Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov . Such information includes personally identifiable information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personally identifiable information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFIABLE INFORMATION” in the first paragraph of your comment. You must also locate all the personally identifiable information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov .

Personally identifiable information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the “For Further Information Contact” paragraph.

The Executive Office for Immigration Review (EOIR) administers the nation's immigration court system. EOIR primarily decides whether foreign-born individuals who are charged by the Department of Homeland Security (DHS) with violating immigration law pursuant to the Immigration and Nationality Act (INA) should be ordered removed from the United States, or should be granted relief or protection from removal and be permitted to remain in the United States. 1 EOIR is also responsible for conducting other immigration-related adjudications, including hearings regarding custody or bond determinations made by DHS.

To make these critical determinations, EOIR's Office of the Chief Immigration Judge (OCIJ) has approximately 250 immigration judges who conduct administrative court proceedings, in 59 immigration courts nationwide. EOIR's appellate component, the Board of Immigration Appeals (Board), primarily decides appeals of immigration judge decisions. The Board is the highest administrative tribunal for interpreting and applying U.S. immigration law. EOIR is a component of the Department of Justice (DOJ or Department).

The immigration judges are attorneys appointed by the Attorney General as administrative judges qualified to conduct the cases assigned to them. They are subject to the supervision of the Attorney General in performing their prescribed duties, but, subject to the applicable governing standards, exercise independent judgment and discretion in considering and determining the cases before them. See INA sec. 101(b)(4) (8 U.S.C. 1101(b)(4)); 8 CFR 1003.10(b), (d). Decisions of the immigration judges are subject to review by the Board pursuant to 8 CFR 1003.1(a)(1) and (d)(1); in turn, the Board's decisions can be reviewed by the Attorney General, as provided in 8 CFR 1003.1(g) and (h). Decisions of the Board and the Attorney General are subject to judicial review.

EOIR's mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws. In order to more efficiently accomplish the agency's commitment to promptly decide the large volume of immigration cases, this rule amends the agency's regulations relating to the organization of OCIJ to allow the Director of EOIR to designate or select, with the approval of the Attorney General, one or more temporary immigration judges.

EOIR is currently managing the largest caseload the immigration court system has ever seen. Due to attrition in the immigration judge corps and continuing budgetary restrictions, the Department believes that the designation of temporary immigration judges will provide an appropriate means of flexibility in responding to the increased challenges facing the immigration courts.

An issue of continuing concern to the Department is EOIR's pending caseload in the immigration courts. At the end of FY 2013, there were 350,330 cases pending at the immigration courts, marking an increase of 22,901 cases pending above those at the end of FY 2012. See 2013 EOIR Stat. Y.B. W1. 2 Of those, 38 percent were received prior to FY 2012. Id. As DHS continues its obligation to enforce the immigration laws of the United States, EOIR anticipates that its caseload will continue to increase, especially as DHS continues to use new technologies to increase efficiencies in the identification, apprehension, detention, and removal of aliens.

Even without a continually increasing caseload, the dockets currently handled by the immigration judge corps are substantial. At the end of FY 2013, 350,330 pending cases were being handled by approximately 250 immigration judges, averaging 1,401 matters per immigration judge. 3 By comparison, a recent study indicated that judges for the Board of Veterans' Appeals hear approximately 700 cases each year per judge and Social Security Administration administrative law judges decide approximately 500 cases each year per judge. 4 There is a particular need to assist EOIR's larger courts, namely New York, NY; Los Angeles, CA; San Antonio, TX; San Francisco, CA; Pearsall, TX, which received 43 percent of all asylum applications (15,661) filed with the immigration courts in FY 2013. See 2013 EOIR Stat. Y.B. J3. EOIR must be poised to handle not only its routine workload, but also emergency or special situations, such as a sudden influx of asylum seekers.

In response to increases in immigration court workload and DOJ priorities, EOIR undertook a major initiative that resulted in the hiring of more than 50 new immigration judges during FY 2010 and through the second quarter of FY 2011. However, as of June 2014, attrition and budgetary restrictions resulted in a net increase of only 13 immigration judges since FY 2009. The Department believes that the designation of temporary immigration judges will provide an appropriate means of responding to the increasing pending caseload in the immigration courts. While the designation of temporary immigration judges is not a substitute for the ongoing need to hire additional permanent immigration judges, designation of temporary immigration judges should improve EOIR's ability to adjudicate cases in a timely manner.

OCIJ provides overall program direction, articulates policies and procedures, and establishes priorities for the immigration courts. The Chief Immigration Judge will continue to monitor caseload volume, trends, and geographic concentration and will adjust resources accordingly. Where appropriate, temporary immigration judges could be assigned to a discrete category of cases, such as motions and bond proceedings, freeing up permanent immigration judge time to adjudicate more complicated removal cases and increase the number of matters EOIR could bring to a final disposition. From FY 2009 to FY 2013, approximately 70 percent of the cases before the immigration courts were completed without the alien applying for relief from removal. Bond-related matters, however, have increased by 12 percent from FY 2009 (51,584) to FY 2013 (57,699), along with a 104 percent increase in motions for change of venue and a 161 percent increase in case transfers over the same period. See 2013 EOIR Stat. Y.B. 11, A7.

However, to ensure the flexibility necessary to address record caseloads and to handle exigent circumstances, this rule would not limit the assignment of temporary immigration judges in the type of cases they may adjudicate, except as otherwise provided by the Chief Immigration Judge, per the authority granted in 8 CFR 1003.9 and in this interim rule. As discussed below, the Chief Immigration Judge will be responsible for ensuring that each temporary immigration judge has the necessary training, experience, and skills to properly adjudicate the matters assigned.

This rule amends EOIR's regulations at 8 CFR 1003.10 by adding a new paragraph (e). The amendments will allow the Director of EOIR to designate or select, with the approval of the Attorney General, former Board members, former immigration judges, administrative law judges employed within or retired from EOIR, and administrative law judges from other Executive Branch agencies to act as temporary immigration judges for renewable six-month terms. Administrative law judges from other agencies must have the consent of their agencies to be designated as temporary immigration judges. In addition, the Director of EOIR will be able to designate, with the approval of the Attorney General, attorneys who have at least 10 years of legal experience in the field of immigration law and are currently employed by the Department of Justice to act as temporary immigration judges for renewable six-month terms. The 10 years of experience must be gained after admission to the bar and may be gained through employment by the federal, state, or local government, the private sector, universities, non-governmental organizations, or a combination of such experience. In order to allow greater flexibility, the rule does not specify particular titles or job descriptions for Department attorneys with 10 years of immigration law experience. Accordingly, attorneys at the Department with 10 years of immigration law experience may qualify for designation as temporary immigration judges.

In evaluating candidates for designation as a temporary immigration judge, EOIR anticipates that it will generally employ the same selection criteria and process it applies with respect to the hiring of permanent immigration judges. Characteristics that would qualify a candidate for designation as a temporary immigration judge include the ability to demonstrate the appropriate temperament to serve as a judge; knowledge of immigration laws and procedures; substantial litigation experience, preferably in a high-volume context; experience handling complex legal issues; experience conducting administrative hearings; and knowledge of practices and procedures. Designation of such individuals will help ensure efficiency in the adjudication of removal cases and preserve the integrity of the overall process, without sacrificing fairness and due process. As is the case for all immigration judges, EOIR provides a process for the filing and consideration of complaints.

Among EOIR's 2008-2013 strategic goals and objectives was the goal to provide for a workforce that is skilled, diverse, and committed to excellence, and that exhibits the highest standards of integrity. It is important that those who appear before EOIR's tribunals have trust in the agency and in the work that it does. EOIR is committed to providing training to new and experienced immigration judges, including temporary immigration judges.

EOIR will provide the training necessary for temporary immigration judges to perform the assigned duties. The Chief Immigration Judge may choose to specify particular types of matters for which each temporary immigration judge will be assigned, consistent with the individual's training and experience. Each judge will be supervised by the Assistant Chief Immigration Judge assigned to the local immigration court where the temporary immigration judge will be assigned. The Assistant Chief Immigration Judge will be available as an additional source of assistance and guidance, and will be responsible for conducting periodic reviews of the temporary immigration judge's performance and reporting his or her findings to the Chief Immigration Judge.

EOIR also ensures that immigration judges receive continuing education. For instance, in addition to new immigration judge training, EOIR held mandatory Immigration Judge Legal Training Conferences in 2009 and 2010 and Immigration Judge Legal Training Programs in 2011, 2012, and 2013. This training covered many substantive immigration legal issues, including those relating to asylum, criminal matters, bond, adjustment of status, and a variety of other topics. The training also provided information on subjects ranging from immigration cases involving unaccompanied alien children and respondents with mental competency issues to immigration fraud and courtroom management. Immigration Judge Legal Training Programs were recorded and will be available to temporary immigration judges.

OCIJ maintains an Immigration Judge Benchbook. The Benchbook includes scripts, introductory guides, checklists, worksheets, and sample orders as well as links to a number of immigration-related legal resources. OCIJ also maintains an Immigration Court Practice Manual, a comprehensive guide that sets forth uniform procedures, recommendations, and requirements for practice before the immigration courts. Additional resources for immigration judges are available through EOIR's virtual law library, which includes BIA decisions, circuit court decisions, regulations, and country-specific information.

Given the many training options and resources available to immigration judges, EOIR will provide training as necessary for the performance of each temporary immigration judge's assigned duties.

This rule is exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date because, as an internal delegation of authority, it relates to a matter of agency organization, procedure, or practice. See 5 U.S.C. 553(b). The Department is nonetheless promulgating this rule as an interim rule with opportunity for post-promulgation comment. This will provide the public with an opportunity for comment before the Department issues a final rule on these matters.

Under the Regulatory Flexibility Act (RFA), “[w]henever an agency is required by section 553 of [the RFA], or any other law, to publish general notice of proposed rulemaking for any proposed rule . . . the agency shall prepare and make available for public comment an initial regulatory flexibility analysis.” 8 U.S.C. 603(a). Such analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). Because this is a rule of internal agency organization and therefore is exempt from notice and comment rulemaking, no RFA analysis under 5 U.S.C. 603 is required for this rule.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

The Department has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and the Office of Management and Budget has concurred in this determination. Nevertheless, the Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits, including consideration of potential economic, environmental, public health, and safety effects, distributive impacts, and equity. The benefits of this interim rule include providing the Department with an appropriate means of responding to current and future increases or surges in the number, size, or type of immigration court matters. The public will benefit from the designation of temporary immigration judges because such designations will help EOIR better accomplish its mission of adjudicating cases in a timely manner. Temporary immigration judges will receive appropriate training and supervision for this role. This rule will not have a substantial economic impact on Department functions to the extent that individuals who may act as temporary immigration judges are already employed by the Department. The Department does not foresee any burdens to the public or the Department.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Department has determined that this rule does not have sufficient federalism implications to warrant preparation of a federalism summary impact statement.

This rule has been prepared in accordance with the standards in sections 3(a) and 3(b)(2) of Executive Order 12988.

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this interim rule because there are no new or revised recordkeeping or reporting requirements.

This action pertains to agency management and personnel and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (CRA) (Subtitle E of the Small Business Regulatory Enforcement Fairness Act (SBREFA)), 5 U.S.C. 804(3). Therefore, the reports to Congress and the Government Accountability Office specified by 5 U.S.C. 801 are not required.

Accordingly, for the reasons stated in the preamble, the Attorney General amends part 1003 of chapter V of title 8 of the Code of Federal Regulations as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on March 3, 2014 (79 FR 11722). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We considered the comments received.

RR requested that we define the failure mode as IP turbine disc drive arm failure and multiple IP turbine blade release to be consistent with descriptions in the RR service bulletin and the European Aviation Safety Agency (EASA) AD.

We disagree. EASA AD 2013-0190, dated August 20, 2013, states that the failure mode is multiple turbine blade failures or HP/IP turbine disc burst. We did not change this AD.

RR requested that we modify the compliance date to be consistent with the compliance date required in EASA AD 2013-0190, dated August 20, 2013.

We disagree. EASA AD 2013-0190, dated August 20, 2013 required compliance by December 31, 2018. We proposed compliance at next shop visit or December 31, 2018, whichever comes first, to achieve more timely mitigation of the unsafe condition. We did not change this AD.

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

We estimate that this AD affects about 72 engines installed on airplanes of U.S. registry. We also estimate that it will take about 1 hour per engine to comply with this AD. The average labor rate is $85 per hour. There are no required parts. Based on these figures, we estimate the cost of this AD on U.S. operators to be $6,120.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on March 21, 2014 (79 FR 15707). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We considered the comment received.

UTair Aviation JSC requested that we mandate incorporation of P&WC Service Bulletins (SBs) PW100-72-21841, Revision No. 1, dated November 29, 2013; and PW100-72-21848, Revision No. 1, dated November 15, 2013, in the AD. The commenter suggested that incorporation by reference of these SBs would improve safety compared to the compliance proposed in the NPRM (79 FR 15707, March 21, 2014).

We disagree. We note that prior to implementation of these SBs, an operator would need to remove the affected O-ring seals, which would fulfill the requirements of this AD. We do not find that requiring accomplishing these service bulletins through incorporation by reference in this AD is necessary. We did not change this AD.

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed.

We estimate that this AD affects about 150 engines installed on airplanes of U.S. registry. We also estimate that it would take about 2.5 hours per engine to perform the inspection or replacement required by this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $31,875.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

On October 31, 2013, we issued AD 2013-22-23, Amendment 39-17655 (78 FR 68357; November 14, 2013). That AD required actions intended to address an unsafe condition on AERMACCHI S.p.A. Models F.260, F.260B, F.260C, F.260D, F.260E, F.260F, S.208, and S.208A airplanes equipped with a Lycoming O-540, IO-540, or AEIO-540 (depending on the airplane configuration) wide cylinder flange engine with a front crankcase mounted propeller.

AD 2013-22-23 (78 FR 68357; November 14, 2013) was based on mandatory continuing airworthiness action (MCAA) by the State of Design of these products. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No.: 2012-0228R1, dated November 13, 2012, to address the above situation. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2013-0939.

Since we issued AD 2013-22-23 (78 FR 68357; November 14, 2013), we determined the unsafe condition does not exist specific to the airplane design features. We will evaluate this condition at the engine level, and we may take rulemaking action in the future.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is specific to the engine design feature rather than the specific airplane design feature. We will evaluate this condition further and may take rulemaking action in the future.

This AD rescinds AD 2013-22-23, Amendment 39-17655 (78 FR 68357; November 14, 2013).

Since we issued AD 2013-22-23 (78 FR 68357; November 14, 2013), we determined the unsafe condition does not exist specific to the airplane design features. We will evaluate this condition at the engine level, and we may take rulemaking action in the future. Therefore, we find that notice and opportunity to comment prior to adoption of this rule are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

Although this is a final rule that was not preceded by notice and an opportunity for public comment, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2013-0939 and Directorate Identifier 2013-CE- 043-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

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

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

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

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

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

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

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

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

On June 10, 2014, we issued Emergency AD 2014-12-52, which requires, before further flight, a review of the engine logbook maintenance records to determine if any affected engines are installed. Emergency AD 2014-12-52 also required for two-engine airplanes or for three-engine airplanes, that have two or more engines installed with LPT2 blades installed that have less than 250 operating hours since new, remove all affected engines before further flight. Emergency AD 2014-12-52 was sent previously to all known U.S. owners and operators of these TFE731-4, -4R, -5AR, -5BR, -5R, -20R, -20AR, -20BR, -40, -40AR, -40R, -40BR, -50R, and -60 turbofan engines. This action was prompted by reports of LPT2 blade separations. Analysis indicates the presence of casting anomalies at or near the root of the LPT2 blade. This condition, if not corrected, could result in LPT2 blade failure, multiple engine in-flight shutdowns, and damage to the airplane. We are superseding Emergency AD 2014-12-52 to clarify the intent of paragraphs (e) and (f) of this AD.

We reviewed Honeywell Alert Service Bulletin (ASB) No. TFE731-72-A3792, dated June 5, 2014; ASB No. TFE731-72-A5242, dated June 5, 2014; and ASB No. TFE731-72-A5243, dated June 5, 2014. The service information describes procedures for identifying affected engines and follow-on actions.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires, before further flight, a review of the engine logbook maintenance records to determine if any affected engines are installed. If any affected engines are installed, then this AD prohibits operation of an airplane with two or more affected engines that have LPT2 blades with less than 250 operating hours since new.

Paragraphs (e)(2) and (e)(3) of this AD require that certain affected engines be removed before further flight. Honeywell ASB No. TFE731-72-A3792, dated June 5, 2014; ASB No. TFE731-72-A5242, dated June 5, 2014; and ASB No. TFE731-72-A5243, dated June 5, 2014, for airplanes having only one affected engine installed, require no action at this time and may continue operation.

We consider this AD to be an interim action. We anticipate that further AD action will follow.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of compliance requirement before further flight. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0386; Directorate Identifier 2014-NE-09-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD affects 50 engines installed on airplanes of U.S. registry. We also estimate that it will take about 18 hours per engine to comply with this AD. The average labor rate is $85 per hour. Required parts cost about $0 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $76,500.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the, associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979) ; and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:

As part of the June 20, 2014 Federal Register (79 FR 35282) final rule amendatory text, the Department erroneously removed “22 CFR 34.7(a)(7)”, which does not exist. The Department's intent, however, was to remove 22 CFR 34.10(a)(7), for the reasons explained in the prior document. This document corrects that error.

For the reasons stated in the preamble, 22 CFR part 34 is amended as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. The Coast Guard received notice on April 7, 2014 that the Renaissance Man Triathlon is planned to take place on July 13, 2014. The swimming portion of this event will take place on the Tennessee River from mile 256.0 to mile 257.5. Upon reviewing the details of this event, the Coast Guard determined that a special local regulation is necessary during the event's swimming portion, taking place on the Tennessee River. Completing the full NPRM process is contrary to the public interest as it would delay the additional safety measures necessary to protect participants and event personnel from the possible marine hazards present during the swimming portion of this event. The event has been advertised and is planned by the local community. Delaying the special local regulation would also unnecessarily interfere with the planned event and with the potential to affect contractual obligations of the event sponsors.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Providing a full 30 days' notice and delaying the effective date for this special local regulation would be impracticable because immediate action is necessary to protect event participants from the possible marine hazards present during this swimming event.

The swim portion of the Renaissance Man Triathlon takes place on the Tennessee River from mile markers 256.0 to 257.5. The Coast Guard determined that a temporary special local regulation is needed to protect the 300 participants in the Renaissance Man Triathlon during the swimming portion. The legal basis and authorities for this rulemaking establishing a special local regulation are found in 33 U.S.C. 1233, which authorizes the Coast Guard to establish and define special local regulations. The COTP Ohio Valley is establishing a special local regulation for the waters of the Tennessee River, beginning at mile marker 256.0 and ending at 257.5 to protect the participants in the swimming portion of the Renaissance Man Triathlon. Entry into this area is prohibited unless specifically authorized by the COTP Ohio Valley or designated representative.

The COTP Ohio Valley is establishing a special local regulation for the waters of the Tennessee River, beginning at mile marker 256.0 and ending at 257.5, during the swimming portion of the Renaissance Man Triathlon. During this event, vessels shall not enter into, depart from, or move within the regulated area without permission from the COTP Ohio Valley or his authorized representative. Persons or vessels requiring entry into or passage through the regulated area must request permission from the COTP Ohio Valley, or a designated representative. Sector Ohio Valley may be contacted on VHF-FM Channel 13 or 16, or 1-800-253-7465. This rule is effective from 5:00 a.m. to 10:30 a.m. July 13, 2014. The COTP Ohio Valley will inform the public through Broadcast Notices to Mariners (BNM) of the enforcement period for the special local regulation as well as any changes in the planned schedule.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order.

This special local regulation restricts transit on the Tennessee River from mile marker 256.0 through 257.5 and covers a period of five and one half hours, from 5:00 a.m. to 10:30 a.m. on July 13, 2014. Due to its short duration and limited scope, it does not pose a significant regulatory impact. BNMs will also inform the community of this special local regulation so that they may plan accordingly for this short restriction on transit. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted area or deviated from this regulation. Requests to deviate from this regulation will be considered on a case-by-case basis.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit mile marker 256.0 to 257.5 on the Tennessee River, from 5:00 a.m. to 10:30 a.m. on July 13, 2014. The special local regulation will not have a significant economic impact on a substantial number of small entities because this rule will be in effect for a short period of time. BNMs will also inform the community of this special local regulation so that they may plan accordingly for this short restriction on transit. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted area.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

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

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

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves establishing a temporary special local regulation to protect the participants in the swimming portion of the Renaissance Man Triathlon on the Tennessee River from mile markers 256.0 to 257.5 for five and one half hour period on one day.

An environmental analysis was performed during the marine event permit process for the swimming event and a checklist and a categorical exclusion determination are not required for this special local regulation.

For the reasons discussed in the preamble, the U.S. Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard will enforce the Special Local Regulation for the annual “Music City Triathlon” listed in 33 CFR 100.801 Table 1, Sector Ohio Valley, No. 16 on July 27, 2014 from 6:00 a.m. until 9:30 a.m.

Under the provisions of 33 CFR 100.801, entry into the regulated area listed in Table 1, Sector Ohio Valley, No. 16 is prohibited unless authorized by the Captain of the Port or a designated representative. Persons or vessels desiring to enter into or passage through the Special Local Regulation must request permission from the Captain of the Port or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the Captain of the Port or designated representative.

This notice is issued under authority of 5 U.S.C. 552(a), and 33 U.S.C. 1233. In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via Local Notice to Mariners and Marine Information Broadcasts.

If the Captain of the Port Ohio Valley or Patrol Commander determines that the Special Local Regulation need not be enforced for the full duration stated in this notice of enforcement, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

The Seattle Department of Transportation has requested a temporary deviation from the operating schedule for the University Bridge, mile 4.3, across the Lake Washington Ship Canal at Seattle, WA. The requested deviation is to allow King County Metro Transit to perform essential maintenance on the University Bridge. The plan is to re-cable all the metro trolley lines on the bridge. To facilitate this maintenance period, the draws of the bridge will be maintained in the closed-to-navigation position on July 11th, 12th, and 13th, 2014 from 10 p.m. to 8 a.m. the following morning, then again on the 18th, 19th, and 20th, 2014 from 10 p.m. to 8 a.m. the following morning. Vessels which do not require bridge openings may continue to transit beneath the bridge during the closure periods. The University Bridge, mile 4.3, provides a vertical clearance of 30 feet in the closed position; clearances are referenced to the mean water elevation of Lake Washington. The current operating schedule for the bridge is set out in 33 CFR 117.1051. The normal operating schedule for the University Bridge states that the bridge need not open from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m. Monday through Friday for vessels less than 1000 tons. The normal operating schedule for the bridge also requires one hour advance notification for bridge openings between 11 p.m. and 7 a.m. daily. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft. Vessels able to pass through the bridge in the closed positions may do so at anytime. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

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

I. Does this action apply to me?

A list of potentially affected entities is provided in the April 30, 2014 Federal Register document. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In the April 30, 2014 Federal Register document, EPA amended the labeling regulations for pesticide products and devices intended solely for export to allow placement of required information on collateral labeling attached to a shipping container of such products rather than on the label of each individual product in such a shipment by direct final rule. In accordance with the procedures described in the April 30, 2014 Federal Register document, EPA is withdrawing the direct final rule, because the Agency received adverse comments, copies of which are available in the docket. Elsewhere in this Federal Register , EPA is proposing a rule to seek public comment on the labeling regulations and the issues raised by the adverse comments received.

To access the docket, please go to http://www.regulations.gov and follow the online instructions using the docket ID number EPA-HQ-OPP-2009-0607. Additional information about the Docket Facility is also provided under ADDRESSES in the April 30, 2014 Federal Register document. If you have questions, consult the person listed under FOR FURTHER INFORMATION CONTACT.

EPA finds that there is “good cause” under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) to withdraw the rule discussed in this document without prior notice and comment. For this document, notice and comment is impracticable and unnecessary because EPA is under a time limit to publish this withdrawal. It was determined that this document is not subject to the 30-day delay of effective date generally required by 5 U.S.C. 553(d). This withdrawal must become effective prior to the effective date of the rule being withdrawn.

This document withdraws regulatory requirements that have not gone into effect. As such, the Agency has determined that this withdrawal will not have any adverse impacts, economic or otherwise. The statutory and Executive Order review requirements applicable to the rule being withdrawn were discussed in the April 30, 2014 Federal Register document. Those review requirements do not apply to this action because it is a withdrawal and does not contain any new or amended requirements.

Pursuant to the CRA (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Section 808 of the CRA allows the issuing agency to make a rule effective sooner than otherwise provided by CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. As required by 5 U.S.C. 808(2), this determination is supported by a brief statement in Unit IV.

This document announces that on June 9, 2014, OMB approved, for a period of three years, the information collection requirements contained in 47 CFR 2.803(c)(2). The Commission publishes this document to announce the effective date of this rule section. See, In the Matter of Promoting Expanded Opportunities for Radio Experimentation and Market Trials under Part 5 of the Commission's Rules and Streamlining Other Related Rules, ET Docket No. 10-236; and 2006 Biennial Review of Telecommunications Regulations—Part 2 Administered by the Office of Engineering and Technology ET Docket Nos. 06-155, FCC 13-15, 78 FR 25138, April 29, 2013.

As required by the Paperwork Reduction Act of 1995, (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on June 9, 2014, for the information collection requirement contained in 47 CFR 2.803(c)(2). Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB Control Number.

The OMB Control Number is 3060-0773 and the total annual reporting burdens for respondents for this information collection are as follows:

OMB Control Number: 3060-0773.

OMB Approval Date: 6/9/2014.

OMB Expiration Date: 6/30/2017.

Title: Section 2.803 Marketing of RF Devices Prior to Equipment Authorization.

Form Number: Not applicable.

Type of Review: Revision of a currently approved collection.

Respondents: Businesses or other for-profit.

Number of Respondents: 10,000 respondents; 10,000 responses.

Estimated Time per Response: 0.5 hours.

Frequency of Response: One time reporting requirement and third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 154(i), 302, 303, 303(r), and 307.

Total Annual Burden: 5,000 hours.

Total Annual Costs: N/A.

Nature and Extent of Confidentiality: There is no need for confidentiality.

Privacy Act Impact Assessment: N/A.

Needs and Uses: On January 31, 2013, the Commission adopted a Report and Order, ET Docket Nos. 10-236 and 06-155, FCC 13-15, which revised the rules in § 2.803(c)(2) to include limited marketing activities prior to equipment authorization.

The Commission has established rules for the marketing of radio frequency (RF) devices prior to equipment authorization under guidelines in 47 CFR 2.803. The general guidelines in § 2.803 prohibit the marketing or sale of such equipment prior to a demonstration of compliance with the applicable equipment authorization and technical requirements in the case of a device subject to verification or Declaration of Conformity without special notification. Section 2.803(c)(2) permits limited marketing activities prior to equipment authorization, for devices that could be authorized under the current rules; could be authorized under waivers of such rules that are in effect at the time of marketing; or could be authorized under rules that have been adopted by the Commission but that have not yet become effective. These devices may be not operated unless permitted by § 2.805.

The following general guidelines apply for third party notifications: (a) A RF device may be advertised and displayed at a trade show or exhibition prior to a demonstration of compliance with the applicable technical standards and compliance with the applicable equipment authorization procedure provided the advertising and display is accompanied by a conspicuous notice specified in §§ 2.803(c) (2)(iii)(A) or 2.803(c)(2)(iii)(B).

(b) An offer for sale solely to business, commercial, industrial, scientific, or medical users of an RF device in the conceptual, developmental, design or pre-production stage prior to demonstration of compliance with the equipment authorization regulations may be permitted provided that the prospective buyer is advised in writing at the time of the offer for sale that the equipment is subject to FCC rules and that the equipment will comply with the appropriate rules before delivery to the buyer or centers of distribution.

(c) Equipment sold as evaluation kit may be sold to specific users with notice specified in § 2.803(c)(2)(iv)(B).

The information to be disclosed about marketing of the RF device is intended:

(1) To ensure the compliance of the proposed equipment with Commission rules; and

(2) To assist industry efforts to introduce new products to the marketplace more promptly.

The information disclosure applies to a variety of RF devices that:

(1) Is pending equipment authorization or verification of compliance;

(2) May be manufactured in the future;

(3) May be sold as kits; and

(4) Operates under varying technical standards.

The information disclosed is essential to ensuring that interference to radio communications is controlled.

This is a summary of the Commission's Report and Order ( R&O ), WT Docket No. 12-269; Docket No. 12-268; FCC 14-63, adopted May 15, 2014 and released June 2, 2014. The full text of this document is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com ; or by calling (800) 378-3160, facsimile (202) 488-5563, or email FCC@BCPIWEB.com . Copies of the R&O also may be obtained via the Commission's Electronic Comment Filing System (ECFS) by entering the docket number WT Docket No. 12-269. Additionally, the complete item is available on the Federal Communications Commission's Web site at http://www.fcc.gov .

1. In the R&O the Commission updates its spectrum screen for its competitive review of proposed secondary market transactions to reflect current suitability and availability of spectrum for mobile wireless services. It adds to its spectrum screen: 40 megahertz of AWS-4; 10 megahertz of H Block; 65 megahertz of AWS-3 (when it becomes available on a market-by-market basis); 12 megahertz of BRS; 89 megahertz of EBS; and the total amount of 600 MHz spectrum auctioned in the Incentive Auction. It subtract from its spectrum screen: 12.5 megahertz of SMR; and 10 megahertz that was the Upper 700 MHz D Block. The Commission establishes a market-based spectrum reserve of up to 30 megahertz in the Incentive Auction in each license area to ensure against excessive concentration in holdings of low-band spectrum and ensuring that all bidders bear a fair share of the cost of the Incentive Auction. It adopts limits on secondary market transactions of 600 MHz spectrum licenses for six years post-auction. It declines to adopt auction-specific limits for AWS-3. It treats certain further concentrations of below-1-GHz spectrum as an enhanced factor in its case-by-case analysis of the potential competitive harms posed by individual transactions.

2. The Commission has long recognized that “spectrum is an input in CMRS markets,” and that “the state of control over the spectrum input is a relevant factor” in its competitive analysis. Ensuring that sufficient spectrum is available for multiple existing mobile service providers as well as potential entrants is crucial to promoting consumer choice and competition throughout the country, including in rural areas, and is similarly crucial to fostering innovation in the marketplace. For these reasons, Congress directed the Commission to proactively “include safeguards to protect the public interest” when specifying the classes and characteristics of licenses and permits to be issued by competitive bidding, and to “promot[e] economic opportunity and competition and ensur[e] that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses[.]” In order for there to be robust competition, multiple competing service providers must have access to or hold sufficient spectrum to be able to enter a marketplace or expand output rapidly in response to any price increase or reduction in quality, or other change that would harm consumer welfare. Consistent with the Commission's statutory mandate, the fundamental goal that has guided its policies regarding mobile spectrum holdings has been the preservation and promotion of competition, which in turn, enables consumers to make choices among numerous service providers and leads to lower prices, improved quality, and increased innovation.

3. Since the Commission's last comprehensive review of its mobile spectrum holdings policies more than a decade ago, the marketplace for mobile wireless services has evolved significantly—both in consumer demand for services and market structure—as has the role of low-band spectrum for coverage purposes and high-band spectrum for capacity purposes in the deployment of providers' networks. As providers deploy next-generation mobile networks, the engineering properties and deployment capabilities of the mix of particular spectrum bands in providers' holdings have become increasingly important, particularly as multi-band phones allow users to take advantage of the different properties of different spectrum bands. Moreover, while the mobile wireless marketplace a decade ago consisted of six near-nationwide providers and a substantial number of regional and small providers, since then, there has been a significant degree of consolidation resulting in a market with four nationwide providers and a smaller number of regional and more local service providers.

4. Reflecting this evolution in the mobile wireless marketplace, the Commission, in recent years, has considered in more detail the technical distinctions among spectrum bands used to deploy next-generation mobile networks. The Commission adopted mobile spectrum holdings policies in this rulemaking that address how the differences among spectrum bands may affect its overall competitive analysis of spectrum acquisitions and therefore its decision making for both auctions and secondary market transactions.

5. In adopting these policies, the Commission is mindful that the statutory framework established by Congress for mobile wireless services and implemented by the Commission, with its reliance on competition as the primary driver of consumer benefits, has fostered substantial economic growth and consumer benefits for its nation. Among other goals, Congress has directed us as well to promote the “efficient and intensive use of the electromagnetic spectrum” and avoid an “excessive concentration of licenses” in the design of systems of competitive bidding, as well as to review transactions to ensure that they serve the public interest.

6. Consistent with the evolution of the marketplace and the Commission's statutory directives and policy goals, and in light of the evolution of wireless services demanded by consumers, the Commission must ensure that multiple service providers have access to spectrum in the foreseeable future. Existing marketplace conditions, including concerns about the potential for anticompetitive behavior, inform its predictive judgment but are not determinative as to whether the Commission needs to act. The mobile spectrum holdings policies the Commission adopted are necessary to preserve and promote consumer choice and competition among multiple service providers, promote the efficient and intensive use of spectrum, maximize economic opportunity, and foster the deployment of innovative technologies.

7. During the past decade, provider supply and consumer demand for wireless services has exploded, moving from the provision of mobile voice services to the provision of mobile broadband services. The rapid adoption of smartphones, tablet computers, mobile applications, and increasing deployment of high-speed 3G and now 4G technologies, is driving significantly more intensive use of mobile networks. In 2013, a single smartphone generated 48 times more mobile data traffic than a feature phone, and average smartphone usage grew 50 percent in 2013. The adoption of smartphones increased from 27 percent to 54 percent of U.S. subscribers from December 2010 to December 2012. Consequently, service providers generally need access to more spectrum to meet the increasing demand for mobile broadband, which consumes far greater amounts of bandwidth than did mobile phones just a short time ago.

8. The wireless industry has also undergone significant consolidation during the past decade. In 2003, there were six nationwide facilities-based wireless service providers: AT&T Wireless, Sprint PCS, Verizon Wireless, T-Mobile, Cingular Wireless, and Nextel. Now there are four—Verizon Wireless, AT&T, Sprint, and T-Mobile. In addition, there have been several significant spectrum-only transactions, such as AT&T-Qualcomm (2011), Verizon Wireless-SpectrumCo (2012), and AT&T WCS (2012) that have resulted in increased spectrum aggregation among the remaining providers.

9. Concentration in the market share of the major providers has also increased during that time period. As of December 2003, the top six facilities-based nationwide providers accounted for approximately 79 percent of total mobile wireless subscribers in the country. By December 2013, the top four facilities-based nationwide providers had increased their combined market share to 97 percent of all subscribers. Verizon Wireless and AT&T together accounted for 68 percent of the nation's subscribers as of year-end 2013, compared to 51 percent in 2004. Some regional and local service providers have achieved significant market shares within particular local markets, often the most rural markets, but they typically rely on roaming agreements with nationwide facilities-based providers to extend the geographic reach of their networks.

10. The Commission has “ample latitude to adapt its rules and policies to the demands of changing circumstances.” In light of these trends and current spectrum aggregations, the Commission must examine whether changes in its mobile spectrum holdings policies are necessary to facilitate the robust competition that leads to lower prices, improved quality, and greater innovation. The following are some of the benefits of competition: Service providers have offered various pricing plans, ranging from tiered usage-based data pricing with overage charges (Verizon Wireless, AT&T) to unlimited data pricing (Sprint), and in 2012, both Verizon Wireless and AT&T launched shared data plans for smartphones and other mobile data devices, and T-Mobile reintroduced an unlimited smartphone data pricing option.

11. Based upon the record before us, the Commission finds that the spectrum aggregation limits the Commission adopted is needed to advance its statutory objectives under section 309(j), to promote competition, and to avoid competitive harms. The Commission's competition-related decision making is designed to advance the public interest by preserving and promoting competition that benefits consumers and the Commission must consider the totality of the circumstances and choose policies that are most likely to allow competition to flourish for the public benefit. Accordingly, the Commission recognizes the important tradeoffs in the policy decision at hand. Policies that would limit the ability of major providers to acquire additional spectrum licenses may limit their ability to provide new services or serve new customers. At the same time, policies that would allow these service providers to acquire all or substantially all of the spectrum licenses to be auctioned in the near future, particularly spectrum licenses being auctioned in the Incentive Auction, or that would allow further concentration in below-1-GHz spectrum in secondary market transactions without enhanced scrutiny, would raise significant competitive issues.

12. Raising Rivals' Costs and Foreclosure. In 2001, the Commission recognized that “it is at least a threshold possibility that because the supply of suitable spectrum is limited, firms in CMRS markets might choose to overinvest in spectrum in order to deter entry, depending on the costs of doing so.” In certain situations, a dominant firm may raise rivals' costs by a variety of means, including input monopolization. As rivals' costs are raised, the competiveness of the marketplace is likely to diminish. Foreclosure can occur when competitors have an incentive and ability to acquire an input not only to put it to their own use, but also to withhold it from their rivals.

13. Discussion. In its review of the evolution of the mobile wireless marketplace, its current state, and the potential future effects on consumers, the Commission is required to consider a number of concerns to advance the public interest. Section 309(j) requires the Commission to balance a number of specific statutory objectives including competition, diversity and the avoidance of excessive concentration in designing its rules regarding spectrum licenses and the competitive bidding assignment process. The Commission finds that, under the totality of circumstances, the public interest will be advanced by: Reaffirming the current case-by-case review of proposed transactions, with continued use of a spectrum screen triggered at aggregations of approximately one third or more of the spectrum suitable and available for mobile telephony/broadband; updating the spectrum screen to include spectrum currently suitable and available for mobile telephony/broadband; treating certain levels of increased aggregations of below-1-GHz spectrum as an enhanced factor during case-by-case review of secondary market transactions involving below-1-GHz spectrum; and establishing a market-based spectrum reserve in the upcoming 600 MHz auction.

14. There are three independent bases for its conclusion, each of which the Commission finds warrants the policies the Commission adopted: (1) The importance of access to low-band spectrum to promote variety in licensees and the advancement of rural deployment as directed by Section 309(j), (2) the benefits to consumers associated with robust competition among multiple providers having access to low-band spectrum, and (3) the potential for competitive harm if the Commission does not provide safeguards to mitigate against the possibility of providers raising rivals' costs or foreclosing competition by denying competitors access to low-band spectrum.

15. Its findings are compelled by the changing circumstances posed by the marketplace today: Increased consolidation, the growth in demand for mobile broadband, and the significance of the upcoming 600 MHz auction. First, the Commission recognizes that the mobile wireless marketplace has undergone considerable consolidation, both in terms of number of firms and relative market shares, as well as increased concentration of low-band spectrum. Recent acquisitions have exacerbated this concentration. While limited amounts of low-band spectrum might theoretically be acquired in secondary market transactions, the vast bulk of that spectrum has already been acquired. There is also significantly less low-band spectrum than there is high-band spectrum: after its decisions, there will be 134 megahertz of spectrum below 1 GHz suitable and available for the provision of mobile broadband services and 446.5 megahertz of suitable and available spectrum above 1 GHz. Concentration in spectrum holdings by service providers of low-band spectrum has become particularly pronounced, with Verizon Wireless and AT&T together having aggregated more than 90 percent of all cellular spectrum. In addition, these two service providers together currently hold approximately 72 percent of 700 MHz spectrum. By comparison, variation in spectrum holdings of higher-frequency spectrum in the range of 1 to 2 GHz is more evenly distributed: Of the PCS spectrum, Verizon Wireless holds 16 percent, AT&T holds 29 percent, Sprint holds 28 percent and T-Mobile holds 22 percent; of the AWS-1 spectrum, Verizon Wireless holds 37 percent, AT&T holds 13 percent, and T-Mobile holds 42 percent.

16. Second, its findings are informed by the skyrocketing consumer demand for mobile broadband. Today, consumers are demanding more data at higher speeds, while at home, at work, and in transit. The Commission finds that to provide sufficient level of service in the marketplace to the benefit of consumers, providers will need to deploy more spectrum that can provide both coverage and in-building penetration, as well as spectrum that can provide the increased throughput for mobile broadband applications

17. Third, its findings are based on the recognition that the 600 MHz spectrum that will be made available in the Incentive Auction will be the last offering of a significant amount of nationwide greenfield low-band spectrum for the foreseeable future. This is particularly important because of the very different characteristics of low-band spectrum. There is a large frequency gap between the below-1-GHz spectrum (in the 700 and 800 MHz bands now largely held by the leading providers and the 600 MHz Incentive Auction spectrum) and the remaining spectrum currently suitable and available for mobile broadband use, beginning with the AWS-1 band at 1710 MHz. Low-band spectrum possesses distinct propagation advantages for network deployment, particularly in rural areas and indoors. As a result, the auction of spectrum below 1 GHz presents a once-in-a-generation opportunity to promote competition as specifically required by section 309(j). Based upon current trends in consumer demand for mobile broadband services, the Commission concludes that the decisions the Commission makes here will have a significant impact on the extent to which competition may flourish for years to come.

18. Though there is substantial support in the record for distinguishing between low-band and high-band spectrum based on propagation characteristics, as discussed above, the Commission finds that the record does not support such categorical distinctions between three different spectrum groupings—below-1-GHz, 1-2.2 GHz, and 2.3-2.7 GHz—as recently advocated by Sprint.

19. Variety of Licensees and Rural Deployment. Under Section 309(j), Congress mandated that the Commission designs auctions to “include safeguards to protect the public interest in the use of the spectrum,” including the objectives to disseminate licenses “among a wide variety of applicants” and to promote deployment of new technologies, products, and services to “those residing in rural areas.” The limited restrictions the Commission imposes on spectrum holdings will promote both of these statutory policies. A variety of licensees is particularly important in light of the lack of competitive offerings in rural America today.

20. Increasing the number of providers who have access to low-band spectrum can increase the competitive offerings of mobile wireless service for consumers, particularly in rural areas. Two nationwide providers control the vast majority of low-band spectrum, and this disparity makes it difficult for rural consumers to have access to the competition and choice that would be available if more wireless competitors also had access to low-band spectrum. Low-band spectrum, given its unique propagation characteristics, can serve as a foundation for expansion of an existing network or a new or upcoming service providers' network deployment as it builds a customer base to support further growth. The Commission finds that its spectrum holdings policies will promote variety in licensees and deployment of new technologies to those residing in rural areas.

21. The Commission believes that holding a mix of spectrum bands is advantageous to providers and that consumer's benefit when multiple providers have access to a mix of spectrum bands which in turn can increase competition, drive down prices, and ensure continued innovation and investment. Accordingly, the Commission finds its public interest goal of promoting consumer welfare would be advanced by the policies the Commission adopted.

22. Potential for Competitive Harm From Increased Aggregation of Spectrum. The Commission also finds that in the absence of additional below-1-GHz spectrum on a nationwide basis, there is a substantial likelihood of competitive harm if providers that currently lack sufficient access to such spectrum cannot acquire it. Under section 309(j), the Commission has mandates to promote competition, promote efficient use of spectrum, and avoid the excessive concentration of licenses. Low-band spectrum is less costly to deploy and provides higher coverage quality and the leading providers have most of the low-band spectrum available today. If they were to acquire all or substantially all of the remaining low-band spectrum, they would benefit independently of any deployment of this newly acquired spectrum to the extent that their rivals are denied its use. Without access to this low-band spectrum, their rivals would be less able to provide a competitive alternative.

23. Along with an attenuated ability to increase output or service quality in response to price increases, providers that lack access to low-band spectrum may lack the ability quickly to expand coverage or provide new or innovative services, which would have a significant impact on competition in the mobile wireless marketplace. The Commission agrees that a service provider that is limited to high-band spectrum holdings would face challenges to provide services as robust as those offered by providers holding a mix of low- and high-band spectrum. The consumer harms from the raising of rivals' costs from increased concentration of low-band spectrum outweigh the potential benefits of unlimited spectrum aggregation. Accordingly, the Commission finds that the limited restrictions the Commission adopted will reasonably balance its goals of promoting competition, ensuring the efficient use of spectrum, and avoiding an excessive concentration of licenses in accord with section 309(j).

24. Foreclosure. The Commission agrees with DOJ, today's mobile wireless marketplace is characterized by factors that, according to DOJ, increase the potential for anticompetitive conduct, including high market concentration, highly concentrated holdings of low-band spectrum, high margins, and high barriers to entry. These risk factors increase the incentive and ability for a provider with low-band spectrum to bid for the spectrum in an attempt to stifle competition that may arise if multiple licensees were to hold low frequency spectrum. As a result, such a provider might be the highest bidder in a spectrum auction, not because it will put the spectrum to its highest use, but because it is motivated to engage in a foreclosure strategy. In light of this risk and balancing the inherent tradeoffs, the Commission finds that the limited restrictions the Commission enacted is a reasonable balance of the Section 309(j) and public interest factors that form its statutory mandate, including the goals to promote competition, disseminate licenses among a wide variety of applicants, ensure high quality service to those in rural areas and avoid the excessive concentration of licenses, while also promoting the efficient and intensive use of the spectrum.

25. For the reasons set forth above, spectrum is a limited and essential input for the provision of mobile wireless telephony and broadband services, and ensuring access to, and the availability of, sufficient spectrum is critical to promoting the competition that drives innovation and investment. The Communications Act has long required the Commission to examine closely the impact of spectrum aggregation on competition, innovation, and the efficient use of spectrum to ensure that spectrum is allocated and assigned in a manner that serves the public interest, convenience and necessity, and avoids the excessive concentration of licenses. In recent years, the Commission has considered in more detail and largely in the context of its case-by-case analysis of secondary market transactions how distinctions among spectrum bands affect competition in the provision of next-generation mobile broadband services.

26. In today's marketplace, in many service areas currently suitable and available below-1-GHz spectrum is disproportionately concentrated in the hands of larger nationwide service providers: The two largest providers hold 73 percent of the low-band spectrum. Particularly in the context of the once-in-a-generation Incentive Auction, the Commission finds that there is a reasonably foreseeable risk of not achieving its various section 309(j) goals whether or not leading providers are motivated by foreclosure strategies. The Commission concludes that if the Commission do not act at this time to ensure the highest use of low-band spectrum, the competitive choices available to wireless consumers will likely be substantially less attractive. The Commission therefore finds it essential to establish clear and transparent policies that will preserve and promote competition in the future, promote the efficient use of spectrum, ensure competitive mobile broadband service in rural areas, and avoid an excessive concentration of licenses. The Commission finds that excessive concentration in the allocation of relatively scarce below-1-GHz spectrum, given ever increasing consumer demand for more bandwidth-intensive services, would substantially harm the public interest and indeed, would create a significant risk in the future of an insufficient number of service providers with a network capable of satisfying consumer demand.

27. The Commission finds that the promotion of competition, variety of licensees, rural coverage, and consumer choice in the mobile marketplace, as well as in the future, crucially depends upon multiple providers having access to the low-band spectrum they need to operate and vigorously compete. The Commission also finds that the Commission must consider the potential for anticompetitive results if the concentrated holdings of below-1-GHz spectrum are not addressed. The Commission cannot ignore the possibility of diminished competition in the future, both from rivals' costs being raised and from foreclosure. Further, the Commission finds that the burden that some providers may experience by limits on their ability to acquire increasing amounts of below-1-GHz spectrum, when tailored to the minimum the Commission believed necessary to promote competition, will be outweighed by the public interest benefits that will flow from the preservation and promotion of robust and sustainable competition. By adopting clear and transparent spectrum aggregation limits, the Commission aim to ensure that American consumers have meaningful choices among multiple service providers in the future.

28. The Commission retains the current standard for whether particular bands should be included in the spectrum screen—“suitable” and “available” in the near term for the provision of mobile telephony/broadband services. The Commission determines that the following spectrum should be added to the spectrum screen: The 600 MHz band (at the conclusion of the Incentive Auction), Advanced Wireless Services in the 2000-2020 MHz and 2180-2200 MHz spectrum bands (AWS-4), H Block, additional BRS spectrum, the majority of the EBS spectrum, and the AWS-3 band (on a market-by-market basis as it becomes “available”). The Commission also determines that it should not include the Upper 700 MHz D Block and a certain amount of the SMR spectrum, both of which previously have been included.

29. When assessing spectrum aggregation in its review of wireless transactions, the Commission evaluates the current spectrum holdings of the acquiring firm that are “suitable” and “available” in the near term for the provision of mobile telephony/broadband services. Suitability is determined by whether the spectrum is capable of supporting mobile service given its physical properties and the state of equipment technology, whether the spectrum is licensed with a mobile allocation and corresponding service rules, and whether the spectrum is committed to another use that effectively precludes its uses for mobile services. Spectrum is considered “available” if it is “fairly certain that it will meet the criteria for suitable spectrum in the near term, an assessment that can be made at the time the spectrum is licensed or at later times after changes in technology or regulation that affect the consideration.”

30. In the Mobile Spectrum Holdings NPRM, 77 FR 61330, October 9, 2012, the Commission sought comment on whether to continue to consider spectrum based on the suitability and availability standard or whether to consider other factors and asked for any legal, economic, and engineering justifications to support existing or modified criteria to determine the suitability and availability standard. The Commission also sought comment on the application of the relevant factors to particular spectrum bands and which spectrum bands should be included in the Commission's spectrum analysis.

31. The Commission retains the current definition. The Commission finds that the current suitable and available standard has worked well to identify new spectrum to be included in the spectrum screen, and the record does not provide persuasive evidence to support modifying the current suitability and availability standard. Any narrower definition such as “actually” or “imminently” available would preclude relevant spectrum from being accounted for in its analysis of spectrum aggregation as the Commission review secondary market wireless transactions.

32. The Commission finds that the 600 MHz Band is suitable for the provision of mobile telephony/mobile broadband services. In the Incentive Auction Report and Order, the Commission establishes rules to implement the Incentive Auction and to govern the use of the 600 MHz Band for the provision of mobile wireless services and adopts a band plan that facilitates wireless broadband deployment operations. The Commission also finds that the 600 MHz Band is available for the provision of mobile telephony/mobile broadband services, citing the framework for transitioning incumbent broadcasters from the 600 MHz Band within 39 months of the close of the auction set forth in the Incentive Auction Report and Order. Given this concrete transition framework, the relative clarity regarding the availability of this spectrum, and the importance of this band to the mobile wireless marketplace going forward, the Commission anticipates that the spectrum cleared at auction is likely to begin having a competitive impact very shortly after the auction ends. As a result, the Commission will consider the 600 MHz Band to be available upon the release of the Channel Reassignment PN after conclusion of the Incentive Auction. The amount of repurposed 600 MHz Band spectrum added to the spectrum screen will be equal to the total megahertz amount of spectrum repurposed for flexible use wireless licenses.

33. The Commission finds that the 40 megahertz of spectrum in the AWS-4 band is suitable and available for the provision of mobile/telephony broadband services, and therefore should be included in the spectrum screen. In the AWS-4 Report and Order, the Commission adopted licensing, operating, and technical rules for stand-alone terrestrial mobile wireless operations in the AWS-4 band, which already included an allocation for mobile use, and took other actions to remove regulatory barriers to mobile broadband use of the AWS-4 band, as described above. The Commission also determined that it would assign AWS-4 licenses to DISH, as the incumbent MSS operator in that spectrum, and established a concrete, proven process for efficient relocation of incumbent operations from 2180-2200 MHz. In light of these Commission actions, the Commission finds that the 40 megahertz in the AWS-4 band should be included in the spectrum screen going forward.

34. The Commission rejects argument that it should include only 35 out of the 40 megahertz of AWS-4 spectrum because of the stringent technical restrictions placed on AWS-4 operations in 2000-2005 MHz to protect adjacent operations in the upper portion of the H Block (1995-2000 MHz). Given the flexibility provided in the AWS-4 Report and Order allowing these technical restrictions on AWS-4 operations in 2000-2005 MHz to be modified by commercial agreements between licensees of the AWS-4 band and the H Block, and the fact that DISH now holds all AWS-4 and H Block licenses, the Commission concludes that any potential interference issues between 2000-2005 MHz and 1995-2000 MHz should be sufficiently resolved so that the Commission should count 2000-2005 MHz in the spectrum screen along with the other 35 megahertz of AWS-4 spectrum.

35. The Commission finds that the H Block spectrum is suitable and available for the provision of mobile/telephony broadband services, and therefore should be counted in the spectrum screen. In the H Block Report and Order (78 FR 50214, August 16, 2013), the Commission explained that through the adoption of service rules for this band, the Commission increased the nation's supply of spectrum for flexible-use services, including mobile broadband, and in particular would extend the widely deployed broadband PCS band used by numerous providers to offer mobile service across the United States. The Commission also found that, consistent with the technical rules it adopted, the use of both the 1915-1920 MHz band and the 1995-2000 MHz band can occur without causing harmful interference to broadband PCS downlink operations at 1930-1995 MHz. In light of these conclusions, along with the recent completion of the H Block auction and the fact that incumbent licensees in these bands previously were cleared by UTAM, Inc. and by Sprint, the Commission finds that the H Block should be included in the spectrum screen going forward.

36. The Commission finds that the AWS-3 bands (1695-1710 MHz, 1755-1780 MHz, and 2155-2180 MHz) are suitable for the provision of mobile telephony/mobile broadband services. In the recent AWS-3 Report and Order, the Commission amended the Allocation Table to include a mobile, non-Federal allocation for the 1695-1710 MHz and 1755-1780 MHz bands, which already applied to the 2155-2180 MHz band and found that licensing AWS-3 bands in a combination of 5 and 10 megahertz blocks aligns well with a variety of wireless broadband technologies, including LTE, Wideband Code Division Multiple Access (WCDMA), HSPA, and LTE-advanced. The Commission concluded that pairing uplink/mobile transmit operations in the 1755-1780 MHz band with downlink operations in the 2155-2180 MHz band would be compatible with similar operations in the adjacent AWS-1 band, effectively creating a combined 140 megahertz band. Further, the Commission observed that no regulation would prohibit licensees from pairing the unpaired 1695-1710 MHz uplink band with another present or future licensed downlink band. Given the anticipated use of the AWS-3 bands for mobile broadband service, either as an extension of the AWS-1 band or potentially in combination with other AWS bands, the Commission concludes that the AWS-3 bands are suitable for the provision of mobile telephony/mobile broadband service.

37. The Commission also finds that the AWS-3 bands should be considered available for mobile telephony/mobile broadband services on a market-by-market basis in the future, given that the timing of that access will depend on the nature of the Federal operations affecting each particular market. Commercial operators will have access to the 1755-1780 MHz and 1695-1710 MHz bands outside of areas where federal operations are protected during their transition, inside areas where federal operations are protected during their transition if successfully coordinated with the Federal incumbent, in areas in which the Federal incumbents have relocated pursuant to their Transition Plan, and inside areas in which Federal incumbents are protected indefinitely if successfully coordinated with the Federal incumbent. Accordingly, given that the effect of Federal incumbent operations on the timing and scope of commercial operations will vary from market to market, the Commission determines that the 1755-1780 MHz and 1695-1710 MHz bands will become available on a market-by-market basis in the future. In addition, consistent with the paired offering of the 2155-2180 MHz band with the 1755-1780 MHz band, the Commission will count the 2155-2180 MHz band as available for purposes of the spectrum screen at the same time the Commission counts the 1755-1780 MHz band in the particular market, consistent with its approach to the paired AWS-1 band.

38. The Commission notes that the timing and the extent of access by commercial licensees to the 1755-1780 MHz and 1695-1710 MHz bands in particular markets will depend, in part, on the timelines to be set in the Transition Plans for relocating Federal incumbents, which will be made publicly available. In light of the importance of this band in adding capacity spectrum for mobile wireless providers to deploy next-generation networks, and the timelines to be set in the Transition Plans for different systems in different markets, the Commission will count the 1755-1780 MHz and 1695-1710 MHz bands in the spectrum screen in a particular market once all relocating Federal incumbent systems in that market are within three years of completing relocation, according to the Transition Plans. The Commission notes that the timing and the extent of access by commercial licensees to these AWS-3 bands also will depend on successful coordination with federal systems during the transition process and the Federal systems that will not be relocating from these bands. However, given that the nature and timing of the coordination will be the subject of two-party private discussions between commercial licensees and Federal incumbents and will vary from market to market, from licensee to licensee, and from system to system, the Commission will not base the timing of when the Commission count AWS-3 spectrum to be available in a particular market on the status of coordination with non-relocating Federal incumbents. The Commission notes that the Commission will count the 2155-2180 MHz band in the spectrum screen for a particular market at the same time the Commission counts the 1755-1780 MHz and 1695-1710 MHz bands in that market, for the reasons indicated above.

39. The Commission declines to add to the spectrum screen Big LEO MSS spectrum in the 2483.5-2495 MHz and 1610-1617.775 MHz ranges, noting that Globalstar's ATC authority to operate terrestrial base stations and mobile terminals using this spectrum under the authority of a waiver granted in 2008 was suspended in 2010 and none of these proposed changes have been acted on by the Commission. Thus, the Commission declines to add this Big LEO MSS spectrum to the spectrum screen at this time. The Commission distinguishes this decision from its determination to add to the spectrum screen the AWS-4 band (2000-2020 MHz and 2180-2200 MHz), for which the Commission has taken a number of actions to make the band suitable and available for mobile telephony/mobile broadband. Specifically, for the AWS-4 band, the Commission has added a mobile allocation, adopted licensing rules for stand-alone terrestrial mobile wireless operations, and assigned the spectrum to the incumbent MSS operator, DISH.

40. Background. The 194 megahertz in the 2496-2690 MHz band (2.5 GHz) comprises (1) 73.5 megahertz licensed to commercial operators in the BRS band; (2) 112.5 megahertz licensed to eligible educational institutions or non-profit educational organizations in the EBS band; and (3) 8 megahertz licensed to BRS or EBS as guard bands dividing the lower, middle, and upper band segments of the 2.5 GHz.

41. In 2008, in the Sprint-Clearwire Order, the Commission decided to include in the spectrum screen 55.5 megahertz of BRS spectrum in the upper band segment, in those markets in which the transition to the new band plan was complete. The Commission observed that 2.5 GHz licensees had made substantial progress in the prior few years in transitioning to the new band plan, finalizing the WiMAX standards, developing equipment, and formulating their plans for using the 2.5 GHz band to provide service. The Commission declined to include in the spectrum screen the 12 megahertz of BRS spectrum in the middle band segment (“MBS”) due to concerns of interference from legacy high-power video operations, stating it lacked sufficient information “to determine the extent to which MBS is in fact available for mobile telephony/broadband services.” The Commission also declined to include in the spectrum screen the BRS Channel-1 (2496-2502 MHz), which is not contiguous to the 55.5 megahertz of BRS spectrum that was included, finding that the Channel does not fit into the contemplated WiMAX deployment plans. Further, the Commission excluded from the screen the 8 megahertz of guard bands because they are secondary to adjacent-channel operations and they are too narrow to be used unless they were all aggregated in a market.

42. The Commission currently does not include in the screen any EBS spectrum, which is licensed to eligible educational entities who can lease spectrum to commercial operators subject to the requirement, inter alia, to reserve at least five percent of digital transmission capacity for educational purposes. In the Sprint-Clearwire Order, it declined to include EBS spectrum in the screen, observing that “the primary purpose of EBS is to further the educational mission of accredited public and private schools, colleges and universities providing a formal educational and cultural development to enrolled students through video, data, or voice transmissions.” The Commission noted that, while educational licensees are allowed to lease their excess capacity to commercial operators, leasing is subject to various special requirements designed to maintain the primary educational character of services provided using EBS spectrum. In addition, the Commission recognized that other elements of the EBS licensing regime, such as its solely site-specific character, with the absence of any licensee in various unassigned EBS “white spaces,” complicate use of this spectrum for commercial purposes. Further, the Commission indicated that it was sensitive to the concerns raised by EBS licensees that potential divestitures, in response to spectrum aggregation concerns relating to competition among commercial services, could disproportionately harm EBS licensees.

43. In subsequent transaction reviews, the Commission declined to add EBS or additional BRS spectrum to the spectrum screen, finding either that the circumstances had not sufficiently changed from Sprint-Clearwire Order or that the instant rulemaking proceeding is a more appropriate place to evaluate this issue. In the context of reviewing the SoftBank-Sprint-Clearwire transaction, however, the Commission did consider arguments on the record regarding the competitive effect of Sprint obtaining 100 percent stock ownership in and de facto control of Clearwire's BRS and EBS spectrum holdings, finding competitive harm unlikely.

44. Discussion. The Commission finds that it is necessary to modify the amount of 2.5 GHz spectrum the Commission currently includes in the screen to reflect today's marketplace realities. The Commission will update the spectrum screen to increase the amount of 2.5 GHz spectrum from 55.5 megahertz to 156.5 megahertz. The Commission will add the 12 megahertz in the two MBS BRS channels, as well as 89 megahertz of EBS spectrum, which represents most of the EBS spectrum, adjusted to reflect white space and education use elements. The Commission will continue to exclude the six megahertz in BRS Channel 1 and the guard bands.

45. As an initial matter, the Commission observes that Sprint announced its intent to integrate its 2.5 GHz spectrum throughout its network to provide mobile broadband service. Sprint recently announced its next generation service “Sprint Spark,” an enhanced LTE network, which it plans to deploy over the next three years using its SMR, PCS, and 2.5 GHz spectrum. The Commission finds that based upon how the 2.5 GHz band is being used today, and will be used in the near term; the majority of the band is suitable and available for mobile telephony/mobile broadband services.

46. With respect to BRS spectrum, the Commission finds that, in addition to the 55.5 megahertz currently counted in the screen, the Commission should include 12 megahertz of BRS MBS spectrum. The Commission recognizes that legacy video operations in the MBS, once considered a significant impediment to the deployment of cellularized operations in the MBS, are now no longer a barrier to deploying mobile broadband service in the vast majority of markets. The Commission notes that Sprint recently has acknowledged that BRS MBS channels are “more routinely available” for mobile broadband use. Accordingly, the Commission includes the 12 megahertz of BRS MBS spectrum in the screen.

47. However, the Commission will continue to exclude the 6 megahertz BRS Channel 1 (2496-2502 MHz). The proponents of including BRS Channel 1 in the screen have not demonstrated any material change in circumstances since 2008 with respect to that channel and the Commission acknowledges Sprint's concern that BRS Channel 1 is not contiguous with the other BRS channels and therefore is not conducive to the provision of mobile telephony/mobile broadband service.

48. With respect to EBS spectrum, the Commission declines to continue its policy of excluding all EBS spectrum. Leasing in and of itself does not preclude the spectrum from meeting the suitable and available standard. The Commission does not find that the differences in propagation characteristics between the 2.5 GHz band and lower frequency spectrum should result in its continued exclusion of the 2.5 GHz band from the spectrum screen for purposes of its competitive review. Nor does the Commission agree with Sprint that the aggregation of 20 megahertz of this band is a necessary precursor to counting EBS in the screen. The benefit of contiguous holdings in a band is not a factor unique to EBS spectrum that warrants excluding EBS holdings from the screen in cases where such contiguity is not achieved.

49. Although the Commission finds that EBS spectrum generally is suitable and available for mobile telephony/mobile broadband services, the Commission agrees with Sprint that there are certain factors unique to EBS that warrant not including all of the EBS spectrum in the screen. The Commission will continue to exclude the five percent of the EBS capacity that is reserved for educational uses. The Commission remains committed to EBS spectrum serving educational purposes. Originally, the 2500-2690 MHz band was allocated for ITFS service and “established to provide formal education and cultural development in aural and visual form to students enrolled in accredited public and private schools, colleges and universities.” The Commission continues to support the education mission of accredited public and private schools, colleges, and universities providing a formal educational and cultural development to enrolled students through video, data, or voice transmissions. Therefore, as a starting point, the Commission will include 95 percent, or approximately 107 megahertz, of EBS spectrum in the screen.

50. With EBS spectrum licensed on a site-specific basis, certain areas exist where the Commission has not assigned a license to an educational entity. And no educational entity has been able to apply for a license for an EBS white space since 1995. Therefore, no commercial wireless provider has ever had the opportunity to lease EBS spectrum in that area. Therefore, white spaces can present certain obstacles for providing reliable, wide-area coverage. The Commission finds it reasonable to discount for white space when including EBS spectrum in the screen.

51. Given the complexity of calculating a white space discount on a market-by-market basis, Sprint proposes a uniform, nationwide EBS white space discount for administrative practicability and regulatory certainty. Sprint calculated that across all EBS channels, an average of approximately 16.5 percent of the population is located in EBS white space and therefore proposes to use a 16.5 percent discount. The Commission agrees that a nationwide discount is the best option for applying a white space discount for EBS spectrum and find Sprint's proposal reasonable. While as Verizon Wireless notes, using a nationwide average may in some instances undercount EBS white space in some markets and overcount EBS white space in other markets, the Commission finds that using an average across all markets is a reasonable method, which balances administrative efficiency with the complexity of a precise market-by-market calculation. Thus, after taking the discount into consideration, of the initial 107 megahertz of EBS spectrum, the Commission will include 89 megahertz of EBS spectrum in the screen. As discussed in Section VI.G below, the Commission declines to further weight EBS spectrum, or other spectrum bands, based on propagation characteristics.

52. In light of Congress' reallocation of the Upper 700 MHz D Block spectrum (758-763 MHz, 788-793 MHz) for public safety use—and the subsequent steps taken by the Commission and the Public Safety and Homeland Security Bureau to effectuate the reallocation and licensing of this spectrum for public safety—the Commission finds that the 10 megahertz previously designated as the Upper 700 MHz D Block is no longer suitable and available for the provision of mobile telephony/mobile broadband services. Therefore, going forward, the Commission will exclude from the spectrum screen that 10 megahertz (758-763 MHz, 788-793 MHz) that currently is part of the screen, along with the adjacent public safety broadband spectrum that is also now licensed to FirstNet (763-768 MHz, 793-798 MHz), which was not previously counted in the initial spectrum screen.

53. The Commission notes that, under the Spectrum Act, FirstNet is permitted to provide access to the 20 megahertz of Public Safety Broadband spectrum to commercial entities through certain “covered leasing agreements.” The Commission will not add to the screen any of this spectrum merely because FirstNet has entered into leasing arrangements contemplated by the Act. Deployment of this spectrum is essential to the critical statutory goal of deploying a nationwide interoperable public safety broadband network, and the Commission wants to provide equal incentives to all commercial operators to partner with FirstNet to make this goal a reality.

54. In 2004, the Commission adopted a new band plan for the 800 MHz band to “address the [then] ongoing and growing problem of interference to public safety communications in the 800 MHz band.” The interference problem was caused “by a fundamentally incompatible mix of two types of communications systems: Cellular-architecture multi-cell systems . . . and high-site non-cellular systems.” To provide immediate relief, the Commission implemented technical standards that defined unacceptable interference in the 800 MHz band, while also reconfiguring the band to separate commercial wireless systems from public safety and other high site systems. Pursuant to the band reconfiguration, the Commission eliminated the interleaving of public safety and commercial channels in the 800 MHz band and separated cellularized multi-cell and non-cellularized high-site systems within the band.

55. Under the reconfiguration plan, Nextel (now Sprint) was required to vacate the 806-817 MHz and the 851-862 MHz band segments and relocate to 817-824/862-869 MHz. The Commission had designated the upper portion of the 800 MHz band (817-824 MHz/862-869 MHz) for Enhanced Specialized Mobile Radio (ESMR) systems and designated the lower portion of the 800 MHz band (806-815 MHz/851-860 MHz) for use by public safety, Critical Infrastructure Industries (CII), and other non-cellular systems.

56. The Commission eliminates from inclusion in the screen 7.5 megahertz in the 800 MHz Band because, after the Commission reconfigured the band, that spectrum is no longer licensed for commercial, cellularized operations. The Commission also eliminates the remaining 5 megahertz in the 900 MHz band that is narrowly-channelized in 125 kHz blocks and not adjacent to the remaining 14 megahertz of SMR spectrum that is licensed for and considered suitable and available for the provision of mobile telephony/mobile broadband services. Therefore, going forward, the Commission finds only 14 megahertz of SMR spectrum is suitable and available for the provision of mobile telephony/mobile broadband services and will be included in the screen.

57. The Commission concludes that it is in the public interest, for auctions, to replace the current case-by-case approach of evaluating long form applications of winning bidders with a determination of whether a band-specific spectrum holding limit should apply ex ante to the licensing of particular bands through competitive bidding. In the R&O, the Commission finds that the Commission should determine what if any spectrum holding limitations should affect the licensing of particular bands through competitive bidding before the relevant competitive bidding process begins for that band. The Commission determines certain guidelines that the Commission will consider in making such determinations prior to the beginning of the competitive bidding process for a particular band, which generally will be made in the service rulemakings for those bands, enabling the Commission to take into account all relevant objectives specific to the bands in question and competitive bidding process. Given the proximity of the AWS-3 auction and Incentive Auction, the Commission makes determinations regarding whether to adopt, in the context of this rulemaking, any mobile spectrum holdings limits for the licensing of these bands through competitive bidding. In particular, based on the record in this proceeding and in the two service rulemakings, as well as the statutory goals set forth in the Communications Act and the Spectrum Act, the Commission reserves spectrum in the forward auction for the 600 MHz Band licenses in order to ensure against excessive concentration in holdings of below-1-GHz spectrum, and the Commission declines to adopt any mobile spectrum holding limits for the licensing of the AWS-3 bands through competitive bidding.

58. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on general approaches to address mobile spectrum policies at auction, including whether to retain its current case-by-case approach or adopt a bright-line limit. The Commission also sought comment on the costs and benefits of applying a case-by-case approach to initial licenses acquired at auction and whether it affords participants sufficient certainty to determine whether they would be allowed to hold a given license post-auction.

59. The Commission concludes that it is in the public interest to replace its post-auction case-by-case analysis of the licensing of spectrum bands through competitive bidding with a determination of whether a band-specific mobile spectrum holding limit is necessary to carry out the duties under the Communications Act and, if so, to establish an ex ante application of that limit to the competitive bidding for that band. 1 The Commission finds that upfront, clear determination, instead of case-by-case analysis post-auction, would provide potential bidders with greater certainty in the auction process regarding how much spectrum they would be permitted to acquire at auction. Providing such certainty is consistent with Section 309(j)(3)(E) of the Communications Act, which emphasizes the need for clear bidding rules “to ensure that interested parties have a sufficient time to develop business plans, assess marketplace conditions, and evaluate the availability of equipment for the relevant services.”

60. To the extent that the Commission adopts a mobile spectrum holding limit for the licensing of a particular band through competitive bidding, applying the limit ex ante would provide greater certainty and efficiency in the process of licensing through competitive bidding, which would be particularly important for complex auctions like the Incentive Auction. Upfront, bright-line determinations would streamline the post-auction review of license applications, which should allow winning bidders to receive their licenses more quickly and proceed to deploy service using the acquired spectrum. The application of a mobile spectrum holding limit ex ante would avoid certain challenges in trying to remedy concerns after post-auction competitive review. If the Commission were to make a finding post-auction that the acquisition of spectrum by a winning bidder would be likely to cause competitive harm, it could compel abandonment of the license application or divestiture of the license won at auction, which could create incentives for bidder behavior that would undermine the goals of the auction. Alternatively, divestiture of another license from the bidder's pre-auction spectrum holdings might not address the Commission's competitive concerns with aggregation of the spectrum made available at auction, especially if the spectrum the winning bidder would propose to divest does not have similar characteristics of the spectrum acquired in the auction.

61. The Commission finds that, for competitive review of spectrum licenses acquired through competitive bidding, the benefits of a bright-line ex ante application of a mobile spectrum holding limit to the competitive bidding for those licenses outweigh any costs associated with any perceived loss of flexibility that the existing post-auction review might afford. The Commission notes that a case-by-case review of spectrum licenses acquired through secondary markets continues to be appropriate, as discussed below.

62. The Commission finds that the determination of whether to apply any mobile spectrum holding limits to the licensing of a particular band through competitive bidding, and if so the scope of such limits and policies, should be clearly specified sufficiently in advance of the auction. This approach would afford a prospective bidder sufficient time to develop a bidding strategy based on the mobile spectrum holdings determination adopted for an upcoming auction, while allowing the Commission to consider the unique circumstances of each spectrum band auction when making its determination.

63. The Commission would evaluate a number of factors in considering whether to adopt a mobile spectrum holdings limit for the licensing of a particular band through competitive bidding and, if so, what type of limit to apply. As an initial matter, its evaluation will encompass the “broad aims of the Communications Act,” which include, among other things, preserving and enhancing competition in relevant markets, accelerating private sector deployment of advanced services, and generally managing the spectrum in the public interest. Its determination will help carry out its duties under the Communications Act, serving the public interest. Its public interest analysis in this context also may entail assessing whether a particular auction specific policy will affect the quality of communications services or result in the provision of new or additional services to consumers. Moreover, the Commission must consider any other statutory goals and directives applicable to a particular spectrum band being licensed by competitive bidding.

64. The Commission will consider whether the acquisition at auction of licenses to use a significant portion of spectrum by one or more providers would potentially harm the public interest by reducing the likelihood that multiple service providers would have access to sufficient spectrum to compete robustly in the provision of mobile telephony/mobile broadband service. This determination will be based on several factors, including total amount of spectrum to be assigned, characteristics of the spectrum to be assigned, timing of when the spectrum could be used for mobile telephony/mobile broadband services, the specific rights being granted to licensees of the spectrum, and the extent to which competitors have opportunities to gain access to alternative bands that would serve the same purpose as the spectrum licenses at issue.

65. For the Incentive Auction, the Commission establishes a market-based spectrum reserve of up to 30 megahertz in each license area designed to ensure against excessive concentration in holdings of low-band spectrum—a reserve that includes safeguards to ensure that all bidders bear a fair share of the cost of the Incentive Auction. The market-based reserve balances the need to meet the requirements for concluding the Incentive Auction with the competition goals discussed above.

66. In the Mobile Spectrum Holdings NPRM, the Commission sought comment on whether to adopt limits on the amount of spectrum that entities could acquire in the context of spectrum auctions mandated by the Spectrum Act. In the Incentive Auction NPRM, the Commission sought comment on what, if anything, it should do to meet the statutory requirements of section 309(j)(3)(B) and promote the goals of the Incentive Auction. For instance, the Commission noted that “section 309(j)(3)(B)'s directive to avoid excessive concentration of licenses might militate in favor of a rule that permits any single participant in the auction to acquire no more than one-third of all 600 MHz Band spectrum being auctioned in a given licensed area.”

67. The amount of repurposed spectrum depends on the outcome of the reverse and forward auction components of the Incentive Auction. The reverse and forward auctions will be integrated in a series of stages. Each stage will consist of a reverse auction and a forward auction bidding process. Prior to the first stage, the initial spectrum clearing target will be determined based on broadcasters' collective willingness to relinquish spectrum usage rights at the opening prices offered to them. The first stage reverse auction bidding rounds will determine the total amount of incentive payments necessary in connection with the initial clearing target. The forward auction bidding process will follow. If the final stage rule described below is satisfied, the forward auction bidding will continue until there is no excess demand for 600 MHz Band licenses. If the final stage rule is not satisfied, additional stages will be run, with progressively lower spectrum targets in the reverse auction and less spectrum available in the forward auction until the rule is satisfied.

68. The final stage rule is a reserve price with two components, both of which must be satisfied. The first component requires that the prices for licenses in the forward auction meet or exceed a certain price benchmark to assure that prices generally reflect competitive market values for comparable spectrum licenses. The first component consists of alternative conditions, depending on the clearing target for the particular stage in which it is being applied. The alternative formulations recognize that per-unit market prices for spectrum licenses may decline consistent with an increase in supply. The price and spectrum clearing benchmarks will be established by the Commission in the Incentive Auction Procedures PN, after an opportunity for additional comment. The second component of the final stage rule requires that the proceeds of the forward auction be sufficient to meet expenses set forth in the Spectrum Act and any Public Safety Trust Fund amounts needed for FirstNet. If the requirements of both components of the reserve price are met, then the final stage rule is satisfied.

69. In the Incentive Auction Report and Order, the Commission indicates that, in the coming months, the Commission will solicit public input on final auction procedures by Public Notice (“ Incentive Auction Comment PN ”). This Public Notice will include specific proposals on crucial auction design issues such as opening prices, television channel assignment optimization, how much market variation to accommodate in the 600 MHz Band Plan, and benchmarks for implementing the final stage rule. Well in advance of the auction, also by public notice, the Commission will resolve these implementation issues and provide detailed explanations and instructions for potential auction participants ( “Incentive Auction Procedures PN” ).

70. Given the importance of multiple providers, including rural and regional providers, having access to below-1-GHz spectrum for deployment and competition, the Commission concludes that a clear mobile spectrum holdings policy for the Incentive Auction is necessary to increase access opportunities to the 600 MHz Band. The Commission finds that it is appropriate to adopt a market-based spectrum reserve for entities that do not currently hold a significant amount of below-1-GHz spectrum.

71. The Commission will reserve on a contingent basis, licenses covering up to 30 megahertz of spectrum for bidders with spectrum holdings, at the deadline for filing a short-form application to participate in the forward auction, of less than 45 megahertz, on a population-weighted basis, of suitable and available below-1-GHz spectrum in a PEA. All bidders, including those unable to bid on reserved licenses, will be able to bid on the unreserved licenses. The Commission specifies the maximum amount of spectrum that will be reserved in each market for eligible entities (“reserve-eligible” entities) in the forward auction under the various band plan scenarios identified in the Incentive Auction Report and Order, but the actual amount of spectrum reserved will depend on the demand by reserve-eligible bidders when the auction reaches a trigger (the “spectrum reserve trigger”). The Commission finds that this approach balances a number of the key statutory directives, including promoting competition, facilitating the deployment of advanced services by making spectrum available for flexible use, and sharing the costs of the Incentive Auction on a fair and equitable basis.

72. In reaching its decisions, the Commission must consider a number of statutory directives applicable to the Incentive Auction, including promoting competition, making spectrum available for flexible use, meeting proceeds requirements, and facilitating deployment of advanced services. With respect to promoting competition in the mobile wireless marketplace, the Commission observes that any of the types of limits discussed on the record—spectrum caps based on a provider's existing below-1-GHz holdings, equal spectrum caps for all bidders, or reserved spectrum—have the potential to promote competition by ensuring that in the near future, more providers would hold a sufficient mix of spectrum to compete robustly. The Commission finds that its market-based spectrum reserve for the Incentive Auction has distinct advantages over the other approaches with respect to the other statutory directives.

73. First, the spectrum reserve gives mobile service providers significant latitude to bid on spectrum licenses they need in each area to meet their network requirements, including providers who are unable to bid for reserved spectrum in a particular PEA. Rules that would restrict the larger providers to no more than a 5 x 5 megahertz block of 600 MHz Band spectrum do not adequately consider the needs of those providers for additional spectrum to meet the demand of their subscribers in the longer term. Nor do such rules adequately consider that efficient deployment of services using the 600 MHz Band spectrum would likely rely on ensuring that the larger as well as smaller nationwide providers having a stake in the development of equipment for the band. Spectrum caps also could affect to a certain extent mobile broadband providers' flexibility to expand services to meet increasing consumer needs.

74. Second, proposals that would set an individual spectrum cap on the amount of 600 MHz Band spectrum for which each provider could acquire licenses have greater risk of decreasing forward auction proceeds, and thus endangering its ability to repurpose spectrum, because it likely would lessen competition between the largest wireless providers for spectrum in amounts greater than the cap would permit.

75. The Commission concludes that its market-based spectrum reserve, particularly in the amounts and under the rules the Commission adopts is unlikely to reduce competition among bidders and in fact, will encourage competition among bidders wanting at least 20 megahertz of spectrum, as compared to other potential approaches to mobile spectrum holdings limits that could be applied to the Incentive Auction. Under the market-based spectrum reserve, every bidder will have the opportunity to bid for, and win, at least half of the 600 MHz Band spectrum in each market, and at some levels of spectrum made available in the forward auction, significantly more than half.

76. Third, the Commission concludes that its approach would not reduce participation in the auction by large providers to a level that would reduce the amount of spectrum that can be repurposed by the Incentive Auction. The reserved spectrum amount would be contingent upon (and subject to a reduction based on) the demand expressed in the forward auction by reserve-eligible bidders. If there is insufficient demand for reserved spectrum licenses, the amount of reserved spectrum would be reduced.

77. The Commission also finds that its market-based spectrum reserve is more likely to achieve its purposes more effectively than bidding credits based on the level of spectrum holdings. On balance, applying bidding credits based on spectrum holdings as opposed to reserving licenses for providers without significant below-1-GHz spectrum would not address the Commission's competitive concerns with aggregation of the spectrum made available at auction. The Commission notes that in the Incentive Auctions Report and Order the Commission adopted the bidding credits for the forward auction applicable to small businesses. The Commission also stated it will initiate a separate proceeding to examine its designated entity (“DE”) rules generally.

78. The Commission notes that its decision to adopt a 600 MHz Band spectrum reserve and to establish the amounts of reserved spectrum specified below is based on the current marketplace structure of the mobile wireless service industry. If significant changes in the marketplace structure occur or a proposed transaction is filed with the Commission in the future affecting the top four nationwide providers and their spectrum holdings, the Commission will revisit its decisions here regarding the reserved spectrum provisions for the 600 MHz Band that the Commission adopted. The Commission will review as well whether changes should be made to any other decisions in the R&O. The Commission also plans to consider in a Further Notice of Proposed Rulemaking possible change to certain auction rules relating to joint bidding arrangements and strategies in the Incentive Auction. In order to allow the Commission to evaluate how certain bidding arrangements might affect the Incentive Auction, potential bidders will need to file well before the normal deadlines some of the information currently required in auction and license application forms.

79. The Commission needs to facilitate access by multiple providers to below-1-GHz spectrum is the basis for its adoption of a market-based spectrum reserve for the Incentive Auction and, accordingly, the Commission finds that a provider's existing below-1-GHz holdings in a particular PEA should be the threshold basis for determining whether the provider qualifies to bid on reserved spectrum. To qualify to bid on reserved licenses in a PEA, an entity must not have an attributable interest in 45 megahertz or more, on a population-weighted basis, of below-1-GHz spectrum that is suitable and available for the provision of mobile telephony/mobile broadband services in that PEA, at the deadline for filing a short-form application to participate in the Incentive Auction. In its calculation of below-1-GHz spectrum holdings, the Commission includes not only the entity's licensed spectrum, on a county-by-county basis, but also all long-term spectrum leasing arrangements, with spectrum being attributed to both the lessee and lessor. Further, it includes in the calculations only the below-1-GHz spectrum that the Commission currently considers to be “suitable” and “available,” in the modified spectrum screen adopted today, and thus, no 600 MHz Band spectrum is included, as although it is suitable, it is not considered available until the conclusion of the Incentive Auction. The 45 megahertz of below-1-GHz spectrum approximates one-third of the 134 megahertz of below-1-GHz spectrum that the Commission counts in the modified total spectrum screen the Commission adopted. The Commission will measure an entity's spectrum holdings on a county-by-county basis within a PEA, 2 and then construct a total county-population-weighted below-1-GHz spectrum holding for each entity within the PEA. 3 As discussed below, even if a non-nationwide provider holds approximately one-third or more of the suitable and available below-1-GHz spectrum in a given market, it will not be precluded from bidding on reserved spectrum licenses in any market.

80. The Commission observes that the 45 megahertz threshold (approximately one-third of total below-1-GHz spectrum) to identify those who can bid on reserved licenses is consistent with the approximately one-third threshold for total spectrum that the Commission uses to identify those holdings in local markets that may raise particular competitive concerns in the context of secondary market transactions, as discussed below. The approximately one-third threshold is, based on its experience in numerous transactions over the last decade, an effective analytical tool in the secondary market context. Similarly, the Commission concludes that a threshold of approximately one-third is an effective line of demarcation to identify those entities that currently lack significant below-1-GHz spectrum holdings and would likely benefit from access to the reserved spectrum. In particular, the Commission finds that this threshold would help to ensure that multiple providers are able to access a sufficient amount of low-band spectrum, which would facilitate the extension and improvement of service in both rural and urban areas, to the benefit of consumers.

81. Non-Nationwide Providers. The 45 megahertz holding threshold may have substantial effects on non-nationwide providers that could outweigh the intended benefits. 4 In many areas, regional and local service providers offer consumers additional choices in the areas they serve and provide some constraint on the ability of nationwide providers to act in anticompetitive ways to the detriment of consumers. Although nationwide providers generally set prices on a national basis, there can be significant variation in discounts, service quality, and extent of coverage at the local level. Non-nationwide providers are also important sources of competition in rural areas, where multiple nationwide service providers may have less incentive to offer high quality services. Today, 92 percent of non-rural consumers, but only 37 percent of rural consumers are covered by at least four 3G or 4G mobile wireless providers' networks and more than 1.3 million people in rural areas have no mobile broadband access. Smaller providers in such areas are likely to be more dependent upon the efficiencies gained from the unique propagation benefits of 600 MHz spectrum because they are less able to subsidize their deployment costs by revenues accrued in more densely populated areas where a nationwide subscriber base provides them with greater scale economies. Promoting competition by non-nationwide providers also advances the statutory goals of avoiding excessive concentration of licenses, disseminating licenses among a wide variety of applicants, and encouraging rapid deployment of new wireless broadband technologies to all Americans, including those residing in rural areas.

82. The Commission will permit bidding on 600 MHz reserve spectrum by regional and local service providers in all PEAs, including those where such a provider holds more spectrum than its 45 megahertz holding threshold of the available low-band spectrum. The Commission establishes a bright-line rule to address these issues for the same reasons set forth above for generally adopting bright line rules on spectrum aggregation issues for its 600 MHz Incentive Auction. Non-nationwide service providers enhance competitive choices for consumers in the mobile wireless marketplace, and help promote deployment in rural areas. They also present a significantly lower risk of effectively denying access of low band spectrum to competitors in order to foreclose competition or to raise rivals' costs because of their relative lack of resources. Accordingly, the Commission concludes that non-nationwide service providers should be eligible to bid on reserved spectrum in all markets nationwide.

83. In sum, to qualify to bid on reserved licenses in a PEA, an entity must not hold an attributable interest in 45 megahertz or more of below-1-GHz spectrum in a PEA, as described above, or must be a non-nationwide provider. The Commission will revise the short-form application to provide for a certification by an applicant intending to bid on reserved spectrum that it meets the qualification criteria. If any entity plans to file a pre-auction divestiture application to come into compliance with the below-1-GHz holdings threshold, it will have to file in sufficient time to qualify by the short-form application deadline.

84. Because the Commission will not know the exact number of blocks licensed or their frequencies until the Incentive Auction concludes, the 600 MHz Band Plan in the Incentive Auction Report and Order adopted a set of band plan scenarios that comprise the 600 MHz Band Plan, one of which will serve as the ultimate Band Plan for the 600 MHz Band. Consistent with this approach, the Commission specifies in the chart below the maximum amount of licensed spectrum that will be reserved in each market for eligible entities (“reserve-eligible” entities) in a forward auction for each indicated amount of licensed spectrum at initial stage spectrum clearing targets. A spectrum clearing target will include licensed spectrum and guard bands; the chart refers only to the amount of licensed spectrum included in each target because only licensed spectrum is relevant to determination of the reserve. Each stage of the Incentive Auction will consist of a reverse auction and a forward auction bidding process. Prior to the first stage, the Commission will determine the initial spectrum clearing target and will run additional stages if necessary. If the auction does not close in the initial stage, the maximum amount of reserved licensed spectrum in each individual market in subsequent stages will be the smaller of: (1) The maximum amount of reserved spectrum in the previous stage, or (2) the amount that the reserve-eligible bidders demand at the end of the previous stage. For example, if the initial clearing target is 100 megahertz, the maximum reserve will be 30 megahertz in the initial and subsequent stages. By contrast, if the initial spectrum clearing target is 60 megahertz, the maximum reserve in the initial and subsequent stages will be 20 megahertz. In either case, if the auction fails to close at the initial stage, the maximum reserved spectrum in each PEA at the second stage will be the smaller of the maximum reserve or the amount that reserve-eligible bidders demand at the end of the first stage in that market. Correspondingly, the amount of spectrum that an unreserved bidder may acquire in subsequent stages will depend on the amount that the bidder demanded at the end of the previous stage. The actual amount of spectrum reserved will depend on the demand by reserve-eligible bidders when the auction reaches a trigger (the “spectrum reserve trigger”). Because the actual amount of reserved spectrum depends on auction participation, the Commission calls this a “market-based spectrum reserve.”

This document announces that, on June 18, 2014, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Report and Order, FCC 13-118, published at 78 FR 53684, August 30, 2013. The OMB Control Number is 3060-1053. The Commission publishes this document as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1053, in your correspondence. The Commission will also accept your comments via the Internet if you send them to PRA@fcc.gov .

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on June 18, 2014, for the information collection requirements contained in the Commission's rules at 47 CFR 64.604(c)(10)(iv), (c)(11)(iii) and (iv), and 64.606(a)(2)(F). Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1053.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1053.

OMB Approval Date: June 18, 2014.

OMB Expiration Date: June 30, 2017.

Title: Two-Line Captioned Telephone Order and IP Captioned Telephone Service Declaratory Ruling; and Internet Protocol Captioned Telephone Service Reform Order, CG Docket Nos. 13-24 and 03-123.

Form Number: N/A.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 153,605 respondents; 373,280 responses.

Estimated Time per Response: .25 hours (15 minutes) to 20 hours.

Frequency of Response: Annual, every five years, on-going, and one-time reporting requirement; Recordkeeping requirement; Third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for the information collection requirements is found at Sec. 225 [47 U.S.C. 225] Telecommunications Services for Hearing-Impaired Individuals; The Americans with Disabilities Act of 1990 (ADA), Public Law 101-336, 104 Stat. 327, 366-69, was enacted on July 26, 1990.

Total Annual Burden: 113,252 hours.

Total Annual Cost: $558,000.

Nature and Extent of Confidentiality: An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information by the Commission from individuals.

Privacy Impact Assessment: No impact(s).

Needs and Uses: On August 1, 2003, the Commission released the Declaratory Ruling, In the Matter of Telecommunication Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67, published at 68 FR 55898, September 28, 2003. In the Declaratory Ruling, the Commission clarified that one-line captioned telephone voice carry over (VCO) service is a type of telecommunications relay service (TRS) and that eligible providers of such services are eligible to recover their costs in accordance with section 225 of the Communications Act. The Commission also clarified that certain TRS mandatory minimum standards do not apply to one-line captioned telephone VCO service and waived 47 CFR 64.604(a)(1) and (a)(3) for all current and future captioned telephone VCO service providers, for the same period of time beginning August 1, 2003. The waivers were contingent on the filing of annual reports, for a period of three years, with the Commission. Sections 64.604(a)(1) and (a)(3) of the Commission's rules, which contained information collection requirements under the PRA, became effective on March 26, 2004.

On July 19, 2005, the Commission released an Order, In the Matter of Telecommunication Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67 and CG Docket No. 03-123, published at 70 FR 54294, September 14, 2005, clarifying that two-line captioned telephone VCO service, like one-line captioned telephone VCO service, is a type of TRS eligible for compensation from the Interstate TRS Fund. Also, the Commission clarified that certain TRS mandatory minimum standards do not apply to two-line captioned VCO service and waived 47 CFR 64.604(a)(1) and (a)(3) for providers who offer two-line captioned VCO service. This clarification increased the number of providers who will be providing one-line and two-line captioned telephone VCO services.

On January 11, 2007, the Commission released a Declaratory Ruling, In the Matter of Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket No. 03-123, published at 72 FR 6960, February 14, 2007, granting a request for clarification that Internet Protocol (IP) captioned telephone relay service (IP CTS) is a type of TRS eligible for compensation from the Interstate TRS Fund (Fund) when offered in compliance with the applicable TRS mandatory minimum standards.

On August 26, 2013, the Commission issued a Report and Order, In the Matter of Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 13-24 and 03-123, published at 78 FR 53684, August 30, 2013, to regulate practices relating to the marketing of IP CTS, impose certain requirements for the provision of this service, and mandate registration and certification of IP CTS users. The Commission published a notice in the Federal Register pursuant to 5 CFR 1320.8(d) on September 25, 2013 (78 FR 59025), seeking comments from the public on the information collection requirements contained in the initial supporting statement. Sorenson Communications, Inc., and its subsidiary CaptionCall, LLC (together, CaptionCall), filed comments on November 25, 2013, regarding the user registration and certification requirements adopted in the Report and Order as well as the certification, recordkeeping, and reporting requirements for hardship exemptions to the captions-off default setting requirement, also adopted in the Report and Order. CaptionCall did not comment on the other collections adopted in the Report and Order.

Subsequently, on December 6, 2013, the United States Court of Appeals for the District of Columbia Circuit stayed “the rule adopted by the Commission [in the Report and Order ] prohibiting compensation to providers for minutes of use generated by equipment consumers received from providers for free or for less than $75.” Sorenson Communications, Inc. and CaptionCall, LLC v. FCC, Order, D.C. Cir., No. 13-1246, December 6, 2013, at 1-2. (For convenience, this notice refers to the requirement subject to the stay as “the $75 equipment charge rule.”) In the revised supporting statement, the Commission sought OMB approval of the following requirements adopted in the Report and Order: (1) The requirements regarding the labeling of equipment, software and mobile applications; (2) the certification, recordkeeping, and reporting requirements for the hardship exemption to the captions default-off requirement; and (3) an additional information reporting requirement for IP CTS applicants that seek Commission certification to provide IP CTS and for IP CTS providers, requiring applicants to provide assurance that they will not request or collect payment from the TRS Fund for service to consumers who do not satisfy the Commission's IP CTS registration and certification requirements. Because the registration and certification requirements adopted in the Report and Order are related to the $75 equipment charge rule that was stayed by the court of appeals, the Commission did not seek OMB approval of those requirements at that time. See 79 FR 23354, April 28, 2014.

On June 18, 2014, OMB approved, for a period of three years, the information collection requirements specified above that are contained in the Commission's Report and Order, FCC 13-118, published at 78 FR 53684, August 30, 2013. The OMB Control Number is 3060-1053.

On June 20, 2014, the DC Circuit vacated the $75 equipment charge rule and the rule requiring providers to maintain captions-off as the default setting for IP CTS equipment. Sorenson Communications, Inc. and CaptionCall, LLC v. FCC (D.C. Cir., Nos. 13-1122 and 13-1246, June 20, 2014). Because the court has not yet issued its mandate, the captions-off default requirement, 47 CFR 64.604(c)(10)(i), (ii), (iii), and (v), remains in effect, and the certification, recordkeeping, and reporting requirements for the hardship exemption to the captions default-off requirement, 47 CFR 64.604(c)(10)(iv), will become effective at this time.

Background

The UCR spring-run Chinook Salmon evolutionarily significant unit (ESU) is listed as an endangered species under the ESA (16 USC 1531 et seq. ). We first designated the UCR spring-run Chinook Salmon ESU as endangered on March 24, 1999 (64 FR 14308), reaffirmed this status on June 28, 2005 (70 FR 37160), and maintained its endangered status after the ESU's 5-year review (76 FR 50448, August 15, 2011). Section 9 of the ESA prohibits the “take” of UCR spring-run Chinook salmon unless otherwise authorized.

The listed ESU currently includes all naturally spawned populations of spring-run Chinook salmon in accessible reaches of Columbia River tributaries between Rock Island and Chief Joseph Dams, excluding the Okanogan River. The Okanogan River is a major tributary of the upper Columbia River, entering the Columbia River between Wells and Chief Joseph Dams. The majority of the Okanogan River subbasin is in Canada (74 percent) with the remainder in Washington State (26 percent). Listed UCR spring-run Chinook salmon from this ESU currently spawn in three river subbasins in eastern Washington: the Methow, Entiat, and Wenatchee. A fourth population historically inhabited the Okanogan River subbasin, but was extirpated in the 1930s because of overfishing, hydropower development, and habitat degradation (NMFS, 2007). The listed UCR Spring-run Chinook Salmon ESU also includes six artificial propagation programs: the Twisp River, Chewuch River, Methow Composite, Winthrop National Fish Hatchery, Chiwawa River, and White River spring Chinook salmon hatchery programs.

On November 22, 2010, we received a letter from the Confederated Tribes of the Colville Reservation (CTCR)), a federally recognized Native American tribe, requesting that we authorize the release of an experimental population of spring-run Chinook salmon in the Okanogan River subbasin under section 10(j) of the ESA. The CTCR also initiated discussions on this topic with the United States Fish and Wildlife Service (USFWS), the Bonneville Power Administration, the Army Corps of Engineers, the Bureau of Reclamation, the Washington Department of Fish and Wildlife, and the Okanagan Nations Alliance of Canada. The CTCR's request included a large amount of information on the biology of UCR spring-run Chinook salmon, the possible management implications of releasing an experimental population in the Okanogan River subbasin, and the expected benefits to the recovery of the listed UCR Spring-run Chinook Salmon ESU. On October 24, 2013 we published a proposed rule to designate a nonessential experimental population of spring-run Chinook salmon in the Okanogan River subbasin (78 FR 63439).

Under section 10(j) of the ESA, the Secretary of Commerce (Secretary) may authorize the release of an “experimental” population of a listed species outside its current range when the release of the experimental population will further the conservation of the listed species. The population is experimental under section 10(j) at times when it is wholly separate geographically from nonexperimental populations. In order to authorize the release of an experimental population, section 10(j) also requires that the Secretary determine, using the best available information, whether the experimental population is “essential” or “nonessential” to the continued existence of the listed species. Section 10(j) allows that an experimental population deemed “nonessential” is treated as a species proposed for listing during interagency consultations under section 7 of the Act, requiring federal agencies to confer (rather than consult) with NMFS on actions that are likely to adversely affect the experimental population (except when the population occurs in an area within the National Wildlife Refuge System or the National Park System, where the ESA requires the population be treated as a threatened species). With respect to the ESA's take prohibitions, section 10(j) treats experimental populations as threatened species, authorizing NMFS to issue regulations governing the application of the ESA's prohibition against take of listed species.

This action involves the designation of a NEP of UCR spring-run Chinook salmon in the Okanogan River subbasin. The release of this NEP of UCR spring-run Chinook salmon in the Okanogan River NEP Area would further the conservation of UCR spring-run Chinook salmon by potentially establishing a fourth population in the species' historic range, contributing to the viability of the ESU. Fish used for the reintroduction would come from the Methow Composite hatchery program located at Winthrop National Fish Hatchery. The Methow River population of these fish is included in the UCR Spring-run Chinook Salmon ESU and has the best chance to survive and adapt to conditions in the Okanogan River subbasin because they most closely resemble the genetic and life-history characteristics of the UCR spring-run Chinook salmon population that historically inhabited the Okanogan River subbasin (Jones et al., 2011). Fish from the NEP are expected to remain geographically separate from the UCR Spring-run Chinook Salmon ESU during the life stages in which they remain in, or return to, the Okanogan River; the experimental designation will not apply at any time when members of the NEP are downstream of the confluence of the Okanogan River with the Columbia River. This experimental population release is being implemented as recommended in the Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan (NMFS, 2007), while at the same time ensuring that the reintroduction does not impose undue regulatory restrictions on landowners and third parties.

The geographic boundary defining the Okanogan River NEP Area for UCR spring-run Chinook salmon is the mainstem and all tributaries of the Okanogan River between the Canada-United States border to the confluence of the Okanogan River with the Columbia River. All UCR spring-run Chinook salmon in this defined Okanogan River NEP Area are considered part of the NEP, irrespective of their origin. Conversely, when UCR spring-run Chinook salmon are located outside this defined Okanogan River NEP Area, they are not considered part of the NEP.

In this action, we are designating an experimental population that is geographically separate from the nonexperimental ESA-listed UCR population, as spring-run Chinook salmon are currently extirpated in the Okanogan River subbasin. This designation is expected to reduce the species' overall extinction risk from natural and anthropogenic factors by increasing its abundance, productivity, spatial structure, and diversity within the Upper Columbia River. These expected improvements in the overall viability of UCR spring-run Chinook salmon, in addition to other actions being implemented throughout the Columbia River migration corridor, will contribute to the species near-term viability and recovery, either minimally if an Okanogan population does not establish itself, or significantly if it does. The NEP will be geographically separated from the larger ESU of UCR spring-run Chinook salmon while in the Okanogan River subbasin, but will intermingle with other Chinook salmon populations as they travel downstream of the NEP area, while in the ocean, and on part of their upstream spawning migration. The “experimental” population designation is geographically based and does not travel with the fish outside the Okanogan River NEP Area.

This final rule establishes legal authority under section 10(j) of the ESA for an experimental population of UCR spring-run Chinook salmon in the Okanogan River basin. The rule also provides protective regulations under section 4(d) deemed necessary and advisable to conserve the experimental population. We, in close coordination with tribal, state and federal comanagers, are committed to completing review of the Hatchery Genetic Management Plans associated with the broodstock-collection, fish-transfer, and fish-release activities required to support this reintroduction effort.

To assist in the development of the Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan (hereinafter called the recovery plan), we assembled the Interior Columbia Technical Recovery Team (ICTRT) to identify population structure and recovery goals. The recovery plan subsequently adopted the ICTRT recovery goals as delisting criteria for the UCR spring-run Chinook Salmon ESU.

The ICTRT recommended specific abundance and productivity goals for each population in the UCR Spring-run Chinook Salmon ESU. The team also identified the current risk level of each population based on the gap between recent abundance and productivity and the desired recovery goals. The ICTRT (2008) considered all three extant natural populations (Methow, Entiat, and Wenatchee) to be at high risk of extinction based on their current abundance and productivity levels. The ICTRT also recommended spatial structure and diversity metrics for these populations (ICTRT, 2007). Spatial structure refers to the geographic distribution of a population and the processes that affect the distribution. Populations with restricted distribution and few spawning areas are at a higher risk of extinction from catastrophic environmental events (e.g., a single landslide) than are populations with more widespread and complex spatial structure. A population with complex spatial structure typically has multiple spawning areas containing the expression of diverse life-history characteristics. Diversity is the phenotypic (morphology, behavior, and life-history traits) and genotypic (DNA) characteristics within and between populations. Phenotypic diversity allows more diverse populations to use a wider array of environments and protects populations against short-term temporal and spatial environmental changes. Genotypic diversity, on the other hand, provides populations with the ability to survive long-term changes in the environment by providing genetic variations that may prove successful under different situations. It is the combination of phenotypic and genotypic diversity expressed in a natural setting that provides populations with the ability to utilize the full range of habitat and environmental conditions and to have the resiliency to survive and adapt to long-term changes in the environment. The mixing of hatchery fish (or excessive numbers of out-of-basin stocks) with naturally produced fish on spawning grounds can decrease genetic diversity within a population (NMFS, 2007). The ICTRT (2008) also determined that all three extant populations of this ESU are at high risk of extinction based on their current lack of spatial structure and diversity.

The recovery plan identifies re-establishment of a population in the Okanogan River subbasin as a recovery action (NMFS, 2007). More specifically, the recovery plan explains that re-establishment of a spring-run Chinook salmon population in the Okanogan River subbasin would aid recovery of this ESU by increasing abundance, productivity, spatial structure, and diversity, thereby reducing the risk of extinction to the ESU as a whole. The recovery plan establishes a framework for accomplishing restoration goals for the Okanogan River subbasin including restoring connectivity throughout their historic range where feasible and practical. Short- and long-term actions will protect riparian habitat along spawning and rearing streams and establish, restore, and protect stream flows suitable for spawning, rearing, and migration. In addition, water quality will be protected and restored where feasible and practical. In the mainstem Columbia River, implementation of the Federal Columbia River Power System (FCRPS) ESA section 7 Biological Opinion (NMFS, 2008a; NMFS, 2010) provides a number of new actions and continuation of existing programs that will likely continue to increase passage survival through the Columbia River mainstem passage corridor.

The ESA provides that species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 (16 U.S.C. 1538) and the consultation requirements of section 7 (16 U.S.C. 1536). Section 9 of the ESA prohibits the take of an endangered species. The term “take” is defined by the ESA as “to harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct” (16 U.S.C. 1532(19)). Section 7 of the ESA provides procedures for federal interagency cooperation and consultation to conserve federally listed species, ensure their survival, help in recovery of these species, and protect designated critical habitat necessary for the survival of the listed species. It also mandates that all federal agencies determine how to use their existing authorities to further the purposes of the ESA to aid in recovering listed species. In addition, ESA section 7 requires that federal agencies will, in consultation with NMFS, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species, or result in the destruction or adverse modification of designated critical habitat. Section 7 of the ESA does not apply to activities undertaken on private land unless they are authorized, funded, or carried out by a federal agency.

As noted above, for the purposes of section 7 of the ESA, section 10(j) requires that we treat NEPs as a species proposed to be listed, unless they are located within a National Wildlife Refuge or National Park, in which case they are treated as threatened, and section 7 consultation requirements apply. When NEPs are located outside a National Wildlife Refuge or National Park, only two provisions of section 7 apply—section 7(a)(1) and section 7(a)(4). In these instances, NEP designations provide additional flexibility in developing conservation and management measures by allowing us to work with the action agency early to develop conservation measures, instead of analyzing an already well-developed proposed action provided by the agency under the framework of a section 7(a)(2) consultation. Additionally, for populations of listed species that are designated as nonessential, section 7(a)(4) of the ESA only requires that federal agencies confer (rather than consult) with us on actions that are likely to jeopardize the continued existence of a species proposed to be listed. These conferences are advisory in nature, and their findings do not restrict agencies from carrying out, funding, or authorizing activities.

For endangered species, section 9 of the ESA automatically prohibits take. For threatened species, the ESA does not automatically extend the Section 9 take prohibitions, but instead authorizes the agency to adopt regulations it deems necessary and advisable for species conservation, including prohibiting take under section 4(d). Where we designate an experimental population of an endangered species, the automatic take prohibition no longer applies; however, because the experimental population is treated as a separate threatened species, we can issue protective 4(d) regulations for that population as we deem necessary and advisable for the conservation of the population. Such regulations may include take prohibitions.

The USFWS has regulations for experimental population designation, 50 CFR 17.80 through 17.84, that provide definitions, considerations in finding that the designation would further the conservation of the species and information to be included in the designation. These regulations state that, in making the determination that the designation would further the conservation of the species, the Secretary must consider the effect of taking the eggs or young from another population, the likelihood that the experimental population will become established, the effect the designation would have on the species' overall recovery, and the extent to which the experimental population would be affected by activities in the area. Under the USFWS regulations, a regulation designating the experimental population must include: A clear means to identify the experimental population; a finding based on the best available science indicating whether the population is essential to the continued existence of the species; management restrictions, protective measures, or other management concerns; and a periodic review of the success of the release and its effect on the conservation and recovery of the species. The USFWS regulations also state that any experimental population shall be treated as threatened for purposes of establishing protective regulations under ESA section 4(d), and the protective regulations for the experimental population will contain applicable prohibitions and exceptions for that population.

The USFWS implementing regulations contain the following specific provisions:

The USFWS regulations define an essential experimental population as one “whose loss would be likely to appreciably reduce the likelihood of the survival of the species in the wild” (50 CFR 17.80(b)). All other experimental populations are classified as nonessential (50 CFR 17.81(f)). This definition was directly derived from the legislative history to the ESA amendments that created section 10(j).

In determining whether the experimental population will further the conservation of the species, the USFWS regulations require the agency to consider: (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere, (2) the likelihood that any such experimental population will become established and survive in the foreseeable future, (3) the relative effects that establishment of an experimental population will have on the recovery of the species, and (4) the extent to which the introduced population may be affected by existing or anticipated federal or state actions or private activities within or adjacent to the experimental population area (50 CFR 17.81(b)).

USFWS regulations at 50 CFR 17.81(c) also describe four components that will be provided in any regulations promulgated with regard to an experimental population under section 10(j). The components are: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s), (2) a finding of whether the experimental population is, or is not, essential to the continued existence of the species in the wild, (3) management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate and/or contain the experimental population designated in the regulation from natural populations, and (4) a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species.

We have not promulgated regulations implementing section 10(j) of the ESA, and have authorized only two experimental populations to date (78 FR 2893, January 15, 2013; 78 FR 79622, December 31, 2013). The USFWS has authorized many experimental populations. While USFWS' regulations do not apply to NMFS' 10(j) authorizations, they can help inform our authorization process and we use them to do so. We considered the factors identified in the USFWS regulations in the course of making the statutorily mandated determinations found in ESA section 10(j). To summarize, the statute requires that we determine: (1) Whether the release will further the conservation of the species, and (2) whether the population is essential or nonessential. In addition, because section 10(j) provides that the population will only be experimental when and at such times as it is wholly separate geographically from nonexperimental populations of the same species, we must establish that there are such times and places when the experimental population is wholly geographically separate. Similarly, the regulations require that we identify the experimental population; the legislative history indicates that the purpose of this requirement is to provide notice as to which populations of listed species are experimental (See, Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep No. 97-835, at 15 (1982)).

UCR spring-run Chinook salmon are anadromous fish that migrate as adults from the ocean in the spring to spawn in freshwater streams where their offspring hatch and rear prior to migrating back to the ocean to forage until maturity. At spawning, adults pair to lay and fertilize thousands of eggs in freshwater gravel nests or “redds” excavated by females. Depending on temperatures, eggs incubate for several weeks to months before hatching as “alevins” (a larval life stage dependent on food stored in a yolk sac). Following yolk sac absorption, alevins emerge from the gravel as young juveniles called “fry” and begin actively feeding. UCR spring-run Chinook salmon juveniles spend a year in freshwater areas before migrating to the ocean. The physiological and behavioral changes required for the transition to salt water result in a distinct “smolt” stage. On their journey juveniles migrate downstream through a riverine and estuarine corridor between their natal lake or stream and the ocean.

After two to three years in the ocean, adult UCR spring-run Chinook salmon begin returning from the ocean in the early spring, with the run into the Columbia River peaking in mid-May (NMFS, 2007). Spring-run Chinook salmon enter the upper Columbia River tributaries from April through July. After migration, they hold in these tributaries until spawning occurs in the late summer, peaking in mid-to-late August.

On March 18, 2010, we announced the initiation of 5-year status reviews for 16 ESUs of Pacific salmon including the UCR Spring-run Chinook Salmon ESU (75 FR 13082). As part of this review, our Northwest Fisheries Science Center compiled and issued a report on the newest scientific information on the viability of this ESU. The report states,

The ESA defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provide pursuant to this [Act] are no longer necessary.” The factors we considered in determining if release of an experimental population in the Okanogan River NEP Area would “further the conservation” of UCR spring-run Chinook salmon included the potential impacts to the ESU posed by the release, the likelihood that the experimental population would become established and self-sustaining, and the extent to which a self-sustaining experimental population would reduce the threats to the ESU's viability. The USFWS regulations suggest considering whether the experimental population would be affected by other state- or federally-approved actions in the area. This last factor may not be subject to precise evaluation, but, where possible, we took into account all factors such as other approved actions that affect whether a population could become established and self-sustaining.

The Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan contains specific management strategies for recovering UCR spring-run Chinook salmon that include securing existing populations and reintroducing spring-run Chinook salmon into historically occupied habitats in the Okanogan River subbasin. The plan concludes, and we continue to agree, that establishing an experimental population of UCR spring-run Chinook salmon in the Okanogan River subbasin is expected to reduce the species' overall extinction risk from natural and anthropogenic factors by increasing its abundance, productivity, spatial structure, and diversity within the Upper Columbia River. These expected improvements in the overall viability of UCR spring-run Chinook salmon, in addition to other actions being implemented throughout the Columbia River migration corridor, will contribute to the species near-term viability and recovery.

To ensure the best chance for a successful reintroduction, we first determined the most appropriate source of broodstock within the UCR Spring-run Chinook Salmon ESU and the availability of that source. Reintroduction efforts have the best chance for success when the donor population has life history characteristics and genetic diversity compatible with the anticipated environmental conditions of the habitat into which fish will be reintroduced (Araki et al., 2008). Populations found in watersheds closest to the reintroduction area are most likely to have adaptive traits that will lead to a successful reintroduction, and therefore only spring-run Chinook salmon populations found in the Upper Columbia River subbasin were considered for establishing the experimental population in the Okanogan River NEP Area.

The listed UCR Spring-run Chinook Salmon ESU includes six artificial propagation programs: The Twisp River, Chewuch River, Methow Composite, Winthrop National Fish Hatchery, Chiwawa River, and White River. We evaluated the fish propagated by each of these programs for their potential to support a re-introduced population in the Okanogan River subbasin. We concluded that fish produced from the Methow Composite stock of UCR spring-run Chinook salmon at Winthrop National Fish Hatchery are likely the most similar to the extirpated Okanogan spring-run Chinook salmon and represent the best initial source of individuals to establish an experimental population of UCR spring-run Chinook salmon in the Okanogan River. Because the Methow Composite stock of UCR spring-run Chinook salmon are from the neighboring Methow River subbasin and have evolved in an environment similar to that of the Okanogan River subbasin, they are likely to be more genetically similar to the extirpated Okanogan spring-run Chinook salmon population than spring-run Chinook salmon populations from the more distant Entiat and Wenatchee River subbasins. For the past several years, enough adult salmon from the Methow Composite hatchery program have returned to the Methow subbasin to provide enough excess eggs and sperm to begin raising fish for reintroduction into the Okanogan River NEP Area.

We also considered the suitability of available habitat in the Okanogan River subbasin to support the experimental population in the foreseeable future. The Columbia basin as a whole is estimated to have supported pre-development spring-run Chinook salmon returns as large as 588,000 fish (Chapman, 1986). Historically, the UCR Spring-run Chinook Salmon ESU component of the Columbia basin is estimated to have comprised up to 68,900 fish (Mullan, 1987; UCSRB, 2007). It is estimated that before the 1930s, the Okanogan population of the UCR Spring-run Chinook Salmon ESU contained at least 500 spring-run Chinook salmon (NMFS, 2007).

While the historical population of spring-run Chinook salmon in the Okanogan River subbasin has been extirpated, the potential remains to reestablish a population in this area. Over the past century, overfishing, hydropower development, and local habitat degradation have severely impacted ecosystem features and processes in the Okanogan and other subbasins, creating a fragmented mixture of altered or barren fish and wildlife habitats and eradicating UCR spring-run Chinook salmon from the Okanogan River subbasin. Disruptions in the hydrologic system have resulted in widespread loss of migratory corridors and access to productive habitat (CTCR, 2007). Low base stream flow and warm summer water temperatures have limited salmonid production both currently and historically. Stream flow and fish passage within the Okanogan River subbasin are affected by a series of dams and water diversions. However, the Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan estimates that the Okanogan River subbasin continues to have the capacity for at least 500 spring-run Chinook salmon (NMFS, 2007).

The recovery plan establishes a framework for accomplishing restoration goals for the Okanogan River subbasin including restoring connectivity throughout their historic range where feasible and practical. Short- and long-term actions will protect riparian habitat along spawning and rearing streams and establish, restore, and protect stream flows suitable for spawning, rearing, and migration. In addition, water quality will be protected and restored where feasible and practical. In the mainstem Columbia River, implementation of the FCRPS ESA section 7 Biological Opinion (NMFS, 2008a; NMFS, 2010) provides a number of new actions and continuation of existing programs that will likely continue to increase passage survival through the Columbia River mainstem passage corridor. The implementation of these actions continues to improve habitat conditions in the Okanogan River NEP Area to support reestablishing a potential fourth independent population of UCR spring-run Chinook salmon. Salmon Creek and Omak Creek offer the best habitat conditions for spawning and rearing in the subbasin, and major efforts by the CTCR are underway to restore tributary habitat for spring-run Chinook salmon in both the United States and Canadian portions of the Okanogan River subbasin.

In addition to actions taken under the recovery plan, there are many federal and state laws and regulations that will also help ensure the establishment and survival of the experimental population by protecting aquatic and riparian habitat. Section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344) requires permits from the United States Army Corps of Engineers (Corps) before dredge or fill material can be discharged into waters of the United States. The dredge and fill permit program provides avoidance, minimization, and mitigation for the potential adverse effects of dredge and fill activities within the nation's waterways (40 CFR 100-149). Section 404(b) of the CWA requires that section 404 permits be granted only in the absence of practicable alternatives to the proposed project, which would have a less adverse impact on the aquatic ecosystem. CWA section 401 provides protection of water quality by requiring dischargers to navigable waters to comply with applicable water quality standards. In addition, construction and operational storm water runoff is subject to restrictions under CWA section 402 and state water quality laws. Also the Magnuson-Stevens Fishery Conservation and Management Act, as amended (16 U.S.C. 1801 et seq. ), requires that Essential Fish Habitat (EFH) be identified and federal action agencies consult with NMFS on any activity which they fund, permit, or carry out that may adversely affect EFH. Freshwater EFH for spring-run Chinook salmon in the Upper Columbia River subbasin includes the Okanogan River NEP Area. For each of these authorities, we do not assume complete implementation and compliance for all actions potentially affecting the experimental population or the listed ESU. However, we expect compliance and assume, at a minimum, that these authorities provide a regulatory regime that tends to encourage actions consistent with that regime.

The habitat improvement actions called for in the recovery plan, the protective measures in this final rule, and compliance with existing federal, state and local laws, statutes, and regulations, are expected to contribute to the survival of the experimental population in the Okanogan River subbasin into the foreseeable future. Although any reintroduction effort is likely to require supplementation with hatchery-origin fish for several years, we conclude there is the potential for a population of spring-run Chinook salmon to become established. Furthermore, we conclude that such a self-sustaining population of genetically compatible individuals is likely to further the conservation of the species as discussed above.

Section 10(j) of the ESA requires that we identify the population by regulation to provide notice of which populations are experimental. The statute also provides that the population is only considered experimental “when, and at such times as, [it] is wholly separate geographically from the nonexperimental populations of the same species.” In this case, the analysis and information that identifies the population also demonstrates when and where it will be wholly geographically separate from other UCR spring-run Chinook salmon. Under this rule, the experimental population is defined as the UCR spring-run Chinook salmon population released in the Okanogan River subbasin, and their subsequent progeny, when geographically located within the Okanogan River NEP Area. When the juvenile experimental UCR spring-run Chinook salmon leave the mouth of the Okanogan River and pass into the Columbia River mainstem and proceed to the Pacific Ocean, they are no longer geographically separated from the other extant, listed UCR spring-run Chinook salmon populations, and the “experimental” designation does not apply, unless and until they return as adults to spawn in the Okanogan River NEP Area.

The Okanogan River NEP Area provides the requisite level of geographic separation because UCR spring-run Chinook salmon are currently extirpated from this area, and straying of other UCR spring-run Chinook populations into this area is extremely low (Colville Business Council, 2010). The UCR Spring-run Chinook Salmon ESU does not include the Okanogan River, and the status of the ESU does not rely on the Okanogan River subbasin for recovery. If any extant UCR spring-run Chinook salmon stray into the Okanogan River subbasin, they would acquire experimental status while within that area, and therefore no longer be covered by the “endangered” listing, nor by the full range of section 9 prohibitions. The “experimental” designation is geographically based and does not travel with the fish outside the Okanogan River subbasin.

Hatchery-origin fish used for the reintroduction will be marked, for example, with specific fin clips and/or coded-wire tags to evaluate the stray rate and allow for broodstock collection of returning NEP adults. It may be possible to mark NEP juvenile fish released into the Okanogan River NEP Area in an alternative manner (other than coded-wire tags) that would distinguish them from other Chief Joseph Hatchery-raised Chinook salmon, and we will consider this during the Chief Joseph Hatchery annual review. During the Chief Joseph Hatchery annual review process, information on fish interactions and stray rates, productivity rates of hatchery-origin and natural-origin populations, and harvest effects are analyzed and evaluated for consistency with best management practices for artificial production as developed by the Hatchery Scientific Review Group (HSRG) and other science groups in the Pacific Northwest. Any such clips or tags would not, however, be for the purpose of identifying the NEP since, as discussed above, the experimental population is identified based on the geographic location of the fish. Indeed, if the reintroduction is successful, and fish begin reproducing naturally, their offspring would not be distinguishable from fish from other natural-origin UCR spring-run Chinook salmon populations. Outside of the experimental population area, e.g., in the Columbia River below the mouth of the Okanogan River or in the ocean, any such unmarked fish (juveniles and adults alike) will not be considered members of experimental population. They will be considered part of the ESU currently listed as endangered. Likewise, any fish that were marked before release in the NEP Okanogan River Area will not be considered part of the experimental population once they leave the Okanogan River NEP Area; rather, they will be considered part of the ESU currently listed as endangered.

The ESA requires the Secretary, in authorizing the release of an experimental population, to determine whether the population would be “essential to the continued existence” of the ESU. The statute does not elaborate on how this determination is to be made. However, as noted above, Congress gave some further definition to the term when it described an essential experimental population as one whose loss “would be likely to appreciably reduce the likelihood of the survival of the species in the wild” (see, Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 97-835, at 15 (1982)). The USFWS incorporated this concept into its regulatory definition of an essential population.

Based on the best available information as required by ESA section 10(j)(2)(B), we conclude that the proposed experimental population will not be one “whose loss would be likely to appreciably reduce the likelihood of survival” of the UCR Chinook Spring-run Salmon ESU for the reasons described below.

The recovery plan states that recovery of spring-run Chinook salmon in the Okanogan subbasin is not a requirement for delisting. Based on the recovery plan's recovery criteria and proposed management strategies, the UCR Spring-run Chinook Salmon ESU could recover to the point where listing under the ESA is no longer necessary solely with contributions from the three extant populations. Specifically, if the Wenatchee and Methow populations could achieve a 12-year geometric mean abundance of 2,000 natural-origin fish, and if the Entiat population reaches a 12-year geometric mean abundance of 500 natural-origin fish, the UCR Spring-run Chinook Salmon ESU would meet the recovery criteria for abundance. This would require a minimum productivity of between 1.2 and 1.4 recruits per spawner for the 12-year time period (NMFS, 2007). The extant populations would also need to meet specific criteria, identified in the recovery plan, which would result in a moderate or lower risk for spatial structure and diversity. The Upper Columbia Salmon and Steelhead Recovery Plan identifies several harvest, hatchery management, hydropower and habitat related actions that could be taken to improve viability of the three extant UCR spring-run Chinook salmon populations.

The recovery plan estimates recovery of the UCR Spring-run Chinook Salmon ESU would take 10 to 30 years without the addition of the Okanogan population. Based on the best available current evidence and information, we conclude that recovery of the UCR Spring-run Chinook Salmon ESU would still be likely under the above-discussed conditions.

NOAA's 2011 5-year status review concluded that, despite an increase in abundance and a decrease in productivity of the UCR Spring-run Chinook Salmon ESU, information considered in the review did not change the biological extinction risk category since the previous 2005 status review. Neither status review considered the potential for UCR spring-run Chinook salmon in the Okanogan River subbasin to alter this risk, because UCR spring-run Chinook salmon were extirpated from the Okanogan River subbasin in the 1930s and no UCR spring-run Chinook salmon currently exist in the Okanogan River subbasin.

In summary, even without the establishment of a fourth (Okanogan) population, the UCR Spring-run Chinook Salmon ESU could possibly be delisted if all threats were addressed and all three populations recovered. Because we conclude that a population of UCR spring-run Chinook salmon in the Okanogan River NEP Area is not essential for conservation of the ESU, we conclude that the proper designation is as an NEP. Under Section 10(j)(2)(C)(ii) of the ESA we cannot designate critical habitat for a NEP.

ESA section 10(j) requires that the experimental population be designated “only when, and at such times, as it is geographically separate from nonexperimental populations of the same species.” The geographic boundary defining the Okanogan River NEP Area for UCR spring-run Chinook salmon is the mainstem and all tributaries of the Okanogan River between the Canada-United States border to the confluence of the Okanogan River with the Columbia River. All UCR spring-run Chinook salmon in this defined Okanogan River NEP Area are considered part of the NEP, irrespective of their origin. Conversely, when UCR spring-run Chinook salmon are located outside this defined Okanogan River NEP Area, they are not considered part of the NEP.

As indicated above, section 10(j) requires that experimental populations are treated as threatened species, except for certain portions of section 7. Congress intended that this provision would authorize us to issue regulations we deemed necessary and advisable to provide for the conservation of the experimental population, just as it does, under section 4(d), for any threatened species (Joint Explanatory Statement, supra, at 15). In addition, when amending the ESA to add section 10(j), Congress specifically intended to provide broad discretion and flexibility to the Secretary in managing experimental populations so as to reduce opposition to release of listed species outside their current range (H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 (1982)). Therefore, we are exercising the authority to issue protective regulations under section 4(d) for the proposed NEP to identify take prohibitions necessary to provide for the conservation of the species and otherwise provide assurances to people in the Okanogan River NEP Area.

The ESA defines “take” to mean: Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Concurrent with the ESA section 10(j) authorization, we adopt protective regulations under ESA section 4(d) for the experimental population that prohibit take of UCR spring-run Chinook salmon that are part of the experimental population except in the following circumstances in the Okanogan River NEP Area:

1. Any activity taken pursuant to a valid permit issued by us under § 223.203(b)(1) and § 223.203(b)(7) for scientific research activities.

2. Aid, disposal, or salvage of fish by authorized agency personnel acting in compliance with 50 CFR 223.203(b)(3).

3. Activities associated with artificial propagation of the experimental population under an approved Hatchery Genetic Management Plan that complies with the requirements of-§ 223.203(b)(5).

4. Any harvest-related activity undertaken by a tribe, tribal member, tribal permittee, tribal employee, or tribal agent consistent with tribal harvest regulations and an approved Tribal Resource Management Plan that complies with the requirements of § 223.204.

5. Any harvest-related activity consistent with state harvest regulations and an approved Fishery Management Evaluation Plan that complies with the requirements of § 223.203(b)(4).

6. Any take that is incidental  1 to an otherwise lawful activity. Otherwise lawful activities include, but are not limited to, agricultural, water management, construction, recreation, navigation, or forestry practices, when such activities are in full compliance with all applicable laws and regulations.

Outside the Okanogan River NEP Area, UCR spring-run Chinook salmon are not considered to be part of the NEP (even if they originated there), and the take prohibitions applicable for endangered UCR spring-run Chinook salmon will apply.

The proposed rule and draft EA established a public comment period from October 24 until December 9, 2013 (78 FR 63439, October 24, 2013). In addition to welcoming comments in general, we also requested comments on seven specific questions regarding: (1) Whether the Methow Composite stock of UCR spring-run Chinook salmon is the best fish to use in establishing an experimental population and the scientific basis for the comment; (2) the proposed geographical boundary of the experimental population; (3) the extent to which the experimental population would be affected by current or future federal, state, tribal, or private actions within or adjacent to the experimental population area; (4) any necessary management restrictions, protective measures, or other management measures that we may not have considered; (5) the likelihood that the experimental population would become established in the Okanogan River NEP Area; (6) whether the proposed experimental population is essential or nonessential; and (7) whether the proposed designation furthers the conservation of the species and whether we have used the best available science in making this determination. We also contacted other Federal agencies and tribes and invited them to comment on the proposed rule. On November 5, 2013, we also held a public meeting within the geographic area affected by the proposed rule.

We received comments from a total of 8 individuals or organizations on the proposed rule and draft EA representing the opinions of various natural resource agencies, county officials, non-governmental organizations, and private entities. Six of the commenters expressed support for the proposal. One of the commenters in support of the proposal also suggested a few specific technical edits and clarifications be made to the draft EA, which we incorporated. The remaining two commenters provided comments expressing concerns about the proposal. Below we summarize our responses to all of the substantive issues raised regarding the proposed rule and draft EA.

Comment 1: One commenter noted disappointment in the short comment period, and felt that there was inadequate coordination with elected officials in developing the proposed introduction of endangered UCR spring-run Chinook salmon into the Okanogan River and tributaries.

Response: We provided a 45-day comment period starting on October 24, 2013, and ending on December 9, 2013. We did not receive requests from commenters for a review period extension.

We believe that there was adequate coordination with elected officials and the public in the development of the proposed NEP. The reintroduction of spring-run Chinook salmon into the Okanogan River subbasin was included as a recommended action in the 2007 Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan. The Recovery Plan was developed in close collaboration with the Upper Columbia Salmon Recovery Board with extensive involvement of elected officials, state and tribal co-managers, and other stakeholders throughout the region. In 2011, we published an Advance Notice of Proposed Rulemaking in the Federal Register (76 FR 42658; July 16, 2011) notifying the public of our intention to develop a proposal for reintroduction, and describing opportunities for public engagement. Additional opportunities for input and engagement were highlighted in the proposed rule (78 FR 63439; October 24, 2013). We met with the Okanogan County Commissioners on December 5, 2011, and on November 5, 2013. On those same dates we also convened public meetings in Omak, Washington on the proposed reintroduction. These meetings were noticed in advance in local newspapers.

Comment 2: One commenter contended that there is a lack of credible historical evidence that the Okanogan Basin ever supported a viable population of spring-run Chinook salmon.

Response: We believe there is credible evidence that the Okanogan River subbasin historically supported a viable population of spring-run Chinook salmon (see section 3.2.1.1 of the EA for more detailed discussion). UCR spring-run Chinook salmon historically occurred in at least four systems in the Okanogan River subbasin: (1) Salmon Creek (Craig and Suomela, 1941), (2) tributaries upstream of Lake Osoyoos (Gartrell, 1936; Chapman et al., 1995; NPCC, 2004a), (3) Omak Creek (Fulton, 1968), and (4) the Similkameen River (Fulton, 1968).

Comment 3: One commenter expressed concern that there is inadequate habitat to support the reintroduction of UCR spring-run Chinook salmon.

Response: In the EA we evaluated whether the current water conditions would allow for a reintroduction program to succeed, and which areas of the Okanogan River subbasin currently have potential for year round rearing of UCR spring-run Chinook salmon (Section 3.5.4). We concluded that there is adequate tributary habitat to support UCR spring-run Chinook salmon in the United States portion of the Okanogan River subbasin.

Comment 4: One commenter expressed concern that the reintroduction of spring-run Chinook salmon will negatively impact other ESA listed and non-listed species.

Response: The reintroduction will not negatively impact other populations of UCR spring run Chinook salmon. The reintroduction effort will effectively reduce releases of Methow Composite hatchery smolts in the Methow subbasin by 200,000 out of a program goal of 600,000 smolts, and release them into the Okanogan River subbasin instead. Consequently the number of naturally spawning hatchery fish in the Methow subbasin is expected to be greatly reduced, by approximately one third, providing a large benefit to the endangered wild UCR spring-run Chinook salmon in the Methow subbasin. Apart from this benefit, life-history strategies for UCR spring-run Chinook salmon will not be affected by this action. The reintroduction effort into the Okanogan River subbasin is not expected to alter fisheries management outside of the action area and not expected to result in an increase in harvest impacts for UCR spring-run Chinook salmon or other listed species.

The proposed reintroduction is unlikely to negatively affect UCR summer/fall-run Chinook salmon populations. Spring-run Chinook salmon typically spawn prior to, and in different habitat than, summer/fall-run Chinook salmon habitat. Competition for spawning sites or redd superimposition is typically rare and in this case is not expected between the two species.

The reintroduction effort will not negatively impact UCR steelhead. Given the life-history differences between UCR spring-run Chinook salmon and steelhead (e.g., discrete run, spawn, and emergence timing), adverse ecological interactions between the experimental spring-run Chinook salmon population and steelhead are expected to be minimal. There is the possibility of some incidental take of UCR steelhead by activities directed at the experimental population (e.g., handling of steelhead that is incidental to the collection of spring-run Chinook broodstock). However, the level of incidental take of UCR steelhead is expected to be minimal, and non-lethal. Additionally, while the limited protective regulations in this final rule will apply to the nonessential experimental population of UCR spring-run Chinook salmon, any actions that might directly or indirectly take steelhead in the Okanogan River subbasin must comply with the 4(d) protective regulations for West Coast steelhead (71 FR 5178; February 1, 2006).

Comment 5: One commenter was concerned about the genetic risks to the Methow population of spring-run Chinook salmon posed by “alien” stocks straying into the Methow subbasin from the reintroduction effort in the Okanogan River subbasin.

Response: No “alien” stocks of spring-run Chinook salmon would be used in the reintroduction program. The reintroduction effort will use Methow Composite hatchery stock, a stock originating in the Methow subbasin that is currently propagated at the Winthrop National Fish Hatchery. This stock is considered the most closely related to the historical spring Chinook salmon run in the Okanogan River subbasin and determined to be the best for the reintroduction program (see EA Subsection 2.5.3, Authorize the Reintroduction Using a Different Hatchery Stock). As previously mentioned, the proposed reintroduction program will likely reduce the impact of the Methow Composite stock on wild UCR spring-run Chinook salmon in the Methow subbasin by relocating the release of 200,000 smolts from the Methow River to the Okanogan River subbasin.

Comment 6: One commenter was concerned that harvest targeting reintroduced UCR spring-run Chinook salmon stocks would impede recovery by resulting in the over-harvest of co-mingled Methow subbasin salmon and steelhead.

Response: Although the wild Methow and the reintroduced UCR spring-run Chinook salmon populations would co-mingle in the ocean and mainstem Columbia River during adult migration, neither population will be marked with an adipose-fin clip and thereby be subjected to higher sport-harvest rates (see EA Subsection 1.7.1.2, Spring-run Chinook Salmon Reintroduction Program (Methow Composite Stock)). Successful reintroduction of an experimental UCR spring-run Chinook salmon population will expand the spatial distribution of the UCR Spring-run Chinook Salmon ESU in the Upper Columbia River Basin, thus aiding in recovery.

Comment 7: One commenter requested information regarding the effectiveness of a previous reintroduction effort by the CTCR in the Okanogan River subbasin using the Carson stock of hatchery spring-run Chinook salmon.

Response: CTCR staff informed us that Chinook smolts were released in the Okanogan River subbasin from 2002 through 2006 to evaluate the potential for a reintroduction program (see EA Subsection 2.5.3, Authorize the Reintroduction Using a Different Hatchery Stock). The Carson stock releases were terminated in 2006 in favor of obtaining a broodstock source more genetically similar to the historical Okanagan subbasin stock that would better support a long-term reintroduction program. We could not find any published literature on the effectiveness of the Carson spring-run Chinook salmon reintroduction efforts. According to CTCR staff, the 2002-2006 Carson stock reintroduction effort demonstrated that spring-run Chinook salmon could successfully rear in Omak Creek and emigrate out of the Okanogan River subbasin. The study was short-term and limited in scope. Additional information may be obtained from CTCR staff.

Comment 8: One commenter requested information regarding the designation of other nonessential experimental populations, and whether they had been successful.

Response: To date, NMFS has designated two nonessential experimental populations under section 10(j) of the ESA.

On January 15, 2013, NMFS designated Middle Columbia River steelhead reintroduced above the Pelton Round Butte Hydroelectric Project (Oregon) as a non-essential experimental population under section 10(j) of the ESA. For additional information see: http://www.gpo.gov/fdsys/pkg/FR-2013-01-15/html/2013-00700.html.

On December 31, 2013, NMFS issued a final rule establishing a nonessential experimental population of Central Valley spring-run Chinook salmon and associated protective regulations under section 4(d) of the ESA. For additional information see: http://www.westcoast.fisheries.noaa.gov/central_valley/san_joaquin/san_joaquin_reint.html.

NMFS has not had sufficient time yet to determine the effectiveness of these NMFS 10(j) reintroduction efforts.

The USFWS has used Section 10(j) of the ESA to reintroduce scores of threatened and endangered species throughout the U.S. For additional information see: http://ecos.fws.gov/ecos/home.action.

Comment 9: One commenter questioned whether the proposed reintroduction would divert resources away from recovery efforts targeting extant spring-run Chinook salmon populations, and expressed concerns that the reintroduction would impose a financial burden on Okanogan County ratepayers.

Response: Funds allocated to salmon recovery and habitat restoration by Public Utility Districts, the Bonneville Power Administration and other federal agencies are already established and would not change as a result of the reintroduction program. Because there would be no change or redirection of these allocated funds with, or without, the designation of UCR spring-run Chinook salmon as a NEP in the Okanogan River subbasin, the reintroduction program would not impose any additional financial burden on Okanogan County ratepayers.

Comment 10: Two commenters expressed concern that the introduction of spring-run Chinook salmon would bring additional regulatory burdens, and that the “threatened” status accompanying a nonessential experimental population might lead to an upgraded endangered status in the future.

Response: This is a concern that we have specifically sought to address throughout the rulemaking process, and as a result, no additional regulatory burdens would occur as a result of this designation. The underlying intent of the nonessential experimental population is to utilize the flexibility and discretion afforded under section 10(j) of the ESA to manage the introduced population in a manner that minimizes regulatory burdens and the potential risk of ESA liability to the local community. Section 10(j) allows us to promulgate tailored protective regulations to ensure that the potential implication(s) of the introduced population are minimized for private stakeholders. An exception to the take prohibitions was included in the proposed rule to address this specific concern by allowing take of spring-run Chinook in the NEP area that is incidental to an otherwise lawful activity (see section CFR 223.301(c)(3)(vi) in this final rule). In this final rule, we have included additional language in this exception to further protect individuals acting lawfully from the take prohibitions by clarifying that “any fish that is incidentally taken in a manner allowed by this paragraph may not be collected and must be immediately returned to its habitat.” This clarifying language will help ensure that an individual does not errantly retain, transport, or possess a fish outside of the Okanogan River NEP Area where the take prohibitions for endangered UCR spring-run Chinook salmon would apply.

The nonessential experimental population designation also minimizes the regulatory burden under section 7 of the ESA for federal actions. Section 10(j) allows that an experimental population deemed “nonessential” is treated as a species proposed for listing during interagency consultations under section 7 of the Act, requiring federal agencies to confer (rather than consult) with NMFS on actions that are likely to adversely affect the experimental population. Any recommendations that result from the conference are advisory in nature only, further minimizing any regulatory burden associated with the designation of the experimental population.

There is no risk that the reintroduced population will be upgraded to “endangered” status. The “threatened” status that accompanies the reintroduced nonessential experimental population designation will remain unchanged “in perpetuity” (see EA Subsection 4.1.1.5, Short-term and Long-term Timeframes Used for Analyses of the EA).

Comment 11: One commenter was concerned that the reintroduction will only serve to justify future acquisition of private lands for the purposes of habitat restoration and protection.

Response: We respectfully disagree that the reintroduction program will serve as justification for, or provide an incentive for, enhanced land acquisition for habitat conservation. The reintroduction program does not encourage nor require additional land acquisition to be successful. There is adequate potential spring-run Chinook salmon habitat available in the Okanogan River subbasin to support the reintroduction effort (see EA Subsection 3.5.4, Okanogan Subbasin Habitat Availability). Although the 10(j) designation is not a justification to acquire land for habitat conservation purposes, the CTCR and any other entity retain the legal rights to pursue land acquisitions in the Okanogan River subbasin to protect salmon and steelhead habitat. Similarly, landowners retain the legal right to pursue, accept and reject proposed property transactions as they see fit.

Comment 12: One commenter asked whether non-tribal members would be afforded equal harvest opportunities as tribal members on hatchery-origin UCR spring-run Chinook salmon from the Okanogan River subbasin.

Response: The CTCR is developing a fishery management plan to harvest returns to the Okanogan River subbasin if such harvest is required to reduce the proportion of naturally spawning hatchery-origin spring-run Chinook salmon. Washington Department of Fish and Wildlife has not submitted a harvest plan that would include recreational fishing for spring-run Chinook salmon in the Okanogan River subbasin. However, Washington Department of Fish and Wildlife may desire to coordinate with co-managers to set recreational fishing seasons in addition to regulations already established by the CTCR for tribal fisheries in the mainstem Columbia River above Wells Dam for Leavenworth spring-run Chinook salmon returning to the Chief Joseph Hatchery.

After review of the comments and further consideration, we have decided to adopt the proposed rule that was published in the Federal Register (78 FR 63439) on October 24, 2013, with only non-substantive editorial changes. Minor modifications were made to remove unnecessary regulatory language and provide clarity. The modifications make no change to the substance of the rule.

Based on the best available information, we determine that the release of a NEP of UCR spring-run Chinook salmon in the Okanogan River NEP Area will further the conservation of UCR spring-run Chinook salmon. Fish used for the reintroduction will come from the Methow Composite hatchery program located at Winthrop National Fish Hatchery. These fish are included in the UCR spring-run Chinook salmon ESU and have the best chance to survive and adapt to conditions in the Okanogan River subbasin (Jones et al., 2011). They are expected to remain geographically separate from the existing three extant populations of the UCR spring-run Chinook Salmon ESU during the life stages in which the NEP remains in, or returns to, the Okanogan River; at all times when members of the NEP are downstream of the confluence of the Okanogan and Columbia Rivers, the experimental designation will not apply. Establishment of a fourth population of UCR spring-run Chinook salmon in the Okanogan River subbasin will likely contribute to the viability of the ESU as a whole. This experimental population release is being implemented as recommended in the 2007 Upper Columbia Spring Chinook Salmon and Steelhead Recovery Plan, while at the same time ensuring that the reintroduction will not impose undue regulatory restrictions on landowners and third parties.

We further determine, based on the best available information, that the designated experimental population is not essential to the ESU, because absence of the experimental population will not reduce the likelihood of survival of the ESU. An Okanogan spring-run Chinook salmon population is not a requirement for delisting because the population is extirpated. Implementation of habitat actions in the recovery plan are expected to increase the viability of the Methow, Wenatchee, and Entiat populations to meet ESU recovery criteria without establishment of an Okanogan population. We therefore designate the released population as a Nonessential Experimental Population.

In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review pursuant to the Information Quality Act (Section 515 of Pub. L. 106-554) in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. The peer review requirements of the OMB Bulletin apply to influential or highly influential scientific information disseminated on or after June 16, 2005. There are no documents supporting this final rule that meet these criteria.

This final rule has been determined to be not significant under Executive Order (E.O.) 12866.

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 801 et seq. ), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

The Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy at the Small Business Administration at the proposed rule stage that this rule will not have a significant economic effect on a substantial number of small entities. No comments were received regarding the economic impact of this final rule on small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. Because this rule requires no additional regulations on small entities and would impose little to no regulatory requirements for activities within the affected area, a final regulatory flexibility analysis is not required and one was not prepared.

In accordance with E.O. 12630, the final rule does not have significant takings implications. A takings implication assessment is not required because this rule: (1) would not effectively compel a property owner to have the government physically invade their property, and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This rule would substantially advance a legitimate government interest (conservation and recovery of a listed fish species) and would not present a barrier to all reasonable and expected beneficial use of private property.

In accordance with E.O. 13132, we have determined that this final rule does not have federalism implications as that termed is defined in E.O. 13132.

OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ), require that Federal agencies obtain approval from OMB before collecting information from the public. A Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. This final rule does not include any new collections of information that require approval by OMB under the Paperwork Reduction Act.

In compliance with all provisions of the National Environmental Policy Act of 1969, we have analyzed the impact on the human environment and considered a reasonable range of alternatives for this final rule. We made the draft EA available for public comment along with the proposed rule, received one set of comments, and responded to those comments in an Appendix to the EA. We have prepared a final EA and FONSI on this action and have made these documents available for public inspection (see ADDRESSES section).

E.O. 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the federal government in matters affecting tribal interests. If we issue a regulation with tribal implications (defined as having a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes) we must consult with those governments or the Federal Government must provide funds necessary to pay direct compliance costs incurred by tribal governments.

The CTCR Reservation lies within the experimental population area. In 2010 staff members of CTCR met with NMFS staff. They discussed the Tribe's developing proposal to reintroduce UCR spring-run Chinook salmon in the Okanogan River subbasin and designate it as an ESA 10(j) experimental population.

Since that meeting CTCR and NMFS staffs have been in frequent contact, including explaining the rule-making process and evaluations involved in reviewing any proposal from the Tribes. These contacts and conversations included working together on public meetings held in Okanogan and Omak, WA (December 5, 2011, and November 5, 2013) and monthly status/update calls describing activity associated with the NEPA and ESA reviews associated with the proposal and final rules.

In addition to frequent contact and coordination among CTCR and senior NMFS technical and policy staff, we also discussed hatchery production changes affected by the Chief Joseph Hatchery and the associated aspects of the 10(j) proposal with the Parties to United States v. Oregon (Confederated Tribes and Bands of the Yakama Nation, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of the Warm Springs Reservation of Oregon, Nez Perce Tribe, and the Shoshone-Bannock Tribes of the Fort Hall Reservation; the States of Washington, Oregon, and Idaho; and the United States (NMFS, USFWS, Bureau of Indian Affairs, and the Department of Justice)). The current 2008-2017 United States v. Oregon Management Agreement (2008) anticipated the development of the Chief Joseph Hatchery. Footnote #5 to Table B-1 Spring Chinook Production for Brood Years 2008-2017 states that the parties to the Agreement “anticipate that the proposed Chief Joseph Hatchery is likely to begin operations during the term of this Agreement. The Parties agree to develop options for providing . . . spring Chinook salmon eggs to initiate the Chief Joseph program when it comes online.” (p. 99). This will include coordinating with the “Production Advisory Committee” (PAC) which is responsible to “coordinate information, review and analyze . . . future natural and artificial production programs . . . and to submit recommendations to the management entities.” (p. 14) The U.S. v Oregon Policy Committee, in February 2012, approved changes to the Agreement that identified the marking and transfer of 200,000 UCR spring-run Chinook salmon pre-smolts to Okanogan River acclimation ponds, and the prioritization of this production, in relation to other hatchery programs in the Methow River subbasin. The footnote has been modified to reflect these changes. The PAC includes technical representatives from ” . . . the Warm Springs Tribe, the Umatilla Tribes, the Nez Perce Tribe, the Yakama Nation, and the Shoshone-Bannock Tribes.” (p.14). It is these technical representatives who will review adult management proposals associated with this final rule. Those representatives are senior staff from the identified tribes and will be in communication with their respective governments. We invite meetings with tribes to have detailed discussions that could lead to government-to-government consultation meetings with tribal governments. We will continue to coordinate with the affected tribes.

A complete list of all references cited in this final rule is available upon request (see FOR FURTHER INFORMATION CONTACT ).

For the reasons set out in the preamble, part 223 of chapter II, title 50 of the Code of Federal Regulations, is amended as follows.

NMFS manages the groundfish fishery in the (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2014 initial TAC and TAC of “other flatfish” in the BSAI were established as 2,253 metric tons (mt) and 2,650 mt, respectively, by the final 2014 and 2015 harvest specifications for groundfish of the BSAI (79 FR 12108, March 4, 2014). In accordance with § 679.20(a)(3) the Regional Administrator, Alaska Region, NMFS, has reviewed the most current available data and finds that the ITAC and TAC for “other flatfish” in the BSAI needs to be supplemented from the non-specified reserve to promote efficiency in the utilization of fishery resources in the BSAI and allow fishing operations to continue.

Therefore, in accordance with § 679.20(b)(3), NMFS apportions from the non-specified reserve of groundfish 2,247 mt to the ITAC and 1,850 mt to the TAC for “other flatfish” in the BSAI. These apportionments are consistent with § 679.20(b)(1)(i) and do not result in overfishing of any target species because the revised TAC is equal to or less than the specifications of the acceptable biological catch of 12,400 mt in the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014).

The harvest specification for the 2014 TAC included in the harvest specifications for groundfish in the BSAI is revised to 4,500 mt for “other flatfish.”

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.20(b)(3)(iii)(A) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the apportionment of the non-specified reserves of groundfish to the “other flatfish” fishery in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of June 26, 2014.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Under § 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action (see ADDRESSES ) until July 23, 2014.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.