the complaint, the U.S. notice of investigation must be Investigations submitted by the named respondents in International Trade Commission, on Pursuant to section 207.18 of the accordance with section 210.13 of the May 26, 2017, ordered that— Commission’s rules, the Commission Commission’s Rules of Practice and (1) Pursuant to subsection (b) of also gives notice of the commencement Procedure, 19 CFR 210.13. Pursuant to section 337 of the Tariff Act of 1930, as of the final phase of its investigations. amended, an investigation be instituted 19 CFR 201.16(e) and 210.13(a), such to determine whether there is a responses will be considered by the 1 The record is defined in sec. 207.2(f) of the violation of subsection (a)(1)(B) of Commission if received not later than 20 Commission’s Rules of Practice and Procedure (19 section 337 in the importation into the days after the date of service by the CFR 207.2(f)).

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The Commission will issue a final phase views of the Commission are contained —Evaluate whether the proposed notice of scheduling, which will be in USITC Publication 4697 (June 2017), collection of information is necessary published in the Federal Register as entitled Tool Chests and Cabinets from for the proper performance of the provided in section 207.21 of the China and Vietnam: Investigation Nos. functions of the agency, including Commission’s rules, upon notice from 701–TA–575 and 731–TA–1360–1361 whether the information will have the Department of Commerce (Preliminary). practical utility; (‘‘Commerce’’) of affirmative By order of the Commission. —Evaluate the accuracy of the agencies preliminary determinations in the Issued: May 26, 2017. estimate of the burden of the investigations under sections 703(b) or proposed collection of information, Lisa R. Barton, 733(b) of the Act, or, if the preliminary including the validity of the determinations are negative, upon Secretary to the Commission. methodology and assumptions used; notice of affirmative final [FR Doc. 2017–11391 Filed 6–1–17; 8:45 am] —Enhance the quality, utility, and determinations in those investigations BILLING CODE 7020–02–P clarity of the information to be under sections 705(a) or 735(a) of the collected; and Act. Parties that filed entries of —Minimize the burden of the collection appearance in the preliminary phase of DEPARTMENT OF JUSTICE of information on those who are to the investigations need not enter a respond, including through the use of separate appearance for the final phase [OMB Number 1117–0043] appropriate automated, electronic, of the investigations. Industrial users, mechanical, or other technological and, if the merchandise under Agency Information Collection collection techniques or other forms investigation is sold at the retail level, Activities; Proposed eCollection; of information technology, e.g., representative consumer organizations eComments Requested; Extension permitting electronic submission of have the right to appear as parties in With or Without Change, of a responses. Commission antidumping and Previously Approved Collection: Drug countervailing duty investigations. The Questionnaire (DEA–341) Overview of This Information Secretary will prepare a public service Collection list containing the names and addresses AGENCY: Drug Enforcement (1) Type of Information Collection: of all persons, or their representatives, Administration, Department of Justice. Extension of a currently approved who are parties to the investigations. ACTION: 30-day notice. collection. (2) Title of the Form/Collection: Drug Background SUMMARY: Department of Justice (DOJ), Questionnaire. On April 11, 2017, Waterloo Drug Enforcement Administration will (3) Agency form number, if any and Industries, Inc., Sedalia, Missouri filed be submitting the following information the applicable component of the a petition with the Commission and collection request to the Office of Department sponsoring the collection: Commerce, alleging that an industry in Management and Budget (OMB) for The form number is DEA–341. The the United States is materially injured review and approval in accordance with sponsoring component is the Drug or threatened with material injury by the Paperwork Reduction Act of 1995. Enforcement Administration reason of LTFV and subsidized imports This proposed information collection (4) Affected public who will be asked of tool chests and cabinets from China was previously published in the Federal or required to respond, as well as a brief and LTFV imports of tool chests and Register on March 28, 2017, allowing abstract: Primary: Individuals. Other: cabinets from Vietnam. Accordingly, for a 60-day comment period. None. effective April 11, 2017, the DATES: Comments are encouraged and Commission, pursuant to sections 703(a) DEA is requesting an extension of a will be accepted for an additional 30 currently approved collection. This and 733(a) of the Act (19 U.S.C. day until July 3, 2017. 1671b(a) and 1673b(a)), instituted collection requires the drug history of countervailing duty investigation No. FOR FURTHER INFORMATION CONTACT: any individual seeking employment 701–TA–575 and antidumping duty Written comments and/or suggestions with DEA. DEA policy states that a past investigations Nos. 731–TA–1360–1361 regarding the items contained in this history of illegal drug use may result in (Preliminary). notice, especially the estimated public ineligibility for employment. The form Notice of the institution of the burden and associated response time, asks job applicants specific questions Commission’s investigations and of a should be directed to Diane E. Filler, about their personal history, if any, of public conference to be held in Assistant Administrator, Drug illegal drug use. connection therewith was given by Enforcement Administration, Human (5) An estimate of the total number of posting copies of the notice in the Office Resources Division, 8701 Morrissette respondents and the amount of time of the Secretary, U.S. International Drive, Springfield, VA 22152. Written estimated for an average respondent to Trade Commission, Washington, DC, comments and/or suggestions can also respond/reply: It is estimated that and by publishing the notice in the be sent to the Office of Management and 15,000 respondents will complete each Federal Register of April 18, 2017 (82 Budget, Office of Information and form in approximately 5 minutes. FR 18309). The conference was held in Regulatory Affairs, Attention (6) An estimate of the total public Washington, DC, on May 2, 2017, and Department of Justice Desk Officer, burden (in hours) associated with the _ all persons who requested the Washington, DC 20503 or sent to OIRA collection: There are an estimated 1,250 opportunity were permitted to appear in [email protected]. total annual burden hours associated person or by counsel. SUPPLEMENTARY INFORMATION: Written with this collection. The Commission made these comments and suggestions from the If additional information is required determinations pursuant to sections public and affected agencies concerning contact: Melody Braswell, Department 703(a) and 733(a) of the Act (19 U.S.C. the proposed collection of information Clearance Officer, United States 1671b(a) and 1673b(a)). It completed are encouraged. Your comments should Department of Justice, Justice and filed its determinations in these address one or more of the following Management Division, Policy and investigations on May 26, 2017. The four points: Planning Staff, Two Constitution

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Square, 145 N Street NE., Suite —Evaluate whether the proposed (5) An estimate of the total number of 3E.405A, Washington, DC 20530. collection of information is necessary respondents and the amount of time Dated: May 30, 2017. for the proper performance of the estimated for an average respondent to Melody Braswell, functions of the agency, including respond: It is estimated that 5,140 whether the information will have respondents will complete forms and Department Clearance Officer, PRA, U.S. Department of Justice. practical utility; the response time will range from .03 —Evaluate the accuracy of the agency’s hours to 1.5 hours. [FR Doc. 2017–11409 Filed 6–1–17; 8:45 am] estimate of the burden of the (6) An estimate of the total public BILLING CODE 4410–09–P proposed collection of information, burden (in hours) associated with the including the validity of the collection: There are an estimated methodology and assumptions used; DEPARTMENT OF JUSTICE 470.83 total annual burden hours —Enhance the quality, utility, and associated with this collection. [OMB Number 1121–0277] clarity of the information to be If additional information is required collected; and/or contact: Melody Braswell, Department Agency Information Collection —Minimize the burden of the collection Clearance Officer, United States Activities; Proposed eCollection of information on those who are to Department of Justice, Justice eComments Requested; Extension of respond, including through the use of Management Division, Policy and Currently Approved Collection #1121– appropriate automated, electronic, Planning Staff, Two Constitution 0277: OJJDP National Training and mechanical, or other technological Square, 145 N Street NE., 3E.405A, Technical Assistance Center (NTTAC) collection techniques or other forms Washington, DC 20530. of information technology, e.g., Feedback Form Package Dated: May 30, 2017. permitting electronic submission of AGENCY: Office for Juvenile Justice and responses. Melody Braswell, Delinquency Prevention, Department of Department Clearance Officer for PRA, U.S. Justice. Overview of This Information Department of Justice. Collection ACTION: 30-day notice. [FR Doc. 2017–11410 Filed 6–1–17; 8:45 am] (1) Type of Information Collection: BILLING CODE 4410–18–P SUMMARY: The Department of Justice, Extension of a currently approved Office of Justice Programs has submitted collection. the following information collection (2) The Title of the Form/Collection: DEPARTMENT OF LABOR request to the Office of Management and OJJDP NTTAC Feedback Form Package. Budget (OMB) for review and approval (3) The agency form number: OJJDP Office of the Secretary in accordance with the Paperwork NTTAC, all forms included in package Reduction Act of 1995. The proposed #1121–0277. Agency Information Collection information collection was previously (4) Affected public who will be asked Activities; Submission for OMB published in the Federal Register on or required to respond, as well as a brief Review; Comment Request; Consumer March 28, 2017 allowing for a 60-day abstract: Price Index Commodities and Services comment period. Primary: State, Local, or Tribal. Survey Other: Federal Government, DATES: Comments are encouraged and AGENCY Individuals or households; Not-for- : Office of the Secretary, will be accepted for an additional days profit institutions; Businesses or other Department of Labor. until July 3, 2017. for-profit. ACTION: Notice. FOR FURTHER INFORMATION CONTACT: Abstract: The Office for Juvenile Written comments and/or suggestions Justice and Delinquency Prevention SUMMARY: The Department of Labor regarding the items contained in this National Training and Technical (DOL) is submitting the Bureau of Labor notice, especially the estimated public Assistance Center (NTTAC) Feedback Statistics (BLS) sponsored information burden and associated response time, Form Package is designed to collect in- collection request (ICR) revision titled, should be directed to Linda Rosen, person and online data necessary to ‘‘Consumer Price Index Commodities Training and Technical Assistance continuously assess the outcomes of the and Services Survey,’’ to the Office of Specialist at 1–202–353–9222, Office of assistance provided for both monitoring Management and Budget (OMB) for Juvenile Justice and Delinquency and accountability purposes and for review and approval for use in Prevention, Office of Justice Programs, continuously assessing and meeting the accordance with the Paperwork Department of Justice, 810 7th Street needs of the field. OJJDP NTTAC will Reduction Act (PRA) of 1995. Public NW., Washington, DC 20530 or by email send these forms to technical assistance comments on the ICR are invited. at [email protected]. Written (TA) recipients; conference attendees; DATES: The OMB will consider all comments and/or suggestions can also training and TA providers; online written comments that agency receives be sent to the Office of Management and meeting participants; in-person meeting on or before July 3, 2017. Budget, Office of Information and participants; and focus group ADDRESSES: A copy of this ICR with Regulatory Affairs, Attention participants to capture important applicable supporting documentation; Department of Justice Desk Officers, feedback on the recipients’ satisfaction including a description of the likely Washington, DC 20503 or sent to OIRA_ with the quality, efficiency, referrals, respondents, proposed frequency of [email protected]. information and resources provided and response, and estimated total burden SUPPLEMENTARY INFORMATION: Written assess the recipients’ additional training may be obtained free of charge from the comments and suggestions from the and TA needs. The data will then be RegInfo.gov Web site at http:// public and affected agencies concerning used to advise NTTAC on ways to www.reginfo.gov/public/do/ the proposed collection of information improve the support provided to its PRAViewICR?ref_nbr=201703-1220-001 are encouraged. Your comments should users; the juvenile justice field at-large; (this link will only become active on the address one or more of the following and ultimately improve services and day following publication of this notice) four points: outcomes for youth. or by contacting Michel Smyth by

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telephone at 202–693–4129, TTY 202– generally not required to respond to an Total Estimated Number of 693–8064, (these are not toll-free information collection, unless it is Respondents: 47,095. numbers) or sending an email to DOL_ approved by the OMB under the PRA Total Estimated Number of [email protected]. and displays a currently valid OMB Responses: 323,511. Submit comments about this request Control Number. In addition, Total Estimated Annual Time Burden: by mail to the Office of Information and notwithstanding any other provisions of 114,492 hours. Regulatory Affairs, Attn: OMB Desk law, no person shall generally be subject Total Estimated Annual Other Costs Officer for DOL–BLS, Office of to penalty for failing to comply with a Burden: $0. Management and Budget, Room 10235, collection of information that does not Dated: May 26, 2017. 725 17th Street NW., Washington, DC display a valid Control Number. See 5 Michel Smyth, 20503; by Fax: 202–395–5806 (this is CFR 1320.5(a) and 1320.6. The DOL Departmental Clearance Officer. not a toll-free number); or by email: obtains OMB approval for this [email protected]. information collection under Control [FR Doc. 2017–11432 Filed 6–1–17; 8:45 am] Commenters are encouraged, but not Number 1220–0039. The current BILLING CODE 4510–24–P required, to send a courtesy copy of any approval is scheduled to expire on July comments by mail or courier to the U.S. 31, 2017; however, the DOL notes that DEPARTMENT OF LABOR Department of Labor-OASAM, Office of existing information collection the Chief Information Officer, Attn: requirements submitted to the OMB Occupational Safety and Health Departmental Information Compliance receive a month-to-month extension Administration Management Program, Room N1301, while they undergo review. New 200 Constitution Avenue NW., requirements would only take effect [Docket No. OSHA–2017–0008] Washington, DC 20210; or by email: upon OMB approval. For additional California State Plan; New Operational [email protected]. substantive information about this ICR, Status Agreement FOR FURTHER INFORMATION CONTACT: see the related notice published in the Michel Smyth by telephone at 202–693– Federal Register on March 3, 2017 (82 AGENCY: Occupational Safety and Health 4129, TTY 202–693–8064, (these are not FR 12471). Administration, Department of Labor. toll-free numbers) or sending an email Interested parties are encouraged to ACTION: Notice. to [email protected]. send comments to the OMB, Office of Authority: 44 U.S.C. 3507(a)(1)(D). Information and Regulatory Affairs at SUMMARY: This document announces a the address shown in the ADDRESSES new Operational Status Agreement SUPPLEMENTARY INFORMATION: This ICR section within thirty (30) days of between the Occupational Safety and seeks approval under the PRA for publication of this notice in the Federal Health Administration (OSHA) and the revisions to the Consumer Price Index Register. In order to help ensure California State Plan, which specifies Commodities and Services Survey. The appropriate consideration, comments the respective areas of federal and state Consumer Price Index (CPI) is a measure should mention OMB Control Number authority, and which clarifies of the average change over time in the 1220–0039. The OMB is particularly California’s coverage over maritime prices paid by consumers for a market interested in comments that: employment and OSHA’s coverage over basket of consumer goods and services. • Evaluate whether the proposed private employers on military Each month, BLS data collectors collection of information is necessary installations and federal parks, and (economic assistants) visit or call for the proper performance of the under which OSHA gains coverage over thousands of retail stores, service functions of the agency, including private and tribal employers on U.S. establishments, rental units, and whether the information will have Government-recognized Native doctors’ offices, all over the United practical utility; American reservations and trust lands. States to obtain information on the • Evaluate the accuracy of the DATES: Effective June 2, 2017. prices of the thousands of items used to agency’s estimate of the burden of the track and measure price changes in the FOR FURTHER INFORMATION CONTACT: proposed collection of information, For press inquiries: Francis Meilinger, CPI. The collection of price data from including the validity of the retail establishments is essential for the OSHA Office of Communications, Room methodology and assumptions used; N–3647, U.S. Department of Labor, 200 timely and accurate calculation of the • Enhance the quality, utility, and Constitution Avenue NW., Washington, commodities and services component of clarity of the information to be DC 20210; telephone (202) 693–1999; the CPI. The CPI is then widely used as collected; and a measure of inflation, indicator of the • Minimize the burden of the email: [email protected]. For general and technical effectiveness of government economic collection of information on those who information: Douglas J. Kalinowski, policy, deflator for other economic are to respond, including through the Director, OSHA Directorate of series, and as a means of adjusting use of appropriate automated, Cooperative and State Programs, Room dollar values. This information electronic, mechanical, or other N–3700, U.S. Department of Labor, 200 collection has been classified as a technological collection techniques or Constitution Avenue NW., Washington, revision, because the BLS will introduce other forms of information technology, DC 20210; telephone: (202) 693–2200; a new geographic area sample for the e.g., permitting electronic submission of email: [email protected]. CPI in January 2018. The new sample responses. consists of 75 urban areas, while the Agency: DOL–BLS. SUPPLEMENTARY INFORMATION: The current sample consists of 87 urban Title of Collection: Consumer Price California State Plan (Cal/OSHA) areas. The BLS Authorizing Statute Index Commodities and Services administers an OSHA-approved State authorizes this information collection. Survey. Plan to develop and enforce See 29 U.S.C. 1, 2. OMB Control Number: 1220–0039. occupational safety and health This information collection is subject Affected Public: State, Local, and standards for private-sector and state to the PRA. A Federal agency generally Tribal Governments; and Private and local government employers cannot conduct or sponsor a collection Sector—businesses or other for-profits pursuant to the provisions of section 18 of information, and the public is and not-for-profit institutions. of the Occupational Safety and Health

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Act (the Act), 29 U.S.C. 667. The (except marine construction on bridges Aeronautics and Space Administration, California State Plan received initial and on shore) on the navigable waters Washington, DC 20546–0001 or federal OSHA plan approval on May 1, of the United States and over [email protected]. 1973 (38 FR 10719) and the Division of whistleblower complaints under Section FOR FURTHER INFORMATION CONTACT: Occupational Safety and Health of the 11(c) of the Act. The 2014 OSA also did Requests for additional information or California Department of Industrial not contain the language from the 1989 copies of the information collection Relations is designated as the state OSA about specific elements of the Cal/ instrument(s) and instructions should agency responsible for administering the OSHA program that had achieved be directed to Ms. Frances Teel, NASA State Plan. On October 3, 1989, an operational status. Clearance Officer, NASA Headquarters, Operational Status Agreement was Federal OSHA and Cal/OSHA will 300 E Street SW., JF000, Washington, entered into between OSHA and Cal/ exercise their respective enforcement DC 20546, or [email protected]. OSHA whereby concurrent federal authority according to the terms of the SUPPLEMENTARY INFORMATION: enforcement authority was suspended 2014 OSA between OSHA and Cal/ with regard to federal occupational OSHA. All terms of the 2014 OSA I. Abstract safety and health standards in issues remain in effect. Additional information NASA’s Ames Research Center, covered by the State Plan. Federal about this OSA is available at https:// Human Systems Integration Division OSHA retained its authority over www.osha.gov/dcsp/osp/stateprogs/ manages the NASA Aviation Safety occupational safety and health with california.html. Reporting System (ASRS) under an regard to federal government employers Interagency Agreement with the Federal and employees, and employees of the Authority and Signature Aviation Administration (FAA). U.S. Postal Service (effective June 9, Dorothy Dougherty, Assistant The Aviation Safety Reporting System 2000). OSHA also retained its authority Secretary of Labor for Occupational over private-sector maritime Safety and Health, U.S. Department of (ASRS) is an open, voluntary reporting employment on the navigable waters of Labor, authorized the preparation of this system for any person in National the United States; private-sector notice. OSHA is issuing this notice Airspace System to report safety contractors on federal installations; under the authority specified by section incidents, events, or situations. whistleblower complaints under Section 18 of the Occupational Safety and Respondents include but are not limited 11(c) of the Act; emergency temporary Health Act of 1970 (29 U.S.C. 667), to commercial and general aviation standards; and employers Secretary of Labor’s Order No. 1–2012 pilots, air traffic controllers, flight manufacturing explosives for the U.S. (76 FR 3912), and 29 CFR part 1902 and attendants, maintenance technicians, Department of Defense. Notice of this 1953 dispatchers, and other members of the public. The ASRS database is a public OSA was published in the Federal Signed in Washington, DC, on May 25, Register on July 12, 1990 (55 FR 28613), repository which serves the FAA, 2017. NASA, and other organizations world- and there were subsequent minor Dorothy Dougherty, amendments to the OSA. That 1990 wide which are engaged in research and Assistant Secretary of Labor for Occupational the promotion of safe flight. ASRS data Federal Register Notice contained a full Safety and Health. history of the California State Plan. are used to (1) Identify deficiencies and [FR Doc. 2017–11422 Filed 6–1–17; 8:45 am] discrepancies in the National Aviation Notice of New Operational Status BILLING CODE 4510–26–P System (NAS) so that these can be Agreement remedied by appropriate authorities, (2) OSHA and Cal/OSHA signed a new Support policy formulation and OSA on April 30, 2014, which replaced NATIONAL AERONAUTICS AND planning for, and improvements to, the the prior 1989 OSA. This new OSA SPACE ADMINISTRATION NAS, and, (3) Strengthen the foundation clarified that concurrent federal [Notice: (17–031)] of aviation human factors safety enforcement authority would not be research. Respondents are not initiated with regard to any federal Notice of Information Collection reimbursed for associated cost to occupational safety and health provide the information. Comments standards in issues covered by the State AGENCY: National Aeronautics and submitted in response to this notice will Plan. Under the 2014 OSA, Federal Space Administration (NASA). be summarized and included in the OSHA retained coverage over all ACTION: Notice of information collection. request for OMB approval of this Federal employees and sites (including information collection. They will also SUMMARY: the United States Postal Service (USPS), The National Aeronautics and become a matter of public record. USPS contract employees, and Space Administration, as part of its II. Method of Collection contractor-operated facilities engaged in continuing effort to reduce paperwork USPS mail operations). The OSA also and respondent burden, invites the NASA collects this information clarified that federal OSHA has general public and other Federal electronically and that is the preferred enforcement authority over private- agencies to take this opportunity to manner, however information may also sector employers within the borders of comment on proposed and/or be collected via mail or fax. all military installations and within U.S. continuing information collections, as III. Data National Parks, National Monuments, required by the Paperwork Reduction National Memorials, and National Act of 1995. Title: NASA Aviation Safety Recreational Areas in California. DATES: All comments should be Reporting System. Further, OSHA gained enforcement submitted within 60 calendar days from OMB Number: 2700–XXXX. authority over private-sector and tribal the date of this publication. Type of Review: Existing Information employers within U.S. Government- ADDRESSES: Interested persons are Collection in use without OMB recognized Native American invited to submit written comments on Approval. reservations and trust lands. Under the the proposed information collection to Affected Public: Individuals. 2014 OSA, Federal OSHA retained NASA Paperwork Reduction Act Estimated Number of Respondents: authority over maritime employment Clearance Officer, Code JF000, National 92,228.

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Estimated Time per Response: 30 ADDRESSES: You may send comments complement and supplement the minutes. concerning this Notice to the Office of information collected in the SPPA. The Estimated Total Annual Burden Information and Regulatory Affairs, SPPA is the field’s premiere repeated Hours: 46,114 hours. Attn: OMB Desk Officer for the National cross-sectional survey of individual Estimated Total Annual Cost: $3.0M. Endowment for the Arts, Office of attendance and involvement in arts and IV. Request for Comments Management and Budget, Room 10235, cultural activity, and is conducted Washington, DC 20503, 202/395–7316. approximately every five years. The Comments are invited on: (1) Whether SUPPLEMENTARY INFORMATION: The Office AABS questionnaires are much shorter the proposed collection of information than the SPPA, consisting of 12 to 14 is necessary for the proper performance of Management and Budget (OMB) is particularly interested in comments questions that will be used to track arts of the functions of NASA, including participation over time. As with the whether the information collection has which: • Evaluate whether the proposed SPPA, the AABS data will be circulated practical utility; (2) the accuracy of to interested researchers and will be the NSA’s estimate of the burden (including collection of information is necessary for the proper performance of the basis for a range of NEA reports and hours and cost) of the proposed independent research publications. collection of information; (3) ways to functions of the agency, including Reports on these data will be made minimize the burden of the collection of whether the information will have publicly available on the NEA’s Web information on respondents. Comments practical utility; • site. The AABS will provide annual submitted in response to this notice will Evaluate the accuracy of the primary knowledge on the extent and be summarized and included in the agency’s estimate of the burden of the nature of participation in the arts in the request for OMB approval of this proposed collection of information United States. These data will also be information collection. They will also including the validity of the used by the NEA as a contextual become a matter of public record. methodology and assumptions used; • Enhance the quality, utility, and measure for one of the strategic goals Frances Teel, clarity of the information to be identified in its FY 2014–FY 2018 NASA PRA Clearance Officer. collected; and strategic plan. [FR Doc. 2017–11423 Filed 6–1–17; 8:45 am] • Minimize the burden of the Dated: May 30, 2017. BILLING CODE 7510–13–P collection of information on those who Kathy Daum, are to respond, including through the Director, Administrative Services, National use of appropriate automated, Endowment for the Arts. NATIONAL FOUNDATION ON THE electronic, mechanical, or other [FR Doc. 2017–11405 Filed 6–1–17; 8:45 am] ARTS AND THE HUMANITIES technological collection techniques or BILLING CODE 7537–01–P other forms of information technology, National Endowment for the Arts; e.g., permitting electronic submissions Proposed Collection; Comment of responses. OFFICE OF PERSONNEL Request Agency: National Endowment for the MANAGEMENT AGENCY: National Endowment for the Arts. Arts. Title: 2018–2019 Annual Arts Basic Submission for OMB Review; Survey. ACTION: Notice. Comment Request for Review of a OMB Number: New. Revised Information Collection: Multi- SUMMARY: The National Endowment for Frequency: Annually, in years the State Plan Program External Review the Arts (NEA), as part of its continuing Survey of Public Participation in the Case Intake Form, OPM Form 1840 effort to reduce paperwork and Arts is not conducted. respondent burden, conducts a Affected Public: American adults. AGENCY: Office of Personnel preclearance consultation program to Estimated Number of Respondents: Management. provide the general public and Federal 36,000. ACTION: Notice. agencies with an opportunity to Estimated time per respondent: 4.0 comment on proposed and/or minutes. SUMMARY: The Office of Personnel continuing collections of information in Total burden hours: 2,000 hours. Management (OPM) has submitted to accordance with the Paperwork Total annualized capital/startup the Office of Management and Budget Reduction Act of 1995 (PRA95). This costs: 0. (OMB) a request for review of a revision program helps to ensure that requested Total annual costs (operating/ of a currently approved collection, the data can be provided in the desired maintaining systems or purchasing Multi-State Plan Program External format, reporting burden (time and services): 0. Review Intake Form, OPM Form 1840. financial resources) is minimized, Description: This request is for This approval is necessary to improve collection instruments are clearly clearance of the 2018 and 2019 Annual the collection of information from understood, and the impact of collection Arts Basic Surveys (AABS). These members of the Multi-State Plan requirements on respondents can be surveys will be conducted by the U.S. Program who need to request the properly assessed. Currently, the NEA is Census Bureau as a supplement to the external review of a disputed adverse soliciting comments concerning the Bureau of Labor Statistic’s Current benefit decision. proposed information collection on arts Population Survey. The AABS will be DATES: Comments will be accepted until participation in the U.S.: Clearance conducted in February 2018 and July 3, 2017. Request for NEA 2018–2019 Annual February 2019 and are expected to ADDRESSES: Send or deliver comments Arts Basic Survey. Copies of this ICR, conducted annually thereafter in years to: Donna Lease Batdorf, Multi-State with applicable supporting that the National Endowment for the Plan Program, National Healthcare documentation, may be obtained by Arts’ (NEA) Survey of Public Operations, Healthcare and Insurance, visiting www.Reginfo.gov. Participation in the Arts (SPPA) is not Office of Personnel Management, 1900 E DATES: Comments should be sent by July conducted. One of the strengths of the Street NW., Room 3468, Washington, 3, 2017. AABS surveys is that they will both DC 20415; and Charlie Cutshaw, OPM

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Desk Officer, Office of Information & RAILROAD RETIREMENT BOARD agencies when they conduct computer Regulatory Affairs, Office of matching activities in a system of Management and Budget, New Computer Matching and Privacy records with other Federal, State, or Executive Office Building NW., Room Protection Act of 1988; Report of local government records. It requires 10235, Washington, DC 20503. Matching Program: RRB and State Federal agencies involved in computer Medicare/Medicaid Agencies (Renewal) FOR FURTHER INFORMATION CONTACT: For matching programs to: (1) Negotiate written agreements with copies of this proposal, contact C.C. AGENCY: U.S. Railroad Retirement Board the other agency or agencies ‘‘Corky’’ Conyers, Ph.D., C.I.O. P.R.A./ (RRB). participating in the matching programs; Forms Officer at (202) 606–0125, or via ACTION: Notice of a renewal of an email to [email protected]. (2) Obtain approval of the matching existing computer matching program agreement by the Data Integrity Boards Please include a mailing address with that expired on January 1, 2016. your request. of the participating Federal agencies; SUMMARY: As required by the Privacy (3) Publish notice of the computer SUPPLEMENTARY INFORMATION: As Act of 1974, as amended, the RRB is matching program in the Federal required by the Paperwork Reduction Register; Act of 1995 (Pub. L. 104–13, May 22, issuing a public notice in the Federal Register of its intent to renew an (4) Furnish reports about matching 1995), as amended by the Clinger-Cohen programs to Congress and Office of Act (Pub. L. 104–106), OPM is soliciting ongoing computer matching program. In this match, we provide certain Medicare Management and Budget; comments for this collection. The (5) Notify beneficiaries and applicants previous collection (OMB No. 3206– and benefit rate information to state agencies allowing them to review and if that their records are subject to 0263) was published in the Federal matching; and Register on November 26, 2013 at 78 FR necessary, adjust amounts of benefits in their public assistance programs as well (6) Verify match findings before 70598. Approximately 800 respondents reducing, suspending, terminating, or will complete the Multi-State Plan as to coordinate Medicare/Medicaid payments for public assistance denying a person’s benefits or Program External Review Intake Form, payments. OPM Form 1840 on a yearly basis. We recipients. The purpose of this notice is to advise estimate it will take 60 minutes to B. RRB Computer Matches Subject to individuals receiving benefits under the complete the OPM Form 1840. The the Privacy Act Railroad Retirement Act that the RRB annual estimated burden is 800 hours. We have taken action to ensure that plans to share this computer matching our computer matching programs Comments are particularly invited on: data with state agencies. 1. Whether this collection of comply with the requirements of the DATES: Submit comments on or before Privacy Act of 1974, as amended. information is necessary for the proper July 12, 2017, at which time matching performance of functions of the Office of activities may continue. Agreements C. Notice of Computer Matching Personnel Management, and whether it with the individual states will run for a Program: RRB with State Medicare will have practical utility; maximum length of 18 months with a Agencies (Renewal): 2. Whether our estimate of the public provision for an automatic, one-time 12 burden of this collection is accurate, Name of Participating Agencies: The month renewal, for a maximum length Railroad Retirement Board and state and based on valid assumptions and of 30 months (5 U.S.C. 552a(o)(2)(D). In methodology; and public aid/public assistance agencies. order to qualify for the renewal, both Authority for Conducting the Match: 3. Ways in which we can minimize parties must certify to the RRB Data 20 CFR 200.5(j)(1), 20 CFR 200.8(g)(10), the burden of the collection of Integrity Board, three months prior to 42 CFR 435.940 through 435.965. information on those who are to the expiration of the agreement that: Purpose of the Match: The match has respond, through the use of the (1) The program will continue to be several purposes allowing state agencies appropriate technological collection conducted without change, and to: techniques or other forms of information (2) Each party certifies to the board in (1) Accurately identify qualified technology. writing that the program has been Railroad Retirement Beneficiaries; Analysis conducted in compliance with the (2) Make necessary adjustments agreement. required under state law in public aid Agency: Multi-State Plan Program, The number of matches conducted payments due to cost of living or other National Healthcare Operations, with each state during the period of the adjustments in RRB annuities; Healthcare and Insurance, Office of match will vary from state to state, but (3) Coordinate benefits of dually Personnel Management. typically are 2 to 4 matches per calendar eligible Medicare and Medicaid Title: External Review Intake Form. year. beneficiaries; and OMB: 3206–0263. ADDRESSES: Address any comments (4) To identify individuals who are concerning this notice to Ms. Martha P. Frequency eligible for Part B Medicare and not Rico, Secretary to the Board, Railroad enrolled in order to enroll such Affected Public: Individuals or Retirement Board, 844 North Rush individuals in the State Buy-In program. Households. Street Chicago, Illinois 60611–2092. Categories of Individuals: All Number of Respondents: 800. FOR FURTHER INFORMATION CONTACT: Mr. beneficiaries under the Railroad Estimated Time per Respondent: 60 Timothy S. Grant, Chief Privacy Officer, Retirement Act who have been minutes. Railroad Retirement Board, 844 North identified by a state as a recipient of Total Burden Hours: 800 hours. Rush Street Chicago, Illinois 60611– public aid will have information about 2092, [email protected]. their RRB benefits and Medicare Kathleen M. McGettigan, SUPPLEMENTARY INFORMATION: enrollment furnished to the requesting Acting Director, U.S. Office of Personnel state agency. Management. A. General Categories of Records: The state [FR Doc. 2017–11438 Filed 6–1–17; 8:45 am] The Privacy Act of 1974 (5 U.S.C. agency will provide the RRB with a file BILLING CODE 6325–64–P 552a), as amended, regulates Federal of records. The data elements in the

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records will consist of beneficiary 2017, New York Stock Exchange LLC Nasdaq MRX, LLC,3 NASDAQ PHLX identifying information such as: Name, (‘‘NYSE’’ or the ‘‘Exchange’’) filed with LLC, The NASDAQ Stock Market LLC, Social Security Number (SSN), date of the Securities and Exchange the Exchange, NYSE MKT LLC, NYSE birth, and RRB Claim Number, if Commission (‘‘SEC’’ or ‘‘Commission’’) Arca, Inc. and NYSE National, Inc.4 known. The RRB will then conduct a the proposed rule change as described (collectively, the ‘‘Participants’’) filed computer match on the state provided in Items I, II, and III below, which Items with the Commission, pursuant to identifying information. have been prepared by the Exchange. Section 11A of the Exchange Act 5 and If the matching operation reveals that The Commission is publishing this Rule 608 of Regulation NMS an individual who received benefits notice to solicit comments on the thereunder,6 the CAT NMS Plan.7 The under the Railroad Retirement Act also proposed rule change from interested Participants filed the Plan to comply received benefits from the state for any persons. with Rule 613 of Regulation NMS under days in the period, the RRB will notify the Exchange Act.8 The Plan was I. Self-Regulatory Organization’s the state agency and provide benefit published for comment in the Federal Statement of the Terms of Substance of payment and Medicare Entitlement data Register on May 17, 2016,9 and the Proposed Rule Change for those matched individuals. The state approved by the Commission, as agency will then make adjustments, as The Exchange proposes to delete the modified, on November 15, 2016.10 On necessary by law or regulation for those Order Audit Trail System (‘‘OATS’’) March 21, 2017, the Commission matched records. rules in the Rule 7400 Series and amend approved 11 the Exchange’s new Rule Systems of Records: This information Rule 8211 governing submission of 6800 Series to implement provisions of is covered as a routine disclosure under Electronic Blue Sheet trading data the CAT NMS Plan that are applicable the Privacy Act system of records RRB– (‘‘EBS’’) as these Rules provide for the to Exchange member organizations.12 20, Health Insurance and collection of information that is Supplementary Medical Insurance duplicative of the data collection 3 ISE Gemini, LLC, ISE Mercury, LLC and Enrollment and Premium Payment requirements of the CAT once the International Securities Exchange, LLC have been renamed Nasdaq GEMX, LLC, Nasdaq MRX, LLC, System (MEDICARE), or RRB–21, Financial Industry Regulatory Authority and Nasdaq ISE, LLC, respectively. See Securities Railroad Unemployment and Sickness (‘‘FINRA’’) publishes a notice Exchange Act Release No. 80248 (March 15, 2017), Insurance Benefit System, which were announcing the date that it will retire its 82 FR 14547 (March 21, 2017) (SR–ISEGemini– published in the Federal Register on: OATS and EBS rules. The proposed rule 2017–13); Securities Exchange Act Release No. 80326 (March 29, 2017), 82 FR 16460 (April 4, RRB–20, September 30, 2014 (79 FR change is available on the Exchange’s 2017) (SR–ISEMercury–2017–05); and Securities 58886), and RRB–21 on May 15, 2015 Web site at www.nyse.com, at the Exchange Act Release No. 80325 (March 29, 2017), (80 FR 28016). You can also find all principal office of the Exchange, and at 82 FR 16445 (April 4, 2017) (SR–ISE–2017–25). RRB Privacy Act Systems of Records the Commission’s Public Reference 4 National Stock Exchange, Inc. has been renamed NYSE National, Inc. See Securities Exchange Act notices on our public Web site at: Room. _ Release No. 79902 (January 30, 2017), 82 FR 9258 (http://www.rrb.gov/bis/privacy act/ II. Self-Regulatory Organization’s (February 3, 2017) (SR–NSX–2016–16). 5 SORNList.asp). Statement of the Purpose of, and 15 U.S.C. 78k–1. Other information: The notice we are 6 17 CFR 242.608. Statutory Basis for, the Proposed Rule giving here is in addition to any 7 See Letter from the Participants to Brent J. Change individual notice. Fields, Secretary, Commission, dated September 30, In its filing with the Commission, the 2014; and Letter from Participants to Brent J. Fields, We will furnish a copy of this notice Secretary, Commission, dated February 27, 2015. to both Houses of Congress and the self-regulatory organization included On December 24, 2015, the Participants submitted Office of Management and Budget. statements concerning the purpose of, an amendment to the CAT NMS Plan. See Letter and basis for, the proposed rule change from Participants to Brent J. Fields, Secretary, Dated: May 25, 2017. and discussed any comments it received Commission, dated December 23, 2015. 8 17 CFR 242.613. By Authority of the Board. on the proposed rule change. The text Martha P. Rico, 9 Securities Exchange Act Release No. 77724 of those statements may be examined at (April 27, 2016), 81 FR 30614 (May 17, 2016) (File Secretary to the Board. the places specified in Item IV below. No. 4–698). [FR Doc. 2017–11414 Filed 6–1–17; 8:45 am] The Exchange has prepared summaries, 10 Securities Exchange Act Release No. 79318 BILLING CODE 7905–01–P set forth in sections A, B, and C below, (Nov. 15, 2016), 81 FR 84696 (November 23, 2016) (File No. 4–698) (‘‘Approval Order’’). of the most significant parts of such 11 See Securities Exchange Act Release No. 80256 statements. (March 15, 2017), 82 FR 14526 (March 21, 2017) SECURITIES AND EXCHANGE (SR–NYSE–2017–01) (Order Approving Proposed A. Self-Regulatory Organization’s COMMISSION Rule Changes to Adopt Consolidated Audit Trail Statement of the Purpose of, and the Compliance Rules). [Release No. 34–80799; File No. SR–NYSE– Statutory Basis for, the Proposed Rule 12 The Rule 6800 Series utilizes the term 2017–23] Change ‘‘Industry Member,’’ which applies to the Exchange’s member organizations. The term Self-Regulatory Organizations; New 1. Purpose ‘‘member organization’’ means a ‘‘registered broker or dealer (unless exempt pursuant to the Act) that York Stock Exchange LLC; Notice of Background is a member of FINRA or another registered Filing of Proposed Rule Change To Bats BYX Exchange, Inc., Bats BZX securities exchange. Member organizations that Eliminate Requirements That Will Be transact business with public customers or conduct Exchange, Inc., Bats EDGA Exchange, Duplicative of CAT business on the Floor of the Exchange shall at all Inc., Bats EDGX Exchange, Inc., BOX times be members of FINRA. A registered broker or May 26, 2017. Options Exchange LLC, C2 Options dealer must also be approved by the Exchange and authorized to designate an associated natural Pursuant to Section 19(b)(1) of the Exchange, Incorporated, Chicago Board person to effect transactions on the floor of the Securities Exchange Act of 1934 Options Exchange, Incorporated, Exchange or any facility thereof. This term shall (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Chicago Stock Exchange, Inc., FINRA, include a natural person so registered, approved notice is hereby given that on May 22, Investors’ Exchange LLC, Miami and licensed who directly effects transactions on the floor of the Exchange or any facility thereof.’’ International Securities Exchange, LLC, See Rule 2(b)(i). The term ‘‘member organization’’ 1 15 U.S.C. 78s(b)(1). MIAX PEARL, LLC, NASDAQ BX, Inc., also includes any registered broker or dealer that is 2 17 CFR 240.19b–4. Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Continued

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The Plan is designed to create, publishes a notice announcing the date Exchange proposes to eliminate its implement and maintain a CAT that that it will retire its OATS rules, at OATS Rules in accordance with the would capture customer and order event which time the Exchange will publish a proposed timeline discussed below. information for orders in NMS regulatory notice announcing Timeline for Elimination of Duplicative Securities and OTC Equity Securities, implementation date of the proposed Rules across all markets, from the time of rule change. As discussed below, FINRA order inception through routing, will publish its notice once the CAT The CAT NMS Plan states that the cancellation, modification, or execution achieves certain specific accuracy and elimination of rules that are duplicative in a single consolidated data source. reliability standards and FINRA has of the requirements of the CAT and the Pursuant to Appendix C of the CAT determined that its usage of the CAT retirement of the related systems should NMS Plan, each Participant is required Data has not revealed material issues be effective at such time as CAT Data to conduct analyses of which of its that have not been corrected, confirmed meets minimum standards of accuracy existing trade and order data rules and that the CAT includes all data necessary and reliability.18 As discussed in more systems require the collection of to allow FINRA to continue to meet its detail in its rule filing, FINRA believes information that is duplicative of surveillance obligations,16 and that OATS may be retired at a date after information collected for the CAT.13 In confirmed that the Plan Processor is all Industry Members are reporting to addition, among other things, Section sufficiently meeting all of its obligations the CAT when the proposed error rate C.9 of Appendix C to the Plan, as under the CAT NMS Plan. thresholds have been met, and FINRA has determined that its usage of the CAT modified by the Commission, requires Duplicative OATS Requirements each Participant to ‘‘file with the SEC Data has not revealed material issues the relevant rule change filing to The Rule 7400 Series consists of Rules that have not been corrected, confirmed eliminate or modify its duplicative rules 7410 through 7470 and sets forth the that the CAT includes all data necessary within six (6) months of the SEC’s recording and reporting requirements of to allow FINRA to continue to meet its approval of the CAT NMS Plan.’’ 14 The the OATS Rules. The OATS Rules surveillance obligations, and confirmed Plan notes that ‘‘the elimination of such require all Exchange member that the Plan Processor is sufficiently rules and the retirement of such systems organizations and associated persons to meeting all of its obligations under the [will] be effective at such time as CAT record in electronic form and report to CAT NMS Plan.19 Data meets minimum standards of FINRA, on a daily basis, certain The CAT NMS Plan requires that a accuracy and reliability.’’ 15 information with respect to orders rule filing to eliminate a duplicative After conducting its analysis of its originated, received, transmitted, rule address whether ‘‘the availability of rules in accordance with the CAT NMS modified, canceled, or executed by certain data from Small Industry Plan, the Exchange has determined that members in all NMS stocks, as that term Members two years after the Effective the information collected pursuant to is defined in Rule 600(b)(47) of Date would facilitate a more expeditious 17 the OATS and EBS rules is intended to Regulation NMS, traded on the retirement of duplicative systems.’’ 20 be collected by CAT. Therefore, the Exchange, including NYSE-listed FINRA believes that there is no effective Exchange believes that the Rule 7400 securities. This information is used by way to retire OATS until all current Series will no longer be necessary once FINRA staff to conduct surveillance and OATS reporters are reporting to the FINRA publishes notice announcing the investigations of member firms for CAT. As discussed in FINRA’s filing, date it will retire its OATS rules. violations of FINRA rules and federal FINRA believes that having data from Similarly, the Exchange believes that it securities laws. The Exchange has those Small Industry Members currently will be necessary to clarify how the determined that the requirements of the reporting to OATS available two years Exchange will request EBS data under Rule 7400 Series are duplicative of after the Effective Date would Rule 8211 after members are reporting information available in the CAT and substantially facilitate a more to the CAT. Accordingly, the Exchange thus will no longer be necessary once expeditious retirement of OATS and proposes to amend Rule 8211 to add the CAT is operational. therefore supports an amendment to the The Participants have provided OATS new Supplementary Material clarifying Plan that would require current OATS technical specifications to the Plan how the Exchange will request data Reporters that are ‘‘Small Industry Processor for the CAT for use in under these rules after member Members’’ to report two years after the developing the Technical Specifications organizations are reporting to the CAT Effective Date (instead of three).21 for the CAT, and the Participants are once FINRA publishes notice The CAT NMS Plan also requires that working with the Plan Processor to announcing the date it will retire its this rule filing address ‘‘whether include the necessary OATS data OATS rules. Discussed below is a individual Industry Members can be elements in the CAT Technical description of the duplicative rule exempted from reporting to duplicative Specifications. Accordingly, the requirements as well as the timeline for systems once their CAT reporting meets eliminating the duplicative rules. specified accuracy and reliability 16 As noted in the Participants’ September 23, If the Commission approves the 2016 response to comment letters on the Plan, the standards, including, but not limited to, proposed rule change, the rule text will Participants ‘‘worked to keep [the CAT] gap ways in which establishing cross-system be effective; however, the amendments analyses up-to-date by including newly-added data regulatory functionality or integrating will not be implemented until FINRA fields in these duplicative systems, such as the new data from existing systems and the CAT OATS data fields related to the tick size pilot and ATS order book changes, in the gap analyses.’’ a member of FINRA or a registered securities Letter from Participants to Brent J. Fields, Secretary, 18 Appendix C of CAT NMS Plan, Approval Order exchange, consistent with the requirements of Commission, dated September 23, 2016, at 21. The at 85010. section 2(b)(i) of this Rule, which does not own a Participants noted that they ‘‘will work with the 19 See SR–FINRA–2017–013. trading license and agrees to be regulated by the Plan Processor and the industry to develop detailed 20 Id. [sic]. Exchange as a member organization and which the Technical Specifications to ensure that by the time 21 See SR–FINRA–2017–013. FINRA has Exchange has agreed to regulate. See Rule 2(b)(ii). Industry Members are required to report to the CAT, represented that it intends to work with the other 13 Appendix C of CAT NMS Plan, Approval Order the CAT will include all data elements necessary Participants to submit a proposed amendment to at 85010. to facilitate the rapid retirement of duplicative the Plan to require Small Industry Members that are 14 Id. systems.’’ Id. OATS Reporters to report two years after the 15 Id. 17 17 CFR 242.600(B)(47). Effective Date.

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would facilitate such Individual proposing that, before OATS could be request (commonly referred to as ‘‘blue Industry Member exemptions.’’ 22 retired, the CAT would generally need sheet’’ data) using the EBS system. FINRA believes that a single cut-over to achieve a sustained error rate for Once broker-dealer reporting to the from OATS to CAT is highly preferable Industry Member reporting in each of CAT has begun, the CAT will contain to a firm-by-firm approach and is not the categories below for a period of at much of the data the Participants would proposing to exempt members from the least 180 days of 5% or lower, measured otherwise have requested via the EBS OATS requirements on a firm-by-firm on a pre-correction or as-submitted basis system for purposes of NMS Securities basis. FINRA believes that that the and 2% or lower on a post-correction and OTC Equity Securities. overall accuracy and reliability basis (measured at T+5).27 FINRA is Consequently, the Exchange will not thresholds for the CAT described above proposing to measure the 5% pre- need to use the EBS system or request [sic] would need to be met under any correction and 2% post-correction information pursuant to Rule 8211 for conditions before firms could stop thresholds by averaging the error rate NMS Securities or OTC Equity reporting to OATS. Moreover, as across the period, not require a 5% pre- Securities for time periods after CAT discussed above [sic], FINRA supports correction and 2% post-correction reporting has begun if the appropriate amending the Plan to accelerate the maximum each day for 180 consecutive accuracy and reliability thresholds are reporting requirements for Small days. FINRA believes that measuring achieved, including an acceptable Industry Members that are OATS each of the thresholds over the course accuracy rate for customer and account Reporters to report on the same of 180 days will ensure that the CAT information. However, Rule 8211 cannot timeframe as all other OATS Reporters. consistently meets minimum accuracy be completely eliminated upon the CAT If such an amendment were approved and reliability thresholds for Industry achieving the appropriate thresholds by the Commission, there would be no Member reporting while also ensuring because Exchange staff may still need to need to exempt members from OATS that single-day measurements do not request information pursuant to Rule requirements on a firm-by-firm basis.23 unduly affect the overall 8211 for trading activity occurring 31 The CAT NMS Plan also requires that measurements.28 Consequently, FINRA before a member organization was 32 a rule filing to eliminate a duplicative is proposing to use error rates in four reporting to the CAT. In addition, the rule to provide ‘‘specific accuracy and categories, measured separately for Rule 8211 applies to information reliability standards that will determine options and for equities, to assess regarding transactions involving when duplicative systems will be whether the threshold pre- and post- securities that will not be reportable to retired, including, but not limited to, correction error rates are being met.29 the CAT, such as fixed-income whether the attainment of a certain In addition to these minimum error securities; thus, the rule must remain in Error Rate should determine when a rates before OATS can be retired FINRA effect with respect to those transactions system duplicative of the CAT can be believes that during the minimum 180- until those transactions are captured in retired.’’ 24 As discussed in Section day period during which the thresholds the CAT. A.3.(b) of Appendix C to the CAT NMS are calculated, FINRA’s use of the data The proposed rule change proposes to Plan, the Participants established an in the CAT must confirm that (i) usage add new Supplementary Material to the initial Error Rate, as defined in the Plan, over that time period has not revealed Rule 8211 to clarify how the Exchange of 5% on initially submitted data (i.e., material issues that have not been will request data under these rules after data as submitted by a CAT Reporter corrected, (ii) the CAT includes all data member organizations are reporting to before any required corrections are necessary to allow the Exchange to the CAT. Specifically, the proposed performed). The Participants noted in continue to meet its surveillance Supplementary Material to the Rule the Plan that their expectation was that obligations, and (iii) the Plan Processor 8211 will note that the Exchange will ‘‘error rates after reprocessing of error is sufficiently meeting all of its 31 25 The Rule 6800 Series, the Exchange’s corrections will be de minimis.’’ The obligations under the CAT NMS Plan. Consolidated Audit Trail Compliance rule, utilizes Participants based this Error Rate on The Exchange believes this time period the term ‘‘Industry Member,’’ which applies to the their consideration of ‘‘current and to use the CAT Data is necessary to Exchange’s member organizations. The term historical OATS Error Rates, the reveal any errors that may manifest ‘‘member organization’’ means a ‘‘registered broker or dealer (unless exempt pursuant to the Act) that magnitude of new reporting themselves only after surveillance is a member of FINRA or another registered requirements on the CAT Reporters and patterns and other queries have been securities exchange. Member organizations that the fact that many CAT Reporters may run and to confirm that the Plan transact business with public customers or conduct have never been obligated to report data Processor is meeting its obligations and business on the Floor of the Exchange shall at all 26 30 times be members of FINRA. A registered broker or to an audit trail.’’ performing its functions adequately. dealer must also be approved by the Exchange and As set forth in its filing, FINRA Rule 8211 authorized to designate an associated natural believes that, when assessing the person to effect transactions on the floor of the accuracy and reliability of the data for In addition to the OATS rules, Rule Exchange or any facility thereof. This term shall the purposes of retiring OATS, the error 8211 will also be affected by the include a natural person so registered, approved and licensed who directly effects transactions on thresholds should be measured in more implementation of the CAT. Rule 8211 the floor of the Exchange or any facility thereof.’’ granular ways and should also include is the Exchange’s rule regarding the See Rule 2(b)(i). The term ‘‘member organization’’ minimum error rates of post-correction automated submission of specific also includes any registered broker or dealer that is data, which represents the data most trading data to the Exchange upon a member of FINRA or a registered securities exchange, consistent with the requirements of likely to be used by FINRA to conduct section 2(b)(i) of this Rule, which does not own a surveillance. To ensure the CAT’s 27 The Plan requires that the Plan Processor must trading license and agrees to be regulated by the accuracy and reliability, FINRA is thus ensure that regulators have access to corrected and Exchange as a member organization and which the linked order and Customer data by 8:00 a.m. Exchange has agreed to regulate. See Rule 2(b)(ii). Eastern Time on T+5. See CAT NMS Plan, 32 Firms are required to maintain the trade 22 Id. [sic]. Appendix C, Section A.2(a). information for pre-CAT transactions in equities 23 Id. 28 See SR–FINRA–2017–013. and options pursuant to applicable rules, such as 24 Id. [sic]. 29 The categories are (1) rejection rates and data books and records retention requirements, for the 25 See CAT NMS Plan, Appendix C, Section validations; (2) intra-firm linkages; (3) order linkage relevant time period, which is generally three or six A.3(b), at n.102. rates; and (4) Exchange and TRF/ORF match rates. years depending upon the record. See 17 CFR 26 Id. 30 See SR–FINRA–2017–013. 240.17a–3(a), 240.17a–4.

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request information under Rule 8211 information with respect to, and remove Register or up to 90 days (i) as the only if the information is not available impediments to and perfect the Commission may designate if it finds in the CAT because, for example, the mechanism of a free and open market such longer period to be appropriate transactions in question occurred before and a national market system, and, in and publishes its reasons for so finding the firm was reporting information to general, to protect investors and the or (ii) as to which the self-regulatory the CAT or involved securities that are public interest. organization consents, the Commission not reportable to the CAT. In essence, In particular, the Exchange believes will: under the new Supplementary Material, that the proposed rule change (A) By order approve or disapprove the Exchange will make requests under implements, supports, interprets or the proposed rule change, or these rules if and only if the information clarifies the provisions of the Plan, and (B) institute proceedings to determine is not otherwise available through the is designed to assist the Exchange and whether the proposed rule change CAT. its Members in meeting regulatory should be disapproved. However, as noted above, FINRA obligations pursuant to, and milestones IV. Solicitation of Comments believes that the CAT must meet certain established by, the Plan. In approving minimum accuracy and reliability the Plan, the SEC noted that it ‘‘is Interested persons are invited to standards before FINRA could rely on necessary and appropriate in the public submit written data, views, and the CAT Data to replace existing interest, for the protection of investors arguments concerning the foregoing, regulatory tools, including EBS. and the maintenance of fair and orderly including whether the proposed rule Consequently, the proposed markets, to remove impediments to, and change is consistent with the Act. Supplementary Material will be perfect the mechanism of a national Comments may be submitted by any of implemented only after FINRA market system, or is otherwise in the following methods: publishes its notice after the CAT furtherance of the purposes of the Electronic Comments achieves the thresholds set forth above Act.’’ 35 To the extent that this proposal • with respect to OATS and an accuracy Use the Commission’s Internet implements, interprets or clarifies the comment form (http://www.sec.gov/ rate for customer and account Plan and applies specific requirements information of 95% for pre-corrected rules/sro.shtml); or to Members, the Exchange believes that • Send an email to rule-comments@ data and 98% for post-correction data. this proposal furthers the objectives of In addition, as discussed above, FINRA sec.gov. Please include File Number SR– the Plan, as identified by the SEC, and NYSE–2017–23 on the subject line. can rely on CAT Data to replace EBS is therefore consistent with the Act. requests only after FINRA has The Exchange also believes that Paper Comments determined that its usage of the CAT adding a preamble to each current Rule • Send paper comments in triplicate Data over a 180-day period has not impacted by the Plan would remove to Brent J. Fields, Secretary, Securities revealed material issues that have not impediments to and perfect the and Exchange Commission, 100 F Street been corrected, confirmed that the CAT mechanism of a free and open market NE., Washington, DC 20549–1090. includes all data necessary to allow and a national market system by adding FINRA to continue to meet its All submissions should refer to File clarity and transparency to the Number SR–NYSE–2017–23. This file surveillance obligations, and confirmed Exchange’s rules, reducing potential that the CAT Plan Processor is fulfilling number should be included on the confusion, and making the Exchange’s subject line if email is used. To help the its obligations under the CAT NMS rules easier to navigate and understand. Plan. Commission process and review your As noted, if the Commission approves B. Self-Regulatory Organization’s comments more efficiently, please use the proposed rule change, the Exchange Statement on Burden on Competition only one method. The Commission will will announce the implementation date The Exchange does not believe that post all comments on the Commission’s of the proposed rule change in a the proposed rule change will impose Internet Web site (http://www.sec.gov/ regulatory notice that will be published any burden on competition that is not rules/sro.shtml). Copies of the once FINRA publishes a notice necessary or appropriate in furtherance submission, all subsequent announcing the date that it will retire its of the purposes of the Act. The amendments, all written statements EBS rules, which FINRA will do once it proposed change is not designed to with respect to the proposed rule concludes the thresholds for accuracy address any competitive issue but rather change that are filed with the and reliability described above have implement provisions of the CAT NMS Commission, and all written been met and that the Plan Processor is Plan, and is designed to assist the communications relating to the sufficiently meeting all of its obligations Exchange in meeting its regulatory proposed rule change between the under the CAT NMS Plan. obligations pursuant to the Plan. Commission and any person, other than those that may be withheld from the 2. Statutory Basis C. Self-Regulatory Organization’s public in accordance with the The Exchange believes that the Statement on Comments on the provisions of 5 U.S.C. 552, will be proposed rule change is consistent with Proposed Rule Change Received From available for Web site viewing and Section 6(b) of the Act,33 in general, and Members, Participants, or Others printing in the Commission’s Public furthers the objectives of Section 6(b)(5) No written comments were solicited Reference Room, 100 F Street NE., of the Act,34 in particular, because it is or received with respect to the proposed Washington, DC 20549 on official designed to prevent fraudulent and rule change. business days between the hours of manipulative acts and practices, 10:00 a.m. and 3:00 p.m. Copies of such promote just and equitable principles of III. Date of Effectiveness of the filing also will be available for trade, to foster cooperation and Proposed Rule Change and Timing for inspection and copying at the principal coordination with persons engaged in Commission Action office of the Exchange. All comments regulating, clearing, settling, processing Within 45 days of the date of received will be posted without change; publication of this notice in the Federal the Commission does not edit personal 33 15 U.S.C. 78f(b). identifying information from 34 15 U.S.C. 78f(b)(5). 35 Approval Order, 81 FR at 84697. submissions. You should submit only

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information that you wish to make the Exchange, and at the Commission’s Plan to comply with Rule 613 of available publicly. All submissions Public Reference Room. Regulation NMS under the Exchange should refer to File Number SR–NYSE– Act.8 The Plan was published for II. Self-Regulatory Organization’s 2017–23, and should be submitted on or comment in the Federal Register on Statement of the Purpose of, and before June 23, 2017. May 17, 2016,9 and approved by the Statutory Basis for, the Proposed Rule For the Commission, by the Division of Change Commission, as modified, on November Trading and Markets, pursuant to delegated 15, 2016.10 authority.36 In its filing with the Commission, the The Plan is designed to create, Eduardo A. Aleman, self-regulatory organization included implement and maintain a CAT that Assistant Secretary. statements concerning the purpose of, would capture customer and order event and basis for, the proposed rule change [FR Doc. 2017–11400 Filed 6–1–17; 8:45 am] information for orders in NMS and discussed any comments it received Securities and OTC Equity Securities, BILLING CODE 8011–01–P on the proposed rule change. The text across all markets, from the time of of those statements may be examined at order inception through routing, SECURITIES AND EXCHANGE the places specified in Item IV below. cancellation, modification, or execution COMMISSION The Exchange has prepared summaries, in a single consolidated data source. set forth in sections A, B, and C below, Pursuant to Appendix C of the CAT [Release No. 34–80800; File No. SR– of the most significant parts of such NMS Plan, each Participant is required NYSEArca–2017–57] statements. to conduct analyses of which of its Self-Regulatory Organizations; NYSE A. Self-Regulatory Organization’s existing trade and order data rules and Arca, Inc.; Notice of Filing of Proposed Statement of the Purpose of, and the systems require the collection of Rule Change To Eliminate Statutory Basis for, the Proposed Rule information that is duplicative of Requirements That Will Be Duplicative Change information collected for the CAT.11 In of CAT addition, among other things, Section 1. Purpose C.9 of Appendix C to the Plan, as May 26, 2017. Background modified by the Commission, requires Pursuant to Section 19(b)(1) of the Bats BYX Exchange, Inc., Bats BZX each Participant to ‘‘file with the SEC Securities Exchange Act of 1934 Exchange, Inc., Bats EDGA Exchange, the relevant rule change filing to (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Inc., Bats EDGX Exchange, Inc., BOX eliminate or modify its duplicative rules notice is hereby given that on May 15, Options Exchange LLC, C2 Options within six (6) months of the SEC’s 2017, NYSE Arca, Inc. (‘‘NYSE Arca’’ or 12 Exchange, Incorporated, CBOE, Chicago approval of the CAT NMS Plan.’’ The the ‘‘Exchange’’) filed with the Stock Exchange, Inc., Financial Industry Plan notes that ‘‘the elimination of such Securities and Exchange Commission Regulatory Authority, Inc. (‘‘FINRA’’), rules and the retirement of such systems (‘‘SEC’’ or ‘‘Commission’’) the proposed Investors’ Exchange LLC, Miami [will] be effective at such time as CAT rule change as described in Items I, II, International Securities Exchange, LLC, Data meets minimum standards of and III below, which Items have been 13 MIAX PEARL, LLC, NASDAQ BX, Inc., accuracy and reliability.’’ prepared by the self-regulatory Nasdaq GEMX, LLC, Nasdaq ISE, LLC, After conducting its analysis of its organization. The Commission is Nasdaq MRX, LLC,3 NASDAQ PHLX rules in accordance with the CAT NMS publishing this notice to solicit LLC, The NASDAQ Stock Market LLC, Plan, the Exchange determined that the comments on the proposed rule change New York Stock Exchange LLC, the information collected for COATS is from interested persons. Exchange, NYSE Arca, Inc. and NYSE intended to be collected by the CAT. I. Self-Regulatory Organization’s National, Inc.4 (collectively, the Therefore, the Exchange believes that Statement of the Terms of Substance of ‘‘Participants’’) filed with the COATS will no longer be necessary the Proposed Rule Change Commission, pursuant to Section 11A of once the CAT is operational and certain 5 accuracy and reliability standards are The Exchange proposes to delete the Exchange Act and Rule 608 of 6 met. Accordingly, the Exchange submits NYSE Arca Rule 6.20 (Time Regulation NMS thereunder, the CAT NMS Plan.7 The Participants filed the this proposed rule change to delete Synchronization) and subsections NYSE Arca Rule 6.20 and subsections (a)(1)–(13) of NYSE Arca Rule 6.68 3 ISE Gemini, LLC, ISE Mercury, LLC and (a)(1)–(13) of NYSE Arca Rule 6.68, (Record of Orders) as these Rules collect International Securities Exchange, LLC have been which set forth certain requirements information for the consolidated options renamed Nasdaq GEMX, LLC, Nasdaq MRX, LLC, related to COATS. Discussed below is a audit trail system (‘‘COATS’’) that are and Nasdaq ISE, LLC, respectively. See Securities description of the duplicative rule duplicative of the data collection Exchange Act Release No. 80248 (March 15, 2017), 82 FR 14547 (March 21, 2017) (SR–ISEGemini– requirements as well as the timeline for requirements of the CAT NMS Plan. The 2017–13); Securities Exchange Act Release No. eliminating the duplicative rule. Exchange will announce the date for the 80326 (March 29, 2017), 82 FR 16460 (April 4, If the Commission approves the retirement of COATS in a regulatory 2017) (SR–ISEMercury–2017–05); and Securities Exchange Act Release No. 80325 (March 29, 2017), proposed rule change, the rule text will notice that will be published once the 82 FR 16445 (April 4, 2017) (SR–ISE–2017–25). be effective; however, the amendments options exchanges determine that the 4 National Stock Exchange, Inc. has been renamed will not be implemented until the thresholds for accuracy and reliability NYSE National, Inc. See Securities Exchange Act described below have been met and that Release No. 79902 (January 30, 2017), 82 FR 9258 8 (February 3, 2017) (SR–NSX–2016–16). 17 CFR 242.613. the Plan Processor is sufficiently 9 5 15 U.S.C. 78k–1. Securities Exchange Act Release No. 77724 (April 27, 2016), 81 FR 30614 (May 17, 2016) (File meeting all of its obligations under the 6 17 CFR 242.608. No. 4–698). CAT NMS Plan. The proposed change is 7 See Letter from the Participants to Brent J. 10 Securities Exchange Act Release No. 79318 available on the Exchange’s Web site at Fields, Secretary, Commission, dated September 30, (Nov. 15, 2016), 81 FR 84696 (November 23, 2016) www.nyse.com, at the principal office of 2014; and Letter from Participants to Brent J. Fields, Secretary, Commission, dated February 27, 2015. (File No. 4–698) (‘‘Approval Order’’). 11 On December 24, 2015, the Participants submitted Appendix C of CAT NMS Plan, Approval Order 36 17 CFR 200.30–3(a)(12). an amendment to the CAT NMS Plan. See Letter at 85010. 1 15 U.S.C. 78s(b)(1). from Participants to Brent J. Fields, Secretary, 12 Id. 2 17 CFR 240.19b–4. Commission, dated December 23, 2015. 13 Id.

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Exchange, in conjunction with the other The Participants have provided not be retired until all Participants and options exchanges, publishes a notice COATS technical specifications to the Industry Members that report data to announcing the date for the retirement Plan Processor for the CAT for use in COATS are reporting comparable data to of COATS. As noted below, such a developing the Technical Specifications the CAT. While the early submission of notice would be published once the for the CAT, and the Participants are options data to the CAT by Small options exchanges determine that the working with the Plan Processor to Industry Members could expedite the thresholds for accuracy and reliability include the necessary COATS data retirement of COATS, the Exchange described below have been met and that elements in the CAT Technical believes that it premature to consider the Plan Processor is sufficiently Specifications. Accordingly, although such a change and that additional meeting all of its obligations under the the Technical Specifications for the analysis would be necessary to CAT NMS Plan. CAT have not yet been finalized, the determine whether such early reporting by Small Industry Members would be Duplicative COATS Requirements Exchange and the other options exchanges propose to eliminate COATS feasible. COATS was developed to comply in accordance with the proposed The CAT NMS Plan requires that this with an order of the Commission timeline discussed below. rule filing address ‘‘whether individual requiring the Exchange, in coordination Industry Members can be exempted with other exchanges, to ‘‘design and Timeline for Elimination of Duplicative from reporting to duplicative systems implement’’ COATS to ‘‘enable the Rules once their CAT reporting meets options exchanges to reconstruct The CAT NMS Plan states that the specified accuracy and reliability markets promptly, effectively surveil elimination of rules that are duplicative standards, including, but not limited to, them and enforce order handling, firm of the requirements of the CAT and the ways in which establishing cross-system quote, trade reporting and other retirement of the related systems should regulatory functionality or integrating rules.’’ 14 The options exchanges utilize be effective at such time as CAT Data data from existing systems and the CAT COATS to collect and review data meets minimum standards of accuracy would facilitate such Individual regarding options orders, quotes and and reliability.16 As discussed below, Industry Member exemptions.’’ 18 transactions. the Exchange and the other options The Exchange believes that a single The Exchange has determined that the exchanges believe that COATS may be cut-over from COATS to CAT is highly requirements of NYSE Arca Rule 6.20 retired at a date after all Industry preferable to a firm-by-firm approach and subsections (a)(1)–(13) of NYSE Members are reporting to the CAT when and is not proposing to exempt Arca Rule 6.68, which implement the proposed error rate thresholds have members from the COATS requirements certain requirements related to COATS, been met, and the Exchange has on a firm-by-firm basis. The Exchange are duplicative of information available determined that its usage of the CAT and the other options exchanges believe in the CAT and thus will no longer be that providing such individual 15 Data has not revealed material issues necessary once the CAT is operational. that have not been corrected, confirmed exemptions to Industry Members would be inefficient, more costly, and less 14 that the CAT includes all data necessary See Section IV.B.e.(v) of the Commission’s to allow the Exchange to continue to reliable than the single cut-over. Order Instituting Public Administrative Proceedings Providing individual exemptions would Pursuant to Sections 19(h)(1) of the Securities meet its surveillance obligations, and Exchange Act of 1934, Making Findings and confirmed that the Plan Processor is require the options exchanges to create, Imposing Remedial Sanctions (the ‘‘Order’’). See sufficiently meeting all of its obligations for a brief temporary period, a cross- Securities Exchange Act Release No. 43268 under the CAT NMS Plan. system regulatory function and to (September 11, 2000) and Administrative integrate data from COATS and the CAT Proceeding File No. 3–10282. As noted, the Plan is The Exchange believes COATS should designed to create, implement and maintain a CAT not be retired until all Participants and to avoid creating any regulatory gaps as that would capture customer and order event Industry Members that report data to a result of such exemptions. Such a information for orders in NMS Securities and OTC COATS are reporting comparable data to function would be costly to create and Equity Securities, across all markets, from the time would give rise to a greater likelihood of order inception through routing, cancellation, the CAT. In this way, the Exchange will modification, or execution in a single consolidated continue to have access to the necessary of data errors or other issues. Given the data source. The Exchange has already adopted data to perform its regulatory duties. limited time in which such exemptions rules to enforce compliance by its Industry The CAT NMS Plan requires that a would be necessary, the Exchange and Members, as applicable, with the provisions of the the other options exchanges do not Plan. See Securities Exchange Act Release No. rule filing to eliminate a duplicative 80256 (March 15, 2017), 82 FR 14526 (March 21, rule address whether ‘‘the availability of believe that such exemptions would be 2017) (SR–NYSEMKT–2017–02) (Order Approving certain data from Small Industry an appropriate use of limited resources. Proposed Rule Changes to Adopt Consolidated Members two years after the Effective The CAT NMS Plan also requires that a Audit Trail Compliance Rules). Once the CAT is rule filing to eliminate a duplicative fully operational, it will be appropriate to delete Date would facilitate a more expeditious Exchange rules implemented to comply with the retirement of duplicative systems.’’ 17 rule to provide ‘‘specific accuracy and Order as duplicative of the CAT. Accordingly, the The Exchange believes COATS should reliability standards that will determine Exchange believes that the Exchange would when duplicative systems will be continue to be in compliance with the requirements retired, including, but not limited to, of the Order once the CAT is fully operational and of CAT requirements and thus will no longer be the COATS rules are deleted. necessary once the CAT is operational. whether the attainment of a certain 15 NYSE Arca Rule 6.20 requires OTP Holders and NYSE Arca Rule 6.68 requires OTP Holders and Error Rate should determine when a OTP Firms to synchronize, within a time frame OTP Firms to maintain and preserve a record of system duplicative of the CAT can be established by the Exchange, the business clocks every order and of any other instructions given or retired.’’ 19 The Exchange believes that it received for the purchase or sale of options used for recording the date and time of any event is critical that the CAT Data be that must be recorded pursuant to the Exchange contracts, including the terms and conditions of the Rules. Under the Rule, OTP Holders and OTP Firms orders (such as whether the order is a market or sufficiently accurate and reliable for the may use any time provider source, but must ensure limit order), the order entry date and time, and the Exchange to perform the regulatory that its business clocks are accurate to within a date and time of any modification of the terms of functions that it now performs via the order or cancellation of the order, or other three-second of the National Institute of Standards COATS. Accordingly, the Exchange and Technology Atomic Clock in Boulder, Colorado specific data elements. or the United States Naval Observatory Master 16 See Appendix C of CAT NMS Plan, Approval Clock in Washington, DC. The Exchange has Order at 85010. 18 Id. determined that NYSE Arca Rule 6.20 is duplicative 17 Id. 19 Id.

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believes that the CAT Data should meet of the Act,22 in particular, because it is address any competitive issue but rather specific quantitative error rates, as well designed to prevent fraudulent and implement provisions of the CAT NMS as certain qualitative requirements. manipulative acts and practices, Plan approved by the Commission The Exchange and the other options promote just and equitable principles of regarding the elimination of rules and exchanges believe that, before COATS trade, to foster cooperation and systems that are duplicative the CAT, may be retired, the CAT would need to coordination with persons engaged in and is designed to assist the Exchange achieve a sustained error rate for a regulating, clearing, settling, processing in meeting its regulatory obligations period of at least 180 days of 5% or information with respect to, and remove pursuant to the Plan. Similarly, all lower measured on a pre-correction or impediments to and perfect the options exchanges are proposing the as-submitted basis, and 2% or lower on mechanism of a free and open market elimination of COATS and their rules a post-correction basis (measured at and a national market system, and, in related to COATS to implement the T+5).20 The Exchange proposes to general, to protect investors and the requirements of the CAT NMS Plan. measure the 5% pre-correction and 2% public interest. Therefore, this is not a competitive rule post-correction thresholds by averaging In particular, the Exchange believes filing and, therefore, it does not raise the error rate across the period, not that the proposed rule change is competition issues between and among require a 5% pre-correction and 2% consistent with the Exchange Act the options exchanges and/or their post-correction maximum each day for because it fulfills the obligation in the members. 180 consecutive days. The Exchange CAT NMS Plan for the Exchange to C. Self-Regulatory Organization’s believes that measuring each of the submit a proposed rule change to Statement on Comments on the thresholds over the course of 180 days eliminate or modify duplicative rules. In Proposed Rule Change Received From will ensure that the CAT consistently approving the Plan, the SEC noted that Members, Participants, or Others meets minimum accuracy and reliability the Plan ‘‘is necessary and appropriate thresholds while also ensuring that in the public interest, for the protection No written comments were solicited single-day measurements do not unduly of investors and the maintenance of fair or received with respect to the proposed affect the overall measurements. The and orderly markets, to remove rule change. Exchange proposes to measure the impediments to, and perfect the mechanism of a national market system, III. Date of Effectiveness of the appropriate error rates in the aggregate, Proposed Rule Change and Timing for rather than firm-by-firm. In addition, the or is otherwise in furtherance of the 23 Commission Action Exchange proposes to measure the error purposes of the Act.’’ As this proposal rates for options only, not equity implements the Plan, the Exchange Within 45 days of the date of securities, as only options are subject to believes that this proposal furthers the publication of this notice in the Federal COATS. The 2% and 5% error rates are objectives of the Plan, as identified by Register or up to 90 days (i) as the in line with the proposed retirement the SEC, and is therefore consistent with Commission may designate if it finds threshold for FINRA’s Order Audit Trail the Exchange Act. such longer period to be appropriate System (‘‘OATS’’). Moreover, the purpose of the and publishes its reasons for so finding In addition to these minimum error proposed rule change is to eliminate or (ii) as to which the self-regulatory rates before COATS can be retired, the rules that require the submission of organization consents, the Commission Exchange believes that during the duplicative data to the Exchange. The will: minimum 180-day period during which elimination of such duplicative (A) By order approve or disapprove the thresholds are calculated, the requirements will reduce unnecessary the proposed rule change, or Exchange’s use of the data in the CAT costs and other compliance burdens for (B) institute proceedings to determine must confirm that (i) usage over that the Exchange and its members, and whether the proposed rule change time period has not revealed material therefore, will enhance the efficiency of should be disapproved. the securities markets. Furthermore, the issues that have not been corrected, (ii) IV. Solicitation of Comments Exchange believes that the approach set the CAT includes all data necessary to Interested persons are invited to allow the Exchange to continue to meet forth in the proposed rule change strikes the appropriate balance between submit written data, views, and its surveillance obligations, and (iii) the arguments concerning the foregoing, Plan Processor is sufficiently meeting all ensuring that the Exchange is able to continue to fulfill its statutory including whether the proposed rule of its obligations under the CAT NMS change is consistent with the Act. Plan. The Exchange believes this time obligation to protect investors and the public interest by ensuring its Comments may be submitted by any of period to use the CAT Data is necessary the following methods: to reveal any errors that may manifest surveillance of market activity remains themselves only after surveillance accurate and effective while also Electronic Comments establishing a reasonable timeframe for patterns and other queries have been • elimination or modification of its rules Use the Commission’s Internet run and to confirm that the Plan comment form (http://www.sec.gov/ Processor is meeting its obligations and that will be rendered duplicative after implementation of the CAT. rules/sro.shtml); or performing its functions adequately. • Send an email to rule-comments@ B. Self-Regulatory Organization’s 2. Statutory Basis sec.gov. Please include File Number SR– Statement on Burden on Competition NYSEArca–2017–57 on the subject line. The Exchange believes that the The Exchange does not believe that proposed rule change is consistent with Paper Comments the proposed rule change will impose Section 6(b) of the Act,21 • in general, and any burden on competition that is not Send paper comments in triplicate furthers the objectives of Section 6(b)(5) necessary or appropriate in furtherance to Brent J. Fields, Secretary, Securities of the purposes of the Act. The and Exchange Commission, 100 F Street 20 The Plan requires that the Plan Processor must NE., Washington, DC 20549–1090. ensure that regulators have access to corrected and proposed change is not designed to linked order and Customer data by 8:00 a.m. All submissions should refer to File Eastern Time on T+5. See CAT NMS Plan, at C–15. 22 15 U.S.C. 78f(b)(5). Number SR–NYSEArca–2017–57. This 21 15 U.S.C. 78f(b). 23 Approval Order at 84697. file number should be included on the

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subject line if email is used. To help the (‘‘Proposed Rule Change’’) pursuant to II. Description of the Proposed Rule Commission process and review your Section 19(b)(1) of the Securities Change comments more efficiently, please use Exchange Act of 1934 (‘‘Act’’),1 and FICC’s current liquidity resources for only one method. The Commission will Rule 19b–4 thereunder,2 to implement a its Government Securities Division post all comments on the Commission’s Capped Contingency Liquidity Facility (‘‘GSD’’) 8 consist of (i) cash in GSD’s Internet Web site (http://www.sec.gov/ in FICC’s Government Securities clearing fund; (ii) cash that can be rules/sro.shtml). Copies of the Division Rulebook.3 The Proposed Rule obtained by entering into uncommitted submission, all subsequent Change was published for comment in repo transactions using securities in the amendments, all written statements the Federal Register on March 20, clearing fund; (iii) cash that can be with respect to the proposed rule 2017.4 To date, the Commission has obtained by entering into uncommitted change that are filed with the received three comment letters to the repo transactions using the securities Commission, and all written 5 that were destined for delivery to the communications relating to the Proposed Rule Change. On April 25, 2017, the Commission designated a defaulting GSD member; and (iv) proposed rule change between the uncommitted bank loans.9 Commission and any person, other than longer period within which to approve the Proposed Rule Change, disapprove With this Proposed Rule Change, those that may be withheld from the FICC proposes to amend its GSD the Proposed Rule Change, or institute public in accordance with the Rulebook (‘‘GSD Rules’’) 10 to establish proceedings to determine whether to provisions of 5 U.S.C. 552, will be a rules-based, committed liquidity available for Web site viewing and approve or disapprove the Proposed resource (i.e., the Capped Contingency 6 printing in the Commission’s Public Rule Change. This order institutes Liquidity Facility® (‘‘CCLF’’)) as an Reference Room, 100 F Street NE., proceedings under Section 19(b)(2)(B) of additional liquidity resource designed Washington, DC 20549 on official the Act 7 to determine whether to to provide FICC with a committed business days between the hours of approve or disapprove the Proposed liquidity resource to meet its cash 10:00 a.m. and 3:00 p.m. Copies of such Rule Change. settlement obligations in the event of a filing also will be available for default of the GSD Netting Member or inspection and copying at the principal 1 15 U.S.C. 78s(b)(1). family of affiliated Netting Members office of the Exchange. All comments 2 17 CFR 240.19b–4. (‘‘Affiliated Family’’) to which FICC has received will be posted without change; 3 FICC also filed the Proposed Rule Change as the largest exposure in extreme but the Commission does not edit personal advance notice SR–FICC–2017–802 (‘‘Advance plausible market conditions.11 identifying information from Notice’’) pursuant to Section 806(e)(1) of the submissions. You should submit only Payment, Clearing, and Settlement Supervision Act A. Overview of the Proposal of 2010, 12 U.S.C. 5465(e)(1), and Rule 19b– information that you wish to make 4(n)(1)(i) under the Act, 17 CFR 240.19b–4(n)(1)(i). CCLF would be invoked only if FICC available publicly. All submissions Notice of filing of the Advance Notice was declared a ‘‘CCLF Event,’’ which would should refer to File Number SR– published for comment in the Federal Register on occur only if FICC ceased to act for a NYSEArca–2017–57, and should be March 15, 2017. Securities Exchange Act Release Netting Member in accordance to GSD submitted on or before June 23, 2017. No. 80191 (March 9, 2017), 82 FR 13876 (March 15, Rule 22A (referred to as a ‘‘default’’) 2017) (SR–FICC–2017–802). The Commission For the Commission, by the Division of extended the deadline for its review period of the and, subsequent to such default, FICC Trading and Markets, pursuant to delegated Advance Notice from April 30, 2017 to June 29, determined that its other, above- authority.24 2017. Securities Exchange Act Release No. 80520 described liquidity resources could not Eduardo A. Aleman, (April 25, 2017), 82 FR 20404 (May 1, 2017) (SR– generate sufficient cash to statisfy FICC–2017–802). The proposal in the Proposed Assistant Secretary. FICC’s payment obligations to the non- Rule Change and the Advance Notice shall not take [FR Doc. 2017–11401 Filed 6–1–17; 8:45 am] effect until all regulatory actions required with defaulting Netting Members. Once FICC BILLING CODE 8011–01–P respect to the proposal are completed. declares a CCLF Event, each Netting 4 Securities Exchange Act Release No. 80234 Member could be called upon to enter (March 14, 2017), 82 FR 14401 (March 20, 2017) into repurchase transactions with FICC SECURITIES AND EXCHANGE (SR–FICC–2017–002). (‘‘CCLF Transactions’’) up to a pre- 5 COMMISSION See letter from Robert E. Pooler, Chief Financial determined capped dollar amount, as Officer, Ronin Capital LLC, dated April 10, 2017, described below. [Release No. 34–80812; File No. SR–FICC– to Robert W. Errett, Deputy Secretary, Commission; 2017–002] letter from Alan B. Levy, Managing Director, 1. Declaration of a CCLF Event Industrial and Commercial Bank of China Financial Following a default, FICC would first Self-Regulatory Organizations; Fixed Services LLC (‘‘ICBC’’), Philip Vandermause, Director, Aardvark Securities LLC, David Rutter, obtain liquidity through its other Income Clearing Corporation; Order Chief Executive Officer, LiquidityEdge LLC, Robert available non-CCLF liquidity resources. Instituting Proceedings To Determine Pooler, Chief Financial Officer, Ronin Capital LLC, Whether To Approve or Disapprove a Jason Manumaleuna, Chief Financial Officer and 8 FICC operates two divisions—GSD and the EVP, Rosenthal Collins Group LLC, and Scott Proposed Rule Change To Implement Mortgage-Backed Securities Division (‘‘MBSD’’). Skyrm, Managing Director, Wedbush Securities Inc. the Capped Contingency Liquidity GSD provides trade comparison, netting, risk (‘‘ICBC Letter’’); and letter from Timothy J. management, settlement and central counterparty Facility in the Government Securities Cuddihy, Managing Director, FICC, dated March 8, Division Rulebook services for the U.S. government securities market, 2017, to Robert W. Errett, Deputy Secretary, while MBSD provides the same services for the U.S. Commission (‘‘FICC Letter’’), available at https:// May 30, 2017. mortgage-backed securities market. Because GSD www.sec.gov/comments/sr-ficc-2017-002/ and MBSD are separate divisions of FICC, each I. Introduction ficc2017002.htm. Since the proposal contained in division maintains its own rules, members, margin the Proposed Rule Change was also filed as an from their respective members, clearing fund, and On March 1, 2017, Fixed Income Advance Notice, Release No. 80191, supra note 3, liquid resources. Clearing Corporation (‘‘FICC’’) filed the Commission is considering all public comments 9 See Notice, 82 at 14402. with the Securities and Exchange received on the proposal regardless of whether the 10 GSD Rules, available at www.dtcc.com/legal/ comments are submitted to the Proposed Rule Commission (‘‘Commission’’) proposed rules-and-procedures.aspx. Change or the Advance Notice. 11 As defined in the GSD Rules, the term ‘‘Netting rule change SR–FICC–2017–002 6 See Securities Exchange Act Release No. 80524 Member’’ means a GSD member that is a member (April 25, 2017), 82 FR 20685 (May 3, 2017). of the GSD Comparison System and the Netting 24 17 CFR 200.30–3(a)(12). 7 15 U.S.C. 78s(b)(2)(B). System. Id.

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If FICC determined that these sources of Transactions with each Direct Affected its available liquid resources; or (iii) 30 liquidity would be insufficient to meet Member for the Direct Affected or 60 calendar days after entry into the FICC’s payment obligation to its non- Member’s purchase of the securities CCLF Transaction for U.S. government defaulting Netting Members, FICC (‘‘Financed Securities’’) that were bonds and mortgage-backed securities, would declare a CCLF Event. FICC destined for the defaulting Netting respectively. would notify all Netting Members of Member.13 The aggregate purchase price B. CCLF Sizing and Allocation FICC’s need to make such a declaration of the CCLF Transactions with the and enter into CCLF Transactions, as Direct Affected Member could equal but According to FICC, its overall necessary, by issuing an Important never exceed the Direct Affected liquidity need during a CCLF Event Notice. Member’s maximum funding obligation would be determined by the cash (‘‘Individual Total Amount’’).14 settlement obligations presented by the 2. CCLF Transactions If any Direct Affected Member’s default of a Netting Member and its Upon declaring a CCLF Event, FICC Financing Amount exceeds its Affiliated Family, as described below. would meet its liquidity need by Individual Total Amount (‘‘Remaining An additional amount (‘‘Liquidity initiating CCLF Transactions with non- Financing Amount’’), FICC would Buffer’’) would be added to account for defaulting Netting Members. The advise the following categories of both changes in Netting Members’ cash Proposed Rule Change would clarify Netting Members (collectively, settlement obligations that may not be that the original transaction that created ‘‘Affected members’’) that FICC intends observed during the six-month look- FICC’s initial obligation to pay cash to to initiate CCLF Transactions with them back period during which CCLF would the now Direct Affected Member, and for the Remaining Financing Amount: be sized, and the possibility that the the Direct Affected Member’s initial (i) All other Direct Affected Members defaulting Netting Member is the largest obligation to deliver securities to FICC, with a Financing Amount less than its CCLF contributor. would be deemed satisfied by entry into Individual Total Amount; and (ii) each FICC believes that its proposal would the CCLF Transaction, and that such Netting Member that has not otherwise allocate FICC’s observed liquidity need settlement would be final. entered into CCLF Transactions with during a CCLF Event among all Netting Each CCLF Transaction would be FICC (‘‘Indirect Affected Members’’). Members based on their historical governed by the terms of the September FICC states that the order in which settlement activity, but states that 1996 Securities Industry and Financial FICC would enter into CCLF Netting Members that present the Markets Association Master Repurchase Transactions for the Remaining highest cash settlement obligations Agreement,12 which would be Financing Amount would be based would be required to maintain higher incorporated by reference into the GSD upon the Affected Members that have CCLF funding obligations.16 Rules as a master repurchase agreement the most funding available within their The steps that FICC would take to size between FICC as seller and each Netting Individual Total Amounts.15 No its overall liquidity need during a CCLF Member as buyer, with certain Affected Member would be obligated to event and then size and allocate each modifications as outlined in the GSD enter into CCLF Transactions greater Netting Member’s CCLF contribution Rules (‘‘CCLF MRA’’). than its Individual Total Amount. requirement are described below. To initiate CCLF Transactions with After receiving approval from FICC’s Step 1: CCLF Sizing non-defaulting Netting Members, FICC Board of Directors to do so, FICC would would identify the non-defaulting engage its investment advisor during a (A) Historical Cover 1 Liquidity Netting Members that are obligated to CCLF Event to minimize liquidation Requirement deliver securities destined for the losses on the Financed Securities FICC’s historical liquidity need for the defaulting Netting Member (‘‘Direct through hedging, strategic dispositions, six-month look-back period would be Affected Members’’) and, in return, or other investment transactions as equal to the largest liquidity need would be obligated to receive a cash determined by FICC under relevant generated by an Affiliated Family payment. FICC would need to finance market conditions. Once FICC liquidates during the preceding six-month period. those transactions through CCLF, in the underlying securities by selling The amount which would be order to cover the defaulting Netting them to a new buyer (‘‘Liquidating determined by calculating the largest Member’s failure to deliver the cash Trade’’), FICC would instruct the sum of an Affiliated Family’s obligation payment (‘‘Financing Amount’’). FICC Affected Member to close the CCLF to receive GSD eligible securities, plus would notify each Direct Affected Transaction by delivering the Financed Member of the Direct Affected Member’s the net dollar amount of its Funds-Only Securities to FICC in order to complete 17 Financing Amount and whether such Settlement Amount (collectively, the settlement of the Liquidating Trade. Direct Affected Member should deliver ‘‘Historical Cover 1 Liquidity FICC would attempt to unwind the to FICC or suppress any securities that Requirement’’). FICC believes that it is CCLF Transactions in the order it were destined for the defaulting Netting appropriate to calculate the Historical entered into the Liquidating Trades. Member. FICC would then initiate CCLF Cover 1 Liquidity Requirement in this Each CCLF Transaction would remain manner because the default of such an open until the earlier of (i) such time 12 The September 1996 Securities Industry and Financial Markets Association Master Repurchase that FICC liquidates the Affected 16 Id. Agreement (‘‘SIFMA MRA’’) is available at http:// Member’s Financed Securities; (ii) such 17 According to FICC, the Funds-Only Settlement www.sifma.org/services/standard-forms-and- time that FICC obtains liquidity through Amount reflects the amount that FICC collects and documentation/mra,-gmra,-msla-and-msftas/. The passes to the contra-side once FICC marks the SIFMA MRA would be incorporated by reference securities in a Netting Member’s portfolio to the 13 into the GSD Rules without referenced annexes, FICC states that it would have the authority to current market value. FICC states that this amount other than Annex VII (Transactions Involving initiate CCLF Transactions with respect to any is the difference between the contract value and the Registered Investment Companies), which would be securities that are in the Direct Affected Member’s current market value of a Netting Member’s GSD applicable to any Netting Member that is a portfolio which are bound to the defaulting Netting portfolio. FICC states that it would consider this registered investment company. FICC represents Member. amount when calculating the Historical Cover 1 that, at the time of filing the Proposed Rule Change, 14 The sizing of each Direct Affected Member’s Liquidity Requirement because in the event that an there were no registered investment companies that Individual Total Amount is described below in Affiliated Family defaults, the Funds-Only are also GSD Netting Members. See Notice, 82 at Section II.B. Settlement Amount would also reflect the cash 14402. 15 See Notice, 82 at 14403. obligation to non-defaulting Netting Members. Id.

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Affiliated Family would generate the range of potential market scenarios that would only contribute to the $15 billion largest liquidity need for FICC.18 may lead to a change in a Netting Aggregate Regular Amount, based on the Member’s trading behavior. FICC also calculation described below. Meanwhile (B) Liquidity Buffer states that it would analyze the trading a Netting Member with a $45 billion According to FICC, it is cognizant that behavior of Netting Members that Aggregate Regular Amount would the Historical Cover 1 Liquidity present larger liquidity needs than the contribute towards the $15 billion Requirement would not account for majority of the Netting Members, as Aggregate Regular Amount and the changes in a Netting Member’s current described below.22 Aggregate Supplemental Amount, as trading behavior, which could result in described below. a liquidity need greater than the (C) Aggregate Total Amount FICC believes that this tiered Historical Cover 1 Liquidity FICC’s anticipated total liquidity need approach reflects a reasonable, fair, and Requirement. To account for this during a CCLF Event (i.e., the sum of the transparent balance between FICC’s potential shortfall, FICC proposes to add Historical Cover 1 Liquidity need for sufficient liquidity resources a Liquidity Buffer as an additional Requirement plus the Liquidity Buffer) and the burdens of the funding amount to the Historical Cover 1 would be referred to as the ‘‘Aggregate obligations on each Netting Member’s Liquidity Requirement, which would Total Amount.’’ The Aggregate Total management of its own liquidity.26 help to better anticipate GSD’s total Amount initially would be set to the Under the proposal, the Aggregate liquidity need during a CCLF Event. Historical Cover 1 Liquidity Regular Amount would be allocated FICC states that the Liquidity Buffer Requirement plus the greater of 20 among all Netting Members, but Netting would initially be 20 percent of the percent of the Historical Cover 1 Members with larger Receive Historical Cover 1 Liquidity Liquidity Requirement or $15 billion. Obligations 27 would be required to Requirement (and between 20 to 30 contribute a larger amount. FICC Step 2: Allocation of the Aggregate Total percent thereafter), subject to a believes that this approach is Amount Among Netting Members minimum amount of $15 billion.19 FICC appropriate because a defaulting Netting believes that 20 to 30 percent of the (A) Allocation of the Aggregate Regular Member’s Receive Obligations are the Historical Cover 1 Liquidity Amount Among Netting Members primary cash settlement obligations that Requirement is appropriate based on its The Aggregate Total Amount would FICC would have to satisfy as a result analysis and statistical measurement of be allocated among Netting Members in of the default of an Affiliated Family.28 the variance of its daily liquidity need order to arrive at each Netting Member’s However, FICC also believes that, 20 throughout 2015 and 2016. FICC also Individual Total Amount. FICC would because FICC guarantees both sides of a believes that the $15 billion minimum take a tiered approach in its allocation GSD Transaction and all Netting dollar amount is necessary to cover of the Aggregate Total Amount. First, Members benefit from FICC’s risk changes in a Netting Member’s trading FICC would determine the portion of mitigation practices, some portion of the activity that could exceed the amount the Aggregate Total Amount that should Aggregate Regular Amount should be that is implied by such statistical allocated based on Netting Members’ 21 be allocated among all Netting Members measurement. (‘‘Aggregate Regular Amount’’), which aggregate Deliver Obligations 29 as FICC would have the discretion to 30 FICC states initially would be set at $15 well. As a result, FICC proposes to adjust the Liquidity Buffer, within the billion.23 FICC believes that this amount allocate the Aggregate Regular Amount range of 20 to 30 percent of the is appropriate because the average based on a scaling factor. Given that the Historical Cover 1 Liquidity Netting Member’s liquidity need from Aggregate Regular Amount would be Requirement, based on its analysis of 2015 to 2016 was approximately $7 initially sized at $15 billion and would the stability of the Historical Cover 1 billion, with a majority of Netting cover approximately 80 percent of Liquidity Requirement over various Netting Members’ observed liquidity time horizons. According to FICC, this Members having liquidity needs less than $15 billion.24 Based on that needs, FICC proposes to set the scaling would help ensure that its liquidity factor in the range of 65 to 85 percent resources are sufficient under a wide analysis, FICC believes that the $15 billion Aggregate Regular Amount to the value of Netting Members’ Receive Obligations, and in the range of 18 Id. should capture the liquidity needs of a 25 15 to 35 percent to the value of Netting 19 See Notice, 82 at 14404. For example, if the majority of the Netting Members. 31 Historical Cover 1 Liquidity Requirement was $100 Second, as discussed in more detail Members’ Deliver Obligations. billion, the Liquidity Buffer initially would be $20 below, after allocating the $15 billion FICC states that it would initially billion ($100 billion × 0.20), for a total of $120 Aggregate Regular Amount, FICC would assign a 20 percent weighting billion in potential liquidity resources. 20 According to FICC, it uses a statistical allocate the remainder of the Aggregate 26 Id. measurement called the ‘‘coefficient of variation,’’ Total Amount (‘‘Aggregate 27 which is calculated as the standard deviation Supplemental Amount’’) among Netting ‘‘Receive Obligation’’ means a Netting Member’s obligation to receive eligible netting divided by the mean, to quantify the variance of Members that incurred liquidity needs Affiliated Families’ daily liquidity needs. See securities from FICC at the appropriate settlement Notice, 82 at 14403. FICC states that this is a typical above the Aggregate Regular Amount value, either in satisfaction of all or a part of a Net approach used to compare variability across within the six-month look-back period. Long Position, or to implement a collateral different data sets. Id. FICC states that it will use For example, a Netting Member with a substitution in connection with a Repo Transaction with a right of substitution. GSD Rules, supra note the coefficient of variation to set the Liquidity $7 billion peak daily liquidity need Buffer by quantifying the variance of each Affiliated 10. Family’s daily liquidity need. Id. FICC believes that 28 See Notice, 82 at 14404. a Liquidity Buffer of 20 to 30 percent, subject to a 22 Id. 29 ‘‘Deliver Obligation’’ means a Netting minimum of $15 billion, would be an appropriate 23 Id. Member’s obligation to deliver eligible netting Liquidity Buffer because FICC found that, 24 From 2015 to 2016, 59 percent of all Netting securities to FICC at the appropriate settlement throughout 2015 and 2016, the coefficient of Members presented average liquidity needs value either in satisfaction of all or a part of a Net variation ranged from an average of 15 to 19 percent between $0 to $5 billion, 78 percent of all Netting Short Position or to implement a collateral for Affiliated Families with liquidity needs above Members presented average liquidity needs substitution in connection with a Repo Transaction $50 billion, and an average of 18 to 21 percent for between $0 and $10 billion, and 85 percent of all with a right of substitution. GSD Rules, supra note Affiliated Families with liquidity needs above $35 Netting Members presented average liquidity needs 10. billion. Id. between $0 and $15 billion. Id. 30 See Notice, 82 at 14404. 21 Id. 25 Id. 31 See Notice, 82 at 14404.

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percentage to a Netting Member’s borne by those Netting Members who Member’s Individual Total Amount as a aggregate peak Deliver Obligations present the highest liquidity needs.36 result of its daily monitoring would not (‘‘Deliver Scaling Factor’’) and the The sum of a Netting Member’s be effective until ten business days after remaining percentage difference, 80 allocation across all Liquidity Tiers FICC issues an Important Notice percent in this case, to a Netting would be such Netting Member’s regarding the increase. Reductions to Member’s aggregate peak Receive Individual Supplemental Amount. FICC the Aggregate Total Amount would be Obligations (‘‘Receive Scaling would add each Netting Member’s reflected at the conclusion of the reset Factor’’).32 FICC would have the Individual Supplemental Amount (if period. any) to its Individual Regular Amount to discretion to adjust these scaling factors D. Implementation of the Proposed based on a quarterly analysis that arrive at such Netting Member’s Individual Total Amount. Changes and Required Attestation From would, in part, assess Netting Members’ Each Netting Member observed liquidity needs that are at or C. FICC’s Ongoing Assessment of the The CCLF proposal would become below $15 billion. FICC believes that Sufficiency of CCLF operative 12 months after the later date this assessment would help ensure that As described above, the Aggregate of the Commission’s approval of the the Aggregate Regular Amount would be Total Amount and each Netting Proposed Rule Change and the appropriately allocated across all Member’s Individual Total Amount (i.e., Commission’s no objection to the Netting Members.33 each Netting Member’s allocation of the related Advance Notice. FICC represents Aggregate Total Amount) would (B) FICC’s Allocation of the Aggregate that, during this 12-month period, it initially be calculated using a six-month Supplemental Amount Among Netting would periodically provide each Netting look-back period that FICC would reset Members Member with estimated Individual Total every six months (‘‘reset period’’). FICC Amounts. FICC states that the delayed The remainder of the Aggregate Total states that, on a quarterly basis, FICC implementation and the estimated Amount (i.e., the Aggregate would assess the following parameters Individual Total Amounts are designed Supplemental Amount) would be used to calculate the Aggregate Total to give Netting Members the allocated among Netting Members that Amount (and could consider changes to opportunity to assess the impact that the such parameters, if necessary and present liquidity needs greater than $15 CCLF proposal would have on their appropriate): business profile.40 billion using Liquidity Tiers. As • The largest peak daily liquidity described in greater detail in the Notice, FICC states that, as of the need of an Affiliated Family; implementation date and annually the specific allocation of the Aggregate • the Liquidity Buffer; Supplemental Amount to each Liquidity • thereafter, FICC would require that each the Aggregate Regular Amount; Netting Member attest that it Tier would be based on the frequency • the Aggregate Supplemental incorporated its Individual Total that Netting Members generated Amount; Amount into its liquidity plans.41 This liquidity needs within each Liquidity • the Deliver Scaling Factor and the required attestation, which would be Tier, relative to the other Liquidity Receive Scaling Factor used to allocate from an authorized officer of the Netting Tiers.34 More specifically, once the the Aggregate Regular Amount; • the increments for the Liquidity Member or otherwise in form and Aggregate Supplemental Amount is substance satisfactory to FICC, would divided among the Liquidity Tiers, the Tiers; and • the length of the look-back period certify that (i) such officer has read and amount within each Liquidity Tier understands the GSD Rules, including would be allocated among the and the reset period for the Aggregate 37 the CCLF rules; (ii) the Netting applicable Netting Members, based on Total Amount. FICC represents that, in the event that Member’s Individual Total Amount has the relative frequency that a Netting any changes to the above-referenced been incorporated into the Netting Member generated liquidity needs Member’s liquidity planning; 42 (iii) the 35 parameters result in an increase in a within each Liquidity Tier. FICC Netting Member’s Individual Total Netting Member acknowledges and explains that this allocation would Amount, such increase would be agrees that its Individual Total Amount result in a larger proportion of the effective as of the next bi-annual reset.38 may be changed at the conclusion of any Aggregate Supplemental Amount being Additionally, on a daily basis, FICC reset period or otherwise upon ten would examine the Aggregate Total business days’ Notice; (iv) the Netting 32 For example, assume that a Netting Member’s Amount to ensure that it is sufficient to Member will incorporate any changes to peak Receive and Deliver Obligations represent 5 satisfy FICC’s liquidity needs. If FICC its Individual Total Amount into its and 3 percent, respectively, of the sum of all Netting Members’ peak Receive and Deliver determines that the Aggregate Total liquidity planning; and (v) the Netting Obligations. The Netting Member’s portion of the Amount is insufficient to satisfy its Member will continually reassess its Aggregate Regular Amount (‘‘Individual Regular liquidity needs, FICC would have the liquidity plans and related operational Amount’’) would be $600 million ($15 billion * discretion to change the length of the plans, including in the event of any 0.80 Receive Scaling Factor * 0.05 Peak Receive Obligation Percentage), plus $90 million ($15 six-month look-back period, the reset changes to such Netting Member’s billion * 0.20 Deliver Scaling Factor * 0.03 Peak period, or otherwise increase the Individual Total Amount, to ensure Deliver Obligation Percentage), for a total of $690 Aggregate Total Amount. such Netting Member’s ability to meet million. Any increase in the Aggregate Total its Individual Total Amount. FICC states 33 See Notice, 82 at 14404. Amount resulting from FICC’s quarterly 34 that it may require any Netting Member See Notice, 82 at 14404–05. assessments or FICC’s daily monitoring 35 For example, if the Aggregate Supplemental Amount is $50 billion and Tier 1 has a relative would be subject to approval from FICC 40 Id. frequency weighting of 33 percent, all Netting management, as described in the 41 Id. Members that have generated liquidity needs that Notice.39 Increases to a Netting 42 According to FICC, the attestation would not fall within Tier 1 would collectively fund $16.5 refer to the actual dollar amount that has been billion ($50 billion * 0.33) of the Supplemental allocated as the Individual Total Amount. FICC 36 Amount. Each Netting Member in that tier would See Notice, 82 at 14404–05. explains that each Netting Member’s Individual be responsible for contributing toward the $16.5 37 See Notice, 82 at 14406. Total Amount would be made available to such billion, based on the relative frequency that the 38 Id. Member via GSD’s access controlled portal Web member generated liquidity needs within that tier. 39 Id. site. Id.

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to provide FICC with a new certification prospective new Netting Members) or (iv) effectively drain liquidity from in the foregoing form at any time, clear their trades through larger Netting other markets by requiring more including upon a change to a Netting Members; and (3) cause FICC’s liquidity liquidity to be available to FICC than is Member’s Individual Total Amount or needs to grow by potentially increasing necessary.56 in the event that a Netting Member the size of FICC’s largest Netting B. Supporting Comment undergoes a change in its corporate Members.46 As an alternative to the structure.43 Proposed Rule Change, Ronin suggests The FICC Letter written in support of On a quarterly basis, FICC would that FICC should instead impose CCLF the proposal primarily responds to conduct due diligence to assess each requirements only on larger Bank Ronin’s assertions. In response to Netting Member’s ability to meet its Netting Members that present FICC with Ronin’s concerns regarding the potential Individual Total Amount. This due settlement risk.47 economic impacts on smaller non-bank diligence would include a review of all Similarly, ICBC argues that the Netting Members, FICC states that CCLF information that the Netting Member Proposed Rule Change would result in was designed to minimize the burden has provided FICC in connection with harmful consequences to smaller on smaller Netting Members and its ongoing reporting obligations Netting Members and other industry achieve a fair and appropriate allocation pursuant to the GSD Rules and a review participants.48 Specifically, ICBC argues of liquidity burdens.57 Specifically, of other publicly available information. that the Proposed Rule Change could FICC notes that it sought to structure FICC also would test its operational force smaller Netting Members to exit CCLF so that (1) each Netting Member’s procedures for invoking a CCLF Event, the clearing business or terminate their CCLF requirement would be a function and Netting Members would be required membership with FICC due to the cost of the liquidity risk that each Netting to participate in such tests. If a Netting of CCLF funding obligations, thereby (1) Member’s activity presents to GSD; (2) Member failed to participate in such increasing market concentration; (2) the allocation of the CCLF requirement testing when required by FICC, FICC decreasing market competition; (3) to each Netting Member would be a would be permitted to take disciplinary increasing FICC’s credit exposure to its ‘‘fraction’’ of the Netting Member’s peak measures as set forth in GSD Rule 3, largest participant families; and (4) liquidity exposure that it presents to 58 Section 7.44 driving smaller Netting Members to GSD; and (3) the proposal would clear transactions bilaterally instead of fairly allocate higher CCLF requirements E. Liquidity Funding Reports Provided through a central counterparty.49 to Netting Members that generate higher to Netting Members Although ICBC acknowledges that liquidity needs.59 FICC further notes On each business day, FICC would FICC, as a registered clearing agency, is that, since CCLF contributions would be make a liquidity funding report required to maintain sufficient financial a function of the peak liquidity available to each Netting Member that resources to withstand a default by the exposure that each Netting Member would include (i) the Netting Member’s largest participant family to which FICC presents to FICC, FICC asserts that each Individual Total Amount, Individual has exposure in ‘‘extreme but plausible Netting Member would be able to Regular Amount and, if applicable, its conditions,’’ 50 ICBC argues that the reduce its CCLF contribution by altering Individual Supplemental Amount; (ii) scenario that CCLF is designed to its trading activity.60 FICC’s Aggregate Total Amount, address is not ‘‘plausible’’ because U.S. In response to Ronin’s assertion that Aggregate Regular Amount, and government securities are riskless assets CCLF could promote concentration and Aggregate Supplemental Amount; and that would not suffer a from liquidity systemic risk, FICC argues that the (iii) FICC’s regulatory liquidity shortage, even amidst a financial crisis proposal would actually reduce 51 requirements as of the prior business similar to that in 2008. Moreover, systemic risk. Specifically, FICC asserts day. The liquidity funding report would ICBC argues that CCLF is unnecessary that, by providing FICC with committed be provided for informational purposes because FICC’s current risk models have liquidity to meet its cash settlement 52 only. proven to be effective. obligations to non-defaulting members ICBC also argues that CCLF could (i) during extreme market stress, CCLF II. Summary of Comments Received result in FICC’s refusal to clear certain would promote settlement finality and The Commission received three trades, thereby increasing the burden on the safety and soundness of the comment letters in response to the the Bank of New York, the only private securities settlement system, thereby Proposed Rule Change.45 Two comment bank that clears a large portion of U.S. reducing systemic risk, as discussed 53 61 letters, the Ronin Letter and ICBC Letter, government securities; (ii) cause FICC further below. objected to the Proposed Rule Change. members to reduce their balance sheets Finally, in response to Ronin’s One comment letter from FICC devoted to the U.S. government concern that CCLF could cause FICC’s responded to the objections raised by securities markets, which would have liquidity needs to grow, FICC notes that Ronin. broad negative effects on markets and taxpayers; 54 (iii) negatively impact 56 ICBC Letter at 5. A. Objecting Comments traders with hedge positions, resulting 57 FICC Letter at 3–4. in negative downstream effects on the 58 Id. at 3. FICC represents that the ratio of CCLF Ronin argues that the Proposed Rule requirement to Netting Member’s peak liquidity Change would (1) place an unfair and smooth functioning of the U.S. need is significantly larger, on average, for the top anticompetitive burden on smaller government securities market; 55 and 10 Netting Members compared to all other Netting Members because such members members. Id. at 4. 59 do not present any settlement risk to 46 Ronin Letter at 1–9. Id. at 3–4. FICC notes that the Aggregate 47 Regular Amount (proposed to be sized at $15 FICC; (2) cause concentration and Ronin Letter at 7–9. 48 ICBC Letter at 2–7. billion) would be applied to all Netting Members on a pro-rata basis, while the Aggregate systemic risk by potentially forcing 49 ICBC Letter at 2–6. Supplemental Amount, which would make up smaller Netting Members to leave GSD 50 ICBC Letter at 1–2. approximately 80 percent of the Aggregate Total (as well as creating a barrier to entry for 51 ICBC Letter at 3. Amount, would only apply to the Netting Members 52 Id. generating the largest liquidity needs (i.e., in excess 43 Id. 53 ICBC Letter at 2, 5. of $15 billion). Id. at 4. 44 GSD Rules, supra note 10. 54 ICBC Letter at 3. 60 Id. at 3, 7. 45 See supra, note 4. 55 ICBC Letter at 4. 61 Id. at 7–8.

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in its outreach to Netting Members over requires, in part, that clearing agency Rule 17Ad–22(e)(7) under the Act, cited the past two years, bilateral meetings rules be designed to assure the above, or any other provision of the Act, with individual Netting Members, and safeguarding of securities in the custody or the rules and regulations thereunder. testing designed to evaluate the impact or control of the clearing agency and, in Interested persons are invited to submit that changes to a Netting Member’s general, protect investors and the public written data, views, and arguments on trading behavior could have on the interest; (ii) Section 17A(b)(3)(I) of the or before June 19, 2017. Any person Historical Cover 1 Liquidity Act,68 which provides that clearing who wishes to file a rebuttal to any Requirement, FICC has found agency rules cannot impose a burden on other person’s submission must file that opportunities for Netting Members to competition that is not necessary or rebuttal on or before June 23, 2017. reduce their CCLF requirements and, as appropriate in furtherance of the Comments may be submitted by any of a result, decrease the Historical Cover 1 purposes of the Act; and (ii) Rule 17Ad– the following methods: 62 69 Liquidity Requirement. Specifically, 22(e)(7) under the Act, which requires Electronic Comments FICC notes that during its test period, FICC to establish, implement, maintain • which spanned from December 1, 2016 and enforce written policies and Use the Commission’s Internet to January 31, 2017, 35 participating procedures reasonably designed to comment form (http://www.sec.gov/ rules/sro.shtml); or Netting Members voluntarily adjusted effectively measure, monitor, and • their settlement behavior and settlement manage liquidity risk that arises in or is Send an email to rule-comments@ patterns to identify opportunities to borne by FICC, including measuring, sec.gov. Please include File Number SR– reduce their CCLF requirements.63 monitoring, and managing its settlement FICC–2017–002 on the subject line. According to FICC, the test resulted in and funding flows on an ongoing and Paper Comments an approximate $5 billion reduction in timely basis, and its use of intraday • Send paper comments in triplicate 70 FICC’s peak Historical Cover 1 Liquirity liquidity. to Secretary, Securities and Exchange Requirement, highlighting that growth Specifically, Rule 17Ad–22(e)(7) Commission, 100 F Street NE., of the Historical Cover 1 Liquidity requires policies and procedures for (i) Washington, DC 20549–1090. Requirement could be limited under the maintaining sufficient liquid resources All submissions should refer to File proposal.64 to effect same-day settlement of Number SR–FICC–2017–002. This file payment obligations in the event of a IV. Proceedings To Determine Whether number should be included on the default of the participant family that To Approve or Disapprove the subject line if email is used. To help the would generate the largest aggregate Proposed Rule Change and Grounds for Commission process and review your payment obligation for the covered Disapproval Under Consideration comments more efficiently, please use clearing agency in extreme but plausible only one method. The Commission will The Commission is instituting 71 market conditions; (ii) holding post all comments on the Commission’s proceedings pursuant to Section qualifying liquid resources sufficient to 19(b)(2)(B) of the Act 65 to determine Internet Web site (http://www.sec.gov/ satisfy payment obligations owed to rules/sro.shtml). Copies of the whether the Proposed Rule Change 72 clearing members; (iii) undertaking submission, all subsequent should be approved or disapproved. due diligence to confirm that FICC has amendments, all written statements Institution of proceedings is appropriate a reasonable basis to believe each of its with respect to the Proposed Rule at this time in view of the legal and liquidity providers, whether or not such Change that are filed with the policy issues raised by the Proposed liquidity provider is a clearing member, Commission, and all written Rule Change. As noted above, has (a) sufficient information to communications relating to the institution of proceedings does not understand and manage the liquidity Proposed Rule Change between the indicate that the Commission has provider’s liquidity risks and (b) the Commission and any person, other than reached any conclusions with respect to capacity to perform as required under those that may be withheld from the any of the issues involved. Rather, the 73 its commitments to provide liquidity; public in accordance with the Commission seeks and encourages and (iv) maintaining and testing with provisions of 5 U.S.C. 552, will be interested persons to comment on the each liquidity provider, to the extent available for Web site viewing and Proposed Rule Change, and provide practicable, FICC’s procedures and printing in the Commission’s Public arguments to support the Commission’s operational capacity for accessing its Reference Room, 100 F Street NE., analysis as to whether to approve or 74 relevant liquid resources. Washington, DC 20549, on official disapprove the Proposed Rule Change. business days between the hours of Pursuant to Section 19(b)(2)(B) of the V. Request for Written Comments 10:00 a.m. and 3:00 p.m. Copies of such Act,66 the Commission is providing The Commission requests that filings also will be available for notice of the grounds for disapproval interested persons provide written inspection and copying at the principal under consideration. The Commission is submissions of their views, data, and office of FICC and on DTCC’s Web site instituting proceedings to allow for arguments with respect to issues raised (http://dtcc.com/legal/sec-rule- additional analysis of the Proposed Rule by the Proposed Rule Change. In filings.aspx). All comments received Change’s consistency with the Act and particular, the Commission invites the will be posted without change; the the rules thereunder. Specifically, the written views of interested persons Commission does not edit personal Commission believes that the Proposed concerning whether the Proposed Rule identifying information from Rule Change raises questions as to Change is consistent with Sections submissions. You should submit only whether it is consistent with (i) Section 17A(b)(3)(F) and 17A(b)(3)(I) of the Act, information that you wish to make 17A(b)(3)(F) of the Act,67 which 68 available publicly. 15 U.S.C. 78q–1(b)(3)(I). All submissions should refer to File 62 Id. at 8–9. 69 17 CFR 240.17Ad–22(e)(7). 63 Id. at 9–10. 70 Id. Number SR–FICC–2017–002 and should 64 Id. 71 17 CFR 240.17Ad–22(e)(7)(i). be submitted on or before June 19, 2017. 65 15 U.S.C. 78s(b)(2)(B). 72 17 CFR 240.17Ad–22(e)(7)(ii). If comments are received, any rebuttal 66 Id. 73 17 CFR 240.17Ad–22(e)(7)(iv). comments should be submitted on or 67 15 U.S.C. 78q–1(b)(3)(F). 74 17 CFR 240.17Ad–22(e)(7)(v). before June 23, 2017.

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For the Commission, by the Division of Consideration will be given to the Fund are collectively referred to Trading and Markets, pursuant to delegated comments and suggestions submitted in herein as the ‘‘Shares.’’ authority.75 writing within 60 days of this The text of the proposed rule change Eduardo A. Aleman, publication. is available on the Exchange’s Web site Assistant Secretary. The Commission may not conduct or at http://nasdaq.cchwallstreet.com, at [FR Doc. 2017–11471 Filed 6–1–17; 8:45 am] sponsor a collection of information the principal office of the Exchange, and BILLING CODE 8011–01–P unless it displays a currently valid at the Commission’s Public Reference control number. No person shall be Room. subject to any penalty for failing to II. Self-Regulatory Organization’s SECURITIES AND EXCHANGE comply with a collection of information COMMISSION Statement of the Purpose of, and subject to the PRA that does not display Statutory Basis for, the Proposed Rule a valid Office of Management and Change Proposed Collection; Comment Budget (OMB) control number. Request Please direct your written comments In its filing with the Commission, the Upon Written Request Copies Available to: Pamela Dyson, Director/Chief Exchange included statements From: Securities and Exchange Information Officer, Securities and concerning the purpose of and basis for Commission, Office of FOIA Services, Exchange Commission, c/o Remi Pavlik- the proposed rule change and discussed 100 F Street NE., Washington, DC Simon, 100 F St. NE., Washington, DC any comments it received on the 20549–2736 20549 or send an email to: PRA_ proposed rule change. The text of these [email protected]. statements may be examined at the Extension: places specified in Item IV below. The Rule 17g–1 and Form NRSRO, SEC File No. Dated: May 30, 2017. Exchange has prepared summaries, set 270–563, OMB Control No. 3235–0625 Eduardo A. Aleman, forth in sections A, B, and C below, of Notice is hereby given that pursuant Assistant Secretary. the most significant aspects of such to the Paperwork Reduction Act of 1995 [FR Doc. 2017–11466 Filed 6–1–17; 8:45 am] statements. (44 U.S.C. 3501 et seq.), the Securities BILLING CODE 8011–01–P and Exchange Commission A. Self-Regulatory Organization’s (‘‘Commission’’) is soliciting comments Statement of the Purpose of, and on the existing collection of information SECURITIES AND EXCHANGE Statutory Basis for, the Proposed Rule provided for in Rule 17g–1, Form COMMISSION Change NRSRO and Instructions to Form [Release No. 34–80802; File No. SR– 1. Purpose NRSRO under the Securities Exchange NASDAQ–2017–038] Act of 1934 (15 U.S.C. 78a et seq.).1 The The Commission has approved the listing and trading of Shares under Commission plans to submit this Self-Regulatory Organizations; The existing collection of information to the Nasdaq Rule 5735, which governs the NASDAQ Stock Market LLC; Notice of listing and trading of Managed Fund Office of Management and Budget for Filing of Proposed Rule Change 3 extension and approval. Shares on the Exchange. However, no Relating to the First Trust Municipal Shares are currently listed and traded Rule 17g–1, Form NRSRO and the High Income ETF Instructions to Form NRSRO contain on the Exchange. The Exchange believes certain recordkeeping and disclosure May 26, 2017. the proposed rule change reflects no requirements for nationally recognized Pursuant to Section 19(b)(1) of the significant issues not previously statistical rating organizations Securities Exchange Act of 1934 addressed in the Prior Release. The Fund is an actively-managed (‘‘NRSROs’’). Currently, there are 10 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 exchange-traded fund (‘‘ETF’’). The credit rating agencies registered as notice is hereby given that on May 16, Shares will be offered by the Trust, NRSROs with the Commission. Based 2017, The NASDAQ Stock Market LLC which was established as a on staff experience, NRSROs are (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Massachusetts business trust on January estimated to spend annually a total Securities and Exchange Commission 9, 2008. The Trust, which is registered industry-wide burden of 2,527 hours (‘‘SEC’’ or ‘‘Commission’’) the proposed with the Commission as an investment and external cost of $4,000 to comply rule change as described in Items I and company under the Investment with the requirements. II below, which Items have been Company Act of 1940 (the ‘‘1940 Act’’), Written comments are invited on: (a) prepared by the Exchange. The has filed a registration statement on Whether the proposed collection of Commission is publishing this notice to Form N–1A (‘‘Registration Statement’’) information is necessary for the proper solicit comments on the proposed rule performance of the functions of the relating to the Fund with the change from interested persons. 4 Commission, including whether the Commission. The Fund is a series of information shall have practical utility; I. Self-Regulatory Organization’s the Trust. (b) the accuracy of the Commission’s Statement of the Terms of Substance of the Proposed Rule Change 3 The Commission approved Nasdaq Rule 5735 in estimates of the burden of the proposed Securities Exchange Act Release No. 57962 (June collection of information; (c) ways to Exchange’s proposed rule change 13, 2008), 73 FR 35175 (June 20, 2008) (SR– enhance the quality, utility, and clarity relating to the First Trust Municipal NASDAQ–2008–039). The Commission previously of the information on respondents; and High Income ETF (the ‘‘Fund’’) of First approved the listing and trading of the Shares of the Fund. See Securities Exchange Act Release No. (d) ways to minimize the burden of the Trust Exchange-Traded Fund III (the 78913 (September 23, 2016), 81 FR 69109 (October collection of information on ‘‘Trust’’), the shares of which have been 5, 2016) (SR–NASDAQ–2016–002) (‘‘Prior respondents, including through the use approved by the Commission for listing Release’’). of automated collection techniques or and trading under Nasdaq Rule 5735 4 See Post-Effective Amendment No. 27 to other forms of information technology. (‘‘Managed Fund Shares’’). The shares of Registration Statement on Form N–1A for the Trust, dated August 31, 2015 (File Nos. 333–176976 and 811–22245). The descriptions of the Fund and the 75 17 CFR 200.30–3(a)(57). 1 15 U.S.C. 78s(b)(1). Shares contained herein are based, in part, on 1 See 17 CFR 240.17g–1 and 17 CFR 249b.300. 2 17 CFR 240.19b–4. information in the Registration Statement. Before

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The primary purpose of this proposed will be invested in ‘‘highly liquid derivatives by permitting it to invest in rule change is to modify certain investments’’; 7 and (d) limit ‘‘illiquid over-the-counter (‘‘OTC’’) forward representations set forth in the Prior investments’’ 8 to 15% of net assets. contracts and OTC swaps, subject to a Release. Since the Prior Release, in Additionally, the Adviser took into limitation that would be consistent with evaluating its ability to construct a account that recent increases in interest the limitation on investments in OTC portfolio that would both enable the rates have been accompanied by derivatives set forth in Nasdaq Rule Fund to pursue its investment objectives substantial outflows from mutual funds 5735(b)(1)(E) under the Active ETF effectively and satisfy the and ETFs, and that future interest rate Generic Listing Standards (‘‘Rule representations set forth in the Prior swings may spark increased market 5735(b)(1)(E)’’). Release, the Adviser determined that, volatility and trigger potentially Changes to Representations based on certain factors, including dramatic inflows and outflows.9 To regulatory and market developments enable the Fund to operate effectively The Prior Release noted that the Fund with portfolio management (including, in addition to pursuing its would be actively managed and not tied implications, additional flexibility investment objectives, complying with to an index, but that under normal would be needed to launch and operate the Liquidity Rule and responding to market conditions, on a continuous the Fund. In particular, in October 2016, potential market volatility), the Adviser basis determined at the time of the Commission adopted a new rule believes that additional portfolio purchase, its portfolio of Municipal (i.e., Rule 22e–4 under the 1940 Act, management flexibility is needed and Securities (as defined in the Prior referred to as the ‘‘Liquidity Rule’’) that warranted. Additionally, for the reasons Release) would generally meet, as will generally require ETFs (as well as discussed in more detail below, the applicable, all except for two of the mutual funds) to establish liquidity risk Exchange believes that the proposal is criteria for non-actively managed, management programs that include a consistent with Section 6(b)(5) of the index-based, fixed income ETFs number of specified elements and may Act. contained in Nasdaq Rule 5705(b)(4)(A), significantly impact funds’ investment As a related matter, the Exchange as described therein. More specifically, activities.5 Among other things, funds notes that although the Prior Release the Prior Release stated that, under will generally be required to (a) assess, included certain representations that normal market conditions, the Fund’s manage and periodically review their were based on the generic listing portfolio of Municipal Securities would liquidity risk; 6 (b) classify each of their standards for index-based ETFs, the meet the requirements of: (i) Nasdaq portfolio investments into one of four Exchange’s ‘‘generic listing standards’’ Rule 5705(b)(4)(A)(i) (requiring that the liquidity categories based on the for actively-managed ETFs (the ‘‘Active index or portfolio consist of ‘‘Fixed number of days in which the fund ETF Generic Listing Standards’’) 10 were Income Securities’’); (ii) Nasdaq Rule reasonably expects the investment recently adopted and, with one 5705(b)(4)(A)(iv) (requiring that no would be convertible to cash (or sold or exception, the Fund’s proposed revised component fixed income security disposed of, as applicable) in current representations would meet or exceed (excluding Treasury securities) market conditions without significantly similar requirements for portfolios of represent more than 30% of the weight changing the market value of the fixed income securities set forth in of the index or portfolio, and that the investment (i.e., highly liquid Nasdaq Rule 5735(b)(1)(B) under the five highest weighted component fixed investments, moderately liquid Active ETF Generic Listing Standards income securities do not, in the investments, less liquid investments, (‘‘Rule 5735(b)(1)(B)’’). In addition, this aggregate, account for more than 65% of and illiquid investments); (c) determine proposed rule change would make the weight of the index or portfolio); a minimum percentage of net assets that certain changes to the description of the and (iii) Nasdaq Rule 5705(b)(4)(A)(v) Fund’s investments to achieve better (requiring that an underlying index or Shares are publicly offered, the Trust will file a consistency with the proposed new portfolio (excluding one consisting post-effective amendment to its Registration representations. Further, to provide the entirely of exempted securities) include Statement. The changes in this proposed rule Adviser with greater flexibility in securities from a minimum of 13 non- change will not be implemented for the Fund until the post-effective amendment to the Registration hedging interest rate risks associated affiliated issuers) (collectively, the Statement becomes effective. First Trust Advisors with the Fund’s portfolio investments, ‘‘Rule 5705-Related Representations’’). L.P. (the ‘‘Adviser’’) represents that the Adviser will this proposed rule change would Additionally, the Prior Release noted not implement the changes described herein until expand the Fund’s ability to invest in that Nasdaq Rule 5705(b)(4)(A)(iii) the instant proposed rule change is operative. (relating to convertible securities) was 5 See Investment Company Act Release No. 32315 (October 13, 2016), 81 FR 82142 (November 18, 7 ‘‘Highly liquid investment’’ generally means any inapplicable to the Fund’s portfolio of 2016). Funds (except for smaller entities) will cash held by a fund and any investment that the Municipal Securities. Further, the Prior generally be required to comply with the liquidity fund reasonably expects to be convertible into cash Release provided that the Fund’s risk management program requirements by in current market conditions in three business days portfolio of Municipal Securities may December 1, 2018. Although funds that qualify as or less without the conversion to cash significantly ‘‘in-kind ETFs’’ will be exempt from certain of the changing the market value of the investment. See not satisfy 5705(b)(4)(A)(vi) (requiring Liquidity Rule’s requirements, as noted in the Prior Rule 22e–4(a)(6). that component securities that in the Release, the Fund is typically expected to effect 8 ‘‘Illiquid investment’’ generally means any aggregate account for at least 90% of the creations and redemptions on a cash basis. investment that the fund reasonably expects cannot weight of the index or portfolio be either 6 ‘‘Liquidity risk’’ means the risk that the fund be sold or disposed of in current market conditions could not meet requests to redeem shares issued by in seven calendar days or less without the sale or exempted securities or from a specified the fund without significant dilution of remaining disposition significantly changing the market value type of issuer) and that it would not investors’ interests in the fund. See Rule 22e– of the investment. See Rule 22e–4(a)(8). generally satisfy Rule 5705(b)(4)(A)(ii) 4(a)(11). Funds will be required to consider various 9 It should also be noted that the Liquidity Rule (requiring that components that in the factors including, for ETFs, (i) the relationship requires that in conjunction with assessing, between the ETF’s portfolio liquidity and the way managing and reviewing liquidity risk, a fund aggregate account for at least 75% of the in which, and the prices and spreads at which, ETF consider certain factors, including investment weight of the index or portfolio have a shares trade, including, the efficiency of the strategy and liquidity of portfolio investments minimum original principal amount arbitrage function and the level of active during both normal and reasonably foreseeable outstanding of $100 million or more). participation by market participants (including stressed conditions. See Rule 22e–4(b)(1)(i)(A). authorized participants); and (ii) the effect of the 10 See Securities Exchange Act Release No. 78918 However, the Prior Release stated that composition of baskets on the overall liquidity of (September 23, 2016), 81 FR 67033 (September 29, under normal market conditions, at least the ETF’s portfolio. See Rule 22e–4(b)(1)(i)(D). 2016). 40% (based on dollar amount invested)

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of the Municipal Securities in which the dollar amount invested) to (a) at least 10 be deleted and (b) the representations Fund invested would be issued by different industries (with no more than included in the next two paragraphs issuers with total outstanding debt 25% of the value of the Fund’s net (referred to as the ‘‘New issuances that, in the aggregate, have a assets comprised of Municipal Representations’’) would be added. minimum amount of municipal debt Securities that provide exposure to any Further, the Exchange notes that the outstanding at the time of purchase of single industry) and (b) at least 15 New Representations have been $75 million or more (the ‘‘40/75 different states (with no more than 30% designed to correspond to the Representation’’).11 of the value of the Fund’s net assets requirements of Rule 5735(b)(1)(B), as In addition to the Rule 5705-Related comprised of Municipal Securities that these are more readily adapted to the Representations and the 40/75 provide exposure to any single state) Fund (as an actively-managed ETF) than Representation, the Prior Release (collectively, the ‘‘Industry/State the generic listing standards for index- provided that under normal market Representations’’). Additionally, the based ETFs upon which the Rule 5705- conditions, except for the initial invest- Prior Release stated that under normal Related Representations were based. up period and periods of high cash market conditions, except for the initial Although as described below, certain inflows or outflows,12 the Fund’s invest-up period and periods of high of the New Representations would meet investments in Municipal Securities cash inflows or outflows, (a) with or exceed similar requirements set forth would provide exposure (based on respect to 75% of the Fund’s net assets, in Rule 5735(b)(1)(B), it is not the Fund’s exposure to any single anticipated that the Fund would meet 11 As noted in the Prior Release, the Commission borrower (based on dollar amount the requirement that components that in has previously issued orders approving proposed invested) would not exceed 3% of the rule changes relating to the listing and trading the aggregate account for at least 75% of under NYSE Arca Equities Rule 5.2(j)(3), value of the Fund’s net assets and (b) the fixed income weight of the portfolio Commentary .02 (which governs the listing and with respect to 15% of the Fund’s net each have a minimum original principal trading of fixed-income index ETFs on NYSE Arca, assets, the Fund’s exposure to any single amount outstanding of $100 million or Inc.) to various ETFs that track indexes comprised borrower (based on dollar amount of municipal securities (including high-yield more (the ‘‘Generic 100 municipal index ETFs) that did not meet the invested) would not exceed 5% of the Requirement’’).13 In general terms, the analogous requirement included in Commentary value of the Fund’s net assets Fund would operate as an actively- .02(a)(2) to NYSE Arca Equities Rule 5.2(j)(3), but (collectively, the ‘‘Borrower Exposure managed ETF that normally invests in a demonstrated that the portfolio of municipal Representations’’). securities in which the ETFs would invest would portfolio of Municipal Securities (as be sufficiently liquid (including Securities The Prior Release also provided that defined in the Prior Release, with the Exchange Act Release Nos. 75376 (July 7, 2015), 80 under normal market conditions, except modification described below). The FR 40113 (July 13, 2015) (SR–NYSEArca–2015–18) for the initial invest-up period and Adviser notes that debt issuance sizes (order approving listing and trading of Vanguard periods of high cash inflows or Tax-Exempt Bond Index Fund); 71232 (January 3, for municipal obligations are generally 2014), 79 FR 1662 (January 9, 2014) (SR– outflows, (a) with respect to the smaller than for corporate obligations.14 NYSEArca–2013–118) (order approving listing and Municipal Securities in which the Fund Furthermore, as a general matter, trading of Market Vectors Short High-Yield invested that were rated investment municipal borrowers in certain Municipal Index ETF); and 63881 (February 9, grade by each nationally recognized 2011), 76 FR 9065 (February 16, 2011) (SR– industries in which the Fund currently NYSEArca–2010–120) (order approving listing and statistical rating organization intends to invest significantly 15 tend to trading of SPDR Nuveen S&P High Yield Municipal (‘‘NRSRO’’) rating such securities, at the have less outstanding debt than Bond ETF)). See also Securities Exchange Act time of purchase, the applicable municipal borrowers in other municipal Release Nos. 67985 (October 4, 2012), 77 FR 61804 borrower would be obligated to pay debt (October 11, 2012) (SR–NYSEArca–2012–92) (order industries. Therefore, under normal approving listing and trading of iShares 2018 S&P service on issues of municipal market conditions, except for the initial AMT-Free Municipal Series and iShares 2019 S&P obligations that have an aggregate invest-up period and periods of high AMT-Free Municipal Series); 72464 (June 25, 2014), principal amount outstanding of $100 16 79 FR 37373 (July 1, 2014) (SR–NYSEArca–2014– cash inflows or outflows, at least 40% million or more and (b) with respect to (based on dollar amount invested) of the 45) (order approving continued listing and trading all other Municipal Securities in which of PowerShares Insured California Municipal Bond Municipal Securities in which the Fund Portfolio, PowerShares Insured National Municipal the Fund invested (referred to as invests 17 would be issued by issuers Bond Portfolio and PowerShares Insured New York ‘‘Clause B Munis’’), at the time of Municipal Bond Portfolio); 72523 (July 2, 2014), 79 purchase of a Clause B Muni, the 13 FR 39016 (July 9, 2014) (SR–NYSEArca–2014–37) See Nasdaq Rule 5735(b)(1)(B)(i). borrowers of all Clause B Munis held by 14 (order approving listing and trading of iShares 2020 As indicated above in note 11, various ETFs S&P AMT-Free Municipal Series); 75468 (July 16, the Fund, in the aggregate, would have seeking to track indexes comprised of municipal 2015), 80 FR 43500 (July 22, 2015) (SR–NYSEArca– a weighted average of principal securities have previously sought and obtained 2015–25) (order approving listing and trading of municipal debt outstanding of $50 approval by the Commission of proposed rule changes because they would not meet the iShares iBonds Dec 2021 AMT-Free Muni Bond million or more (collectively, the ETF and iShares iBonds Dec 2022 AMT-Free Muni requirement under the applicable generic listing Bond ETF); 78329 (July 14, 2016), 81 FR 47217 (July ‘‘Borrower Debt Representations’’ and, standards that is similar to the Generic 100 20, 2016) (SR–BatsBZX–2016–01) (order approving together with the Borrower Exposure Requirement. listing and trading of VanEck Vectors AMT-Free 6– Representations, the Industry/State 15 These industries include charter schools, senior 8 Year Municipal Index ETF, VanEck Vectors AMT- Representations, the 40/75 living facilities (i.e., continuing care retirement Free 8–12 Year Municipal Index ETF, and VanEck communities (‘‘CCRCs’’)) and special tax districts, Vectors AMT-Free 12–17 Year Municipal Index Representation and the Rule 5705- among others. As noted in the Prior Release, in the ETF); and 79885 (January 26, 2017), 82 FR 8963 Related Representations, the ‘‘Prior case of a municipal conduit financing (in general (February 1, 2017) (SR–NYSEArca–2016–100) Representations’’). terms, the issuance of municipal securities by an (order approving listing and trading of Direxion As indicated above, the Adviser has issuer to finance a project to be used primarily by Daily Municipal Bond Taxable Bear 1X Fund). reconsidered the Prior Representations a third party (the ‘‘conduit borrower’’)), the 12 As described in the Prior Release, the term ‘‘borrower’’ is the conduit borrower (i.e., the party ‘‘initial invest-up period’’ means the six-week and concluded that additional flexibility on which a bondholder must rely for repayment) period following the commencement of trading of will be needed to launch and operate and in the case of other municipal financings, the Shares on the Exchange and the term ‘‘periods of the Fund. As a result, in this proposed ‘‘borrower’’ is the issuer of the municipal securities. high cash inflows or outflows’’ means rolling rule change, the Exchange is proposing 16 See note 12 regarding the meaning of the terms periods of seven calendar days during which ‘‘initial invest-up period’’ and ‘‘periods of high cash inflows or outflows of cash, in the aggregate, exceed that, going forward: (a) The Prior inflows or outflows.’’ 10% of the Fund’s net assets as of the opening of Representations, except for the 17 For the avoidance of doubt, in the case of business on the first day of such periods. Industry/State Representations, would Municipal Securities that are issued by entities

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with total outstanding debt issuances Under normal market conditions, Moreover, under normal market that, in the aggregate, have a minimum except for the initial invest-up period conditions, except for the initial invest- amount of municipal debt outstanding and periods of high cash inflows or up period and periods of high cash at the time of purchase of $50 million outflows,20 no component fixed income inflows or outflows,24 component or more (the ‘‘40/50 Representation’’). security (excluding the U.S. government securities that in the aggregate account Based on its expertise and securities described under the heading for at least 90% of the weight of the understanding of the municipal ‘‘Other Investments’’ in the Prior Fund’s portfolio of Municipal Securities securities market and the manner in Release) would represent more than would be exempted securities as which municipal securities generally 15% of the Fund’s net assets, and the defined in Section 3(a)(12) of the Act trade, the Adviser believes that, five most heavily weighted component (the ‘‘Exempted Securities notwithstanding both the previous more fixed income securities in the Fund’s Representation’’).25 Additionally, to the stringent 40/75 Representation and the portfolio (excluding U.S. government extent the Fund invests in Municipal Generic 100 Requirement, the 40/50 securities) would not, in the aggregate, Securities that are mortgage-backed or Representation is appropriate in light of account for more than 25% of the asset-backed securities, such the Fund’s investment objectives and Fund’s net assets.21 Further, under investments would not account, in the the manner in which the Fund intends normal market conditions, except for aggregate, for more than 20% of the to pursue them.18 Given the nature of the initial invest-up period and periods weight of the fixed income portion of the municipal securities market and the of high cash inflows or outflows,22 the the Fund’s portfolio.26 manner in which municipal securities Fund’s portfolio of Municipal Securities The New Representations differ from generally trade, the expected availability would include securities from a the Prior Representations and do not, in of Municipal Securities that would minimum of 30 non-affiliated issuers.23 certain respects, comply with Rule satisfy the Fund’s investment 5735(b)(1)(B) (particularly with respect parameters, and the debt issuance Bond Strategy Fund and PIMCO Intermediate to the Generic 100 Requirement). profiles of the corresponding issuers Municipal Bond Strategy Fund); 71617 (February However, taking into account the nature 26, 2014), 79 FR 12257 (March 4, 2014) (SR– and borrowers, the 40/50 Representation NYSEArca–2013–135) (order approving listing and of the municipal securities market and should both provide the Fund with trading of db-X Managed Municipal Bond Fund); the manner in which municipal flexibility to construct its portfolio and, 71913 (April 9, 2014), 79 FR 21333 (April 15, 2014) securities generally trade, in light of the when combined with the Industry/State (SR–NASDAQ–2014–019) (order approving listing and trading of First Trust Managed Municipal ETF); requirements that the New Representations and the other New and 79293 (November 10, 2016), 81 FR 81189 Representations and the Industry/State Representations included in this filing (November 17, 2016) (SR–NYSEArca–2016–107) Representations would impose (e.g., (including certain representations set (order approving listing and trading of Cumberland concerning municipal debt outstanding, forth below pertaining to fixed income Municipal Bond ETF). 20 fixed income securities weightings, securities weightings and number of See note 12 regarding the meaning of the terms ‘‘initial invest-up period’’ and ‘‘periods of high cash issuer diversification, the nature of the non-affiliated issuers that are based on, inflows or outflows.’’ securities in which the Fund would but more stringent than, as applicable, 21 See the Active ETF Generic Listing Standards invest (including representations the requirements set forth in Rule requirement set forth in Nasdaq Rule relating to exempted securities and 5735(b)(1)(B)), should support the 5735(b)(1)(B)(ii), which provides that no component fixed income security (excluding U.S. Treasury mortgage-backed and asset-backed potential for diversity and liquidity, securities and government-sponsored entity securities), and exposure to industries thereby mitigating the Commission’s (‘‘GSE’’) securities) may represent more than 30% and states), they should provide support concerns about manipulation.19 of the fixed income weight of the portfolio, and that regarding the anticipated diversity and the five most heavily weighted component fixed income securities in the portfolio (excluding U.S. liquidity of the Fund’s Municipal whose underlying assets are municipal bonds Treasury securities and GSE securities) may not in Securities portfolio and should mitigate (‘‘Municipal Entities’’), the underlying municipal the aggregate account for more than 65% of the the risks associated with manipulation, bonds would be taken into account. fixed income weight of the portfolio. For the 18 The Adviser notes that individual issues of avoidance of doubt, in the case of Municipal while also providing the Adviser with municipal securities represented by CUSIPs (i.e., Securities that are issued by Municipal Entities, the the necessary flexibility to operate the the specific identifying numbers for securities) may underlying municipal bonds would be taken into Fund as intended. be placed into categories according to common account. characteristics (such as rating, geographical region, 22 See note 12 regarding the meaning of the terms Changes to Description of Certain Fund purpose, and maturity). Municipal securities that ‘‘initial invest-up period’’ and ‘‘periods of high cash Investments share similar characteristics generally tend to trade inflows or outflows.’’ similarly to one another; therefore, within these 23 For the avoidance of doubt, in the case of The Prior Release stated that under categories, issues may be considered somewhat Municipal Securities that are issued by Municipal normal market conditions, the Fund fungible from a portfolio management perspective, Entities, the underlying municipal bonds would be allowing one CUSIP to be represented by another would seek to achieve its investment taken into account. Additionally, for purposes of objectives by investing at least 80% of that shares similar characteristics for purposes of this restriction, each state and each separate developing an investment strategy. Moreover, when political subdivision, agency, authority, or its net assets (including investment municipal securities are close substitutes for one instrumentality of such state, each multi-state borrowings) in municipal debt securities another, pricing vendors may be able to use agency or authority, and each guarantor, if any, executed trade information from similar municipal would be treated as separate, non-affiliated issuers Securities Representation below (which refers to securities as pricing inputs for an individual of Municipal Securities. The Active ETF Generic 90% of the weight of the Fund’s portfolio of security. This can make individual securities more Listing Standards requirement set forth in Nasdaq Municipal Securities). liquid because valuations for a single security are Rule 5735(b)(1)(B)(iii) provides that generally, an 24 generally better estimators of actual trading prices underlying portfolio (excluding exempted See note 12 regarding the meaning of the terms when they are informed by trades in a large group securities) that includes fixed income securities ‘‘initial invest-up period’’ and ‘‘periods of high cash of closely related securities. must include a minimum of 13 non-affiliated inflows or outflows.’’ 19 The Exchange notes that, in addition to issuers. Although not required, if the Fund’s 25 See the Active ETF Generic Listing Standards approving the Fund in the Prior Release, the portfolio of Municipal Securities is comprised requirement set forth in Nasdaq Rule Commission has also approved for listing and entirely of securities that meet the definition of 5735(b)(1)(B)(iv)(d). For the avoidance of doubt, in trading shares of other actively-managed ETFs that ‘‘municipal securities’’ set forth in Section 3(a)(29) the case of Municipal Securities that are issued by principally hold municipal securities. See, e.g., of the Act, then such portfolio would also be Municipal Entities, the underlying municipal bonds Securities Exchange Act Release Nos. 60981 comprised entirely of ‘‘exempted securities’’ as would be taken into account. (November 10, 2009), 74 FR 59594 (November 18, defined in Section 3(a)(12) of the Act and, therefore, 26 See the Active ETF Generic Listing Standards 2009) (SR–NYSEArca–2009–79) (order approving the requirements of Rule 5735(b)(1)(B)(iii) would requirement set forth in Nasdaq Rule listing and trading of PIMCO Short Term Municipal not pertain to such portfolio; see the Exempted 5735(b)(1)(B)(v).

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that pay interest that is exempt from net assets’’ with the following: ‘‘Under Pricing Services (as defined in the Prior regular federal income taxes which are normal market conditions, except for Release). ‘‘exempted securities’’ under Section the initial invest-up period and periods The Adviser represents that there 3(a)(12) of the Act (collectively, of high cash inflows or outflows, the would be no change to the Fund’s ‘‘Municipal Securities’’). In light of the Fund may not invest more than 35% of investment objectives. Except as Exempted Securities Representation, its net assets’’.28 provided herein, all other facts going forward, the Exchange proposes to presented and representations made in Changes To Expand Permitted revise the foregoing by deleting the the Prior Release would remain Derivatives Investments phrase ‘‘which are ‘exempted securities’ unchanged. The Fund and the Shares under Section 3(a)(12) of the Act.’’ In As described in the Prior Release, the would comply with all initial and addition, the Prior Release stated that Fund may (i) invest in exchange-listed continued listing requirements under the Fund ‘‘may invest up to 20% of its options on U.S. Treasury securities, Nasdaq Rule 5735. exchange-listed options on U.S. net assets in short-term debt 2. Statutory Basis instruments . . ., taxable municipal Treasury futures contracts, and securities or tax-exempt municipal exchange-listed U.S. Treasury futures Nasdaq believes that the proposal is securities that are not exempted contracts (collectively, the ‘‘Listed consistent with Section 6(b) of the Act securities under Section 3(a)(12) under Derivatives’’) and (ii) acquire short in general and Section 6(b)(5) of the Act, the Act, or it may hold cash.’’ Going positions in the Listed Derivatives. No in particular, in that it is designed to forward, the Exchange proposes to changes are being proposed with respect prevent fraudulent and manipulative revise the foregoing by replacing the to the Fund’s investments in the Listed acts and practices, to promote just and phrase ‘‘taxable municipal securities or Derivatives. Going forward, however, equitable principles of trade, to foster tax-exempt municipal securities that are the Exchange proposes that the Fund’s cooperation and coordination with not exempted securities under Section ability to invest in derivatives would be persons engaged in facilitating 3(a)(12) under the Act,’’ with the phrase expanded to permit it to also invest in transactions in securities, and to remove ‘‘and taxable municipal securities and OTC forward contracts and OTC swaps impediments to and perfect the other municipal securities that are not (collectively, the ‘‘OTC Derivatives’’) to mechanism of a free and open market Municipal Securities,’’. hedge interest rate risks associated with and, in general, to protect investors and Additionally, the Prior Release stated the Fund’s portfolio investments. the public interest. Except as provided that under normal market conditions, On both an initial and continuing herein, all other facts presented and the Fund would invest at least 65% of basis, no more than 20% of the assets representations made in the Prior its net assets in Municipal Securities in the Fund’s portfolio would be Release would remain unchanged. The that are, at the time of investment, rated invested in the OTC Derivatives and, for Fund would comply with all the initial below investment grade (i.e., not rated purposes of calculating this limitation, and continued listing requirements Baa3/BBB¥or above) by at least one the Fund’s investment in the OTC under Nasdaq Rule 5735. NRSRO rating such securities (or Derivatives would be calculated as the The Exchange believes that the Municipal Securities that are unrated aggregate gross notional value of the proposed rule change is designed to and determined by the Adviser to be of OTC Derivatives.29 The Fund would prevent fraudulent and manipulative comparable quality) (the ‘‘65% only enter into transactions in the OTC acts and practices in that the Shares Requirement’’). The Prior Release also Derivatives with counterparties that the would be listed and traded on the provided that the Fund could invest up Adviser reasonably believes are capable Exchange pursuant to the initial and to 35% of its net assets in ‘‘investment of performing under the applicable continued listing criteria in Nasdaq Rule 30 grade’’ Municipal Securities (meaning contract or agreement. The Fund’s 5735 and, except as provided herein, all Municipal Securities that are, at the investments in both Listed Derivatives other facts presented and time of investment, rated investment and OTC Derivatives would be representations made in the Prior grade (i.e., rated Baa3/BBB¥or above) consistent with the Fund’s investment Release would remain unchanged. The by each NRSRO rating such securities objectives and the 1940 Act and would Exchange notes that Shares have not yet (or Municipal Securities that are not be used to seek to achieve a multiple been listed on the Exchange. Consistent unrated and determined by the Adviser or inverse multiple of an index. with the Prior Release, the Exchange to be of comparable quality)) (the ‘‘35% The OTC Derivatives would typically represents that trading in the Shares Limitation’’). Going forward, for be valued using information provided would be subject to the existing trading by a Pricing Service (as defined in the consistency with various other surveillances, administered by both Prior Release). Pricing information for representations, the Exchange proposes Nasdaq and also the Financial Industry the OTC Derivatives would be available to modify the beginning of the 65% Regulatory Authority (‘‘FINRA’’), on from major broker-dealer firms and/or Requirement by replacing the phrase behalf of the Exchange, which are major market data vendors and/or ‘‘Under normal market conditions, the designed to detect violations of Fund will invest at least 65% of its net Exchange rules and applicable federal 28 Id. securities laws. assets’’ with the following: ‘‘Under 29 This limitation is consistent with the limitation normal market conditions, except for The proposed rule change is designed set forth in Rule 5735(b)(1)(E). to promote just and equitable principles the initial invest-up period and periods 30 The Fund would seek, where possible, to use of high cash inflows or outflows, the counterparties, as applicable, whose financial status of trade and to protect investors and the Fund will invest at least 65% of its net is such that the risk of default is reduced; however, public interest in that the Adviser the risk of losses resulting from default is still represents that taking into account the assets’’.27 Similarly the Exchange possible. The Adviser would evaluate the nature of the municipal securities proposes to modify the beginning of the creditworthiness of counterparties on an ongoing market and the manner in which 35% Limitation by replacing the phrase basis. In addition to information provided by credit agencies, the Adviser’s analysis would evaluate municipal securities generally trade, in ‘‘The Fund may invest up to 35% of its each approved counterparty using various methods light of the requirements that the New of analysis and may consider the Adviser’s past 27 See note 12 regarding the meaning of the terms experience with the counterparty, its known Representations and the Industry/State ‘‘initial invest-up period’’ and ‘‘periods of high cash disciplinary history and its share of market Representations would impose (e.g., inflows or outflows.’’ participation. concerning municipal debt outstanding,

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fixed income securities weightings, regarding the Fund and the Shares, up to 90 days (i) as the Commission may issuer diversification, the nature of the thereby promoting market transparency. designate if it finds such longer period securities in which the Fund would Moreover, the Intraday Indicative Value to be appropriate and publishes its invest (including representations (as described in the Prior Release), reasons for so finding or (ii) as to which relating to exempted securities and available on the NASDAQ OMX the self-regulatory organization mortgage-backed and asset-backed Information LLC proprietary index data consents, the Commission will: (a) By securities), and exposure to industries service, would be widely disseminated order approve or disapprove such and states), they should provide support by one or more major market data proposed rule change; or (b) institute regarding the anticipated diversity and vendors and broadly displayed at least proceedings to determine whether the liquidity of the Fund’s Municipal every 15 seconds during the Regular proposed rule change should be Securities portfolio and should mitigate Market Session. On each business day, disapproved. the risks associated with manipulation, before commencement of trading in IV. Solicitation of Comments while also providing the Adviser with Shares in the Regular Market Session on the necessary flexibility to operate the the Exchange, the Fund would disclose Interested persons are invited to Fund as intended. on its Web site the Disclosed Portfolio submit written data, views, and With one exception, the New that will form the basis for the Fund’s arguments concerning the foregoing, Representations would meet or exceed calculation of NAV at the end of the including whether the proposed rule similar requirements for portfolios of business day. change is consistent with the Act. fixed income securities set forth in Rule The proposed rule change is designed Comments may be submitted by any of 5735(b)(1)(B). In this regard, it is not to perfect the mechanism of a free and the following methods: anticipated that the Fund would meet open market and, in general, to protect Electronic Comments the Generic 100 Requirement. Based on investors and the public interest. The • its expertise and understanding of the Exchange notes that the Fund does not Use the Commission’s Internet comment form (http://www.sec.gov/ municipal securities market and the yet have publicly offered Shares and rules/sro.shtml); or manner in which municipal securities does not yet have Shares listed and • Send an email to rule-comments@ generally trade, the Adviser believes traded on the Exchange. Before Shares that, notwithstanding both the previous sec.gov. Please include File Number SR– are publicly offered, the Trust will file NASDAQ–2017–038 on the subject line. more stringent 40/75 Representation a post-effective amendment to its and the Generic 100 Requirement, the Registration Statement. The Shares will Paper Comments 40/50 Representation is appropriate in not be publicly offered until the post- • Send paper comments in triplicate light of the Fund’s investment objectives effective amendment to the Registration to Secretary, Securities and Exchange and the manner in which the Fund Statement becomes effective. Commission, 100 F Street NE., intends to pursue them. Further, given For the above reasons, Nasdaq Washington, DC 20549–1090. the nature of the municipal securities believes the proposed rule change is market and the manner in which All submissions should refer to File consistent with the requirements of Number SR–NASDAQ–2017–038. This municipal securities generally trade, the Section 6(b)(5) of the Act. expected availability of Municipal file number should be included on the Securities that would satisfy the Fund’s B. Self-Regulatory Organization’s subject line if email is used. To help the investment parameters, and the debt Statement on Burden on Competition Commission process and review your issuance profiles of the corresponding The Exchange does not believe that comments more efficiently, please use issuers and borrowers, the 40/50 the proposed rule change will impose only one method. The Commission will Representation should both provide the any burden on competition that is not post all comments on the Commission’s Fund with flexibility to construct its necessary or appropriate in furtherance Internet Web site (http://www.sec.gov/ portfolio and, when combined with the of the purposes of the Act. The rules/sro.shtml). Copies of the Industry/State Representations and the Exchange believes that the proposed submission, all subsequent other New Representations, should rule change would provide the Adviser amendments, all written statements support the potential for diversity and with the flexibility needed to proceed with respect to the proposed rule liquidity, thereby mitigating the with launching the Fund, change that are filed with the Commission’s concerns about accommodating the listing and trading Commission, and all written manipulation. of Managed Fund Shares for an communications relating to the Further, in connection with the additional actively-managed exchange- proposed rule change between the proposal to permit the Fund to invest in traded product, thereby enhancing Commission and any person, other than the OTC Derivatives, the Exchange notes competition among market participants, those that may be withheld from the that the ability to invest in the OTC to the benefit of investors and the public in accordance with the Derivatives would provide the Adviser marketplace. provisions of 5 U.S.C. 552, will be with additional flexibility in hedging available for Web site viewing and interest rate risks associated with the C. Self-Regulatory Organization’s printing in the Commission’s Public Fund’s portfolio investments and would Statement on Comments on the Reference Room, 100 F Street NE., be subject to a limitation that is Proposed Rule Change Received From Washington, DC 20549, on official consistent with the limitation set forth Members, Participants, or Others business days between the hours of in Rule 5735(b)(1)(E). Additionally, the No written comments were either 10:00 a.m. and 3:00 p.m. Copies of the Fund would only enter into transactions solicited or received. filing also will be available for in the OTC Derivatives with inspection and copying at the principal counterparties that the Adviser III. Date of Effectiveness of the office of the Exchange. All comments reasonably believes are capable of Proposed Rule Change and Timing for received will be posted without change; performing under the applicable Commission Action the Commission does not edit personal contract or agreement. Within 45 days of the date of identifying information from In addition, a large amount of publication of this notice in the Federal submissions. You should submit only information would be publicly available Register or within such longer period information that you wish to make

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available publicly. All submissions DEPARTMENT OF STATE format. Any person using e-filing should should refer to File Number SR– attach a document and otherwise [Public Notice: 10017] NASDAQ–2017–038 and should be comply with the instructions at the E– submitted on or before June 23, 2017. In the Matter of the Designation of Abu FILING link on the Board’s Web site, at http://www.stb.gov. Any person For the Commission, by the Division of Nidal Organization, Also Known as submitting a filing in the traditional Trading and Markets, pursuant to delegated ANO, Also Known as Black September, paper format should send an original authority.31 Also Known as the Fatah Revolutionary Council, Also Known as and 10 copies to: Surface Transportation Eduardo A. Aleman, Board, Attn: Docket No. EP 526 (Sub- Assistant Secretary. the Arab Revolutionary Council, Also Known as the Arab Revolutionary No. 9), 395 E Street SW., Washington, [FR Doc. 2017–11402 Filed 6–1–17; 8:45 am] Brigades, Also Known as the DC 20423–0001 (if sending via express BILLING CODE 8011–01–P Revolutionary Organization of Socialist company or private courier, please use Muslims Pursuant to Section 219 of the zip code 20024). Please note that Immigration and Nationality Act, as submissions will be available to the Amended public at the Board’s offices and posted DEPARTMENT OF STATE on the Board’s Web site under Docket Based upon a review of the No. EP 526 (Sub-No. 9). [Public Notice: 10018] Administrative Record assembled in FOR FURTHER INFORMATION CONTACT: this matter, and in consultation with the Katherine Bourdon at 202–245–0285. In the Matter of the Designation of Abu Attorney General and the Secretary of Assistance for the hearing impaired is Nidal Organization, Also Known as the Treasury, I conclude that the available through the Federal ANO, Also Known as Black September, circumstances that were the basis for the Information Relay Service (FIRS) at Also Known as the Fatah designation of the Abu Nidal 1–800–877–8339. Revolutionary Council, Also Known as Organization as foreign terrorist SUPPLEMENTARY INFORMATION: The the Arab Revolutionary Council, Also organization have changed in such a Board, created in 1996 to take over Known as the Arab Revolutionary manner as to warrant revocation of the many of the functions previously Brigades, Also Known as the designation. performed by the Interstate Commerce Revolutionary Organization of Socialist Therefore, I hereby determine that the Commission, exercises broad authority designation of the Abu Nidal Muslims as a Specially Designated over transportation by rail carriers, Organization as a foreign terrorist Global Terrorist Pursuant Section 1(b) including regulation of railroad rates organization, pursuant to section 219 of of Executive Order 13224, as Amended and service (49 U.S.C. 10701–47, the Immigration and Nationality Act, as 11101–24), as well as the construction, amended (8 U.S.C. 1189), shall be In accordance with section 1(b) of acquisition, operation, and revoked. Executive Order 13224 of September 23, abandonment of rail lines (49 U.S.C. This determination shall be published 10901–07) and railroad line sales, 2001, as amended (‘‘the Order’’), I in the Federal Register. hereby determine that the organization consolidations, mergers, and common control arrangements (49 U.S.C. 10902, known the Abu Nidal Organization no Dated: May 10, 2017. 11323–27). longer meets the criteria for designation Rex W. Tillerson, Secretary of State. RSTAC was established upon the under the Order, and therefore I hereby enactment of the ICC Termination Act of [FR Doc. 2017–11442 Filed 6–1–17; 8:45 am] revoke the designation of the 1995 (ICCTA), on December 29, 1995, to aforementioned organization as a BILLING CODE 4710–AD–P advise the Board’s Chairman; the Specially Designated Global Terrorist Secretary of Transportation; the pursuant to section 1(b) of the Order. Committee on Commerce, Science, and This determination shall be published SURFACE TRANSPORTATION BOARD Transportation of the Senate; and the in the Federal Register. [Docket No. EP 526 (Sub-No. 9)] Committee on Transportation and Infrastructure of the House of Dated: May 10, 2017. Notice of Railroad-Shipper Representatives with respect to rail Rex W. Tillerson, Transportation Advisory Council transportation policy issues RSTAC Secretary of State. Vacancy considers significant. RSTAC focuses on [FR Doc. 2017–11443 Filed 6–1–17; 8:45 am] issues of importance to small shippers AGENCY: Surface Transportation Board BILLING CODE 4710–AD–P and small railroads, including car (Board). supply, rates, competition, and ACTION: Notice of vacancy on the procedures for addressing claims. Railroad-Shipper Transportation ICCTA directs RSTAC to develop Advisory Council (RSTAC) and private-sector mechanisms to prevent, solicitation of nominations. or identify and address, obstacles to the most effective and efficient SUMMARY: The Board hereby gives notice transportation system practicable. The of a vacancy on RSTAC for an at-large Secretary of Transportation and the (public interest) representative. The members of the Board cooperate with Board is soliciting suggestions for RSTAC in providing research, technical, candidates to fill this vacancy. and other reasonable support. RSTAC DATES: Nominations are due on June 29, also prepares an annual report 2017. concerning its activities and ADDRESSES: Suggestions may be recommendations on whatever submitted either via the Board’s e-filing regulatory or legislative relief it 31 17 CFR 200.30–3(a)(12). format or in the traditional paper considers appropriate. RSTAC is not

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subject to the Federal Advisory RSTAC members are appointed for may not conduct or sponsor, and the Committee Act. three-year terms. A member may serve respondent is not required to respond RSTAC currently consists of 19 after the expiration of his or her term to, an information collection unless it members. Of this number, 15 members until a successor has been appointed. displays a currently valid Office of are appointed by the Chairman of the No member will be eligible to serve in Management and Budget (OMB) control Board, and the remaining four members excess of two consecutive terms. number. are comprised of the Secretary of Due to the expiration of an RSTAC On March 1, 2017, the agencies, under Transportation and the Members of the member’s term, a vacancy exists for an the auspices of the Federal Financial Board, who serve as ex officio, at-large (public interest) representative. Institutions Examination Council nonvoting members.1 Of the 15 Upon appointment by the Chairman, the (FFIEC), requested public comment on a members, nine members are voting new representative will serve for three proposal to extend, with revision, the members and are appointed from senior years and may be eligible to serve a Regulatory Capital Reporting for executive officers of organizations second three-year term following the Institutions Subject to the Advanced engaged in the railroad and rail end of his or her first term. Capital Adequacy Framework (FFIEC shipping industries. At least four of the Suggestions for candidates to fill this 101). The FFIEC 101 is completed only voting members must be representatives vacancy should be submitted in letter by banking organizations subject to the of small shippers as determined by the form, identify the name of the advanced approaches risk-based capital Chairman, and at least four of the voting candidate, provide a summary of why rule. Generally, this rule applies to members must be representatives of the candidate is qualified to serve on banking organizations with $250 billion Class II or III railroads. The remaining RSTAC, and contain a representation or more in total consolidated assets or six members to be appointed—three that the candidate is willing to serve as $10 billion or more in on-balance sheet representing Class I railroads and three a member of RSTAC effective foreign exposures (advanced approaches representing large shipper immediately upon appointment. RSTAC banking organizations). organizations—serve in a nonvoting, candidate suggestions should be filed The agencies proposed to remove two advisory capacity, but are entitled to with the Board by June 29, 2017. credit valuation adjustment (CVA) items participate in RSTAC deliberations. Members selected to serve on RSTAC from the exposure at default (EAD) RSTAC is required by statute to meet are chosen at the discretion of the column on FFIEC 101 Schedule B, at least semi-annually. In recent years, Board’s Chairman. Please note that Summary Risk-Weighted Asset RSTAC has met four times a year. submissions will be available to the Information for Banks Approved to Use Meetings are generally held at the public at the Board’s offices and posted Advanced Internal Ratings-Based and Board’s headquarters in Washington, on the Board’s Web site under Docket Advanced Measurement Approaches for DC, although some are held in other No. EP 526 (Sub-No. 9). Regulatory Capital Purposes (items 31.a locations. Authority: 49 U.S.C. 1325. and 31.b, column D). RSTAC members receive no The comment period for this proposal compensation for their services and are Decided: May 30, 2017. expired on May 1, 2017. The agencies required to provide for the expenses By the Board, Rachel D. Campbell, did not receive any comments incidental to their service, including Director, Office of Proceedings. addressing the proposed changes and travel expenses, as the Board cannot Kenyatta Clay, are now submitting requests to OMB for provide for these expenses. RSTAC may Clearance Clerk. review and approval of the extension, solicit and use private funding for its [FR Doc. 2017–11426 Filed 6–1–17; 8:45 am] with revision, of the FFIEC 101. These activities, again subject to certain BILLING CODE 4915–01–P reporting changes would take effect as restrictions in ICCTA. RSTAC members of the September 30, 2017, report date. currently have elected to submit annual dues to pay for RSTAC expenses. DATES: Comments must be submitted on RSTAC members must be citizens of DEPARTMENT OF THE TREASURY or before July 3, 2017. the United States and represent as ADDRESSES: Interested parties are broadly as practicable the various Office of the Comptroller of the invited to submit written comments to segments of the railroad and rail shipper Currency any or all of the agencies. All comments, industries. They may not be full-time which should refer to the OMB control employees of the United States. FEDERAL RESERVE SYSTEM number(s), will be shared among the According to revised guidance issued by agencies. the Office of Management and Budget, FEDERAL DEPOSIT INSURANCE OCC: Because paper mail in the it is permissible for federally registered CORPORATION Washington, DC, area and at the OCC is lobbyists to serve on advisory Agency Information Collection subject to delay, commenters are committees, such as RSTAC, as long as Activities: Submission for OMB encouraged to submit comments by they do so in a representative capacity, Review; Joint Comment Request email, if possible to prainfo@ rather than an individual capacity. See occ.treas.gov. Comments may be sent to: Revised Guidance on Appointment of AGENCY: Office of the Comptroller of the Legislative and Regulatory Activities Lobbyists to Fed. Advisory Comms., Currency (OCC), Treasury; Board of Division, Office of the Comptroller of Bds., & Commn’s., 79 FR 47482 (Aug. Governors of the Federal Reserve the Currency, Attention: 1557–0239 13, 2014). Members of RSTAC are System (Board); and Federal Deposit (FFIEC 101), 400 7th Street SW., Suite appointed to serve in a representative Insurance Corporation (FDIC). 3E–218, Washington, DC 20219. In capacity. ACTION: Joint notice and request for addition, comments may be sent by fax comment. to (571) 465–4326. You may personally 1 The Surface Transportation Board inspect and photocopy comments at the Reauthorization Act of 2015, Pub. L. 114–110 SUMMARY: In accordance with the OCC, 400 7th Street SW., Washington, (2015), increased the number of Board Members from three to five. Once additional Board Members requirements of the Paperwork DC 20219. For security reasons, the OCC are appointed, they will also serve as RSTAC ex Reduction Act (PRA) of 1995, the OCC, requires that visitors make an officio, nonvoting members. the Board, and the FDIC (the agencies) appointment to inspect comments. You

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may do so by calling (202) 649–6700 or, • Hand Delivery: Comments may be Form Number: FFIEC 101. for persons who are deaf or hard of hand delivered to the guard station at Frequency of Response: Quarterly. hearing, TTY, (202) 649–5597. Upon the rear of the 550 17th Street Building Affected Public: Business or other for- arrival, visitors will be required to (located on F Street) on business days profit. between 7:00 a.m. and 5:00 p.m. present valid government-issued photo OCC identification and to submit to security Public Inspection: All comments screening in order to inspect and received will be posted without change OMB Control No.: 1557–0239. photocopy comments. to https://www.fdic.gov/regulations/ Estimated Number of Respondents: 20 All comments received, including laws/federal/ including any personal national banks and federal savings attachments and other supporting information provided. Comments may associations. materials, are part of the public record be inspected at the FDIC Public Estimated Time per Response: 674 and subject to public disclosure. Do not Information Center, Room E–1002, 3501 burden hours per quarter to file. enclose any information in your Fairfax Drive, Arlington, VA 22226, Estimated Total Annual Burden: comment or supporting materials that between 9:00 a.m. and 5:00 p.m. on 53,920 burden hours to file. you consider confidential or business days. Board inappropriate for public disclosure. Additionally, commenters may send a Board: You may submit comments, copy of their comments to the OMB OMB Control No.: 7100–0319. which should refer to ‘‘FFIEC 101,’’ by desk officer for the agencies by mail to Estimated Number of Respondents: 6 any of the following methods: the Office of Information and Regulatory state member banks; 16 bank holding • Agency Web site: http:// Affairs, U.S. Office of Management and companies and savings and loan www.federalreserve.gov. Follow the Budget, New Executive Office Building, holding companies; and 6 intermediate instructions for submitting comments at: Room 10235, 725 17th Street NW., holding companies. http://www.federalreserve.gov/ Washington, DC 20503; by fax to (202) Estimated Time per Response: 674 generalinfo/foia/ProposedRegs.cfm. 395–6974; or by email to oira_ burden hours per quarter for state • Federal eRulemaking Portal: http:// [email protected]. member banks to file, 677 burden hours per quarter for bank holding companies www.regulations.gov. Follow the FOR FURTHER INFORMATION CONTACT: For and savings and loan holding instructions for submitting comments. further information about the proposed • Email: regs.comments@ companies to file; and 3 burden hours revisions to regulatory reporting per quarter for intermediate holding federalreserve.gov. Include reporting requirements discussed in this notice, form number in the subject line of the companies to file. please contact any of the agency Estimated Total Annual Burden: message. clearance officers whose names appear • Fax: (202) 452–3819 or (202) 452– 16,176 burden hours for state member below. In addition, copies of the 3102. banks to file; 43,328 burden hours for • Mail: Ann E. Misback, Secretary, proposed revised FFIEC 101 form and bank holding companies and savings Board of Governors of the Federal instructions can be obtained at the and loan holding companies to file; and FFIEC’s Web site (http://www.ffiec.gov/ Reserve System, 20th Street and _ _ 72 burden hours for intermediate Constitution Avenue NW., Washington, ffiec report forms.htm). holding companies to file. OCC: Shaquita Merritt, OCC Clearance DC 20551. FDIC All public comments are available Officer, (202) 649–5490 or, for persons from the Board’s Web site at who are deaf or hard of hearing, TTY, OMB Control No.: 3064–0159. www.federalreserve.gov/generalinfo/ (202) 649–5597, Legislative and Estimated Number of Respondents: 2 foia/ProposedRegs.cfm as submitted, Regulatory Activities Division, Office of insured state nonmember banks and unless modified for technical reasons. the Comptroller of the Currency, 400 7th state savings associations. Accordingly, your comments will not be Street SW., Washington, DC 20219. Estimated Time per Response: 674 edited to remove any identifying or Board: Nuha Elmaghrabi, Federal burden hours per quarter to file. contact information. Public comments Reserve Board Clearance Officer, (202) Estimated Total Annual Burden: may also be viewed electronically or in 452–3829, Office of the Chief Data 5,392 burden hours to file. Officer, Board of Governors of the paper form in Room 3515, 1801 K Street General Description of Reports NW. (between 18th and 19th Streets Federal Reserve System, Washington, NW.), Washington, DC 20006 between DC 20551. Telecommunications Device Each advanced approaches banking 9:00 a.m. and 5:00 p.m. on weekdays. for the Deaf (TDD) users may contact organization is required to file quarterly FDIC: You may submit comments, (202) 263–4869, Board of Governors of regulatory capital data on the FFIEC which should refer to ‘‘FFIEC 101,’’ by the Federal Reserve System, 101. The FFIEC 101 information any of the following methods: Washington, DC 20551. collection is mandatory for advanced • Agency Web site: https:// FDIC: Manuel E. Cabeza, Counsel, approaches banking organizations: 12 www.fdic.gov/regulations/laws/federal/. (202) 898–3767, Federal Deposit U.S.C. 161 (national banks), 12 U.S.C. Follow the instructions for submitting Insurance Corporation, 550 17th Street 324 (state member banks), 12 U.S.C. comments on the FDIC Web site. NW., Room MB–3007, Washington, DC 1844(c) (bank holding companies), 12 • Federal eRulemaking Portal: http:// 20429. U.S.C. 1467a(b) (savings and loan www.regulations.gov. Follow the SUPPLEMENTARY INFORMATION: The holding companies), 12 U.S.C. 1817 instructions for submitting comments. agencies are proposing to extend for (insured state nonmember commercial • Email: [email protected]. three years, with revision, the FFIEC and savings banks), 12 U.S.C. 1464 Include ‘‘FFIEC 101’’ in the subject line 101, which is currently an approved (savings associations), and 12 U.S.C. of the message. collection of information for each 1844(c), 3106, and 3108 (intermediate • Mail: Manuel E. Cabeza, Counsel, agency. holding companies). Room MB–3007, Attn: Comments, Report Title: Risk-Based Capital The agencies use these data to assess Federal Deposit Insurance Corporation, Reporting for Institutions Subject to the and monitor the levels and components 550 17th Street NW., Washington, DC Advanced Capital Adequacy of each reporting entity’s capital 20429. Framework. requirements and the adequacy of the

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entity’s capital under the Advanced proposal and are now submitting DEPARTMENT OF THE TREASURY Capital Adequacy Framework; to requests to OMB for review and evaluate the impact of the Advanced approval of the extension, with revision, Multiemployer Pension Plan Capital Adequacy Framework on of the FFIEC 101. While the agencies Application To Reduce Benefits individual reporting entities and on an originally proposed making the changes AGENCY: Department of the Treasury. industry-wide basis and its competitive effective as of the June 30, 2017, report implications; and to supplement on-site date, due to the time required for the ACTION: Notice of availability; extension examination processes. The reporting PRA revision process, the agencies have of comment period. schedules also assist advanced revised the proposal. As revised, the SUMMARY: On April 19, 2017, the approaches banking organizations in reporting changes would instead take Department of the Treasury published a understanding expectations relating to effect as of the September 30, 2017, notice of availability and request for the system development necessary for report date. However, as the two items comments regarding an application to implementation and validation of the being removed are not made public or reduce benefits under the United Advanced Capital Adequacy otherwise shared outside the agencies, Furniture Workers Pension Fund A Framework. Submitted data that are reporting entities may elect to adopt the (UFW Pension Fund) in accordance released publicly will also provide other changes immediately by ceasing to with the Multiemployer Pension Reform interested parties with information report column D of items 31.a and 31.b Act of 2014. The purpose of this notice about advanced approaches banking on FFIEC 101 Schedule B. is to extend the comment period and organizations’ regulatory capital. Request for Comment provide more time for interested parties Current Actions to provide comments. Public comment is requested on all DATES: The comment period for the On March 1, 2017, the agencies aspects of this joint notice. Comments notice published April 19, 2017 (82 FR requested comment on proposed are invited on: revisions to the FFIEC 101 reporting 18536), is extended. Comments must be requirements.1 The proposed revisions (a) Whether the collections of received on or before June 20, 2017. information that are the subject of this would remove EAD information related ADDRESSES: You may submit comments notice are necessary for the proper to CVAs that already is captured in a electronically through the Federal performance of the agencies’ functions, separate item on FFIEC 101 Schedule B. eRulemaking Portal at http:// including whether the information has Specifically, the agencies proposed to www.regulations.gov, in accordance practical utility; remove column D (EAD) for items 31.a, with the instructions on that site. ‘‘Credit valuation adjustments—simple (b) The accuracy of the agencies’ Electronic submissions through approach,’’ and 31.b, ‘‘Credit valuation estimates of the burden of the www.regulations.gov are encouraged. adjustments—advanced approach.’’ information collections as they are Comments may also be mailed to the These line items were added to the proposed to be revised, including the Department of the Treasury, MPRA FFIEC 101 report in March of 2014, and validity of the methodology and Office, 1500 Pennsylvania Avenue NW., were intended to provide data assumptions used; Room 1224, Washington, DC 20220. pertaining to the CVA requirements (c) Ways to enhance the quality, Attn: Eric Berger. Comments sent via under the agencies’ regulatory capital utility, and clarity of the information to facsimile and email will not be rules 2 for over-the-counter (OTC) be collected; accepted. derivative activities. (d) Ways to minimize the burden of Additional Instructions. All The agencies subsequently information collections on respondents, comments received, including determined that the EAD information including through the use of automated attachments and other supporting reported in column D of items 31.a and collection techniques or other forms of materials, will be made available to the 31.b on FFIEC 101 Schedule B is already information technology; and public. Do not include any personally captured in column D of item 10 (OTC (e) Estimates of capital or start-up identifiable information (such as Social derivatives—no cross-product netting— costs and costs of operation, Security number, name, address, or EAD adjustment method) on FFIEC 101 other contact information) or any other Schedule B. Continuing to collect the maintenance, and purchase of services to provide information. information in your comment or same EAD information in both places is supporting materials that you do not not only redundant, but also may be Comments submitted in response to this joint notice will be shared among want publicly disclosed. Treasury will misinterpreted by the users of FFIEC make comments available for public 101 data as additional default risk held the agencies. All comments will become a matter of public record. inspection and copying on by the reporting entity. For these www.regulations.gov or upon request. reasons, the agencies proposed Dated: May 24, 2017. Comments posted on the Internet can be removing column D for items 31.a and Karen Solomon, retrieved by most Internet search 31.b on FFIEC 101 Schedule B. The Deputy Chief Counsel, Office of the engines. agencies would continue to collect the Comptroller of the Currency. FOR FURTHER INFORMATION CONTACT: For amount of risk-weighted assets for CVAs Board of Governors of the Federal Reserve in column G of items 31.a and 31.b on System, May 25, 2017. information regarding the application from the UFW Pension Fund, please FFIEC 101 Schedule B. Ann E. Misback, The comment period for this proposal contact Treasury at (202) 622–1534 (not Secretary of the Board. expired on May 1, 2017. The agencies a toll free number). Dated at Washington, DC, this 26th day of did not receive any comments on the SUPPLEMENTARY INFORMATION: May, 2017. The Multiemployer Pension Reform Act of 1 82 FR 12274 (March 1, 2017). Federal Deposit Insurance Corporation. 2014 (MPRA) amended the Internal 2 For national banks and federal savings Robert E. Feldman, Revenue Code to permit a associations, 12 CFR part 3 (OCC); for state member Executive Secretary. banks and holding companies, 12 CFR part 217 multiemployer plan that is projected to (Board); and for state nonmember banks and state [FR Doc. 2017–11420 Filed 6–1–17; 8:45 am] have insufficient funds to reduce savings associations, 12 CFR part 324 (FDIC). BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P pension benefits payable to participants

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and beneficiaries if certain conditions DEPARTMENT OF THE TREASURY economics and finance, financial market are satisfied. In order to reduce benefits, analysis, or financial institutions and the plan sponsor is required to submit Departmental Offices; Renewal of the markets. an application to the Secretary of the Treasury Borrowing Advisory The Treasury Department transmitted Treasury, which Treasury, in Committee of the Securities Industry copies of the Committee’s renewal consultation with the Pension Benefit and Financial Markets Association charter to the Senate Committee on Finance, the House Committee on Ways Guaranty Corporation (PBGC) and the ACTION: Notice of renewal. Department of Labor, is required to and Means, the Senate Committee on Banking, Housing and Urban Affairs, approve or deny. On March 15, 2017, SUMMARY: In accordance with the and the House Committee on Financial the Board of Trustees of the UFW Federal Advisory Committee Act, as Services in Congress on or about April Pension Fund submitted an application amended, with the concurrence of the 26, 2017. for approval to reduce benefits under General Services Administration, the the plan. As required by the MPRA, that Secretary of the Treasury is renewing Dated: May 18, 2017. application has been published on the Treasury Borrowing Advisory Fred Pietrangeli, Treasury’s Web site at https:// Committee of the Securities Industry Director of the Office of Debt Management. www.treasury.gov/services/Pages/Plan- and Financial Markets Association (the [FR Doc. 2017–10656 Filed 6–1–17; 8:45 am] Applications.aspx. ‘‘Committee’’). BILLING CODE FOR FURTHER INFORMATION CONTACT: On April 19, 2017, Treasury Fred Pietrangeli, Director, Office of Debt published a notice in the Federal Management (202) 622–1876. Register (82 FR 18536), in consultation DEPARTMENT OF VETERANS SUPPLEMENTARY INFORMATION: The with PBGC and the Department of AFFAIRS purpose of the Committee is to provide Labor, to solicit public comments on all informed advice as representatives of Advisory Committee on Prosthetic and aspects of the UFW Pension Fund the financial community to the application. The notice provided that Special Disabilities; Notice of Meeting Secretary of the Treasury and Treasury Cancellation comments must be received by June 5, staff, upon the Secretary of the 2017. This notice, which Treasury is Treasury’s request, in carrying out Agency: Department of Veterans publishing in consultation with the Treasury responsibilities for Federal Affairs. PBGC and the Department of Labor, financing and public debt management. The Department of Veterans Affairs announces the extension of the The Committee meets to consider and gives notice under the Federal Advisory comment period in order to give provide advice on special items Committee Act, 5 U.S.C. App. 2, that the additional time for interested parties to pertaining to immediate Treasury meeting of the Advisory Committee on provide comments. Comments are funding requirements and longer term Disability Compensation, previously requested from interested parties, approaches to manage the national debt scheduled to be held at the Department including contributing employers, in a cost-effective manner. The of Veterans Affairs, 810 Vermont employee organizations, and Committee usually meets immediately Avenue NW., Washington, DC 20420, on participants and beneficiaries of the before Treasury announces each quarter May 24–25, 2017, has been cancelled. UFW Pension Fund. Consideration will funding operation, although special For more information, please contact be given to any comments that are meetings also may be held. Membership Judy Schafer, Ph.D., Designated Federal timely received by Treasury on or before consists of up to 20 representative or Officer at (202) 461–7315 or via email at June 20, 2017. special government employee members [email protected]. who are appointed by Treasury. The Dated: May 26, 2017. members are senior-level officials who Dated: May 26, 2017. Thomas West, are employed by primary dealers, LaTonya L. Small, Tax Legislative Counsel, Office of Tax Policy. institutional investors, and other major Federal Advisory Committee Management Officer. [FR Doc. 2017–11440 Filed 6–1–17; 8:45 am] participants in the government securities and financial markets as well [FR Doc. 2017–11404 Filed 6–1–17; 8:45 am] BILLING CODE 4810–25–P as recognized experts in the fields of BILLING CODE P

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Part II

Federal Communications Commission

47 CFR Parts 0, 1, et al. Business Data Services in an Internet Protocol Environment; Technology Transitions; Special Access for Price Cap Local Exchange Carriers; AT&T Corporation Petition for Rulemaking to Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access Services; Final Rule

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FEDERAL COMMUNICATIONS Synopsis in dedicated service revenues were for COMMISSION I. Introduction packet-based services. Based on provider and analyst forecasts, we 47 CFR Part 0, 1, 61, 63, and 69 1. After more than ten years of expect this shift from circuit-based to studying the business data services (also packet-based services to continue at a referred to as BDS) market, numerous [WC Docket Nos. 16–143, 05–25, GN Docket rapid pace. No. 13–5, and RM–10593; FCC 17–43] requests for comment, and a massive 4. Against this competitive backdrop, data collection, we at long last recognize we now move away from the traditional Business Data Services in an Internet the intense competition present in this model of intrusive pricing regulation for Protocol Environment; Technology market and adjust our regulatory incumbent LECs, recognizing that ex Transitions; Special Access for Price structure accordingly. The record in this ante pricing regulation is of limited Cap Local Exchange Carriers; AT&T proceeding demonstrates substantial use—and often harmful—in a dynamic Corporation Petition for Rulemaking and growing competition in the and increasingly competitive To Reform Regulation of Incumbent provision of business data services in marketplace. Indeed, there is a Local Exchange Carrier Rates for areas served by incumbent local significant likelihood ex ante pricing Interstate Special Access Services exchange carriers (LECs) subject to price regulation will inhibit growth and cap regulation. By adopting a framework investment in many cases. In such AGENCY: Federal Communications which accounts for these dynamic circumstances, we should not continue Commission. competitive realities, we will create a unnecessary regulations, much less ACTION: Final rule. regulatory environment that promotes extend them to new services or long-term innovation and investment by providers. Instead, we adopt a SUMMARY: In this document, a Report incumbent and competitive providers framework based on our market analysis and Order provides a new framework alike which well-serves business data and a careful balancing of the costs and for deregulating Business Data Services services customers. benefits of ex ante pricing regulation in areas where competitive forces are 2. The record indicates the market for that deregulates counties where the able to ensure just and reasonable rates. business data services is dynamic with provision of price cap incumbent LECs’ Acknowledging the presence of a large number of firms building fiber business data services is deemed increased competition evidenced by the and competing for this business. The sufficiently competitive. record in this proceeding, the Federal 2015 Collection identified 491 facilities- 5. This Report and Order (Order), Communications Commission amends based companies providing business therefore, provides a new framework for its rules to reflect changes in the data services in the enterprise market. business data services that minimizes business data services marketplace. By Competitive LECs such as Zayo and unnecessary government intervention adopting this framework the Birch continue to invest and expand and allows market forces to continue Commission acts to further bolster their competitive fiber networks with working to spur entry, innovation, and competition and investment in business very successful results. Competitive competition. Our decisions stem from data services, and takes further steps to LECs earned $23 billion of the $45 careful consideration of the data decrease the cost of broadband billion in business data services revenue submitted in the proceeding and the infrastructure deployment. in 2013. Cable providers have also thoughtful comments and ex parte emerged as formidable competitors in DATES: Effective August 1, 2017, except communications submitted into the this market. Cable business data services for the amendments to §§ 1.776, 61.45, record. Our thinking on how to evaluate are reported to have grown at 61.201, 61.203, and 69.701, which shall competition and design pricing approximately 20 percent annually for become effective after OMB approval of regulation evolved as we engaged with the past several years and, increasingly, those amendments. The Federal economists, advocates, and others to they have emphasized Internet access Communications Commission will develop an administrable approach to and managed services, which directly publish documents in the Federal deregulate in areas where competitive compete with the products being offered Register announcing the effective dates. forces are able to ensure just and by the incumbent and other competitive reasonable rates. To a large extent in the FOR FURTHER INFORMATION CONTACT: LECs. business data services market, the Joseph Price, Wireline Competition 3. Although incumbent LECs once competition envisioned in the Bureau, Pricing Policy Division at (202) dominated the business data services Telecommunications Act of 1996 (1996 418–1423 or [email protected]. market selling circuit-based DS1s and Act) has been realized, and this Order SUPPLEMENTARY INFORMATION: This is a DS3s, such technology is becoming is an important step in updating our summary of the Commission’s Report obsolete. Significant increases in rules to adequately reflect such market and Order, FCC 17–43, adopted April bandwidth demand are being driven by developments. We reach these 20, 2017, and released April 28, 2017. bandwidth-hungry applications, mainly conclusions aware of the increased The summary is based on the public video services (teleconferencing, investment in facilities and service redacted version of the document, the training, etc.) as well as by web and deployment that has occurred in full text of which can be found at the cloud-based services. These rapidly response to similar deregulatory action following internet address: https://apps. increasing bandwidth demands will by the Commission. In tandem with fcc.gov/edocs_public/attachmatch/FCC– place an ever increasing demand for adoption of this new, more appropriate 17–43A1.pdf. To request alternative services such as Ethernet, especially framework designed to maximize formats for persons with disabilities over fiber, which can scale bandwidth competition and investment in business (e.g., accessible format documents, sign to meet these requirements more data services, we are also taking further language, interpreters, CARTS, etc.), effectively than can the old legacy steps to decrease the costs of deploying send an email to [email protected] or call services. Packet-based services, which our nation’s broadband infrastructure. the Commission’s Consumer and include Ethernet, already make up a Governmental Affairs Bureau at 202– large part of the business data services II. Background 418–0530 (voice) or 202–418–0432 marketplace. In 2013, more than 40 6. Business data services refers to the (TTY). percent of the approximately $45 billion dedicated point-to-point transmission of

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data at certain guaranteed speeds and whether to maintain or modify the circumstances under which market service levels using high-capacity pricing flexibility rules; and (4) granted conditions warrant a deregulatory connections. Henceforth, we refer to a number of price cap incumbent LECs approach for certain business data special access services as a subset of forbearance from dominant carrier services consistent with our obligation business data services that we continue regulation, including tariffing and price to ensure that the rates for services in some circumstances to subject to ex cap regulation for their newer packet- offered by common carriers are just and ante pricing regulation. Specifically, based and higher bandwidth optical reasonable. In the present rulemaking, special access services include DS1 and transmission broadband services, the Commission has already determined DS3 interoffice facilities and channel including a ‘‘deemed grant’’ for Verizon that significant aspects of the pricing terminations between an incumbent from application of Title II to these flexibility regulatory regime have failed. LEC’s serving wire center and an services. Thus, we must now decide whether to interexchange carrier (IXC), and end 8. In August 2012, the Commission allow that failure to continue or to user channel terminations, although ex suspended its pricing flexibility rules implement changes. As is often the case ante pricing regulation would only because they were ‘‘not working as with complex problems, there is no apply to certain end user channel predicted, and . . . fail[ed] to accurately ideal dataset available or which we terminations. Businesses, non-profits, reflect competition in today’s special could collect in a reasonable timeframe and government institutions use access markets.’’ In December 2012, the or expense, which would answer all business data services to enable secure Commission released the Data doubts. Although the 2015 Collection and reliable transfer of data, for Collection Order and FNPRM, to collect was critical to our analysis of example, as a means of connecting to data, analyze how competition, competition in BDS markets, it was not the Internet or the cloud, and to create ‘‘whether actual or potential, affects the only data, or data analysis, relied private or virtual private networks. prices, controlling for all other factors upon to reach the conclusions here. Business data services support that affect prices,’’ and ‘‘determine what Analysis of varying data and market applications that require symmetrical barriers inhibit investment and delay realities in the record also are relied bandwidth, substantial reliability, competition, including regulatory upon as part of the determination of security, and connected service to more barriers, . . . and what steps the where competitive pricing pressure than one location. Business data Commission could take to remove such exists, and the fuller analysis is services are significant to our nation’s barriers to promote a robust competitive considered within the context of our economy—revenues reported by market and permit the competitive commitment to implement providers in response to the 2015 determination of price levels.’’ The administrable regulatory changes. As Collection total almost $45 billion for Commission planned to use the results such, we have carefully parsed the 2013, and revenues for the broader of its analysis to evaluate whether to available evidence and apply reasoned market for enterprise services, which change its existing pricing flexibility judgment to decide the questions before include voice, Internet, private network, rules ‘‘to better target regulatory relief in us. web-security, cloud connection, and competitive areas’’ and evaluate 11. The Commission is charged with other digital services, could exceed $75 remedies to address potentially ensuring that the rates, terms, and billion annually. Moreover, these unreasonable terms and conditions. The conditions for services offered by numbers do not capture the indirect Bureau released the Data Collection common carriers are just and reasonable Implementation Order on September 18, contribution of business data services to and that services are not offered on an 2013, clarifying the scope of the the nation’s economy as business unreasonably discriminatory basis collection. Pursuant to the Paperwork customers rely on these services for pursuant to sections 201(b) and 202(a) Reduction Act (PRA), the Office of their commercial operations. of the Communications Act. We ‘‘may Management and Budget (OMB) prescribe such rules and regulations as 7. The Commission has historically approved the data collection subject to subjected the provision of business data may be necessary in the public interest modifications which the Bureau to carry out the provisions of this Act.’’ services by incumbent LECs to implemented in an order released on dominant carrier safeguards. The focus In addition, section 706(a) of the 1996 September 15, 2014. By February 27, Act states that the Commission: of this proceeding is on areas where 2015, the last group of filers were incumbent LECs are subject to price cap required to respond to the 2015 shall encourage the deployment on a regulation in setting their business data Collection. reasonable and timely basis of advanced services rates. Beginning in 1999, 9. Most recently, the Commission telecommunications capability to all Americans (including, in particular, through a series of Commission actions, released the Tariff Investigation Order the Commission: (1) Began granting elementary and secondary schools and and Further Notice on May 2, 2016. The classrooms) by utilizing, in a manner price cap incumbent LECs pricing Order and Further Notice declared consistent with the public interest, flexibility by establishing both Phase I certain terms and conditions in the convenience, and necessity, price cap relief (which permitted the provision of tariffs of the four largest incumbent regulation, regulatory forbearance, measures volume and term agreements and LECs unlawful, proposed to replace the that promote competition in the local contract tariffs) and Phase II relief existing business data services telecommunications market, or other (which relieved the carrier of price cap regulatory structure with a new regulating methods that remove barriers to infrastructure investment. regulation) through ‘‘triggers’’ using framework, and sought comprehensive collocation as a proxy for competition; comments on the proposed new 12. Our public interest evaluation (2) adopted the ‘‘CALLS plan,’’ which framework. ‘‘necessarily encompasses . . . among separated business data services into its other things, a deeply rooted preference own basket and applied separate ‘‘X- III. Competitive Conditions for Business for preserving and enhancing factors;’’ (3) initiated a rulemaking to Data Services competition in relevant markets [and] examine a number of aspects of the 10. In this section we consider accelerat[ing] private sector deployment business data services market, including competition among traditional and non- of advanced services.’’ A competition whether to apply and how to calculate traditional providers of end-to-end analysis is critical to our public interest a productivity-based X-factor and business data services and the evaluation and is informed by, but not

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limited to, traditional antitrust being leveraged in ways that prevent appropriate product market, and, in the principles designed to protect substantial abuses of market power. case of geographic markets, we look to competition. The Commission, in Given such incentives, the presence of areas ‘‘in which the seller operates and conducting an analysis, may ‘‘consider two current competitors or providers to which the purchaser can practicably technological and market changes as with their own fiber nodes within a half turn for supplies.’’ As part of that well as trends within the mile, hereafter referred to as medium- analysis we observe high barriers to communications industry, including the term entrants, or that will serve over the entry, but also observe a significant nature and rate of change.’’ Analyzing medium term, are sufficient to provide penetration of competitive business data the competitive nature of the market for competitive pressure to adequately services facilities being deployed and business data services will allow us to discipline prices. Our finding is also upgraded with a number of technologies make a determination about the based on evidence of competition that is throughout the country, particularly in appropriate way to balance the costs currently in place or likely to arise over areas with significant customer demand. and benefits of applying ongoing the medium term. Moreover, we observe a strong regulation to particular business data 16. In addition, we find that business willingness on the part of providers to services. data services with bandwidths in excess extend their networks half a mile to 13. For business data services of the level of a DS3 generally meet demand, especially over the provided over DS1s and DS3s supplied experience reasonably competitive medium term. by the incumbent LEC we find that a outcomes, and to the extent they do not 19. Consistent with antitrust nearby potential business data services today, will do so over the medium term principles, we distinguish product supplier, in the form of a wired even where a facility-based competitor markets by generally looking at whether communication network provider, has no nearby facilities. We come to this various services are reasonably generally tempers prices in the short conclusion based on a record that shows interchangeable, with differences in term and results in reasonably almost no evidence of competitive price, quality, and service capability competitive outcomes over three to five problems in the supply of these higher being relevant. In the case of geographic years (the medium term). For example, bandwidth services, and which shows markets, we look at both supply and a cable company that has fiber nodes higher bandwidth opportunities are demand substitution. For both product nearby, and hence the ability to provide particularly attractive to competitive and geographic markets, it is both Ethernet-over-fiber and, even more LECs. We make a similar finding for conventional to undertake a readily Ethernet-over-Hybrid Fiber Coax transport services, where the record hypothetical monopolist test to (EoHFC), if a profitable opportunity presents little evidence of competitive determine market definitions. That arises, is particularly relevant to pricing problems, and where low bandwidth approach begins with the smallest decisions of a business data services demand is quickly turning into high plausible market definition and provider wishing to retain a customer. bandwidth demand. We make a similar considers likely consumer substitution 14. Our conclusion is based in part on finding for lower bandwidth packet- if a hypothetical monopolist in that record evidence indicating a cost based services. We reach these market imposed a small but significant structure for business data services that conclusions because, compared with and non-transitory increase in price incentivizes suppliers with existing time division multiplex (TDM) services, (SSNIP). We do not have data that networks to compete vigorously for competitive LECs are considerably more would enable a more formal application customers. We also base our conclusion active in the supply of packet-based of such a test, but our market analysis on findings that the impact of the first services, are on a considerably more considers purchasers’ willingness and entrant on price will be substantially level playing field in supplying these ability to substitute services, suppliers, higher than the impact of subsequent new services against incumbent LECs, and geographies. The extent to which entrants and business data services and have better incentives to supply supply is broadly competitive wherever pricing is often determined by a such future-proof services where the incumbent LEC also faces a facility- customer bidding or request for demand is growing rapidly. based rival is strengthened by our proposal (RFP) process in which even findings as to specific product markets, A. Introduction an uncommitted, though usually nearby, and refined by our analysis of entrant can compete for the customer’s 17. We analyze the 2015 Collection, geographic markets. business, and then build out to the and look to analyses and other evidence customer. Consequently, the presence of submitted in this proceeding, to reach B. Product Market nearby competitive facilities tempers findings concerning competiveness in 20. When defining a product market, pricing as competitors are generally the business data services industry. In to ensure our action affects an aware of competitive facilities that can conducting our analysis, we consider appropriate group of services, we look be expanded to reach an additional market concentration as highly relevant, to which services are sufficiently similar customer with reasonable costs should but do not find it determinative absent to reasonably be considered substitutes. the incumbent’s pricing exceed consideration of market dynamics. We We consider a number of factors, competitive levels (supracompetitive also look at specific market-based including the ‘‘practical indicia’’ prices). Furthermore, where an circumstances when considering actual identified by the Supreme Court, such incumbent sets supracompetitive prices and potential sources of competition. as ‘‘industry or public recognition of the it is vulnerable to competitors vying for 18. In this section, we review the submarket as a separate economic customers. competitiveness of business data entity, the product’s peculiar 15. Together the evidence services, in general, as well as issues characteristics and uses, unique demonstrates how even a single raised by commenters. We reach production facilities, distinct customers, competitor exerts competitive pressure findings as to the degree of distinct prices, sensitivity to price which results in just and reasonable competitiveness in the business data changes, and specialized vendors.’’ Not rates. This evidence demonstrates that services industry and consider industry all of these factors must be present to the significant network investment trends on competitive entry. We look to define the relevant product market. required to provide business data see if services are reasonably Perfect substitutability is not required as services to end users is increasingly substitutable to determine an part of our broad review of business

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data services markets and our narrow 23. Because packet-based networks We note, however, that adopting a consideration of certain special access move packets over a shared transport framework that promotes deployment of service inputs that comprise a full channel, they are more efficient than a competitive services, as we do here, business data services customer circuit. circuit-based network where benefits even those customers who 21. A product that substitutes for transmission capacity is reserved even maintain TDM services due to static another demonstrates a possibility that when not used. The routing and needs—or for whatever reason—because consumers will purchase the competing reassembling of data packets, however, increased competition for these services service of a competitor, including a can lead to packet loss, jitter, and is likely to place downward pressure on potential entrant. Consequently, we latency, affecting the quality of service prices. consider providers with facilities used needed to support certain applications 26. We find circuit- and packet- to supply one service that could be used desired by users, e.g., real-time and switched business data services that to provide another. For example, we see mission critical applications. Providers offer similar speed, functionality, and not only substitution between circuit- can mitigate these delays through packet quality of service characteristics fall and packet-based business data services, prioritization and setting performance within the same product markets for the but the capacity to supply both services parameters, like assigning different purposes of action taken here, even over the same underlying facilities, classes of service and quality of service though there is evidence suggesting the indicating the two services are likely in levels (with, for example, Service Level two technologies have important the same market, and more importantly, Agreements (SLAs)). In this way, distinctions. Indeed, the Commission that suppliers of either service are in the providers can shape and differentiate has long considered TDM and packet- same market, as they could readily networks to improve performance to based business data services as provide the other service over their meet the specific needs of users. Backed functionally interchangeable at facilities. Similarly, while best-efforts by performance guarantees, packet- comparable capacities and has services do not generally appear to be a based business data services can consistently included both types of good substitute for business data provide the same, if not better, level of business data services in its orders and services (and vice versa), legacy hybrid- security, reliability, and symmetrical forbearance decisions. Courts, in turn, fiber-coaxial (HFC) and copper (in fact, speeds as a DS1 or DS3 service. Packet- have upheld the Commission’s view. generally hybrid-fiber-copper) facilities based business data services can also Although commenters have pointed out are commercially used to provide low accomplish this with greater efficiency some differences between these bandwidth business data services (if not and scalability to satisfy a user’s technologies, there is considerable always at the highest commercially growing bandwidth demands. evidence in the record indicating that available quality standards). Unbundled 24. Functionally, TDM and packet- the Commission’s view on sufficient network elements (UNEs), dark fiber, based services are broadly substitutability of circuit and packet and fixed wireless services and facilities interchangeable in the business data business data services still holds. We used to provision business data services services realm as both are used to believe that legacy TDM business data also play competitive roles in business provide connectivity for data network services suppliers would be constrained data services markets. and point-to-point transmissions and by the threat of potential customer loss both services can be delivered over the to packet-based business data services 1. Circuit- and Packet-Based Business same network infrastructure. Incumbent suppliers. Data Services and competitive LEC providers offer 2. Ethernet Over Hybrid-Fiber Coax 22. The legacy technology for both types of services to similar types of providing business data services is customers and their marketing materials 27. Packet-based business data circuit-based using TDM. Incumbent juxtapose these two technologies against services over fiber are the gold standard LECs are the primary facilities-based each other. Customers of TDM-based for the industry because they provide suppliers of TDM-based services, services are also switching to packet- the greatest flexibility to efficiently scale including DS1s and DS3s with based services. And commenters bandwidth to the highest speeds at the symmetrical capacities of 1.5 Mbps and representing suppliers agree, with highest performance levels. There is 45 Mbps, respectively. For decades, limited exception, the services, whether debate in the record, however, on these workhorses were the only options circuit-based or packet-based, are whether we should include the packet- available to meet the high-capacity substitutes and in the same product based Ethernet services provided by needs of users. TDM circuits provide market. cable companies using their HFC dedicated, secure, reliable and low- 25. Substitution between these two networks in the product market for delay transmission service for moving services, however, is generally one business data services. Our review of voice, data, and video traffic, but do not directional. New customers, more likely the record now confirms that effectively scale for data intensive than not, are choosing to purchase competitive pressure on low bandwidth applications. To increase bandwidth for Ethernet services, subject to their packet-based services carried on fiber DS1s/DS3s, providers must bond availability and pricing, and existing and legacy TDM services is significant, multiple circuits together. For example, customers of TDM-based service are and should be taken into account as part providers can bond up to eight DS1s to switching to Ethernet. There is no of any competitive market test. achieve a maximum bandwidth of 12 evidence suggesting Ethernet customers 28. In many ways, EoHFC is much Mbps. DS3s are rarely bonded, however, are switching to DS1s and DS3s. Nor as like other modes of business data because with the increased cost, the a policy matter would we want that to services. Ethernet-over-HFC technology more logical option is to use a newer occur as the technology transition is provides point-to-point wireline technology, such as a packet-based moving towards the eventual connection at symmetrical speeds, albeit service. In contrast, packet-based termination of TDM service offerings limited to 10 Mbps. Although EoHFC is services have bandwidth options altogether. We want to encourage that not as reliable as circuit-switched or ranging from 2 Mbps up to 100 Gbps, migration, while mitigating disruptions fiber connections, some cable depending on the connection medium, to existing customers, to help unleash companies are able to guarantee 99.9 and are easily scaled over fiber to meet the benefits of network innovation for percent availability (as compared to increasing data demands. American businesses and consumers. fiber’s 99.99 percent). In addition to

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availability, some cable companies offer not. Also, while dedicated business data 4. Unbundled Network Elements further performance guarantees, services commonly provide at least 99.9 32. We find that the use of UNEs, addressing jitter, latency, packet loss, percent network reliability, with higher where available, allow competitive availability, and mean time to repair guarantees being available for fiber providers to effectively compete in their Ethernet over Data over Cable services, and guarantees for latency and lower bandwidth services, and are Service Interface Specification (DOCSIS) jitter, best-efforts services generally do particularly close substitutes for DS1s service. Comcast targets its EoHFC not offer any reliability guarantees, and DS3s. However, use and availability service to ‘‘[c]ustomers with low to although some cable providers offer of UNEs is diminishing. medium bandwidth requirements that some non-binding performance 33. Incumbent LECs are required by need enterprise features.’’ Wholesalers, ‘‘assurances.’’ section 251(c)(3) of the Act and section for instance, are increasingly leaning on 51.319 of the Commission’s rules to the cable industry’s vast EoHFC network 31. In the Further Notice, the Commission stated that ‘‘it is likely that provide requesting common carriers to address the needs of their multi- with DS1s, DS3s, and bare copper loops regional customers. AT&T ‘‘has certified best effort services may not be in the as UNEs. UNE rates, as determined by both fiber-based and HFC-based same product market or markets as the state public utility commissions, are Ethernet offerings from cable companies BDS,’’ and sought comment on its based on forward-looking costs not on for use in [its business data] services, as analysis. However, the record includes the incumbent LECs’ historical costs, well as for use in [its] backhaul evidence of incumbent LECs losing and are thus typically lower than the services.’’ Similarly, Sprint has small- and medium-sized customers to incumbent LEC rates for regulated DS1 announced that it now provides cable’s best-efforts offerings, despite and DS3 services. UNEs are intended to business data services over cable noticeable differences in performance facilitate competition by lowering company facilities, including EoHFC. and prices between business data and 29. Cable network architecture is best-efforts services. In many barriers to stimulate facilities-based constantly evolving to meet bandwidth circumstances, customers are willing to entry into local markets, and the needs. Yet, some cable providers trade guaranteed service levels for Commission has imposed unbundling obligations ‘‘in those situations where contend that their EoHFC business data higher bandwidth and better prices [it] find[s] that carriers genuinely are services are not substitutable with fiber while receiving some symmetricity. impaired without access to particular business data services because they do Cable providers routinely pitch their network elements and where not offer SLAs, or where they do so, best-efforts business broadband services unbundling does not frustrate they are limited, for example, to customers as substitutable for legacy sustainable, facilities-based guaranteeing only repair intervals and TDM services. Charter, for example, competition.’’ availability for their Ethernet over markets its Business Internet 34. The availability of UNEs from DOCSIS service. Some wholesalers echo Essentials16 services as ‘‘more than 13 incumbent LECs is limited based on the this view, reporting that they do not times faster than T1.’’ And the record consider EoHFC (DOCSIS 3.0) as ‘‘impair’’ standard. DS1 and DS3 UNE shows cable has been largely successful loops are allowed only in those competitive with their services mainly in growing its best-efforts business because of limited availability, buildings located within the service area broadband services: ‘‘Comcast reports a of an incumbent LEC wire center that performance issues, and inadequate [REDACTED] increase for best efforts SLA guarantees. However, the record falls below a certain business density business broadband services from 2014– line and fiber collocation threshold. As shows that while these performance 2015’’ and ‘‘TWT reports a [REDACTED] levels may be undesirable for some a practical matter, competitive LECs from 2014 to 2015 increase in its BIA cannot rely on UNEs at a wire center in customers, many others readily accept (its best-efforts HFC service).’’ lower performance guarantees in which the competitive LEC is not Incumbent LECs are noticing this collocated. Moreover, with incumbent exchange for lower prices. We believe competition. For example, AT&T that a significant tipping point has been LECs increasingly retiring their copper- explains that its sales team has reached in the evolution of these based infrastructure, the question also discovered that ‘‘for the thirteen-month services when even incumbent LECs arises as to the extent to which UNEs period from November 2014 through such as Verizon and AT&T are using will remain available in the future. November 2015, a very substantial these services for their own business 5. Dark Fiber customers out-of-region. portion of AT&T’s competitive losses were to cable companies and a 35. Dark fiber is a physical connection 3. ‘‘Best-Efforts’’ Internet Access significant portion of those losses were with no transmission functionality. As Services to best efforts cable services.’’ We, the Commission explained in the 30. Best-efforts Internet access therefore, observe substitution and best- Further Notice, ‘‘the supply of BDS over services describe basic Internet access as efforts networks supporting business dark fiber takes on significant aspects of generally marketed to residential and data services for certain customers, but facility-based competition’’ and ‘‘is small business subscribers. At the most- we do not observe broad substitution or particularly attractive for competitive basic level, best-efforts and dedicated substantial performance similarities LECs seeking to expand their network business data services appear to be with fiber-based business data services reach and mobile carriers needing cell interchangeable: End users can use both sufficient to determine that best-efforts site backhaul.’’ Also, the record services to access the Internet or create service and its underlying facilities are indicates that mobile wireless service virtual private networks. However, best- in the same product market. In that providers are purchasing and then self- efforts Internet access is provided with manner, best-efforts services can be equipping dark fiber as a substitute for asymmetrical speeds and without distinguished from other business data a fiber-based Ethernet service. service performance guarantees. services. Despite this, the underlying Accordingly, we find dark fiber is a Whereas dedicated packet-based facilities used to provision best-efforts substitute for special access services business data services allow for packet services, even over legacy media such as purchased for wireless backhaul. prioritization and quality of service HFC, can be and are being repurposed Similarly, dark fiber is a substitute priority tiers, best-efforts services do to provide business data services. outside of backhaul, e.g., serving the

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needs of retail business customers. The locations served by fixed wireless geographic market in the business data 2015 Collection includes all competitive technology and mobile providers services industry as likely being larger provider locations serviced over dark ‘‘reported that about 40 percent of their than the average census block and fiber, and staff and key economists that cell sites have self-provisioned wireless sought comment on its analysis. used that data considered competition backhaul facilities.’’ In response, Considering varying buildout distances over it as essentially equivalent to commenters discussed at a high level, in the record, the Commission observed facility-based competition. whether or not to include fixed wireless in the Further Notice that competitors in the business data services product are willing to extend their facilities to 6. Satellite Services market, or for a competitive market test reach potential customers ‘‘typically 36. Satellite providers also offer with few additional facts provided on rang[ing] from [REDACTED] to business data services that are currently the subject of substitutability. The [REDACTED] Commenters indicate that relied upon by many end users as record also indicates that XO and incumbent LECs and competitive acceptable substitutes for all or part of Windstream use fixed wireless service providers have similar buildout criteria. their broadband demand requirements, in their networks. For larger competitive LECs, the particularly for those that find best 38. We continue to find fixed majority of buildouts are within efforts provisioning from competitors microwave is a competitive backhaul [REDACTED] from a splice point and acceptable. General Communications alternative for wireless providers. The less commonly exceed [REDACTED] (GCI), for example, reports that its record, however, on using fixed wireless away from the nearest splice point on ‘‘satellite network provides to provide reliable last-mile access to their fiber network. Accordingly, the communications services to small towns end users is mixed, especially in urban Commission suggested that the relevant and communities throughout rural areas where line-of-sight can be more of ‘‘geographic market definition for lower Alaska.’’ Hughes Network Systems, LLC a concern than in rural areas. We do bandwidth BDS lies somewhere above ‘‘provides advanced broadband satellite note the promise of 5G technology to the average area of the Census block service throughout the United States, provide quality high-bandwidth fixed with BDS demand and below’’ the including high-speed internet and voice wireless services to businesses in urban Metropolitan Statistical Area (MSA). over internet protocol (‘VoIP’).’’ The areas. AT&T and Verizon are currently 41. While buildouts are common record indicates that ‘‘Globalstar, a low engaged in 5G trials, but commercial within a half mile from a competitor’s Earth orbit satellite constellation for service is not expected to launch until facilities, the subsequent record shows satellite phone and low-speed data 2020. That said, given the very high buildouts of half mile and farther often communications, has proposed a service capacity of 5G networks, they have the occur. However, such buildouts become that could help to relieve some Wi-Fi potential to represent a significant much less likely as the distance from a congestion in anchor institutions.’’ And additional source of competition for the cost-effective and viable fiber junction there is evidence that satellite service provision of business data services. We point increases as well as due to providers are increasingly competing for will continue to monitor these variation in entry barriers. Some lower bandwidth business data service developments. For now, at a minimum, providers may be more risk tolerant and customers, which is a trend we we consider fixed wireless an option for will build out farther than others, as anticipate will continue in the future. last-mile building access when wireline they weigh location-specific factors, We do not find BDS provided by facilities are unavailable. Fixed wireless including the identities of the nearby satellite currently to be in the relevant can also serve as a viable backup competitors, the specifics of competing product market but note that its transmission option for business data local networks, local geographic features presence underscores the conservative services purchasers to increase network (such as traversing rivers or highways), nature of our approach. In that manner, diversity. As such, for purposes of the local building codes, the density of local we believe satellite broadband offerings relevant business data services product demand, and bandwidth demanded. have the potential to add competitive market, we find that fixed wireless However, we find risk tolerant pressure to the BDS market, especially services should be included in the businesses and buildouts farther than a for customers that do not require high product market discussion because they half mile to be the exception. bandwidth or symmetrical service with may have a competitive effect on the 42. The nature of the customer’s significant service level or uptime market. demand is particularly relevant to guarantees. competitors’ build decisions. As the C. Geographic Market Commission recognized recently when 7. Fixed Wireless Services 39. To determine an appropriate considering the likelihood of a 37. We find fixed wireless services are geographic market for competitive competitor entering a building to a substitute for cell site backhaul but analysis purposes, we consider the area provide business data services, ‘‘[t]he are, at most, a gap filler for special to which consumers can ‘‘practically lower the demand in the building, the access services providing last-mile turn for alternative sources,’’ and within closer another competitive fiber access to buildings. While mobile which providers can reasonably provider must be to that building for wireless carriers have relied compete. The geographic market ‘‘must entry to be profitable and thus likely.’’ substantially on fixed wireless, i.e., . . . both correspond to the commercial Nevertheless, even when demand is too often self-provisioning microwave realities of the industry and be low to justify the buildout, competitive point-to-point links to backhaul traffic economically significant.’’ Yet, as with providers often consider whether there from their macro cell sites, the record on product market delineation, a are any potential customers nearby and providers viably using fixed wireless to geographic market ‘‘cannot . . . be may even take a more circuitous route provide last-mile access to buildings is defined with scientific precision.’’ In in anticipation of additional demand not as clear. In the Further Notice, the this section we conclude that a half mile from businesses along the route. The Commission found the record somewhat is the relevant geographic market for the 2015 Collection indicates that in many mixed on the use of fixed wireless analysis of competition in the business areas of the country competitive technology to provide business data data services market. facilities are sufficiently close to make services. But the Commission also noted 40. In the Further Notice, the deployment to buildings with low that the 2015 Collection included Commission described the relevant demand justifiable. In 2013, there was at

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least one competitive provider in ‘‘more costs of deploying facilities to range of the competition posed by a than 95 percent of MSA census blocks neighboring buildings, which in turn business data services provider is not with BDS demand, and . . . those leads to greater investment. As costs limited to the specific locations of active census blocks represented about 97 continue to drop through further fiber circuits sold at a particular point in percent of the total BDS connections deployments, and potential revenues for time. and 99 percent of business each building served increase with 47. Sprint and Windstream challenge establishments.’’ The average distance growing demand for high bandwidth our assertion that business data services between buildings with incumbent LEC services, these competitive providers markets are affected by bidding market business data services customers and with significant legacy (in the case of dynamics. However, business data competitive fiber was just 364 feet. cable) and newer networks have services contracts, being large-scale, About half of these buildings were powerful economic incentives to enter winner-take-all awards, closely within 88 feet of competitive fiber and price their services aggressively. approximate the conditions laid out by facilities and 75 percent were within This effect will provide a strong Klemperer of an ideal bidding market 456 feet. disciplining force to the incumbent environment. Moreover, nearby 43. We tested the sensitivity of our service providers of surrounding competition has similar cost to finding that a location currently faces or locations, and will grow over time. competition in the location itself (i.e., likely will face competitive choices over Importantly, all else equal, we expect ‘‘homogenous’’ products) and is the medium term if it is within a half competitors will be particularly likely to therefore likely to effectively constrain mile of a location served over the build out to locations where incumbents prices. facilities of at least one competitive have priced supracompetitively, to the D. Competitive Entry in Business Data provider. For example, based on the extent these are the most profitable Services Markets 2015 Collection, 64.1 percent of all locations. In this manner, over time, locations with business data services abuses of market power can be 48. As part of our analysis, we demand in price cap areas were within addressed through localized competitive consider how varying market a quarter mile of at least one pressures. characteristics impact entry by competitive provider, as compared to 45. The record demonstrates that most competing providers in business data 79.5 percent that were within a half business data services providers are services markets, along with evidence of mile, and 89.4 percent that were within willing and able to profitably invest and entry barriers being overcome by a mile. Thus, our approach lies deploy facilities within a half mile of traditional and non-traditional somewhat above the middle of these existing competitive facilities, and often competing providers. We then conclude two extremes, each of which had have the ability to build out after that, while there can be high barriers to limited record support. We also found winning a customer’s bid for business, business data services entry, evidence 45.8 percent of locations with business depending upon the scale of investment shows that firms frequently choose to data services demand to be within a half required to reach the customer. enter this market with significant mile of at least two competitive Accordingly, we conclude that the investments, particularly in areas of providers, and 64.6 percent of all relevant geographic market for purposes significant demand, indicating sufficient locations with business data services of this market analysis is the region competitive conditions that do not demand to be within a mile of at least within a half mile of a location with warrant direct regulatory intervention. two competitive providers. In addition, business data services demand. We 1. Barriers to Entry as discussed, cable competition is make this determination by focusing on considerably more developed than it the factors that influence suppliers of 49. Market analysis is incomplete was in 2013. Given the nature of cable business data services, as opposed to without an evaluation of entry barriers. networks, we expect the percent of customers, because in most instances a As antitrust principles explain, ‘‘[t]he locations within range of a quarter mile customer is unlikely to impact service prospect of entry into the relevant of at least one facilities-based pricing by moving its physical location market will alleviate concerns about competitor, to be more similar to the in response to a material increase in adverse competitive effects only if such percent of locations within a half mile price. This point is true for both single- entry will deter or counteract any of one such competitor today. and multi-location customers that seek competitive effects of concern . . . .’’ In 44. As we detail more fully below, dedicated connections to each location. evaluating the prospect of entry, there is strong evidence of rapid growth 46. We also find that business data agencies ‘‘examine the timeliness, in competitive investment. Because of services providers commonly sell their likelihood, and sufficiency of the entry this ongoing investment, the average service in bidding markets, and this is efforts an entrant might practically building with business data services especially so for multi-site contracts. employ.’’ demand over time will find itself closer Winning bidders then build out to the 50. Timeliness. Entry must be rapid and closer to a competing facilities- customer within an agreed-upon enough to make an attempt by an based competitor’s network. The provisioning timeframe. Consequently, incumbent to set a price above declining distances between buildings competitors outside of the customer’s competitive levels unprofitable. with business data services demand and location can affect pricing because the Depending on the distance, buildout the fiber networks of competitive winning bid represents the competitive does not appear to take very long, about providers in general, and those of cable offer that others must beat, even if that three to four months, relative to the providers with extensive fiber networks competitor does not already have typical multi-year contracts used in in particular, create a cycle of facilities in the customer’s building. selling these services. Thus, in cases investment and benefits within an area That competitor is increasingly relevant where demand is prospective and not outside of any particular building. the closer the competitor’s network urgent, and where a competitive LEC Because even small businesses’ facilities, actual or potential fiber splice has existing facilities nearby, for bandwidth needs are constantly points, are to the customer (because its example, within a half mile, buildout or growing, the demand for additional costs likely fall with proximity, making even its threat would be timely enough investment is likely to be amplified. its bid more likely to constrain the to restrain a dominant provider in the Greater fiber investment leads to lower winning bid). Thus, the geographic relevant market. Instances in which

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business data services are sold as part of 2. Entry and Investment in Business for higher-bandwidth Ethernet services, a bidding or similar process also allow Data Services Markets which is enabling them to overcome for timely entry, as providers are 55. Evidence of Competitive Entry by limitations of traditional coaxial-based typically afforded an opportunity to Cable. The entry of cable into business cable systems that cannot meet higher provision a customer after a bid is data services provisioning has been the bandwidth demands. For example, after accepted and before service must begin. most dramatic change in the market first entering the marketplace in 2009, Moreover, even if a competitor with a over the past decade. Cable companies Comcast ‘‘rolled out Metro Ethernet nearby wireline network (for example, began serving business customers using services to 20 of the top 25 metropolitan perhaps a cable company) is not their ‘‘best-efforts’’ broadband networks areas entirely over fiber, with plans presently capable of entry over the short with asymmetric speeds in the mid- ranging from 1 Mbps to 10 Gbps’’ in term, we expect it will become so over 2000s, but these services were not 2011. Comcast has invested ‘‘more than the medium term. generally competitive with incumbent $5 billion since 2010’’ on network infrastructure to provide business data 51. Likelihood. ‘‘Entry is likely if it LECs’ business data services. Cable services. Comcast had connections, would be profitable,’’ and profitability is companies now offer over fiber carrier- largely using fiber, to approximately precisely what competitive LECs grade reliability, scalability, and quality [REDACTED] business locations in consider when deciding whether to of service functionality to compete for 2016, an increase of [REDACTED] since deploy fiber to a customer’s location. the largest enterprise customers across 2013. Comcast has also ‘‘added Profitability depends on projected the country and also offer Carrier [REDACTED] over the 2012–2015 expenditures required for construction Ethernet services with symmetrical period.’’ and anticipated revenues from the speeds up to 10 Mbps over their within- customer and potential customers. 58. Charter, the second largest cable footprint near ubiquitous DOCSIS 3.0 company and the [REDACTED] largest Indeed nearby wireline network EoHFC networks. As a result, incumbent providers are actively meeting nearby provider of fiber connections to LECs increasingly find themselves buildings, has invested more than demand, a process that can be expected competing with cable for business data to accelerate over the next few years. [REDACTED] annually, starting in 2013, services customers. CenturyLink, for towards the provision of business data 52. Competitive LECs rarely build on example, ‘‘views cable providers to be speculation and instead prefer to have a services. In 2016, Charter acquired its primary special access competitors, fellow cable companies, Legacy Time customer in place before undertaking given their expansive networks and Warner Cable (TWC) and Bright House the costs associated with buildouts. rapid growth in business markets.’’ Networks, LLC, for $90 billion. A stated However, providers are also willing to 56. The growth in consumer benefit of the merger was the increased consider potential customers nearby or broadband demand has also lowered the ability of the combined entities to along the route (and may even build a costs to cable companies of deploying compete for ‘‘large enterprise and other more circuitous route to pass by more fiber to business locations. As consumer multi-location customers.’’ Post-merger potential customers). Providers bandwidth demand grew exponentially Charter plans to invest $2.5 billion into generally look to recover construction over the past decade, cable providers serving commercial areas within its costs within a certain period of time, were required to invest billions of footprint. Charter has ‘‘expanded its [REDACTED] while taking into account dollars pushing fiber deeper into their provision of BDS to approximately potential customers. When the cost of networks as they needed to continually [REDACTED] new locations’’ since the construction is high, providers may split nodes to keep pace with the beginning of 2013. As of the second lengthen the recoupment period. demand. Sprint and Windstream quarter of 2016, Charter’s commercial 53. Sufficiency. We found earlier that challenge the reasonableness of relying revenues driven by enterprise, small the presence of a second competitor in on past cable deployment in response to and medium business growth rose to this industry is sufficient to place an growth in consumer broadband demand over $2 billion, an increase of 12.6 effective competitive constraint on to project future cable build out to meet percent over the prior-year period. business data services supply. Given the business data services demand. 59. Cox, the third largest cable likelihood of entry wherever a However, it is not unreasonable to company, was one of the first cable competitive wireline network is nearby, acknowledge the fact that every companies entering the business data this will also ensure a similar effect over increment of additional investment in services market and by June 2016 served the medium term. cable networks brings fiber facilities ‘‘more than [REDACTED] locations with 54. This evidence demonstrates that closer to nearby business data services dedicated point-to-point services,’’ providers find ways to enter nearby demand and lowers the cost of building primarily over its fiber facilities. Cox geographic markets and win customers. to meet that demand. Compared to just has invested more than [REDACTED] in They consider nearby demand and build ten years ago, fiber within the franchise fiber and equipment over the past 10 circuitous routes, they lengthen the areas of cable providers that offer high- years, with [REDACTED] invested since terms of their contracts to recover the speed DOCSIS services has dramatically 2013. In 2015, ‘‘Cox earned cost of buildout, and they place spare lowered the cost of building out fiber to approximately [REDACTED] in annual splice points along their network routes the surrounding business locations due revenue from its [business data services] to accommodate future demand. These to the shorter distances required to . . . and projects earnings of facts show that once providers have reach any location. For example, as a [REDACTED] for 2016, up from sunk substantial costs into a network, it result of network expansion, in March [REDACTED] in 2013.’’ is in their interest to build laterals to as of 2015, ‘‘approximately [REDACTED] 60. In 2016, Altice, a European many customers as possible because the percent of business locations [were] company, completed its roughly $10 relative cost of a lateral is much lower within 500 feet of Comcast’s EoHFC billion acquisition of Cablevision than the cost of other network facilities. facilities, an increase from [REDACTED] Systems Corp. (Cablevision), which And this conclusion is corroborated by percent in 2013.’’ includes Cablevision’s business service evidence of extensive competitive entry 57. Like other competing providers, unit, Cablevision Lightpath Inc., making into the business data services cable companies have focused Altice the fourth largest cable provider. marketplace. investment on building fiber networks As of the end of 2015, Cablevision’s

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Lightpath unit had 7,700 buildings connectivity to 3,100 enterprise on other suppliers, or how many connected to its fiber network, buildings. suppliers, accounting for their compared to the 4,400 buildings 64. We reject Sprint/Windstream’s differences, are sufficient to make prices serviced in 2010. Mediacom, the fifth argument that the Commission has not effectively competitive (matters we have largest cable operator serving ‘‘rural and properly accounted for recent sought comment on above).’’ We find exurban areas of the Midwest and consolidation, including the the concentration measures alone are Southeast. . . . began deploying BDS on CenturyLink/Level 3 and Verizon/XO largely poor indicators of whether a significant scale throughout its service mergers. The CenturyLink/Level 3 market conditions exist that will territories in 2011.’’ The company has proposed merger is still pending constrain business data services prices, invested more than $4 billion on its regulatory approvals, and in approving and overstate the competitive effects of ‘‘high capacity [fiber] network that transfer of control applications related concentration. serves thousands of small rural to the Verizon/XO transaction, the 67. Traditional and non-traditional communities.’’ This network supports Commission found that ‘‘Verizon’s providers of business data services over 1,000 macro cell sites, and acquisition of XO within Verizon’s constrain an incumbent’s pricing Mediacom is planning to expand its incumbent LEC territory will have a de outside of immediate geographies used network coverage in downtown areas minimis impact on competition in the to describe market concentration in the and commercial districts to connect tens provision of BDS.’’ Sprint/Windstream’s Further Notice in three ways. First, with of thousands of new business customer criticism that the two largest nearby facilities, a business data locations. competitive LECs on the Vertical services provider is able to expand its 61. Even smaller cable operators are Systems Group Leaderboard for Ethernet presence to timely reach a customer. entering the business data services providers will soon be incumbent LECs Second, a business data services marketplace. ACA, representing a fails to take into consideration that the competitor does not need to be already substantial number of small cable bulk of acquired facilities in these offering service in a given building to operators, estimates its members are transactions is outside the incumbent constrain a supplier at that location. A ‘‘making at least tens of millions and LEC territory and in fact remains in the nearby business data services upwards of $300 million of investments category of a competitive provider for competitor constrains pricing by annually to deploy facilities to support the purposes of the Commission’s BDS responding to RFPs and participating in the provision of BDS.’’ ACA’s members marketplace data. Moreover, our similar customer service bidding primarily offer Ethernet business data analysis herein takes into account the requests, which creates a pricing floor services over fiber. increased competition we have seen in without any physical presence of the the market since our 2013 data potential competitor in the nearby 62. Cable business services are collection, including increased geography. Third, concentration is reported to have grown at competitive pressure from cable greater for the declining legacy DS1 and approximately 20 percent annually for providers. DS3 channel termination services, in the past several years, and increasingly, 65. Lightower has an all-fiber network which incumbent LECs have a historical they have emphasized Internet access with service to over 22,000 locations advantage, compared to newer, and in- and managed services (i.e., security and and more than 7,000 wireless towers demand, Ethernet business data routing, controlled and secured access and small cells in 17 states in the services, which are largely competitive. to the cloud) showing a shift in demand Northeast, Mid-Atlantic, and Midwest, We therefore conclude that concentrated to higher (and more competitive) serving ‘‘enterprise, government, carrier, supplies of DS1s and DS3s in a bandwidths. Business services will and data center customers.’’ Lightower particular building or cell tower or reportedly generate more than $12 acquired regional fiber provider, similar are not reliable indicators of billion for U.S. cable providers in 2015, Fibertech Networks, in 2015 for $1.9 whether business data services pricing up 20 percent or so from their milestone billion, doubling its network reach, and decisions are made competitively. total of $10 billion in 2014. According acquired Sidera Networks in 2013 for to one analyst, business revenues for $2 billion. The company spends about E. Other Examples of Competitive cable companies will almost double [REDACTED] percent of its revenues on Effects in the Business Data Services their 2014 total by 2019. capital investment. Lightower recently Market 63. Expansion by Other Competitive added over 350 route miles of fiber in 68. Increasing Ethernet Revenue. Providers. Non-cable competitive LECs North Carolina. Comments show that, as a result of more and other non-traditional providers also 66. Industry Concentration. In the substitutes in the market, incumbent continue to invest and expand their Further Notice, the Commission LECs face declining sales in TDM network reach. For example, Zayo, considered several measures of services, notably DS1s and DS3s, founded in 2007, now has more than concentration in varying geographies, including customer loss to cable 25,000 buildings connected to its metro indicating ‘‘uniformly high levels of operators and other providers. A recent fiber network. Network connectivity concentration.’’ On a national level, report by Frost & Sullivan found that the makes up 45 percent of Zayo’s business concentration among incumbent LECs migration from TDM to Ethernet with 38 percent from dark fiber was observed, based on 2013 reported business data services is fueling double- solutions. Zayo committed to investing business data services revenues. Degrees digit revenue growth for Ethernet an estimated $740 million in major of incumbent LEC concentration also business data services, and that this network expansion projects from March were observed at geographies of unique growth rate is expected to increase as 2014 to December 2015. For the quarter building locations, census blocks, and Ethernet networks expand. In particular, ending on June 30, 2016, Zayo reported zip codes. The measures were difficult Ethernet-based services accounted for $506.7 million of consolidated revenue, to determine precisely by geography due more than 40 percent of total dedicated which includes $112 million from its to certain biases. Putting the service revenues in 2013, and Ethernet Canadian operations. Zayo recently concentration measures in context, the business data services revenues have closed its purchase of Electric Commission explained that it ‘‘d[id] not been growing by over 20 percent a year Lightwave adding an estimated 12,100 yet know how much competitive since then. The Ethernet bandwidth of route miles to its network as well as pressure different forms of supply place incumbent LECs grew by only 5.3

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percent in 2013, while the bandwidth of percent over the past 12 months. and DS3 prices were a statistically competitive providers grew by 31.6 CenturyLink’s Ethernet prices have on significant three percent and ten percent percent. Incumbent LEC business data average, declined by [REDACTED] lower, respectively, in census blocks services revenues also declined from percent over the past five years. with one or more facilities-based 2013 to 2015, while competitive LEC 71. Charter’s monthly price for a 1 competitors. However, these price and cable competitor revenue grew Gbps service as of the first quarter of changes often became statistically rapidly. Level 3 revenues increased 66 2016 [REDACTED]. Zayo reports price insignificant after implementing percent, Comcast revenues grew by 46 per unit decreases for GigE full rate changes to the analysis in response to percent, and Time Warner cable (>1000 Mbps) from $3,300 to $2,800 peer reviewers, suggesting that the data revenues increased by 73 percent over from December 2013 to December 2015, are too noisy to draw any firm the same time period. For cable overall, about a 15 percent change. Per unit conclusions. business revenues have grown at a 20 prices for fractional GigE (101–1000 75. Furthermore, as recognized by Dr. percent compound annual growth rate. Mbps) services decreased from $2,300 to Rysman, and noted by peer reviewers Notably, this revenue growth came in $1,700 over the same period, a 26 and other commenters in the record, spite of falling prices, which likely percent drop. data and modeling limitations did not indicates expansion of market output 72. Comcast once expected a price of allow for a definitive conclusion that and/or demand shifts to higher between [REDACTED] per month in incumbent LECs were not pricing bandwidth and thus more competitive 2013 for its wholesale 100 Mbps fiber competitively. Despite Dr. Rysman’s services. Vertical Systems Group found service but now charges less than detailed analysis, a causal relationship that Carrier Ethernet pricing fell by [REDACTED] a month for the same could not be ascribed to his estimates double-digit rates for all services and service. Charter reports its ‘‘average due to the possibility that some factor speed segments from 2010 to 2015. regional price of a 100 Mbps dedicated not observed in the data (e.g., lower 69. Some of the growth in cable’s service’’ was [REDACTED] per month in costs of serving a given customer) could competitive position has come at the 2013 but by the first quarter of 2016, be simultaneously producing both a expense of incumbent and competitive that per month price dropped to greater number of facilities-based LECs. AT&T, for example, calculates it [REDACTED]. ACS has similarly competitors and lower prices. Further, ‘‘lost more than [REDACTED] of its DS1 experienced per month price declines while some (disputed) evidence was business from non-affiliates just for its [REDACTED]. Zayo’s pricing presented of incumbent LEC prices between January 2013 and October trends show the monthly price per unit being lower where there was 2015, and the rate of loss is for Fast E Ethernet (10–100 Mbps) competition, other evidence was accelerating.’’ In addition, ‘‘the number service decreasing from $1,300 to $1,200 presented of dramatic increases in of new DS1 purchases from AT&T (i.e., (7.6 percent) from December 2013 to competitive entry, rapid price declines, gross, not net, additions) declined by December 2015. CenturyLink reports and service growth. Moreover, analysts nearly [REDACTED] since the end of prices for a 100 Mbps Ethernet backhaul and forecasters expect strong 2013.’’ A degree of those losses were to circuit to a wireless tower have fallen competitive growth over the next Ethernet, as AT&T reports ‘‘the number [REDACTED] percent on average over decade in business data services, and of new Ethernet purchases (i.e., gross the past five years. we find that, all else equal, competitive additions) during this period has more 73. There is also evidence that lower growth will occur exactly where than [REDACTED]. Verizon reports that bandwidth packet-based services are supracompetitive pricing is most it sees similar competitive effects experiencing price declines. For prevalent. because of cable’s increased entry into example, Legacy TWC’s 10 Mbps service 76. Current Prices at Cap. In the the business data services market. For fell from [REDACTED] per month on Further Notice, the Commission example, comparing the same three- average in 2013 to [REDACTED] per suggested that ‘‘the fact that the price month period year-over-year Verizon month by the first quarter of 2016, a 23 capped incumbent LECs have kept their saw a [REDACTED] percent decrease in percent decrease. The company’s 5 prices at the top of the cap is additional Ethernet orders with its customers Mbps service decreased from a evidence of market power.’’ ‘‘telling Verizon that trend will continue [REDACTED] monthly average to a Commenters are at odds over whether and worsen as they send more business [REDACTED] monthly average over the the lack of or minimal headroom to cable.’’ same period, a 28 percent change. between prices and the caps indicates 70. Decreasing Ethernet Prices. There the possession of market power. F. Incumbent LEC Pricing Regulation is persuasive evidence of recent However, we disagree that prices at the decreases in the prices for packet-based 74. We consider a large quantity of cap demonstrate that incumbent LECs services across all bandwidths. evidence in the record. A body of generally would have set materially According to Cox, Ethernet prices have evidence particularly relevant to the higher prices wherever their prices were declined [REDACTED] or more between foregoing discussion considered the capped and that prices for business data 2012 and 2016.’’ ACA reports smaller benefits of current incumbent LEC price services will increase significantly as a cable operators have over the past five regulations. The evidence is mixed and result of our actions in this Order. We years ‘‘decreased prices for their we find does not in most locations expect that competition will continue to Ethernet services by approximately 50 support continued, much less keep prices in check. Moreover, as we percent on average across all geographic additional, price regulation. explain in our analysis of potential areas and for all customer segments— Econometric studies performed by Dr. catch-up adjustments, the X-factors that with some members reporting that Marc Rysman, Commission staff, and were in effect between 1997 and 2005 prices have decreased even more, by 70 commenters examined the relationship may have been unreasonably high and percent.’’ Comcast observes ‘‘steady between incumbent LEC prices and the therefore the current price cap indices year-over-year decline in [retail] pricing number of business data services may be too low. In view of these for dedicated Internet access and competitors they face near a customer circumstances and our findings of Ethernet transport services,’’ e.g., prices location. Based on the Commission’s competition in the business data for its Ethernet Dedicated Internet 2015 Collection, the Revised Rysman services DS1, DS3, and transport service declined by [REDACTED] Paper showed that incumbent LEC DS1 markets, we find any concern about a

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lack of headroom between prices and TDM transport and other non-end user commenters that show that competitive the caps to be unwarranted. channel termination services is not transport is available in the vast justified. Indeed competition for such majority of census blocks in MSAs. As G. Competition in the Transport Market services has been robust since a large AT&T states, ‘‘[n]o party to this 77. Transport services are typically proportion of TDM transport services proceeding has attempted specifically to higher volume services between points were deregulated. As Frontier explains, make a case that there is a lack of of traffic aggregation which can more a ‘‘substantial majority of transport competition for transport, and certainly easily justify competitive investment revenue has been covered by Phase II not on a national basis.’’ and deployment. The Commission has pricing flexibility since the early 81. Evidence of competitive providers traditionally regulated TDM-based 2000s.’’ AT&T further states that ‘‘the investing in transport services, rather special access services in two distinct data collection strongly supports than purchasing from incumbent segments: End user channel nationwide Phase II relief for transport.’’ carriers, reinforces our observations. terminations and dedicated transport; It cites data showing the widespread While business data services providers and other special access services. The deployment of competitive transport may choose to purchase transport— provision and sale of TDM-based special networks, including the fact that ‘‘as of either as a long-term solution to reach access services has reflected, and 2013, competitive providers have a customer or a temporary cost while continues to reflect, the different deployed competing transport networks implementing self-provisioning plans— competitive dynamics that characterize in more than 95% of census blocks with many have deployed transport instead the two sets of services. When the special access demand (and about 99% of buying the service. Commission adopted the Pricing of business establishments are in these 82. More broadly, we understand that Flexibility Order, it distinguished MSAs).’’ Although INCOMPAS asserts transport service represents the ‘‘low- between these two sets of TDM special that Commission rules requiring certain hanging fruit’’ of the business data access services and required price cap incumbent LECs to provide unbundled services circuit, which makes it LECs to make different levels of transport services is evidence of particularly attractive to new entrants. competitive showings to obtain pricing underlying market power, the record In the Pricing Flexibility Order, the flexibility for each. The Commission’s overall reflects a competitive landscape Commission noted that competitors pricing flexibility rules also reflect this where customers often combine often enter the transport market before distinction. Section 69.709 of the competitive transport with channel the channel termination market, and we Commission’s rules governs the grant of terminations supplied by incumbents. continue to adhere to that view. The net pricing flexibility for special access According to CenturyLink, it uses present value of the cash flows services other than the channel incumbent LEC transport facilities for associated with the relatively high termination between the LEC end offices expected per-unit cost of deploying a ‘‘less than half’’ of the end user channel and customer premises, which includes new, relatively low-capacity channel terminations it purchases as a interoffice facilities and channel termination and the expected revenue competitive provider outside of its terminations between an incumbent derived from the sale of that channel incumbent footprint. Moreover, data LEC’s serving wire center and an IXC. termination, especially for DS1 and DS3 from the 2015 Collection show that ‘‘the Section 69.711 of the Commission’s channel terminations, would be vast majority of locations with special rules governs the grant of pricing expected to be significantly less than the access demand have’’ competitive fiber flexibility for channel terminations relatively low expected per-unit cost of within close proximity. AT&T identified between LEC end offices and customer deploying a new, relatively high- a number of major urban areas that had premises. All of these elements capacity inter-office transport facility, comprise the service provided to the as many as 28 competitive transport and the expected revenue derived from end user. The Further Notice followed providers and cited a number of second the sale of that facility. Thus, in the face the Commission’s precedent by defining tier MSAs which commonly have ‘‘over of increased demand for transport dedicated service as a service that a dozen separate competitive transport services, we observe responsive market ‘‘transports data between two or more providers.’’ conditions that support the deployment designated points’’ and aspired to create 80. Competitive providers are split on of competitive facilities, through either a ‘‘framework [that] reflect[s] how the the question of whether the transport new entry or conversion. market operates today.’’ market is competitive. XO, before 78. Commenters, including becoming part of Verizon, found H. Conclusions competitive providers, support ‘‘considerable competition for 83. Packet-based Services. Packet- maintaining this distinction. Dr. transport’’ and that ‘‘numerous CLECs based services represent the future of Rysman also acknowledged the frequently are collocated in the offices business data services. We believe the relevance of this distinction in his where XO is located.’’ Other higher bandwidth capabilities of these paper. This distinction is rooted both in competitive providers dispute the services will lead to greater returns on the different functionalities these sets of competitive nature of transport services investment and in turn, greater services deliver and in the different rate and assert that incumbent LECs are able incentives for facilities-based entry into elements price cap carriers use to price to charge supracompetitive rates for the business data services market. In these services. We find that this TDM transport services and should contrast, DS1s and DS3s are legacy distinction remains valid in the current therefore be price regulated. For services that now compete against special access marketplace and employ example, Sprint alleges that ‘‘along packet-based broadband services such it in our approach to reforming our many routes, competitive providers are as EoHFC services in the same regulation of TDM transport services. simply unavailable’’ and asserts that geographic market. We find this 79. In analyzing the competitiveness competition for transport service is the competition, or potential competition of TDM transport services, based upon exception rather than the rule. However, between legacy and packet-based the 2015 Collection and the record, we Sprint provides no data or anecdotal services, sufficient enough to discipline find strong evidence of substantial evidence to support its assertion and to pricing. In many instances, incumbent competition, as well as market rebut the evidence from the 2015 LECs are now on similar footing to conditions that suggest regulation of Collection and from incumbent LEC entrants (even if they may still on

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average be advantaged), as they often deemed competitive. We then outline a pricing is unnecessary and could in fact also deploy new facilities to meet bright-line competitive market test for inhibit investment in this dynamic customer demand (because even a initially determining whether a given market by preventing providers from relatively low demand customer today price cap area will be treated as being able to obtain adequate returns on may not be a low demand customer competitive in the provision of DS1 and capital. Additionally, the benchmark tomorrow, and copper loop generally is DS3 end user channel terminations and pricing proposals in the record were incapable of meeting higher demands). certain other business data services by administratively complex and unlikely As a result, we find the marketplace for the incumbent LEC. This test will treat to reliably result in just and reasonable packet-based business data services is as competitive a particular county if 50 rates. competitive. percent of the locations with BDS 88. We further find that packet-based 84. TDM-based DS1s and DS3s. demand in that county are within a half services are best not subjected to Within the broader record, we mile of a location served by a tariffing and price cap regulation, even acknowledge that, by the nature of competitive provider based on the 2015 in the absence of a nearby competitor. legacy services, incumbent LECs have a Collection or 75 percent of the census Packet-based services represent the degree of concentration in certain blocks in that county have a cable future of business data services and are geographies for DS1 and DS3 services. provider present based on the readily scalable, so competitive LECs We also recognize a changing industry Commission’s Form 477 data. Any price are generally very willing to deploy with increasingly competitive options, cap incumbent LEC serving special such services beyond their footprints particularly at higher bandwidths, and a access customers within that county because they can expect to earn decreasing demand for these legacy will be relieved of ex ante pricing increasing revenues from their initial services. Our analysis suggests that any regulation. Furthermore, we adopt a investment with few additional costs. In prior advantage an incumbent might process for regularly updating the list of contrast, the record shows that have enjoyed at lower bandwidths is competitive counties in a way that competitive LECs are generally now less competitively relevant in light accounts for changing competitive unwilling to extend their legacy TDM of customer demand that attracts a conditions but also avoids the need to networks, especially beyond a half mile number of traditional and non- undergo burdensome data collections. to provide DSn services. Consequently, traditional competitors that are entrants are better placed to win improving legacy cable networks and A. Regulatory Framework Applicable to customers in packet-based markets than expanding with new facilities to meet Packet-Based Business Data Services in those for TDM services. Packet-based demand. This is further supported by and to TDM-Based Services Providing services are new services, experiencing the degree of sunk investment made by Bandwidths in Excess of a DS3 both rapid growth, and rapid change in traditional and non-traditional 87. After reviewing the record and standards, throughput and usage, and so providers of business data services to considering the Commission’s goals to regulation is more likely to impose long- compete. We conclude that incumbent ensure that rates for business data term costs by dissuading providers of LEC market power has been in many services are just and reasonable, while packet-based services from entering. cases largely eliminated, and elsewhere also encouraging facilities-based 89. We do, however, remind is declining thanks to increased competition and facilitating technology stakeholders that packet-based competition in business data services transitions, we decline to re-impose any telecommunications services remain markets. form of price cap or benchmark subject to the Commission’s regulatory 85. Transport. Based on the 2015 regulation on packet-based business authority under sections 201, 202, and Collection, the record, and our market data services or on TDM-based services 208 of the Act. These statutory observations, we find substantial providing bandwidths in excess of the provisions allow the Commission to evidence of competition in TDM-based level of a DS3, and we eliminate that determine whether rates, terms, and transport markets, which, accordingly, regulation to the extent it exists today. conditions are just, reasonable, and not suggests that price regulation is not In so doing, we impose no new unreasonably discriminatory in the required. For these reasons, we regulation on the packet-based and context of a section 208 complaint conclude that TDM-based transport is higher capacity TDM-based business proceeding. competitive. data services marketplace, which will be free from ex ante pricing regulation, B. Regulatory Framework Applicable to IV. An Administrable Framework for regardless of the type of entity providing TDM Transport Services Business Data Services Grounded in the service. Our market analysis does 90. We eliminate all ex ante pricing Our Market Analysis and the Record not show compelling evidence of market regulation of price cap incumbent LEC 86. We intend to apply ex ante rate power in incumbent LEC provision of provision of TDM transport and other regulation only where competition is these services, particularly for higher transport (i.e., non-end user channel expected to materially fail to ensure just bandwidth services. Moreover, even if termination) special access services. The and reasonable rates. As a matter of the record demonstrated insufficiently 2015 Collection and the record policy we prefer reliance on robust competition, proposals to apply demonstrate widespread competition in competition rather than regulation, price cap regulation to packet-based the market for these services and wherever purchasers can realistically services were complex and not easily generally support using a deregulatory turn to a supplier beyond the incumbent administrable and did not reflect the approach for TDM transport and other LEC. Based on these principles and our fact that costs to serve individual non-end user channel termination market analysis, we find regulation is customers vary. Likewise, we decline to services. unnecessary for packet-based services, impose benchmark pricing regulation on 91. We conclude that competition for TDM transport services, and higher incumbent LEC packet-based business TDM transport services is sufficiently bandwidth (i.e., above DS3) TDM end data services or on TDM-based services pervasive at the local level to justify user channel terminations. We also of bandwidths in excess of the level of relief from pricing regulation conclude that we should refrain from ex a DS3. Because our market analysis nationwide. Commission staff analysis ante pricing regulation for TDM end- shows that such services are subject to of competitive provider responses to user channel terminations in areas competition, anchor or benchmark question II.A.5. of the 2015 Collection

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shows that in all price cap territories, 93. Moreover, our goal is not absolute The market for these services is 92.1 percent of buildings served were mathematical precision but an declining as customers opt for more within a half mile of competitive fiber administratively feasible approach that flexible packet-based business data transport facilities. Additionally, for all avoids imposing undue regulatory service offerings. Moreover, the census blocks with business data burdens on this highly competitive economics of deploying facilities to end services demand, 89.6 percent have at segment of the market. Refraining from user locations makes competitive entry least one served building within a half pricing regulation for transport services in response to demand less likely than mile of competitive LEC fiber. As we nationally achieves the proper balance with the TDM transport market segment, concluded in the foregoing market between precision and administrability. which is typically at higher-bandwidths analysis, the presence or reasonable It also avoids unnecessary disruption of and requires less investment per unit of proximity of a single competitor’s existing special access transport sales traffic than required for channel facilities represents competition given arrangements. The alternative would be terminations. In light of these the high sunk cost nature of the to impose significant regulatory burdens considerations, we are providing business data services market. Our data on all participants in the market with an additional protections for this portion of are conservative given the fact that the additional layer of regulatory the business data services market as the 2015 Collection includes only a subset complexity that would undermine market transitions to new technologies of all hybrid fiber coax facilities predictability and ultimately hinder by not eliminating ex ante pricing deployed by cable providers (i.e., only investment, including in entry, and regulation in every area. Instead, we Metro-Ethernet headend-connected fiber growth. Instead, we believe that adopt a competitive market test that will feeder plant) and given that the 2015 providing regulatory relief in this preserve ex ante price regulation in Collection data are from 2013 and market segment will foster conditions those limited number of areas where we therefore necessarily understate the that will continue to encourage predict there is a substantial likelihood level of actual competition for transport competitive entry and provide incentive that competition will fail to ensure just services by not including competitive for further investment in fiber transport and reasonable rates. In addition, even facilities that have since been deployed. facilities. Finally, our section 208 in those areas where we eliminate ex We find that the high percentage of complaint process represents a ante pricing regulation, the protections locations within a half mile of continuing safeguard against unjust and of section 208 will continue to apply. competitive fiber and the high unreasonable rates. 97. Specifically, the competitive market test we adopt today assesses the percentage of census blocks with at least C. Competitive Market Test Criteria for one building within a half mile of availability of actual and likely DS1 and DS3 End User Channel competitive options in the provision of competitive fiber justify our refraining Terminations from applying pricing regulation across last-mile services and subjects to ex ante 94. As noted above, we decline to all price cap areas to TDM transport pricing regulation only circuit-based impose ex ante pricing regulation for services. DS1 and DS3 end user channel packet-based business data services and terminations and certain other business 92. We recognize that our decision in eliminate entirely ex ante regulation for data services provided by price cap all likelihood will leave a relatively TDM-based services providing incumbent LECs in areas the test finds small percentage of census blocks (with bandwidths in excess of a DS3 and for lack a competitive presence. We base an even smaller percentage of overall TDM-based transport services. Based on the competitive market test on the demand) price deregulated and without the record, we have determined that geographic unit of a county or county- the immediate prospect of competitive such forms of regulation are not equivalent (hereinafter, county) which transport options. However, greater necessary because we expect that significantly reduces the over- and harm—primarily manifested in the competition will ensure just and under-inclusivity issue posed by MSAs discouragement of competitive entry reasonable rates for those services. which the Commission highlighted in over time—would result if we were to 95. At the same time, many the Suspension Order and avoids the attempt to regulate these cases than is commenters have urged us to take a administrability issues posed by smaller expected under our deregulatory different approach with respect to ex geographic units of measure. The test approach. In contrast, lower entry ante regulation of DS1 and DS3 end user uses data demonstrating the presence of barriers for deploying transport services channel terminations that use legacy, competitive facilities from the 2015 than for end user channel termination circuit-based technology. They raise Collection in combination with the most services and increasing demand for various arguments about why they recent data on cable deployment from transport means that regulatory relief believe this portion of the business data the Form 477 data collection to will provide incentives for competitive services market requires that we not determine which counties to regulate. providers to deploy additional transport eliminate ex ante price regulation 98. While there is no clear consensus facilities to compete for this demand. altogether. To the extent commenters in the record on the right approach to While competition may not be suggest that there are no circumstances the competitive market test, we do see universal, it is sufficiently widespread in which we should eliminate ex ante a few points of general agreement. The for us to have confidence that a pricing regulation, we disagree with various proposals use bandwidth combination of these factors will those contentions. Our decision in this demarcation points and competition test broadly protect against the risk of Order will promote investment, criteria based on counting providers in supracompetitive rates being charged by deployment, and competition in the or near a geographic area using the 2015 price cap LECs over the short- to business data services market in a way Collection data. Beyond those few high- medium-term. To the extent there are that will benefit all end users, including level points of agreement, there are vast points of aggregation that are not served those that currently use DS1s and DS3s. differences of opinion among by competitors, the relatively high 96. We determine it is appropriate to commenters on the current state of demand at these points makes it likely take a different approach with respect to competition in the marketplace, on the that a competitor could justify investing the elimination of ex ante pricing need for a competitive market test, and in competitive transport facilities to regulation of legacy, circuit-based DS1 on what a competitive market test serve that demand. and DS3 end user channel terminations. should entail. Generally, competitive

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LECs needing to purchase business data 101. In determining where we can 1. Availability of Data To Measure services as inputs at wholesale, mobile appropriately avoid applying ex ante Competition wireless providers not affiliated with an price regulations for certain special 103. 2015 Collection. The most incumbent LEC, Windstream and access services, we balance the benefits intuitively relevant dataset in our Verizon (both net buyers), and end-user and costs of such regulation. We toolbox is the one collected in response representatives, such as Ad Hoc, recognize that in counties where there to the Data Collection Order. That data interpret the 2015 Collection as largely currently appears to be few competitive collection covered circuit- and packet- showing a non-competitive market, alternatives for consumers of DS1 and based business data services and requiring regulatory intervention at all DS3 end user channel terminations that required responses from providers of but the highest service bandwidth the benefits of ex ante price regulation both dedicated and best-efforts last-mile levels, i.e., in excess of 1 Gbps. On the likely outweigh the costs since this access services (albeit exempting small other side, cable companies and likely indicates broad entry in such providers of best-efforts services), as competitive fiber providers that do not regions may not occur. However, in well as purchasers of business data typically purchase business data counties where the competitive services. In short, the data collection services at wholesale, AT&T, and other pressures are able to discipline prices came as close as practicable at the time incumbent LECs (net sellers) see a for a large fraction of customers, as to providing a ‘‘clear picture of all highly competitive marketplace with no discussed in our market analysis, we see competition in the marketplace.’’ need of regulatory intervention. 99. The test we adopt utilizes certain the opposite to likely be the case. Ex Despite this, some commenters question core attributes of a test on which there ante pricing regulation can have the continued relevance of the data, was consensus in the record, including negative features. For example, in a citing cable providers’ aggressive establishing a threshold number of county where entry is relatively expansion into business data services providers to find competition, widespread, the absence of entry in since the data collection. These employing a defined geographic area of specific areas may be due to regulated criticisms overstate the limitations of measurement, and basing the test on prices inadvertently being set below the 2015 Collection. It is unprecedented data from the 2015 Collection and competitive levels. Such prices make in scope and remains a useful and updating the results of the test to ensure entry unprofitable, are harmful to long appropriate basis for our new regulatory they continue to reflect the extent of run incentives to invest, can lead to framework. That said, we acknowledge competition in the market. That said, it inefficient short run levels of that while the 2015 Collection is well also represents a departure from some of production and consumption, and can suited for the initial evaluation of the proposals in the Further Notice in prevent entry indefinitely. This competition, it is unsuitable for that rather than focus on burdensome counsels toward being especially wary measuring competition going forward. pricing regulation, it takes a dynamic of imposing price caps except where We also acknowledge that the 2015 and forward-looking approach to competitive service seems most unlikely Collection does not fully capture the evaluating the benefits and costs of to be available within a reasonable time extent of cable deployment to date. regulation. The test will be updated horizon. This perspective of balancing 104. Although some commenters periodically by relying on data the the benefits and costs of regulating propose refreshing the data with Commission routinely collects, so it prices, as well as the importance of periodic data collections, most does not require additional and having an administrable system, leads commenters strongly oppose the idea as potentially burdensome data us to adopt the framework discussed being too burdensome and even ‘‘an collections. We find this approach below. In our judgment, we expect this obstacle to competition.’’ To comply strikes a reasonable balance between framework to appropriately balance our with the 2015 Collection, for example, precision and administrability, will desire for fostering a dynamic and some carriers were ‘‘forced to pull data encourage continued investment in and competitive marketplace with the need manually from numerous billing and deployment of business data services, to ensure rates that are just and data systems, diverting limited time and and will foster a market-driven reasonable. resources from other critical projects.’’ transition from legacy circuit-based For an uncertain number of years, 102. Some parties have expressed services to newer packet-based services providers would be required ‘‘to concern about a potential spike in prices and other technologies. continuously track and maintain . . . all 100. We take a pragmatic approach to in areas deregulated as a result of the company documents that may be formulating a competitive market test by competitive market test. We believe, responsive . . . requiring business considering what data are available to however, the test adopted today strikes employees and counsel to devote us to evaluate competitive conditions the appropriate balance to apply ex ante significant resources to conduct broad both at present and in the future. We regulation where warranted and to searches for such documents and then determine what geographic unit is allow competitive forces to thrive absent evaluate their responsiveness.’’ We sufficiently granular and at the same ex ante regulation where there is believe the costs of further data time administrable for the Commission adequate competition. If prices were to collections would not justify the as well as the industry. Finally, we rise following deregulation, then we benefits obtained from having updated consider which criteria best reflect anticipate that competition will work to data. Below we find that an alternative competitive conditions in the market drive these prices to competitive levels. dataset can be used to update our while still furthering the Commission’s Moreover, customers are protected in competitive market test with no policy objectives. The ultimate goal of the near term from harm that would additional compliance burdens while the test, however, is not to definitively result from any rates, terms, or still effectively capturing market determine competitive market conditions that are unjust and competition as compared with a new conditions but rather to determine on unreasonable or unjust and more comprehensive data collection. balance which areas are best positioned unreasonably discriminatory because We therefore decline to extend the 2015 to benefit from price deregulation and the Commission’s section 208 complaint Collection. which areas will benefit more from process continues to be available for 105. Form 477 Data. In 2013, as the continued price cap regulation. common carriage services. National Broadband Map data collection

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was nearing its completion, the relatively current. Moreover, because more stable unit of regulation than Commission issued the Modernizing these data are collected by the MSAs. While county boundaries Form 477 Order, which redesigned and Commission, we are confident in their occasionally change, and sometimes updated the requirements first spelled integrity. counties are split, or merged or new out in the 2000 Data Gathering Order. 107. In fact, some commenters used ones are created, such changes are To comply with the Form 477 data Form 477 data to supplement the data relatively infrequent. For example, in collection requirements, all facilities- from the 2015 Collection in their the decade ending 2010, there were only based fixed broadband providers, analyses and proposed that we use it two substantial county boundary including cable operators, are required going forward. Other commenters, while changes, both in rural Alaska, and a to report data on all census blocks advocating using Form 477 data, also merger of a county and a city. In where they make fixed broadband suggested modifying Form 477 to contrast, MSA boundary changes are services available to residential and replicate the 2015 Collection going more frequent and far reaching. For business customers at bandwidth speeds forward. We are reluctant, however, to example, in 2003, 41 counties were exceeding 200 kbps in at least one impose additional reporting burdens on moved from an MSA to a micropolitan direction. Among other things, providers for the same reasons we statistical area, and changes were made providers also report ‘‘the maximum rejected proposals to refresh the 2015 to statistical area boundaries in every advertised speed for each technology Collection, and therefore decline to state. used to offer service in each census amend Form 477 to mirror the data 110. The Commission’s 2015 block.’’ The Commission collects these gathered by the 2015 Collection. We Collection shows an average of 376 data semi-annually and makes the data believe the data currently collected by buildings with last-mile access demand available to the public. the Form 477 is already well suited to in a county, whereas the average the needs of the competitive market test. number of buildings with last-mile 106. We find the Form 477 data well Further, we will implement sufficient access demand in an MSA is 2,713. This suited for supplementing the 2015 safeguards to allow us to use Form 477 statistic shows that counties are much Collection in the initial analysis of in its present state. more granular geographic units for market conditions and a conservative administering the competitive market proxy for competitive deployment going 2. Appropriate Geographic Measure test. Furthermore, using census data we forward. Form 477 broadband service 108. In terms of granularity, our goal can compare the number of firms and availability data necessarily imply the through the years of regulating the establishments and the employment presence of broadband-capable cable business data services market has been levels in counties and MSAs. Those data network facilities, which makes it an ‘‘to define . . . geographic areas also demonstrate that counties allow for ideal dataset to ensure the competitive narrowly enough so that the competitive a more granular analysis of competitive market test accounts for competition conditions within each area are conditions than MSAs: [‘‘Table 1. MSA- from cable operators. We recognize, reasonably similar, yet broadly enough County Size Comparisons’’ omitted]. however, that the Form 477 data do not to be administratively workable.’’ After 111. Counties are also significantly measure the presence of other considering various possible geographic less granular than smaller geographic competitive providers. That being said, areas to use for the competitive market units such as buildings, census blocks, given the long-term sunk cost nature of test, we conclude that basing the census tracks, and ZIP codes, and, thus, competitive provision, it is unlikely that competitive market test at the county significantly more feasible for the locations that were previously level strikes the best balance between Commission and industry to administer. competitive (as evidenced in the 2015 being sufficiently granular and Use of counties has another advantage Collection) would become administratively feasible. We reject as well: Counties do not cross MSAs. noncompetitive. The key question thus other proposals raised in the record, Consequently, there is a ready becomes whether the Form 477 data can including use of MSAs, census blocks, translation of the FCC’s pricing be used as an updating mechanism, not census tracts, and ZIP codes. flexibility regime to counties, which merely for the extension of cable 109. Counties. As suggested by will minimize disruption where a supply, but as a proxy for the extension various commenters in the record, we county’s regulatory status is not of competitive end user channel agree that the geographic area we use for changed by this Order. terminations more generally. While the the competitive market test should be 112. Counties provide a convenient, measure is unlikely to be perfect, we larger than census blocks or census natural administrative unit for capturing conclude the Form 477 portion of the tracks, but smaller than MSAs. We find competitive effects, and competitive competitive market test is a good match that counties are granular enough to effects from cable operators in for the 2015 Collection as a means of capture reasonably similar competitive particular. The competitive presence of capturing future changes. Moreover, conditions yet large enough to be cable operators will generally conform given cable operators’ ongoing administratively feasible and are to county boundaries since cable aggressive deployment of end user supported in the record. Counties are franchises have historically been channel terminations, which dwarfs that significantly more granular geographic awarded, with some exceptions, on a of non-cable suppliers, it is highly likely units than MSAs and thus reduce the county-by-county basis. Cable operators the cable-only measure found in the risk of misidentifying competitive or may not provide cable service without Form 477 data will capture the vast bulk noncompetitive geographic areas. a franchise from a franchising authority. of additional deployments because it is Counties are subdivided into census A franchise authorizes the construction likely that most non-cable competitive blocks. Presently, there are 3,233 of a cable system over public rights-of- extension of business data services counties in the U.S., as compared to 389 way, and through easements, within the networks will occur where cable is also MSAs, of which 204 had been granted area to be served by the cable system. deploying or has already deployed. pricing flexibility relief. Counties have Thus, a franchise license allows a cable Importantly, these data are updated on another advantage over MSAs, in that operator to overcome many entry a semiannual basis and, therefore, any MSAs do not cover all of the price cap barriers associated with buildouts and periodic re-evaluation of competition in incumbent LEC study areas, while creates more certainty in anticipated specific markets will always be counties do. Moreover, counties are a buildout revenues. With those hurdles

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out of the way, it is in the cable While this level of granularity might be competitive market test for incumbent operator’s interest to build out an more precise, it creates a range of other carriers, competitive providers and the extensive network in the jurisdiction. problems. For one, buildings with Commission. Indeed, a cable operator’s franchised demand is a constantly changing 3. Appropriate Level of Competition cable system is often extensive statistic as businesses expand or throughout the franchised county. downsize. Census blocks are also 117. Upon examining the structure of 113. Metropolitan Statistical Areas subject to change as the Census Bureau the business data services industry and (MSAs). We conclude that MSAs are not revises its measurements. Another issue the record before us, we find that a well suited to be used as the geographic is the administrative burden metrics like combination of either one competitive area for determining competitive effects. these are likely to impose on providers provider with a network within a half The Office of Management and Budget and the Commission: There were mile from a location served by an (OMB) developed MSAs for purposes of 658,485 census blocks and 1,216,977 incumbent LEC or a cable operator’s compiling statistics for a set of certain buildings with last-mile access demand facilities in the same census block as a geographic areas, defining MSAs as reported in our data collection. As a location with demand will provide ‘‘geographic entities that contain a core practical matter, regulation at such a competitive restraint on the incumbent urban area of 50,000 or more granular level is not administratively LEC that will be more effective than our population, and often includes adjacent feasible, either for incumbent carriers, legacy regulatory regime in ensuring counties that have a high degree of competitive providers or the rates, terms, and conditions are just and social and economic integration with Commission. It ‘‘would inevitably lead reasonable. Our conclusion that a the urban core, as measured by to a patchwork of differing regulations ‘‘nearby BDS competitor’’ provides commuting to work.’’ Furthermore, from census block to census block (or sufficient competition to forgo ‘‘OMB may add counties or principal from building-to-building).’’ It would regulation of an incumbent LEC’s cities to an MSA, remove them, or even make it exceptionally difficult for provision of BDS is based on three create new MSAs.’’ Although OMB regulated carriers to set prices subject to findings: (1) A determination of the periodically updates its list of MSAs to regulation in some areas and not in geographic scope within which a likely reflect changes in social and economic others and for competitive providers to BDS provider can realistically compete integration between urban centers and analyze their opportunities to enter a with an incumbent LEC; (2) a finding outlying areas, the Commission market. Finally, it would significantly that one such competitor in addition to ‘‘adopted a list of 306 MSAs based complicate the Commission’s efforts to the incumbent LEC provides a reasonable degree of competition in BDS largely on data compiled from the 1980 oversee business data services markets supply; and (3) a finding that the census, and froze that list for use in all or to conduct enforcement proceedings benefits of such competition outweigh pricing flexibility petitions.’’ Thus, even that could potentially involve hundreds the potential unintended costs of if MSAs were an appropriate geographic or even thousands of individual census regulation. area for competitive analysis and blocks or buildings. We therefore regulation, the Commission’s list of conclude that the geographic scope of a. Effect of a Nearby BDS Competitor MSAs does not reflect the current state the competitive market test must be 118. The record in this proceeding of population and business conditions. larger than buildings and census blocks. This circumstance has caused confusion indicates that providers actively among providers that have submitted 116. Census Tracts and ZIP Codes. compete for customers located within petitions to the Commission containing Others suggest the Commission use about a half mile from their networks by data calculated using different MSA census tracts or, alternatively, ZIP codes bidding on requests for proposals and definitions. to analyze markets in the competitive sending their sales personnel to offer 114. In addition, MSAs are too large market test. Census tracts are statistical their services. When bidding on a to reflect the scope of competition. subdivisions of a county updated each contract, providers often ‘‘have no way Competitive LECs have consistently decennial census. Based on the 2015 of knowing with any reasonable degree argued throughout this proceeding that Collection data, the median census tract of certainty which other providers are the Commission’s previous MSA had a land area of 1.71 square miles. capable of serving that customer over analysis ‘‘ignored the wide variability of U.S. Postal Service ZIP codes identify their own facilities’’ and, therefore, competitive conditions across a large the individual post office or when bidding on an RFP they ‘‘make geographic area.’’ The Commission metropolitan area delivery station much rougher assessments of the agreed in the Suspension Order, associated with mailing addresses. ZIP possibility of facing competitive bids’’— analyzing business density in six MSAs codes are also subject to periodic a dynamic that ‘‘ensure[s] that the and finding significant ‘‘variance of updates, and zip code boundaries can be benefits of competition redound to all competitive conditions within an MSA’’ difficult to obtain. Census tracts are less customers in an area where competitive because ‘‘[t]he resulting statistical entity granular than census blocks but more facilities have been deployed, not just can be large, including the entirety of granular than ZIP codes and MSAs; those who are located within a certain distant counties if those counties census tracts and ZIP codes are distance of a network, or that offer a contain exurban areas linked to the core considerably more granular than MSAs. certain level of revenues.’’ Accordingly, by commuting behavior.’’ Even some As of the 2010 census, there were we determine nearby competitive incumbent LECs that initially had 73,057 census tracts in the U.S. network facilities exert competitive argued for the continued use of MSAs compared to 11,078,297 census blocks pressure on incumbent LECs whether or eventually accepted the use of more and 389 MSAs. In 2016 there were not their network is within a half mile granular areas. 33,120 five digit ZIP CodeTM Tabulation of a customer’s location. 115. Buildings and Census Blocks. Areas (ZCTATM) in the U.S. As with 119. We further find that wireline Some commenters express a strong buildings and census blocks, the sheer providers of BDS are commonly willing preference for regulation focused on number of census tracts and ZIP codes, to extend their existing network out individual buildings with special access along with their variability over time, approximately a half mile, and in some demand and, as a compromise, propose significantly undermine the instances further, to meet demand. That to regulate on a census block level. administrability of using them for the is, the cost of meeting demand within

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one-half mile, including the costs of actual supply by a nearby competitor reasoning in the Qwest Phoenix decision network extension and customer likely arises when existing suppliers’ inapposite. connection, is usually less than the offerings are reasonable in both price 123. Some competitive LECs urge us present value of expected net revenues service characteristics. That is, active to deregulate only locations with four that buildout to that location will entail. supply occurs most rapidly in locations providers (one incumbent LEC and three This is true for cable companies who where the most profits are likely to be competitors) with last-mile connections today are major and aggressive business obtained, including where, for example, in the building or in the census block. data services suppliers. For example, in the transition to packet-based services is We find that such an approach would 2013 cable already supplied BDS, most valued. In other words, active result in substantial overregulation of largely over fiber facilities, to more than supply is most likely to occur where the the business data services market and one in ten locations with BDS demand, costs of missing competition are therefore we decline to adopt it. The and may well reach 23.5 percent of greatest. Equally, active supply is most primary driver of the number of locations today. We additionally assume likely to be postponed where the connections at any location is the nature as a reasonable approximation that a benefits of additional competition are of demand in the location. We fully cable company competes for any BDS small, because the potential profit expect locations with a single customer demand, or will do so within a few gained from extending supply is small. to typically have only one provider. years, wherever it is supplying mass 121. We reject some commenters’ Even those locations with multiple market broadband services over its own characterization of the Qwest Phoenix customers may only have a single network, or will do so sometime over Order as a blanket finding by the provider—the provider that won the the next few years. We find this is so Commission that two competitors are bidding process to supply the location. even for locations with BDS demand insufficient to constrain incumbent LEC However, as we explain above, the high that are not currently connected to the pricing. Although the Commission sunk network cost nature of this cable company’s network, and which raised concerns about the competitive industry indicates that even as few as may be more than a half mile from a nature of a duopoly in that order, it did two nearby providers have the incentive fiber-node (because cable companies are not categorically reject the possibility to undercut each other’s price to win actively driving fiber closer to all end that a market with two competitors customers so long as they at least users, and so extending fiber to a new could represent sufficient competition recover the incremental cost of location beyond that distance may be to restrain supracompetitive pricing by extending supply to any customer. economic given broader network providers. To the contrary, it Accordingly, requiring even two, let objectives). In sum, we find a wireline specifically recognized that ‘‘under alone three or four providers to be supplier is an effective competitor in certain conditions duopoly will yield a already supplying a given location as meeting BDS demand at a location if it competitive outcome.’’ We find that the the rule for deregulation would result in either delivers BDS to a location or has high sunk cost nature of the BDS market overregulation in numerous locations a network within one half mile of the gives providers the incentive to extend that have competitive choice. This issue location with BDS demand, and/or is a their network facilities to new locations would become even more pronounced cable company with a widespread HFC with demand even when those locations as wireline network providers compete network that surrounds the location contribute revenue only marginally for more locations. On the basis of the with BDS demand. We hereafter refer to above the incremental cost of the 2015 Collection, deregulating locations such competitors as nearby competitors, network extension. In their comments, with at least three (an incumbent LEC and to their networks as nearby incumbent LECs substantiate this plus two other facilities-based networks. conclusion by citing substantial losses providers) or four (an incumbent LEC they have recently incurred, primarily plus three other facilities-based b. Effect of a Single BDS Competitor to new entrant cable operators. They providers) suppliers would mean less 120. We find that, in the market for also provide examples of their responses than one percent of locations would be business data services, there is a to cable competition involving both price deregulated and would re-impose substantial competitive effect when a price reductions and new service price regulation on the vast majority of wireline competitor is present to offerings. Reports by cable providers of locations. Such a radical change would discipline rates, terms, and conditions significant year-over-year growth in impose substantial regulatory costs on to just and reasonable levels. We arrive their BDS revenues corroborate this incumbent LECs—and consequently on at this conclusion because there is a story and show a shift in demand to small businesses, wireless carriers, and general expectation that the largest higher (and more competitive) other consumers—and would benefits from competition come from bandwidths. dramatically reduce incentives for all the presence of a second provider, with 122. We also distinguish our analysis carriers to build out next-generation added benefits of additional providers here from that which the Commission infrastructure, which directly falling thereafter, in part because, employed in the Qwest Phoenix order. contravenes our goal of encouraging consistent with other industries with Although our competitive market test investment and innovation. large sunk costs, the impact of a second takes into account competition only 124. Though we believe the record is provider is likely to be particularly from providers of copper, fiber, and convincing on the impact of one nearby profound in the case of wireline coax last-mile facilities, in many competitor ensuring reasonably network providers. A wireline provider locations there are likely more competitive outcomes in the medium is willing to cut prices to as low as the competitors present than the two term (i.e., over several years), even if it incremental cost of supplying a new captured by the test, such as providers were not, the inability to draw firm customer, requiring minimal of fixed wireless last-mile services, conclusions from the data permits the contribution to its sunk costs. In including providers of emerging 5G last- Commission to make a predictive addition, we find that the presence of a mile transmission technology, which judgment regarding the impact of nearby competitor is likely to prevent promises to be widespread. Thus, regulation on the market. substantial abuse of market power, technological changes that have Notwithstanding whether one nearby whether through high prices or lack of occurred or are likely to occur in the competitor is sufficient for a market to innovation, and equally that a lack of near future make the Commission’s realize the substantive benefits of

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competition, we note that the 2015 the record before us indicates, both of negative effects accumulate over the life Collection analysis did not permit a these side effects are likely in BDS of the cap. definitive conclusion on incumbent LEC supply. Moreover, regulation in rapidly 128. Second, given that most wireline market power. In addition, as growing markets is riskier than in network costs must be sunk for periods demonstrated by the market analysis in otherwise similar stable or stagnating of between 20 years and sometimes two this Order, the evidence in the record markets. or more times that length of time, suggests significant competition for 127. First, it is very difficult for firms these business data services. We entrants and incumbents looking to to set efficient prices when they must conclude the best policy to encourage reinvest are extremely sensitive to any tariff and for a regulator to estimate the competition is to refrain from ex ante increases in costs that might reduce pricing regulation when the competitive efficient price level in a business with their capacity to recover these costs. In market test adopted in this Order is the following characteristics: High particular, a small rise in costs that satisfied. We find this policy to be uncertainty due to frequent and often remains in place over a long time period sound even if our market analysis does large unforeseen changes in both can have a substantial impact on not result in the perfect regulation of customer demand for services and whether a particular investment every building in the country—for any network technologies that are hard to opportunity is viewed positively. That administrable rule will necessarily be anticipate and hedge against in is exactly what regulation does. It overinclusive in some cases and contracts with customers; a complex set directly raises incumbent’s costs, underinclusive in others. Consistent of products and services, which are making them unwilling to invest and with our precedent, we conclude that tailored to individual buyers; costs of hence making them less effective competition is the preferred method of provision that vary substantially across competitors, and it creates an additional ensuring just and reasonable rates, terms different customer-provider source of uncertainty that entrants must and conditions and preventing combinations; and large irreversible contend with when evaluating entry. If unreasonable discrimination. Refraining sunk-cost investments that a provider is there is a small probability that future from ex ante pricing regulation in these required to make before offering service. regulation will harm the entrant’s instances where we see active and likely In these circumstances, efficient prices projected income streams, then this can medium-term competition developing is are often tailored to individual materially discourage entry (because the most effective means of ensuring purchasers, and are often subject to over the course of the decades the continued development of actual and renegotiations that account for changing expected present value of the robust competitive outcomes. circumstances. Moreover, in these accumulated harm can be large). c. Potential Unintended Costs of circumstances, the efficient price level, 129. Lastly, we reiterate that ‘‘the Regulation which must be reflected in the price cap, is extremely difficult to determine, Commission should construct regulation 125. Finally, we find that there are not least because it must reflect the to meet not only today’s marketplace, substantial costs of regulating the option value of sinking network but tomorrow’s as well.’’ Available supply of BDS and these likely investments in a rapidly-changing metrics show the BDS market as outweigh any costs due to the residual environment. Both of these sources of dynamic, evolving rapidly, and exercise of market power that may occur regulatory error, especially failure in becoming increasingly competitive in the absence of regulation. As a setting a price cap, can lead to prices across all service offerings. When a baseline, the presumption that that are too low which prevent entry (or ‘‘[c]ompetition is best . . . because market is changing and growing, it alternatively prices that are too high competition is the single best way of offers tremendous opportunities to new which encourage excessive entry). For ensuring that customers benefit’’ and entrants and therefore creates fewer example, an inability to quickly adjust the promotion of the same guides us. regulatory concerns. Rather than only The question is not whether today a tariff, means prices can be too low having the option of taking customers nearby competition is everywhere fully where they otherwise would be from existing suppliers by offering them effective, or even whether it will changed, while the restraints of tariffing very similar services, new entrants can become so over the next few years. The can force a provider to set prices that are seek unaffiliated customers, or tempt question is whether the costs of the lack too low for some customers and too high incumbents’ customers away by offering of fully effective competition, even as for others, simply because of barriers to new services that incumbents either do these decline over time, are likely filing separate tariffs that allow such not offer, or if they do, are no more smaller than the net costs of regulation. different customers to self-select into experts in it than the entrant (in fact, the option that suits them best. 126. Here we explain why we find incumbents may be hampered by fears Similarly, price caps can force, through that the net costs of regulation in the of cannibalizing their legacy services or required averaging (such as the business data services industry are by their cultures and other factors that geographic average required in our price likely to be large, most especially suited the legacy world). In short, because regulation is likely to caps), prices that are too low in some competition is likely to be more undermine entry, potentially locations and too high in others. The effective in dynamic growing markets postponing the gains from competition effect is to rule out entry in the former than regulation. In addition, a high for many years. Even well-crafted case, and to sometimes encourage regulations have unintended inefficient entry in the latter. Moreover, degree of flux greatly increases the consequences, inhibiting competition, price caps that are overall too low chances that regulatory error will stifle reducing investment, and end user discourage entry (as well as long-run competition and reduce welfare because benefits. This is especially true in network reinvestment), which can have it is applied to a circumstance that, markets as highly dynamic and complex substantive knock-on effects on entry without the regulation, may have as those for BDS. In general, regulation decisions given that supply in BDS is quickly been overtaken by innovation discourages entry wherever it enforces about recovering more than the and/or competition. Thus, regulation of prices that do not allow firms full cost incremental cost of each customer to such markets is generally considered to recovery or raises the costs of entry. As pay for total network costs. Such be counterproductive.

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4. Competitive Market Test are actively competing for customers less likely to mean they can extend their Methodology located within that distance and are network to cover demand anywhere in 130. In this section, we adopt the generally willing to build out that the census block, so a traditional competitive market test methodology distance in response to business data competitive LEC’s Form 477 report of that we will use to determine which services demand. We previously presence in a census block often is not local markets are sufficiently determined that two providers in the a good indication whether it can readily competitive to warrant deregulation of relevant market are sufficient to ensure extend service to other locations in that price cap incumbent LEC provision of competitive prices. Thus, all business census block. Additionally, such DS1 and DS3 end user channel locations with demand for last-mile providers may offer business data terminations and certain other business access in a county that are within a half services in a block, but not supply data services. As we note above, we take mile of a competitive provider’s broadband service as defined in the a pragmatic approach to structuring the facilities are deemed competitive. Form 477 data collection and not report 133. We supplement the 2015 competitive market test, with the goal of that service for Form 477 purposes. Collection data with additional and promoting innovation and investment Basing our test on both datasets will more current data from the Form 477 on most closely approximate the full and recognizing recent trends and broadband availability by cable developments in the BDS marketplace. spectrum of competition in the business providers which offers the best available data services market, including Furthermore, as also discussed above, and most current data on the sale of we take a network-centric approach competition from medium-term broadband services by cable providers entrants. As we explain above, recent which takes into account the high sunk and which is closely correlated with cost nature of BDS networks that gives buildout by cable companies dwarfs that physical presence of cable networks. of traditional competitive LECs and, nearby competitors a significant Data based on census blocks are very incentive to compete for potential therefore, the 2015 Collection is likely to granular and therefore provide an closely reflect the state of traditional clients within an economically appropriate measure on which to base buildable distance from their networks. competitive LEC deployment as of 2013. our calculations for cable networks. To the extent the test does not capture This is the case for traditional Census blocks can be very small. If the competitive LECs and for newer some recent deployment by traditional median census block ‘‘were a circle, competitive LECs, providers have entrants such as cable providers with then it would be approximately 0.2 extensive networks. recourse through a section 208 miles across’’—an area that can easily fit complaint process. 131. For the competitive market test (and often does fit) a single building. to most closely approximate the realities Indeed, ‘‘half [of all census] blocks are 135. Setting Appropriate Thresholds. of competition in the business data smaller than a tenth of a square mile The next step in formulating the services market, it ideally should (6.4 acres).’’ Given the high sunk cost competitive market test is to use the deregulate where there is competition nature of cable broadband networks, we highly granular data from both datasets and regulate where there is not. find when a cable provider is capable of to assess the accuracy of different Accordingly, we can use the 2015 providing Internet broadband service combinations of thresholds we might Collection to measure the relative within any census block, then generally adopt for the test. These datasets effectiveness of different competitive they have the incentive to make the measure competition at very local market tests at that point in time by incremental investment necessary to levels—individual locations and census assessing their respective error rates— serve locations with BDS demand in blocks. However, for administrative i.e., how often they fail to deregulate that census block, especially over the purposes we have chosen to use locations or census blocks that are medium term. Accordingly, we treat as counties to apply regulation. Thus, we competitive and how often they fail to competitive census blocks in price cap use these more granular data to assess regulate locations or census blocks that incumbent LEC study areas that the competition at the county level. This are not. A competitive market test with Form 477 data show have a cable entails a higher degree of imprecision an appropriately weighted combination presence—whether serving business or than if we were to base the test on of such error rates will tend toward residential clients. locations or census blocks (which maximizing competitive effects and 134. We conclude that it is necessary would entail more burden and minimizing regulatory failure. However, to base the competitive market test on administrative cost). In particular, we we also consider the importance of data from both the 2015 Collection and do not require a county to be 100 minimizing regulatory disruption. In the Form 477 data collections since percent competitive to deregulate it. particular, we seek to be conservative in neither collection captures the full Were we to require this, few counties, deregulation and reregulation, and we extent of competition. The 2015 if any, would qualify. For similar specifically decline to re-regulate Collection includes data on traditional reasons, we do not require a county to counties that were previously granted competitive LECs but only includes a completely lack competition in order to Phase II pricing flexibility. portion of cable competitive facilities regulate it. We acknowledge that by 132. Data. Our first step in both because of the nature of the data setting the percentage threshold at establishing a competitive market test is reported and the fact that it does not something less than 100 percent to use data from the 2015 Collection to capture cable competition that has necessarily leaves a portion of identify areas that are competitive. First, emerged since the collection. The Form businesses at non-competitive locations we use the location data in the 2015 477 data includes reasonably within a county deemed competitive Collection to determine which buildings comprehensive data from which we can without the near-term potential for or locations with last-mile access infer the presence of cable network competition. However, for the reasons demand are within a half mile of a facilities but does not provide discussed above, it is important not to location served by a competitor over its comprehensive data on traditional overregulate, and thereby reduce own facilities. We use a half mile competitive LECs. Because competitive incentives for competitive entry. Indeed, distance based on our analysis of the LECs do not typically have locally competitors, and particularly near- record, discussed above, that ubiquitous networks, a report of supply ubiquitous competitors like cable determined that competitive providers by such a provider in a census block is providers, have an incentive to build to

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locations even beyond a half mile from inappropriately deregulating. For 141. This analysis suggests that their facilities, depending on cost and example, in Figure 2 a weight of 2/3 is setting a threshold of 32 to 48 percent revenue opportunity. Conversely, assigned to a competitive building that for the 2015 Collection would be setting a percentage threshold too low is regulated and a weight of 1/3 is reasonable. Out of an abundance of would also distort the results of the assigned to a noncompetitive building caution—we want to ensure that competitive market test by deregulating that is deregulated. The darkest blue counties we deregulate will be counties with only a relatively minor area shows the range in which the predominantly competitive—we select competitive presence, leaving a higher weighted sum of errors takes its lowest the highest threshold—48 percent—and percentage of locations with business values, while the darkest red area shows round up to 50 percent, which only data services demand without the the range in which the weighted sum of slightly increases the error rate. Based likelihood of a competitive option. errors takes its highest values. Taking on this threshold alone, we find that Consequently, we apply our judgment to this approach allows us identify the 1,862 or 59 percent of all counties and strike a balance in light of the data at thresholds that minimize the weighted county equivalents in the United States our disposal. sum of these two errors. In particular, that have some census blocks that are 136. We set percentage thresholds that the appropriate thresholds given these within a price cap study area would be result in a test that more accurately weights would deregulate a county treated as competitive, resulting in the approximates competitive conditions in where 32 percent of buildings with BDS deregulation of 91.1 percent of locations the county broadly. We set a separate demand are within a half mile of a with special access demand. If we were threshold for each of the two datasets location supplied over competitive to use this threshold alone, we estimate we use and note that, given the facilities or with 3 percent of census that 89.5 percent of locations with differences in the two datasets, the blocks with cable presence. [‘‘Figure 2. special access demand would be percentage thresholds will not be Threshold percentage combinations appropriately regulated, with 77,900 identical. Given the interdependency of (wrongly regulated locations given twice locations potentially over regulated and the datasets, we analyze combinations as much weight): Sum of Number of 48,045 potentially under regulated. of thresholds to assess their impact on Buildings Deregulated without 142. Our analysis suggests that setting the accuracy of our test and to Competition and Sum of Number of a threshold of 3 to 23 percent would be determine which combination yields Buildings Regulated with Competition’’ one reasonable means of setting the results with the lowest weighted error omitted]. trigger threshold for the Form 477 data. rates. 139. We next reverse these weights 137. Utilizing the data from the 2015 and instead assign twice as much Nonetheless, we believe a more cautious Collection and Form 477, we tested a weight to wrongly deregulated non- approach is warranted for three reasons. variety of thresholds for both datasets. competitive buildings as to wrongly First, we recognize that all but 8.9 Any pair of thresholds regulates certain regulated competitive buildings. As the percent of locations with special access price cap counties and deregulates all dark blue area of the contour map demand are already deregulated by the others. This leads to two types of indicates, the appropriate thresholds for half mile test—and any test using the regulatory error that we can deregulating a county would be 48 Form 477 data will likely overlap approximately measure using the 2015 percent for buildings with BDS demand substantially with the locations already Collection: the first type of error occurs within a half mile of a location supplied targeted by that test. So any additional in regulated counties where there will over competitive facilities and 23 deregulation using Form 477 must be be locations as of 2013 that were within percent for census blocks with cable justified at the margin. Second, we a half mile of a location supplied over presence. [‘‘Figure 3. Threshold recognize that deployment in any the facilities of a competitor (i.e., percentage combinations (wrongly marginal counties targeted alone by the wrongly regulated), while the second deregulated locations given twice as cable census block test is likely to be type of error occurs in deregulated much weight): Sum of Number of more sparse than in those targeted by counties where there will be locations Buildings Deregulated without the half mile test, and so the facility of that were not within such a distance Competition and Sum of Number of cable deployment to any given location (i.e., wrongly deregulated). We measure Buildings Regulated with Competition’’ is likely to be somewhat less than in these two types of errors by the number omitted]. more concentrated areas. Third, we of locations in each category. Given the 140. Alternatively, we can assign want to ensure that counties we preceding, a natural way to proceed equal weight to both errors—that is, give deregulate—now and in future would be to seek a pair of thresholds both types of errors equal importance— competitive market test updates—will that minimize some weighted sum of then we would choose thresholds that be predominantly competitive in nature. these two error counts. minimize the simple sum of the number Accordingly, we choose a more 138. Following our competitive of buildings inappropriately regulated conservative approach and adopt a 75 analysis that revealed the high costs of or deregulated. Figure 4 demonstrates percent threshold for the Form 477 data. regulating this industry, we could, for that under this scenario the resulting With that threshold, an additional 17 or example, assign twice as much weight thresholds would deregulate a county 0.5 percent of all counties and county to the first type of error of regulating where about 47 percent of buildings equivalents would be treated as where we should deregulate (i.e., with BDS demand are within a half mile competitive, resulting in the wrongly regulating) as to the second from competitors’ facilities as deregulation of an additional 0.8 type of error of deregulating where we competitive or where about 11 percent percent of locations with special access should regulate (i.e., wrongly of census blocks have cable facilities. demand. We estimate that adding that deregulating). Such a measure would [‘‘Figure 4. Threshold percentage threshold increases the percentage of overstate the first type of error, combinations (wrongly regulated and locations appropriately regulated to 90.2 regulating locations that should be wrongly deregulated locations equally percent, with 8,367 locations more deregulated. This would reflect the weighted): Sum of Number of Buildings appropriately regulated. We note also scenario where one thought that the Deregulated without Competition and that because Form 477 data encompass burdens and costs of inappropriately Number of Buildings Regulated with cable’s best-efforts business data regulating were twice those of Competition’’ omitted]. services, and this source of cable

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competition is growing rapidly, we more than 140 parties challenging the particularly by cable providers which expect setting even a conservative classification of nearly 180,000 census are the most likely sources of threshold such as this one will result in blocks and that took the Commission competitive growth. We conclude it is further deregulation going forward. nine months to resolve. Accordingly, not necessary, as some commenters 143. We acknowledge that this consistent with our goal of eliminating suggest, to modify Form 477 to request competitive market test does not as unnecessary administrative burdens, we additional information. The current perfectly delineate areas as we would conclude, based on the substantial Form 477 data are sufficiently precise to like; yet we believe it strikes the right administrative costs and apparently capture the changes in competitive balance. It balances the need for minor benefit, there is no reason to deployment that are likely to occur in a precision against the need for a test that implement a challenge process here. three-year timeframe. Thus we are able is feasible to administer, and also to achieve our goals of updating the D. Updating Competitive Market Test balances the benefits of appropriate competitive market test results using Results regulation of competitive and non- accurate data and at the same time avoid competitive areas while seeking to avoid 145. To ensure the results of the imposing any additional burdens on the costs of inappropriate regulation. It competitive market test continue to providers or the Commission. does not require additional data reflect competitive conditions in the 149. We agree with commenters that collections and yet closely approximates business data services marketplace, we support the suggestion in the Further the results such data collections are adopt a process for updating those Notice that the Commission reapply the likely to yield. It ensures that we adopt results every three years using Form 477 test every three years. We find that the competitive thresholds that most closely data across all areas served by price cap three-year period strikes the right approximate actual competitive market carriers. balance between ensuring the conditions and minimize regulatory 146. The results of the competitive competitive market test remains error. It deregulates areas with sufficient market test offer a static snapshot of a reasonably accurate and avoiding potential for competitive entry in dynamic and constantly changing unnecessary disruption of sales response to significant profit business data services market. Most arrangements and administrative opportunities and retains ex ante commenters that support the use of a burdens by overly frequent updates. pricing regulation in areas where competitive market test also support 150. As Sprint explains, ‘‘[three years] competitors are less likely to be able to updating the test periodically. We permits the Commission to evaluate enter and therefore creates appropriate therefore adopt an administratively whether markets are changing to incentives for just and reasonable rates efficient process that will periodically become more competitive and will and continued growth, innovation, update the results of the test to govern ensure that the regulatory framework investment, and deployment in the the transition of a county from non- reflects accurate information about the dynamic business data services market. competitive to competitive status. BDS marketplace.’’ We disagree with Lastly, it is conservative in deregulating, 147. We base our initial application of commenters arguing for more or less reflecting a desire to not move too the competitive market test on the two frequent updates. More frequent updates quickly and recognizing the nascent principle data sources we currently are likely to be unnecessarily disruptive nature of cable competition not have at our disposal, the 2015 Collection of longer-term business data services captured in the 2015 Collection. and Form 477. The Form 477 data are sales arrangements, while less frequent 144. We find that it is not necessary updated on a semi-annual basis and will updates will be insufficient for the to create a special process or mechanism therefore continue to be useful in Commission to properly assess changes for challenging the results of the measuring competition in subsequent in the marketplace and to ensure the test competitive market test. For updates to the test. The data in the 2015 remains current. administrability purposes, any such Collection, however, will become 151. We direct the Wireline process would need to be limited to a increasingly stale and therefore less Competition Bureau to review Form 477 single criterion, for example, the relevant to actual market conditions in data on a regular three-year basis and accuracy of the Form 477 data. The subsequent updates of the test. We agree determine whether any additional Commission has designed the with commenters that express concerns regulated counties meet the 75 percent competitive market test in a manner that about the burdens such new data threshold. The Bureau shall release a reduces the need for, and the collections would entail. At this point, Public Notice that lists newly significance of, any post-decision we find that the costs of such competitive counties and shall also challenge process because it has collections outweigh the benefits. The provide this information on the established very clear standards based 2015 Collection was the most Commission Web site. Parties desiring on data that is readily accessible. In comprehensive data collection the to challenge these results may file addition, we believe that parties can Commission has conducted, and the petitions for reconsideration or seek full rely on the accuracy of the Form 477 burden of conducting additional such Commission review through an data because it is certified to by collections, even if streamlined, would application for review. company officials, compliance is subject likely be considerable. 152. While commenters may disagree to enforcement actions, and filers are 148. Moreover, we agree with with how to update the initial required to submit revised data upon commenters that the Commission ‘‘does competitive market test results, discovery of a significant error. not need to issue a request for a broad, commenters widely note that the Furthermore, commenters generally large-scale data collection as it did in Commission should select agree that the Commission should avoid 2012’’ in order to obtain updated market administrative processes that are establishing a separate process that is data. We can instead use the existing efficient. We note there are more than burdensome on the parties and the Form 477 data collection, which would 3,100 counties in the U.S. that are Commission. For example, NCTA urges provide continuity with the initial test included in our initial competitive the Commission to forego any extensive that also relies on these data. The Form market test computations. About 40 and involved challenge process such as 477 data on broadband availability are percent of these are treated as non- in the Connect American Phase II well suited to identify increases in competitive and about 60 percent as universal service program that included competitive broadband deployment, competitive. We have previously noted

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that, given the sunk and irreversible cost any such provision or regulation if it sections 201, 202, and 208, ‘‘will better nature of business data services determines that: (1) Enforcement of the promote competition and the public provision, it is unlikely that locations provision or regulation is not necessary interest.’’ The record here confirms this that were competitive, as evidenced in to ensure the telecommunications predictive judgment and supports the 2015 Collection and Form 477 data, carrier’s ‘‘charges, practices, expanding the prior forbearance to would become noncompetitive. Sunk classifications, or regulations’’ are ‘‘just include additional carriers and services. costs represent the biggest barrier to and reasonable and are not unjustly or 157. Currently the vast majority of entry, and these data demonstrate that unreasonably discriminatory;’’ (2) business data services providers are not this barrier has been overcome. On the enforcement of the provision or subject to section 203 in their provision other hand, given the recent pace of regulation is ‘‘not necessary for the of business data services—non- technology, innovation, and the rollout protection of consumers;’’ and (3) incumbent LECs are not required to of more efficient products in the forbearance is ‘‘consistent with the comply with tariffing requirements, nor business data services market, we are public interest.’’ In making this public are the price cap incumbent LECs that confident that competition will interest determination, the Commission have received forbearance to the extent continue to grow in competitive must also consider, pursuant to section they provide services within the scope markets. As a result, we find that the 10(b), ‘‘whether forbearance from of the forbearance grants and deemed cost of reapplying the competitive enforcing the provision or regulation grants. We find that the lack of market test for nearly 2,000 counties will promote competitive market regulatory parity that stems from the already treated as competitive would conditions.’’ prior applications of forbearance is outweigh the benefit, if any. We thus preventing competition and holding 1. Detariffing of Packet-Based Services decide we can achieve our objectives of back our efforts to ‘‘encourage the and Circuit-Based Services Above the adopting an administratively efficient deployment on a reasonable and timely DS3 Bandwidth Level process to update the competitive basis of advanced telecommunications market test by reducing the number of 155. We forbear from the application capability to all Americans.’’ Thus, our counties subject to retesting. We shall of section 203 of the Communications determination is based on ‘‘what the update our test calculations only for the Act to each price cap LEC in its agency permissibly sought to achieve non-competitive counties to determine provision of any packet-based business with the disputed regulation,’’ that is, to whether customers in these locations data services or circuit-based business ensure that rates, terms, and conditions are benefitting from competition. data services above the DS3 bandwidth for the provision of these business data Consistent with this approach, once a level. This action expands upon prior services are just, reasonable, and not county is treated as competitive, it will forbearance grants and deemed grants unreasonably discriminatory. We find not be retested. applicable only to certain carriers and that ‘‘in light of an overwhelming record certain packet-based and circuit-based of declining prices, it is simply not E. Altering Business Data Services business data services. credible to argue that rate regulation is Forbearance 156. In 2006, Verizon’s Broadband necessary to simulate competitive 153. Prior forbearance actions and Forbearance Petition was deemed pricing’’ for these services. deemed grants have created a situation granted by operation of law after the Additionally, the lack of regulatory in which the statutory provisions and Commission did not act on it within the parity among broadband data services rules that apply to a price cap statutory time limit. That petition had providers created by the imbalanced incumbent LEC or a competitive LEC in sought forbearance from the application forbearance grants and deemed grants its provision of business data services of Title II common carrier and Computer over the years has created barriers to vary depending on the provider’s Inquiry requirements to ‘‘all broadband entry and impeded competition. identity and the specific services being services’’ that Verizon ‘‘does or may Extending forbearance from tariffing provided. We expand upon and adjust offer.’’ But Verizon had subsequently will lead to regulatory parity, and a these prior actions and deemed grants to narrowed the scope of its forbearance more level playing field among packet- the extent necessary to level the request to exclude DS1 and DS3 based and optical transmission business regulatory playing field for all of these services. Following this deemed grant, data services providers. business data services providers. We AT&T, legacy Embarq, legacy Frontier, 158. We further conclude that also amend our rules as appropriate to Qwest, and ACS filed petitions disparate forbearance treatment of implement our light-touch regulatory requesting similar forbearance relief. carriers providing the same or similar framework for business data services. The Commission granted these petitions services is not in the public interest as These actions flow from—and are in part, finding that forbearance from it creates distortions in the marketplace consistent with—our findings above on the application of dominant carrier that may harm consumers. Allowing the intense and growing competition in regulation, including tariffing under such disparate application of our business data services. section 203, to the petitioning tariffing requirements undermines, 154. Our actions expanding incumbent LECs’ then existing packet- rather than promotes, competition forbearance are taken pursuant to based and optical transmission among telecommunications services section 10 of the Communications Act. broadband data services met the providers within the meaning of section That provision, enacted as an integral statutory forbearance criteria. These 10(b). part of the ‘‘pro-competitive, de- partial grants reflected the 159. We predict that competition in regulatory national policy framework’’ Commission’s predictive judgment that, the business data services market, along established in the 1996 Act, requires in comparison to traditional dominant with the statutory and regulatory that the Commission forbear from carrier regulation and for the carriers’ requirements that remain, is sufficient applying any provision of the Act, or and services being addressed, to ensure just, reasonable, and not any of the Commission’s regulations, if ‘‘eliminating the extra layer’’ of unjustly or unreasonably discriminatory the Commission makes certain findings regulation provided by tariffing and the rates, terms, and conditions by business with respect to such provisions or Commission’s ex ante pricing rules, data services providers and to protect regulations. Under section 10(a), the ‘‘while leaving in place basic Title II business data services consumers. We Commission is required to forbear from common-carrier regulation’’ under therefore find that application of section

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203 is not necessary within the meaning competition over the longer term. subject to—and will remain subject to— of sections 10(a)(1) and 10(a)(2). Those Additionally, price cap LECs will price cap regulation, where the tariff is same considerations, plus our desire to remain subject to sections 201 and 202, the tool the Commission has used—and promote competition and broadband and to our enforcement of those will continue to use—to enforce that deployment, likewise persuade us that provisions through the section 208 regulation. This is not a concern with such forbearance is in the public complaint process. In these the counties now subject to Phase II interest. Therefore, consistent with the circumstances, we find that the pricing to the extent an incumbent LEC Commission’s prior findings, we find additional contribution that tariffing— has not been subject to price cap that forbearing from these regulations in and other ex ante regulation—of price regulation and, as we decide below, will an equal manner is consistent with the cap LECs’ special access services not be subject to such regulation going- public interest within the meaning of provides to protection against unjust, forward. section 10(a)(3). unreasonable, and unreasonably 3. Transition Mechanisms discriminatory rates, terms, and 2. Detariffing of Other Special Access conditions is not necessary within the 166. Our detariffing actions in this Services meaning of sections 10(a)(1) and Order will be mandatory after a 160. We also forbear from the 10(a)(2). transition that will provide price cap application of section 203 to each price 163. Those same considerations, plus incumbent LECs sufficient time to adapt cap incumbent LEC in its provision of our desire to promote competition and their business data services operations business data services elements that business data services deployment, to a detariffing regime. We also require comprise transport pursuant to section likewise persuade us that forbearance is that competitive LECs, which are 69.709(a)(4) of the Commission’s rules, in the public interest. In competitive currently subject to a permissive and to DS1 and DS3 end user channel markets, tariffing has several adverse detariffing regime, detariff their terminations services and any other consequences, including reducing a business data services by the end of this special access services currently tariffed carrier’s incentives to offer price transition. in competitive counties or in non- discounts and ability to respond quickly 167. The transition will begin on the competitive counties previously subject to changes in demand or costs, delaying effective date of this Order (sixty (60) to Phase II pricing flexibility. and increasing the costs of innovation, days after Federal Register publication) 161. The Commission has previously and preventing a carrier from tailoring and will end thirty-six (36) months recognized that ‘‘tariffs originally were service arrangements to meet its thereafter, a period that we find required to protect consumers from customers’ specific needs. Tariffing also sufficient for carriers to adapt to a unjust, unreasonable, and imposes significant administrative costs detariffing regime. In addition, for six discriminatory rates in a virtually on carriers and the Commission, and (6) months after the effective date of this monopolistic market, and that they ultimately inhibits competitive entry in Order, we require price cap incumbent become unnecessary in a marketplace discrete areas where a price cap LEC LECs to freeze the tariffed rates for end- where the provider faces significant currently may be the only provider. user channel terminations in newly competitive pressures.’’ We find above Given these costs, we find that deregulated counties, as long as those that business data services transport is forbearance from the application of services remain tariffed. We adopt these competitive throughout the nation and section 203 to price cap LECs’ business transition mechanisms in light of the that DS1 and DS3 end user channel data services elements that comprise need for an adequate transition to terminations services and other tariffed transport pursuant to section 69.709(4), ensure that small businesses will have special access services are competitive and to DS1 and DS3 end user channel time to adjust to the new regulatory in certain counties. Where a price cap termination and any other tariffed conditions. LEC provides these services in special access services in competitive 168. During this transition, tariffing competitive markets, application of counties, is consistent with the public for these services will be permissive— section 203, including its tariffing interest within the meaning of section the Commission will accept new tariffs requirement, is not necessary to ensure 10(a)(3). We note that the record was and revisions to existing tariffs for the that the LEC’s charges, practices, supportive of detariffing services in affected services. Apart from the rate classifications, or regulations are just, competitive markets. freeze noted above, carriers will no reasonable, and not unjustly or 164. A small number of counties that longer be required to comply with price unreasonably discriminatory. Nor is had been regulated under Phase II cap regulation for these services, and application of section 203 necessary to pricing are now deemed non- once the rules adopted in this Order are protect consumers. competitive pursuant to our competitive effective, carriers that wish to continue 162. We recognize that in some market test. Incumbent LECs in these filing tariffs under the permissive discrete geographic areas, including counties have been providing DS1 and detariffing regime are free to modify portions of non-competitive counties DS3 end user channel termination and such tariffs to reflect the new regulatory previously subject to Phase II pricing other special access services free of structure outlined in this Order for the flexibility, some customers may not price cap, but not tariffing, regulation. affected services. This will allow have access to competitive transport Like we do for other services, we carriers to respond to competitive services during the near-term. Similarly, conclude that for these incumbent LECs pressures and introduce new business in some portions of the counties that we tariffing’s costs generally outweigh its data services as they adapt to classify as competitive, some end users benefits to consumers, and that detariffing. may not have viable alternatives to the forbearance from the application of 169. Carriers, including non- incumbent LEC’s DS1 and DS3 end user section 203 to DS1 and DS3 end user incumbent LECs, may remove the channel terminations services and other channel termination and other tariffed relevant portions of their tariffs for the special access services within that time special access services by these affected services at any time during the frame. But even in these areas, we incumbent LECs in these counties is transition, and the rate freeze does not believe tariffing may reduce incentives consistent with the public interest. apply to services that are no longer for competitive entry and ultimately 165. In contrast, we conclude it is not tariffed. Once the transition ends, no inhibit growth in the market and practical to detariff carriers that are now price cap incumbent LEC or competitive

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LEC may file or maintain any interstate the public interest in such non- in the business data services arena. The tariffs for affected business data application, under one set of forbearance relief ‘‘deemed granted’’ to services. This will prevent carriers from circumstances would remain locked in Verizon encompasses economic obtaining ‘‘deemed lawful’’ status for place even when circumstances change. regulation that applies to all other tariff filings that are not accompanied by Congress would not have intended to common carriers, economic regulation cost support and invoking the filed-rate create such rigidity in enacting statutory that applies to all other incumbent LECs doctrine in contractual disputes with provisions requiring ‘‘Regulatory or Bell Operating Companies (BOCs), customers. Business data services Flexibility,’’ as section 10(a) is and public policy regulation that providers will also be prevented from captioned. As the D.C. Circuit has applies to all other common carriers. picking and choosing when they are observed, the Commission’s forbearance Continued forbearance from this able to invoke the protections of tariffs. actions—and the forbearance relief regulation would be inconsistent with 170. We recognize that our detariffing ‘‘deemed granted’’ to Verizon—are ‘‘not the statutory forbearance criteria. For actions will change the legal framework chiseled in marble.’’ Instead, the example, as we find above, the for existing service arrangements for Commission may ‘‘reassess’’ that protections provided by sections 201 business data services, many of which forbearance as it ‘‘reasonably see[s] fit and 202(a), coupled with our ability to assume a tariffing environment and may based on changes in market conditions, enforce those provisions in a complaint not expire until after the end of the technical capabilities, or policy proceeding pursuant to section 208, are transition to mandatory detariffing. We approaches to regulation’’ of business necessary to protect against unjust, do not intend our actions to disturb data services. unreasonable, and unjustly or existing contractual or other long-term 173. We reject certain commenters’ unreasonably discriminatory rates, arrangements—a contract tariff remains argument that statutory silence means terms, and conditions for those business a contract even if it is no longer tariffed. that we lack authority to modify or data services. Similarly, section 251(b) In that vein, contract tariffs, term and withdraw forbearance once it is deemed imposes a number of duties on LECs, volume discount plans, and individual granted, or that only Congress can including the duty to implement circuit plans do not become void upon modify or reverse forbearance received number portability and the duty to detariffing. Instead, we expect all through a deemed grant. That argument provide competing telecommunications carriers to act in good faith to develop largely rests on the D.C. Circuit’s service providers with access to the solutions to ensure rates are just and holding in Sprint Nextel v. FCC that the LECs’ poles, ducts, and conduits under reasonable. Verizon deemed grant ‘‘did not result in just and reasonable rates, terms, and reviewable agency action’’ because 4. Verizon Deemed Grant conditions. Acting to bring the Verizon ‘‘Congress, not the Commission, [had] Legacy Companies’ forbearance into line 171. In this section of the Order, we ‘granted’ Verizon’s forbearance petition’’ with the forbearance granted to other conform the forbearance provided to In so holding, the D.C. Circuit did not carriers is necessary to ensure just, Verizon and its successors in interest, address the Commission’s authority, reasonable, and not unreasonably Hawaiian Telcom, and the legacy under section 201(b), to adopt rules discriminatory rates, terms, and Verizon portions of FairPoint and necessary ‘‘to carry out the ‘provisions conditions for business data services Frontier (together the Verizon Legacy of this Act,’ ’’ which include each Title provided on a common carrier basis, Companies), to the forbearance provided II provision encompassed within the and is consistent with the Commission’s other price cap carriers. This action, Verizon deemed grant. Congress’s decisions granting more tailored when coupled with our other determination in section 10(c) that forbearance to other carriers. forbearance actions in the Order, levels forbearance will be ‘‘deemed granted’’ 176. Other provisions and the playing field among price cap in the absence of timely agency action requirements forborne from by the carriers providing packet-based and does not in any way limit our authority deemed grant promote access to optical transmission business data to later ‘‘reassess’’ the deemed grant as telecommunications services by services as telecommunications we ‘‘reasonably see fit.’’ individuals with disabilities, protect services. 174. We recognize that modifying or customer privacy, and increase the 172. In 2006, Verizon’s 2004 petition reversing forbearance once granted by effectiveness of emergency services, seeking forbearance from the the Commission or by operation of law among other objectives. As the application of Title II and Computer is a step that should be taken with great Commission previously found, these Inquiry requirements to certain of its care. We find this narrowly tailored and other public policy requirements enterprise broadband services was action is appropriate in this case under Title II ‘‘advance critically deemed granted by operation of law because such reversal is consistent with important national objectives’’ and thus after the Commission did not act on that the substance of the statutory are necessary to protect consumers. petition within the statutory time limit. forbearance requirements. Verizon’s Indeed, continued forbearance from We agree with those commenters that forbearance from core Title II these requirements would be argue that we have statutory authority to obligations came from the highly inconsistent with the critical consumer- reverse the deemed grant. Section 10 unusual circumstance of a deemed protection goals that led to their directs the Commission to ‘‘forbear from grant. Our partial reversal is consistent adoption. applying’’ statutory provisions and with the Commission’s unanimous 177. We further conclude that regulations to a telecommunications commitment, in the AT&T Forbearance disparate treatment of carriers providing carrier when certain statutory criteria Order, ‘‘to avoid persistent regulatory the same or similar services is not in the are met. We read the statute as giving us disparities between similarly-situated’’ public interest as it creates distortions the authority to modify or reverse carriers by issuing ‘‘an order addressing in the marketplace that may harm forbearance that has been deemed Verizon’s forbearance petition . . . on consumers. Allowing Verizon and its granted when we determine that one or grounds comparable to those set forth’’ successors in interest, but not its more of those forbearance criteria are no in the AT&T Forbearance Order. business data services competitors, to longer met. Otherwise, forbearance 175. Notably, in its own comments in continue to avoid compliance with based on the lack of a need to apply a this proceeding, Verizon has recognized obligations applicable to other business statutory provision or regulation, and the importance of a level playing field data services providers would

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undermine, rather than promote, 180. When properly applied, price carriers will remain within the revised competition among telecommunications cap regulation replicates some of the price cap system adopted in this Order. services providers within the meaning beneficial incentives of competition in 182. To encourage competitive entry of section 10(b). Therefore, consistent the provision of business data services into the counties we have identified as with the Commission’s repeated while balancing ratepayer and non-competitive, we will not apply findings, we find that applying these stockholder interests. Price caps price cap regulation to DS1 and DS3 end obligations to the Verizon Legacy encourage LECs to become more user channel terminations provided by Companies to the extent they provide productive and innovative by permitting non-incumbent LECs. When a non- business data services on a common them to retain reasonably higher incumbent LEC provides DS1 or DS3 carrier basis is consistent with the earnings while discouraging wasteful services in a non-competitive market, it public interest. investment. At the same time, price cap typically does so in competition with an incumbent LEC that enjoys marketplace V. Regulation in Non-Competitive regulation offers regulated firms flexibility in setting relative prices, advantages, including a ubiquitous Counties network and significant economies of instead of relying on uniformed scale. Extending price cap regulation to 178. We now turn to the question of regulatory direction. In sum, price cap non-incumbent LECs would impose what ex ante regulation, if any, we regulation helps ensure just and significant costs while generating few, if should apply to special access services reasonable prices for customers in non- in counties that are classified as non- any, benefits. These costs would include competitive markets while affording administrative compliance costs that, by competitive pursuant to our competitive providers good incentives to reduce market test. To ensure affordability of their very nature, would reduce the costs and an opportunity to earn a amount of capital available for the non- DS1 and DS3 services without reasonable return on their investments. unnecessarily constraining incumbent incumbent to upgrade its network and LECs’ incentives to invest and innovate, 181. We do not, however, require expand its business data services we will apply price cap regulation in incumbent LECs that were previously footprint to additional locations within the form of Phase I pricing flexibility granted Phase II pricing flexibility to the non-competitive county. Of greater (Phase I pricing) to DS1 and DS3 end reinstitute price caps in non- concern, such regulation would reduce user channel terminations and certain competitive counties that are within the non-incumbent’s capacity to efficiently set prices and increase its other business data services provided by former Phase II pricing areas because we exposure to regulatory risk, further incumbent LECs in counties that we find that the costs of doing so exceed leading to less competitive entry and determine are non-competitive. the benefits as described above. investment. And, any benefits would be Allowing Phase I pricing will enable Incumbent LECs that have previously minimal since the incumbent LEC’s incumbent LECs to timely and been granted Phase II pricing flexibility price cap rates typically will set a effectively respond to any competition in these counties have been providing ceiling on the rates the non-incumbent that develops in these markets through DS1 and DS3 end user channel can charge for its DS1 and DS3 end user contract tariffs and volume and term terminations and other business data channel terminations. discounts. We also prohibit the use of services free of price cap regulation for overly restrictive non-disclosure a number of years and have adapted B. Expanding Pricing Flexibility in Non- agreements in contract tariffs for their internal systems accordingly. Competitive Counties Bringing these services back into price business data services sold in non- 183. In 1999, the Commission competitive areas. caps would require that incumbent established a process for granting price LECs revamp their billing, information cap LECs pricing flexibility for special A. Retaining Price Cap Regulation in technology, and third-party Non-Competitive Counties access services when specified management systems, at significant cost. regulatory triggers were satisfied. The 179. We conclude that, subject to the Additionally, reinstituting price cap pricing flexibility framework separates exception discussed below, we should regulation would require the carrier to special access services into two continue to apply price cap regulation, recreate what the price cap would be segments, end user channel as modified in this Order, to price cap had it never received pricing flexibility, terminations and dedicated transport LECs’ DS1 and DS3 end user-channel which would involve burdensome and and special access services other than terminations and certain other non- complicated calculations. According to end user channel terminations, and competitive business data services in the 2015 Collection, only 69 counties in provides two levels of pricing flexibility non-competitive counties to ensure the former Phase II pricing areas are deemed relief for each segment. Phase I relief rates, terms and conditions for such non-competitive pursuant to our gives price cap LECs the ability to lower services are just and reasonable. We competitive market test, and these their rates through contract tariffs and agree with the commenters—including counties collectively have only volume and term discounts, but requires Verizon, INCOMPAS, Sprint, [REDACTED] buildings with demand for that price cap LECs maintain their Windstream, Ad Hoc, Birch et al., end user channel terminations (only a generally available price cap- NASUCA et al., and Public portion of which is for DS1s or DS3s). constrained tariff rates to ‘‘protect[ ] Knowledge—that argue that price cap We find that the costs of reinstituting those customers that lack competitive regulation is the most effective regime price caps for carriers previously alternatives.’’ Phase II relief permits a for ensuring that rates for non- granted Phase II pricing flexibility in price cap LEC to raise or lower its rates competitive services are just and these counties outweigh the potential throughout an area, unconstrained by reasonable. The price cap system, as benefits. We also recognize that price cap regulations. modified by the measures we adopt in incumbent LECs in non-competitive 184. Business data services remaining this proceeding, will limit the extent to counties that were not previously within price caps after this Order will which price cap LECs can exercise their granted Phase II pricing flexibility consist largely of incumbent LECs’ DS1 market power over the rates for TDM- would not have to bring services back and DS3 end user channel terminations based end user channel terminations in into price caps, and therefore would not in non-competitive counties, but will non-competitive counties. have the same costs. Therefore, these also include various other price cap

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services that carriers decide to keep C. Prohibiting Non-Disclosure contributing to delay in analyzing and regulated pursuant to price caps during Agreements in Non-Competitive Areas resolving the questions at issue in this the transition to mandatory detariffing. 187. In order to ensure that proceeding. Parties acknowledged that Consistent with the proposal the purchasers of business data services can non-disclosure agreements had this Commission made in the Further Notice, fully participate in Commission effect. Moreover, it is not the instances we transition all business data services proceedings and that the Commission where the Commission has sought that remain subject to price caps into can conduct appropriate oversight of information and been denied that are Phase I pricing. This will provide price business data services, we adopt a rule our chief concern, but rather the cap LECs with flexibility while prohibiting the use of non-disclosure instances where the Commission has precluding them from charging above- agreements in tariffs, contract tariffs, been unaware of potentially important cap rates in non-competitive counties. and commercial agreements for business information about the business data Price cap LECs in non-competitive areas data services provided in non- services market and stakeholders have been precluded by non-disclosure will be able to negotiate individualized competitive areas that forbid or restrict rates through contract tariffs and agreements from sharing that disclosure of information to the volume and term discounts. Those LECs information in the first place. Commission. In the interest of must maintain generally available tariff 190. AT&T also expresses concern protecting sensitive information, a rates subject to price cap regulation for that public release of information provider may require that information end user DS1 and DS3 channel subject to a non-disclosure agreement related to its business data services be terminations, and other special access will result in ‘‘significant competitive submitted to the Commission subject to services included in their price cap harm.’’ Disclosure to the Commission, a Commission protective order or, if tariffs in non-competitive counties that however, is clearly distinguishable from there is none, with a request for are not subject to the regulatory relief disclosure to the public generally. We confidential treatment pursuant to the provided in this Order. routinely adopt protective orders to 185. The record is clear that contract Commission’s rules. protect parties’ interests in maintaining tariffs benefit both customers and price 188. We agree with commenters that the confidential nature of information cap LECs. As Ad Hoc observes, Phase I argue that non-disclosure agreements submitted. As Level 3 explains, pricing flexibility allows price cap LECs affecting the provision of business data ‘‘AT&T’s claim that such a rule would to respond to competition by negotiating services in non-competitive areas that undermine parties’ confidentiality lower contract rates. This flexibility, restrict parties from disclosing [interests] is without merit because the when coupled with our requirement commercially sensitive information to Commission’s rules and procedures that price cap LECs choosing to exercise the Commission deter parties from prohibit disclosure of information that Phase I pricing flexibility remove sharing information with the has been made subject to confidentiality contract revenues from the relevant Commission. The use of such non- requirements.’’ In this proceeding, the price caps basket for purposes of disclosure agreements has been Commission has sought confidential determining their price cap indices and described as ‘‘ubiquitous’’ and their data and information on multiple actual price indices, will protect impact significant. Such non-disclosure occasions and has consistently adopted customers that do not negotiate contract agreements hinder the Commission’s protective orders limiting access to the tariffs from cross-subsidizing those that access to data important to its oversight information to certain individuals in do. And the requirement that carriers of the business data services market and order to ensure the confidentiality of maintain generally available price cap- its ability to effectively discharge its these data and information. constrained tariff rates will ‘‘protect core statutory responsibilities under 191. We agree with commenters that those customers that lack competitive sections 201 and 202. The Commission recognize that the solution for concerns alternatives’’ against unreasonably high previously observed in another about inappropriate disclosure of rates. We therefore amend our price cap proceeding that ‘‘overly broad, sensitive information submitted to the rules to allow all price cap LECs in non- restrictive, or coercive nondisclosure Commission is to ensure such competitive counties to lower their rates requirements may well have information is submitted subject to a through contract tariffs and volume and anticompetitive effects’’ and explained protective order or to a request for term discounts in a manner consistent that ‘‘demands by incumbents [for such confidential treatment pursuant to the with the Commission’s current Phase I non-disclosure agreements] . . . are of Commission’s rules. We conclude that pricing flexibility rules. Accordingly, concern and any complaint alleging because the information in question will these incumbent LECs will be required such tactics should be evaluated not be made generally available to the to maintain generally available tariffs carefully.’’ public, our action here does not offering price cap regulated rates 189. We find misplaced AT&T’s undermine parties’ interest in insulating available to all subscribers. assertion that the Further Notice fails confidential or commercially sensitive 186. These requirements will not ‘‘to identify a single instance where it information from the public. We apply to carriers within former Phase II has actually requested a contract therefore require that parties submitting pricing areas that are deemed non- pertaining to BDS and the parties to the Commission confidential competitive pursuant to our competitive refused to provide it.’’ To the contrary, information that is subject to a non- market test that were previously granted the record demonstrates that the risks of disclosure agreement seek confidential Phase II pricing flexibility. Instead, inhibiting the flow of information about treatment of that information under the current Phase II price cap LECs in these the business data services market to the relevant protective orders, or otherwise non-competitive counties will be Commission are real and have at times pursuant to the Commission’s rules. required to continue offering its current impacted the conduct of this 192. We address two types of generally available rates for end user proceeding. Indeed, as the Commission restrictions non-disclosure agreements DS1 and DS3 channel terminations and observed in the Further Notice, non- impose and determine that both are for the other special access services as disclosure agreements likely precluded precluded by the action we take here. long as those services remain under some parties from responding fully to First, we find that there is no tariff. This requirement will cease once the voluntary data requests issued by justification for non-disclosure the services are detariffed. the Bureau in 2010 and 2011, agreements that contain provisions that

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prohibit outright the disclosure of services-related non-disclosure the productivity growth that incumbent confidential information to the agreements to those that apply to non- LECs will experience in the provision of Commission. Such agreements are competitive areas as we define them in these services relative to productivity expressly intended to obstruct parties’ this Order. This reasoning applies to all growth in the overall economy. We ability to disclose information to the non-disclosure agreements that govern retain Gross Domestic Product-Price Commission and the Commission’s business data services sales—whether Index (GDP–PI) as the measure of ability to access information necessary they are contained in tariffs, contract inflation that incumbent LECs will use to oversee and evaluate the business tariffs, or commercial agreements. The in their price cap index calculations, data services market. They undermine presumption should be that competitive continue to make a low-end adjustment our ability to render fact-based market dynamics would characterize the available to price cap LECs in certain decisions informed by a complete majority of sales in any arrangements circumstances, and decline to adopt record, and are generally contrary to the that governed sales in both types of other changes that would affect price public interest. areas. Additionally, the bulk of sales of cap rates. In particular, we find that that 193. We also find that non-disclosure TDM based business data services in no catch-up adjustment to the price cap agreements that require a direct request non-competitive areas would indices is warranted. or legal compulsion prior to allowing presumably be effected through TDM- disclosure also inhibit the Commission’s only tariffs and contract tariffs. Parties 1. Background conduct of its core regulatory and are of course free to structure their sales 198. The core component of the oversight functions and are therefore arrangements in such a manner as to Commission’s price cap system is the contrary to the public interest. By avoid including sales of services for price cap index, which is designed to precluding the voluntary disclosure of both types of areas in a single limit the prices that a price cap LEC information, such agreements render it agreement. may charge for services. Each price cap impossible for the Commission to be 196. Accordingly, we adopt a general LEC’s price cap index historically has aware of information in business data rule prohibiting the use of non- been adjusted annually based primarily services sales agreements or even the disclosure agreements in or related to on a productivity factor or ‘‘X-factor’’ existence of such sales agreements, and tariffs or contract tariffs for the sale of and a measure of inflation (GDP–PI). effectively preclude the Commission’s business data services in areas treated as The X-factor initially represented the ability to seek that information or those non-competitive by our competitive amount by which LECs could be sales agreements. market test to the extent they forbid or expected to outperform economy-wide 194. Allowing voluntary disclosure to impose any restriction on a party’s productivity gains. The X-factor serves the Commission, subject to the ability to voluntarily disclose as an adjustment to the price cap Commission’s protections for information to the Commission indices to account for these productivity confidential information where pursuant to appropriate safeguards for gains, and is subtracted from GDP–PI in necessary, will allow parties to disclose confidential information. No provider of the Commission’s price cap formula. relevant information in a more timely business data services in areas treated as fashion, which will in turn make the non-competitive may enter into or 199. The Commission last set X- Commission’s oversight and regulatory enforce a non-disclosure agreement that factors for special access services in the work more timely and efficient. The in any way forbids or prevents any party 2000 CALLS Order. These X-factors, Commission’s protective orders and to that agreement from disclosing any unlike prior X-factors, were not confidentiality regulations will information relevant to the productivity-based but collectively effectively insulate against the risk of Commission’s business data services acted as ‘‘a transitional mechanism . . . inappropriate disclosure by ensuring proceedings to the Commission. The to lower rates for a specified time confidential treatment of such rule we adopt today applies to all forms period’’ based on an industry information. of agreements for the sale of TDM-based agreement. The CALLS X-factor for 195. We agree with commenters that business data services, including price special access services increased from argue that restrictions on non-disclosure cap tariffs and contract tariffs in non- 3.0 percent in 2000 to 6.5 percent for agreements for business data services competitive areas. Parties submitting 2001 through 2003 but was set equal to are unnecessary in markets treated as confidential information to the inflation beginning in 2004. This frozen competitive under the competitive Commission that is subject to a non- X-factor was intended to be an interim market test. In these areas, market forces disclosure agreement must either submit measure, lasting only until the should be sufficient to protect such information subject to the relevant expiration of the CALLS plan on June purchasers of business data services protective orders governing this 30, 2005, yet the Commission has not from unreasonable practices. NASUCA proceeding or, in the absence of a acted to replace it with a productivity- et al. asserts, however, that prohibiting relevant protective order, seek based measure. As a result, price cap overly restrictive non-disclosure confidential treatment for such LECs’ special access rates have agreements is necessary to facilitate information pursuant to sections 0.457 remained frozen at 2003 levels, competitive conditions in the BDS and 0.459 of the Commission’s rules. excluding any necessary exogenous cost marketplace generally. We agree that adjustments. imposing a prohibition on such non- D. Adjustments to Price Cap Levels 2. Adopting a Productivity-Based X- disclosure agreements will foster 197. Pursuant to the framework Factor competitive conditions in areas that our adopted in this Order, the primary data show are not yet competitive. We services that will remain under price 200. The Commission’s price cap do not, however, see a need to impose cap regulation will be the DS1 and DS3 system has been running on autopilot this prohibition in competitive areas. In end user channel terminations that since June 30, 2005, with no analysis as those areas, the Commission will still incumbent LECs provide in non- to why rate levels from 2003 might have have access to relevant industry data competitive counties. To help ensure remained reasonable despite through mandatory requests or data just and reasonable rates for these widespread changes in the business data collections if needed. We therefore limit services, we adopt an X-factor of 2.0 services marketplace. We end this freeze our restrictions on business data percent that reflects our best estimate of by replacing the CALLS era frozen X-

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factor with a productivity-based X- its costs will not immediately affect the measured output. Similarly, the growth factor. price cap. To see why, note that the rate of the aggregate input index 201. Our analysis includes several price cap is adjusted based on two depends on the combined growth rates steps. We begin by deciding to use a quantities: the national rate of inflation of the individual input indices—such as total factor productivity (TFP) (GDP–PI) and the X-factor. The firm’s indices for capital, labor, energy, methodology in calculating business cost-lowering actions will have, at most, materials and services—weighted, for data services productivity gains or a negligible effect on the national example, by input expenditure shares. losses relative to growth in the general inflation rate. As for the X-factor, while 206. In the Further Notice, the economy. We then decide to use the the regulator periodically will assess the Commission proposed to calculate the U.S. Bureau of Labor Statistics’ Capital, extent to which the regulated firms have X-factor by subtracting from the Labor, Energy, Materials, and Services lowered their costs (and thus might historical rate of change in GDP–PI the data for the broadcasting and adjust the X-factor and price cap historical rate of change in industry telecommunications industries (KLEMS accordingly), this process typically input prices and adding to it the (Broadcasting and occurs with substantial delays. Between historical rate of change in industry Telecommunications)) in applying our X-factor adjustments, firms can keep TFP. The calculation can be expressed methodology. We use KLEMS any additional profits that they achieve by the following formula: X = % D GDP– (Broadcasting and Telecommunications) through cost reductions; hence, the PI¥% D Industry Input Prices + % D data to establish a zone of reasonable X- price-cap regime provides material Industry TFP (Equation 2). No factor estimates. From that zone, we incentives for firms to reduce their commenter challenges this basic TFP select an X-factor of 2.0 percent. Price costs. methodology. The X-factor analyses cap LECs will apply this X-factor 204. In summary, our proposed presented by the parties generally annually to help ensure that their price approach is to estimate an X-factor to be follow this approach. Consistent with cap indices incorporate future subtracted from the annual change in past practice, we conclude that we productivity growth. the GDP–PI to determine the annual should apply this TFP methodology in change, c, in the price cap index: c = our X-factor calculations. a. Selecting a Methodology for P¥(D + t) (Equation 1), where P is the Calculating Productivity Gains or Losses b. Selecting an Appropriate Data Source economy-wide rate of inflation (i.e., the 202. A price cap is intended to mimic GDP–PI), D is the projected difference 207. Having settled on a methodology competitive-market outcomes. One between the economy-wide rate of for calculating the X-factor, we need to aspect of a competitive market is that inflation and the growth rate of industry identify an appropriate data source. output price growth over time matches input prices, and t is the projected Upon review of the record, we find that the difference between industry input growth rate of the industry’s KLEMS (Broadcasting and price growth and industry productivity productivity level. The X-factor, which Telecommunications) is the only growth. Another aspect of a competitive is the sum of D and t, may be interpreted reliable and internally consistent dataset market is strong cost-reduction and as a correction term by which the in the record for measuring incumbent investment incentives. A price cap that projected growth rates of economy-wide LEC productivity and input prices. We grows at a rate equal to the difference prices are adjusted to account for select that dataset for our X-factor between the growth rate of input prices systematic differences between the calculations. and industry productivity growth might, broader economy and the regulated (i) Available Data Sources at least initially, hold prices to industry. Several commenters agree that competitive levels, but if it were this approach is sound, no commenters 208. The KLEMS (Broadcasting and frequently updated on the basis of the oppose it, and we adopt it. Telecommunications) database was one regulated firms’ behavior, quickly taking 205. In the past, the Commission has of three datasets on which the away any additional profits obtained relied on staff studies of the historical Commission invited comment. The either by implementing productivity total factor productivity (or TFP) growth other two consist of: (a) Data from the increases or by negotiating lower input rate of incumbent LECs to estimate peer review process in connection with prices, the regulated firms would have future productivity growth. TFP is the the development of the Connect little incentive to invest in cost and relationship between the output of America Cost Model (CACM); and (b) input price reduction. Consequently, in goods and services to inputs, and is those data in combination with cost data the Further Notice, the Commission commonly used to measure productivity that TDS Metrocom (TDS) submitted in proposed to use a proxy for the in the economy as a whole. TFP studies this proceeding (CACM–TDS). All three difference between the growth rate of typically measure productivity using the datasets are described more fully in input prices and industry productivity ratio of an index of the outputs of a firm, Appendix B to the Report and Order. growth in setting allowed price growth industry, or group of industries to an The Commission asked whether these under the cap. That proxy is a measure index of corresponding inputs. datasets would provide a reasonable of the economy-wide rate of inflation, Productivity growth is measured by basis for estimating business data based on a national price index (i.e., changes in this ratio over time. In a TFP services productivity growth relative to GDP–PI), that is adjusted, through an model, output is typically measured in growth in the general economy. infrequently updated X-factor chosen to terms of physical units (e.g., minutes or 209. The Commission also asked the account for systematic differences calls) of the good or service produced. parties to suggest adjustments to these between the growth rates of national In a case in which more than one good datasets that might improve their utility prices and the difference between or service is supplied (i.e., there are as a measure of business data services telecommunications industry input multiple outputs), a standard practice is productivity growth and requested that price growth and industry productivity to create an index (e.g., an average that the parties suggest additional datasets growth. This proxy approach provides weights by output revenue shares) that that might better balance precision with regulated firms with good incentives to aggregates the output levels. The administrative feasibility. Only one reduce costs. resulting output index shows changes in party, Sprint, suggests an additional 203. Under the approach outlined the level of output over time; in other dataset—a version of KLEMS above, steps that a firm takes to lower words, it provides the growth rate of the (Broadcasting and Telecommunications)

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that purportedly is restricted to data growth than wireline as a tool for measuring business data from the telecommunications industry telecommunications. Although the services productivity growth. The (KLEMS (Telecommunications)). Sprint record falls short of providing the KLEMS (Telecommunications) dataset, also suggests refinements to the CACM information we would need to resolve however, suffers from many of the scope dataset that, in Sprint’s view, improve whether the KLEMS (Broadcasting and problems of the KLEMS (Broadcasting it. We discuss these datasets in turn. Telecommunications) dataset overstates and Telecommunications) dataset with 210. KLEMS (Broadcasting and or understates BDS productivity growth, several additional problems. As an Telecommunications). This dataset we find that this dataset provides the initial matter, excluding broadcasting provides yearly industry-level measures best available information under the data from the KLEMS (Broadcasting and of input prices and total factor circumstances. Telecommunications) dataset would productivity. This dataset has many 212. CACM and CACM–TDS. The reduce, but not eliminate, any merits because, as commenters point CACM and CACM–TDS datasets, even overbreadth problem. And we are out, it relies on ‘‘publicly available, with the refinements suggested by unable to verify Sprint’s assertion that annual industry-level data on industry- Sprint, are less than ideal. As explained the KLEMS (Telecommunications) level measures of input prices and total more fully in Appendix B to the Report dataset excludes broadcasting industry factor productivity’’ and was and Order, the CACM dataset combines data. Indeed, AT&T and CenturyLink et ‘‘developed using rigorous total factor CostQuest cost share data from the al. make credible arguments that the productivity principles and is a valid CACM peer review process with labor KLEMS (Telecommunications) dataset source of measuring total factor cost data from the Bureau of Labor ‘‘comingle[s] broadcasting and productivity and input price trends for Statistics (BLS), and real estate price telecommunications data.’’ This various industries.’’ It also is ‘‘reliable data from Moody’s Investor Service and uncertainty over which industries are and internally consistent,’’ and based on Real Capital Analytics. While this reflected in the KLEMS ‘‘well-accepted economic theory and dataset provides a more direct focus on (Telecommunications) dataset precludes publicly available data.’’ But instead of business data services than KLEMS any finding that it provides a more being restricted to business data services (Broadcasting and Telecommunications) narrow focus on business data services or wireline telecommunications, this provides, we find it neither reliable nor productivity growth than that provided dataset provides data for the internally consistent. Sprint’s by the KLEMS (Broadcasting and broadcasting and telecommunications refinements to this database do not cure Telecommunications) dataset. We are sectors, which collectively have annual these fundamental problems. Both of unable to determine what methodology revenues approximately twelve times these datasets rely in part on data from the European Union used to translate those for business data services. These the CACM peer review process that was KLEMS (Broadcasting and sectors include broadcasting, cable developed to determine the forward- Telecommunications) data into KLEMS television, and satellite television looking economic costs of providing (Telecommunications) data and whether distribution services, wireless broadband Internet access services. that data source is indeed restricted to telecommunications, mass market Those data provide at best a clumsy tool telecommunications data. Internet access services, and the Voice- for determining historical total factor 215. Even if it does exclude over-Internet Protocol (VoIP) industries, productivity growth for business data broadcasting, the KLEMS each of which has a cost structure and services. In addition, as refined by (Telecommunications) dataset is produces outputs different from the Sprint, the CACM dataset includes problematic for at least two additional business data services industry. company-specific data that we and the reasons. First, that dataset only provides 211. The parties dispute the effect of parties to this proceeding are unable to a price index for energy, non-energy this broad scope on BDS productivity fully evaluate and, therefore, may be materials, and purchased services growth estimates that are derived from unreliable. We therefore reject the inputs, and omits critical input prices the KLEMS (Broadcasting and CACM dataset as well as that dataset as for capital and labor, which means that Telecommunications) dataset. Ad Hoc refined by Sprint as potential data it provides only an incomplete picture and Sprint contend that this broad sources for our X-factor calculations. of the industries within its scope. scope creates a downward bias in those 213. The CACM–TDS dataset adds Second, the KLEMS estimates. AT&T and CenturyLink historical cost data from TDS’s (Telecommunications) dataset also maintain, however, that any bias would incumbent LEC operations to the CACM provides a value-added, rather than a overstate BDS productivity growth dataset. While the addition of the TDS gross output, measure of productivity relative to productivity growth in the data further tightens the focus on growth, which precludes an apples to overall economy. AT&T argues that business data services, those data do apples comparison of that growth to ‘‘wireless services, broadband Ethernet ‘‘not address or eliminate any of the input prices, which are based on gross services, and cable and wireline Internet fundamental shortcomings with the input. Each of these problems—lack of access services’’ supply are more CACM data’’ because they are transparency, omission of critical productive than legacy DSn and that the ‘‘proprietary, unvalidated data from a inputs, and employing a value-added KLEMS (Broadcasting and single competitor that is seeking methodology—provides an independent Telecommunications) dataset therefore regulation.’’ We therefore reject the basis for not using KLEMS may overstate productivity growth for CACM–TDS dataset as a potential data (Telecommunications) in our X-factor the TDM-based services to which the X- source for our X-factor calculations. calculations. We therefore reject this factor will apply. CenturyLink asserts 214. KLEMS (Telecommunications). dataset as a potential data source for that growth in labor productivity has To address, in part, the alleged those calculations. been significantly higher in overbreadth of the KLEMS broadcasting and wireless (Broadcasting and Telecommunications) (ii) Selection of Data Source telecommunications than in wireline dataset, Sprint proposes a dataset that 216. None of the datasets before us telecommunications, and that it is purportedly excludes broadcasting allow us to estimate with precision therefore unlikely that broadcasting and industry data and therefore, as asserted business data services productivity wireless telecommunications have by Sprint, is preferable to KLEMS growth relative to growth in the general experienced lower overall productivity (Broadcasting and Telecommunications) economy, and indeed of those datasets

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only KLEMS (Broadcasting and and Telecommunications) data are AT&T claims that data for a shorter Telecommunications) is reliable and available. As the longest timeframe, this period better captures recent internally consistent. In these data period has the most observations productivity trends, but that such a circumstances, we conclude that the and therefore collectively these period might reflect large variation in better course is for us to use that dataset observations contain the most productivity that would lead to unstable to determine business data services information. In particular, this period X-factor projections. In contrast, AT&T productivity and input price growth, includes two complete business cycles. asserts that a longer period might relative to economy-wide productivity This is an advantage because produce a more stable series, but such and input price growth, rather than productivity increases when the a period might include stale data that postponing that determination pending economy expands and decreases when are irrelevant to forward-looking a search for a better option. As the D.C. the economy contracts. Measuring productivity projections. One Circuit has recognized, the Commission productivity over at least one complete disadvantage of this timeframe is that it endeavors to find the best solutions but, business cycle increases the likelihood does not encompass at least one at times, must settle for solutions that that the results represent the future state complete business cycle. This problem are ‘‘reasonable under difficult of the economy. Two complete cycles perhaps is partially mitigated because circumstances.’’ The D.C. Circuit has might be preferred to one because no the period includes the December 2007 noted: two business cycles are alike. One peak and June 2009 trough of the [W]hen an agency makes rational choices business cycle may not represent the current business cycle and a large from among alternatives all of which are to future any better than the other. fraction of the current expansion. some extent infirm because of a lack of 220. This period also includes a 223. 2009 to 2014. This period concrete data, and has gone to great lengths significant amount of time before and minimizes the number of observations to assemble the available facts, reveal its own after the two business cycles. Using a that contain stale information and doubts, refine its approach, and reach a timeframe that includes the maximum depicts recent trends. The main temporary conclusion, it has not acted period for which data are available disadvantage of this period is that it arbitrarily or capriciously. minimizes the likelihood of an arbitrary does not contain at least one complete Here, where our X-factor decision choice among many possible shorter business cycle. In fact, this period only provides only our ‘‘ ‘tentative opinion’ periods within the longer period, given includes years of expansion. So, this about the dividing line between that there is no obviously correct choice. period might not provide data reasonable and unreasonable rates for The disadvantage of this time period is representative of future productivity the limited purpose of exercising [our] that the data from the earliest years in growth. suspension power’’ under section 204 of the period may be stale or otherwise 224. Table 2 provides, for each of the Act, we believe that we may reflect economic conditions that are these four periods, X-factors calculated properly rely on the KLEMS unlikely to persist into the future. The using Equation 2 and KLEMS (Broadcasting and Telecommunications) value of the most recent and most (Broadcasting and Telecommunications) dataset in our X-factor calculations. We relevant data within this time period data. [‘‘Table 2. KLEMS (Broadcasting now turn to those calculations. might not be apparent if combined with and Telecommunications) X-factors’’ older data that are stale and irrelevant. omitted]. c. X-Factor Calculations 221. 1997 to 2014. This period d. Zone of Reasonableness 217. We determine the productivity- includes one complete business cycle. based X-factor as follows. First, we use As discussed above, at least one 225. The four data periods reflected in KLEMS (Broadcasting and complete business cycle should be Table 2 establish a zone of productivity- Telecommunications) data to develop a included in the data on which a based X-factor estimates of between 1.7 range of X-factors for four periods: 1987 productivity study is based because and 2.3 percent. This zone is relatively to 2014; 1997 to 2014; 2005 to 2014; and productivity is procyclical. Sprint narrow, as the data period does not have 2009 to 2014. Second, from this range of supports using 1997 to 2014 data a very large impact on the value of the X-factors we develop a zone of instead of 2005 to 2014 data because the X-factor. For example, the difference reasonableness from which it would be latter period largely reflects the longest between the lowest and the highest appropriate to select an X-factor. Third, and deepest recession the U.S. has percentages is 0.6 percentage points. we decide not to adjust that zone to experienced since 1945. Sprint The arithmetic average and the mid- compensate for KLEMS (Broadcasting concludes that a longer time period is point of the four X-factors are both 2.0 and Telecommunications)’s therefore likely to provide a better percent. The average implicitly weights overbreadth. Finally, we select the X- estimate of future productivity growth. the most-recent observations the most factor from within this zone. An additional reason to use this period, and the earliest observations the least 218. Data Periods. We use four or one longer, is that the current because the most recent observations are different data periods to calculate four economic expansion is 93-months-old, in the most periods and the earliest different which is significantly longer than the observations are in the fewest periods. X-factors to gauge the sensitivity of 58-month average length of prior 226. We find that it would be KLEMS (Broadcasting and expansions going back to 1945. A unreasonable to adjust this zone either Telecommunications)-based shorter period may give too much upward or downward to account for the calculations to different data periods weight to a relatively long-period of broad scope of the KLEMS and because there is no single, correct expansion. Another reason why this (Broadcasting and Telecommunications) data period that we might use for this current economic expansion is unique is dataset from which this zone was purpose. The four data periods are: 1987 that the average annual growth rate of derived. Any such adjustment would to 2014; 1997 to 2014; 2005 to 2014; and this expansion is the lowest among necessarily reflect our determination 2009 to 2014. We note that Sprint expansions since 1945, approximately that this overbreadth creates either a supports using 1997 to 2014, and AT&T 2.1 percent per year. downward bias in our productivity supports using 2005 to 2014. 222. 2005 to 2014. AT&T argues that growth estimates (which could lead to 219. 1987 to 2014. This is the longest this period balances the tradeoff our adjusting the range upward) or an period for which KLEMS (Broadcasting between short and long data periods. upward bias (which could lead to our

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adjusting the range downward). The productivity gains will apply to the competitive areas with absolute parties provide sharply divergent views services that will remain under price certainty, we find that our KLEMS on the direction of any possible caps, which for practical purposes (Broadcasting and adjustment. On the one hand, several consist of DS1 and DS3 channel Telecommunications)-based parties argue that price cap LECs are terminations. Indeed, it is possible that, calculations likely overstates, rather realizing decreasing business data for DS1 and DS3 services in general, than understates, business data services services per unit costs from the growth declining utilization of incumbent LEC productivity growth in those areas. The in packet-switched services, such as plant and rising service-specific costs price cap LECs have not submitted the Ethernet, as customers transition from will more than offset any overall gains company-specific input price and TDM to packet-switched services. Other in business data services productivity. output data that we would need to parties maintain that price cap LECs As AT&T points out, ‘‘demand for DSn quantify this overstatement (and adjust have achieved little productivity growth services has been in rapid decline in the zone of reasonableness downward). relative to that in the overall economy recent years, as price cap LECs retire We therefore make no such adjustment. and that the DS1 and DS3 services that their legacy TDM networks.’’ As a 232. We reject Sprint’s argument that will be subject to price caps have not result, price cap LECs are likely we should adjust the zone of shared in any decrease in per unit costs. experiencing ‘‘very low utilization on reasonableness upward to bring it into 227. Cost-reducing growth is clearly [their] legacy TDM switches’’ and the line with prior X-factor prescriptions, occurring in price cap LECs’ overall ‘‘accompanying loss of scale economies which were based on relatively narrow business data services operations. A suggests that it is unlikely that price cap sets of data related almost exclusively to significant portion of the assets, LECs have achieved productivity gains price cap LEC operations rather than particularly outside plant, used to that are in excess of inflation’’ for DS1 broad datasets such as KLEMS provide DS1s and DS3s, are also used to and DS3 services. This declining (Broadcasting and provide higher bandwidth circuit-based utilization of DSn-specific plant means Telecommunications). Sprint points out services or packet-based services, and that providers must amortize shared that in the 1999 Price Cap Performance vice versa. The more such sharing costs among fewer customers (i.e., unit Review proceeding, Commission staff occurs (i.e., the more demand density costs are likely rising). It therefore computed X-factors for each of the years increases), the lower both the appears that, for DS1 and DS3 services 1986 through 1998 using price cap LEC- incremental and average cost of any generally, price cap LECs’ operating specific data that were significantly service, and total factor productivity expenses may have fallen at a much higher than the X-factors that would increases. These cost reducing effects slower rate than the demand for their have been computed using KLEMS occur and apply to remaining DS1 and services, causing their average cost of (Broadcasting and Telecommunications) DS3 services, even when higher providing DSn services to steadily data. We find that this comparison fails bandwidth circuit-based services or climb. to account for differences between the packet-switched services are substituted 230. Nor does the record make clear task before the Commission in the 1999 for them, so long as the two sets of whether any overall trend in DS1 and Price Cap Performance Review services share costs. DS3 productivity growth extends to the proceeding, which was to determine an 228. Growth in providing higher areas that will remain under price caps. X-factor for all special and switched bandwidth circuit-based services and These non-competitive areas have access services to be provided by price packet-based services is outpacing significantly less demand density than cap LECs, and our task here of declining DS1 and DS3 services, a trend the competitive areas that will no longer determining an X-factor only for those that strongly suggests that overall unit be subject to the price cap regime. The business data services that price cap costs will continue decreasing into the price cap LECs therefore may be less LECs will provide in non-competitive foreseeable future. Price cap LECs are likely to achieve the same gains in areas. investing aggressively in modern economies of scale in non-competitive e. Selection of X-Factor packet-based telecommunications areas than in competitive areas. networks and services. AT&T, for Whether these gains would be higher or 233. We conclude that we should example, announced that by the year lower than elsewhere cannot be select an X-factor below the top of the 2020, 75 percent of its network will be determined from the record. The price zone of reasonableness, 2.3 percent, in controlled by software. AT&T disclosed cap LECs’ initial price cap indices (and order to recognize the diminishing share in an annual report that it was ‘‘focused consequently all changes to those DS1 and DS3 services have had, and on building a modern network indices) reflected the costs of serving all will continue to have, of the overall architecture that will provide the areas within those LECs’ service business data services market. Indeed, highest efficiency and productivity in territories. CenturyLink argues over the longer term, these services will the industry’’ and ‘‘[t]o make that adjustments to those indices should be replaced by Ethernet services or other happen’’ the ‘‘biggest [front] by far is account for the higher costs of serving more advanced business data services transforming [AT&T’s] network from the areas that will remain under prices made possible by the transition to IP- hardware to software-centric’’ which caps ‘‘[w]hether due to unique based services transmitted over fiber. As allows AT&T to ‘‘deliver the most geographic difficulties, insufficient demand for DS1 and DS3 services network traffic at the lowest marginal population density to generate continues to fall, the costs directly cost in the industry.’’ Verizon economies of scale, or an array of other attributable to (in contrast to the costs announced a software-defined possible rationales.’’ However, the for assets shared between those services networking-based strategy ‘‘to introduce X-factor is determined by the rate of and packet-based services) maintaining new operational efficiencies and allow change of costs, not by whether the this legacy technology, will begin to for the enablement of rapid and flexible absolute level of costs is higher or lower rise. For example, over time the volume service delivery to Verizon’s in a given location. of TDM equipment sales will fall to customers.’’ 231. While the record does not enable levels that deny manufacturers 229. The record does not make clear, us to resolve the disputes over price cap economies of scale. Similarly, there will however, to what extent, if any, these LECs’ productivity growth and ability to likely be additional costs associated decreasing unit costs and overall recover the costs of serving non- with warehousing, work programs, and

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maintaining expertise in TDM these factors into account, we prescribe increased from 3.0 percent in 2000 to technology, while moving aggressively an X-factor of 2.0 percent. This X-factor 6.5 percent for 2001 through 2003 and toward the widespread deployment of reasonably assigns weight to the four was set equal to inflation beginning in Ethernet and other advanced different X-factors and accounts to the 2004. These X-factors, however, were technologies. extent possible for the uncertain effects based on an industry agreement, not 234. Requiring DS1 and DS3 rates to of bias in the overly-broad data. changes in productivity and input be reduced by percentages that ignore prices. Including 2000 to 2005 in the 3. Methodology for Setting Inflation the transition from a legacy, TDM assessment period reflects that Measure technology to an advanced technology administrative history. Finally, could require the incumbent LECs to 237. We retain the U.S. Department of including 2005 to 2017 in the supply DS1s and DS3s at rates that do Commerce’s Bureau of Economic assessment period reflects the not recover their costs, and that Analysis’s (BEA’s) chain-weighted Commission’s failure to incorporate a inefficiently incentivize businesses to GDP–PI as the measure of inflation that productivity-based X-factor into its rely on DS1 and DS3 services, rather price cap LECs will use in their price price cap system once the CALLS plan than more advanced business data cap index calculations. As a chain- expired. services. Presumably, there are weighted index, GDP–PI captures 241. Methodology. First, for each of customers that will wish to continue to economy-wide inflation over the the three assessment periods, we use the rely on a legacy technology at least for medium-term and long-term most currently-available KLEMS a period of time even though a new comprehensively and ‘‘significantly (Broadcasting and Telecommunications) technology is readily available because more accurate[ly]’’ than fixed-weighted data through 2014 to calculate it is less expensive on a net present indexes, which become compound annual growth rates in basis for them to do so. In a competitive unrepresentative after a few years of broadcasting and telecommunications market, customers that continued to rely change. We find no alternative measure productivity and input prices. We then on a legacy technology as a new of inflation that is as accurate as GDP– calculate the difference between these technology begins to dominate the PI in the medium and long-term and two rates. Second, we compound the market would be charged higher prices that is not susceptible to carrier value of each annual difference over the if costs directly attributable to the old influence or manipulation. Accordingly, number years in each assessment technology were rising. Our X-factor we retain GDP–PI as the inflation period. The results are the percentages decision should incorporate this aspect measure in our price cap formula. by which the price cap index would be of competitive markets. 4. No Catch-Up Adjustment Is adjusted to accurately reflect changes in 235. The lower-bound of the zone of Warranted productivity and input prices. Third, we reasonableness is 1.7 percent, a subtract the historical change in the percentage based on data from 2009 to 238. The price cap indices have been price cap index from each compounded 2014. While this percentage provides effectively frozen since the CALLS plan value to calculate the catch-up insight into the most-recent trends in expired on June 30, 2005. We conclude adjustment for each assessment period. productivity and input prices, it reflects that no catch-up adjustment to those Finally, we evaluate whether we should only a period of unusual indices is warranted. adjust the price cap indices using these macroeconomic expansion, as explained 239. Assessment Periods. We use catch-up factors. above. We find this period too short and three time periods in assessing whether 242. We use KLEMS (Broadcasting too unrepresentative by itself to provide a catch-up adjustment is warranted: July and Telecommunications) data for three reliable insight into future business data 1, 1997 to November 30, 2017; July 1, data periods—1997 to 2014, 2000 to services productivity growth. No party 2000 to November 30, 2017; and July 1, 2014 and 2005 to 2014—to estimate has submitted an X-factor study or 2005 to November 30, 2017. The starting historical changes in levels of similar data-based analysis purporting points for these periods are the day the productivity and input prices for to show that the X-factor should be Commission’s 1997 X-factor purposes of the catch-up calculations. lower than 2.0 percent. AT&T’s prescription took effect, the date the The year 2014 is the most recent year for proposed X-factor, like our X-factors, CALLS plan took effect, and the day which KLEMS (Broadcasting and reflect KLEMS (Broadcasting and after the CALLS plan expired. Their Telecommunications) data are available, Telecommunications) data. AT&T used ending point is the day before the going- and data are published only for calendar data for 2005 to 2014 in calculating its forward X-factor adopted in this Order years. As we explain below, we adopt X-factor, a period for which the X-factor will take effect. For simplicity, we refer December 1, 2017 as the effective date is 2.0 percent. In these circumstances, to these periods as 1997 to 2017, 2000 for the going-forward X-factor. As we we find that the X-factor we select to 2017, and 2005 to 2017. have no data for 2015 to November 30, should be above the lower bound of 240. The Commission prescribed 2017, we extrapolate annual growth reasonableness. X-factors in 1991, 1995, 1997, and 2000. rates based on the data periods that end 236. As mentioned, the KLEMS The 1991 and 1995 prescribed in 2014 for an additional 35 months (Broadcasting and Telecommunications) X-factors were productivity-based and beyond the end of the data (i.e., for data on which this zone of judicially upheld. The 1997 X-factor of 2015, 2016, and 11 months of 2017), reasonableness is based is overly broad; 6.5 percent, while productivity-based, because mathematically it is simple, the and, although we think an upward bias was reversed and remanded by the D.C. period of extrapolation is relatively more likely, we are unable to resolve the Circuit. Including 1997 to 2000 in the short, and there is no obviously superior dispute among the parties as to whether assessment period reflects that judicial method. We also assume that this broad scope creates a downward or action as well as the fact that the productivity and input price growth upward bias. Our inability on the record Commission never addressed the rates over the last six months of 1997, before us to quantify either the remanded X-factor on its merits. 2000, and 2005 were the same as over magnitude or the direction of this bias Instead, in the CALLS Order, the each entire year, again for simplicity supports selection of the average or the Commission replaced the remanded and the lack of any obviously superior mid-point of the four X-factors, both of X-factor with a ‘‘transitional way to exclude the first six months of which are 2.0 percent. Taking all of mechanism’’ under which the X-factor 1997, 2000, and 2005 or to reconcile the

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use of calendar-year data with an 245. Second, the results for the adjustments to consumers against the estimation period that reflects tariff assessment periods that begin in 1997 cost to carriers (and ultimately years that begin on July 1. and 2000 suggest that the 6.5 percent X- consumers) of applying these differing 243. Table 3, below, sets forth the factor that the Commission prescribed adjustments as well as the cost to the KLEMS (Broadcasting and in 1997 as well as the X-factors that Commission to monitor compliance, we Telecommunications) compound annual were in effect during the CALLS plan conclude that not imposing a catch-up rates of growth in productivity and were unreasonably high and therefore adjustment serves the public interest. input prices for 1997 to 2017, 2000 to that the price cap indices were 5. Additional Price Cap Adjustment 2017 and 2005 to 2017, and the annual unreasonably low. This could help Mechanisms difference between the two rates of explain the extent to which certain price growth, C. Table 3 also shows the value cap incumbent LECs have priced at the 248. We consider several potential of these differences compounded over top of the price caps. The 1997 to 2017 features of the price cap regime whose the assessment periods, E, and the assessment period results show a implementation could affect price cap historical change in the price cap index difference between industry price index rates. We retain the low-end adjustment over the assessment periods, F. The and productivity of ¥0.35 percent mechanism for price cap LECs that meet historical change in the price cap index annually, which when compounded certain conditions. We, however, reflects the X-factors that were in effect over a 20-year, five-month period would decline to incorporate into our price cap during the assessment periods and the have reduced the price cap index by regime three mechanisms that would rate of inflation during these periods as 6.84 percent. Adjusting this figure by affect the X-factor—a consumer measured by changes in GDP–PI (but the ¥26.31 percent historical change in productivity dividend, a growth or ‘‘g’’ ignores exogenous cost changes). The the price cap index produces a catch-up factor, and earnings sharing between catch-up adjustment for each adjustment that would increase price ratepayers and carriers, or to subdivide assessment period, G, is equal to the cap levels by 19.47 percent. The 2000 to the special access price cap basket into compounded change in price cap index, 2017 assessment period results show a different categories or subcategories. E, minus the historical change in the difference between industry price index 249. Low-End Adjustment. We retain price cap index, F. This calculation and productivity of ¥0.34 percent a low-end adjustment mechanism accounts for differences between what a annually, which when compounded because we find it provides an KLEMS (Broadcasting and over a 17-year, five-month period would appropriate backstop to ensure that Telecommunications)-based X-factor have reduced the price cap index by carriers are not subject to protracted would have been and the actual X- 5.81 percent. Adjusting this figure by periods of low earnings that impair their factors that applied. [‘‘Table 3. Potential the ¥13.94 percent historical change in ability to attract capital and provide Catch-up Adjustments for Multiple the price cap index produces a catch-up service. This adjustment will only be Periods Through November 30, 2017’’ adjustment that would increase the available to price cap LECs to the extent omitted]. price cap index by 8.13 percent. they provide business data services in 244. Discussion. We decline to require 246. We decline to require price cap non-competitive areas. Carriers that price cap LECs to implement a catch-up LECs to implement a catch-up obtained pricing flexibility under the adjustment to baseline price cap levels. adjustment to the price cap index. An Commission’s prior rules, exercise First, focusing on the period since adjustment based on the period since downward pricing flexibility pursuant expiration of the CALLS plan, 2005 to the CALLS plan expired would result in to this Order (for example, by entering 2017, the annual difference between the only a modest decrease in price cap into a contract tariff with a customer), KLEMS (Broadcasting and levels and would likely overstate or elect the option to use Generally Telecommunications) industry price productivity growth for the business Accepted Accounting Principles index and productivity is only ¥0.11 data services that will remain under (GAAP) rather than the Part 32 Uniform percent annually, which when price caps. Such an adjustment also System of Accounts as set forth in our compounded over a 12-year, five-month would ignore the facts that the X-factors recent Part 32 Accounting Order will be period results in only a 1.40 percent used during the CALLS plan itself were ineligible for a low-end adjustment. We potential reduction in the price cap not productivity-based and that the X- find that, consistent with past practice, index. This suggests that historical factor adopted before CALLS was struck setting the low-end adjustment mark at business data services productivity down by the D.C. Circuit. Adjustments 8.75 percent, 100 basis points below the gains for the assessment period 2005 to based on periods when those X-factors authorized rate of return for rate of 2017 were almost exactly offset by were in effect would increase price cap return carriers, will continue to ensure inflation, which is what the X-factor has levels, a result that no party has urged. that price cap LECs have the been set equal to since the expiration of In these circumstances, we believe it opportunity to attract sufficient capital. the CALLS plan on June 30, 2005. more prudent to rely on existing price 250. Historically, the low-end Indeed, the annual and 12-year, five- caps levels, which at least have the adjustment permitted price cap LECs month differences of ¥0.11 percent and benefit of minimizing potential rate that earn a rate of return 100 basis ¥1.40 percent, respectively, are so shock to consumers. points or more below the prescribed rate small as to be well within the margin of 247. Finally, we recognize that of return for rate-of-return carriers to error for our calculations. Any catch-up carriers have entered price-cap temporarily increase their price cap adjustment would apply only to lower regulation at different points over the indices in the next year to a level that bandwidth business data services, such last 20 years, and so any catch-up would allow them to earn 100 basis as DS1s and DS3s, and only to the adjustments would need to reflect that points below the prescribed rate of extent price cap LECs provide them fact. It would make no sense, for return. Unusually low earnings may be within non-competitive areas. We find it example, to impose a catch-up attributable to an error in the likely that productivity growth for these adjustment calculated to reflect productivity factor, the application of an services in these areas lagged productivity over the last 12 or 20 years industry-wide factor to a particular LEC, productivity growth for price cap LECs’ to a carrier that converted to price cap or unforeseen circumstances in a business data services generally regulation just five years ago. And particular area of the country. Failure to between 2005 and 2017. weighing the uncertain benefit of such include any adjustment for such

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circumstances could harm customers as in this X-factor. We therefore do not that new approach. We require revised well as stockholders of such a LEC, as include a CPD in the X-factor. tariff review plans (TRPs) implementing a below-normal rate of return over a 254. Growth Factor. We decline to the X-factor to be filed with the prolonged period could threaten the adopt a growth or ‘‘g’’ factor adjustment Commission to become effective on LEC’s ability to raise the capital to the price cap indices because we find December 1, 2017. necessary to provide modern, efficient that our 2.0 percent X-factor already 258. Incumbent LECs that file tariffs services to customers. We therefore accounts for average cost decreases due under the price cap ratemaking retain the low-end adjustment to demand growth, which the ‘‘g’’ factor methodology are required to file revised mechanism. was designed to capture. We find that a annual access charge tariffs every year, 251. The low-end adjustment ‘‘g’’ factor is unnecessary because the which become effective on July 1. The mechanism permits a one-time PCI 2.0 percent X-factor should capture all annual filings include submission of adjustment to a single year’s rates to of the productivity changes for business TRPs that are used to support revisions avoid back-to-back earnings below a data services, including demand growth. to the rates, including revisions that benchmark. If a price cap LECs’ earnings If business data services demand growth pertain to the X-factor. To ease the fall below the low-end adjustment mark leads to the realization of scale burden on the industry, and because in a base year period, it is entitled to economies, input prices fall, and base period demand and the value of adjust its rates upward to target earnings productivity increases, which our X- GDP–PI reflected in the price cap to an amount not to exceed the low-end factor calculations should capture. indices typically are not updated during mark, using the period as a baseline. In Therefore, we do not include a growth a tariff year, we permit incumbent LECs the past, the Commission used 100 basis factor similar to the ‘‘g’’ factor in the to use the same base period demand and points below the authorized rate of price cap index formula for special value of GDP–PI in their December 1, return for rate-of-return carriers as the access services. 2017 filings as in their July 1, 2017 low-end adjustment mark. The 255. Earnings Sharing. We decline to annual filings. authorized rate of return for rate-of- reinstate earnings sharing arrangements 259. Consistent with that approach, return carriers is presently 9.75 percent, between ratepayers and carriers. In the each price cap incumbent LECs must and 8.75 percent is 100 basis points Further Notice, the Commission asked file, for business data services, revised below that percentage. The latter whether it should reinstate earnings TRPs and rates to reflect the newly percentage is above the embedded cost sharing, which had been a feature of the revised X-factor. The X-factor adopted of debt the Commission determined for Commission’s original price cap system. in this Order only applies prospectively, each price cap LEC in March 2016. An In 1997, the Commission eliminated and each price cap incumbent LEC must 8.75 percent rate of return should earnings sharing, finding that it blunted recalculate its price cap index based on provide each eligible price cap LEC with price cap LECs’ efficiency incentives the December 1, 2017, effective date of the opportunity to meet its existing and that eliminating it would remove this X-factor. In particular, the new obligations to debtholders and attract vestiges of rate of return regulation from X-factor should be reflected in the sufficient capital while continuing to the price cap system. The only party calculation of the price cap index for the provide services. directly addressing this area opposes special access basket and the pricing 252. We reject Sprint’s argument that reinstating earnings sharing. We find bands for each service category and we should not base our low-end mark that the Commission’s prior reasoning subcategory within this basket. Rates on the authorized rate of return for rate- supporting eliminating earnings sharing must be established at levels where the of-return carriers because that rate does persuasive, and there is no record actual price index does not exceed the not reflect the large price cap LECs’ cost support to overturn the Commission’s price cap index and the service band of capital. The rate reflects a weighted past finding and reinstate earnings index for each service category and average cost of capital that was sharing. subcategory does not exceed its upper calculated using data from a proxy 256. Baskets and Bands. We decline limit. For purposes of this filing, the group that included large price cap to subdivide the special access basket price cap incumbent LECs must base the LECs (e.g., AT&T, Verizon, and into different categories and calculation of these indices on our rules CenturyLink), mid-sized price cap LECs subcategories. The only party for an annual filing, other than for the (e.g., FairPoint, Frontier, Hawaiian addressing this area, Inteliquent, asks periods used to measure base period Telcom, and Windstream), as well as that we create a service basket demand and the value of GDP–PI. publically traded rate-of-return LECs. subcategory for multiplexing services to Further specific direction on the Accordingly we set the low-end ensure that any required TDM rate material required to be filed in the TRPs adjustment mark at 8.75 percent. reductions flow through to these will be provided in a public notice or 253. Consumer Productivity Dividend. services, which it asserts have order preceding the December 1, 2017 We decline to incorporate a consumer unreasonably high rates. Simply effective date of the 2.0 percent X-factor, productivity dividend (CPD) adjustment creating a multiplexing subcategory which will address compliance with into the X-factor adopted in this Order. within the special access basket, price cap tariff filing procedures In instituting price caps in 1990, the however, would not by itself result in (including required certifications). Commission expected that incentive lower multiplexing rates. Even if we regulation would result in greater were to accept Inteliquent’s premise that E. Wholesale Pricing productivity gains than LECs had multiplexing rates are unreasonably 260. We decline to adopt ex ante rules historically achieved under rate of high, the record in this proceeding governing the relationship between return regulation. The CPD was would not enable us to determine a wholesale and retail rates for business designed to ensure that ratepayers reasonable level. data services, or to otherwise intervene would benefit from these additional in the marketplace for wholesale gains. The 2.0 percent X-factor adopted 6. Implementation business data services. in this Order reflects all anticipated 257. Having adopted a new X-factor 261. The Communications Act and future business data services for use in the price cap index for price Commission precedent provide ample productivity growth. There should be no cap LECs in non-competitive areas, we guidance regarding the pricing of additional gains beyond those captured now set forth the path for implementing wholesale business data services.

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Section 201(b) of the Act requires that these lower costs. However, any such and going on to assert that ‘‘BDS ‘‘[a]ll charges . . . for and in connection mandate could have the unintended providers are therefore common carriers with [interstate or international effect of preventing providers from . . . subject to Title II in the provision telecommunications service] shall be reducing retail rates to competitive of their services . . . .’’ As we discuss just and reasonable . . . .’’ Section levels, as the provider would then have below, that terse suggestion in the 202(a) of the Act prohibits ‘‘any unjust to reduce its wholesale rates to below Further Notice does not accurately or unreasonable discrimination in those levels. reflect the nuanced analysis required for charges . . . for or in connection with 264. Three commenters suggest such a classification decision. This like communication service . . . .’’ It potential methods and amounts for an proceeding is not the appropriate place has long been the Commission’s policy industry-wide discount. Advocates of to make any generalized or that, under these provisions, ‘‘interstate action on wholesale pricing share an comprehensive classification decisions access services should be made underlying premise, that wholesale of that sort for business data services. available on a non-discriminatory basis services pricing should exclude avoided We do, however, discuss the services and, as far as possible, without retail sales expenses. We do not find it described in detail in the record by distinction between end user and . . . necessary to make a finding concerning certain providers, which we find to be [wholesale] customers.’’ But, as the D.C. the accuracy of this premise and decline private carriage offerings based on the Circuit has explained, ‘‘[b]y its nature, to set an industry-wide wholesale facts provided here. In doing so, we section 202(a) is not concerned with the discount. Incumbent LECs are not reiterate the Commission’s longstanding price differentials between qualitatively required to tailor prices based solely on approach to the associated classification different services or service packages. In costs, although rates must be just and issues, guarding against any lingering other words, so far as ‘unreasonable reasonable and not unreasonably misunderstandings regarding discrimination’ is concerned, an apple discriminatory. We expect that classification flowing from statements in does not have to be priced the same as continued growth in competition as a the Further Notice. an orange.’’ result of this Order will have a positive 1. Background 262. In response to requests for effect on the marketplace without the comments on the issue in the Further need for a wholesale discount. 268. Under the analytical framework Notice, some commenters offer Additionally, our section 208 complaint for distinguishing between services anecdotal evidence that price caps LECs procedures remain available to remedy offered on a common carriage or private provide retail services at rates lower any claimed anticompetitive or carriage basis—commonly known as the than the prices they charge competitive discriminatory behavior. ‘NARUC analysis’ (or the like) for the LECs for components of those services. 265. Sections 201(b) and 202(a) do not court cases from which it derives— They argue that charging retail rates that explicitly require rates to correspond to common carriage under the Act has two are lower than wholesale rates violates costs—only that such rates be just and prerequisites: (1) An indifferent holding the Act’s prohibition against unjust or reasonable and not unreasonably out of service to all potential users; and unreasonable discrimination in charges discriminatory. Indeed, with any (2) the transmission by customers of and that we should adopt a rule generally available offering, it is ‘‘intelligence of their own design and prohibiting providers from charging unlikely that the costs to provide service choosing.’’ By contrast, ‘‘a carrier will more for resale than wholesale services. to any two customers would be exactly not be a common carrier where its practice is to make individualized However, despite competitive LEC the same, and we do not require carriers decisions, in particular cases, whether assertions to the contrary, we find that to price their offerings based on the and on what terms to deal.’’ As the D.C. there is little concrete evidence that myriad of different costs imposed by Circuit explained in NARUC I, ‘‘[t]he incumbent LECs charge their wholesale various customers. In fact, we prohibit original rationale for imposing a stricter customers higher rates than they charge carriers from discriminating against duty of care on common carriers was retail customers for like business data similarly-situated customers. The same that they had implicitly accepted a sort services. At most, the record provides analysis is true in this situation. of public trust by availing themselves of selective information regarding a 266. Additionally, Sprint and the public at large.’’ This ‘‘quasi-public handful of incidents where an Windstream ask that we ‘‘confirm that character . . . coupled with the lack of incumbent LEC’s wholesale pricing carriers cannot avoid [their] resale control exercised by’’ customers of the policies allegedly impeded a obligations merely by bundling non- carriers’ services ‘‘was seen to justify competitive LEC’s ability to compete. As Internet telecommunications services imposing upon the carrier’’ heightened such the record provides no basis for us with Internet access or with add-on duties. to adopt generally applicable rules information services.’’ LARIAT asks that governing the application of section 269. In the 1996 Act, Congress added we establish rules to prohibit ‘‘refusal to new statutory categories of 201(b)’s prohibition against unjust or deal.’’ We find that these practices do unreasonable practices or section ‘‘telecommunications,’’ not lend themselves to blanket rules or 202(a)’s prohibition against unjust or ‘‘telecommunications services,’’ and detailed pricing methodologies, and we unreasonable discrimination to alleged ‘‘telecommunications carriers’’ to the therefore reject these requests. problems in the wholesale business data Communications Act. services marketplace. VI. Additional Modernizing Actions Telecommunications is defined in 263. In reaching this conclusion, we relevant part as ‘‘the transmission . . . also reject requests that we mandate A. Certain Services Described In the of information of the user’s choosing,’’ that, as a general matter, wholesale Record Are Not Common Carrier echoing the second prong of the business data services rates must be Services traditional NARUC analysis. lower than the retail rates for like 267. A number of commenters dispute Telecommunications services, in turn, services. Certain parties argue that the accuracy of a seemingly-categorical involve the offering of because it costs business data services statement in the Further Notice telecommunications for a fee to the providers less to provide wholesale ‘‘not[ing] that business data services are public, which the Commission has services than to provide like retail telecommunications services, regardless found to ‘‘encompass only services wholesale rates should reflect of the provider supplying the service,’’ telecommunications provided on a

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common carrier basis,’’ relying on the in the case of business data services here, we likewise conclude that the longstanding NARUC analysis for that provided to enterprise customers, it services described by Mediacom, ACS, evaluation. As the Commission found, makes individualized decisions whether and BT Americas are private carriage this interpretation gives meaning to the to offer service to given customers. The when offered as these providers ‘to the public’ criteria in the case-by-case decisions about whether to describe. telecommunications service definition offer these services to a given customer 274. Responses to Arguments in a manner that accords with the described by Comcast and Charter stand Disputing that Those Services are Held relevant legislative history. Because in contrast to the ‘‘quasi-public Out on a Private Carriage Basis Under telecommunications services meet the character’’ that is a ‘‘critical’’ premise of the NARUC Analysis. Some commenters standard for common carriage, providers common carrier classification—and the purport to provide evidence that of telecommunications services—i.e., associated heightened duties— business data service providers telecommunications carriers—are acting identified by the D.C. Circuit in NARUC generally, or Comcast and Charter in as common carriers to the extent that I. The absence of this critical factor is particular, offer business data services they are providing such services. central to our private carriage analysis in a manner that reflects an indifferent of these services. holding out of service to the public, and 2. Discussion 272. Comcast and Charter each further thus should be classified as common 270. Against the backdrop of the explain that they make highly- carrier telecommunications services. We Commission’s established approach to individualized decisions regarding any reject such claims in the context of the addressing private carriage, common rates and terms they do offer for the specific providers’ services addressed carriage, and telecommunications relevant categories of services in order above for a number of reasons. service classification issues, we agree to meet the particular needs of a given 275. First, generalized statements with commenters that statements in the customer. The plausibility of these about marketplace trends broadly, or Further Notice were unduly broad descriptions is reinforced by the fact Comcast’s or Charter’s networks or insofar as they could be read to suggest that the customers for these services services generally—but which do not that all business data services typically include large wireless carriers, purport to address more specifically the necessarily are telecommunications other large service providers, or particular services we discuss above— services subject to common carrier enterprises. The record reveals that such do not provide a basis to reject the regulation. Our approach to such entities are likely to have the size and evidence put forward by Comcast, classification issues requires an sophistication to demand uniquely- Charter or the other providers addressed understanding and analysis of the facts tailored wholesale or retail offerings that above that is specific to those providers’ regarding particular service offerings enable them to meet particularized services. Even assuming arguendo that that the record underlying the Further needs. Although a few commenters certain characterizations of the Notice was lacking. To the contrary, as dispute the private carriage claims in marketplace as a whole or particular discussed below, the record generated the record, for the reasons described providers’ networks or offerings might in response to the Further Notice below in our response to those commonly hold true in a general sense, demonstrates that some business data arguments, we are not persuaded that we find no basis to assume that they services currently are being offered on a they require a different conclusion with hold true with respect to particular private carriage basis in the marketplace respect to the services we classify as service offerings sufficient to overcome today. The record is not sufficiently private carriage here. Thus, considering more specific contrary evidence. detailed and comprehensive to provide the totality of the circumstances, we 276. Second, we are unpersuaded by a basis to broadly classify all business conclude that the Comcast and Charter arguments that particular aspects of how data services. By addressing examples services identified above, when offered these providers offer service do not where particular providers submitted in the manner described in the record, inherently require a classification of more detailed information regarding constitute private carriage services—not private carriage as to the offering of the certain of their services, however, we common carrier services or relevant services, or can be consistent can mitigate the risk of continued telecommunications services. with common carriage. We do not base uncertainty or confusion regarding the 273. As other examples, Mediacom, our decision on any single aspect of the Commission’s approach to such ACS, and BT Americas also argue that manner in which Comcast, Charter, classification questions that potentially services they each provide constitute Mediacom, ACS, or BT Americas offer were introduced by statements in the private carriage. Although the the specified services. Rather, we Further Notice. information they submitted is not quite confirm those providers’ claims of 271. Affirmative Arguments for as detailed or specific as that of Comcast private carriage based on the totality of Private Carriage Classification of and Charter, we nonetheless agree that, the evidence before us describing the Certain Services. Comcast and Charter as described, these services reflect manner in which the relevant services each submitted detailed information private carriage offerings. Notably, each are offered. Under that analysis we find about certain categories of services of these providers explains with respect sufficient evidence of individualized sufficient to enable us to classify those to its relevant services that, rather than determinations whether to offer service as private carriage offerings based on the offering service to all potential to given customers and, when services record here. With respect to its customers and offering rates and terms are offered, individualization on a wholesale cellular backhaul service and indifferently, they instead make sufficient range of key terms of the E-Access service, Comcast explains that individualized decisions about whether offering to warrant a finding of private it makes individualized decisions and on what terms to offer service. carriage. Thus, whether any subset of whether it will, in fact, offer such There also is little indication in the actions taken by those providers would services in a given instance or to a given record of any disagreement that these or would not be sufficient to support a customer. Comcast describes its offering particular providers are offering service private carriage classification is not an of retail Ethernet transport similarly, on a private carriage basis, as they issue we confront or address here. explaining that it does not hold out such contend. Building on our analysis for 277. We also find a variety of those services to all interested buyers. For its Comcast and Charter above, under our claims overstated, even on their own part, Charter explains that particularly evaluation of the totality of the evidence terms. For example, some commenters

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cite marketing materials or other in significant part, they do not reflect a prejudge the classification of services statements from certain of the providers formal offer of service at particular rates being offered in the marketplace today discussed above as undercutting these and terms that these providers or in the future—whether by providers’ claims that, as to the relevant genuinely anticipate potential competitive providers or incumbent services, the providers make customers accepting, but merely serve a LECs—which potentially could be individualized decisions whether and starting point for negotiations of appropriately classified as private on what terms to deal. In many cases, relevant rates and terms. In addition, to carriage, as well. We need not and do the cited materials or statements, while the extent that Verizon identifies certain not resolve such broader classification focused on particular services or similarities in its interactions with a issues here. categories of services, nonetheless still variety of different service providers 280. The record also does not are too high-level or generalized to (when acting as a customer) and with its demonstrate that the Commission has provide meaningful insight into the own operation (when acting as a service any statutory authority to compel more granular details of how particular provider), that is distinct from the common carriage offerings of what services are offered in practice. Even relevant question of whether a single otherwise are private carriage business materials or statements purporting to provider treats all potential customers data services—to compel a provider to speak to particular service offerings on similarly and thus should be classified ‘‘offer[]’’ business data services ‘‘for a a somewhat more granular basis do not as a common carrier. Further, some fee directly to the public’’ if the lend themselves to simplistic analysis. uniformity in technical characteristics provider has not voluntarily done so. Where service is offered via a tariff, the in a given provider’s service offering The precedent cited by commenters analysis can be more straightforward not appears largely inevitable given the advocating such a compulsion arose only because the filed tariff doctrine need to conform to industry standards, where the Commission was exercising requires the tariffed rates and terms to common equipment, and the like, and if licensing authority. By contrast, the be controlling, but even more that were enough to warrant a finding of providers that are the focus of private fundamentally because only common common carriage, the notion of private carriage arguments in the record here— carrier services may be offered on a carriage could be rendered a nullity. particularly cable operators—do not tariffed basis. Outside the tariffing Additionally, issues regarding the rates require any Commission license or context, we agree with commenters that and terms of any offering are distinct authorization before introducing marketing materials or the like might from the question of whether any domestic, private carriage business data well be used merely to make it known offering (whatever the rates and terms) services, so those orders do not that a given company is a potential is made to all potential users of the demonstrate Commission authority as provider of particular services without service—a ‘‘critical’’ issue under relevant here. Instead, commenters representing a formal offer of service to NARUC I—and do not implicate our merely assert their view that doing so all customers to which the service might findings in that regard discussed above. would be desirable as a way to advance legally and practicably be of use. On Thus, while relevant to consider as part various policy goals. Absent any their face, we do not find the marketing of arguments about a providers’ statutory authority, we cannot compel materials or other provider statements individualization in rates and terms, common carriage for what otherwise are cited here to represent a formal holding under the totality of the circumstances private carriage offerings. 281. Responses to Arguments out of the services addressed above to here, we conclude that the alleged Advocating Compelled Common all potential users. Nor are we ‘‘uniformity’’ in service offerings cited Carriage or a Different Classification by commenters is limited and does not persuaded by the record that, in Approach. We also reject arguments for practice, Comcast, Charter, Mediacom, preclude our private carriage requiring that some or all business data ACS, or BT Americas treat those classification for Comcast, Charter, services be offered on a common statements or marketing materials in Mediacom, ACS, and BT Americas. carriage basis as telecommunications such a manner. Insofar as the statements 279. Third, we reject common carriage services even where providers otherwise and marketing materials thus are claims based on asserted similarities have elected to offer them on a private compatible with those providers’ between particular aspects of these carriage basis. Although the traditional representations regarding whether and providers’ offering of service and the NARUC analysis recognizes the how they offer the relevant services, we manner in which incumbent LECs or possibility that a service provider might are not persuaded to reject the others offer service. We are not be under a legal compulsion to offer providers’ representations on the basis persuaded that comparisons or service on a common carrier basis, the of such materials and statements. analogies to how other providers such record does not demonstrate grounds for 278. Also overstated are commenters’ as incumbent LECs or others have imposing such a requirement here. As a claims regarding common technical offered service necessarily are threshold matter, we agree with characteristics or terms of agreements, illuminating. Although there are a commenters that the Further Notice did whether in marketing materials, ‘‘rate variety of prior decisions where the not provide adequate APA notice for the sheets,’’ or from practical interactions Commission has suggested that business Commission to compel common with Comcast, Charter, Mediacom, ACS, data services are telecommunications carriage for business data services or BT Americas. These claims do not services, those decisions are best generally, or to do so for some segment dissuade us from the private carriage understood as descriptive of the of the industry, via the adoption of a determination we make as to those agency’s general sense of how legislative rule of general applicability. providers. Such considerations can be providers—and particularly incumbent 282. In addition, we also find relevant to the classification analysis, LECs—were, in practice, offering such insufficient the policy grounds cited by but the evidence before us in that regard services at the time. They do not commenters advocating compelled does not require a common carrier expressly claim (or justify) any formal, common carriage here. As a number of classification here. Even to the extent comprehensive classification of commenters recognize, our precedent that such evidence here directly applies business data services under our generally has identified market power as to the particular providers’ services longstanding classification approaches. a prerequisite for potentially compelling addressed above, we are persuaded that, Those prior decisions thus also do not common carriage, but the record here

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does not reveal that the specific private offerings. Thus, as a matter of that will ensure rates, terms, and providers offering particular business statutory construction, the record does conditions for special access services data services on a private carriage basis not persuade us to depart from our [business data services] are just and have market power with respect to those longstanding classification approach, reasonable.’’ As a result, the interim services. While arguing that the which gave full meaning to the relevant wholesale access rule for discontinued Commission also can compel common statutory language consistent with the TDM-based business data services and carriage based on other public interest legislative history. unbundled network element platform considerations, Public Knowledge et al. 284. Independently, we are not (UNE–P) replacement services (also nonetheless acknowledge that even then persuaded by policy arguments that we called commercial wholesale platform the Commission must consider should depart from our longstanding services) established in the 2015 ‘‘whether the public interest benefits classification approach even if we could Technology Transitions Order will outweigh the costs of applying do so as a matter of statutory expire when these rules and policies regulation.’’ Yet even that standard is interpretation. The arguments in favor become effective. We decline to extend not met on the record here. Although of such action are, like the arguments the interim rule for UNE–P replacement some commenters seek to minimize the commenters raised in favor of services. perceived extent of regulatory burdens compelled common carriage, 287. Background. UNE–P replacement that would flow from compelled generalized assertions about providing services are wholesale voice services common carriage, the Commission itself perceived benefits or remedying that consist of a DS0 loop, switching, has acknowledged that meaningful perceived risk of harms that are and shared transport, and allow burdens do, in fact, flow from common divorced from any specific competitive carriers to provide local carrier treatment. Some service provider circumstances where application of our exchange service without facilities. In commenters also explain that they have longstanding classification approach the 2015 Technology Transitions Order, relied on their ability to operate on a would yield private carriage the Commission concluded that, as a private carriage basis, and the flexibility classifications. As we explained when condition to receiving authority to it provides, when electing to enter the rejecting proposals to compel common discontinue a legacy TDM-based service marketplace with particular business carriage, such arguments do not used as a wholesale input by data service offerings. Thus, we find it demonstrate what public benefits would competitive providers, an incumbent likely that Commission action broadly flow if the specific services of certain LEC must provide wholesale access to treating as common carriage services providers that we find to be offered on UNE–P replacement services and that providers wish to offer as private a private carriage basis—or those of business data services at DS1 speed and carriage would discourage investment in other providers not addressed here— above on reasonably comparable rates, such services. At the same time, we find were instead classified as common terms, and conditions to any requesting any alleged countervailing public carriage. That shortcoming is even more telecommunications carrier. This interest benefits entirely speculative. problematic for any argument to revisit interim rule will expire when the The generalized claims in the record the Commission’s classification requirements established in this Order about the need for common carriage, approach, because absent some theory are published in the Federal Register even assuming arguendo that they held for limiting the interpretation just to this and become effective. In the 2015 true in some cases, do not demonstrate context, increasing the reach of the Technology Transitions Further Notice, telecommunications service definition the Commission asked whether it the nature and extent of any benefits (if would also result in regulatory burdens should extend the interim rule for UNE– any) that would flow from compelling for providers of other communications P replacement services only for a further common carriage by the specific services that would be classified as interim period beyond completion of providers discussed above as to the common carrier telecommunication this proceeding, and if so, for how long. specific services that we find here to be services under that interpretive The Commission ‘‘recognize[d] that offered on a private carriage basis. We approach. We thus find no grounds for incumbents are currently offering such thus find no policy rationale for adopting an approach to service commercial arrangements in TDM on a compelling common carriage by any classification here that departs from our voluntary basis’’ and further particular providers here. longstanding reliance on the NARUC ‘‘recognize[d] the benefits of agreements 283. For similar reasons, we decline analysis. reached through market negotiations.’’ to adopt a new approach to 285. Given that we do not depart here 288. Discussion. Consistent with the classification here that departs from our from our longstanding approach to Commission’s statement in the 2015 longstanding reliance on the NARUC evaluating private carriage and common Technology Transitions Order that ‘‘the analysis as some commenters propose. carriage classification, we also continue special access proceeding provides a Commenters advocating that we classify to adhere to our precedent under which foreseeable and definitive point in the business data services solely through shared use arrangements typically were future at which we can reassess the our own interpretation of the statutory classified as private carriage. efficacy and necessity of the [interim] ‘‘telecommunications service’’ Consequently, this addresses the requirement,’’ we have reevaluated the definition do not put forward a theory concerns of some commenters that continued need for the interim rule. We of interpretation that we find research and education (R&E) networks determine that the interim rule is no reasonable. Instead, these commenters that historically had been treated as longer necessary, and we will not focus to such a degree on the desired private carriage under that framework extend it beyond the timeline for outcome of such a classification might newly be classified as common expiration established in the 2015 approach that we are left unclear how carrier telecommunications services Technology Transitions Order. In the Commission could achieve that under a new approach to classification. reaching this conclusion, we return to outcome without adopting such a the Commission’s longstanding policy sweeping interpretation of B. Expiration of the Section 214 Interim of ‘‘encourag[ing] the innovation and ‘‘telecommunications services’’ as to Wholesale Access Rule investment that come from facilities- virtually eliminate any distinction 286. By this Order, the Commission based competition.’’ Thirteen years ago, between offerings ‘‘to the public’’ and ‘‘identifies a set of rules and/or policies the Commission found that ‘‘[i]t is now

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clear, as discussed below, that, in many Wholesale Voice Coalition—contend same data submitted in support of the areas, UNE–P has been a disincentive to that their service is difficult to provide initial adoption of the interim rule. competitive LECs’ infrastructure without access to regulated inputs due 292. Finally, we note that arguments investment.’’ Today, we conclude that if to the high cost of serving some in favor of extending the interim rule we maintained and extended the individual customer locations, the are premised on the expectation that interim rule, it would have a similar typically low number of lines per wholesale voice arrangements will not negative impact on incumbent LEC customer location, and the need to serve occur absent regulatory action. We deployment of, and transition to, next- numerous locations per customer. Given disagree. Our view is informed generation network infrastructure and these companies’ multilocation business significantly by developments innovative IP services that benefit all model, it is plausible that they could subsequent to the 2015 Technology Americans, businesses and consumers absorb a loss to serve some customer Transitions Order. First, we anticipate alike. We will no longer deter locations yet still find serving that that growing intermodal competition investment in next-generation facilities customer worthwhile. However, neither will continue to diminish incumbent or distort the market by extending the Granite nor any other party has linked LECs’ once-central role in the voice interim rule. Although Granite argues the challenges of serving some marketplace. Second, incumbent LECs— that UNE–P rate regulation was more individual customer locations to in particular, BOCs such as AT&T, stringent than the ‘‘reasonably competitive or customer impact. For Verizon, and CenturyLink—continue to comparable’’ interim rule, the difference instance, Granite has not quantified how offer UNE–P replacement services in is merely one of degree rather than of many of its customers would become TDM on a voluntary basis under kind. uneconomical to serve without the commercially negotiated terms. In the 289. We find arguments raised by interim rule, shown how it would course of forbearing from local proponents of extending the UNE–P choose among constructing its own switching and shared transport replacement rule today to be highly facilities, reselling cable, and reselling unbundling obligations under section similar to arguments that the incumbent LEC services in the absence 271 in the 2015 USTelecom Forbearance Commission rejected in 2015 when of the rule, nor shown how these issues proceeding, the Commission concluded declining to set a further end date for would adversely affect overall that it did ‘‘not find persuasive Granite’s the interim rule. Granite and others competition in the market. Instead, argument that BOCs would never offer have known since the interim rule’s supporters of extending the interim rule UNE–P replacement services [in TDM] adoption that the Commission intended focus on how it would adversely impact but for the section 271 ‘backstop.’ ’’ the condition ‘‘to be interim and short- them as individual competitors and call Since that time, neither Granite nor term in nature’’; indeed, the for us to conduct a detailed examination Commission emphasized that others have shown that prices or of the marketplace for wholesale voice availability of TDM-based UNE–P ‘‘consistent with that goal we have platform services and—if we are adopted a specific and foreseeable replacement services have changed as a unwilling to cement the rule result of the forbearance. We see no endpoint.’’ In the 2015 Technology permanently in place—extend the Transitions Further Notice the convincing reason in the record to interim rule until the study is complete. assume that the market would operate Commission inquired only whether it We decline to expend public resources would be appropriate to require an differently in IP. Granite attempts to to further distort the market, raise costs show otherwise by pointing to extension for a further interim period to associated with the transition to IP, the extent ‘‘wholesale arrangements for negotiations in which AT&T refused deter facilities investment, and voice are unlikely.’’ Based on our Granite’s request to include a clause introduce regulatory uncertainty. conclusions herein, we decline to alter acknowledging the interim rule. the end date of the interim rule. We find 291. We find the remainder of the However, the interim rule was a time- some merit to the argument that it did arguments in the record in support of limited regulatory obligation not make sense to specifically tie the extending the condition similarly independent of any contract. We fail to interim rule’s termination as to UNE–P unpersuasive. Granite has argued that see how AT&T’s refusal of Granite’s replacement services to the end of this its overall costs would increase 159 requested belt-and-suspenders proceeding as opposed to a fixed end percent if it were required to convert protection is probative. Similarly, we do date. However, unlike proponents of the from purchasing UNE–P replacement not see Granite’s barebones allegation of interim rule, we find that the services to resold incumbent LEC voice ‘‘one ILEC’s refusal to engage in appropriate remedy for this arguably lines, but it has not demonstrated that negotiations with competitive carriers erroneous decision is to permanently absent the interim rule such a about access to replacement IP voice terminate the interim rule as conversion would be necessary, nor services’’ as significantly probative. expeditiously as possible. supported that assertion beyond Carrier practices may change over time, 290. We are not persuaded that submitting a generalized declaration. particularly in this early phase of the IP competition will be harmed by the We are equally unpersuaded by a June transition, and one carrier’s practices termination of the interim rule. 2015 study that purports to find that may be suggestive, but are not Proponents of the interim rule ask us to loss of wholesale access to incumbents’ demonstrative of the entire market. ensure that the specific wholesale voice services would result in customer Given that incumbent LECs offer inputs on which they depend are harm of between $4.443 billion and UNE–P replacement services in TDM in available at ‘‘reasonably comparable’’ $10.168 billion per year. This a manner that proponents of the interim rates, terms, and conditions if and when calculation is based on Granite’s rule deem satisfactory (as demonstrated incumbent LECs transition those inputs estimate that competitive carriers by their goal of obtaining mandated fully to Internet Protocol (IP). But ‘‘[o]ur provide $30 per line of value to their ‘‘reasonably comparable’’ rates in IP), statutory duty is to protect efficient customers, a remarkable assertion for and assuming as Granite does that ‘‘IP- competition, not competitors.’’ which the study provides no based services . . . cost less to provide Companies that offer multilocation particularized or verifiable support. than the TDM services,’’ we anticipate enterprise voice service—such as Moreover, proponents of extending the that incumbent LECs will make similar Granite and the members of the interim rule continue to rely on the offerings available in IP.

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293. While our predictive judgment Ethernet (or its equivalent) service, . . . application as a meritless tactic to delay regarding the availability of wholesale regardless of the service provided over the proceeding. voice inputs from incumbent LECs in IP the Connection or whether the 299. We first deny the CenturyLink influences our decision, it alone is not Connection is idle or in-service.’’ For AFR as moot in light of the reforms dispositive. Our overarching goal here is connections not linked to a MetroE- adopted in this Order. CenturyLink’s to increase incentives for and remove capable node, cable system operators concern was that the Bureau’s decision barriers to facilities investment and the were only required to report in-service would result in the Commission’s IP transition. We therefore allow the connections used ‘‘to provide a failing to take into account the growing interim rule to terminate as scheduled. Dedicated Service or a service that cable competition present in the We also reject the request to prohibit incorporates a Dedicated Service within business data services market. By using non-disclosure agreements with respect the offering as part of a managed Form 477 data in addition to the 2015 to UNE–P replacement services as solution or bundle of services sold to Collection data to craft the competitive unsupported by the record, inconsistent the customer.’’ market test, the Commission has with our decision to reduce regulatory 296. On October 22, 2013, ensured that the competitive market test intervention, and beyond the scope of CenturyLink filed an AFR, seeking fully takes cable competition into the Further Notice. reversal of the Bureau’s decision in the account, both in this initial test and in Data Collection Implementation Order future updates. VII. Other Issues to exclude from the collection those 300. We also deny the US Telecom A. Denying Applications for Review cable system operator locations neither AFR. In the Data Collection Order, the used to provide a dedicated service nor Commission directed the Bureau that 294. The Commission delegated connected to a MetroE-capable node. ‘‘[t]o the extent the Bureau cannot authority to the Bureau to implement CenturyLink argued the decision would obtain Office of Management and the 2015 Collection. In carrying out this ‘‘result in a failure to account fully for Budget approval for some portion of the responsibility, the Bureau released the robust and growing cable-based data collection . . . to proceed with the Data Collection Implementation Order competition’’ and the Bureau thus remainder of the collection.’’ The OMB and the Data Collection Reconsideration exceeded its delegated authority. ACA, approval restricted the data collection to Order, making certain modifications and NCTA, and Sprint opposed the one year. The Bureau thus properly clarifications to the 2015 Collection CenturyLink application for review. proceeded pursuant to Commission requirements. CenturyLink and 297. Following the release of the Data delegation and continued with the data USTelecom each filed applications for Collection Implementation Order, the collection as allowed by OMB. review (AFRs), seeking reversal of Bureau submitted the collection to OMB B. Addressing Motion to Strike certain Bureau actions in these orders. for review as required by the PRA, and We deny these applications. We after a lengthy review process, OMB 301. On June 17, 2016, CenturyLink et conclude that the CenturyLink AFR is approved the collection subject to al. filed a motion seeking to strike from moot in light of the reforms adopted in modifications on August 15, 2014. The the record the analysis contained in the the Order, and we deny the USTelecom most notable modifications to the Rysman Paper that was attached to the AFR because we find that the Bureau collection were: (1) Collecting data for a Further Notice and other analyses acted within its delegated authority in single year, 2013, instead of data for two contained in the record and Further limiting the data collection to one year. years, 2010 and 2012; (2) reducing the Notice that were based on the 2015 295. On September 18, 2013, the mapping requirements for cable Collection. According to CenturyLink et Bureau released the Data Collection companies to report only fiber routes al., the Rysman Paper and Further Implementation Order clarifying the making up the local transport network Notice were based on flawed data scope of the collection, providing and not reporting feeder routes to end regarding cable entry and capability in instructions on how to respond to the user locations; (3) modifying the the market, which massively distorted data collection questions, and providing definition of purchasers required to the competitive landscape evaluated by a list of all modifications and respond to exclude entities spending Dr. Rysman. USTelecom filed comments amendments to the data collection less than $5 million dollars on business supporting the motion. In light of the questions and definitions. These actions data services in 2013; and (4) making reforms adopted in the Order, which were based on feedback received from many of the questions directed at rely on cable entry as reported in the potential respondents, including the purchasers optional. On September 15, Form 477 data, we conclude that the PRA comments filed with the 2014, the Bureau released the Data motion to strike is moot. Commission during the 60-day public Collection Reconsideration Order, 302. CenturyLink et al.’s motion to comment period, and the Bureau’s which implemented these changes to strike is in response to various cable further internal review. The 2015 the collection. reporting errors contained in the 2015 Collection required providers to report 298. On October 24, 2014, USTelecom Collection. After release of the Further locations with connections. In the Data filed an application seeking Notice, the Commission discovered that Collection Implementation Order, the Commission review of the Bureau’s four cable companies—Comcast, Bureau clarified that this meant the modification of the collection, in the Charter, Cox, and Legacy TWC—had connections were considered capable of Data Collection Reconsideration Order, failed to report all locations connected providing a dedicated service for the to one year’s worth of data as approved to Metro-E capable headends. These purposes of reporting locations. The by OMB pursuant to the PRA. companies did report in their original Bureau further clarified that cable USTelecom asserted this change submissions each location to which they system operators in their local franchise ‘‘exceeds the Bureau’s delegated provided business data services in 2013. areas were required ‘‘to report those authority, and threatens to undermine Subsequent to this discovery, these Locations with Connections owned or the Commission’s goals for the data companies supplemented their leased as an IRU (i.e., an indefeasible collection effort.’’ Oppositions to the submissions, as necessary, with right of use) that are connected to a USTelecom AFR were filed by Sprint information to indicate, or to allow the Node (i.e., headend) that has been and a coalition of competitive LECs, Commission to determine, those census upgraded or was built to provide Metro urging the Commission to reject the blocks with non-residential locations

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serviceable by Metro-E headends in the full reach of each competitor’s 310. In addition, we take this 2013. network.’’ opportunity to make several non- 303. Commission staff have already 306. At the time AT&T filed its substantive rule amendments. We find accounted for the supplemented cable motion, the Commission staff had only that notice and comment is unnecessary information in the context of the made available a data file identifying for rule amendments to ensure rulemaking proceeding and updated its the census blocks in which fiber routes consistency in terminology and cross analysis accordingly. Moreover, the reported by competitive providers were references across various rules, correct competitive market test relies heavily on present. On March 30, 2016, the Bureau inadvertent failures to make conforming data from the Form 477 to determine made available an additional data file changes when prior rule amendments where cable competition is present in providing the distances from each occurred, and to delete references to the business data services market and unique reported location to each rules governing past time periods that has based significant regulatory relief on competitive provider’s fiber network. no longer are applicable. the presence of a single cable provider AT&T, its economists, and other VIII. Procedural Matters located in 75 percent of the census commenters have relied on this blocks in a county. The arguments from information in advocating their A. Paperwork Reduction Act Analysis CenturyLink et al. are based on the positions in this proceeding. We find 311. This document contains new concern that the Commission would not the alternative data file that Commission information collection requirements have the appropriate evidence of cable staff provided addresses AT&T’s subject to the PRA. It will be submitted competition in evaluating the business identified concerns, and we therefore to OMB for review under section data services market. Because we have deny the motion. 3507(d) of the PRA. OMB, the general included the Form 477 data in our public, and other Federal agencies will D. Severability analysis and based significant regulatory be invited to comment on the new relief on the presence of cable 307. All of the rules and policies that information collection requirements competition, we conclude that the are adopted in this Order are designed contained in this proceeding. In motion to strike has been rendered moot to work in unison to ensure that rates addition, we note that pursuant to the and is therefore denied. for business data services are just and Small Business Paperwork Relief Act of reasonable while also encouraging 2002, we previously sought specific C. Addressing Previously-Filed Motion facilities-based competition and comment on how the Commission might Seeking Additional Information on Fiber facilitating technology transitions. further reduce the information Maps However, each of the separate reforms collection burden for small business 304. The Bureau on September 18, we undertake in this Order serves a concerns with fewer than 25 employees. 2015, released an order clarifying and particular function toward these goals. We describe impacts that might affect modifying the Protective Order initially Therefore, it is our intent that each of small businesses, which includes most adopted for the 2015 Collection. In that the rules and policies adopted herein businesses with fewer than 25 order, the Bureau declined to make shall be severable. If any of the rules or employees, in the Final Regulatory available to authorized parties fiber policies is declared invalid or Flexibility Analysis. mapping files showing ‘‘the starting unenforceable for any reason, it is our B. Congressional Review Act points for connections to end user intent that the remaining rules shall locations,’’ ‘‘the transmission paths,’’ or remain in full force and effect. 312. The Commission will send a ‘‘the connections to end user locations’’ copy of this Report and Order to E. Directive to Bureau To Correct Errors in order to mitigate potential risks to Congress and the Government and Omissions critical communications infrastructure. Accountability Office pursuant to the The Bureau as an alternative offered to 308. Given the complexities Congressional Review Act, see 5 U.S.C. ‘‘provide maps depicting the presence of associated with modifying existing rules 801(a)(1)(A). fiber by listing all the providers with as well as other reforms adopted in this C. Final Regulatory Flexibility Analysis fiber facilities in a census block or by Order, we direct the Wireline 313. As required by the Regulatory by indicating a connected end-user Competition Bureau to make any further the Regulatory Flexibility Act of 1980, location’s distance to fiber without rule revisions extending only to as amended (RFA) an Initial Regulatory including information on the specific technical and conforming edits to Flexibility Analysis (IRFA) was route of the fiber.’’ ensure that the reforms adopted in this incorporated into the Further Notice of 305. On March 17, 2016, AT&T filed Order are properly reflected in the rules. Proposed Rulemaking (Further Notice) a motion seeking access to the highly If any such rule changes are warranted, for the business data services (BDS) confidential fiber route maps submitted the Bureau shall be responsible for such proceeding. The Commission sought by competitive providers in response to changes. We note that any entity that written public comment on the the 2015 Collection. Denying access, disagrees with a rule change made by proposals in the Further Notice, according to AT&T, would violate the the Bureau will have the opportunity to including comment on the IRFA. The Administrative Procedure Act by not file an Application for Review by the Commission received no comments on allowing it to refute claims by full Commission. the IRFA. Because the Commission competitive LECs that competition only 309. This Order will require price cap amends its rules in this Report and exists at the building level because incumbent LECs and their customers to Order, the Commission has included AT&T could not ‘‘show where the make operational changes that will raise this Final Regulatory Flexibility CLECs have actually deployed fiber.’’ technical issues, many of which will Analysis (FRFA). This present FRFA Specifically, AT&T asserted it could not only come to light as the Order begins conforms to the RFA. refute arguments by showing ‘‘precisely to be implemented. We direct that, in how many locations with special access resolving these issues, the Bureau shall 1. Need for, and Objectives of, the Rules demand are within the CLECs’ own make sure that the operational changes 314. In the Further Notice, the stated distances for lateral build-out properly reflect the reforms adopted in Commission proposed to replace the from their fiber facilities’’ or ‘‘calculate the Order. existing business data services

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regulatory structure with a new 3. Response to Comments by the Chief The closest applicable size standard technology-neutral framework and Counsel for Advocacy of the Small under SBA rules is for the category sought comprehensive comments on the Business Administration Wired Telecommunications Carriers. proposed new framework. This Order, 318. The Chief Counsel did not file Under that size standard, such a therefore, provides a new framework for any comments in response to this business is small if it has 1,500 or fewer business data services that minimizes proceeding. employees. According to Commission unnecessary government intervention data, 1,307 carriers reported that they and allows market forces to continue 4. Description and Estimate of the were incumbent LEC providers. Of these working to spur entry, innovation and Number of Small Entities to Which the 1,307 carriers, an estimated 1,006 have competition. Rules Will Apply 1,500 or fewer employees and 301 have 315. Based on the 2015 Collection, the 319. The RFA directs agencies to more than 1,500 employees. Commission makes findings as to the provide a description of, and where Consequently, the Commission relevant market for analysis, trends in feasible, an estimate of the number of estimates that most providers of competition, and the presence of market small entities that may be affected by incumbent LEC service are small power. Significantly, the Commission the proposed rules, if adopted. The RFA businesses that may be affected by rules finds competition in the provision of the generally defines the term ‘‘small adopted pursuant to the Order. following business data services to be entity’’ as having the same meaning as 322. We have included small sufficiently widespread that pricing the terms ‘‘small business,’’ ‘‘small incumbent LECs in this present RFA regulation would be counterproductive: organization,’’ and ‘‘small governmental analysis. As noted above, a ‘‘small Packet-based business data services, jurisdiction.’’ In addition, the term business’’ under the RFA is one that, optical transmission services with ‘‘small business’’ has the same meaning inter alia, meets the pertinent small bandwidths in excess of a DS3, and as the term ‘‘small-business concern’’ business size standard (e.g., a telephone TDM transport services. The under the Small Business Act. A small- communications business having 1,500 Commission, therefore, declines to business concern’’ is one which: (1) Is or fewer employees), and ‘‘is not adopt, and where applicable ends, ex independently owned and operated; (2) dominant in its field of operation.’’ The ante pricing regulation for such services. is not dominant in its field of operation; SBA’s Office of Advocacy contends that, With respect to the provision by price and (3) satisfies any additional criteria for RFA purposes, small incumbent cap incumbent LECs of DS1 and DS3 established by the Small Business LECs are not dominant in their field of operation because any such dominance end user channel terminations, the Administration (SBA). is not ‘‘national’’ in scope. We have Commission adopts the following a. Total Small Entities therefore included small incumbent competitive market test. For a particular LECs in this RFA analysis, although we county if: 50 percent of the buildings in 320. Our proposed action, if emphasize that this RFA action has no that county are within a half mile of a implemented, may, over time, affect effect on Commission analyses and location served by a competitive small entities that are not easily categorized at present. We therefore determinations in other, non-RFA provider based on the 2015 Collection or describe here, at the outset, three contexts. 75 percent of the census blocks in a comprehensive, statutory small entity 323. Competitive Local Exchange county have a cable provider present size standards. First, as of 2013, the SBA Carriers (Competitive LECs), based on Form 477 data, the estimates there are an estimated 28.8 Competitive Access Providers (CAPs), Commission finds that ex ante pricing million small businesses nationwide— Shared-Tenant Service Providers, and regulation of that county would be comprising some 99.9% of all Other Local Service Providers. Neither counterproductive. The services businesses. In addition, a ‘‘small the Commission nor the SBA has relieved of ex ante pricing regulation organization’’ is generally ‘‘any not-for- developed a small business size will be subject to permissive detariffing profit enterprise which is independently standard specifically for these service for a period of 36 months at which time owned and operated and is not providers. The appropriate NAICS Code they will be subject to mandatory dominant in its field.’’ Nationwide, as of category is Wired Telecommunications detariffing. 2007, there were approximately Carriers, as defined in paragraph 6 of 316. For counties that do not meet the 1,621,315 small organizations. Finally, this FRFA. Under that size standard, competitive market test, the the term ‘‘small governmental such a business is small if it has 1,500 Commission will retain price cap jurisdiction’’ is defined generally as or fewer employees. U.S. Census data regulation for incumbent LEC provision ‘‘governments of cities, towns, for 2012 indicate that 3,117 firms of DS1 and DS3 end user channel townships, villages, school districts, or operated during that year. Of that terminations, and certain other business special districts, with a population of number, 3,083 operated with fewer than data services, and apply the principles less than fifty thousand.’’ Census 1,000 employees. Based on this data, the of Phase I pricing flexibility to these Bureau data for 2012 indicate that there Commission concludes that the majority counties, which will permit the carriers were 90,056 local governmental of Competitive LECs, CAPs, Shared- to offer volume and term discounts, as jurisdictions in the United States. We Tenant Service Providers, and Other well as contract tariffs. These services estimate that, of this total, as many as Local Service Providers, are small will also be subject to a productivity- 89,195 entities may qualify as ‘‘small entities. According to Commission data, based X-factor of 2.0 percent and governmental jurisdictions.’’ Thus, we 1,442 carriers reported that they were restrictions on the incumbent LEC’s use estimate that most governmental engaged in the provision of either of non-disclosure agreements. jurisdictions are small. competitive local exchange services or competitive access provider services. Of 2. Summary of Significant Issues Raised b. Wireline Providers these 1,442 carriers, an estimated 1,256 by Public Comments in Response to the 321. Incumbent Local Exchange have 1,500 or fewer employees and 186 IRFA Carriers (Incumbent LECs). Neither the have more than 1,500 employees. In 317. The Commission did not receive Commission nor the SBA has developed addition, 17 carriers have reported that comments specifically addressing the a small business size standard they are Shared-Tenant Service rules and policies proposed in the IRFA. specifically for incumbent LEC services. Providers, and all 17 are estimated to

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have 1,500 or fewer employees. Also, 72 owners and operators of business size standard, the majority of carriers have reported that they are telecommunications networks and these resellers can be considered small Other Local Service Providers. Of this reselling wired and wireless entities. According to Commission data, total, seventy have 1,500 or fewer telecommunications services (except 881 carriers have reported that they are employees. Consequently, based on satellite) to businesses and households. engaged in the provision of toll resale internally researched FCC data, the Establishments in this industry resell services. Of these, an estimated 857 Commission estimates that most telecommunications; they do not have 1,500 or fewer employees. providers of competitive local exchange operate transmission facilities and Consequently, the Commission service, competitive access providers, infrastructure. Mobile virtual networks estimates that the majority of toll Shared-Tenant Service Providers, and operators (MVNOs) are included in this resellers are small entities that may be other local service providers are small industry. Under the applicable SBA size affected by rules adopted pursuant to entities that may be affected by rules standard, such a business is small if it the Order. adopted pursuant to the Order. has 1,500 or fewer employees. U.S. 329. Other Toll Carriers. Neither the 324. Interexchange Carriers. Neither Census data for 2012 show that 1,341 Commission nor the SBA has developed the Commission nor the SBA has firms provided resale services during a definition for small businesses developed a definition specifically for that year. Of that number, 1,341 specifically applicable to Other Toll providers of interexchange services. The operated with fewer than 1,000 Carriers. This category includes toll closest NAICS Code category is Wired employees. Thus, under this category carriers that do not fall within the Telecommunications Carriers as defined and the associated small business size categories of interexchange carriers, in this FRFA. The applicable size standard, the majority of these prepaid operator service providers, prepaid standard under SBA rules is that such calling card providers can be considered calling card providers, satellite service a business is small if it has 1,500 or small entities. According to Commission carriers, or toll resellers. The closest fewer employees. U.S. Census data for data, 193 carriers have reported that applicable size standard under SBA 2012 indicates that 3,117 firms operated they are engaged in the provision of rules is for Wired Telecommunications during that year. Of that number, 3,083 prepaid calling cards. All 193 have Carriers as defined in paragraph 6 of operated with fewer than 1,000 1,500 or fewer employees. this FRFA. Under that size standard, employees. According to internally Consequently, the Commission such a business is small if it has 1,500 developed Commission data, 359 estimates that the majority of prepaid or fewer employees. Census data for carriers have reported that their primary calling card providers are small entities 2012 shows that there were 3,117 firms telecommunications service activity was that may be affected by rules adopted that operated that year. Of this total, the provision of interexchange service. pursuant to the Order. 3,083 operated with fewer than 1,000 Of this total, an estimated 317 have 327. Local Resellers. The SBA has employees. Thus, under this category 1,500 or fewer employees. developed a small business size and the associated small business size Consequently, the Commission standard for the category of standard, the majority of Other Toll estimates that the majority of Telecommunications Resellers. Under Carriers can be considered small. interexchange carriers are small entities that size standard, such a business is According to internally developed that may be affected by rules adopted small if it has 1,500 or fewer employees. Commission data, 284 companies pursuant to the Order. Census data for 2012 show that 1,341 reported that their primary 325. Operator Service Providers firms provided resale services during telecommunications service activity was (OSPs). Neither the Commission nor the that year. Of that number, 1,341 the provision of other toll carriage. Of SBA has developed a small business operated with fewer than 1,000 these, an estimated 279 have 1,500 or size standard specifically for operator employees. Under this category and the fewer employees. Consequently, the service providers. The appropriate size associated small business size standard, Commission estimates that most Other standard under SBA rules is for the the majority of these local resellers can Toll Carriers are small entities that may category Wired Telecommunications be considered small entities. According be affected by the rules and policies Carriers. Under that size standard, such to Commission data, 213 carriers have adopted pursuant to the Order. a business is small if it has 1,500 or reported that they are engaged in the 330. 800 and 800-Like Service fewer employees. According to provision of local resale services. Of Subscribers. Neither the Commission Commission data, 33 carriers have these, an estimated 211 have 1,500 or nor the SBA has developed a small reported that they are engaged in the fewer employees. Consequently, the business size standard specifically for provision of operator services. Of these, Commission estimates that the majority 800 and 800-like service (toll free) an estimated 31 have 1,500 or fewer of local resellers are small entities that subscribers. The appropriate size employees and two have more than may be affected by rules adopted standard under SBA rules is for the 1,500 employees. Consequently, the pursuant to the Order. category Telecommunications Resellers. Commission estimates that the majority 328. Toll Resellers. The Commission Under that size standard, such a of OSPs are small entities that may be has not developed a definition for Toll business is small if it has 1,500 or fewer affected by rules adopted pursuant to Resellers. The closest NAICS Code employees. The most reliable source of the Order. Category is Telecommunications information regarding the number of 326. Prepaid Calling Card Providers. Resellers, and the SBA has developed a these service subscribers appears to be Neither the Commission nor the SBA small business size standard for the data the Commission collects on the has developed a small business category of Telecommunications 800, 888, 877, and 866 numbers in use. definition specifically for prepaid Resellers.1 Under that size standard, According to our data, as of September calling card providers. The most such a business is small if it has 1,500 2009, the number of 800 numbers appropriate NAICS code-based category or fewer employees. Census data for assigned was 7,860,000; the number of for defining prepaid calling card 2012 show that 1,341 firms provided 888 numbers assigned was 5,588,687; providers is Telecommunications resale services during that year. Of that the number of 877 numbers assigned Resellers. This industry comprises number, 1,341 operated with fewer than was 4,721,866; and the number of 866 establishments engaged in purchasing 1,000 employees. Thus, under this numbers assigned was 7,867,736. We do access and network capacity from category and the associated small not have data specifying the number of

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these subscribers that are not Commission defined ‘‘small business’’ MHz band was conducted in 2003. One independently owned and operated or for the wireless communications license was awarded. The winning have more than 1,500 employees, and services (WCS) auction as an entity with bidder was not a small entity. thus are unable at this time to estimate average gross revenues of $40 million 337. Wireless Telephony. Wireless with greater precision the number of toll for each of the three preceding years, telephony includes cellular, personal free subscribers that would qualify as and a ‘‘very small business’’ as an entity communications services, and small businesses under the SBA size with average gross revenues of $15 specialized mobile radio telephony standard. Consequently, we estimate million for each of the three preceding carriers. As noted, the SBA has that there are 7,860,000 or fewer small years. The SBA has approved these developed a small business size entity 800 subscribers; 5,588,687 or definitions. standard for Wireless fewer small entity 888 subscribers; 334. 218–219 MHz Service. The first Telecommunications Carriers (except 4,721,866 or fewer small entity 877 auction of 218–219 MHz spectrum Satellite). Under the SBA small business subscribers; and 7,867,736 or fewer resulted in 170 entities winning licenses size standard, a business is small if it small entity 866 subscribers. for 594 Metropolitan Statistical Area has 1,500 or fewer employees. (MSA) licenses. Of the 594 licenses, 557 According to Commission data, 413 c. Wireless Providers—Fixed and were won by entities qualifying as a carriers reported that they were engaged Mobile small business. For that auction, the in wireless telephony. Of these, an 331. The rules adopted in the Report small business size standard was an estimated 261 have 1,500 or fewer and Order may affect wireless providers. entity that, together with its affiliates, employees and 152 have more than As a general matter, the number of has no more than a $6 million net worth 1,500 employees. Therefore, a little less winning bidders that claim to qualify as and, after federal income taxes than one third of these entities can be small businesses at the close of an (excluding any carry over losses), has no considered small. auction does not necessarily represent more than $2 million in annual profits 338. Broadband Personal the number of small businesses each year for the previous two years. In Communications Service. The currently in service. Also, the the 218–219 MHz Report and Order and broadband personal communications Commission does not generally track Memorandum Opinion and Order, we services (PCS) spectrum is divided into subsequent business size unless, in the established a small business size six frequency blocks designated A context of assignments and transfers or standard for a ‘‘small business’’ as an through F, and the Commission has held reportable eligibility events, unjust entity that, together with its affiliates auctions for each block. The enrichment issues are implicated. and persons or entities that hold Commission initially defined a ‘‘small 332. Wireless Telecommunications interests in such an entity and their business’’ for C- and F-Block licenses as Carriers (except Satellite). This industry affiliates, has average annual gross an entity that has average gross revenues comprises establishments engaged in revenues not to exceed $15 million for of $40 million or less in the three operating and maintaining switching the preceding three years. A ‘‘very small previous calendar years. For F-Block and transmission facilities to provide business’’ is defined as an entity that, licenses, an additional small business communications via the airwaves. together with its affiliates and persons size standard for ‘‘very small business’’ Establishments in this industry have or entities that hold interests in such an was added and is defined as an entity spectrum licenses and provide services entity and its affiliates, has average that, together with its affiliates, has using that spectrum, such as cellular annual gross revenues not to exceed $3 average gross revenues of not more than services, paging services, wireless million for the preceding three years. $15 million for the preceding three internet access, and wireless video These size standards will be used in calendar years. These small business services. The appropriate size standard future auctions of 218–219 MHz size standards, in the context of under SBA rules is that such a business spectrum. broadband PCS auctions, have been is small if it has 1,500 or fewer 335. 2.3 GHz Wireless approved by the SBA. No small employees. For this industry, Census Communications Services. This service businesses within the SBA-approved data for 2012 show that there were 967 can be used for fixed, mobile, small business size standards bid firms that operated for the entire year. radiolocation, and digital audio successfully for licenses in Blocks A Of this total, 955 firms had fewer than broadcasting satellite uses. The and B. There were 90 winning bidders 1,000 employees. Thus under this Commission defined ‘‘small business’’ that claimed small business status in the category and the associated size for the wireless communications first two C-Block auctions. A total of 93 standard, the Commission estimates that services (‘‘WCS’’) auction as an entity bidders that claimed small business the majority of wireless with average gross revenues of $40 status won approximately 40 percent of telecommunications carriers (except million for each of the three preceding the 1,479 licenses in the first auction for satellite) are small entities. Similarly, years, and a ‘‘very small business’’ as an the D, E, and F Blocks. On April 15, according to internally developed entity with average gross revenues of 1999, the Commission completed the Commission data, 413 carriers reported $15 million for each of the three reauction of 347 C-, D-, E-, and F-Block that they were engaged in the provision preceding years. The SBA has approved licenses in Auction No. 22. Of the 57 of wireless telephony, including cellular these definitions. The Commission winning bidders in that auction, 48 service, Personal Communications auctioned geographic area licenses in claimed small business status and won Service (PCS), and Specialized Mobile the WCS service. In the auction, which 277 licenses. Radio (SMR) services. Of this total, an was conducted in 1997, there were 339. On January 26, 2001, the estimated 261 have 1,500 or fewer seven bidders that won 31 licenses that Commission completed the auction of employees. Thus, using available data, qualified as very small business entities, 422 C and F Block Broadband PCS we estimate that the majority of wireless and one bidder that won one license licenses in Auction No. 35. Of the 35 firms can be considered small. that qualified as a small business entity. winning bidders in that auction, 29 333. Wireless Communications 336. 1670–1675 MHz Services. This claimed small business status. Services. This service can be used for service can be used for fixed and mobile Subsequent events concerning Auction fixed, mobile, radiolocation, and digital uses, except aeronautical mobile. An 35, including judicial and agency audio broadcasting satellite uses. The auction for one license in the 1670–1675 determinations, resulted in a total of 163

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C and F Block licenses being available Economic Area licenses in the lower 80 June 13, 2003, and included 256 for grant. On February 15, 2005, the channels of the 800 MHz SMR service licenses: 5 EAG licenses and 476 Commission completed an auction of were awarded. Of the 22 winning Cellular Market Area licenses. 242 C-, D-, E-, and F-Block licenses in bidders, 19 claimed small business Seventeen winning bidders claimed Auction No. 58. Of the 24 winning status and won 129 licenses. Thus, small or very small business status and bidders in that auction, 16 claimed combining all four auctions, 41 winning won 60 licenses, and nine winning small business status and won 156 bidders for geographic licenses in the bidders claimed entrepreneur status and licenses. On May 21, 2007, the 800 MHz SMR band claimed status as won 154 licenses. On July 26, 2005, the Commission completed an auction of 33 small businesses. Commission completed an auction of 5 licenses in the A, C, and F Blocks in 342. In addition, there are numerous licenses in the Lower 700 MHz band Auction No. 71. Of the 12 winning incumbent site-by-site SMR licenses and (Auction No. 60). There were three bidders in that auction, five claimed licensees with extended implementation winning bidders for five licenses. All small business status and won 18 authorizations in the 800 and 900 MHz three winning bidders claimed small licenses. On August 20, 2008, the bands. We do not know how many firms business status. Commission completed the auction of provide 800 MHz or 900 MHz 344. In 2007, the Commission 20 C-, D-, E-, and F-Block Broadband geographic area SMR service pursuant reexamined its rules governing the 700 PCS licenses in Auction No. 78. Of the to extended implementation MHz band in the 700 MHz Second eight winning bidders for Broadband authorizations, nor how many of these Report and Order. An auction of 700 PCS licenses in that auction, six claimed providers have annual revenues of no MHz licenses commenced January 24, small business status and won 14 more than $15 million. One firm has 2008 and closed on March 18, 2008, licenses. over $15 million in revenues. In which included, 176 Economic Area 340. Specialized Mobile Radio addition, we do not know how many of licenses in the A Block, 734 Cellular Licenses. The Commission awards these firms have 1,500 or fewer Market Area licenses in the B Block, and ‘‘small entity’’ bidding credits in employees, which is the SBA- 176 EA licenses in the E Block. Twenty auctions for Specialized Mobile Radio determined size standard. We assume, winning bidders, claiming small (SMR) geographic area licenses in the for purposes of this analysis, that all of business status (those with attributable 800 MHz and 900 MHz bands to firms the remaining extended implementation average annual gross revenues that that had revenues of no more than $15 authorizations are held by small exceed $15 million and do not exceed million in each of the three previous entities, as defined by the SBA. $40 million for the preceding three calendar years. The Commission awards 343. Lower 700 MHz Band Licenses. years) won 49 licenses. Thirty three ‘‘very small entity’’ bidding credits to The Commission previously adopted winning bidders claiming very small firms that had revenues of no more than criteria for defining three groups of business status (those with attributable $3 million in each of the three previous small businesses for purposes of average annual gross revenues that do calendar years. The SBA has approved determining their eligibility for special not exceed $15 million for the preceding these small business size standards for provisions such as bidding credits. The three years) won 325 licenses. the 900 MHz Service. The Commission Commission defined a ‘‘small business’’ 345. Upper 700 MHz Band Licenses. has held auctions for geographic area as an entity that, together with its In the 700 MHz Second Report and licenses in the 800 MHz and 900 MHz affiliates and controlling principals, has Order, the Commission revised its rules bands. The 900 MHz SMR auction began average gross revenues not exceeding regarding Upper 700 MHz licenses. On on December 5, 1995, and closed on $40 million for the preceding three January 24, 2008, the Commission April 15, 1996. Sixty bidders claiming years. A ‘‘very small business’’ is commenced Auction 73 in which that they qualified as small businesses defined as an entity that, together with several licenses in the Upper 700 MHz under the $15 million size standard won its affiliates and controlling principals, band were available for licensing: 12 263 geographic area licenses in the 900 has average gross revenues that are not Regional Economic Area Grouping MHz SMR band. The 800 MHz SMR more than $15 million for the preceding licenses in the C Block, and one auction for the upper 200 channels three years. Additionally, the lower 700 nationwide license in the D Block. The began on October 28, 1997, and was MHz Service had a third category of auction concluded on March 18, 2008, completed on December 8, 1997. Ten small business status for Metropolitan/ with 3 winning bidders claiming very bidders claiming that they qualified as Rural Service Area (MSA/RSA) small business status (those with small businesses under the $15 million licenses—‘‘entrepreneur’’—which is attributable average annual gross size standard won 38 geographic area defined as an entity that, together with revenues that do not exceed $15 million licenses for the upper 200 channels in its affiliates and controlling principals, for the preceding three years) and the 800 MHz SMR band. A second has average gross revenues that are not winning five licenses. auction for the 800 MHz band was held more than $3 million for the preceding 346. 700 MHz Guard Band Licensees. on January 10, 2002 and closed on three years. The SBA approved these In 2000, in the 700 MHz Guard Band January 17, 2002 and included 23 BEA small size standards. An auction of 740 Order, the Commission adopted size licenses. One bidder claiming small licenses (one license in each of the 734 standards for ‘‘small businesses’’ and business status won five licenses. MSAs/RSAs and one license in each of ‘‘very small businesses’’ for purposes of 341. The auction of the 1,053 800 the six Economic Area Groupings determining their eligibility for special MHz SMR geographic area licenses for (EAGs)) commenced on August 27, provisions such as bidding credits and the General Category channels began on 2002, and closed on September 18, installment payments. A small business August 16, 2000, and was completed on 2002. Of the 740 licenses available for in this service is an entity that, together September 1, 2000. Eleven bidders won auction, 484 licenses were won by 102 with its affiliates and controlling 108 geographic area licenses for the winning bidders. Seventy-two of the principals, has average gross revenues General Category channels in the 800 winning bidders claimed small not exceeding $40 million for the MHz SMR band and qualified as small business, very small business or preceding three years. Additionally, a businesses under the $15 million size entrepreneur status and won a total of very small business is an entity that, standard. In an auction completed on 329 licenses. A second auction together with its affiliates and December 5, 2000, a total of 2,800 commenced on May 28, 2003, closed on controlling principals, has average gross

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revenues that are not more than $15 eligible to hold a PLMR license, and that not developed a small business size million for the preceding three years. any revised rules in this context could standard specifically applicable to these SBA approval of these definitions is not therefore potentially impact small small businesses. For purposes of this required. An auction of 52 Major entities covering a great variety of analysis, the Commission uses the SBA Economic Area licenses commenced on industries. small business size standard for the September 6, 2000, and closed on 350. Rural Radiotelephone Service. category Wireless Telecommunications September 21, 2000. Of the 104 licenses The Commission has not adopted a size Carriers (except Satellite), which is auctioned, 96 licenses were sold to nine standard for small businesses specific to 1,500 or fewer employees. Census data bidders. Five of these bidders were the Rural Radiotelephone Service. A for 2012, which are the most recent small businesses that won a total of 26 significant subset of the Rural Census data available, show that there licenses. A second auction of 700 MHz Radiotelephone Service is the Basic were 967 firms that operated that year. Guard Band licenses commenced on Exchange Telephone Radio System Of those 967, 955 had fewer than 1,000 February 13, 2001, and closed on (BETRS). In the present context, we will employees, and 12 firms had more than February 21, 2001. All eight of the use the SBA’s small business size 1,000 employees. Most applicants for licenses auctioned were sold to three standard applicable to Wireless recreational licenses are individuals. bidders. One of these bidders was a Telecommunications Carriers (except Approximately 581,000 ship station small business that won a total of two Satellite), i.e., an entity employing no licensees and 131,000 aircraft station licenses. more than 1,500 persons. There are licensees operate domestically and are 347. Cellular Radiotelephone Service. approximately 1,000 licensees in the not subject to the radio carriage Auction 77 was held to resolve one Rural Radiotelephone Service, and the requirements of any statute or treaty. group of mutually exclusive Commission estimates that there are For purposes of our evaluations in this applications for Cellular Radiotelephone 1,000 or fewer small entity licensees in analysis, we estimate that there are up Service licenses for unserved areas in the Rural Radiotelephone Service that to approximately 712,000 licensees that New Mexico. Bidding credits for may be affected by the rules and are small businesses (or individuals) designated entities were not available in policies proposed herein. under the SBA standard. In addition, Auction 77. In 2008, the Commission 351. Air-Ground Radiotelephone between December 3, 1998 and completed the closed auction of one Service. The Commission has previously December 14, 1998, the Commission unserved service area in the Cellular used the SBA’s small business size held an auction of 42 VHF Public Coast Radiotelephone Service, designated as standard applicable to Wireless licenses in the 157.1875–157.4500 MHz Auction 77. Auction 77 concluded with Telecommunications Carriers (except (ship transmit) and 161.775–162.0125 one provisionally winning bid for the Satellite), i.e., an entity employing no MHz (coast transmit) bands. For unserved area totaling $25,002. more than 1,500 persons. There are purposes of the auction, the 348. Private Land Mobile Radio approximately 100 licensees in the Air- Commission defined a ‘‘small’’ business (‘‘PLMR’’). PLMR systems serve an Ground Radiotelephone Service, and as an entity that, together with essential role in a range of industrial, under that definition, we estimate that controlling interests and affiliates, has business, land transportation, and almost all of them qualify as small average gross revenues for the preceding public safety activities. These radios are entities under the SBA definition. For three years not to exceed $15 million used by companies of all sizes operating purposes of assigning Air-Ground dollars. In addition, a ‘‘very small’’ in all U.S. business categories, and are Radiotelephone Service licenses business is one that, together with often used in support of the licensee’s through competitive bidding, the controlling interests and affiliates, has primary (non-telecommunications) Commission has defined ‘‘small average gross revenues for the preceding business operations. For the purpose of business’’ as an entity that, together determining whether a licensee of a with controlling interests and affiliates, three years not to exceed $3 million PLMR system is a small business as has average annual gross revenues for dollars. There are approximately 10,672 defined by the SBA, we use the broad the preceding three years not exceeding licensees in the Marine Coast Service, census category, Wireless $40 million. A ‘‘very small business’’ is and the Commission estimates that Telecommunications Carriers (except defined as an entity that, together with almost all of them qualify as ‘‘small’’ Satellite). This definition provides that controlling interests and affiliates, has businesses under the above special a small entity is any such entity average annual gross revenues for the small business size standards and may employing no more than 1,500 persons. preceding three years not exceeding $15 be affected by rules adopted pursuant to The Commission does not require PLMR million. These definitions were the Order. licensees to disclose information about approved by the SBA. In May 2006, the 353. Advanced Wireless Services number of employees, so the Commission completed an auction of (AWS) (1710–1755 MHz and 2110–2155 Commission does not have information nationwide commercial Air-Ground MHz bands (AWS–1); 1915–1920 MHz, that could be used to determine how Radiotelephone Service licenses in the 1995–2000 MHz, 2020–2025 MHz and many PLMR licensees constitute small 800 MHz band (Auction No. 65). On 2175–2180 MHz bands (AWS–2); 2155– entities under this definition. We note June 2, 2006, the auction closed with 2175 MHz band (AWS–3)). For the that PLMR licensees generally use the two winning bidders winning two Air- AWS–1 bands, the Commission has licensed facilities in support of other Ground Radiotelephone Services defined a ‘‘small business’’ as an entity business activities, and therefore, it licenses. Neither of the winning bidders with average annual gross revenues for would also be helpful to assess PLMR claimed small business status. the preceding three years not exceeding licensees under the standards applied to 352. Aviation and Marine Radio $40 million, and a ‘‘very small the particular industry subsector to Services. Small businesses in the business’’ as an entity with average which the licensee belongs. aviation and marine radio services use annual gross revenues for the preceding 349. As of March 2010, there were a very high frequency (VHF) marine or three years not exceeding $15 million. 424,162 PLMR licensees operating aircraft radio and, as appropriate, an For AWS–2 and AWS–3, although we 921,909 transmitters in the PLMR bands emergency position-indicating radio do not know for certain which entities below 512 MHz. We note that any entity beacon (and/or radar) or an emergency are likely to apply for these frequencies, engaged in a commercial activity is locator transmitter. The Commission has we note that the AWS–1 bands are

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comparable to those used for cellular estimates that there are up to 36,708 Educational Broadband Service (EBS) service and personal communications common carrier fixed licensees and up (previously referred to as the service. The Commission has not yet to 59,291 private operational-fixed Instructional Television Fixed Service adopted size standards for the AWS–2 licensees and broadcast auxiliary radio (ITFS)). In connection with the 1996 or AWS–3 bands but proposes to treat licensees in the microwave services that BRS auction, the Commission both AWS–2 and AWS–3 similarly to may be small and may be affected by the established a small business size broadband PCS service and AWS–1 rules and policies adopted herein. We standard as an entity that had annual service due to the comparable capital note, however, that the common carrier average gross revenues of no more than requirements and other factors, such as microwave fixed licensee category $40 million in the previous three issues involved in relocating includes some large entities. calendar years. The BRS auctions incumbents and developing markets, 356. Offshore Radiotelephone Service. resulted in 67 successful bidders technologies, and services. This service operates on several UHF obtaining licensing opportunities for 354. 3650–3700 MHz band. In March television broadcast channels that are 493 Basic Trading Areas (BTAs). Of the 2005, the Commission released a Report not used for television broadcasting in 67 auction winners, 61 met the and Order and Memorandum Opinion the coastal areas of states bordering the definition of a small business. BRS also and Order that provides for nationwide, Gulf of Mexico. There are presently includes licensees of stations authorized non-exclusive licensing of terrestrial approximately 55 licensees in this prior to the auction. At this time, we operations, utilizing contention-based service. The Commission is unable to estimate that of the 61 small business technologies, in the 3650 MHz band estimate at this time the number of BRS auction winners, 48 remain small (i.e., 3650–3700 MHz). As of April 2010, licensees that would qualify as small business licensees. In addition to the 48 more than 1270 licenses have been under the SBA’s small business size small businesses that hold BTA granted and more than 7433 sites have standard for the category of Wireless authorizations, there are approximately been registered. The Commission has Telecommunications Carriers (except 392 incumbent BRS licensees that are not developed a definition of small Satellite). Under that SBA small considered small entities. After adding entities applicable to 3650–3700 MHz business size standard, a business is the number of small business auction band nationwide, non-exclusive small if it has 1,500 or fewer employees. licensees to the number of incumbent licensees. However, we estimate that the Census data for 2012, which are the licensees not already counted, we find majority of these licensees are Internet most recent Census data available, show that there are currently approximately Access Service Providers (ISPs) and that that there were 967 firms that operated 440 BRS licensees that are defined as most of those licensees are small that year. Of those 967, 955 had fewer small businesses under either the SBA businesses. than 1,000 employees, and 12 firms had or the Commission’s rules. 355. Fixed Microwave Services. more than 1,000 employees. Thus, 359. In 2009, the Commission Microwave services include common under this category and the associated conducted Auction 86, the sale of 78 carrier, private-operational fixed, and small business size standard, the licenses in the BRS areas. The broadcast auxiliary radio services. They majority of firms can be considered Commission offered three levels of also include the Local Multipoint small. bidding credits: (i) A bidder with Distribution Service (LMDS), the Digital 357. 39 GHz Service. The Commission attributed average annual gross revenues Electronic Message Service (DEMS), and created a special small business size that exceed $15 million and do not the 24 GHz Service, where licensees can standard for 39 GHz licenses—an entity exceed $40 million for the preceding choose between common carrier and that has average gross revenues of $40 three years (small business) received a non-common carrier status. At present, million or less in the three previous 15 percent discount on its winning bid; there are approximately 36,708 common calendar years. An additional size (ii) a bidder with attributed average carrier fixed licensees and 59,291 standard for ‘‘very small business’’ is: annual gross revenues that exceed $3 private operational-fixed licensees and An entity that, together with affiliates, million and do not exceed $15 million broadcast auxiliary radio licensees in has average gross revenues of not more for the preceding three years (very small the microwave services. There are than $15 million for the preceding three business) received a 25 percent discount approximately 135 LMDS licensees, calendar years. The SBA has approved on its winning bid; and (iii) a bidder three DEMS licensees, and three 24 GHz these small business size standards. The with attributed average annual gross licensees. The Commission has not yet auction of the 2,173 39 GHz licenses revenues that do not exceed $3 million defined a small business with respect to began on April 12, 2000 and closed on for the preceding three years microwave services. For purposes of the May 8, 2000. The 18 bidders who (entrepreneur) received a 35 percent FRFA, we will use the SBA’s definition claimed small business status won 849 discount on its winning bid. Auction 86 applicable to Wireless licenses. Consequently, the Commission concluded in 2009 with the sale of 61 Telecommunications Carriers (except estimates that 18 or fewer 39 GHz licenses. Of the ten winning bidders, satellite)—i.e., an entity with no more licensees are small entities that may be two bidders that claimed small business than 1,500 persons. Under the present affected by rules adopted pursuant to status won 4 licenses; one bidder that and prior categories, the SBA has the Order. claimed very small business status won deemed a wireless business to be small 358. Broadband Radio Service and three licenses; and two bidders that if it has 1,500 or fewer employees. The Educational Broadband Service. claimed entrepreneur status won six Commission does not have data Broadband Radio Service systems, licenses. specifying the number of these licensees previously referred to as Multipoint 360. In addition, the SBA’s Cable that have more than 1,500 employees, Distribution Service (MDS) and Television Distribution Services small and thus is unable at this time to Multichannel Multipoint Distribution business size standard is applicable to estimate with greater precision the Service (MMDS) systems, and ‘‘wireless EBS. There are presently 2,436 EBS number of fixed microwave service cable,’’ transmit video programming to licensees. All but 100 of these licenses licensees that would qualify as small subscribers and provide two-way high are held by educational institutions. business concerns under the SBA’s speed data operations using the Educational institutions are included in small business size standard. microwave frequencies of the this analysis as small entities. Thus, we Consequently, the Commission Broadband Radio Service (BRS) and estimate that at least 2,336 licensees are

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small businesses. Since 2007, Cable won 317 (Metropolitan Trading Areas number of such licensees that are small Television Distribution Services have and nationwide) licenses. Three of these businesses, we apply the small business been defined within the broad economic claimed status as a small or very small size standard under the SBA rules census category of Wired entity and won 311 licenses. applicable to Wireless Telecommunications Carriers; that 362. Paging (Private and Common Telecommunications Carriers (except category is defined as follows: ‘‘This Carrier). In the Paging Third Report and Satellite). Under this category, the SBA industry comprises establishments Order, we developed a small business deems a wireless business to be small if primarily engaged in operating and/or size standard for ‘‘small businesses’’ and it has 1,500 or fewer employees. The providing access to transmission ‘‘very small businesses’’ for purposes of Commission estimates that nearly all facilities and infrastructure that they determining their eligibility for special such licensees are small businesses own and/or lease for the transmission of provisions such as bidding credits and under the SBA’s small business size voice, data, text, sound, and video using installment payments. A ‘‘small standard that may be affected by rules wired telecommunications networks. business’’ is an entity that, together with adopted pursuant to the Order. Transmission facilities may be based on its affiliates and controlling principals, 364. 220 MHz Radio Service—Phase II a single technology or a combination of has average gross revenues not Licensees. The 220 MHz service has technologies.’’ The SBA has developed exceeding $15 million for the preceding both Phase I and Phase II licenses. The a small business size standard for this three years. Additionally, a ‘‘very small Phase II 220 MHz service is subject to category, which is: All such firms business’’ is an entity that, together with spectrum auctions. In the 220 MHz having 1,500 or fewer employees. To its affiliates and controlling principals, Third Report and Order, we adopted a gauge small business prevalence for has average gross revenues that are not small business size standard for ‘‘small’’ these cable services we must, however, more than $3 million for the preceding and ‘‘very small’’ businesses for use the most current census data that three years. The SBA has approved purposes of determining their eligibility are based on the previous category of these small business size standards. for special provisions such as bidding Cable and Other Program Distribution According to Commission data, 291 credits and installment payments. This and its associated size standard; that carriers have reported that they are small business size standard indicates size standard was: all such firms having engaged in Paging or Messaging Service. that a ‘‘small business’’ is an entity that, $13.5 million or less in annual receipts. Of these, an estimated 289 have 1,500 or together with its affiliates and According to Census Bureau data for fewer employees, and two have more controlling principals, has average gross 2007, there were a total of 996 firms in than 1,500 employees. Consequently, revenues not exceeding $15 million for this category that operated for the entire the Commission estimates that the the preceding three years. A ‘‘very small year. Of this total, 948 firms had annual majority of paging providers are small business’’ is an entity that, together with receipts of under $10 million, and 48 entities that may be affected by our its affiliates and controlling principals, firms had receipts of $10 million or action. An auction of Metropolitan has average gross revenues that do not more but less than $25 million. Thus, Economic Area licenses commenced on exceed $3 million for the preceding the majority of these firms can be February 24, 2000, and closed on March three years. The SBA has approved considered small. 2, 2000. Of the 2,499 licenses auctioned, these small business size standards. 985 were sold. Fifty-seven companies Auctions of Phase II licenses 361. Narrowband Personal claiming small business status won 440 commenced on September 15, 1998, and Communications Services. In 1994, the licenses. A subsequent auction of MEA closed on October 22, 1998. In the first Commission conducted an auction for and Economic Area (‘‘EA’’) licenses was auction, 908 licenses were auctioned in Narrowband PCS licenses. A second held in the year 2001. Of the 15,514 three different-sized geographic areas: auction was also conducted later in licenses auctioned, 5,323 were sold. three nationwide licenses, 30 Regional 1994. For purposes of the first two One hundred thirty-two companies Economic Area Group (EAG) Licenses, Narrowband PCS auctions, ‘‘small claiming small business status and 875 Economic Area (EA) Licenses. businesses’’ were entities with average purchased 3,724 licenses. A third Of the 908 licenses auctioned, 693 were gross revenues for the prior three auction, consisting of 8,874 licenses in sold. Thirty-nine small businesses won calendar years of $40 million or less. each of 175 EAs and 1,328 licenses in licenses in the first 220 MHz auction. Through these auctions, the all but three of the 51 MEAs, was held The second auction included 225 Commission awarded a total of 41 in 2003. Seventy-seven bidders claiming licenses: 216 EA licenses and 9 EAG licenses, 11 of which were obtained by small or very small business status won licenses. Fourteen companies claiming four small businesses. To ensure 2,093 licenses. A fourth auction, small business status won 158 licenses. meaningful participation by small consisting of 9,603 lower and upper d. Satellite Service Providers business entities in future auctions, the paging band licenses was held in the Commission adopted a two-tiered small year 2010. Twenty-nine bidders 365. Satellite Telecommunications business size standard in the claiming small or very small business Providers. Two economic census Narrowband PCS Second Report and status won 3,016 licenses. categories address the satellite industry. Order. A ‘‘small business’’ is an entity 363. 220 MHz Radio Service—Phase I The first category has a small business that, together with affiliates and Licensees. The 220 MHz service has size standard of $32.5 million or less in controlling interests, has average gross both Phase I and Phase II licenses. Phase average annual receipts, under SBA revenues for the three preceding years of I licensing was conducted by lotteries in rules. The second has a size standard of not more than $40 million. A ‘‘very 1992 and 1993. There are approximately $30 million or less in annual receipts. small business’’ is an entity that, 1,515 such non-nationwide licensees 366. The first category comprises together with affiliates and controlling and four nationwide licensees currently firms ‘‘primarily engaged in providing interests, has average gross revenues for authorized to operate in the 220 MHz telecommunications services to other the three preceding years of not more band. The Commission has not establishments in the than $15 million. The SBA has developed a small business size telecommunications and broadcasting approved these small business size standard for small entities specifically industries by forwarding and receiving standards. A third auction was applicable to such incumbent 220 MHz communications signals via a system of conducted in 2001. Here, five bidders Phase I licensees. To estimate the satellites or reselling satellite

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telecommunications.’’ The category has rules, a ‘‘small system’’ is a cable system and 16 firms had employment of 1,000 a small business size standard of $32.5 serving 15,000 or fewer subscribers. employees or more. Thus, under this million or less in average annual Current Commission records show 4,600 second size standard, most cable receipts, under SBA rules. For this cable systems nationwide. Of this total, systems are small and may be affected category, Census Bureau data for 2012 3,900 cable systems have fewer than by rules adopted pursuant to the Order. show that there were a total of 333 firms 15,000 subscribers, and 700 systems In addition, we note that the that operated for the entire year. Of this have 15,000 or more subscribers, based Commission has certified some OVS total, 299 firms had annual receipts of on the same records. Thus, under this operators, with some now providing less than $25 million.1 For this category, standard as well, we estimate that most service. Broadband service providers Census Bureau data for 2007 show that cable systems are small entities. (BSPs) are currently the only significant there were a total of 570 firms that 370. Cable System Operators. The holders of OVS certifications or local operated for the entire year. Of this Communications Act of 1934, as OVS franchises. The Commission does total, 530 firms had annual receipts of amended, also contains a size standard not have financial or employment under $30 million, and 40 firms had for small cable system operators, which information regarding the entities receipts of over $30 million. is ‘‘a cable operator that, directly or authorized to provide OVS, some of Consequently, we estimate that the through an affiliate, serves in the which may not yet be operational. Thus, majority of Satellite aggregate fewer than 1 percent of all again, at least some of the OVS Telecommunications firms are small subscribers in the United States and is operators may qualify as small entities. entities that might be affected by rules not affiliated with any entity or entities f. Electric Power Generators, adopted pursuant to the Order. whose gross annual revenues in the 367. The second category of Other aggregate exceed $250,000,000.’’ There Transmitters, and Distributors Telecommunications comprises, inter are approximately 52,403,705 cable 372. Electric Power Generators, alia, ‘‘establishments primarily engaged video subscribers in the United States Transmitters, and Distributors. The in providing specialized today. Accordingly, an operator serving Census Bureau defines an industry telecommunications services, such as fewer than 524,037 subscribers shall be group comprised of ‘‘establishments, satellite tracking, communications deemed a small operator if its annual primarily engaged in generating, telemetry, and radar station operation. revenues, when combined with the total transmitting, and/or distributing electric This industry also includes annual revenues of all its affiliates, do power. Establishments in this industry establishments primarily engaged in not exceed $250 million in the group may perform one or more of the providing satellite terminal stations and aggregate. Based on available data, we following activities: (1) Operate associated facilities connected with one find that all but nine incumbent cable generation facilities that produce or more terrestrial systems and capable operators are small entities under this electric energy; (2) operate transmission of transmitting telecommunications to, size standard. We note that the systems that convey the electricity from and receiving telecommunications from, Commission neither requests nor the generation facility to the distribution satellite systems.’’ For this category, collects information on whether cable system; and (3) operate distribution Census Bureau data for 2007 show that system operators are affiliated with systems that convey electric power there were a total of 1,274 firms that entities whose gross annual revenues received from the generation facility or operated for the entire year. Of this exceed $250 million. Although it seems the transmission system to the final total, 1,252 had annual receipts below certain that some of these cable system consumer.’’ The SBA has developed a $25 million per year. Consequently, we operators are affiliated with entities small business size standard for firms in estimate that the majority of All Other whose gross annual revenues exceed this category: ‘‘A firm is small if, Telecommunications firms are small $250 million, we are unable at this time including its affiliates, it is primarily entities that might be affected by our to estimate with greater precision the engaged in the generation, transmission, action. number of cable system operators that and/or distribution of electric energy for would qualify as small cable operators sale and its total electric output for the e. Cable Service Providers under the definition in the preceding fiscal year did not exceed 4 368. The description above of Communications Act. million megawatt hours.’’ Census wireline providers should encompass 371. The open video system (OVS) Bureau data for 2007 show that there cable service providers that also provide framework was established in 1996, and were 1,174 firms that operated for the business data services. Out of an is one of four statutorily recognized entire year in this category. Of these abundance of caution, we describe cable options for the provision of video firms, 50 had 1,000 employees or more, service providers below as well as other programming services by local exchange and 1,124 had fewer than 1,000 types of firms that may provide carriers. The OVS framework provides employees. Based on this data, a broadband services, including MDS opportunities for the distribution of majority of these firms can be providers and utilities, among others. video programming other than through considered small. 369. Cable Companies and Systems cable systems. Because OVS operators (Rate Regulation). The Commission has provide subscription services, OVS falls 5. Description of Projected Reporting, developed its own small business size within the SBA small business size Recordkeeping, and Other Compliance standards for the purpose of cable rate standard covering cable services, which Requirements for Small Entities regulation. Under the Commission’s is ‘‘Wired Telecommunications 373. Recordkeeping and Reporting. rules, a ‘‘small cable company’’ is one Carriers.’’ The SBA has developed a The rule revisions adopted in the Order serving 400,000 or fewer subscribers small business size standard for this include changes that will necessitate nationwide. Industry data indicate that category, which is: all such firms having affected carriers to make various there are currently 4,600 active cable 1,500 or fewer employees. According to revisions to business data service tariffs systems in the United States. Of this Census Bureau data for 2007, there were and Tariff Review Plans. For example, total, all but nine cable operators a total of 955 firms in this previous packet-based BDS, transport services, nationwide are small under the 400,000- category that operated for the entire and DS1 and DS3 end user channel subscriber size standard. In addition, year. Of this total, 939 firms had terminations in counties that are under the Commission’s rate regulation employment of 999 or fewer employees, deemed competitive will be relieved of

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price cap regulation and will be subject standards; and (4) an exemption from competition, proposals to apply price to permissive detariffing for a period of coverage of the rule, or any part thereof, cap regulation to packet-based services 36 months at which time they will be for small entities. were complex and not easily subject to mandatory detariffing. The 377. Competitive Market Test. The administrable and did not reflect the Order also requires price cap incumbent Commission proposed to replace the fact that costs to serve individual LECs to freeze the rates for DS1 and DS3 existing framework for granting customers vary. end-user channel terminations in newly regulatory relief to incumbent LECs in 380. Anchor or Benchmark Pricing. deregulated counties for six months. price cap areas with a multi- The Commission minimizes the This freeze does not apply to services dimensional competitive market test to economic impact of its rules on small that are detariffed. identify specific markets as competitive entities first by declining to impose 374. In addition, the Commission or non-competitive, thereby dictating anchor or benchmark pricing regulation amends the price cap rules to allow all the level of applicable regulation for on incumbent LEC packet-based price cap LECs in non-competitive both circuit-based and packet-based business data services. This eliminates counties to lower their rates through business data services. The Commission the proposed requirement to calculate contract tariffs and volume and term also sought comment on the separate anchor or benchmark prices for a wide discounts in a manner consistent with but related issue of whether in non- range of packet-based business data the Commission’s current Phase I competitive markets, heightened services, and to post publicly generally pricing flexibility rules. These regulation, including possible applicable rates, terms and conditions. incumbent LECs will be required to restrictions on rates, terms and Because our market analysis shows that maintain generally available tariffed conditions, should apply to just the packet-based business data services are price cap regulated rates available to all market leader or additional providers, subject to competition, anchor or subscribers. For the small number of which could have potentially included benchmark pricing would be counties that had received Phase II a substantial number of small unnecessary and could actually inhibit pricing flexibility that are now treated businesses. investment in this dynamic market. as non-competitive by the Order’s 378. In the Order, the Commission 381. X-factor. Incumbent LECs that competitive market test, those price cap explains why it adopts a test that file tariffs under the price cap carriers will be permitted to retain departs from the proposals in the ratemaking methodology are required to Phase II relief for those counties but will Further Notice. Rather than intrusive file revised annual access charge tariffs be required to offer generally available pricing regulation, it takes a dynamic every year, which become effective on rates for those services as long as those and forward-looking approach to July 1. The annual filings include services remain under tariff. evaluating the benefits and costs of submission of tariff review plans that 375. The Commission also regulation. It identifies specific markets are used to support revisions to the incorporates a productivity-based X- as competitive or non-competitive and rates, including revisions that pertain to factor of 2.0 percent for DS1 and DS3 applies regulation only where the X-factor. The Commission requires end user channel terminations, and competition is expected to materially revised tariff review plans certain other business data services, fail to ensure just and reasonable rates. implementing the X-factor to be filed subject to price cap regulation on a The result is a simple, sustainable with the Commission to become going-forward basis. Affected LECs will framework that is far less complicated effective on December 1, 2017. To ease be required to revise their rates and than the market test proposal originally the burden on the industry in tariff review plans, including contemplated. The Commission adopts connection with this filing, and because adjustments to price cap indices, for a structure that eliminates unnecessary base period demand and the value of business data services in filings with the pricing regulation for a significant GDP–PI reflected in the price cap Commission to reflect the new X-factor. portion of the business data services indices typically are not updated during These revisions are required of all provided by price cap incumbent LECs a tariff year, the Commission permits affected carriers, regardless of entity to allow competition to promote incumbent LECs to use, in their filings size. The adopted rule revisions will increased efficiencies, investment, and implementing the 2.0 percent X-factor, facilitate Commission and public access growth in new technologies and services the same base period demand and value to the most accurate and up-to-date to benefit consumers and business. of GDP–PI as in the July 1, 2017 annual tariffs as well as lower rates paid by the Additionally, the Commission declines filing. public for the affected services. to impose rate regulation on other 382. Price Cap Regulation. The business data services providers besides Commission applies price cap 6. Steps Taken To Minimize the the market leader. In particular, regulation in the form of Phase I pricing Significant Economic Impact on Small unnecessary regulation exacts flexibility to DS1 and DS3 end user Entities and Significant Alternatives administrative compliance costs on channel termination services provided Considered carriers that reduce capital available for by incumbent LECs in counties that we 376. The RFA requires an agency to building new networks and have determined are non-competitive. describe any significant alternatives that infrastructure, inhibiting competitive Requiring Phase I pricing will enable it has considered in reaching its entry and deployment. incumbent LECs, including those that proposed approach, which may include 379. Packet-based Services. The may be small entities, to respond to any (among others) the following four Commission declines to re-impose any competition that develops in these alternatives: (1) The establishment of form of price cap or benchmark markets through contract tariffs and differing compliance or reporting regulation on packet-based business volume and term discounts. In addition, requirements or timetables that take into data services. The market analysis does incumbent LECs, including any small account the resources available to small not show compelling evidence of market entities that previously received Phase II entities; (2) the clarification, power in incumbent LEC provision of pricing flexibility in counties we now consolidation, or simplification of packet-based business data services, deem non-competitive will not be compliance or reporting requirements particularly for higher bandwidth subject to ex ante rate regulation for end under the rule for small entities; (3) the services. Moreover, even if the record user channel terminations and other use of performance, rather than design, demonstrated insufficiently robust special access services in those

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counties, and thus will avoid incurring D. Report to Congress terminations that any price cap the significant costs of trying to recreate 387. The Commission will send a incumbent LEC continues to tariff in price caps. copy of the Report and Order, including newly deregulated counties for six (6) 383. Periodic Data Collection. Related this FRFA, in a report to be sent to months after the effective date of this to the competitive market test proposal, Congress pursuant to the Congressional Report and Order. the Commission also proposed a future Review Act. In addition, the 392. It is further ordered that pursuant periodic data collection to allow for Commission will send a copy of the to section 61.45(b)(1)(iv) of the market test updates for determining Report and Order, including this FRFA, Commission’s rules, 47 CFR competitive and non-competitive areas. to the Chief Counsel for Advocacy of the 61.45(b)(1)(iv), price cap incumbent The periodic collection could have SBA. A copy of the Order and FRFA (or LECs must file with the Commission, resulted in a significant reporting summaries thereof) will also be revised tariffs and tariff review plans burden on small entities. Instead, the published in the Federal Register. implementing the X-factor for end user Commission adopts a process for channel terminations and other special updating the competitive market test E. Data Quality Act access services subject to price cap every three years using the data from 388. The Commission certifies that it regulation, to become effective on Form 477 that is already routinely filed has complied with the Office of December 1, 2017. by providers and thus entails no Management and Budget Final 393. It is further ordered that pursuant additional burden. Information Quality Bulletin for Peer to section 1.115 of the Commission’s 384. Wholesale Pricing. The Review, 70 FR 2664 (2005), and the Data rules, 47 CFR 1.115, the CenturyLink Commission also minimized the impact Quality Act, Public Law 106–554 (2001), and USTelecom Applications for of its rules on small entities by codified at 44 U.S.C. 3516 note, with Review are denied. declining to adopt rules proposed by regard to its reliance on influential 394. It is further ordered that pursuant certain parties that would have required scientific information in the Report and business data services providers to to sections 4(i) and 4(j) of the Order in WC Docket Nos. 16–143, 15– Communications Act of 1934, as comply with detailed requirements 247, 05–25, and RM–10593. regarding the pricing of their wholesale amended, 47 U.S.C. 154(i), 154(j), the business data services. IX. Ordering Clauses CenturyLink et al. Motion to Strike is denied. 385. Forbearance. To help level the 389. Accordingly, it is ordered that, playing field and promote regulatory pursuant to sections 1, 2, 4(i)–(j), 10, 395. It is further ordered that pursuant parity for all business data services 201(b), 202(a), 214, 303(r), 403, of the to sections 4(i) and 4(j) of the providers, the Commission extends the Communications Act of 1934, as Communications Act of 1934, as forbearance from section 203 of the amended, and section 706 of the amended, 47 U.S.C. 154(i), 154(j), the Communications Act of 1934, as Telecommunications Act of 1996, 47 AT&T Motion Seeking Additional amended. This expands forbearance U.S.C. 151, 152, 154(i)–(j), 160, 201(b), Information on Fiber Maps is denied. previously accorded certain price cap 202(a), 214, 303(r), 403, 1302, this 396. It is further ordered that the LECs to all price cap LECs, including Report and Order is adopted and shall Commission’s Consumer & those that may be small entities, in the be effective sixty (60) days after Governmental Affairs Bureau, Reference provision of any packet-based business publication in the Federal Register, Information Center, shall send a copy of data service or circuit-based business except to the extent expressly addressed this Report and Order to Congress and data service above the DS3 bandwidth below. the Government Accountability Office level. The Commission also forbears 390. It is further ordered that parts 0, pursuant to the Congressional Review from the application of section 203 to 1, 61, 63, and 69 of the Commission’s Act, see 5 U.S.C. 801(a)(1)(A). DS1 and DS3 end user channel rules, 47 CFR parts 0, 1, 61, 63, and 69, 397. It is further ordered, that the terminations, and certain other business are amended, and that such rule Commission’s Consumer & data services, in competitive counties. amendments shall be effective sixty (60) Governmental Affairs Bureau, Reference These actions are also taken to promote days after publication of this Report and Information Center, shall send a copy of competition and broadband Order in the Federal Register, except for this Report and Order, including the deployment. To level the playing field sections 1.776, 61.45, 61.201, 61.203, Final Regulatory Flexibility Analysis, to among price cap LECs providing packet- and 69.701, 47 CFR 1.776, 61.45, 61.201, the Chief Counsel for Advocacy of the based and optical transmission business 61.203, 69.701, which contain Small Business Administration. data services, the Commission conforms information collections that require 398. It is further ordered that, with the forbearance deemed granted to approval by the Office of Management regard to Docket Nos. 16–143, 05–25, Verizon and its successors in interest to and Budget under the Paperwork and RM–10593, should no petitions for that provided other price cap carriers. Reduction Act and shall become reconsideration or petitions for judicial 386. Detariffing. To minimize effective after announcement in the review be timely filed, these economic impact, the Commission Federal Register of their approval by the proceedings shall be terminated and the provides a transition period to provide Office of Management and Budget, and dockets closed. price cap incumbent LECs, including on the effective dates announced those that may be small entities, with therein. The Federal Communications List of Subjects sufficient time to adapt their business Commission will publish documents in 47 CFR Part 0 data services operations to a detariffing the Federal Register announcing the system. The Commission does not effective dates. Classified information, Freedom of intend its actions to disturb existing 391. It is further ordered that pursuant information, Government publications, contractual or other long-term to sections 201(b) and 202(a) of the infants and children, Organization of arrangements, which must continue to Communications Act of 1934, as functions (Government agencies), Postal be adhered to for the length of the amended, 47 U.S.C. 201(b), 202(a), price Service, Privacy, Reporting and contract, and the Commission adopted a cap incumbent LECs shall freeze the Recordkeeping requirements, Sunshine grandfathering rules for such contracts. tariffed rates for end-user channel Act.

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47 CFR Part 1 contract-based tariffs may not be special access services, in any Administrative practice and extended, renewed or revised, except grandfathered market as defined in procedure, Civil rights, that any extension or renewal expressly § 69.801 for which the price cap local Communications common carriers, provided for by the contract-based tariff exchange carrier was granted Phase II Cuba, Drug abuse, Environmental may be exercised pursuant to the terms pricing flexibility prior to June 2017. thereof. During the period between impact statements, Equal access to (b) The detariffing must be completed August 1, 2017 and the deadline to justice, Equal employment opportunity, thirty-six months after August 1, 2017, institute mandatory detariffing under Federal buildings and facilities, but detariffing can take place at any Government employees, Income taxes, § 61.201(b), upon mutual agreement, parties to a grandfathered contract-based time before the thirty-six months is Indemnity payments, Individuals with completed. disabilities, Investigations, Lawyers, tariff may replace it at any time with a Metric system, Penalties, Radio, new contract-based tariff or with a new § 61.203 Detariffing of competitive local Reporting and recordkeeping or amended contract that is not filed as exchange carriers. a contract-based tariff. requirements, Telecommunications, (a) Competitive local exchange Television, Wages. PART 61—TARIFFS carriers shall remove all business data 47 CFR Part 61 and 69 services from their interstate tariffs. ■ 6. The authority citation for part 61 Communications common carriers, continues to read as follows: (b) The detariffing must be completed Radio, Reporting and recordkeeping thirty-six months August 1, 2017. requirements, Telegraph, Telephone. Authority: Secs. 1, 4(i), 4(j), 201–205 and 403 of the Communications Act of 1934, as PART 63—EXTENSION OF LINES, NEW 47 CFR Part 63 amended; 47 U.S.C. 151, 154(i), 154(j), 201– LINES, AND DISCONTINUANCE, 205 and 403, unless otherwise noted. REDUCTION, OUTAGE AND Cable television, Communications ■ common carriers, Radio, Reporting and 7. Amend § 61.45 by revising IMPAIRMENT OF SERVICE BY paragraph (b)(1)(iv) to read as follows: Recordkeeping requirements, Telegraph, COMMON CARRIERS; AND GRANTS Telephone. § 61.45 Adjustments to the PCI for Local OF RECOGNIZED PRIVATE Federal Communications Commission. Exchange Carriers. OPERATING AGENCY STATUS Marlene H. Dortch, * * * * * Secretary. (b) * * * ■ 10. The authority citation for part 63 (1) * * * continues to read as follows: For the reasons discussed in the (iv) For the special access basket preamble, the Federal Communications specified in § 61.42(d)(5), the value of X Authority: Sections 1, 4(i), 4(j), 10, 11, 201–205, 214, 218, 403 and 651 of the Commission amends 47 CFR parts 0, 1, shall be 2.0% beginning December 1, Communications Act of 1934, as amended, 61, 63, and 69 as follows: 2017, notwithstanding any language in 47 U.S.C. 151, 154(i), 154(j), 160, 201–205, § 61.45(b)(1)(i). PART 0—COMMISSION 214, 218, 403, and 571, unless otherwise ORGANIZATION * * * * * noted. ■ 8. Amend § 61.55 by revising ■ 1. The authority citation for part 0 paragraph (a) to read as follows: § 63.71 [Amended] continues to read as follows: § 61.55 Contract-based tariffs. ■ 11. Amend § 63.71 by removing and Authority: Secs. 5, 48 Stat. 1068, as reserving paragraph (d). amended; 47 U.S.C. 155, unless otherwise (a) This section shall apply to price noted. cap local exchange carriers permitted to offer contract-based tariffs under § 1.776 PART 69—ACCESS CHARGES § 0.291 [Amended] or § 69.805 of this chapter. ■ 12. The authority citation for part 69 ■ 2. Amend § 0.291 by removing and * * * * * continues to read as follows: reserving paragraph (h). ■ 9. Add subpart K, consisting of §§ 61.201 and 61.203, to read as follows: Authority: 47 U.S.C. 154, 201, 202, 203, PART 1—PRACTICE AND 204, 218, 220, 254, 403. PROCEDURE Subpart K—Detariffing of Business Data Services ■ 13. Revise § 69.701 to read as follows: ■ 3. The authority citation for part 1 continues to read as follows: § 61.201 Detariffing of price cap local § 69.701 Application of the rules in this exchange carriers. subpart. Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), (a) Price cap local exchange carriers The rules in this subpart apply to all 309, 1403, 1404, 1451, and 1452. shall remove from their interstate tariffs: incumbent LECs subject to price cap (1) Any packet-based business data § 1.774 [Removed and Reserved] regulation, as defined in § 61.3(bb) of service; this chapter, seeking pricing flexibility ■ 4. Remove and reserve § 1.774. (2) Any circuit-based business data on the basis of the development of ■ 5. Add § 1.776, before the center service above the DS3 bandwidth level; competition in parts of its service area (3) Transport services as defined in heading ‘‘Contracts, Reports, and for switched access services only. Requests Required to be Filed by § 69.801 of this chapter; ■ 14. Add subpart I, consisting of Carriers,’’ to read as follows: (4) DS1 and DS3 end user channel terminations, and all other tariffed §§ 69.801, 69.803, 69.805, 69.807, and § 1.776 Pricing flexibility limited special access services, in any market 69.809, to read as follows: grandfathering. deemed competitive as defined in Special access contract-based tariffs § 69.801; and that were in effect on or before August (5) DS1 and DS3 end user channel 1, 2017 are grandfathered. Such terminations, and all other tariffed

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Subpart I—Business Data Services served by a price cap local exchange compulsion by the Commission to effect Sec. carrier, as defined in § 61.3(bb) of this such disclosure. chapter, are deemed competitive and (b) Confidential information subject to § 69.801 Definitions. therefore warrant relief from price cap a protective order as defined in § 0.461 of this chapter in effect as of the § 69.803 Competitive market test. regulation and detariffing of DS1 and DS3 end user channel terminations, and effective date of a tariff, contract-based § 69.805 Prohibition on certain non- certain other business data services, tariff, or commercial agreement must be disclosure agreement conditions. sold by such carriers. submitted pursuant to the terms of that protective order or otherwise pursuant § 69.807 Regulatory relief. (b) Initial test. A county is deemed competitive in the initial competitive to the Commission’s rules regarding § 69.809 Low-end adjustment mechanism. market test if: submission of confidential data in (1) Either 50 percent of the locations §§ 0.457(d) and 0.459. Subpart I—Business Data Services with business data services demand § 69.807 Regulatory relief. within the county are within one half § 69.801 Definitions. (a) Price cap local exchange carrier (a) Business data services. The mile of a location served by a competitive provider based on data from transport and end user channel dedicated point-to-point transmission of terminations in markets deemed data at certain guaranteed speeds and the special access data collection, or 75 percent of the census blocks within the competitive and in grandfathered service levels using high-capacity markets for a price cap carrier that was connections. county are reported to have broadband connection availability by a cable granted Phase II pricing flexibility prior (b) Competitive market test. The to June 2017 are granted the following competitive market test is defined in operator based on Form 477 data as of December 2016. Lists of counties regulatory relief: § 69.803. (1) Elimination of the rate structure (c) County. A county or county deemed competitive, non-competitive or grandfathered by the initial competitive requirements in subpart B of this part; equivalent as defined in § 10.10 of this (2) Elimination of price cap market test are published on the chapter. County-equivalents include regulation; and Commission’s Web site. parishes, boroughs, independent cities, (3) Elimination of tariffing census areas, the District of Columbia, (2) The DS1 and DS3 end user requirements as specified in § 61.201 of and various entities in the territories. channel terminations sold by price cap this chapter. (d) End user channel termination. A local exchange carriers in counties (b) Price cap local exchange carrier dedicated channel connecting a local deemed competitive are no longer end user channel terminations in exchange carrier end office and a subject to price cap regulation and are markets deemed non-competitive are customer premises, offered for purposes detariffed according to § 61.201. granted the following regulatory relief: of carrying special access traffic. (c) Subsequent tests. The results of the (1) Ability to offer volume and term (e) Grandfathered market. A county initial competitive market test will be discounts; that does not satisfy the competitive updated every three years following the (2) Ability to enter into contract-based market test set forth in § 69.803 for effective date of the initial test. tariffs, provided that: which a price cap local exchange carrier (1) A county will be deemed (i) Contract-based tariff services are obtained Phase II relief pursuant to competitive in a subsequent competitive made generally available to all similarly § 69.711(c). market test if 75 percent of the census situated customers; (f) Market deemed competitive. A blocks within the county are reported to county that satisfies the competitive (ii) The price cap local exchange have broadband connection availability carrier excludes all contract-based tariff market test set forth in § 69.803. by a cable operator based on Form 477 (g) Market deemed non-competitive. A offerings from price cap regulation data as of the date of the most recent county that does not satisfy the pursuant to § 61.42(f) of this chapter; collection. competitive market test set forth in (3) Ability to file tariff revisions on at § 69.803. (2) No later than three years following least one day’s notice, notwithstanding (h) Non-disclosure agreement. A non- the effective date of the previous test, the notice requirements for tariff filings disclosure agreement is a contract, the Wireline Competition Bureau will specified in § 61.58 of this chapter. contractual provision, or tariff provision conclude a subsequent test and will (c) A price cap local exchange carrier wherein a party agrees not to disclose publish a revised list of counties that was granted Phase II pricing certain information shared by the other deemed competitive at the conclusion of flexibility prior to June 2017 in a party. the test. grandfathered market must retain its (i) Special access data collection. The (3) A county deemed competitive in business data services rates at levels no special access data collection refers to the competitive market test will retain higher than those in effect as of April the data and other information the its status in subsequent tests. 20, 2017, pending the detariffing of Commission collected from business those services pursuant to § 61.201 of § 69.805 Prohibition on certain non- this chapter. data services providers and purchasers disclosure agreement conditions. pursuant to its December 18, 2012 § 69.809 Low-end adjustment mechanism. Report and Order in WC Docket 05–25. (a) In markets deemed non- (j) Transport includes interoffice competitive, buyers and sellers of (a) Any price cap local exchange facilities, channel terminations between business data services shall not enter carrier or any affiliate of any price cap the serving wire center and point of into a tariff, contract-based tariff, or local exchange carrier that had obtained presence, and all special access services commercial agreement, including but Phase II pricing flexibility under that are described in § 69.114 other than not limited to master service agreement, § 69.709 or § 69.711 for any service in end user channel terminations. that contains a non-disclosure any MSA in its service region, or for the agreement as defined in § 69.801(g), that non-MSA portion of any study area in § 69.803 Competitive market test. restricts or prohibits disclosure of its service region, shall be prohibited (a) The competitive market test is information to the Commission, or from making any low-end adjustment used to determine which counties requires a prior request or legal pursuant to § 61.45(d)(1)(vii) of this

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chapter in all or part of its service adjustment pursuant to § 61.45(d)(1)(vii) uniform system of accounts pursuant to region. of this chapter in all or part of its service § 32.11(g) of this chapter shall be (b) Any price cap local exchange region. prohibited from making any low-end carrier or any affiliate of any price cap (c) Any price cap local exchange adjustment pursuant to § 61.45(d)(1)(vii) local exchange carrier that exercises the carrier or any affiliate of any price cap of this chapter in all or part of its service regulatory relief pursuant to § 69.807 in local exchange carrier that exercises the region. any part of its service region shall be option to use generally accepted [FR Doc. 2017–10713 Filed 6–1–17; 8:45 am] prohibited from making any low-end accounting principles rather than the BILLING CODE 6712–01–P

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Reader Aids Federal Register Vol. 82, No. 105 Friday, June 2, 2017

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Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 12 CFR 1...... 25660 25...... 25205 Executive orders and proclamations 741–6000 Proposed Rules: The United States Government Manual 741–6000 229...... 25539 36...... 25535 61...... 25660 Other Services 13 CFR 63...... 25660 Electronic and on-line services (voice) 741–6020 121...... 25503 69...... 25660 Privacy Act Compilation 741–6050 134...... 25503 Proposed Rules: Public Laws Update Service (numbers, dates, etc.) 741–6043 14 CFR 8...... 25568 20...... 25568 23...... 25509 ELECTRONIC RESEARCH 73...... 25590 Proposed Rules: World Wide Web 39 ...... 25542, 25545, 25547, 25550, 25552, 25554, 25556 50 CFR Full text of the daily Federal Register, CFR and other publications 71 ...... 25559, 25561, 25563 622...... 25205 is located at: www.fdsys.gov. 21 CFR Federal Register information and research tools, including Public Inspection List, indexes, and Code of Federal Regulations are Proposed Rules: located at: www.ofr.gov. 1308...... 25564 E-mail 33 CFR 100...... 25511 FEDREGTOC (Daily Federal Register Table of Contents Electronic 165 ...... 25515, 25517, 25519, Mailing List) is an open e-mail service that provides subscribers 25521 with a digital form of the Federal Register Table of Contents. The digital form of the Federal Register Table of Contents includes Proposed Rules: HTML and PDF links to the full text of each document. 110...... 25207 To join or leave, go to https://public.govdelivery.com/accounts/ 40 CFR USGPOOFR/subscriber/new, enter your email address, then 52...... 25203, 25523 follow the instructions to join, leave, or manage your 81...... 25523 subscription. 171...... 25529 PENS (Public Law Electronic Notification Service) is an e-mail 180...... 25532 service that notifies subscribers of recently enacted laws. 258...... 25532 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Proposed Rules: and select Join or leave the list (or change settings); then follow 52 ...... 25208, 25211, 25213 the instructions. 158...... 25567 258...... 25568 FEDREGTOC and PENS are mailing lists only. We cannot respond to specific inquiries. 46 CFR Reference questions. Send questions and comments about the Proposed Rules: Federal Register system to: [email protected] 515...... 25221 520...... 25221 The Federal Register staff cannot interpret specific documents or 525...... 25221 regulations. 530...... 25221 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 531...... 25221 longer appears in the Federal Register. This information can be 532...... 25221 found online at http://bookstore.gpo.gov/. 535...... 25221 540...... 25221 FEDERAL REGISTER PAGES AND DATE, JUNE 565...... 25221 25203–25502...... 1 47 CFR 25503–25714...... 2 0...... 25660

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