The Bureau issues this interim final rule to address certain debt collector conduct associated with an eviction moratorium issued by the CDC. This interim final rule applies to debt collectors, as that term is defined in the FDCPA. The FDCPA establishes broad consumer protections and prohibits debt collectors from engaging in harassment or abuse, making false or misleading representations, or engaging in unfair practices in debt collection.

On March 29, 2021, the CDC extended an existing agency order that imposes an eviction moratorium that generally limits the circumstances in which certain persons may be evicted from residential property. The Bureau is concerned that consumers are not aware of their protections under the CDC Order's eviction moratorium and that FDCPA-covered debt collectors may be engaging in eviction-related conduct that violates the FDCPA.

This interim final rule amends Regulation F, which implements the FDCPA, to require debt collectors to provide written notice to certain consumers of their protections under the CDC Order's eviction moratorium and to clarify that certain misrepresentations are prohibited. More specifically, § 1006.9 prohibits certain acts by debt collectors that undermine the purpose and effectiveness of the CDC Order's eviction moratorium to prevent the further spread of COVID-19. Section 1006.9(a) and (b) sets forth the purpose and coverage of subpart B and defines certain terms used in the subpart, and § 1006.9(c) identifies the prohibited acts. The Bureau is adopting § 1006.9 pursuant to its authority under FDCPA section 814(d) to write rules with respect to the collection of debts by debt collectors and, with respect to § 1006.9(c), pursuant to its authority to interpret FDCPA sections 807 and 808.

In 1977, Congress passed the FDCPA  1 to eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. 2 The statute was a response to “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors.”  3 According to Congress, these practices “contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.”  4 Among other things, the FDCPA establishes broad consumer protections and prohibits debt collectors from engaging in harassment or abuse, 5 making false or misleading representations, 6 and engaging in unfair practices in debt collection. 7

The FDCPA, in general, applies to debt collectors as that term is defined under the statute. 8 The Bureau has authority under the FDCPA to prescribe substantive rules with respect to the collection of debts by debt collectors. 9 This interim final rule amends existing Regulation F, 12 CFR part 1006. 10

On January 31, 2020, the Department of Health and Human Services declared a public health emergency for the entire United States to aid the nation's healthcare community in responding to the 2019 novel coronavirus (COVID-19) pandemic. 11 By the end of August 2020, there were over 5,500,000 COVID-19 cases identified in the United States and over 174,000 deaths related to the disease. 12

On September 4, 2020, the CDC published an agency order (CDC Order or Order) entitled “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19.”  13 Citing the historic threat to public health posed by the COVID-19 pandemic, the CDC, pursuant to section 361 of the Public Health Service Act, issued an eviction moratorium that generally limits the circumstances in which certain persons may be evicted from residential property. 14 According to the CDC, eviction moratoria help protect public health in several ways. First, eviction moratoria encourage self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition. 15 Second, eviction moratoria allow State and local authorities to more easily implement stay-at-home and social distancing directives to mitigate the community spread of COVID-19. 16 Third, eviction moratoria limit the likelihood of individuals moving into close quarters in congregate or shared living settings, such as homeless shelters, which then puts individuals at higher risk of contracting COVID-19. 17

The CDC Order initially was set to expire on December 31, 2020. 18 The CDC Order has been extended three times and currently is set to expire on June 30, 2021. 19 In the most recent extension on March 29, 2021, the CDC emphasized the continued threat to public health posed by COVID-19. The CDC stated that, as of March 25, 2021, over 29,700,000 cases had been identified in the United States and there were over 540,000 deaths due to the disease. 20 Further, the CDC stated that, although transmission of COVID-19 has decreased since a peak in January 2021, the number of cases per day has remained almost twice as high as the initial peak in April 2020 and transmission rates are similar to the second peak in July 2020. 21 The CDC stated in its most recent extension of the Order that despite higher rates of vaccine coverage, the relaxing of community mitigation efforts may continue to expose vulnerable populations to higher-than-average infection rates. 22 The Order also described the global emergence of new variants of the virus that studies have shown are more easily transmitted and may increase mortality. 23

The CDC Order generally prohibits a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action from evicting for non-payment of rent any person protected by the CDC Order  24 from any residential property in any jurisdiction in which the CDC Order applies. 25 This prohibition applies, without limitation, to an agent or attorney acting on behalf of a landlord or owner of the residential property. 26 To be a “covered person” under the CDC Order's eviction moratorium, a person must submit a written declaration under penalty of perjury attesting to certain eligibility criteria generally establishing that, because of the person's financial situation, the person is unable to make full rental payments and, if evicted, likely would become homeless or would be required to move into a congregate or shared living setting. 27

The CDC Order defines “evict” and “eviction” as any action by a landlord or owner of a residential property—which also includes an agent or attorney acting on behalf of the landlord or the owner of the residential property—or any other person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a person protected by the CDC Order from a residential property. 28 The CDC Order does not cover foreclosure on a home mortgage. 29 The CDC Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in the CDC Order. 30 Moreover, the CDC Order does not preclude evictions unrelated to the non-payment of rent. 31 The CDC Order does not bar a landlord, residential property owner, or their representative, including an attorney, from filing an eviction action in court, but it does prohibit the physical removal of a person from the property if the person meets the criteria and submits the declaration. 32 Since the person must file a declaration to obtain this protection, however, a person must first be aware that the CDC Order exists and may apply to them.

To respond to the public health threat posed by the COVID-19 pandemic, Federal, State, and local governments have taken a variety of actions, including restrictions on travel, stay-at-home orders, and mask requirements. 33 In addition to the CDC Order's eviction moratorium, governments have established other eviction moratoria to alleviate the economic and public health consequences of the COVID-19 pandemic. For instance, section 4024 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)  34 provided a temporary moratorium on eviction filings as well as other protections for tenants in certain rental properties with Federal assistance or federally related financing. State and local governments have also implemented temporary eviction moratoria, rent freezes, and rental assistance programs. 35

In the wake of the COVID-19 pandemic, the Bureau has taken numerous steps to protect and assist consumers facing possible eviction and housing insecurity. 36 On March 29, 2021, the Bureau's Acting Director and the Federal Trade Commission's Acting Chairwoman issued a joint statement regarding their agencies' work to help stop illegal evictions and protect American consumers facing economic hardship due to COVID-19. 37 This interim final rule aims to complement this and other efforts the Bureau has initiated since the onset of the COVID-19 pandemic to assist consumers and to protect those most vulnerable to harms arising from violations of Federal consumer financial protection law.

When a consumer becomes delinquent on rental payments, landlords, residential property owners, or their agents (which may include attorneys acting on their behalf) typically seek to bring the consumer's account current. Landlords, residential property owners, or their agents may engage in oral or written communication with tenants and may arrange payment schedules or reduced payments. 38 The Bureau understands that a significant number of landlords and residential property owners hire debt collectors for pre-eviction collections.

If efforts to resolve the unpaid rent are not successful, a landlord, residential property owner, or their agent may seek to evict the tenant from the property. In order to remove a tenant from the property through legal process, the landlord, residential property owner, or their agent typically must first provide notice to the tenant of their intent to evict and, if the tenant does not bring the account current or leave the premises, then file an eviction action in court, often with a claim of back rent. These eviction processes are governed primarily by State or local law. While some landlords or residential property owners may represent themselves in court, the Bureau understands that a large segment of landlords or residential property owners hire an attorney to conduct eviction proceedings on their behalf. 39

FDCPA section 803(5) defines “debt” as any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. A consumer's unpaid residential rent would typically fall within the FDCPA's definition of debt because it is an obligation of a consumer to pay money arising out of a transaction for personal, family, or household purposes. FDCPA section 803(6) generally defines “debt collector” as any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 40 Attorneys who regularly engage in debt collection activity, even when that activity consists of litigation, are debt collectors as defined in the FDCPA. 41 Therefore, attorneys who engage in eviction proceedings on behalf of landlords or residential property owners to collect unpaid residential rent may be “debt collectors” as defined by the FDCPA. 42

The COVID-19 pandemic has had extraordinarily widespread and adverse effects on the economy. Since the start of the COVID-19 pandemic, employment has fallen dramatically in response to public health measures and diminishing consumer demand. 43 Renters have been particularly impacted by these economic trends. Renters are more likely than homeowners to have become unemployed or experienced decreasing income during the COVID-19 pandemic. 44 In addition, renters tend to have less savings than homeowners and are therefore more vulnerable to economic shocks. 45 By the end of 2020, 8.8 million rental households were behind in their rental obligations. 46 The average delinquent rental household owed more than $5,000. 47 Even as the economy and the labor market have begun to improve in 2021, substantial rental debt remains. 48

The COVID-19 pandemic, furthermore, has disproportionately impacted the housing security of minority and low-income households. Black and Hispanic households have been significantly more likely than other types of households to accrue rental debt. 49 As of December 2020, households with incomes below $75,000 were more than twice as likely to be behind on rental obligations than households with incomes above $75,000. 50

Individuals and families who are at risk of losing their housing because of delinquent rent face dire personal and financial consequences. As the Bureau explained in the CFPB Housing Insecurity Report, families that do not have access to safe, affordable, and stable housing (also referred to as housing insecurity) face the prospects of homelessness as well as a host of other negative outcomes, such as higher rates of depression, higher rates of suspension and expulsion from school, and increased risks of chronic health conditions. In the midst of a global pandemic, housing insecurity can make it difficult for renters to comply with public health measures such as quarantining or restricting the number of close contacts. 51 Federal, State, and local eviction moratoria have slowed the pace of evictions, but thousands of renters are still evicted weekly. 52 According to the CFPB Housing Insecurity Report, as of December 2020, 9 percent of renters reported that it was likely they would be evicted in the next two months. 53 Approximately 16 percent of Black renters and 11 percent of Hispanic renters who were surveyed expressed this belief. 54 Data on eviction rates also suggests that minority renters are particularly vulnerable to eviction. 55

In addition to formal evictions, informal evictions can occur outside the judicial eviction process. Evidence suggests that informal evictions may be common. 56 Tenants may preemptively move out of rental housing to avoid an eviction filing, which may have negative consequences for the tenant whether or not the filing ultimately leads to physical removal. 57 Tenants may take this preemptive step, for example, to prevent the mere possibility of having an eviction judgment on their records because subsequent landlords may refuse to rent to tenants with an eviction history. This practice is sometimes referred to as “self-eviction.”  58 Such losses of rental housing may be comparable to evictions from the perspective of consumers, even if they are not evident in eviction filing statistics. Moreover, preliminary findings from one university research study indicate that informal evictions have increased during the COVID-19 pandemic, including situations where renters received texts, emails, or verbal communication from landlords telling them to leave; arrived home to find their doors locked or possessions removed; or moved even though they recognized their legal right to challenge the landlord's action, out of fear that the landlord would make their living situation difficult if they refused to leave. 59

That consumers may be unaware of their eligibility for temporary protection under the CDC Order and potentially other moratoria may explain the continuing rates of formal and informal evictions during the COVID-19 pandemic. Stakeholders, including consumer advocates and legal aid organizations, have expressed concerns to the Bureau that many consumers at risk of eviction either do not know about the CDC Order or, if they are aware of it, they may be under the mistaken impression that the Order's protections automatically apply or they otherwise may be uncertain about what steps they must take to avail themselves of the CDC Order's eviction protections. 60

A Government Accountability Office (GAO) report analyzing the effectiveness of COVID-19 eviction moratoria found that some renters may not fully understand that they have to take action to become protected under the CDC Order's eviction moratorium, and others may not understand all of the required steps, including how to submit the required declaration. 61 The GAO report included a comparison of jurisdictions subject to both the CDC Order and State or local moratoria with jurisdictions where only the CDC Order applied and found that the jurisdictions without separate State or local moratoria experienced larger increases in eviction filings. The GAO noted that, although comprehensive information does not exist on renter awareness of the CDC Order's protections, the increasing rate of eviction filings and the apparent need for State and local measures targeted at increasing awareness of the CDC Order's protections suggest that some renters and property owners may be unaware of the CDC Order or its requirements. 62 The GAO noted that “clear, accurate, and timely information” is “essential to keep the public informed during the COVID-19 pandemic.”  63 The GAO concluded that, as the COVID-19 pandemic persists, potentially millions of renters and property owners will continue to experience financial challenges, and that while the CDC Order provides some measure of relief to struggling renters, some renters facing eviction may be unaware of and unable to exercise the moratorium, and therefore unnecessarily evicted. 64

The Bureau also is aware of reports that even when renters are aware of the CDC Order and attempt to exercise their rights under the Order to halt evictions, they may be falsely informed that they are ineligible for temporary protection from eviction under the CDC Order or otherwise may be discouraged from submitting a declaration that could trigger a “covered person” designation under the CDC Order. 65 Numerous public reports and Bureau outreach with consumer advocates, legal aid organizations, and other stakeholders also suggest that parties to the eviction process may be engaged in other conduct in violation of Federal, State, or local eviction moratoria. 66

Consumer advocacy groups, legal aid organizations, housing organizations, faith groups, and other stakeholders have expressed concerns to the Bureau that debt collectors under the FDCPA are not abiding by the CDC Order. 67 This feedback includes, among other things, allegations that debt collectors have engaged in eviction-related conduct that in their view violates the FDCPA. 68 The Bureau has engaged in informal outreach with such groups and with industry participants. 69

The Bureau has concluded that consumer harms associated with evictions during the COVID-19 pandemic necessitate immediate action, specifically pertaining to the activity of debt collectors who are involved in the evictions process during the pendency of the CDC Order. For these reasons and the reasons discussed below, the Bureau is amending Regulation F in this interim final rulemaking to require certain debt collectors to provide written notice to certain consumers of their protections under the CDC Order's eviction moratorium and prohibit certain misrepresentations.

The Bureau believes that this rulemaking is appropriate during the COVID-19 pandemic, which presents extraordinary circumstances. 70 The Bureau will evaluate comments received on the interim final rule to determine whether it is appropriate to revise the amendments. The Bureau also will continue to monitor the market to assess consumers' experiences under the interim final rule.

As part of this rulemaking, the Bureau consulted with, or offered to consult with, the appropriate prudential regulators and other Federal agencies.

The Bureau is issuing this interim final rule pursuant to its authority under FDCPA section 814(d), which provides that the Bureau “may prescribe rules with respect to the collection of debts by debt collectors,” as defined in the FDCPA. 71 In particular, as discussed in part V, the provisions of this interim final rule are based on an interpretation of FDCPA sections 807 and 808. A debt collection rule published by the Bureau in November 2020 (the November 2020 Final Rule) provides an overview of how the Bureau interprets FDCPA sections 807 and 808. 72

FDCPA section 807 generally prohibits a debt collector from “us[ing] any false, deceptive, or misleading representation or means in connection with the collection of any debt.”  73 Then, “[w]ithout limiting the general application of the foregoing,” section 807 lists 16 examples of conduct that violate that section. 74 Similarly, FDCPA section 808 prohibits a debt collector from “us[ing] unfair or unconscionable means to collect or attempt to collect any debt.”  75 Then, “[w]ithout limiting the general application of the foregoing,” FDCPA section 808 lists eight examples of conduct that violate that section. 76 Consistent with the approach in the November 2020 Final Rule, 77 the Bureau interprets FDCPA sections 807 and 808 in light of: (1) The FDCPA's language and purpose; (2) the general types of conduct prohibited by those sections and, where relevant, the specific examples enumerated in those sections; and (3) judicial decisions.

By their plain terms, FDCPA sections 807 and 808 make clear that their examples of prohibited conduct do not “limit[ ] the general application” of those sections' general prohibitions. The FDCPA's legislative history is consistent with this understanding, 78 as are opinions by courts that have addressed this issue. 79 Accordingly, the Bureau may interpret the general provisions of FDCPA sections 807 and 808 to prohibit conduct that the specific examples in FDCPA sections 807 and 808 do not address if the conduct violates the general prohibitions. In addition, the Bureau uses the specific examples to inform its understanding of the general prohibitions. The Bureau also interprets FDCPA sections 807 and 808 in light of the significant body of existing court decisions interpreting those sections, which provide instructive examples of collection practices that are not addressed by the specific prohibitions in those sections but that nonetheless run afoul of the FDCPA's general prohibitions in sections 807 and 808. 80 Consistent with the majority of courts, the Bureau interprets FDCPA sections 807 and 808 to incorporate an objective, “unsophisticated” or “least sophisticated” consumer standard. 81 Finally, courts have found that a debt collector collecting back rent is subject to the FDCPA, including the statute's prohibitions on deception and unfairness. 82

Under the Administrative Procedure Act (APA), 83 notice and opportunity for public comment are not required if the Bureau for good cause finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest. 84 Similarly, publication of this interim final rule at least 30 days before its effective date is not required where the Bureau has identified good cause for a different effective date. 85

The Bureau finds that prior notice and public comment are impracticable and contrary to the public interest in consideration of the public health emergency caused by the COVID-19 pandemic and its effects on consumers. In particular, renters may be vulnerable to the negative economic impacts of the pandemic, which include an elevated risk of eviction, and the immediate health and safety consequences that are likely to ensue. 86 Citing the continuing health and safety risks posed by the COVID-19 pandemic, the CDC Order, as extended on March 29, 2021, maintains the eviction moratorium until June 30, 2021. As the CDC Order extension noted, although COVID-19 transmission has decreased since a peak in January 2021, the current number of cases per day remains almost twice as high as the initial peak in April 2020 and transmission rates are similar to the second peak in July 2020. 87 Since the CDC Order's eviction moratorium went into effect in September 2020, some debt collectors have engaged in evicting consumers from residential properties.

As discussed more fully in parts II and V, the Bureau has become aware in the months following the initial institution of the CDC Order's eviction moratorium that consumers who interact with these debt collectors may not be aware of their protections under the CDC Order and the steps they must take to avail themselves of such protections. 88 As explained below, the failure of debt collectors to disclose these protections can violate the FDCPA with immediate consequences to health and safety. At the same time, debt collectors who otherwise might disclose these protections may lack clear direction about how to do so to comply with the FDCPA. The Bureau also understands that some debt collectors may be engaging in misrepresentations regarding consumers' ineligibility for the CDC Order's protections. These challenges have emerged only after the CDC Order initially took effect, and the eviction moratorium effectuated by the CDC Order has recently been extended for a limited period. To provide necessary protection for consumers, particularly in light of the health and safety consequences of eviction, as well as clarity for debt collectors, it is critical that the interim final rule take effect as soon as practicable.

For similar reasons, the Bureau also finds that delaying this rulemaking to allow for prior public comment would be contrary to the public interest, because the interim final rule is necessary to avoid the harm to consumers and to address the lack of clarity for debt collectors that would result if the interim final rule did not take effect a short time after issuance. By identifying a practice that violates the FDCPA and identifying the means by which a debt collector may comply with the FDCPA while engaging in certain actions related to residential evictions, the interim final rule will benefit consumers while minimizing the burden on debt collectors.

For these reasons, the Bureau also finds that there is good cause for this interim final rule to be effective less than 30 days after publication, to ensure that this interim final rule is effective on May 3, 2021 and for the duration of the CDC Order's effective period and any extension thereof.

Section 1006.9 prohibits certain debt collection practices by debt collectors related to the global COVID-19 pandemic. More specifically, § 1006.9 prohibits certain acts by debt collectors that, by interfering with consumers' ability to protect themselves from eviction pursuant to the CDC Order, undermine the purpose of the CDC Order's eviction moratorium to prevent the further spread of COVID-19. Section 1006.9(a) and (b) sets forth the purpose and coverage of subpart B and defines certain terms used in the subpart, and § 1006.9(c) identifies the prohibited acts. The Bureau is adopting § 1006.9 pursuant to its authority under FDCPA section 814(d) to write rules with respect to the collection of debts by debt collectors and, with respect to § 1006.9(c), pursuant to its authority to interpret FDCPA sections 807 and 808.

Section 1006.9(a) identifies the purpose of subpart B of part 1006 and is consistent with FDCPA section 802, which sets forth the purpose of the FDCPA. 89 Pursuant to section 802, the purpose of the FDCPA is to eliminate abusive debt collection practices by debt collectors, to ensure that debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses. Section 1006.9(a) thus provides that the purpose of subpart B is to eliminate certain abusive debt collection practices by debt collectors related to the global COVID-19 pandemic, to ensure that debt collectors who refrain from using such abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against such debt collection abuses.

Section 1006.9(a) also identifies the coverage of subpart B. Section 1006.9(a) provides that subpart B applies to debt collectors, as defined in FDCPA section 803(6), 90 other than a person excluded from coverage by section 1029(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). 91 Section 1006.9(a) reflects the Bureau's FDCPA rulemaking authority as set forth in FDCPA section 814(d). 92

Section 1006.9(b)(1) provides that the terms “consumer,” “debt,” and “debt collector” have the meaning given to them in FDCPA section 803. 93 FDCPA section 803(3) defines “consumer” as any natural person obligated or allegedly obligated to pay any debt. 94 FDCPA section 803(5) defines “debt” as any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. 95 A consumer's unpaid residential rent would typically fall within the FDCPA's definition of debt because it is an obligation of a consumer to pay money arising out of a transaction for personal, family, or household purposes. 96 FDCPA section 803(6) generally defines “debt collector” as any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. FDCPA section 803(6)'s definition of “debt collector” also includes any creditor who, in the process of collecting its own debts, uses any name other than the creditor's own which would indicate that a third person is collecting or attempting to collect such debts.

Section 1006.9(b)(2) provides that the term “CDC Order” means the order issued by the CDC titled Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, as extended by the CDC. 97 As explained in part II, the CDC Order generally prohibits a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action from evicting for non-payment of rent any covered person from any residential property in any jurisdiction in which the Order applies during the effective period of the Order. 98 The CDC Order will remain in effect until June 30, 2021, unless extended, modified, or rescinded.

Section 1006.9(b)(3) provides that the term “eviction notice” means the earliest of any written notice that the laws of any State, locality, territory, or tribal area require to be provided to a consumer before an eviction action against the consumer may be filed. Not all jurisdictions require such a notice, and some jurisdictions may require more than one. The definition clarifies that, for purposes of this interim final rule, the term eviction notice refers to the earliest of any such notice that must be provided. Jurisdictions that do require such a notice may refer to the notice using different names. 99 The definition of eviction notice is meant to encompass all such required notices, regardless of the names by which those notices are known. Thus, comment 9(b)(3)-1 clarifies that the term eviction notice includes, for example, notices to quit, notices to pay rent or quit, and notices to terminate tenancy. As explained in the section-by-section analysis of § 1006.9(c)(1), a debt collector who provides a consumer with an eviction notice while the CDC Order is in effect may be required at that time to disclose to the consumer certain information about the CDC Order.

Section 1006.9(c) prohibits certain deceptive and unfair acts by debt collectors. As discussed further below, § 1006.9(c)(1) generally prohibits debt collectors from filing an eviction action against a consumer to whom the CDC Order reasonably might apply without disclosing that the consumer may be eligible for temporary protection from eviction under the CDC Order. Section 1006.9(c)(2) prohibits debt collectors from falsely representing or implying to a consumer that the consumer is not eligible for temporary protection from eviction under the CDC Order.

The prohibitions in § 1006.9(c) apply only if certain initial conditions are satisfied. First, because this interim final rule is designed to address deceptive and unfair debt collection practices with respect to the CDC Order, the prohibitions apply only during the effective period of the CDC Order, and only in jurisdictions in which the CDC Order is effective. As already noted, the CDC Order is set to expire on June 30, 2021, unless extended, modified, or rescinded. The CDC Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in the CDC Order. 100

Second, the prohibitions in § 1006.9(c) apply only to a debt collector's conduct in connection with the collection of a debt. That is because the Bureau is adopting § 1006.9(c) pursuant to its authority to interpret FDCPA sections 807 and 808, which prohibit certain conduct by debt collectors in connection with the collection of a debt. 101

According to the CDC, an eviction moratorium—like quarantine, isolation, and social distancing—can be an effective public-health measure to prevent the spread of COVID-19. 102 Evicted renters must move, which can increase the risk of COVID-19 spread, particularly given that, according to the CDC, a large number of evicted renters may move into close quarters in shared housing or become homeless. 103 In addition, according to the CDC, the risk of eviction for non-payment of rent is related to factors such as suffering a job loss, having limited financial resources, low income, or high out-of-pocket medical expenses. 104 As noted in part II, to qualify for the CDC Order's eviction moratorium, a person must submit a written declaration under penalty of perjury attesting to certain eligibility criteria generally establishing that, because of the person's financial situation, the person is unable to make full rental payments and, if evicted, likely would become homeless or would be required to move into a congregate or shared living setting. 105

Based on informal outreach to consumer advocates and other stakeholders discussed in part II, and the GAO report discussed in part II, 106 the Bureau understands that many consumers are unaware that they may be temporarily protected from eviction for nonpayment of rent under the CDC Order, or, if they are aware of the Order, they may believe its protections apply automatically or may not otherwise understand the steps needed to avail themselves of such protections. Consumers who are unaware of the CDC Order cannot evaluate whether they qualify for protection under the eligibility criteria set forth in the Order. Consumers who assume the protections apply automatically or do not understand the steps needed to exercise their protections may fail to take such necessary steps, including submitting a declaration. As a result, some consumers who otherwise might be permitted to remain in their homes during the pendency of the CDC Order may be evicted because they fail to claim such protection or may choose to leave before being evicted ( i.e., either before any eviction action is filed, or after an eviction action is filed but before any physical eviction takes place). And, as discussed in the CDC Order, evictions can undermine public health by contributing to the spread of COVID-19. Requiring debt collectors to disclose the existence of the CDC Order to certain consumers in certain circumstances will help to address these harms by increasing the likelihood that consumers will become aware of the Order, and that consumers eligible for protection under the Order will take the steps necessary to obtain and invoke that protection.

For these reasons, § 1006.9(c)(1) provides that, during the effective period of the CDC Order, a debt collector collecting a debt in any jurisdiction in which the Order applies must not, in connection with the collection of that debt, file an eviction action for non-payment of rent against a consumer to whom the CDC Order reasonably might apply without disclosing to that consumer clearly and conspicuously in writing, on the date that the debt collector provides the consumer with an eviction notice or, if no eviction notice is required by applicable law, on the date that the eviction action is filed, that the consumer may be eligible for temporary protection from eviction under the CDC Order.

Section 1006.9(c)(1) specifies that a debt collector must provide the disclosure only if the debt collector files an eviction action for non-payment of rent by the consumer. A debt collector who files an eviction action unrelated to the payment of rent would typically not be acting “in connection with the collection of a debt,” which is required for the FDCPA to apply. The disclosure requirement is consistent in this respect with the CDC Order, which specifies that the Order does not preclude evictions based on certain conduct by a tenant, lessee, or resident unrelated to the non-payment of rent. Specifically, the CDC Order does not preclude evictions based on a tenant, lessee, or resident: (1) Engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; (5) or violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest). 107

Comment 9(c)(1)-1 clarifies that a debt collector does not file an action to evict a consumer for non-payment of rent if the debt collector files the action based solely on the consumer engaging in one or more of the actions specified in the CDC Order as unrelated to the payment of rent. If a debt collector files an eviction action for non-payment of rent and other reasons unrelated to non-payment, the disclosure requirement applies. For ease of reference, this interim final rule refers to an eviction action that meets all of the conditions of § 1006.9(c)(1) ( i.e., filed by a debt collector during the effective period of the CDC Order, in a jurisdiction in which the Order applies, and for nonpayment of rent against a consumer to whom the Order reasonably might apply) as an “eviction action.”

Section 1006.9(c)(1) requires debt collectors to provide the disclosure only to consumers to whom the CDC Order reasonably might apply. Comment 9(c)(1)-2 clarifies that a consumer to whom the CDC Order reasonably might apply is a consumer who reasonably might be eligible to be a covered person as defined in the CDC Order. 108 Comment 9(c)(1)-2 also clarifies that a consumer is not reasonably eligible to be a covered person if the debt collector has knowledge that the consumer is not eligible for protection under the CDC Order. If a particular consumer would not actually qualify for temporary eviction protection under the CDC Order, then there is likely no deception or unfairness to cure, no consumer benefit from receiving a disclosure about the Order, and no reason to cause debt collectors to incur the expense of providing such a disclosure.

The Bureau recognizes that, given the multiple factual assertions to which a consumer must attest in the declaration before the protections of the CDC Order attach, in many circumstances it will be difficult for a debt collector to identify the consumers to whom the CDC Order reasonably might apply. Accordingly, § 1006.9(c)(1) does not require a debt collector to make an individualized determination as to a consumer's eligibility for protection under the CDC Order in connection with providing the disclosure. Comment 9(c)(1)-2 clarifies that nothing in § 1006.9(c)(1) prohibits a debt collector from providing the disclosure to a consumer even if the consumer might not reasonably be eligible to be a covered person. In addition, comment 9(c)(1)-2 clarifies that a debt collector may comply with the § 1006.9(c)(1) disclosure requirement by, for example, providing the disclosure to each consumer against whom the debt collector files an eviction action for non-payment of rent. 109 Comment 9(c)(1)-2 also clarifies that a debt collector does not violate FDCPA sections 807 or 808 merely because the debt collector provides the disclosure to consumers as described in comment 9(c)(1)-2 even if the consumer is not reasonably eligible to be a covered person.

Given that eligibility under the CDC Order depends on the consumer's personal circumstances and actions, the Bureau expects that, in most situations involving non-payment of rent, a debt collector will not know whether a consumer reasonably might be eligible for protection under the Order. The Bureau therefore expects that most debt collectors will provide the disclosure to most or all consumers to whom they provide an eviction notice for non-payment of rent or against whom they file an eviction action for non-payment of rent. The Bureau notes that § 1006.9(c)(1) requires debt collectors to disclose to consumers that the consumers “may” be eligible for temporary protection from eviction under the CDC Order. The Bureau believes that, in this context, the disclosure does not convey, impliedly or expressly, that the debt collector has determined that the consumer is eligible for protection under the CDC Order. Accordingly, nothing in the disclosure constitutes legal advice, and a debt collector does not violate the FDCPA by providing the disclosure to a consumer to whom the protection is not reasonably likely to apply or to whom the protection does not ultimately apply.

Section 1006.9(c)(1) requires a debt collector to provide the disclosure on the date that the debt collector provides the consumer with an eviction notice or, if no eviction notice is required by applicable law, on the date that the eviction action is filed. 110 Formal notices and court filings are likely to command a consumer's attention and crystallize the threat of eviction. Thus, requiring debt collectors to provide the disclosure on the same date as they provide these documents helps ensure that consumers receive information about the CDC Order when that information may be especially salient to them and they may be most likely to act on that information. Information about the CDC Order may be especially salient and important to a consumer when the consumer receives an eviction notice. Consumers who believe they qualify for protection under the CDC Order and receive the disclosure at that time may be less likely to leave the property of their own accord in the mistaken belief that the debt collector can physically evict them. 111 For consumers who do not receive an eviction notice, information about the CDC Order may be especially salient and important when an eviction action is filed. As noted above, the CDC Order does not prohibit the filing of eviction actions; the Order prohibits only the actual, physical removal of persons covered by the Order from their homes. 112 Thus, a consumer who receives the disclosure at the time an eviction action is filed will still be able to take action to obtain the CDC Order's protection before the harm the Order addresses ( i.e., physical removal) takes place. 113

Section 1006.9(c)(1) requires a debt collector to disclose to the consumer on the same date that—but not necessarily at the same time as—the debt collector provides the consumer with an eviction notice or files an eviction action. Accordingly, comment 9(c)(1)-3 clarifies that a debt collector may satisfy this requirement by, for example, delivering the disclosure to the address that is the subject of eviction proceedings; the debt collector is not required to ensure that the consumer actually receives the disclosure. Delivering the disclosure to the address that is the subject of the eviction proceedings, particularly if provided with the notice of eviction or eviction filing, makes it highly likely that the consumer will receive the disclosure. In light of this, requiring debt collectors to ensure that consumers actually receive the disclosure would be unduly burdensome for debt collectors. The Bureau also notes that the FDCPA's disclosure requirements generally do not require debt collectors to ensure actual receipt. 114

Additionally, the Bureau recognizes that, to minimize costs, a debt collector may wish to provide the disclosure at the same time that the debt collector provides the consumer with an eviction notice or serves the consumer with an eviction action. The Bureau does not believe that this would reduce the effectiveness of the disclosure for consumers. Therefore, comment 9(c)(1)-3 clarifies that a debt collector may provide the disclosure at the same time that the debt collector provides the consumer with any eviction notice or serves the consumer with any eviction action. For example, a debt collector may, but is not required to, include the disclosure in an envelope either on or with the eviction notice or in the same mailing in which the debt collector serves the consumer with an eviction action. 115

Comment 9(c)(1)-4 clarifies that § 1006.9(c)(1) does not require a debt collector to provide the disclosure more than once. Nevertheless, the Bureau also believes that a consumer who has been provided the disclosure once would not be harmed by receiving the disclosure again. Accordingly, comment 9(c)(1)-4 also clarifies that nothing in § 1006.9(c)(1) prohibits a debt collector from providing the disclosure more than once, such as in each subsequent communication with the consumer. Comment 9(c)(1)-4 further clarifies that, in addition, a debt collector does not violate FDCPA sections 807 or 808 merely because the debt collector provides the disclosure more than once.

As noted, § 1006.9(c)(1) requires the debt collector to disclose that the consumer may be eligible for temporary protection from eviction under the CDC Order. Comment 9(c)(1)-5 provides sample language that a debt collector may use to comply with this disclosure requirement. The sample language alerts consumers to the possibility of protection from eviction, prompts them to take follow-up steps, and directs them to further resources available on the Bureau's website and by telephone through the Department of Housing and Urban Development's Housing Counseling Program. Specifically, comment 9(c)(1)-5.i provides sample language that a debt collector may use to comply with this disclosure requirement if the debt collector is disclosing that the consumer may be eligible for temporary protection from eviction solely under the CDC Order. The sample language in comment 9(c)(1)-5.i states: “Because of the global COVID-19 pandemic, you may be eligible for temporary protection from eviction under Federal law. Learn the steps you should take now: visit www.cfpb.gov/eviction or call a housing counselor at 800-569-4287.”  116 Comment 9(c)(1)-5.i also clarifies that a debt collector does not violate FDCPA sections 807 or 808 merely because the debt collector provides the sample language in comment 9(c)(1)-5.i to a consumer in a jurisdiction in which the CDC Order does not apply.

The Bureau recognizes that the CDC Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the CDC Order. 117 Section 1006.9(c)(1) does not require debt collectors collecting debts in such jurisdictions to disclose such protections, but debt collectors may nevertheless wish to do so. 118 The Bureau also recognizes that a debt collector may be uncertain about whether the CDC Order or a State, local, territorial, or tribal moratorium applies in a particular jurisdiction because it may be unclear whether the CDC Order is more protective than any such moratorium. As a result, a debt collector may wish to disclose that the consumer may be eligible for temporary protection from eviction under the CDC Order or under State, local, territorial, or tribal law. Comment 9(c)(1)-5.ii provides alternative sample language that a debt collector may use to make such a disclosure while satisfying § 1006.9(c)(1). The sample language in comment 9(c)(1)-5.ii states: “Because of the global COVID-19 pandemic, you may be eligible for temporary protection from eviction under the laws of your State, territory, locality, or tribal area, or under Federal law. Learn the steps you should take now: visit www.cfpb.gov/eviction or call a housing counselor at 800-569-4287.” Comment 9(c)(1)-5.ii also clarifies that a debt collector does not violate FDCPA sections 807 or 808 merely because the debt collector provides the sample language in comment 9(c)(1)-5.ii to a consumer in a jurisdiction in which only the CDC Order applies or in which the CDC Order does not apply.

Section 1006.9(c)(1) requires the debt collector to make the disclosure clearly and conspicuously in writing. Requiring debt collectors to provide the disclosure to consumers clearly and conspicuously and in writing rather than electronically (such as by email) increases the likelihood in the context of eviction during the global COVID-19 pandemic that consumers will actually receive and understand the disclosure, since the Bureau expects that most debt collectors will provide the disclosure to the address that is the subject of eviction proceedings. Requiring debt collectors to provide the disclosure to consumers clearly and conspicuously and in writing rather than orally (such as during a telephone call) increases the likelihood that consumers will retain the disclosure, refer back to it if necessary, and act upon it if appropriate. Comment 9(c)(1)-6 clarifies that clear and conspicuous means readily understandable. In addition, the comment clarifies that the location and type size also must be readily noticeable and legible to consumers, although no minimum type size is mandated.

The Bureau is finalizing § 1006.9(c)(1) as an interpretation of FDCPA sections 807 and 808, pursuant to its authority under FDCPA section 814(d) to prescribe rules with respect to the collection of debts by debt collectors. FDCPA section 807 generally prohibits debt collectors from using any false, deceptive, or misleading representation or means in connection with the collection of any debt. In addition, FDCPA section 807(2)(A) specifically prohibits falsely representing the character, amount, or legal status of any debt; FDCPA section 807(4) specifically prohibits representing or implying that non-payment of a debt will result in, among other things, the seizure or sale of any property unless such action is lawful and the debt collector or creditor intends to take such action; and FDCPA section 807(5) specifically prohibits threatening to take any action that cannot legally be taken or that is not intended to be taken.

Because of the continuing health and safety risks posed by the COVID-19 pandemic, the CDC Order provides temporary protection to certain consumers against whom a covered eviction action is filed. A debt collector who nevertheless files a covered eviction action against a consumer may explicitly or implicitly represent to the consumer that the consumer is not eligible, and could not become eligible, for protection under the CDC Order. 119 This representation is false or misleading when made to consumers who are eligible, or could become eligible, for protection under the CDC Order (such as if they submitted a declaration). Further, such a misrepresentation is similar to a false representation of the character and legal status of a debt, which FDCPA section 807(2)(A) specifically prohibits. It is also similar to a false representation that non-payment will result in the seizure or sale of property. And it is similar to a threat to take an action that cannot legally be taken, which FDCPA section 807(5) specifically prohibits. The disclosure required by § 1006.9(c)(1) corrects this false representation by informing consumers that temporary protection from eviction may be available under the CDC Order.

FDCPA section 808 generally prohibits a debt collector from using unfair or unconscionable means to collect or attempt to collect any debt. In addition, FDCPA section 808(6)(C) specifically prohibits a debt collector from taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if the property is exempt by law from such dispossession or disablement. As explained above, the Bureau believes that many consumers are unaware that they may be temporarily protected under the CDC Order from eviction for non-payment of rent. As also explained above, the Bureau believes that lack of awareness about the CDC Order, including that the protections are not automatic and the requirement that the consumer provide a declaration, causes some consumers who would be eligible for such temporary protection to forgo it. For such consumers—and for public health more broadly—this harm is significant. Furthermore, evicting a consumer who would have been protected under the CDC Order, had the consumer known about the CDC Order, is similar to taking an action to effect dispossession of property that is exempt from such dispossession. For these reasons, the Bureau concludes that a debt collector violates FDCPA section 808's prohibition on unfairness by filing a covered eviction action against a consumer without disclosing to the consumer clearly and conspicuously in writing, on the date that the debt collector provides the consumer with an eviction notice or, if no eviction notice is required by applicable law, on the date that the eviction action is filed that the consumer may be eligible for temporary protection from eviction under the CDC Order.

The Bureau understands, based on informal outreach to consumer advocates and other stakeholders, that some debt collectors may have falsely represented or implied to consumers that those consumers are ineligible for protection under the CDC Order. 120 False statements about a consumer's ineligibility for protection under the CDC Order may cause an eligible consumer to forgo that protection, possibly leading to the consumer's departure or eviction from residential property in which the consumer otherwise would have been entitled to remain for the duration of the CDC Order's eviction moratorium. Such departures or evictions can contribute to the spread of COVID-19 by forcing consumers to move, often into close quarters in shared or congregate housing settings. 121

For these reasons, § 1006.9(c)(2) provides that, during the effective period of the CDC Order, a debt collector collecting a debt in any jurisdiction in which the Order applies must not, in connection with the collection of that debt, falsely represent or imply to a consumer that the consumer is ineligible for temporary protection from eviction under the CDC Order. The Bureau is finalizing § 1006.9(c)(2) as an interpretation of FDCPA section 807, pursuant to its authority under FDCPA section 814(d) to prescribe rules with respect to the collection of debts by debt collectors. As noted above, FDCPA section 807 generally prohibits debt collectors from using any false, deceptive, or misleading representation or means in connection with the collection of any debt. A debt collector who, in connection with the collection of a debt, falsely represents or implies to a consumer that the consumer is ineligible for protection under the CDC Order uses false, deceptive, or misleading means to collect the debt. Such activity therefore violates FDCPA section 807.

The interim final rule adds Supplement I to Regulation F to publish official interpretations of the regulation ( i.e., commentary). Comment I-1 explains that the commentary is the Bureau's vehicle for supplementing Regulation F and that the provisions of the commentary are issued under the same authorities as the corresponding provisions of Regulation F and in accordance with the notice-and-comment procedures of the APA.

This interim final rule is effective on May 3, 2021. Although this interim final rule is being issued without notice and opportunity for comment for the good cause reasons described in part IV above ( i.e., the vulnerability of renters to the negative economic impacts of the pandemic, the risk of eviction, and the health and safety consequences that may ensue), the interim final rule will impose a new disclosure requirement on debt collectors. Consequently, debt collectors may need some time to become aware of the new disclosure requirement and implement it into their processes and systems to the extent they are engaged in the evictions process. The Bureau does not believe that a lengthy compliance period is necessary, however, in view of the disclosure's short length and simplicity, and because the disclosure does not need to be customized to the specific consumer. 122 The Bureau also plans on engaging in robust regulatory implementation and consumer education efforts to increase stakeholder awareness of the interim final rule. The compliance period thus balances these considerations.

In developing this interim final rule, the Bureau has considered the potential benefits, costs, and impacts as required by section 1022(b)(2)(A) of the Dodd-Frank Act. 123 Specifically, section 1022(b)(2)(A) of the Dodd-Frank Act requires the Bureau to consider the potential benefits and costs of a regulation to consumers and covered persons, including the potential reduction of access by consumers to consumer financial products or services, the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the Dodd-Frank Act, and the impact on consumers in rural areas. The Bureau consulted with appropriate prudential regulators and other Federal agencies regarding the consistency of this interim final rule with prudential, market, or systemic objectives administered by such agencies, as required by section 1022(b)(2)(B) of the Dodd-Frank Act.

This interim final rule amends Regulation F, which implements the FDCPA. The interim final rule addresses certain debt collector conduct associated with an eviction moratorium issued by the CDC in response to the COVID-19 pandemic. The amendments would require that debt collectors provide written notice to certain consumers of their protections under the CDC Order and prohibit misrepresentations about consumers' ineligibility for protection under such moratorium.

This interim final rule's purpose is to prevent debt collectors from making false or misleading representations or engaging in unfair practices associated with the eviction moratorium issued by the CDC. As stated above, the CDC Order generally prohibits consumers protected by the CDC Order from physical removal from residential property for non-payment of rent. To be covered by the CDC Order, a person must submit a written declaration under penalty of perjury attesting to certain eligibility criteria generally establishing that, because of the person's financial situation, the person is unable to make full rental payments and, if evicted, would likely become homeless or would be required to move into a congregate or shared living setting.

Despite the eviction moratorium, physical removals of consumers from residential property have continued, potentially including consumers who may have been eligible for protection under the CDC Order. As discussed above, the GAO found that some renters may not fully understand that they have to take action to become protected under the CDC Order's eviction moratorium, and others may not understand all of the required steps, including how to submit the required declaration. 124 The GAO concluded that, as the COVID-19 pandemic persists, potentially millions of renters and property owners will continue to experience financial challenges, and that while the CDC Order provides some measure of relief to struggling renters, some renters facing eviction may be unaware of and unable to exercise the moratorium, and therefore unnecessarily evicted. 125 This interim final rule prohibits debt collectors, in certain circumstances, from filing an eviction action for non-payment of rent against a consumer to whom the CDC Order reasonably might apply without disclosing to that consumer in writing that the consumer may be eligible for temporary protection from eviction under the CDC Order. The interim final rule also clarifies that debt collectors, in certain circumstances, must not falsely represent or imply to a consumer that the consumer is ineligible for temporary protection from eviction under the CDC Order. Therefore, this interim final rule may increase awareness of the CDC Order for consumers who do not know about the CDC Order or who do not understand the specific steps needed to avail themselves of the CDC Order's temporary protections. This, in turn, may encourage consumers to invoke the CDC Order's protections and subsequently reduce the number of physical removals that the CDC Order is intended to prevent.

The discussion below relies on publicly available sources, including reports published by the Bureau. These sources form the basis for the Bureau's consideration of the likely impacts of the interim final rule. To the extent possible, the Bureau provides estimates of the potential benefits and costs to consumers, covered persons, and landlords and residential property owners of this interim final rule given available data. However, the data with which to quantify the potential costs, benefits, and impacts of the interim final rule are generally limited.

For the purpose of this analysis, the Bureau uses, among other sources, publicly available data on eviction filings provided by the Eviction Lab at Princeton University. The Bureau analyzed two datasets from the Eviction Lab. The Eviction Lab Eviction Tracking System (ETS) collects records of eviction case filings weekly for 27 cities across the United States. The Bureau analyzed data from those 27 cities through March 20, 2021. Second, the Bureau analyzed Eviction Lab data from 2000 to 2016 that counts eviction filings nationally.

However, the Bureau does not have sufficient data that would allow it to reliably estimate the national quantity of other relevant aspects of the eviction process, such as eviction notices or the physical removal of consumers from residential property. As explained below, a more complete characterization of the benefits and costs of this interim final rule requires a full catalog of eviction-related events and the economic circumstances of the affected consumers. The Bureau is not aware of the existence of such data.

In light of these data limitations, the analysis below generally includes a qualitative discussion of the benefits, costs, and impacts of the interim final rule, rather than a quantitative analysis. General economic principles and the Bureau's expertise in consumer financial markets, together with the limited data that are available, provide insight into these benefits, costs, and impacts.

The Bureau considers the benefits, costs, and impacts of the interim final rule against a current law baseline that assumes the Bureau takes no action. Under the baseline, the CDC Order continues to be in effect until June 30, 2021. 126 The assumed baseline assumes that rental assistance remains available to eligible consumers through the Department of Treasury's Emergency Rental Assistance Program along with eviction moratoria, rent freezes, and rental assistance programs implemented by State and local governments. 127 These policies affect the number of renters at risk of eviction under the baseline.

The analysis of this interim final rule's benefits and costs separately examines consumers and covered persons. Specifically, the analysis of the costs and benefits associated with this interim final rule examines the direct and indirect effects on consumers, their landlords and other residential property owners, and debt collectors, as defined by the FDCPA.

The interim final rule is intended to help ensure that consumers who may face an eviction proceeding as a result of non-payment of rent are aware of temporary eviction protections under the CDC Order and are not misled about their ineligibility for such protections.

Under the baseline, consumers who are unaware of the CDC Order may be removed from the property even though they would have been eligible for the Order's protection had they taken certain steps. 128 Some consumers may be unaware of the eviction protections available under the CDC Order and therefore may move out following receipt of an eviction notice but before a formal eviction action is filed or judgment issued. 129 Some consumers may be falsely informed that they are ineligible for the CDC Order's protections.

This interim final rule prohibits debt collectors from filing an eviction action in a jurisdiction in which the CDC Order applies without disclosing to certain consumers in writing that they may be eligible for protections from eviction. The interim final rule further clarifies that debt collectors are prohibited from falsely representing or implying to a consumer that the consumer is ineligible for temporary protection from eviction under the CDC Order. Therefore, this interim final rule may help to ensure that consumers learn about the CDC Order and take advantage of its temporary protections when appropriate. In turn, the interim final rule may reduce physical removals that the CDC Order is intended to prevent. Accordingly, this interim final rule may subsequently reduce the number of consumers who become homeless or are required to move into a congregate or shared living setting, the related spread of COVID-19, and other related negative economic as well as health and safety consequences. 130

The Bureau expects that the consumers who will be most directly affected by the interim final rule are those in jurisdictions in which the CDC order applies who would receive eviction notices or be the subject of a covered eviction action between the effective date of this interim final rule and June 30, 2021. These renters may not currently be aware of the temporary protection from eviction under the CDC Order. This interim final rule would prohibit a debt collector from filing a covered eviction action against a consumer without disclosing to the consumer that the consumer may be eligible for temporary protection from eviction under the CDC Order. 131 The disclosure must be provided on the date that the debt collector provides the consumer with an eviction notice or, if no eviction notice is required by applicable law, on the date that the eviction action is filed.

Ideally, an analysis of the benefits and costs of this interim final rule would separately include quantitative information on eviction notices, eviction filings, and physical removals, both under the baseline and with the disclosure mandated by this interim final rule. However, the Bureau does not have sufficient data to estimate the number of eviction notices issued by debt collectors or the number of physical removals that occurred in either the period before the beginning of the pandemic or since. The Bureau has some limited data on eviction filings, which may not speak to effects on other covered eviction actions or physical removals of the CDC Order or the interim final rule.

Of the 27 cities for which data on eviction filings are available from the Eviction Lab, 16 did not have an active local moratorium one month prior to the effective date of the CDC Order. 132 Analyzing trends in eviction filings among these cities, the data suggest that the CDC Order standing alone did not have an immediate and measurable effect on the rate of eviction filings. Eviction filings in the five weeks following the effective date of the CDC Order continued at rates that were similar to or higher than those immediately before. 133

From the analysis of eviction filings around the effective date of the CDC Order, the finding that filings did not decline does not necessarily imply that physical removals did not decline. However, it does imply that if eviction filings continue at recent rates, many consumers will receive a disclosure and may be directly affected by this interim final rule. In the first 11 weeks of 2021, there were approximately 5,000 eviction filings per week in the 27 cities for which the Eviction Lab has made data available. Using the Eviction Lab's historical annual data, between 2000 and 2016 these 27 cities accounted for a roughly constant fraction of 5 percent of eviction filings nationally.

To estimate the number of consumers that would receive the disclosure and may be affected by this interim final rule, the Bureau makes two assumptions. First, the Bureau assumes that, absent this interim final rule, the rate of weekly eviction filings would continue to be about 5,000 per week in the 27 cities. Second, the Bureau assumes that the share of evictions accounted for nationally in the 27 cities is 5 percent, the same as the share between 2000 and 2016. Under these two assumptions, the Bureau estimates that at publication of this interim final rule, there are roughly 100,000 eviction filings per week, nationally. The interim final rule only applies to jurisdictions where the CDC Order applies; the Bureau does not have a comprehensive catalog of jurisdictions where more protective moratoria apply. Somewhat fewer households would be subject to an eviction filing and would receive the disclosure to the extent filings were made by debt collectors in a jurisdiction where the CDC Order applies. 134 Somewhat more households may receive a disclosure accompanying another covered eviction action. Nevertheless, the Bureau does not have data to estimate what fraction of those households would invoke eviction protections absent this interim final rule.

This interim final rule directly benefits consumers if it delays or prevents consumers who are eligible for temporary eviction protection under the CDC Order from physical removal from housing. For instance, a physical removal may be delayed but not prevented if consumers invoke their eviction protections but are nevertheless evicted following the expiration of the CDC Order. An eviction may be prevented entirely if, during the moratorium period, consumers who are delinquent on rent become current, possibly through use of rental assistance funds made available through the Department of Treasury's Emergency Rental Assistance Program, and are not evicted after June 30, 2021. Delaying or preventing evictions results in important health benefits during the COVID-19 pandemic, which is the motivation for the CDC Order. 135

Despite the CDC eviction moratorium, data available to the Bureau indicate that evictions have continued. 136 By requiring debt collectors to provide a written disclosure about the CDC Order and by clarifying that debt collectors are prohibited from making misrepresentations about consumers' ineligibility for eviction protection, this interim final rule may prevent or delay evictions between the effective date and June 30, 2021.

The number of physical removals that will be delayed or prevented as a result of this interim final rule is uncertain, and the Bureau is not aware of data that could help to estimate it. The number of evictions that might be prevented by the interim final rule depends on: (1) The number of consumers who will receive an eviction notice or be subject to an eviction action for non-payment of rent between the effective date and June 30, 2021; (2) the share of those consumers who will receive the disclosure ( i.e., be covered by the interim final rule); and (3) the extent to which the disclosure causes consumers who receive it to avail themselves of the temporary protection afforded under the CDC Order when they otherwise would not have. As discussed above, there may be as many as 800,000 renters at risk of eviction between the effective date of the interim final rule and June 30, 2021. The Bureau does not have data to estimate how many of these renters would receive the required disclosure under the interim final rule and meet the criteria for protection under the CDC Order. 137 This number depends, among other things, on whether the source of eviction risk is non-payment of rent and whether, if evicted, these renters likely would become homeless or would be required to move into a congregate or shared living setting.

The number of evictions prevented by the interim final rule also depends on the effectiveness of the disclosure. For renters receiving the required disclosure, its effect depends on whether they are already aware of the CDC Order and, if they are not, on whether the renters read, understand, and act on the disclosure. The effectiveness of a disclosure depends on factors including consumers' comprehension of the disclosure, consumers' beliefs in the authenticity of the disclosure, and consumers' receipt of the disclosure at a time when they can act on its information. 138 Existing studies of the effectiveness of disclosures in other settings suggest that a disclosure's effectiveness may be limited, depending on how effectiveness is measured and the context of the disclosure. 139 Here, the fact that the interim final rule not only requires a disclosure but also prohibits certain misrepresentations by debt collectors about consumer ineligibility for protection under the CDC moratorium may increase the effectiveness of the disclosure. 140

To the extent that the interim final rule does delay or prevent evictions that would otherwise take place prior to June 30, 2021, it will benefit consumers by reducing their exposure to the risk of COVID-19 infection, disease, and death. The Bureau cannot quantify the change in exposure to COVID-19, nor the economic cost of COVID-19-related morbidity and mortality. 141 Recent research suggests that eviction moratoria that predate the current CDC moratorium were associated with significant reductions in the number of COVID-19 infections and deaths. 142 These reductions occurred while few U.S. adults had been vaccinated and were due in large part to the continued ability of renters to practice social distancing and good hygiene. Potentially affected renters are those who would be evicted before June 30, 2021 under the baseline where the Bureau does not issue this interim final rule.

This interim final rule may decrease COVID-19-related risk for several reasons. First, consumers who have not been evicted and transitioned to a shared living situation or homelessness may be better able to practice social distancing and good hygiene, one primary hypothesis for the effectiveness of pandemic-related eviction moratoria in recent academic research. Second, even if this interim final rule only delays eviction, renters will face the housing challenges of eviction—including limited ability to social distance—later, in a period expected to have increased herd immunity and lower COVID-19 case prevalence. It also means that these renters will have more opportunity to become vaccinated before being exposed to higher-risk environments such as those associated with group housing. 143 As such, the Bureau expects that renters who experience delayed eviction as a result of the interim final rule will be at a lower overall risk of infection. Nevertheless, the Bureau is not aware of data that may help to estimate the number of COVID-19-related infections and deaths prevented as a result of this interim final rule with any degree of precision.

Consumers whose eviction is delayed or prevented by the interim final rule may also benefit directly in other ways from decreased housing insecurity. Evictions impose direct costs associated with moving and may disrupt the lives of consumers. Evicted consumers are subject to uncertain and unstable environments and often find housing with family, in temporary group housing, or even become homeless. 144 Notably, researchers have even hypothesized that the acute stress associated with evictions may explain negative health outcomes in children whose mothers experienced eviction while pregnant. 145 To the extent that eviction is delayed by the CDC Order, consumers may further benefit from the delay by having the opportunity to make plans in anticipation of being removed from housing. Some consumers may also be able to take advantage of rental assistance programs and stay in their homes beyond June 30, 2021. However, that benefit may be reduced if consumers accrue additional rental debt, since the CDC Order does not stop unpaid rent from accruing. The Bureau does not have data that can be used to estimate the cost of the stresses associated with eviction-related housing insecurity.

As described previously, the potential direct beneficiaries of this interim final rule are consumers who would be removed from their residence for non-payment of rent but who, because of the interim final rule, acquire information about the CDC Order and utilize the Order's temporary protection against eviction. However, consumers may also indirectly benefit from this interim final rule. Although the Bureau does not have data with which to quantify the magnitude of these additional indirect benefits, where possible, the Bureau describes describe some of these indirect benefits below.

The CDC Order's eviction moratorium is premised, in part, on the prediction that eviction limits consumers' ability to follow adequate social distancing recommendations. Eviction potentially forces consumers into shared living situations, housing with friends and family, or homelessness; these circumstances may expose evicted consumers to increased risk of COVID-19 infection. 146

In turn, evicted consumers themselves may expose broader populations of consumers to COVID-19 infection. When evicted consumers move, they may spread COVID-19 to individuals in their new housing situations and the community at large. 147

Thus, even if this interim final rule's effect on evictions and the resulting direct reduction of renters' exposure to COVID-19 infection is relatively small, the effects on public health could be significant more broadly. Nevertheless, the Bureau does not have data required to ascertain how evictions affect the direct and indirect risks of COVID-19 infection.

Landlords and residential property owners (collectively in this section, “landlords”) generally are not debt collectors and therefore generally will not be covered by the interim final rule. 148 However, landlords will be indirectly affected by the interim final rule to the extent that they employ debt collectors to provide eviction notices or engage in in eviction actions. The Bureau does not have data to reliably estimate the number of landlords that employ debt collectors for eviction-related activities but understands that in some jurisdictions a majority of eviction filings are made by attorneys (who in many cases are FDCPA-covered debt collectors). 149

Landlords may benefit along with the general population from the interim final rule's direct and indirect effects, especially those related to health. However, landlords bear costs of evictions that are delayed or prevented as a result of this interim final rule.

Specifically, the disclosure required by this interim final rule may cause consumers to invoke their protections under the CDC Order and prevent or delay physical removal from housing despite landlords serving eviction notices or filing eviction lawsuits. Delaying physical removal has different effects on landlords than preventing physical removal. To understand why, suppose that this interim final rule causes a consumer to invoke eviction protections. First, consider the case in which protections under the CDC Order only delay physical removal for non-payment of rent until after June 30, 2021. In that case, the landlord may be delayed in replacing lost rental revenue streams, meaning that the landlord would lose some rental income from their property. Landlords may not be able to recover this income through subsequent collection efforts. 150 Second, consider the case in which protections under the CDC Order prevent physical removal for non-payment of rent altogether, because the delay permits renters to become current on rent prior to the completion of an eviction proceeding. For instance, renters' economic situations may improve, or they may benefit from rental assistance programs such as the Department of Treasury's Emergency Rental Assistance Program. In this case, the landlord's revenue may not be lost, only delayed. Relative to the baseline where the renter is removed, the landlord bears the cost of a late payment but may avoid costs associated with replacing the renter. 151

Landlords are generally unable to predict whether renters fall into the first or second category above. If they were able to, they may not take eviction actions against the latter category because the cost of a delayed payment may be small relative to the cost of replacing the renter. 152 To the extent that this interim final rule prevents evictions, it may offset some of the economic costs to landlords caused by delayed evictions.

The Bureau is unaware of data that would allow it to estimate the lost revenue that landlords would experience as a result of this interim final rule. Specifically, the Bureau does not have data to estimate which renters would invoke their protections under the CDC Order, which renters would be able to eventually become current on their rent, or the rent of their respective rental units.

Debt collectors who engage in eviction-related activities on behalf of landlords may be subject to three costs as a result of this interim final rule. First is the direct cost of providing the required disclosure. The Bureau does not have direct evidence on costs of eviction notices but believes that the cost associated with providing the required disclosure is negligible, given that: (1) The disclosure requires at most one additional printed page; (2) the disclosure is required in connection with a notice that already must be provided to the consumer; and (3) the disclosure does not need to be customized to the specific consumer. 153 Even for larger debt collectors that serve automated eviction notices en masse, the Bureau does not anticipate large costs associated with including a disclosure that does not include consumer-specific information.

Second, debt collectors may incur one-time costs to train staff and update systems to ensure that the disclosure is provided and to demonstrate compliance. These costs are unlikely to be large, given that the disclosure requirement is tied to existing legal processes that already require debt collectors to comply with State, local, or court rules. Debt collectors are likely to already have systems in place to ensure that renters are provided with certain information required by the relevant jurisdiction at the time of the disclosure. Debt collectors in certain jurisdictions may also incur a one-time legal or compliance cost associated with determining the CDC Order's interaction with applicable State, local, territorial, or tribal eviction moratoria, in the event they did not already do so since the CDC Order initially went into effect.

Third, debt collectors who represent landlords as attorneys in eviction actions may collect decreased legal fees to the extent that the required disclosure leads to a decrease in eviction filings. As described in greater detail above, this interim final rule may lead to both delayed and prevented evictions. In the case of a delayed eviction, attorneys' legal fees may be delayed until after the expiration of the moratorium on June 30, 2021. The Bureau does not anticipate that the cost of a months-long delay is substantial. In the case of prevented evictions, attorneys would lose legal fees, a benefit to landlords.

Depository institutions and credit unions with $10 billion or less in total assets are not covered under this interim final rule and are not expected to be directly impacted.

Generally, rural areas are characterized by having fewer renters, which would imply fewer evictions by itself. However, the Bureau does not have data that would allow it to evaluate how the benefits and costs detailed above would differ in rural areas, especially those related to health.

In part because of the temporary nature of the interim final rule's effects, the Bureau does not expect that this interim final rule will materially affect access by consumers to consumer financial products or services.

The Regulatory Flexibility Act (RFA)  154 does not apply to a rulemaking where general notice of proposed rulemaking is not required. 155 As noted previously, the Bureau has determined that it is unnecessary to publish a general notice of proposed rulemaking for this interim final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

Under the Paperwork Reduction Act of 1995 (PRA), 156 Federal agencies are generally required to seek approval from the Office of Management and Budget (OMB) for information collection requirements prior to implementation. Under the PRA, the Bureau may not conduct or sponsor, and, notwithstanding any other provision of law, a person is not required to respond to, an information collection unless the information collection displays a valid control number assigned by OMB.

The interim final rule amends 12 CFR part 1006 (Regulation F), which implements the FDCPA. This interim final rule adds a new disclosure requirement and the Bureau is requesting a new OMB control number for this disclosure requirement.

Under the interim final rule, the Bureau temporarily requires debt collectors to make certain disclosures in connection with an eviction proceeding. These information collections are required to provide benefits for consumers and will be mandatory. Because the Bureau does not collect any information, no issue of confidentiality arises. The likely respondents are for-profit businesses that are FDCPA debt collectors.

The collections of information contained in this interim final rule, and identified as such, have been submitted to OMB for review under section 3507(d) of the PRA. A complete description of the information collection requirement, including the burden estimation methods, is provided in the information collection request (ICR) supporting statement that the Bureau has submitted to OMB under the requirements of the PRA. The Bureau will publish a separate notice in the Federal Register when these information collections have been approved by OMB.

Please send your comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for the Bureau of Consumer Financial Protection. Send these comments by email to oira_submission@omb.eop.gov or by fax to (202) 395-6974. If you wish to share your comments with the Bureau, please send a copy of these comments as described in the Addresses section above. The ICR submitted to OMB requesting approval under the PRA for the information collection requirements contained herein is available at www.regulations.gov as well as on OMB's public-facing docket at www.reginfo.gov.

Title of Collection: Debt Collection Practices in Connection with the Global COVID-19 Pandemic (Regulation F).

OMB Control Number: 3170-00xx.

Type of Review: Request for a new OMB Control Number. Affected Public: Private Sector.

Estimated Number of Respondents: 500. 157

Estimated Total Annual Burden Hours: 3,000.

The Bureau has a continuing interest in the public's opinion of its collections of information. At any time, comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, may be sent to the Consumer Financial Protection Bureau (Attention: PRA Office), 1700 G Street NW, Washington, DC 20552, or by email to CFPB_PRA@cfpb.gov.

Where applicable, the Bureau will display the control number assigned by OMB to any documents associated with any information collection requirements adopted in this interim final rule.

Pursuant to the Congressional Review Act, 158 the Bureau will submit a report containing this interim final 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 the interim final rule's published effective date. The Office of Information and Regulatory Affairs has designated this interim final rule as a “major rule” as defined by 5 U.S.C. 804(2). As discussed in part IV, the Bureau finds that there is good cause for the interim final rule to take effect without prior notice and comment. Accordingly, this interim final rule may take effect at such time as the Bureau determines. 159

The Acting Director of the Bureau, David Uejio, having reviewed and approved this document, is delegating the authority to electronically sign this document to Laura Galban, a Bureau Federal Register Liaison, for purposes of publication in the Federal Register .

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2012-04-15, Amendment 39-16971 (77 FR 15939, March 19, 2012), (AD 2012-04-15). AD 2012-04-15 applied to all PW JT9D model turbofan engines. The NPRM published in the Federal Register on December 15, 2020 (85 FR 81162). The NPRM was prompted by the need to require enhanced inspection of selected critical life-limited parts of PW JT9D model turbofan engines. Since the FAA issued AD 2012-04-15, PW identified errors in the list of mandatory inspections to add to the ALS. During review of the AD, PW found that AD 2012-04-15 did not include eddy current inspections of the fan hubs. Additionally, PW identified duplicate inspections of the HPT Stage 2 disk tie rod and web cooling holes. In the NPRM, the FAA proposed to require revising the required inspections of selected critical life-limited parts specified in the ALS of the manufacturer's ICA and, for air carriers, to the existing CAMP. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from two commenters. The commenters were Atlas Air Inc. (Atlas Air) and Boeing Commercial Airplanes (Boeing). The following presents the comments received on the NPRM and the FAA's response to each comment.

Atlas Air requested that the FAA add the figure label to paragraph (g), Required Actions, of this AD.

The FAA agrees and notes that a formatting issue resulted in the missing figure label from Figure 1 to paragraph (g) in the NPRM. The FAA expects this formatting issue will be corrected with the publication of this final rule.

The FAA determined the need to update Figure 1 to paragraph (g) of this AD to specifically reference PW JT9D-7R4G2, and JT9D-7R4H1 model turbofan engines. AD 2012-04-15 included these engines under “7R4 ALL,” however, the FAA inadvertently left these engines out of Figure 1 when identifying the individual engine models in the proposed rule. This revision does not change the number of affected engines that the FAA estimated in the NPRM and imposes no additional burden on operators of U.S. airplanes.

Boeing expressed support for the AD as written.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting the AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA estimates that this AD affects 27 engines installed on airplanes of U.S. registry. Based on updated information since the publication of AD 2012-04-15, the FAA reduced the estimated number of engines installed on airplanes of U.S. registry from 438 in AD 2012-04-15 to 27 in this final rule.

The FAA estimates the following costs to comply with this AD:

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

The FAA is 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.

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

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

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

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

(3) 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:

Background

The FAA was notified by the Directorate General for Civil Aviation, which is the civil aviation authority for France, of an unsafe condition on certain UPT reserve parachute pin covers.

Subsequent analysis revealed that, between May 2013 and January 2021, the container was manufactured with a redesign that increased the length of the RPC, causing it to catch and prevent the reserve parachute from deploying. UPT determined the affected parachutes are UPT Vector 3 SE containers manufactured between May 1, 2013, and January 31, 2021, in any of the following sizes: V3SE-360-1, V3SE-360-2, V3SE-360-3, V3SE-361, V3SE-364, and V3SE-364-1. This condition, if not corrected, could cause failure of the reserve parachute to deploy when needed. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed Uninsured United Parachute Technologies, LLC, INSTRUCT-064, Revision 1, dated February 10, 2021. This service information specifies procedures for modifying the bottom tuck tab of the RPC on the parachute container.

The FAA also reviewed Uninsured United Parachute Technologies, LLC, INSTRUCT-065, REV 0, dated February 12, 2021. This service information specifies procedures for replacing the RPC on the parachute container.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This AD requires accomplishing the actions specified in the service information already described.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because failure of the reserve parachute to deploy when needed will lead to the parachutist freefalling to the surface without being slowed, resulting in serious injury or death. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0336 and Project Identifier AD-2021-00293-Q” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent Samuel Kovitch, Aerospace Safety Engineer, Atlanta ACO Branch, FAA, 1701 Columbia Avenue, College Park, GA 30337. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 86 parachute containers used in the United States.

The FAA estimates the following costs to comply with this AD:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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.

The FAA is 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, and

(2) Will not affect intrastate aviation in Alaska.

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

This amendment to 14 CFR part 71 amends Class E airspace for Calais Regional Heliport, Calais, ME, by correcting the airspace description. The description is amended from `That airspace extending upward from 700 feet above the surface of the earth within a 6-mile radius of Calais Regional Heliport' to `That airspace extending upward from 700 feet above the surface of the earth within a 6-mile radius of Calais Regional Heliport excluding that airspace outside of the United States'. Accordingly, since this is an administrative change, and does not affect the boundaries, altitudes, or operating requirements of the airspace, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.

Class E airspace designations are published in Paragraph 6005, of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

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

On March 24, 2020, DHS published notice of its decision to temporarily limit the travel of individuals from Canada into the United States at land ports of entry along the United States-Canada border to “essential travel,” as further defined in that document. 1 The document described the developing circumstances regarding the COVID-19 pandemic and stated that, given the outbreak and continued transmission and spread of the virus associated with COVID-19 within the United States and globally, DHS had determined that the risk of continued transmission and spread of the virus associated with COVID-19 between the United States and Canada posed a “specific threat to human life or national interests.” DHS later published a series of notifications continuing such limitations on travel until 11:59 p.m. EDT on April 21, 2021. 2

DHS continues to monitor and respond to the COVID-19 pandemic. As of the week of April 12, 2021, there have been over 135 million confirmed cases globally, with over 2.9 million confirmed deaths. 3 There have been over 31 million confirmed and probable cases within the United States, 4 over one million confirmed cases in Canada, 5 and over 2.2 million confirmed cases in Mexico. 6

Given the outbreak and continued transmission and spread of COVID-19 within the United States and globally, the Secretary has determined that the risk of continued transmission and spread of the virus associated with COVID-19 between the United States and Canada poses an ongoing “specific threat to human life or national interests.”

U.S. and Canadian officials have mutually determined that non-essential travel between the United States and Canada poses additional risk of transmission and spread of the virus associated with COVID-19 and places the populace of both nations at increased risk of contracting the virus associated with COVID-19. Moreover, given the sustained human-to-human transmission of the virus, returning to previous levels of travel between the two nations places the personnel staffing land ports of entry between the United States and Canada, as well as the individuals traveling through these ports of entry, at increased risk of exposure to the virus associated with COVID-19. Accordingly, and consistent with the authority granted in 19 U.S.C. 1318(b)(1)(C) and (b)(2), 7 I have determined that land ports of entry along the U.S.-Canada border will continue to suspend normal operations and will only allow processing for entry into the United States of those travelers engaged in “essential travel,” as defined below. Given the definition of “essential travel” below, this temporary alteration in land ports of entry operations should not interrupt legitimate trade between the two nations or disrupt critical supply chains that ensure food, fuel, medicine, and other critical materials reach individuals on both sides of the border.

For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Canada border shall be limited to “essential travel,” which includes, but is not limited to—

• U.S. citizens and lawful permanent residents returning to the United States;

• Individuals traveling for medical purposes ( e.g., to receive medical treatment in the United States);

• Individuals traveling to attend educational institutions;

• Individuals traveling to work in the United States ( e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work);

• Individuals traveling for emergency response and public health purposes ( e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);

• Individuals engaged in lawful cross-border trade ( e.g., truck drivers supporting the movement of cargo between the United States and Canada);

• Individuals engaged in official government travel or diplomatic travel;

• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and

• Individuals engaged in military-related travel or operations.

The following travel does not fall within the definition of “essential travel” for purposes of this Notification—

• Individuals traveling for tourism purposes ( e.g., sightseeing, recreation, gambling, or attending cultural events).

At this time, this Notification does not apply to air, freight rail, or sea travel between the United States and Canada, but does apply to passenger rail, passenger ferry travel, and pleasure boat travel between the United States and Canada. These restrictions are temporary in nature and shall remain in effect until 11:59 p.m. EDT on May 21, 2021. This Notification may be amended or rescinded prior to that time, based on circumstances associated with the specific threat. 8

The Commissioner of U.S. Customs and Border Protection (CBP) is hereby directed to prepare and distribute appropriate guidance to CBP personnel on the continued implementation of the temporary measures set forth in this Notification. The CBP Commissioner may determine that other forms of travel, such as travel in furtherance of economic stability or social order, constitute “essential travel” under this Notification. Further, the CBP Commissioner may, on an individualized basis and for humanitarian reasons or for other purposes in the national interest, permit the processing of travelers to the United States not engaged in “essential travel.”

On March 24, 2020, DHS published notice of its decision to temporarily limit the travel of individuals from Mexico into the United States at land ports of entry along the United States-Mexico border to “essential travel,” as further defined in that document. 1 The document described the developing circumstances regarding the COVID-19 pandemic and stated that, given the outbreak and continued transmission and spread of the virus associated with COVID-19 within the United States and globally, DHS had determined that the risk of continued transmission and spread of the virus associated with COVID-19 between the United States and Mexico posed a “specific threat to human life or national interests.” DHS later published a series of notifications continuing such limitations on travel until 11:59 p.m. EDT on April 21, 2021. 2

DHS continues to monitor and respond to the COVID-19 pandemic. As of the week of April 12, 2021, there have been over 135 million confirmed cases globally, with over 2.9 million confirmed deaths. 3 There have been over 31 million confirmed and probable cases within the United States, 4 over one million confirmed cases in Canada, 5 and over 2.2 million confirmed cases in Mexico. 6

Given the outbreak and continued transmission and spread of COVID-19 within the United States and globally, the Secretary has determined that the risk of continued transmission and spread of the virus associated with COVID-19 between the United States and Mexico poses an ongoing “specific threat to human life or national interests.”

U.S. and Mexican officials have mutually determined that non-essential travel between the United States and Mexico poses additional risk of transmission and spread of the virus associated with COVID-19 and places the populace of both nations at increased risk of contracting the virus associated with COVID-19. Moreover, given the sustained human-to-human transmission of the virus, returning to previous levels of travel between the two nations places the personnel staffing land ports of entry between the United States and Mexico, as well as the individuals traveling through these ports of entry, at increased risk of exposure to the virus associated with COVID-19. Accordingly, and consistent with the authority granted in 19 U.S.C. 1318(b)(1)(C) and (b)(2), 7 I have determined that land ports of entry along the U.S.-Mexico border will continue to suspend normal operations and will only allow processing for entry into the United States of those travelers engaged in “essential travel,” as defined below. Given the definition of “essential travel” below, this temporary alteration in land ports of entry operations should not interrupt legitimate trade between the two nations or disrupt critical supply chains that ensure food, fuel, medicine, and other critical materials reach individuals on both sides of the border.

For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Mexico border shall be limited to “essential travel,” which includes, but is not limited to—

• U.S. citizens and lawful permanent residents returning to the United States;

• Individuals traveling for medical purposes ( e.g., to receive medical treatment in the United States);

• Individuals traveling to attend educational institutions;

• Individuals traveling to work in the United States ( e.g., individuals working in the farming or agriculture industry who must travel between the United States and Mexico in furtherance of such work);

• Individuals traveling for emergency response and public health purposes ( e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);

• Individuals engaged in lawful cross-border trade ( e.g., truck drivers supporting the movement of cargo between the United States and Mexico);

• Individuals engaged in official government travel or diplomatic travel;

• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and

• Individuals engaged in military-related travel or operations.

The following travel does not fall within the definition of “essential travel” for purposes of this Notification—

• Individuals traveling for tourism purposes ( e.g., sightseeing, recreation, gambling, or attending cultural events).

At this time, this Notification does not apply to air, freight rail, or sea travel between the United States and Mexico, but does apply to passenger rail, passenger ferry travel, and pleasure boat travel between the United States and Mexico. These restrictions are temporary in nature and shall remain in effect until 11:59 p.m. EDT on May 21, 2021. This Notification may be amended or rescinded prior to that time, based on circumstances associated with the specific threat. 8

The Commissioner of U.S. Customs and Border Protection (CBP) is hereby directed to prepare and distribute appropriate guidance to CBP personnel on the continued implementation of the temporary measures set forth in this Notification. The CBP Commissioner may determine that other forms of travel, such as travel in furtherance of economic stability or social order, constitute “essential travel” under this Notification. Further, the CBP Commissioner may, on an individualized basis and for humanitarian reasons or for other purposes in the national interest, permit the processing of travelers to the United States not engaged in “essential travel.”

The CRRSAA was enacted on December 27, 2020, to help Americans cope with the ongoing economic and health crises created by the novel coronavirus disease (COVID-19) outbreak. Section 314 of the CRRSAA authorizes supplemental awards to institutions of higher education (IHEs) through the Higher Education Emergency Relief Fund (HEERF) initially established by section 18004 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (March 27, 2020). Section 314 of the CRRSAA also authorizes, in paragraph (a)(2)(A), additional awards to HBCUs eligible to receive assistance under two programs authorized by the Higher Education Act of 1965, as amended (HEA): The Strengthening HBCUs program authorized by part B of title III of the HEA, and the HBCU Masters program authorized by subpart 4 of part A of title VII of the HEA. Section 314 further specifies, in paragraph (a)(2), the amounts available for these additional awards and, in paragraph (a)(2)(A), the three-part formula for determining the allocations to each eligible HBCU.

This formula calls for the allocation of—

(1) 70 percent of funds according to a ratio equivalent to the number of Pell Grant recipients in attendance at the institution at the end of the school year preceding the beginning of the most recent fiscal year and the total number of Pell Grant recipients at all such institutions;

(2) 20 percent of funds according to a ratio equivalent to the total number of students enrolled at the institution at the end of the school year preceding the beginning of that fiscal year and the number of students enrolled at all such institutions; and

(3) 10 percent of funds according to a ratio equivalent to the total endowment size at all eligible institutions at the end of the school year preceding the beginning of that fiscal year and the total endowment size at the institution.

The first two elements for determining allocations to HBCUs under section 314(a)(2)(A) of the CRRSAA reflect a familiar and straightforward methodology: Institutions receive a share of funds commensurate with their respective shares of Pell Grant recipients and total overall enrollment at all eligible institutions. However, the third element, also known as the endowment factor, calls for allocating 10 percent of funds based on an inverse proportion of an institution's share of the total endowment funding at all eligible institutions. In other words, institutions with the smallest endowments receive the largest share of funds. This inverse proportion formula reflects the intent of Congress to direct additional funding to institutions unable to tap endowment resources to meet needs arising from the COVID-19 pandemic. Such institutions often have smaller enrollments or serve highly disadvantaged populations; consequently, they have not been able to build up significant endowment funds over time that might have been used to respond to the COVID-19-related disruptions to teaching and learning on campus.

In fact, some institutions reported an endowment value of zero, which contributed to the circumstances requiring this final rule. Specifically, endowment data collected by the Department for the purpose of determining the allocation of funds through the endowment factor showed that, of 97 eligible institutions, nine reported an endowment value of zero. While it seems clear that Congress intended for such institutions to receive the largest share of endowment factor funding because of their complete lack of endowment resources to call upon in responding to the COVID-19 pandemic, it is not possible to generate the endowment ratios described in section 314(a)(2)(A)(iii) of the CRRSAA for these schools due to the mathematic principle that division by zero yields an undefined result and thus has no meaning. Therefore, it would be impossible to implement this formula in a manner consistent with the statutory text for certain eligible entities.

Excluding these schools entirely from the endowment factor calculation would seem contrary to the plain language of the statute, as the Act does not expressly exclude these entities and is meant to include all eligible institutions under part B of title III and subpart 4 of part A of title VII of the HEA. Moreover, even if the nine HBCUs with zero endowments could be excluded from the formula, there is a large enough gap between the institution with the lowest non-zero endowment and other institutions with non-zero endowments that the institution with the lowest non-zero endowment would garner nearly all of the program funding ($72.8 million) allocable through the endowment factor. The Department does not believe such an inequitable outcome would be consistent with the design of the endowment factor formula; rather, it indicates a technical oversight in developing the endowment factor.

In response to the inability to implement this formula in a manner consistent with the statutory text for certain eligible entities, the Department consulted with Congress to determine options for calculating awards to HBCUs under section 314(a)(2) of the CRRSAA. These discussions were focused on two goals: (1) Ensuring that all eligible institutions with relatively low endowment values benefited from the endowment factor, and (2) ensuring that the endowment factor operated as intended, delivering significantly greater amounts of funding to those institutions with the smallest endowments rather than to those institutions with the largest endowments. This consultation took on additional urgency because of the possibility that additional HEERF appropriations for HBCUs would be provided on the basis of the formula in section 314(a)(2)(A) of the CRRSAA as part of the American Rescue Plan Act of 2021 (ARP).

Ultimately, Congress provided such additional appropriations in the ARP and directed IHEs to make allocations in accordance with the same terms and conditions as those provided in section 314 of the CRRSAA, with several exceptions. Of relevance here, Congress established a “floor” on the endowment value used when allocating the ARP-provided HEERF funds based on the endowment factor. Section 2003(3) of the ARP specifies that an institution “that has a total endowment size of less than $1,000,000 (including an institution that does not have an endowment) shall be treated by the Secretary as having a total endowment size of $1,000,000” for the purposes of section 314(a)(2)(A)(iii) of the CRRSAA, which is used to determine allocations under the ARP. However, this provision does not apply to the HEERF funds appropriated in the CRRSAA. Consequently, the Department determined that the best course of action would be to issue regulations on the endowment factor under section 314(a)(2). In the interim, on February 26, 2021, the Department awarded 90 percent of the funds provided to HBCUs under section 314(a)(2) of the CRRSAA—the funds allocated on the basis of factors 1 and 2 of the formula in section 314(a)(2)(A).

In considering alternatives for refining the methodology for implementing the endowment factor, the Department relied on analyses of options developed both prior to and during consultation with Congress regarding the challenges presented by the endowment factor under the CRRSAA.

We considered exclusion of the nine entities that reported an endowment position of zero. As stated above, we determined this was inconsistent with the plain language of the statute. Further, it would exclude the institutions with the greatest need— i.e., those institutions reporting endowment amounts of zero—while allocating virtually all funds apportioned to the endowment factor to just two of the 88 eligible institutions with non-zero endowments. Such an outcome would be contrary to the purpose of any funding formula based on proportionality, which is to provide benefits to all eligible entities in proportion to one or more characteristics of those entities, and not to merely direct all or nearly all applicable funding to a few such entities.

Given that we cannot implement the formula in a manner consistent with the statutory text for certain eligible entities, we considered a variety of approaches. A rule that imputed a small dollar amount to the nine eligible institutions reporting zero endowment funding, such as $1, would result in the allocation of nearly all funding to those institutions, effectively preventing the accrual of any benefits from the endowment factor to any other eligible institutions (approximately $8.1 million would be awarded to each of the nine institutions with zero endowments and a balance of less than $1,500 would be distributed among the remaining eligible institutions). Again, such an outcome would not, in the Department's view, be consistent with the basic equity principles that generally underlie the funding formulas enacted by Congress for the many formula grant programs administered by the Department.

The Department also explored an option that considered the relationship between the amount institutions receive through the endowment factor and the sum of that value in combination with the institution's reported (or imputed, in the case of the institutions reporting $0 endowments) endowment. The underlying principle of this approach was that while the endowment factor was to direct additional funding to institutions with the smallest endowments, such institutions should not benefit disproportionately when compared to other institutions with small endowments. For example, it would be both inequitable and inconsistent with the design of the endowment factor if an institution with a reported endowment of $100,000 received $3,000,000 from the endowment factor—effectively increasing its endowment-based resources to $3,100,000—while another institution with a reported endowment of $1,000,000 received $500,000 from the endowment factor, effectively ending up with just half ($1,500,000) of the endowment-based resources as the first institution. In other words, no institution's allocation from the endowment factor should exceed the resources available to any other institution based on the sum of its allocation from the endowment factor and its reported endowment. The Department's preliminary modeling of an option based on this principle produced an appropriately graduated distribution of endowment factor allocations to all 97 institutions, while directing 72 percent of funds to the bottom quartile of institutions ranked by endowment size, a result that the Department deemed both equitable and consistent with the core purpose of the endowment factor.

Importantly, for the purposes of this final rule, the $1,000,000 floor endowment amount set by Congress for use in calculating endowment factor allocations under the ARP yields an equitable distribution of funds nearly identical to that of the Department's “imputed endowment size” model. Specifically, applying the ARP's $1,000,000 endowment floor to the endowment factor in the CRRSAA would allocate $54.3 million, or 75 percent of funds, to the bottom quartile of institutions ranked by endowment size.

Consequently, the Department has concluded that the equitable impact of the $1,000,000 floor endowment threshold adopted by Congress for the purpose of calculating endowment factor allocations under the ARP, combined with its simplicity and the benefits of a uniform approach to determining endowment factor allocations across the ARP and the CRRSAA, make that same $1,000,000 endowment floor the most appropriate manner to implement the endowment factor formula in section 314(a)(2)(A)(iii) of the CRRSAA, which cannot otherwise be implemented in a manner consistent with the statutory text for certain eligible entities.

Statute: Section 314 of the CRRSAA (division M of Public Law 116-260, December 27, 2020) provides for funding for eligible HBCUs. Specifically, section 314(a)(2)(A) specifies a three-part formula for determining the allocations to each eligible HBCU, including an endowment factor that allocates 10 percent of the available funding according to a ratio equivalent to the total endowment size at all eligible institutions at the end of the school year preceding the beginning of that fiscal year and the total endowment size at the institution.

Current Regulation: None.

New Regulation: In new § 677.1, we provide that, for the purpose of calculating allocations under section 314(a)(2)(A)(iii) of the CRRSAA, an institution that has a total endowment of less than $1,000,000, including an institution that does not have an endowment, will be treated by the Secretary as having an endowment of $1,000,000.

Reasons: The Department is making this regulatory change to remedy a technical defect in the statute; allocate funds consistent with its best interpretation of the statutory purpose of the endowment factor; make the allocation methodology related to endowment size under the CRRSAA consistent with the refined methodology under the ARP; and ensure that the endowment factor operates to equitably deliver funding to eligible institutions based on the relative size of their endowments. See the Background section for a more detailed discussion of our reasons for this regulatory change.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed rules. However, the APA provides that an agency is not required to conduct notice and comment rulemaking when the agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B)).

Congress enacted the CRRSAA to help Americans cope with the urgent economic and health crises created by the COVID-19 outbreak and created the HEERF to provide emergency financial aid grants to students and institutions. Section 314(b)(2)(B) of the CRRSAA requires the Secretary, to the extent practicable, to make awards to HBCUs under section 314(a)(2) by February 25, 2021. In the absence of this final rule, the Department would be unable to timely award the final 10 percent of funds appropriated by Congress to HBCUs under section 314(a)(2) of the CRRSAA in a manner that equitably benefits those HBCUs with limited endowments serving large numbers or percentages of students from low- income families. In light of the urgent economic challenges facing IHEs as a result of the current national emergency and the importance of awarding all available emergency funds appropriated by Congress as quickly as possible, particularly to those institutions without access to much-needed resources that can help address the disruption to teaching and learning caused by the COVID-19 pandemic, it would be impracticable and contrary to the public interest to conduct notice-and-comment rulemaking. Accordingly, there is good cause to waive the notice and comment requirements of the APA.

Moreover, the APA generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). As described above, good cause exists for this rule to be effective upon publication in light of the current national emergency and the importance of awarding HEERF allocations to eligible institutions in a timely manner consistent with statutory intent.

Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866. Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a “major rule”, as defined by 5 U.S.C. 804(2).

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing this final rule only on a reasoned determination that its benefits would justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that these regulations are consistent with the principles in Executive Order 13563.

We have also determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

The Department is issuing this final rule to clarify the methodology for calculating allocations to HBCUs in accordance with the endowment factor described in section 314(a)(2)(A)(iii) of the CRRSAA. The endowment factor is intended to provide additional funding to institutions with limited endowment resources available to address institutional and student needs arising from the COVID-19 pandemic. This final rule addresses a defect in the statutory allocation formula and permits the allocation of all available funds to eligible institutions as quickly as possible.

As detailed in the preamble of this final rule, in light of the current national emergency and the importance of delivering HEERF awards to institutions as soon as possible, notice-and-comment rulemaking would be impracticable and contrary to the public interest. Absent immediate implementation of this final rule, the Department would be unable to timely award the remaining HBCU funding in a manner consistent with the intent to provide funding to eligible HBCUs based on relative endowment size, with a potentially serious negative impact on both institutions and the students they serve.

As noted elsewhere in this final rule, this regulatory change affects only the allocation of funding under the HEERF program. It does not impose or relieve any regulatory or compliance burden on regulated entities. In general, we do not anticipate this final rule to impose any net costs on affected entities. However, to the extent that the receipt of funding under this program affects the marginal cost of administering funds, there may be some effects on participating institutions, but given the overall amount of funding administered under this program and the relatively small amount implicated by this rule, we expect those effects to be de minimis.

As noted above, this final rule will allow the Department to operationalize the statutory requirements of the CRRSAA relative to the endowment factor and limit unintended consequences. Since this rule is only intended to implement existing statutory requirements, we assess the impacts of this final rule relative to a pre-statutory baseline. In the absence of passage of the CRRSAA, none of the affected entities would have received additional funding under the HEERF program. Passage of CRRSAA resulted in additional funds being made available to these entities. Specific to this final rule, approximately $72.8 million in additional funds will be made available to affected entities through the endowment factor implicated by this final rule. As noted above, we do not anticipate this rule resulting in any increased regulatory burden for affected entities and, even if the additional funding provided under the endowment factor did result in such increased costs, those costs would be far outweighed by the additional funding received. We do not anticipate this rule to result in any transfers between regulated entities given that, as described above, the Department would not be able to implement the statutory requirements in a manner consistent with the statutory text for certain eligible entities without this final rule. As a result, in the absence of this rule, no entity would have received funds under the endowment factor.

The Department considered a wide range of options to address the issues posed by the statutory requirements. Initially, we considered whether it was possible to resolve the issue without regulating. As described elsewhere, we determined that it would not be possible to allocate funds for certain eligible entities under the endowment factor in a manner consistent with the statutory requirements because doing so would require the agency to divide by zero.

Alternatively, the Department could have pursued a rule where it sought to divide the entire amount of funds equally among the nine entities with zero-dollar endowments. Such an approach would have focused resources on entities with smaller endowments but would have created sizable disparities among entities. For example, an entity without an endowment would have received approximately $8.1 million, while the entity with the smallest non-zero endowment (with an endowment of only $6,400) would have received no funding.

The Department also could have pursued a rule that imputed a $1 endowment for all of the entities without endowments, the minimum required adjustment to allow for formula allocations in accordance with the statutory requirements. Using this approach, approximately 55 institutions would receive funds under the endowment factor. Of those, 45 would receive allocations of less than $100. While this approach would be more equitable than the prior alternatives, we still do not believe such an approach would meet the spirit of the statutory requirement.

Under this final rule, all 97 eligible entities would receive funding, with the smallest allocation being approximately $7,300. We believe that this final rule, which ensures that all entities receive at least some funding under the endowment factor while also heavily preferencing those entities with small or no endowments, best meets the statutory intent.

This analysis, required by the Regulatory Flexibility Act, presents an estimate of the effect of the final regulations on small entities. The U.S. Small Business Administration (SBA) Size Standards define proprietary IHEs as small businesses if they are independently owned and operated, are not dominant in their field of operation, and have total annual revenue below $7,000,000. Nonprofit institutions are defined as small entities if they are independently owned and operated and not dominant in their field of operation. Public institutions and local educational agencies are defined as small organizations if they are operated by a government overseeing a population below 50,000.

For purposes of this analysis, the Department proposes to define a small institution as a two-year IHE with an enrollment of less than 500 FTE or a four-year IHE with an enrollment of less than 1,000 FTE. Under this proposed definition, we would identify 27 of the 97 affected entities as small. As noted above, we estimate that this final rule will result in benefits for all affected entities with no regulatory burden. Small institutions would, on average, see an increase of approximately $952,400 and non-small institutions receiving an increase would see an increase of approximately $407,900.

As such, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities.

There are no information collection requirements associated with this regulatory action.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Based on our own review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.

Executive Order 13132 requires us to ensure meaningful and timely input by State and local elected officials in the development of regulatory policies that have federalism implications. “Federalism implications” means substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. This final regulation may have federalism implications.

Accessible Format: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document and a copy of the application package in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, and MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or portable document format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is available for free on the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Invitation to Comment: Although the Department has decided to issue these interim final requirements without first publishing proposed requirements for public comment, we are interested in whether you think we should make any changes in these requirements. We invite your comments. We will consider these comments in determining whether to revise the requirements.

To ensure that your comments may be most effectively considered, we urge you to clearly identify the specific section or sections of the interim final requirements that each comment addresses and to arrange your comments in the same order as the interim final requirements.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these interim final requirements. Please let us know of any further ways by which we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.

During and after the comment period, you may inspect all public comments about these interim final requirements by accessing www.regulations.gov. Due to the current COVID-19 public health emergency, the Department buildings are not open to the public. However, upon reopening, you may also inspect the comments in person at 400 Maryland Avenue SW, Washington, DC 20202, between 8:30 a.m. and 4:00 p.m., Eastern Time, Monday through Friday of each week except Federal holidays. To schedule a time to inspect comments, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these interim final requirements. To schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Purpose of Program: The ARP ESSER Fund provides a total of nearly $122 billion to SEAs and LEAs to help safely reopen and sustain the safe operation of schools and address the impacts of the coronavirus disease 2019 (“COVID-19”) pandemic on the Nation's students by addressing students' academic, social, emotional, and mental health needs.

Program Authority: The American Rescue Plan Act of 2021, Public Law 117-2, March 11, 2021.

Background: In early 2020, COVID-19 swept through the world, resulting in major upheaval to all aspects of life. In the United States, this resulted in unprecedented school closures in the spring of 2020. For tens of millions of students, learning was abruptly interrupted. For many students who were already facing limited educational opportunities and disengagement—including students from low-income families, students of color, English learners, children with disabilities, students experiencing homelessness, children in foster care, migratory students, children who are incarcerated, and other underserved students—losing access to reliable in-person instruction and the many supports schools can provide has led to significant challenges.

Since spring of 2020, the opportunities for students to learn have varied significantly across the country. Some schools have remained fully virtual and still have not physically reopened, while others have been providing in-person instruction for months. Many schools are providing a hybrid approach, with virtual instruction for a portion of the school week, and in-person instruction for the remainder of the week. As the initial 2021 National Assessment of Educational Progress (“NAEP”) School Survey revealed, there are significant disparities in both access to and enrollment in in-person instruction across the country, with white students much more likely than students of color to be learning in person as of February. 1 Many of the most disadvantaged students have frequently encountered barriers to accessing virtual learning. 2 Students across virtual and in-person settings are facing significant academic, social, emotional, and mental health challenges as a result of the interrupted education and the trauma caused by the COVID-19 pandemic.

In recognition of the immense challenges facing students, educators, staff, schools, LEAs, and SEAs right now, Congress has made emergency funds available to SEAs and LEAs to prevent, prepare for, and respond to COVID-19, first through the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Public Law 116-136, div. B, tit. VIII, section 18003, enacted on March 27, 2020; next through the Coronavirus Response and Relief Supplemental Appropriations (CRRSA) Act, 2021, Public Law 116-260, section 313, enacted on December 27, 2020; and, most recently and significantly, through the ARP Act, Public Law 117-2, section 2001, enacted on March 11, 2021.

The ARP Act provides a total of nearly $122 billion via the ARP ESSER Fund to SEAs and LEAs to help schools return safely to in-person instruction, maximize in-person instructional time, sustain the safe operation of schools, and address the academic, social, emotional, and mental health impacts of the COVID-19 pandemic on the Nation's students. ARP ESSER provides funds to each SEA in the same proportion as each State received under part A of title I of the Elementary and Secondary Education Act of 1965 (“ESEA”) in fiscal year 2020. 3 An SEA must allocate at least 90 percent of its ARP ESSER grant funds to its LEAs (including charter schools that are LEAs) in the State in the same proportion that the LEAs received under part A of title I of the ESEA in fiscal year 2020. 4 Each SEA is required to reserve at least 5 percent of its total ARP ESSER funds to carry out activities to address the academic impact of lost instructional time;  5 at least 1 percent for the implementation of evidence-based summer enrichment programs; and at least 1 percent for the implementation of evidence-based comprehensive afterschool programs. 6 Each of these reservations requires that the SEA use evidence-based interventions that respond to the academic, social, emotional, and mental health needs of students, particularly groups of students disproportionately impacted by the pandemic. 7 The SEA may reserve no more than half of 1 percent of its total ARP ESSER allocation for administrative costs. 8 The SEA may use any remaining funds for emergency needs as determined by the SEA to address issues responding to COVID-19. 9

An LEA may use its ARP ESSER funds for a wide variety of activities related to educating students during the COVID-19 pandemic and addressing the impacts of the COVID-19 pandemic on students and educators. For example, an LEA may use the ARP ESSER funds to maintain the health and safety of students and school staff as they return to in-person instruction ( e.g., adopting policies consistent with guidance on reopening schools from the Centers for Disease Control and Prevention (“CDC”), available at https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/operation-strategy.html, including universal and correct wearing of masks; modifying facilities to allow for physical distancing ( e.g., use of cohorts/podding); handwashing and respiratory etiquette; cleaning and maintaining healthy facilities, including improving ventilation; contact tracing in combination with isolation and quarantine, in collaboration with the State, local, territorial, or Tribal health departments; diagnostic and screening testing; efforts to provide vaccinations to school communities; appropriate accommodations for children with disabilities with respect to health and safety policies; and coordination with State and local health officials). The Department released related resources to assist schools in safely reopening for in-person learning as part of the ED COVID-19 Handbook. Volume 1 of the ED COVID-19 Handbook is available at https://www2.ed.gov/documents/coronavirus/reopening.pdf. Most recently, the Department released Volume 2 of the ED COVID-19 Handbook to assist schools in addressing critical student needs. Volume 2 of the ED COVID-19 Handbook is available at https://www2.ed.gov/documents/coronavirus/reopening-2.pdf.

An LEA may also use the ARP ESSER funds to address the academic, social, emotional, and mental health needs of its students by, for example, hiring additional personnel such as school counselors, psychologists, and nurses and implementing strategies to accelerate learning and to make investments in teaching and learning that will result in lasting improvements in the LEA. An LEA may also use the funds for activities that are necessary to maintain the operation of services in LEAs, for example, to stabilize the workforce and avoid layoffs. In December 2020, the Bureau of Labor Statistics reported an 8.6 percent decline in the local government education workforce over the previous 12 months, to its smallest size for the same month since 1999. 10

In addition to the wide range of allowable uses of ARP ESSER funds, an LEA that receives ARP ESSER funds must reserve at least 20 percent of the funds to measure and address the academic impact of lost instructional time on all students, through the implementation of evidence-based interventions, such as interventions implemented through summer learning or summer enrichment, extended day, comprehensive afterschool programs, or extended school year programs. The LEA must also ensure that such interventions respond to students' academic, social, emotional, and mental health needs and address the impact of the COVID-19 pandemic on groups of students disproportionately impacted by the pandemic. 11

On March 24, 2021, the Department made available two thirds of each SEA's ARP ESSER allocation to support ongoing efforts to reopen schools safely for in-person learning, keep schools safely open once students are back, and address the academic, social, emotional, and mental health needs of all students. To receive the remaining third of an SEA's ARP ESSER allocation and to comply with the terms and conditions of the ARP ESSER funds the SEA has already received, the Department is requiring that the SEA develop and submit an ARP ESSER plan that describes, among other things, the current education needs within the State, the SEA's intended uses of ARP ESSER funds, and the plans for supporting LEAs in their planning for and use of ARP ESSER funds.

As described in more detail below, the Secretary is establishing interim final requirements for ARP ESSER related to SEA consultation, LEA ARP ESSER plans, and the statutory requirement that LEAs receiving ARP ESSER funds develop plans for the safe return to in-person instruction and continuity of services.

SEA Consultation with Stakeholders; Public Input Statute: Under 20 U.S.C. 1231g, unless otherwise limited by law, the Secretary is authorized to require the submission of applications for assistance under any applicable program. “Applicable program” is defined in 20 U.S.C. 1221(c)(1) as any program for which the Department has administrative responsibility, which includes ARP ESSER. Title VIII of Division B of the CARES Act directs the Department to carry out the Education Stabilization Fund, of which the ARP ESSER funds are a part. Section 2001 of the ARP Act provides for the Department to make grants to each SEA from the ARP ESSER funds. Under 20 U.S.C. 1221e-3, the Secretary has the authority to promulgate rules governing the programs administered by the Department.

Interim Final Requirement: Under this requirement, an SEA must engage in meaningful consultation with various stakeholder groups on its ARP ESSER plan and give the public an opportunity to provide input on the development of the plan and take such input into account.Specifically, an SEA is required to consult with students; families; Tribes (if applicable); civil rights organizations (including disability rights organizations); school and district administrators (including special education administrators); superintendents; charter school leaders (if applicable); teachers, principals, school leaders, other educators, school staff, and their unions; and stakeholders representing the interests of children with disabilities, English learners, children experiencing homelessness, children in foster care, migratory students, children who are incarcerated, and other underserved students in the development of its ARP ESSER plan. Under the requirement, an SEA must also provide the public with the opportunity to provide input in the development of the plan and take such input into account.

To facilitate consultation on an SEA's ARP ESSER plan and ongoing communication with the public, under the requirement, an SEA must also make information publicly available on its website as soon as possible but no later than June 21, 2021, and regularly provide updated available information on its website, on the numbers of schools in the State providing each mode of instruction ( i.e., fully remote or online-only instruction, both remote/online instruction and in-person instruction (hybrid model), and full-time in-person instruction). The SEA must also make publicly available student enrollment data and, to the extent available, student attendance data for all students and disaggregated by students from low-income families, students from each racial and ethnic group, gender, English learners, children with disabilities, children experiencing homelessness, children in foster care, and migratory students for each mode of instruction.

Reasons: As explained in the background text above, the ARP ESSER program provides significant resources to SEAs and LEAs to respond to the educational disruptions caused by the COVID-19 pandemic. Given the unprecedented funding available and the widespread impacts of the COVID-19 pandemic, ARP ESSER funding presents a unique opportunity not only to help students and educators overcome the trauma and the loss of instructional time that they may have experienced, but also to make investments in student achievement and success. With strategic investment, ARP ESSER funding can build the capacity of States, LEAs, and schools to sustain meaningful and effective teaching and learning and address the needs of underserved students. Taking full advantage of this opportunity is consistent with the President's determination to “build back better” in response to the COVID-19 pandemic.

We believe diverse stakeholders will have significant insight into the effects of the COVID-19 pandemic on teaching and learning that will be critical to informing an SEA's plan for ARP ESSER, including how it will use its ARP ESSER funds, support LEAs in the use of their ARP ESSER funds, and evaluate the effectiveness of ARP ESSER. For that reason, under the requirement, an SEA must engage with students; families; Tribes (if applicable); civil rights organizations (including disability rights organizations); school and district administrators (including special education administrators); superintendents; charter school leaders (if applicable); teachers, principals, school leaders, other educators, school staff, and their unions; and stakeholders representing the interests of children with disabilities, English learners, children experiencing homelessness, children in foster care, migratory students, children who are incarcerated, and other underserved students in the development of the SEA's ARP ESSER plan. The SEA must also provide the general public with the opportunity to provide input ( e.g., by requesting input on its website) and must take the public input it receives into account. By seeking input from these diverse stakeholders and the general public, an SEA will be better positioned to fully understand and adequately respond to the education needs in the State and the impact of the COVID-19 pandemic on all students, and particularly the groups of students most significantly impacted by the COVID-19 pandemic. The SEA will also be better positioned to make critical investments not just to recover, but also to implement and improve effective approaches for teaching and learning that accelerate student learning outcomes and address the needs of underserved students most impacted by the COVID-19 pandemic.

The requirement that the SEA make information publicly available on its website about the number of schools offering fully remote or online-only instruction, both remote/online instruction and in-person instruction (hybrid), and full-time in-person instruction is an important initial step toward transparency and understanding of the continued impact of the pandemic on learning and teaching. Disaggregated enrollment and, if available, attendance data will allow the public to provide more informed input on the SEA's ARP ESSER plan and initial approaches for targeting of federal resources to address the impact of interrupted instruction and the needs of students and teachers.

Statute: Title VIII of Division B of the CARES Act directs the Department to carry out the Education Stabilization Fund, of which the ARP ESSER funds are a part. Section 2001 of the ARP Act provides for the Department to make grants to each SEA from the ARP ESSER funds. An SEA must allocate at least 90 percent of its ARP ESSER grant funds to its LEAs (including charter schools that are LEAs) in the State in the same proportion that the LEAs received under part A of title I of the ESEA in Fiscal Year 2020, as required by section 2001(d)(1) of the ARP Act; and section 2001(e) of the ARP Act prescribes certain mandatory and permissive uses of LEAs' funds. Under 20 U.S.C. 1221e-3, the Secretary has the authority to promulgate rules governing the programs administered by the Department.

Interim Final Requirement: Under this requirement, each LEA that receives ARP ESSER funds must develop, submit to the SEA on a reasonable timeline determined by the SEA, and make publicly available on the LEA's website, a plan for the LEA's use of ARP ESSER funds. The plan, and any revisions to the plan submitted consistent with procedures established by the SEA, must include at a minimum a description of—

(1) The extent to which and how the funds will be used to implement prevention and mitigation strategies that are, to the greatest extent practicable, consistent with the most recent CDC guidance on reopening schools, in order to continuously and safely open and operate schools for in-person learning;

(2) How the LEA will use the funds it reserves under section 2001(e)(1) of the ARP Act to address the academic impact of lost instructional time through the implementation of evidence-based interventions, such as summer learning or summer enrichment, extended day, comprehensive afterschool programs, or extended school year;

(3) How the LEA will spend its remaining ARP ESSER funds consistent with section 2001(e)(2) of the ARP Act; and

(4) How the LEA will ensure that the interventions it implements, including but not limited to the interventions implemented under section 2001(e)(1) of the ARP Act to address the academic impact of lost instructional time, will respond to the academic, social, emotional, and mental health needs of all students, and particularly those students disproportionately impacted by the COVID-19 pandemic, including students from low-income families, students of color, English learners, children with disabilities, students experiencing homelessness, children in foster care, and migratory students.

Under this requirement, an LEA must engage in meaningful consultation with stakeholders and give the public an opportunity to provide input in the development of its plan. Specifically, an LEA must engage in meaningful consultation with students; families; school and district administrators (including special education administrators); and teachers, principals, school leaders, other educators, school staff, and their unions. Additionally, an LEA must engage in meaningful consultation with each of the following, to the extent present in or served by the LEA: Tribes; civil rights organizations (including disability rights organizations); and stakeholders representing the interests of children with disabilities, English learners, children experiencing homelessness, children in foster care, migratory students, children who are incarcerated, and other underserved students.

Finally, under the requirement, each LEA's ARP ESSER plan must be: In an understandable and uniform format; to the extent practicable, written in a language that parents can understand or, if not practicable, orally translated; and, upon request by a parent who is an individual with a disability, provided in an alternative format accessible to that parent.

Reasons:

LEA ARP ESSER Plan—

Under the ARP ESSER program, LEAs are receiving significant resources to respond to student and educator needs as schools continue to safely reopen. LEA plans are necessary to ensure transparency and accountability for use of the funds. As discussed in more detail below, the public and in particular students, their families, and educators, have a vested interest in understanding an LEA's priorities and plans for the funds and whether and how the LEA will use the funds to address their students' academic, social, emotional, and mental health needs. Requiring the development and posting of the LEA's plan will result in important transparency.

Additionally, ARP ESSER provides significant federal resources to respond to the COVID-19 pandemic that, for some LEAs, comprise millions of dollars of emergency funding. Requiring each LEA to develop a plan for the use of those funds will provide a mechanism for SEAs and the Department to ensure that the ARP ESSER funds are being used consistent with statutory requirements and to meet the needs of schools, students, and educators, in particular those students most impacted by the COVID-19 pandemic.

The minimum requirements for the ARP ESSER plans ensure that LEAs are using ARP ESSER funds for their intended purposes, including whether and how they will use the funds specifically for COVID-19 prevention and mitigation strategies, how the funds will be used to address the academic impact of lost instructional time through the implementation of evidence-based interventions, consistent with the requirement in section 2001(e)(1) of the ARP Act that each LEA reserve at least 20 percent of its ARP ESSER funds for that purpose, and how the LEA will ensure that those interventions respond to the academic, social, emotional, and mental health needs of all students and particularly those students disproportionately impacted by the COVID-19 pandemic. Given the unique circumstances in each State, we believe each SEA is best situated to determine what additional requirements to include in the LEA ARP ESSER plan. For example, an SEA might require that the LEA ARP ESSER plan include data that illustrates the LEA's most pressing needs or descriptions of promising practices that the LEA has implemented to accelerate learning. The SEA might also require that the LEA's ARP ESSER plan contain the information required in the LEA's plan for the safe return to in-person instruction and continuity of services, in which case the LEA may develop one plan that addresses both sets of requirements rather than two separate plans ( i.e., one plan that addresses use of ARP ESSER funds and the safe return to in-person instruction and continuity of services). The SEA also establishes the deadline by which the LEA must submit its ARP ESSER plan, which must be reasonable and should be within no later than 90 days after receiving its ARP ESSER allocation.

COVID-19 has had a dramatic impact on the Nation's education system. In addition to disrupting teaching and learning, it has exacerbated existing inequities in our schools and school districts. Every aspect of student life has been impacted by the COVID-19 pandemic: Students' classes and courses of study have been interrupted and/or delayed and students' social, emotional, and mental health have been negatively impacted by the isolation and anxiety of living through a pandemic and quarantine along with the additional associated stresses placed on their families. 12

As students and teachers continue to return to full-time in-person education, they will have important insights into how schools should approach prevention and mitigation of COVID-19, and into what may be needed to support student success. For this reason, in developing their ARP ESSER plans, LEAs will be required to meaningfully consult with students; families; school and district administrators (including special education administrators); and teachers, principals, school leaders, other educators, school staff, and their unions. Additionally, an LEA is also required to engage in meaningful consultation with each of the following, to the extent present in or served by the LEA: Tribes; civil rights organizations (including disability rights organizations); and stakeholders representing the interests of children with disabilities, English learners, children experiencing homelessness, children in foster care, migratory students, children who are incarcerated, and other underserved students. An LEA's decisions about how to use its ARP ESSER funds will directly impact the students, families, and stakeholders in their school district, and thus the LEA's plans must be tailored to the specific needs faced by students and schools within the district. These diverse stakeholders will have significant insight into what prevention and mitigation strategies should be pursued to keep students and staff safe, as well as how the various COVID-19 prevention and mitigation strategies impact teaching, learning, and day-to-day school experiences.

With regard to addressing the academic, social, emotional, and mental health needs of all students, particularly those most impacted by the pandemic, we believe that it is critical that LEAs solicit and consider the input of students and their families to identify their most pressing needs. Close coordination with Tribes is critical to effective support for Native American students, so LEAs need to consult Tribes, as applicable. In addition, the Department understands educators and students' families will have important insights into and observations of students' academic, social, emotional, and mental health needs garnered from their experiences during the COVID-19 pandemic. Stakeholders will similarly have critical insights into how best to address the academic impact of lost instructional time that LEAs are required to address with at least 20 percent of their ARP ESSER funds. For all of these reasons, through this consultation, LEAs will be better positioned to fully plan to use ARP ESSER funds to adequately respond to the needs of all students, particularly those most impacted by the COVID-19 pandemic.

The requirement also mandates that LEA ARP ESSER plans be accessible, including to parents with limited English proficiency and individuals with a disability. This requirement is intended to help ensure that all parents, including parents with limited English proficiency or individuals with disabilities, are able to access and understand the information in an LEA's ARP ESSER plan, consistent with the Department's interpretation of Title VI of the Civil Rights Act of 1964 and existing obligations to parents with disabilities under the Americans with Disabilities Act (ADA).

Statute: Section 2001(i)(1) of the ARP Act requires each LEA that receives ARP ESSER funds to develop and make publicly available on the LEA's website, not later than 30 days after receiving ARP ESSER funds, a plan for the safe return to in-person instruction and continuity of services for all schools, including those that have already returned to in-person instruction. Section 2001(i)(2) of the ARP Act further requires that the LEA seek public comment on the plan and take those comments into account in the development of the plan. Finally, section 2001(i)(3) of the ARP Act states that an LEA that developed a plan for the safe return to in-person instruction and continuity of services prior to the date of enactment of the ARP Act will be deemed to have met the requirement to develop a plan under section 2001(i)(1) as long as the plan meets the statutory requirements ( i.e., is publicly available on the LEA's website and was developed after the LEA sought and took into account public comment).

Interim Final Requirement: As described in more detail below, this requirement clarifies what an LEA's plan for the safe return to in-person instruction and continuity of services must address and requires periodic review and, when needed, revision of the plan to ensure it remains relevant and meets statutory and regulatory requirements.

First, the requirement clarifies that an LEA's plan must include how it will maintain the health and safety of students, educators, and other school and LEA staff, and the extent to which it has adopted policies, and a description of any such policies, on each of the CDC's safety recommendations including: Universal and correct wearing of masks; modifying facilities to allow for physical distancing ( e.g., use of cohorts/podding); handwashing and respiratory etiquette; cleaning and maintaining healthy facilities, including improving ventilation; contact tracing in combination with isolation and quarantine, in collaboration with the State, local, territorial, or Tribal health departments; diagnostic and screening testing; efforts to provide vaccinations to school communities; appropriate accommodations for children with disabilities with respect to health and safety policies; and coordination with State and local health officials.

Second, the requirement further clarifies that the plan must describe how the LEA will ensure continuity of services, including but not limited to services to address students' academic needs and students' and staff social, emotional, mental health and other needs, which may include student health and food services.

Third, the requirement provides that, during the period of the ARP ESSER award established in section 2001(a) of the ARP Act ( i.e., until September 30, 2023), 13 an LEA must periodically, but no less frequently than every six months, review and, as appropriate, revise its plan. Consistent with section 2001(i)(2) of the ARP Act, which requires an LEA to seek public comment on the development of its plan, an LEA must seek public input and take such input into account in determining whether to revise its plan and, if it determines revisions are necessary, on the revisions it makes to its plan, i.e., the LEA must seek public input on whether to revise its plan and on any revisions to its plan no less frequently than every six months (taking into consideration the timing of significant changes to CDC guidance on reopening schools). The requirement clarifies that, if the LEA revises its plan, the revised plan must address each of the aspects of safety currently recommended by the CDC or, if the CDC has updated its safety recommendations at the time the LEA is revising its plan, each of the updated safety recommendations. The requirement also clarifies that an LEA that developed a plan prior to enactment of the ARP Act that meets the requirements under section 2001(i)(1) and (2) of the ARP Act but does not address each of the required aspects of safety established in this requirement must, as part of the required periodic review, revise its plan consistent with these requirements no later than six months after it last reviewed its plan.

Fourth, under the requirement, the plans must be: In an understandable and uniform format; to the extent practicable, written in a language that parents can understand or, if not practicable, orally translated; and upon request by a parent who is an individual with a disability, provided in an alternative format accessible to that parent.

Reasons: The statutory requirements for each LEA to develop a plan for the safe return to in-person instruction and continuity of services, to seek and incorporate public comment on the plan, and to make the plan publicly available are important for planning and transparency as LEAs work to return to, or continue, the safe operation of in-person instruction. However, the statute does not explicitly define what it means for a plan to provide for a safe return to and continuity of in-person instruction.

Because safe return to and continuity of in-person instruction is fundamental to addressing the lost instructional time and disengagement that many students have experienced during the COVID-19 pandemic, it is essential that these plans contain precise information about how LEAs will focus on prevention and mitigation of COVID-19 specific to their communities, in order to keep students, staff, and families healthy and to avoid future shutdowns. To ensure that each plan contains a sufficient level of specificity, the requirement sets forth several aspects of safety that each LEA plan must address. 14 These elements are consistent with current, relevant guidance from the CDC related to the safe reopening of schools. 15 The requirement does not mandate that an LEA adopt the CDC guidance, but only requires that the LEA describe in its plan the extent to which it has adopted the key prevention and mitigation strategies identified in the guidance. The requirement also ensures that each plan will specifically address how it will continue to provide services that meet student and staff needs. Section 2001(i) of the ARP Act requires that the plan address “continuity of services,” but does not specifically identify those services. The requirement clarifies that, in addition to meeting academic needs, the plan must also address how the LEA will continue to provide services to meet students' academic needs and students' and staff social, emotional, mental health, and other needs through, for example, continuing to provide students meals and access to medical services. According to the National School Lunch Program, before COVID-19, schools provided free or reduced-priced lunches to approximately 22 million students each day. 16 This is just one example of the many essential services that schools provide. For this reason, the requirement ensures that each LEA separately addresses continuity of services as a discrete prong of the plan.

The statute does not explicitly specify when or how often an LEA's plan must be reviewed and revised. To help an LEA adapt to the constantly evolving status of the COVID-19 pandemic, the requirement mandates that, during the period of the grant, an LEA review its plan at least every six months (taking into consideration the timing of significant changes to CDC guidance on reopening schools), and seek public input in determining whether, and what, revisions are necessary. The requirements also make clear that a revised plan must continue to address safety recommendations from the CDC, which must include updated CDC guidance, to ensure that the plans continue to provide useful information that addresses the most up-to-date research on COVID-19 prevention and mitigation. This requirement will also ensure that an LEA that developed a safe return to in-person instruction and continuity of services plan prior to enactment of the ARP Act and the requirement will, at least within six months of receipt of its grant, revise, as necessary, and post its plan so that it addresses all of the safety recommendations included in the requirement.

The rationale for requiring that LEA plans for the safe return to in-person instruction and continuity of services be accessible, including to parents with limited English proficiency and individuals with disabilities, is described above with respect to the same requirement as it applies to LEA ARP ESSER plans.

Interim Final Requirements: The Secretary establishes the following interim final requirements for the ARP ESSER Fund.

(1) SEA Consultation with Stakeholders; Public Input. An SEA receiving ARP ESSER funds must, in the development of its ARP ESSER plan—

(a) Engage in meaningful consultation with stakeholders, including, but not limited to, students; families; Tribes (if applicable); civil rights organizations (including disability rights organizations); school and district administrators (including special education administrators); superintendents; charter school leaders (if applicable); teachers, principals, school leaders, other educators, school staff, and their unions; and stakeholders representing the interests of children with disabilities, English learners, children experiencing homelessness, children in foster care, migratory students, children who are incarcerated, and other underserved students;

(b) Provide the public the opportunity to provide input and take such input into account; and

(c) To facilitate consultation on its ARP ESSER plan and ongoing communication with the public, make information publicly available on its website as soon as possible but no later than June 21, 2021, and regularly provide updated available information on its website, on—

(i) The numbers of schools in the State providing each mode of instruction ( i.e., fully remote or online-only instruction, both remote/online instruction and in-person instruction (hybrid model), and full-time in-person instruction); and

(ii) Student enrollment data and, to the extent available, student attendance data for all students and disaggregated by students from low-income families, students from each racial and ethnic group, gender, English learners, children with disabilities, children experiencing homelessness, children in foster care, and migratory students for each mode of instruction listed in paragraph (i).

(2) LEA ARP ESSER Plan.

(a) Each LEA that receives ARP ESSER funds must submit to the SEA, in such manner and within a reasonable timeline as determined by the SEA, a plan that contains any information reasonably required by the SEA. The plan, and any revisions to the plan submitted consistent with procedures established by the SEA, must describe—

(i) The extent to which and how the funds will be used to implement prevention and mitigation strategies that are, to the greatest extent practicable, consistent with the most recent CDC guidance on reopening schools, in order to continuously and safely open and operate schools for in-person learning;

(ii) How the LEA will use the funds it reserves under section 2001(e)(1) of the ARP Act to address the academic impact of lost instructional time  17 through the implementation of evidence-based interventions, such as summer learning or summer enrichment, extended day, comprehensive afterschool programs, or extended school year programs;

(iii) How the LEA will spend its remaining ARP ESSER funds consistent with section 2001(e) of the ARP Act; and

(iv) How the LEA will ensure that the interventions it implements,including but not limited to the interventions under section 2001(e)(1) of the ARP Act to address the academic impact of lost instructional time, will respond to the academic, social, emotional, and mental health needs of all students, and particularly those students disproportionately impacted by the COVID-19 pandemic, including students from low-income families, students of color, English learners, children with disabilities, students experiencing homelessness, children in foster care, and migratory students.

(b) In developing its ARP ESSER plan, an LEA must—

(i) Engage in meaningful consultation—

(A) With stakeholders, including: Students; families; school and district administrators (including special education administrators); and teachers, principals, school leaders, other educators, school staff, and their unions; and

(B) To the extent present in or served by the LEA: Tribes; civil rights organizations (including disability rights organizations); and stakeholders representing the interests of children with disabilities, English learners, children experiencing homelessness, children in foster care, migratory students, children who are incarcerated, and other underserved students; and

(ii) Provide the public the opportunity to provide input and take such input into account.

(c) An LEA's ARP ESSER plan must be—

(i) In an understandable and uniform format;

(ii) To the extent practicable, written in a language that parents can understand or, if it is not practicable to provide written translations to a parent with limited English proficiency, be orally translated for such parent;

(iii) Upon request by a parent who is an individual with a disability as defined by the ADA, provided in an alternative format accessible to that parent; and

(iv) Be made publicly available on the LEA's website.

(3) LEA Plan for Safe Return to In-Person Instruction and Continuity of Services.

(a) An LEA must describe in its plan under section 2001(i)(1) of the ARP Act for the safe return to in-person instruction and continuity of services—

(i) how it will maintain the health and safety of students, educators, and other staff and the extent to which it has adopted policies, and a description of any such policies, on each of the following safety recommendations established by the CDC:

(A) Universal and correct wearing of masks.

(B) Modifying facilities to allow for physical distancing ( e.g., use of cohorts/podding).

(C) Handwashing and respiratory etiquette.

(D) Cleaning and maintaining healthy facilities, including improving ventilation.

(E) Contact tracing in combination with isolation and quarantine, in collaboration with the State, local, territorial, or Tribal health departments.

(F) Diagnostic and screening testing.

(G) Efforts to provide vaccinations to school communities.

(H) Appropriate accommodations for children with disabilities with respect to health and safety policies.

(I) Coordination with State and local health officials.

(ii) how it will ensure continuity of services, including but not limited to services to address students' academic needs and students' and staff social, emotional, mental health, and other needs, which may include student health and food services.

(b)(i) During the period of the ARP ESSER award established in section 2001(a) of the ARP Act, an LEA must regularly, but no less frequently than every six months (taking into consideration the timing of significant changes to CDC guidance on reopening schools), review and, as appropriate, revise its plan for the safe return to in-person instruction and continuity of services.

(ii) In determining whether revisions are necessary, and in making any revisions, the LEA must seek public input and take such input into account.

(iii) If at the time the LEA revises its plan the CDC has updated its guidance on reopening schools, the revised plan must address the extent to which the LEA has adopted policies, and describe any such policies, for each of the updated safety recommendations.

(c) If an LEA developed a plan prior to enactment of the ARP Act that meets the statutory requirements of section 2001(i)(1) and (2) of the ARP Act but does not address all the requirements in paragraph (a), the LEA must, pursuant to paragraph (b), revise and post its plan no later than six months after receiving its ARP ESSER funds to meet the requirements in paragraph (a).

(d) An LEA's plan under section 2001(i)(1) of the ARP Act for the safe return to in-person instruction and continuity of services must be—

(i) In an understandable and uniform format;

(ii) To the extent practicable, written in a language that parents can understand or, if it is not practicable to provide written translations to a parent with limited English proficiency, be orally translated for such parent; and

(iii) Upon request by a parent who is an individual with a disability as defined by the ADA, provided in an alternative format accessible to that parent.

Under the Administrative Procedure Act (“APA”) (5 U.S.C. 551-559), the Department generally offers interested parties notice of and the opportunity to comment on proposed requirements. However, the APA provides that an agency is not required to conduct notice and comment rulemaking “when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). Here, there is good cause to waive notice and comment rulemaking. The requirements in this notice are critical to ensuring that SEAs and LEAs urgently and effectively develop plans to use the ARP ESSER resources that reflect a full understanding of student needs and support a strong response to those needs. In addition, to ensure an effective and sustained return to in-person instruction, it is imperative that LEA return to in-person instruction plans address specific areas of safety and are adjusted as needed in response to evolving COVID-19 pandemic circumstances. However, going through the full rulemaking process would delay an SEA's ability to submit a plan for its remaining ARP ESSER funds, which are emergency funds intended to meet the immediate needs of students, educators, staff, schools, LEAs, and SEAs. Notice and comment rulemaking would be contrary to the public interest because the time involved would preclude emergency funds being available to meet exigent need for summer learning and effective, timely planning for the upcoming school year, both of which are critical to mitigate and prevent the continued impact of lost instructional time as well as to meet academic, social, and emotional needs. Nonetheless, the Department is issuing interim final requirements instead of final requirements to allow the members of the public to provide their input about the content of the requirements.

The COVID-19 pandemic continues to present extraordinary circumstances, including widespread school closures, significant loss of instructional time, and trauma for students, educators, and other staff. Various provisions of section 2001 of the ARP Act describe the emergency caused by the COVID-19 pandemic and encourage quick dispersal of ARP ESSER funds. Establishing these interim final requirements now, without the delay of notice and comment rulemaking, enables SEAs and LEAs to effectively use ARP ESSER funds to address the immediate safety, academic, social, and emotional needs of students and help schools safely return to or continue in-person instruction.

The APA also requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, because the ARP ESSER funds are needed to address the immediate needs of students, educators, schools, LEAs, and SEAs due to the COVID-19 pandemic, the Secretary also has good cause to waive the 30-day delay in the effective date of these requirements under 5 U.S.C. 553(d)(3).

Under Executive Order 12866, the Office of Management and Budget (“OMB”) must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a significant regulatory action as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities in a material way (also referred to as “economically significant” regulations);

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This regulatory action is an economically significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

Pursuant to section 804(2) of the Congressional Review Act (5 U.S.C. 804(2)), the Office of Information and Regulatory Affairs designated this rule as a “major rule.”

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, section 1(b) of Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives taking into account, among other things, and to the extent practicable, the costs of cumulative regulations;

(3) Select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including providing economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or providing information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.”  18 The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”  19

The Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action, and we are issuing these interim final requirements only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows and the reasons stated elsewhere in this document, the Department believes that the interim final requirements are consistent with the principles set forth in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, or Tribal governments in the exercise of their governmental functions.

In this regulatory impact analysis, we discuss the need for regulatory action, the potential costs and benefits, and the net budget impacts.

Elsewhere, under Paperwork Reduction Act of 1995 , we identify and explain burdens specifically associated with information collection requirements.

These interim final requirements are intended to provide two critical benefits: State and local plans under the ARP ESSER program that are informed by and meaningfully address the academic, social, emotional, and mental health needs of our Nation's students, particularly those students disproportionately impacted by the COVID-19 pandemic; and local plans required under the ARP Act that effectively guide a safe return to in-person instruction and ensure continuity of services during and after the COVID-19 pandemic. As discussed elsewhere in this document, the ARP ESSER program provides significant resources to SEAs and LEAs to respond to the unprecedented educational disruptions caused by the COVID-19 pandemic. The Department believes this regulatory action is needed to ensure that the plans SEAs and LEAs develop to use these resources reflect a full understanding of student needs and support a strong, urgent response to these pressing needs. In addition, to ensure an effective and sustained return to in-person instruction, it is imperative that LEA plans address specific areas of safety and adjust as needed in response to evolving COVID-19 pandemic circumstances.

This regulatory action establishes interim final requirements for an SEA to meaningfully consult with various stakeholder groups on its ARP ESSER plan, give the public an opportunity to provide input on the development of the plan, and facilitate consultation and public input by publishing and regularly updating information on school modes of instruction and student enrollment and, to the extent available, attendance. It also requires an LEA receiving ARP ESSER funds to develop and make publicly available a plan for the use of those funds; meaningfully consult with stakeholders and consider public input in developing its plan; and make its plan accessible, including to parents with limited English proficiency and individuals with disabilities. Finally, with respect to the LEA plan for the safe return to in-person instruction and continuity of services required under section 2001(i) of the ARP Act, this action specifies what the plan must address; requires periodic review and, when needed, revision of the plan, with consideration of public input in each case, to ensure it meets statutory and regulatory requirements and remains relevant to the needs of schools; and requires that the plan be accessible, including to parents with limited English proficiency and individuals with disabilities. We estimate the costs of complying with these interim final requirements in the paragraphs that follow. Throughout, we use mean wages for Education and Childcare Administrators  20 to monetize costs associated with SEA and LEA staff time, and we assume that the total dollar value of labor, including overhead and benefits, is equal to 200 percent of the wage rate.

SEAs and LEAs may use ARP ESSER funds to defray costs associated with these interim final requirements, including funds that an SEA reserves for administration under section 2001(f)(4) of the ARP Act.

The Department expects that SEAs generally will rely on previously established procedures for consulting with stakeholders and considering public input and that any burden in adapting those procedures to comply with these interim final requirements for ARP ESSER plans would be negligible. We estimate that, in implementing its procedures, an SEA will need, on average, 80 staff-hours to engage in meaningful consultation with identified stakeholder groups and 40 staff-hours to consider public input, for a total estimated average of 120 staff-hours. At $97.28 per SEA staff-hour, the average estimated cost to comply with the requirements is approximately $12,000. For 52 SEAs (including the District of Columbia and the Commonwealth of Puerto Rico), the total estimated cost is $607,000.

Under the interim final requirements, an SEA must facilitate consultation with stakeholders and ongoing communication with the public by posting on its website information on the number of schools in the State providing different modes of instruction and on student enrollment and (if available) attendance, and it must update such information regularly. We expect that SEAs generally possess much of this information and estimate that the average SEA will need 100 hours to comply with the facilitation requirement, including initial posting and six updates. At $97.28 per SEA staff-hour, the average estimated cost to comply with the requirements is approximately $9,700. For 52 SEAs, the total estimated cost is $505,900.

Under the interim final requirements, an LEA must develop an ARP ESSER plan that describes, at a minimum, how the LEA will use ARP ESSER funds to implement prevention and mitigation strategies in school opening and operations, address the academic impact of lost instructional time, carry out other allowable activities, and identify and meet student needs resulting from the COVID-19 pandemic. The Department expects that the majority of LEAs have already devoted significant time and resources toward identifying activities that are responsive to these requirements and that, for these LEAs, the burden associated with ARP ESSER plan development would consist primarily in determining how best to use ARP ESSER funds for these purposes. We estimate that an LEA will need, on average, 40 staff-hours (exclusive of time to consult with stakeholders and consider public input, which is estimated in the following paragraph) to develop an ARP ESSER plan that meets the requirements and to make its plan publicly available. At $97.28 per LEA staff-hour, the average estimated cost to comply with the ARP ESSER plan development requirement is approximately $3,900. For an estimated 15,000 LEAs receiving ARP ESSER funds, the total estimated cost is $58,368,000.

We anticipate that, as with SEAs, LEAs receiving ARP ESSER funds largely will use existing processes for stakeholder consultation and public input and that any adaptations of those processes for purposes of the final requirement would impose minimal burden. The Department estimates that, in carrying out its process, an LEA will need, on average, 30 staff-hours to engage in meaningful consultation with identified stakeholder groups and consider public input. At $97.28 per LEA staff-hour, the average estimated cost to comply with the requirement is approximately $2,900. For an estimated 15,000 LEAs receiving ARP ESSER funds, the total estimated cost for stakeholder consultation and public input is $43,776,000.

Finally, we estimate that an LEA will need an average of 10 hours to comply with the requirement that its ARP ESSER plan be accessible, including to parents with limited English proficiency and individuals with disabilities. At $97.28 per LEA staff-hour, the average estimated cost to comply with the requirement is approximately $1,000. For an estimated 15,000 LEAs receiving ARP ESSER funds, the total estimated cost is $14,592,000.

The Department believes that the majority of LEAs developed plans for the safe return to in-person instruction and continuity of services prior to enactment of the ARP Act. We estimate that one-third of LEAs receiving ARP ESSER funds, or an estimated 5,000 LEAs, will need to develop or revise such plans to meet statutory and regulatory requirements, using an average of 40 staff-hours. At $97.28 per LEA staff-hour, the average estimated cost for complying with the requirements is approximately $3,900, and the total estimated cost is $19,456,000.

Under these interim final requirements, an LEA must review its plan at least every six months, revise its plan as needed, and consider public input in plan review and revision. Assuming LEAs implement their plans through Fiscal Year 2023, an LEA will need to review its plan a minimum of five times—more specifically, at least once in Fiscal Year 2021 and twice in each of Fiscal Years 2022 and 2023—to meet the plan review requirement. We estimate that each review, including consideration of public input using customary methods, will require an average of 10 staff-hours, for a total average of 50 staff-hours. Further, we estimate that the average LEA will revise its plan once and require an average of 20 staff-hours for plan revision, including consideration of public input. The total average estimated staff-hours for complying with plan review and revision requirements is 70 staff-hours, and at $97.28 per LEA staff-hour, the average estimated cost is approximately $6,800. For an estimated 15,000 LEAs receiving ARP ESSER funds, the total estimated cost for complying with the plan review and revision requirements is $102,144,000.

Finally, we estimate that an LEA will need an average of 15 hours to comply with the requirement that its plan (including revisions) for the safe return to in-person instruction and continuity of services be accessible, including to parents with limited English proficiency and individuals with disabilities. At $97.28 per LEA staff-hour, the average estimated cost to comply with the requirement is approximately $1,500. For an estimated 15,000 LEAs receiving ARP ESSER funds, the total estimated cost is $21,888,000.

We estimate that the discretionary elements of these interim final requirements will not have an impact on the Federal budget. This regulatory action establishes requirements for SEAs and LEAs receiving ARP ESSER funds but does not affect the amount of funding available for this program. We anticipate that the nearly $122 billion in ARP ESSER funds will be disbursed in Fiscal Year 2021, and therefore estimate $122 billion in transfers in Fiscal Year 2021 relative to a pre-statutory baseline.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On February 26, 2021, EPA proposed to approve revisions to Illinois' public notice for CAA permitting rules contained in Chapter 35 Illinois Administrative Code (IAC) part 252. See 86 FR 11680. An explanation of the CAA requirements, a detailed analysis of the revisions, and EPA's reasons for proposing approval were provided in the notice of proposed rulemaking (NPRM) and will not be restated here. The public comment period for this proposed rule ended on March 29, 2021. EPA received one supportive comment on the proposal.

EPA is approving IEPA's August 27, 2020, SIP program revisions addressing public notice requirements for CAA permitting. EPA has concluded that the State's submittal meets the plan revisions requirements of CAA section 110 and the implementing regulations at 40 CFR 51.161, 40 CFR 70.4, and 40 CFR 70.7.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Illinois Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 21, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the CAA.)

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:

The National Childhood Vaccine Injury Act of 1986, title III of Public Law 99-660 (42 U.S.C. 300aa-10 et seq. ) (Vaccine Act), established the National Vaccine Injury Compensation Program (VICP) to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines to be compensated. The Vaccine Act has been amended several times since it was first enacted in 1986.

Petitions for compensation under this Program are filed in the United States Court of Federal Claims (Court), with a copy served on the Secretary of Health and Human Services (the Secretary), who is the “Respondent.” The Court, acting through judicial officers called Special Masters, makes findings as to eligibility for, and the amount of, compensation. To be found entitled to an award under the VICP, a petitioner must establish a vaccine-related injury or death, either by proving that a vaccine actually caused or significantly aggravated an injury (causation-in-fact) or by demonstrating the occurrence of what has been referred to as “a Table injury.” That is, a petitioner may show that the vaccine recipient suffered an injury of the type enumerated in the regulations at 42 CFR 100.3—the Vaccine Injury Table  1 (Table)—corresponding to the vaccination in question, and that the onset of such injury took place within a time period also specified in the Table. The Table is accompanied by, among other provisions, the Qualifications and Aids to Interpretation (QAI), which defines the injuries and conditions listed on the Table. If these criteria are met, the injury is presumed to have been caused by the vaccination, and the petitioner is entitled to compensation (assuming that other requirements are satisfied), 2 unless the respondent affirmatively shows that the injury was caused by some factor other than the vaccination ( see 42 U.S.C. 300aa-11(c)(1)(C)(i), 300aa-13(a)(1)(B)), and 300aa-14(a)). Currently, cases are often resolved by negotiated settlements between the parties and approved by the Court. In such situations, HHS and the Court have not reached a conclusion, based upon review of the evidence, whether the vaccine caused the alleged injury.

Revisions to the Table are authorized under the Vaccine Act (42 U.S.C. 300aa-14(c)-(e)). The Vaccine Act prohibits the Secretary from proposing a revision to the Table's list of injuries, disabilities, illnesses, conditions, and deaths for which compensation may be provided, or to the time periods for the first symptom or manifestation of the onset or the significant aggravation of any such injury, disability, illness, condition, or death, “unless the Secretary has first provided to the [Advisory] Commission [on Childhood Vaccines] a copy of the proposed regulation or revision, requested recommendations and comments by the Commission, and afforded the Commission at least 90 days to make such recommendations” (42 U.S.C. 300aa-14(d)). The Advisory Commission on Childhood Vaccines (ACCV) advises and makes recommendations to the Secretary on issues relating to the operation of the VICP ( see generally 42 U.S.C. 300aa-19). Further, once the proposed revision is published, the Vaccine Act requires the Secretary to provide for a public hearing and at least 180 days of public comment (42 U.S.C. 300aa-14(c)(1)). To add a new category of vaccines to the Table, that category also must be recommended for routine administration to children or pregnant women by the Centers for Disease Control and Prevention (CDC), be made subject to an excise tax by Federal law, and be added to the VICP by the Secretary within two years of the CDC's recommendation (42 U.S.C. 300aa-14(e)).

HHS added Shoulder Injury Related to Vaccine Administration (SIRVA) and vasovagal syncope to the Table in March 2017, following an extensive, multi-year process that involved nine HHS workgroups comprising HRSA and CDC medical staff reviewing the 2012 Institute of Medicine report, “Adverse Effects of Vaccines: Evidence and Causality,”  3 as well as other then-newly published scientific literature not contained in the report (82 FR 6294-95). The ACCV considered the proposed changes to add SIRVA and vasovagal syncope to the Table in its meetings on March 8, 2012, September 5, 2013, December 5, 2013, June 5, 2014, and September 4, 2014 (80 FR 45134). On July 29, 2015, a notice of proposed rulemaking (NPRM) was published (80 FR 45132), which provided a 180-day public comment period that resulted in the receipt of 14 written comments; 13 from individuals and one from a national organization (82 FR at 6296). In addition, a public hearing on the proposed rule was held on January 14, 2016 ( Id. ). Almost a year after considering the 14 written comments and the remarks at the public hearing, on January 19, 2017, HHS issued the final rule that added SIRVA and vasovagal syncope to the Table, with an effective date of February 21, 2017 ( Id. at 6294). Pursuant to a January 20, 2017 memorandum from the Assistant to the President and Chief of Staff, titled “Regulatory Freeze Pending Review,” the effective date of the final rule adding SIRVA and vasovagal syncope to the Table was delayed until March 21, 2017 (82 FR 11321).

On July 20, 2020, HHS published an NPRM proposing to amend the Table by removing SIRVA, vasovagal syncope, and the new vaccines category, Item XVII (85 FR 43794). A final rule amending the Table was published on January 21, 2021 (86 FR 6249). Pursuant to the Regulatory Freeze Memorandum dated January 20, 2021, and after a brief public comment period, effective February 22, 2021, HHS delayed the effective date of the January 21, 2021 Final Rule until April 23, 2021, so that the new Administration could review the final rule for “any questions of fact, law, and policy the rule may raise” (86 FR 10835). Specifically, HHS delayed the January 21, 2021 Final Rule to determine whether its promulgation raised any legal issues, including but not limited to (1) whether the ACCV was properly notified of the proposed rule pursuant to 42 U.S.C. 300aa-14(c) and (d), and (2) whether the public was properly notified of the entire revised regulation, 42 CFR 100.3(b)-(e) (including the QAI and the coverage provisions), given that both the proposed and final rules published in the Federal Register included only the revised Vaccine Injury Table itself, but not the entire revised regulation ( Id. at 10835-36). On March 17, 2021, HHS published an NPRM to rescind the January 21, 2021 Final Rule (86 FR 14567).

This final rule rescinds the January 21, 2021 Final Rule entitled “National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table” (86 FR 6249), which, if it were to go into effect, would amend the provisions of 42 CFR 100.3 by removing SIRVA, vasovagal syncope, and the new vaccines category (Item XVII) from the Table.

HHS is rescinding the January 21, 2021 Final Rule for both procedural and policy reasons. HHS had already been alerted, and commenters to the March 17, 2021 NPRM reiterated, that members of the public believe that the promulgation of the January 21, 2021 Final Rule was irregular in its haste, and that HHS did not fully engage with either the ACCV or the public regarding its rationale behind the July 20, 2020 NPRM and its proposed amendments to the Table. The promulgation of the January 21, 2021 Final Rule stands in contrast to the extensive, multi-year process HHS followed to add SIRVA and vasovagal syncope to the Table in March 2017.

Specifically, the July 20, 2020 NPRM stated that HHS provided its proposal to remove SIRVA, vasovagal syncope, and Item XVII from the Table to the ACCV for its comments “on or about February 15, 2020,” and that “[a]s part of its mandate under the [Vaccine] Act, the ACCV considered the proposed changes set forth in this NPRM on March 6, 2020, and May 18, 2020” (85 FR 43799 & n. 19). However, the draft NPRM was not officially provided to the ACCV as a group in mid-February 2020, and, while the statute requires the Secretary to request “recommendations and comments by the Commission,” instead the draft NPRM was mailed in hard copy to each of the ACCV members, marked “privileged and confidential,” with a request for comments from the individual members. Although the then-Chair started the first brief discussion of the draft NPRM at the ACCV meeting on March 6, 2020, the draft NPRM was not on the agenda ( see https://www.hrsa.gov/sites/default/files/hrsa/advisory-committees/vaccines/meetings/2020/accv-agenda-march2020.pdf), and no members of the ACCV other than the then-Chair knew in advance that it would be discussed. One ACCV member commented at the meeting that she thought that the members were not permitted to discuss the draft NPRM. Several members stated that they had questions about the draft NPRM and wished to have further discussion ( see https://www.hrsa.gov/sites/default/files/hrsa/advisory-committees/vaccines/meetings/2020/accv-march-meeting-minutes.pdf ).

At the May 18, 2020 ACCV meeting, three ACCV members expressed their concern that no HHS representative was present to explain the draft NPRM, provide scientific evidence in support, or discuss the recommendations with the ACCV members ( see https://www.hrsa.gov/sites/default/files/hrsa/advisory-committees/vaccines/meetings/2020/accv-may-meeting-minutes.pdf ). In the past, when HHS has proposed a revision to the Table, it has sent an agency representative to discuss the proposal with the ACCV. The ACCV unanimously voted to oppose the proposed changes to the Table, and sent a recommendation to the Secretary opposing the draft NPRM for many reasons including: (1) No representative from HHS was made available to provide the evidence and reasoning behind the draft NPRM; (2) SIRVA and vasovagal syncope, though rare, are injuries caused by vaccines; (3) exposing vaccine administrators to civil liability could be a disincentive to vaccine administration and result in lower vaccination rates; and (4) the explanation in the draft NPRM did not meet the ACCV's guiding principles for recommending changes to the VICP Table ( see https://www.hrsa.gov/sites/default/files/hrsa/advisory-committees/vaccines/reports/accv-recommendation-may-2020.pdf ).

On October 29, 2020, HHS published in the Federal Register a Notification that a hearing on the July 20, 2020 NPRM would be held on November 9, 2020 (85 FR 68540). Unfortunately, that Federal Register Notification incorrectly gave a deadline of October 26, 2020 (three days earlier than the Notice was published) for individuals to register to speak at the hearing ( Id. ). A correction extending the deadline to November 5, 2020, was published in the Federal Register on November 6, 2020 (one day after the deadline) (85 FR 71046). Despite these notification issues, 26 individuals spoke at the public hearing; all were opposed to the NPRM ( see https://www.regulations.gov/document/HRSA-2020-0002-0373 ).

Both the January 21, 2021 Final Rule and the July 20, 2020 NPRM included the following instruction: “In § 100.3, revise paragraph (a) and remove paragraphs (c)(10) and (13) and (e)(8). The revision reads as follows:” Removing paragraphs (c)(10) and (13) would strike the definitions of SIRVA and vasovagal syncope, respectively, from the QAI, and removing paragraph (e)(8) would strike the new vaccines category (Item XVII of the Table) from the Coverage Provisions section of the regulation. What followed the instruction was paragraph (a) and the Table itself. The rest of the regulation, including the revised paragraph (c) QAI and paragraph (e) Coverage Provisions, which are a critical part of the regulation (86 FR 6267; 85 FR 43804), were not included in the instruction and therefore were not included in the revised regulations set out following the instruction. The version of the Vaccine Injury Table that is currently displayed on the eCFR includes a link titled “Link to an amendment published at 86 FR 6267, Jan. 21, 2021.” This link displays only the Vaccine Injury Table that was published in the January 21, 2021 Final Rule ( see https://www.ecfr.gov/cgi-bin/text-idx?SID=f5f03d551be5379a43b4de00614dafaa&mc=true&node=20210121y1.4 ). It also does not include paragraph (b) Provisions that apply to all conditions listed, paragraph (c) QAI, paragraph (d) Glossary for purposes of paragraph (c), and/or paragraph (e) Coverage Provisions sections of the Table, because those revisions were not included in the instruction and therefore were not included in the revised regulations set out following the instruction.

As a policy matter, HHS is rescinding the January 21, 2021 Final Rule because it is concerned that it would have a negative impact on vaccine administrators, which would be at odds with the Federal Government's efforts to increase confidence in vaccinations in the United States, particularly in light of efforts to respond to the Coronavirus Disease 2019 (COVID-19) pandemic, as detailed in the March 17, 2021 NPRM. On March 16, 2021, the then-Acting Secretary issued a Seventh Amendment to the Public Readiness and Emergency Preparedness (PREP) Act Declaration to, among other things, add additional categories of qualified people authorized to prescribe, dispense, and administer COVID-19 vaccines authorized by the U.S. Food and Drug Administration, including dentists, EMTs, midwives, optometrists, paramedics, physician assistants, podiatrists, respiratory therapists, and veterinarians (86 FR 14462).

Given this unprecedented vaccination effort and the concern that the January 21, 2021 Final Rule's revisions to the Table could negatively impact the COVID-19 vaccination campaign, as well as other campaigns such as annual influenza vaccination efforts, and the January 21, 2021 Final Rule's associated procedural issues, HHS is rescinding that rule.

Section 553(d) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) requires that Federal agencies provide at least 30 days after publication of a final rule in the Federal Register before making it effective, unless good cause can be found not to do so. HHS finds that there is good cause for making this final rule effective less than 30 days after publication in the Federal Register given that failure to do so would result in the removal of SIRVA and vasovagal syncope from the Table for 30 days, which would result in logistical and legal uncertainty regarding injuries allegedly received, petitions filed, and petitions adjudicated during that 30-day period. That same uncertainty also applies to the status of 42 CFR 100.3(b)-(e) during such period, given the January 21, 2021 Final Rule's conflicting instructions regarding these provisions. For these reasons, HHS finds there is good cause to make this final rule effective before the January 21, 2021 Final Rule goes into effect on April 23, 2021.

The March 17, 2021 NPRM provided a 30-day comment period, and HRSA received 121 comments during that time, none of which supported the January 21, 2021 Final Rule. HRSA received comments from: Nurses and patients; law and other graduate school students; petitioners' attorneys (including a former member of the ACCV), law firms, and a bar association; a Member of Congress; a biotech trade association; pharmacist and drug store associations; a national drug store chain; non-profit organizations; and other individuals. While the Secretary only sought public comment on rescinding the January 21, 2021 Final Rule, many commenters offered comments beyond the scope of the request. We have summarized the relevant comments received, all of which support rescinding the January 21, 2021 Final Rule, and provided our responses below.

Comment: Several commenters supported the rescission of the January 21, 2021 Final Rule because they believe that rule did not adequately consider the recommendations of the ACCV or the public, or because they had other concerns regarding the January 21, 2021 Final Rule's promulgation. Several commenters pointed out irregularities in how HHS consulted with the ACCV as required by 42 U.S.C. 300aa-14(d). For example, then-ACCV Vice Chair raised concerns about the fact that the draft NPRM he received was marked privileged and confidential, and that he had “never been given permission by anyone from HHS or anywhere else to talk about that document prior to the March 2020 meeting.” He went on to state “a discussion about the Proposed Rule was not on the agenda, and we [the ACCV] had absolutely zero notice that the Proposed Rule was going to be a topic of [consideration], even if the privileges and confidentiality had been waived by HHS.”

In addition, some commenters noted that HHS received more than 760 comments, the vast majority of which were opposed to the July 20, 2020 NPRM, and that more than 150 of those comments were posted on the last day of the comment period. These commenters contended that HHS did not address various substantive comments in the January 21, 2021 Final Rule. For example, one commenter pointed to six specific comments (three from petitioners' attorneys, one from an orthopedic surgeon, one from a commercial pharmacy, and one from a biotechnology trade association) that “were substantial and challenged key premises of the [July 20, 2020] NPRM” to which the January 21, 2021 Final Rule did not adequately respond.

Response: HHS agrees that there were irregularities in how HHS consulted with the ACCV, and there is a legitimate question as to whether the ACCV received the full 90 days to make recommendations. HHS also shares the commenters' other concerns related to the January 21, 2021 Final Rule's promulgation, as detailed above, including whether all public comments were adequately considered and addressed as required by the APA. Given the numerous concerns that have already been raised and the questions that surround the January 21, 2021 Final Rule's promulgation, HHS agrees that rescinding that rule is proper. 4

Comment: Many patients and individuals supported the rescission of the January 21, 2021 Final Rule because they stated they had suffered SIRVA or other injuries related to vaccinations and wanted others to be able to submit petitions for their own alleged SIRVA injuries. Some individuals raised concerns about COVID-19 vaccines and expressed their view that any potential vaccine-related injuries from that vaccination should be covered by the Program.

Response: The VICP was created in the 1980s, after lawsuits against vaccine companies and health care providers threatened to cause vaccine shortages and reduce U.S. vaccination rates, which could have caused a resurgence of vaccine preventable diseases. HHS understands the important role the VICP plays by allowing any individual, of any age, who received a covered vaccine and believes he or she was injured as a result, to seek compensation. HHS regrets that it is unable to comment on individual pending or potential claims for compensation. Further, HHS notes that COVID-19 vaccines are covered countermeasures under the Countermeasures Injury Compensation Program (CICP), 5 not the VICP. As long as Item XVII is included on the Table, for a new category of vaccines to be covered under the VICP, the following three things must happen: (1) Congress must enact an excise tax on the vaccine, (2) the CDC must recommend it for routine administration to children or pregnant women, and (3) the Secretary must publish a notice of coverage in the Federal Register ( see 42 CFR 100.3(a), (e)(8)).

Comment: Many commenters supported the rescission of the January 21, 2021 Final Rule because they believe it contravenes the science surrounding SIRVA. For example, a group of registered nurses stated: “Shoulder injury related to vaccine [administration] (SIRVA) and vasovagal syncope are legitimate vaccine-related injuries that should remain on the Vaccine Injury Table. The 2011 Institute of Medicine Report provided convincing evidence through extensive literature reviews that vaccine administration had a causal relationship with both SIRVA and vasovagal syncope. It is necessary that the Vaccine Injury Table [retain] injuries proven by evidence that have the potential to adversely affect American lives.”

Response: HHS is rescinding the January 21, 2021 Final Rule before it goes into effect in part so that the agency can have sufficient time to carefully and methodically consider the state of the science regarding SIRVA since it last completed its comprehensive review of the literature before adding SIRVA to the Table in March of 2017.

Comment: Various commenters supported the rescission of the January 21, 2021 Final Rule because they disagreed with the policy and legal rationales outlined in that rule. For example, some commenters argued that the cited financial considerations in the July 20, 2020 NPRM and the January 21, 2021 Final Rule did not support the removal of SIRVA and vasovagal syncope from the Table because these two injuries have minimal impact on the compensation funds available. Further, some commenters posited that the stated legal basis for removing SIRVA and vasovagal syncope from the Table, i.e., that the VICP only covers injuries attributable to the contents of a vaccine, and for removing Item XVII from the Table, i.e., that the item was contrary to law, represented changes in HHS's interpretation of the Vaccine Act that HHS did not adequately explain.

Response: HHS agrees that compensation paid for SIRVA and syncope claims under the VICP are not currently threatening the solvency of the Vaccine Injury Compensation Trust Fund. 6 Additionally, HHS agrees that the legal interpretation outlined in the January 21, 2021 Final Rule represented a change from HHS's historical interpretation of the Vaccine Act. 7 Such a change in interpretation would deserve a more thorough review and public discussion by HHS with the ACCV and the general public than occurred during the development of the January 21, 2021 Final Rule.

Comment: Some commenters supported the rescission of the January 21, 2021 Final Rule because removing Item XVII from the Table would significantly lengthen the process of adding any new vaccine in the future—such as COVID-19 vaccines—to the Table for coverage under the VICP. Other commenters supported moving coverage for COVID-19 vaccines to the VICP from the CICP.

Response: HHS agrees that, without Item XVII on the Table, the process for adding a vaccine to the Table could be more drawn out. With Item XVII in place, if HHS were to want to add a vaccine to the Table, it could do so if (1) Congress enacts an excise tax on the vaccine, (2) the CDC recommends it for routine administration to children or pregnant women, and (3) the Secretary publishes a notice of coverage in the Federal Register ( see 42 CFR 100.3(a), (e)(8)). The January 21, 2021 Final Rule stated incorrectly that, if Item XVII were removed from the Table, notice and comment rulemaking to add a new vaccine to the VICP would require that any proposed addition of a new vaccine to the Table be presented to the ACCV for its consideration for 90 days prior to publication of an NPRM, with a 180-day comment period for the NPRM, and a public hearing. 8

As stated above, COVID-19 vaccines are covered countermeasures under the CICP, not the VICP. For COVID-19 vaccines to be covered under the VICP, the process described above would have to occur.

Comment: Many commenters supported the rescission of the January 21, 2021 Final Rule because they are concerned that it would be particularly detrimental to vaccine administrators, which would be at odds with the Federal Government's efforts to increase COVID-19 vaccinations, influenza vaccinations, and routine childhood vaccinations, the latter of which have significantly dropped during the pandemic. For example, the American Pharmacists Association and the National Alliance of State Pharmacy Associations commented that “during a pandemic is not the time to make changes to the Vaccine Injury Table, when we are working as a nation to implement the Administration's National Strategy for the COVID-19 Response and Pandemic Preparedness, including optimizing the manufacture, distribution, and administration of COVID-19 and other critical vaccinations.” Another comment pointed out that many states are already suffering from nursing shortages, and increasing nurses' risk of liability for vaccine administration could exacerbate that shortage. Commenters also expressed concern that removing SIRVA and vasovagal syncope may increase vaccine hesitancy as individuals who already distrust vaccinations may decide to avoid being vaccinated if they believe they will not be compensated for SIRVA or vasovagal syncope injuries.

Response: Although the COVID-19 vaccine is not covered under the VICP, HHS recognizes that any action taken that concerns administration of other vaccines could impact the Federal Government's efforts to combat COVID-19. 9 For example, as discussed above, on March 16, 2021, the then-Acting Secretary issued a Seventh Amendment to the Public Readiness and Emergency Preparedness (PREP) Act Declaration to, among other things, add additional categories of qualified people authorized to prescribe, dispense, and administer COVID-19 vaccines authorized by the U.S. Food and Drug Administration. HHS has determined it is not appropriate to remove categories of vaccines and types of injuries from the Table in the midst of the pandemic, especially in light of the Federal Government's unprecedented vaccination effort and data showing lower rates of routine immunizations during this period. 10 In addition, HHS agrees that the January 21, 2021 Final Rule's revisions to the Table could negatively impact the vaccine administrators carrying out this massive COVID-19 vaccination campaign by increasing their exposure to liability for administering non-COVID vaccines, without ample opportunity for vaccine administrators to engage in dialogue with HHS about their concerns. HHS agrees that removing compensable Table injuries, like SIRVA and vasovagal syncope, might run counter to public health goals and increase vaccine hesitancy because doing so could remove the possibility of an accessible and efficient forum for compensation for these injuries.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when rulemaking is necessary, to select regulatory approaches that provide the greatest net benefits (including potential economic, environmental, public health, safety, distributive, and equity effects). In addition, under the Regulatory Flexibility Act, if a rule has a significant economic effect on a substantial number of small entities, HHS must specifically consider the economic effect of a rule on small entities and analyze regulatory options that could lessen the impact of the rule.

The Office of Information and Regulatory Affairs has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866.

HHS has determined that no resources are required to implement the requirements in this rule because compensation will continue to be made consistent with the status quo. Therefore, in accordance with the Regulatory Flexibility Act of 1980 (RFA), and the Small Business Regulatory Enforcement Act of 1996, which amended the RFA, HHS certifies that this rule will not have a significant impact on a substantial number of small entities.

HHS has also determined that this rule does not meet the criteria for a major rule under the Congressional Review Act or Executive Order 12866 and would have no major effect on the economy or Federal expenditures. Similarly, it will not have effects on State, local, and tribal governments and on the private sector such as to require consultation under the Unfunded Mandates Reform Act of 1995. Nor on the basis of family well-being will the provisions of this rule affect the following family elements: Family safety; family stability; marital commitment; parental rights in the education, nurture and supervision of their children; family functioning; disposable income or poverty; or the behavior and personal responsibility of youth, as determined under section 654(c) of the Treasury and General Government Appropriations Act of 1999.

This rule rescinds the final rule titled “National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table.” This rescission is reasonable and will not be disruptive because the underlying rule has not yet been implemented or taken effect.

This rule has no information collection requirements.

Institutions of higher education across the Nation have been severely impacted by the coronavirus disease 2019 (COVID-19) pandemic, which has not only required them to adapt teaching methods and practices, but also admissions processes and criteria. USMMA, along with many other institutions, is faced with the dilemma of how to ensure the selection of qualified candidates given the current situation. The USMMA admissions policy is currently governed by 46 CFR 310.55— Scholastic requirements, which provides in paragraph (b)(1) that “[a]pplicants shall qualify in either the College Board's Scholastic Aptitude Tests (SAT) or the American College Testing Program (ACT) examinations, administered nationally on scheduled dates at convenient testing centers.” Prior to the Department's October 22, 2020 IFR (85 FR 67299), paragraph (d) further provided that “[n]o waivers of scholastic requirements will be granted.”

Due to the COVID-19 pandemic, student access to test centers and the opportunity to take the SAT and ACT have been greatly reduced. Requiring SAT or ACT test scores from students during the COVID-19 pandemic by strictly adhering to the regulation as currently written will significantly affect the application process, selection, and appointment of prospective candidates.

This final rule adopts as final without change, the interim final rule published on October 22, 2020, in response to an emergency waiver request submitted by USMMA seeking a revision to its governing regulations that would provide for a waiver of the scholastic requirements in an emergency situation. After considering the issues raised in the USMMA request and public comments received on the IFR, MARAD agrees that the unprecedented disruptions caused by the COVID-19 pandemic continue to make compliance by prospective candidates with the requirement impracticable and warrant appropriate regulatory relief. Accordingly, MARAD issues this final rule to give the MARAD Administrator the ability to issue a waiver of the scholastic requirements in the event of a State or national emergency that significantly limits the ability of applicants to take either the SAT or ACT.

USMMA operates on a rolling admissions cycle. Aside from a limited number of appointments made by the Secretary of Transportation, candidates for admission must first be nominated by their respective Senator or Representative to receive an appointment to the Academy. The nomination process is independent from the application process; each nominating official decides what requirements they deem appropriate. However, nominating officials often take into consideration a candidate's standardized test scores. Therefore, the lack of ACT/SAT standardized testing availability could prevent candidates from even receiving a nomination.

An application is considered complete when all required documents are submitted, the required standardized test scores are received, and the Candidate Fitness Assessment has been passed. Only then will candidates be offered an appointment. The process will end when the candidate submits acceptance of the offer in late Spring.

According to the ACT website, there will be continued limitations in test center capacity and inevitable cancellations throughout the remainder of the 2021 test dates. 1 In a February 2021 post on its website, ACT stated, “To mitigate COVID-related test cancellations, ACT added three national test dates to its fall 2020 national testing schedule, increased school day testing (state and district testing) and unveiled strategically placed pop-up testing sites across the nation to meet customer demand. Where possible, we [ACT] provided make-up testing for students who were displaced by last-minute cancellations and/or weather-related events.” The College Board, which administers the SAT, also reported that a substantial number of students who registered were unable to take the test as a result of testing center closures or reduction in capacity due to COVID-19 mitigation measures. 2 This is on top of the College Board cancelling SAT administrations from March through May of 2020. 3 Test sites continue to face issues of capacity for Spring 2021, as they need to test all students whose testing was postponed due to COVID-19 plus all future high school graduates who will require scores for college entrance in 2022. For example, according to the College Board, each of the 41 SAT test centers in New York State was closed for the most recent test date (March 13); only one of those centers projected a re-opening date. 4 As of February 1, 2021, USMMA had received 1792 applications, of which 897 (or 50%) were submitted without ACT or SAT scores.

In response to the October 22, 2020 interim final rule, MARAD received two timely submitted comments to the docket from private individuals. One was in support of the revision to USMMA admissions regulations and one was opposed.

With respect to the comment supporting the revision, MARAD and the USMMA agree that students should not be made ineligible for admission to the USMMA on the sole basis that they were unable to take the SAT/ACT exams due to the COVID19 pandemic. This final rule will ensure that COVID19 and any other national emergency does not adversely impact our ability to consider otherwise qualified applicants for admission to the USMMA.

The comment opposing the regulatory revision stated that MARAD should instead work to assist applicants in locating available test locations and to facilitate applicants taking the standardized examinations. MARAD and the USMMA are not positioned to undertake such an expansive process. Instead, because it remains imperative that we are not deterred from our mission to foster and maintain a strong U.S. merchant marine, we are taking this action to protect against disruptions to the USMMA admission process when faced with a national emergency.

After considering the information provided in the USMMA request and the public comments received, evaluating the risks posed to maintaining a vibrant and qualified U.S. merchant marine, and assessing the ongoing hardships stemming from the pandemic, MARAD has decided that there exists a need to add flexibility to the regulations governing USMMA admissions by giving the MARAD Administrator the ability to waive SAT and ACT testing requirements in emergency situations.

The College Board stated in 2020 that many schools and test centers would have reduced capacity because of social distancing guidelines and may encounter unexpected closures. 5 ACT rescheduled its April 2020 national and international tests in response to concerns about the spread of the coronavirus. 6 All students registered for April 2020 test dates were notified of the postponement with instructions for rescheduling to future test dates. 7 Both the ACT and SAT websites continue to show many postponed/cancelled exams across the 50 States. These exams are conducted in high schools and other public buildings, some of which are not yet re-opened and many of which when re-opened have reduced capacity.

The SAT and ACT are typically taken in the Spring, but due to the COVID-19 pandemic, Spring test dates in 2020 were canceled and rescheduled for the Summer or Fall. There are continued limitations in test center capacity, and there are likely to be additional cancellations throughout the remainder of the 2021 test dates. The decision on whether a test center closes rests largely within a State's own discretion, based on guidelines set forth by the Centers for Disease Control and Prevention. Simply stated, as it was in 2020, the availability of testing in 2021 is highly unpredictable.

In response, many colleges and universities have now resorted to making the SAT/ACT test optional for admissions. More than 60% of 4-year colleges and universities in the U.S. will not require applicants to submit ACT or SAT scores for Fall 2021 admission. 8 All of the Federal service academies were confronted with this situation brought on by the COVID-19 pandemic. United States Air Force Academy (USAFA), United States Military Academy (USMA), United States Naval Academy (USNA), and the United States Coast Guard Academy (USCG) have all modified their own requirements for standardized tests from applicants making SAT and ACT scores optional again for the Fall 2022 admission.

Based on the foregoing, MARAD similarly concludes that there is a need to revise its regulations governing USMMA scholastic requirements by giving the MARAD Administrator the ability to waive SAT and ACT testing requirements for USMMA applicants in emergency situations. Due to forces beyond the control of prospective students, the uniform availability of standardized testing is not assured, and therefore, the strict requirement to include such test scores with applications is detrimental to USMMA's ability to offer admission to worthy student candidates.

Accordingly, MARAD issues this final rule providing an exemption to the scholastic requirements. This final rule is intended to provide needed relief to prospective students because of the COVID-19 pandemic and to ensure that the Maritime Administrator can take similar action in the future if the need arises.

Executive Order (E.O.) 12866, E.O. 13563, and the Department of Transportation's administrative rulemaking procedures set forth in 49 CFR part 5, subpart B, provide for determining whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of E.O. 12866.

Today's final rule is not significant and has not been reviewed by OMB under E.O. 12866. This rule is limited to giving the MARAD Administrator the ability to waive the regulatory requirement to include SAT or ACT scores in applications for admission to USMMA in emergency situations. This rule does not actually waive any regulatory requirements. Therefore, this rule does not result in any costs or benefits.

Pursuant to the Regulatory Flexibility Act (RFA), MARAD has considered the impacts of this rulemaking action on small entities (5 U.S.C. 601 et seq. ). Rules that are exempt from notice and comment are also exempt from the RFA requirements, including conducting a regulatory flexibility analysis, when among other things the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 603(a). Because this rule adopts as final, without change, the interim final rule previously published as exempt from the APA notice and comment requirements, MARAD is not required to conduct a regulatory flexibility analysis.

MARAD has examined the final rule pursuant to E.O. 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The Agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final 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.”

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This action will not result in additional expenditures by State, local, or tribal governments or by any members of the private sector. Therefore, the Agency has not prepared an economic assessment pursuant to the Unfunded Mandates Reform Act.

Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule includes no new collection of information and will not change any existing collections of information as it does not actually waive any regulatory requirements.

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

This document announces that the Office of Management and Budget (OMB) approved the information collection requirements in 47 CFR 1.21001(b)(1) through (13) and (e) and 1.21002(e) and (f), on April 14, 2021. These rules were adopted in the 5G Fund Report and Order, FCC 20-150. The Commission publishes this document as an announcement of the effective date for these new or amended rules. OMB approval for all other new or amended rules adopted in the 5G Fund Report and Order for which OMB approval is required will be requested, and the effective date for those rules will be announced following OMB's approval. See 85 FR 75770 (Nov. 25, 2020).

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 3.317, 45 L Street NE, Washington, DC 20554, regarding OMB Control Number 3060-1166. Please include the OMB Control Number in your correspondence. The Commission will also accept your comments via email at 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 Commission is notifying the public that it received final OMB approval on April 14, 2021, for the information collection requirements contained in 47 CFR 1.21001(b)(1) through (13) and (e) and 1.21002(e) and (f). Under 5 CFR part 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 for the information collection requirements in 47 CFR 1.21001(b)(1) through (13) and (e) and 1.21002(e) and (f) is 3060-1166.

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: 3060-1166.

OMB Approval Date: April 14, 2021.

OMB Expiration Date: April 30, 2024.

Title: Section 1.21001, Participation in Competitive Bidding for Support; Section 1.21002, Prohibition of Certain Communications During the Competitive Bidding Process.

Form Number: N/A.

Respondents: Business or other for-profit entities, not-for-profit institutions, and state, local or tribal governments.

Number of Respondents and Responses: 750 respondents; 750 responses.

Estimated Time per Response: 1.5 hours.

Frequency of Response: On occasion reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 154, 254 and 303(r).

Total Annual Burden: 1,125 hours.

Total Annual Cost: No cost.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: Information collected in each application to participate in an auction for universal service support will be made available for public inspection, and the Commission is not requesting that respondents submit confidential information to the Commission as part of the pre-auction application process. However, to the extent that a respondent seeks to have certain information collected in an application to participate in an auction for universal service support or in a report of a prohibited communication withheld from public inspection, the respondent may request confidential treatment of such information pursuant to § 0.459 of the Commission's rules, 47 CFR 0.459.

Needs and Uses: The information required by § 1.21001 of the Commission's rules that is collected under this information collection is used by the Commission to determine whether applicants are eligible to participate in auctions for Universal Service Fund support. The reports of prohibited communications made or received by an auction applicant required by § 1.21002 of the Commission's rules that are collected under this information collection enable the Commission to ensure that no bidder gains an unfair advantage over other bidders in its auctions for universal service support and thus enhance the competitiveness and fairness of Commission's auctions for universal service support.

On November 18, 2011, the Commission released an order comprehensively reforming and modernizing the universal service and intercarrier compensation systems to ensure that robust, affordable voice and broadband service, both fixed and mobile, are available to Americans throughout the nation. Connect America Fund et al., Order and Further Notice of Proposed Rulemaking, FCC 11-161 ( USF/ICC Transformation Order ) (76 FR 73830 (Nov. 29, 2011) and 76 FR 78384 (Dec. 16, 2011)). In the USF/ICC Transformation Order, the Commission, among other things, created (1) the Connect America Fund (CAF), to help make broadband available to homes, businesses, and community anchor institutions in areas that do not, or would not otherwise, have broadband, (2) the Mobility Fund, to ensure the availability of mobile broadband networks in areas where a private-sector business case, (3) the Remote Areas Fund (RAF), to ensure that Americans living in the most remote areas in the nation, where the cost of deploying traditional terrestrial broadband networks is extremely high, can obtain affordable access through alternative technology platforms, including satellite and unlicensed wireless services. The USF/ICC Transformation Order directed that support under CAF Phase II, the Mobility Fund, and the RAF be awarded by competitive bidding. The Commission adopted rules to implement the reforms it adopted in the USF/ICC Transformation Order, including rules in part 1, subpart AA, of the Commission's rules governing competitive bidding for universal service support generally. See 47 CFR 1.21001-1.21004.

On October 27, 2020, the Commission adopted a Report and Order in which it, among other things, amended its existing part 1, subpart AA, general universal service competitive bidding rules to codify policies and procedures applicable to the universal service auction application process that have been adopted in its recent universal service auctions, better align provisions in the universal service competitive bidding rules with like provisions in the Commission's spectrum auction rules, and make other updates for consistency, clarification, and other purposes that would apply in all universal service auctions. See Establishing a 5G Fund for Rural America, Report and Order, FCC 20-150 ( 5G Fund Report and Order ). The amended part 1, subpart AA, rules adopted in the 5G Fund Report and Order apply to applicants seeking to participate in future Commission auctions for universal service support.

This is a summary of the Commission's Report and Order (Order) in MB Docket No. 20-74 and GN Docket No. 16-142, FCC 21-21, that was adopted January 13, 2021 and released January 19, 2021. The full text of this document is available for public inspection online at https://docs.fcc.gov/public/attachments/FCC-21-21A1.pdf. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (braille, large print, electronic files, audio format, etc.) and reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) may be requested by sending an email to fcc504@fcc.gov or calling the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. Introduction: In this Report and Order (Order) we adopt a technical modification to the Commission's rules governing the use of a distributed transmission system (DTS), or single frequency network (SFN), by a broadcast television station. Consistent with our goal of addressing technical issues that may impede the adoption of DTS technology, we conclude that by modestly easing limitations on DTS transmitters and providing additional clarity in our rules, we can help unlock the potential of DTS at this crucial time when many stations are considering migrating to the next generation broadcast television standard (ATSC 3.0). As the record in this proceeding demonstrates, affording broadcasters greater flexibility in the placement of DTS transmitters can allow them to enhance signal capabilities and fill coverage gaps, improve indoor and mobile reception, and increase spectrum efficiency by reducing the need for television translator stations operating on separate channels.

2. Specifically, we update the current restriction that prohibits DTS signals from spilling over beyond a station's authorized service area by more than a “minimal amount.” See 47 CFR 73.626(f)(2). As described below, we replace the existing, and imprecise, “minimal amount” standard with a clearer, service-based approach that allows broadcasters greater flexibility in locating DTS transmitters, so long as, for UHF stations, the 41 dBu F(50,50) contour for each DTS transmitter does not exceed the reference station's 41 dBu F(50,50) contour. A 41 dBu F(50,50) contour refers to a boundary at which a signal is predicted to exceed 41 dBu at 50% of locations 50% of the time. We provide corresponding dBu values for F(50,50) limiting contours for Low and High VHF stations of 28 dBu for Low VHF and 36 dBu for High VHF. Consistent with our current approach, DTS transmissions will not be entitled to interference protection beyond the station's authorized service area. Our decision to replace the current, subjective spillover standard with a bright-line rule that both expands and clarifies the permissible range of spillover will not only promote DTS use by facilitating more efficient and more economical siting of DTS transmitters, but it also will establish a clearly defined limit that will promote regulatory certainty.

3. We find that the approach we adopt in this document improves upon the proposed rule set forth in the underlying notice of proposed rulemaking (NPRM). See 85 FR 28586 (May 13, 2020). In that NPRM, we sought comment on a proposed modification submitted in a joint petition for rulemaking (Petition) by America's Public Television Stations (APTS) and the National Association of Broadcasters (NAB) (collectively, Petitioners). As explained below, our adopted approach will allow broadcasters to improve coverage in their service areas, without causing more spillover than necessary to promote DTS deployment. In addition, we remove the requirement that Class A, LPTV, and television translator stations must apply for DTS facilities on an experimental basis, and we add a contour-based limit on DTS spillover by such stations that is similar to what we adopt in this document for full power stations, but modified slightly to account for technical differences between low power and full power services. Specifically, because low power stations do not have antenna height limits, we cannot easily replicate a Table of Distances, which is calculated using a station's hypothetically maximized antenna height, for low power stations. Instead, similar to full power stations, we subject Class A, LPTV, and television translator stations using DTS to the limitation that: (1) Each DTS transmitter must be located within the station's authorized F(50,90) contour, and (2) the F(50,50) contour for each DTS transmitter must be fully contained within the station's F(50,50) contour (as opposed to an authorized service area drawn according to a Table of Distances).

4. Background: Traditionally, a broadcast television station transmits its signal from a single elevated transmission site central to the service area, resulting in a stronger signal available near the transmitter and a weaker signal as the distance from the transmitter increases. Non-uniform terrain or morphological features also can weaken signals, regardless of distance from the transmitter. One way for a station to augment its signal strength is to provide fill-in service using one or more separately licensed secondary transmission sites that operate on a different radiofrequency (RF) channel than the main facility, i.e., a television translator. By contrast, a DTS network employs two or more transmission sites located within a station's service area, each using the same RF channel and synchronized to manage self-interference. Because it operates on only one frequency, DTS offers an alternative to traditional full power television transmission, which may use secondary translators that operate on additional frequencies.

5. Current DTS Rules. The Commission first recognized the potential uses and benefits of DTS technologies more than a decade ago when the transition from analog to digital television (DTV) brought with it the ability to transmit multiple television signals on the same channel without causing harmful interference, thus making DTS feasible for television for the first time. In 2008, the Commission stated that DTS could allow stations to reach more viewers in their coverage areas, to distribute more uniform and higher-level signals near the edges of their coverage areas, to improve indoor reception and reception on mobile devices, to overcome tower height and placement restrictions, to increase their spectrum efficiency by using the same channel for all operations, to enhance their ability to compete with multichannel video programming distributors, and to reach viewers that lost service as a result of the digital transition. In anticipation of these benefits, the Commission adopted rules permitting full power DTV stations to transmit using multiple, lower power DTS transmitter sites operating on the same frequency.

6. In crafting these rules, the Commission defined a DTS station's maximum authorized service area to be an area comparable to that which the DTV station could be authorized to serve with a single transmitter. To determine the boundaries of a DTS station's maximum service area under this “Comparable Area Approach,” the Commission established a “Table of Distances,” which it derived from the hypothetical maximum service area that a DTV station would be allowed to apply for under the Commission's rules ( i.e., using the maximum antenna height and power permitted for the station's single-transmitter site). The maximum service area defined by the Table of Distances is centered around the station's reference facility. Among other things, the Commission's rules require that each DTS transmitter must be located within either the reference station's Table of Distances area or the reference station's authorized service area. In addition, each DTS transmitter's noise-limited service contour (NLSC) must be contained within either the reference station's Table of Distances area or the reference station's authorized service area, except where an extension of coverage beyond the station's authorized service area is of a “minimal amount” and necessary to ensure that the combined coverage from all of its DTS transmitters covers all of the station's authorized service area. In adopting this “Comparable Area Approach,” the Commission rejected proposals for an “Expanded Area Approach,” which would have permitted DTS stations to expand coverage beyond their single-transmitter service areas ( e.g., to cover a larger area, up to an entire DMA). One of the Commission's concerns was that permitting broadcasters to reach viewers beyond their authorized service areas could undermine the Commission's localism goals by distracting them from the primary responsibility of providing programming responsive to the needs and interests of their community of license.

7. In authorizing DTS operations, the Commission afforded primary regulatory status to DTS transmitters of a full power station within the area the full power station is authorized to serve. The current rules therefore protect such DTS transmitters, within their authorized service areas, from interference from secondary licensees, such as low power television (LPTV) and television translator stations, and from unlicensed operations in television white spaces. The Commission also approved the use of DTS on an experimental basis by a single-license digital Class A, LPTV, and television translator station to provide service within its authorized service area, i.e., operating a reference facility and one or more transmitters using a single Class A or LPTV license in the manner permitted for full power television stations.

8. Next Gen TV (ATSC 3.0). In November 2017, the Commission authorized broadcast television stations to use the ATSC 3.0 transmission standard on a voluntary, market-driven basis while they continued to deliver current-generation DTV broadcast service to their viewers using the ATSC 1.0 standard. The Commission concluded that the existing rules authorizing DTS stations generally were adequate to authorize the operation of an ATSC 3.0 SFN and that the record did not support changes to the authorized service areas for DTS stations at that time. The Commission further stated that it would monitor the deployment of ATSC 3.0 in the marketplace and consider changes to the DTS rules in the future, if appropriate. The Commission also noted that a station interested in pursuing a change to its DTS service area may file for a waiver of the DTS rules pursuant to the Commission's general waiver standard.

9. Petition for Rulemaking. Petitioners contend that the ability of ATSC 3.0 broadcasters to use DTS is limited by the restriction that DTS signals may spill over by only a “minimal amount” beyond a station's authorized service area. In their Petition, filed October 3, 2019, they ask the Commission to amend § 73.626 of the Commission's rules to permit television stations more flexibility in the placement of their DTS transmitters, particularly near the edges of a station's coverage area. Petitioners do not seek the placement of DTS transmitters beyond a station's authorized service area. Rather, they propose that what they refer to as the DTS transmitter's “interference contour,” which would not be permitted to exceed that of the reference facility, would determine how close a DTS transmitter could be placed to the edge of a station's authorized service area. On October 11, 2019, the Media Bureau issued a public notice seeking comment on the Petition.

10. NPRM. The Commission's subsequent NPRM, released April 1, 2020, and published May 13, 2020, sought public comment on the proposed rule changes advocated by Petitioners and on the various arguments that commenters raised in response to the Public Notice. The NPRM sought comment on whether any change to the DTS rules is necessary or appropriate at this time, or whether relaxing the current spillover restriction would be premature given the lack of DTS deployment to date. The Commission asked whether it should permit more than a “minimal amount” of DTS spillover beyond a station's authorized service area, how to treat DTS signals beyond a station's current service areas if such spillover is allowed, and whether any rule changes adopted in this proceeding for full power stations should be applied also to Class A and/or LPTV stations. The NPRM also sought comment on the potential impact of the proposed rule changes on the Commission's policy goal of promoting localism and its other policy reasons for limiting DTS spillover. In addition, the Commission asked how other spectrum users, including LPTV and translator stations, wireless microphones, and white space devices, could be affected by such rule changes and whether there are steps it could and should take to mitigate such impacts.

11. Discussion: DTS Spillover Contour. We update our DTS rules to give television station licensees additional flexibility and greater certainty in the placement of DTS transmitters by increasing the amount by which DTS transmissions are permitted to spill over beyond a station's authorized service contour. Although its permitted area for DTS spillover will increase, a station's area of interference protection will not expand under our rule change. Specifically, such spillover will be subject to a bright-line limitation that, for UHF stations, the 41 dBu F(50,50) contour for each DTS transmitter must remain fully within the 41 dBu F(50,50) contour for the overall reference facility (for Low VHF and High VHF stations, the corresponding dBu values will be 28 dBu and 36 dBu, respectively). Under our revised rule, the 28 dBu F(50,50) contour of each DTS transmitter for a Low VHF station must remain fully within the 28 dBu F(50,50) contour for the overall reference facility, and the 36 dBu F(50,50) contour of each DTS transmitter for a High VHF station must remain fully within the 36 dBu F(50,50) contour for the overall reference facility. In addition, for each band in the Table of Distances, we calculate a smaller interfering field strength that, when it is combined with the assumed reference interfering signal using the root-sum-square (RSS) methodology, would not increase the interference potential of the DTS network as compared to the interference predicted by a single-transmitter station located at the reference point.

12. We conclude that allowing full power television stations this greater flexibility in locating DTS transmitters and affording greater clarity as to the amount of spillover permitted will promote regulatory certainty and serve the public interest. In particular, relaxing and clarifying the amount of DTS spillover permitted at the fringe of a full power station's authorized service contour will improve the station's ability to provide a stronger and more uniform signal to viewers located at the edges of its service area and in places where terrain hampers coverage. We believe that the Commission's current imprecise spillover restriction could inhibit DTS deployment. We expect that the approach we adopt will provide substantial flexibility and certainty to licensees, which were principal objectives of the NPRM proposal, without causing more risk of disruption to other spectrum users than necessary to achieve these goals.

13. As discussed below, the initial proposal in the NPRM failed to account for the additive effect of multiple DTS transmissions and thus underestimated the potential interference impact of the proposal. The bright-line approach we adopt remedies that technical omission and provides broadcasters ample leeway to improve coverage and locate transmitters, with less interference risk to other spectrum users. Further, we expect that the additional flexibility the new rule offers will make the use of DTS more practical as part of ATSC 3.0 deployments and thereby facilitate the realization of many anticipated consumer benefits that are possible with ATSC 3.0, such as improved audio and video quality, mobile viewing capabilities, geo-targeting of emergency alerts, and advanced data services supported by broadband connectivity. Indeed, easing the DTS spillover restriction will help both ATSC 1.0 and ATSC 3.0 broadcasters deliver improved services, including ancillary and supplementary services like Broadcast internet, to more of their viewers.

14. Timely Action Required. Although the Commission's current rules permit both ATSC 1.0 and ATSC 3.0 broadcasters to deploy DTS, to date few broadcast stations have opted to employ this technology, despite the potential benefits to such operations. In petitioning for a rule change, Petitioners contend that revising the permitted DTS spillover allowance at this stage of ATSC 3.0 deployment would be an effective means of encouraging DTS use because DTS can be used more efficiently and economically with the ATSC 3.0 standard than is possible with ATSC 1.0. We are persuaded that the time is right to take action, and that a revised rule will promote DTS use and foster the accrual of the long-recognized benefits of such operation. First, the DTS rules apply equally to ATSC 1.0 and ATSC 3.0 broadcasters, and so ATSC 1.0 broadcasters also will benefit from our revised approach. Our current DTS rules apply to both ATSC 1.0 and ATSC 3.0 and we see no reason not to maintain that parity. Accordingly, we apply our rule changes, and their associated benefits, to both ATSC 1.0 and ATSC 3.0. Second, the deployment of ATSC 3.0 infrastructure is well under way and immediate action will encourage ATSC 3.0 broadcasters still in their planning stages to consider using DTS as a means to serve their hard-to-reach viewers or to enhance service in their coverage areas.

15. Update of Rule. The rule change proposed in the NPRM would have substantially expanded the amount of DTS spillover permitted outside the boundaries of a station's authorized service area. Specifically, the proposed change would have permitted spillover to the extent necessary either to “achieve a practical design” or, as articulated in the current rule, to ensure that combined coverage from all of the DTS transmitters covers all of the applicant's authorized service area. Instead of the current rule's “minimal amount” limitation, the extent of spillover permitted would have been subject to the limitation that (for UHF stations) the DTS transmitter's 36 dBu F(50, 10) “interference” contour not exceed the reference facility's 36 dBu F(50, 10) contour.

16. We find that the technical analysis Petitioners submitted in support of the initial proposal substantially underestimates the interference potential of DTS networks. In short, the interference protection under the proposal is designed around a single transmitter and does not account for the additive effects of signals from multiple DTS transmitter sites. These additive effects would create interference risk from a UHF station beyond its 36 dBu F(50, 10) contour. Given this situation, we find that the proposal cannot be adopted without changes. Specifically, Petitioners' proposal purports to be calibrated in such a way as to maintain the nominal desired-to-undesired ratio necessary to avoid interference to Class A and LPTV stations. If, however, we do not account for the additive effects of signals from multiple DTS transmitter sites, this premise is no longer valid, and the potential for interference at a given distance would be greater than what is suggested by Petitioners. Therefore, we adopt a modified approach that achieves the principal objectives articulated in the record—which include providing broadcasters with additional flexibility to serve hard-to-reach viewers and bringing the benefits of DTS and ATSC 3.0 to additional consumers—while resulting in less spillover than the initial proposal. Thus, as compared to the NPRM proposal, the rule change we adopt in this document poses less of an interference risk to licensed and unlicensed operations in areas beyond a full power station's authorized service contour.

17. We conclude that more time is not needed to assess the impact of the rules adopted in this Order. There is a robust record on the issues of whether and how increased DTS flexibility, including Petitioners' proposal, would risk disruption to other spectrum users and whether Petitioners' “necessary to achieve a practical design” standard is impractical. Our decision here responds to the concerns expressed in the record by adopting an alternative approach that achieves the goal advanced in the NPRM of providing flexibility in DTS deployments and is consistent with the original purposes of our DTS rules, while at the same time offering broadcasters more clarity and certainty than the “necessary to achieve a practical design” standard and also reducing the risk of disruption to other spectrum users.

18. Our revised rule replaces the “minimal amount” test in § 73.626(f)(2) with an approach that utilizes a contour based on the service field threshold. To the extent there are existing DTS networks operating with Commission approval under the “minimal amount” standard today that would not be entirely compliant with our modified spillover limits, such DTS networks may continue to operate pursuant to their current authorization. However, pending applications will be granted only if they comply with our revised rule.

19. Specifically, we will permit television stations additional flexibility to deploy DTS transmitters so long as the transmitters continue to be sited within the station's authorized service contour and, for UHF stations, the 41 dBu F(50,50) contour for each individual DTS transmitter is fully contained within the reference station's 41 dBu F(50,50) contour. A 41 dBu F(50,50) contour refers to a boundary at which a signal is predicted to exceed 41 dBu at 50% of locations 50% of the time. Under the current rule, DTS transmitter service contours are not permitted to exceed the 41 dBu F(50,90) contour of the reference facility except by a minimal amount to enable coverage within the authorized service area. Because, by definition, a 41 dBu F(50,90) contour requires the predicted signal strength to be exceeded 90% of the time, it encompasses an area where a stronger signal could be expected to be received, i.e., an area smaller than that encompassed by a 41 dBu F(50,50) contour. Additionally, the distance from the 41 dBu F(50,90) contour to the 41 dBu F(50,50) contour is directly related to the radius of the F(50,90) contour, such that a lower power/lower antenna transmitter will have a smaller difference between the two. That effect makes it clear that a DTS node at a certain ERP and HAAT may be located at the edge of a station's authorized service area. By replacing the current 41 dBu F(50,90) limiting contour with a 41 dBu F(50,50) limiting contour, we give broadcasters a certain room for spillover from DTS transmitters and thereby enable the placement of transmitters in locations that were not practical previously, particularly locations closer to the edge of a station's authorized service area. We also provide dBu values for limiting contours for Low and High VHF stations.

20. Consistent with the Table of Distances used in our current rule, our revised Table of Distances includes separate, corresponding dBu values for Low VHF and High VHF stations, which are 28 dBu and 36 dBu, respectively. These changes will afford stations greater ability to site DTS transmitters near the edges of their authorized service contours and will provide a clear, bright-line standard for determining the permissible level of spillover beyond an authorized service contour. Siting DTS transmitters near the edges of their service areas will allow stations to reach more viewers in areas they are authorized to serve and to distribute more uniform and higher-level signals throughout those areas, the latter of which is prerequisite to the provision of certain advanced services under ATSC 3.0. With increased flexibility in the siting of DTS transmitters, we also anticipate that, in many instances, stations using DTS will be able to cover a comparable area with fewer DTS transmitters than would be necessary under the current rule, thereby making DTS deployments more practical and cost effective.

21. We also clarify that the largest station alternative, an alternative to the Table of Distances by which stations may seek to use DTS to match the geographic coverage of the largest station in their market, remains unchanged and available to stations looking to employ DTS as part of an ATSC 3.0 deployment. Our action in this document does not alter the ability of stations to make use of this alternative. We further clarify that, in determining the geographic area to be matched, DTS spillover is not counted in calculating the coverage of the largest station in a market.

22. The F(50,50) curves are one of two sets of curves within part 73 of our rules—the other being the F(50,10) curves. See 47 CFR 73.699. In turn, the F(50,90) curve values are derived from a calculation comparing the values from the F(50,50) and F(50,10) charts. Historically, the F(50,50) curves were used for predicting service area for analog television stations. Currently, the F(50,10) curves are used for predicting interfering signals, and the F(50,90) curves are used to represent digital television service areas within which most people can expect to view a signal nearly all of the time. While the F(50,50) curves are not presently used in the context of digital television service, we find that it is useful and appropriate to employ them in this instance in determining the limits on spillover by DTS transmitters beyond a station's authorized service contour. The F(50,50) curves, in combination with the signal level thresholds in 47 CFR 73.622(e), can be considered as representative of an area in which most of the people could view a DTV signal a substantial amount of the time. Accordingly, we find that it makes sense to limit spillover service to this area, an area that likely already experiences some level of reception from the existing non-DTS facility and thus may already have viewership of the station. Regarding the protection of any improved signal and potential interference caused as result of this permitted spillover, we emphasize that neither the definition of the DTS protected area in 47 CFR 73.626(e), nor the interference analysis for DTS facilities (pursuant to 47 CFR 73.626(f)(5), 47 CFR 73.623(c)(3), and OET Bulletin No. 69) will change.

23. We therefore update the Table of Distances in 47 CFR 73.626(c) with an additional set of reference distances calculated using the 41 dBu F(50,50) contours. In addition, we delegate to the Media Bureau the authority to update the relevant FCC forms for full power stations, including Schedules A and B of FCC Form 2100, to conform with the rule changes we adopt.

24. For purposes of compliance, the Commission uses the RSS method of calculating interference from multiple DTS transmitters, rather than adding up the aggregate interference from each individual DTS transmitter, commonly referred to as a “direct summation” approach. This means that the combined field strength level at a given location is equal to the square root of the sum of the squared field strengths from each transmitter in the DTS network at that location. We believe RSS continues to be an appropriate method to aggregate interference because we need some method that accounts for the multiple sources of interference, including to ATSC 1.0 “victim” receivers, which perceive the signals as multiple sources of white noise.

25. These reference distances will establish the limit of permissible spillover, and § 73.626(f)(2) will be modified to state that the 41 dBu F(50,50) service contour for each individual DTS transmitter must be contained fully within that reference distance. In addition, for each band in the Table of Distances, we calculate a smaller interfering field strength that, when its RSS is combined with the assumed reference interfering signal, does not increase the interference potential of the DTS network as compared to the interference predicted by a single-transmitter station located at the reference point. To illustrate, in the UHF band with a reference interference of 36 dBu, an additional signal of 26.6 dBu would RSS combine to an equivalent of 36.47 dBu, which rounds back down to 36 dBu. Accordingly, the approach we adopt in this document requires that the 26.6 dBu F(50,10) contour of each DTS node for a UHF station be contained completely within the reference 36 dBu F(50,10) distance. We also provide corresponding values for Low VHF and High VHF stations. In addition, the F(50,10) node-interfering contour of any DTS transmitter, aside from one located at the reference point, may not extend beyond the F(50,10) reference-interfering contour of its reference facility, and the F(50,10) reference-interfering contour of a facility at the reference point may not extend beyond the F(50,10) reference-interfering contour of its reference facility.

26. Benefits of Modified Approach. The modified approach we adopt has several policy advantages over Petitioners' submission. First, our approach is based on service contours instead of interference contours, which typically are used in spacing broadcast radio stations and no longer are used in television. Therefore, we find that our service-based approach—focusing on the provision of service to those viewers a station is already authorized to serve—is more consistent with the intent underlying 47 CFR 73.626(f)(2) that spillover allowances meet the requirement in 47 CFR 73.626(f)(1) to cover the entire reference service area. Second, as mentioned previously, it achieves our goal of improving stations' ability to fill coverage gaps and to deliver a strong and uniform signal throughout their authorized service areas, thereby supporting the provision of advanced services under ATSC 3.0. Third, the risk of disruption to other existing and future spectrum users is lower than it would have been under the NPRM proposal. In particular, our approach allows nearly the same signal levels for DTS nodes located within the core of a station's authorized service area as the NPRM proposal, but it reduces the allowable signals for nodes located at the extreme edge of the service area, and hence the potential spillover resulting from such nodes. This reduced interference risk is accomplished while also offering a substantial increase in flexibility and certainty for broadcasters to implement DTS networks.

27. In addition, our approach has practical benefits. First, unlike the initial proposal, the modified approach we adopt accounts for the additive effects of multiple DTS transmitters and so produces more accurate, realistic results. Second, our new rule will produce the clarity and certainty in the engineering review process that some commenters suggest is lacking under the “minimal amount” standard of the current rule. It focuses on measurable, repeatable results that licensees and their consulting engineers can use to determine compliance in advance of application to the Commission. By replacing the “minimal amount” exception with a bright-line rule, our revised rule provides more regulatory certainty regarding the boundary of a station's spillover area. The requirement that all DTS transmissions stay within a defined contour will enable better planning not only among broadcasters implementing DTS, but also among all other licensed and unlicensed spectrum users operating in or interested in operating in spillover areas. Third, our approach does not include the nebulous standard contemplated in connection with the initial proposal, which would have allowed spillover where necessary to achieve a practical design. Our approach avoids the possibility that such a provision would require Commission staff to make burdensome and subjective assessments about the design practicability of a station's DTS network, which could be impossible without access to sensitive cost and financial information. Rather, our approach is based on an objective standard that will promote consistency and efficiency. Moreover, it is no more complex from an engineering standpoint than the initial proposal advocated by Petitioners, and thus it imposes no higher burden on licensees to perform the required analysis than initially anticipated. We direct the Media Bureau and the Office of Engineering and Technology to update TVStudy, the Commission's software program used to evaluate television applications, in order to support the engineering analysis required under our revised approach.

28. Localism. Furthermore, we find that the rule we adopt is consistent with the service-based approach previously adopted by the Commission, which the Commission found was adequate to preserve and protect localism. As noted above, the Commission determined that a DTS station's maximum authorized service area should be comparable to that which the DTV station could be authorized to serve with a single transmitter (the Comparable Area Approach). A principal reason the Commission chose that approach was to preserve and protect localism, on the theory that permitting broadcasters to reach viewers beyond their authorized service areas could distract them from the primary responsibility of providing programming responsive to the needs and interests of their community of license. We find that our adopted approach also will preserve and protect localism. We believe that it strikes an appropriate balance that enables a station to improve service at the edges of its service area, without allowing it to expand coverage to the point where it might shift attention away from its community of license. Nevertheless, we can revisit this issue in the future if evidence suggests that our revised DTS rules are not protecting localism adequately.

29. In addition, we find that our modified proposal, which limits spillover, addresses any concern that the NPRM proposal would have allowed broadcasters to send their signals well beyond their licensed areas, thereby serving additional communities without competing in a Commission auction for that right. Our approach does not raise serious concerns about whether broadcasters using DTS should bid for the modest spillover spectrum our approach would permit them to occupy—without interference protection—outside their authorized service areas.

30. Impact on Other Spectrum Users. While we adopt the approach set forth above to provide additional flexibility and certainty to broadcasters deploying DTS networks, we anticipate that our approach has the added benefit of reducing potential disruption to other spectrum users as compared to Petitioners' proposal. In the NPRM, the Commission sought comment on the potential impact of the initial proposal on Class A stations, LPTV stations, television translators, licensed and unlicensed wireless microphone users, NPR FM stations, and white space devices. Petitioners concede that, under the initial proposal, spillover signals likely would cause disruption to other spectrum users. Although initially claiming that interference to LPTV stations would occur in only a handful of cases, Petitioners subsequently estimated that 330, or 13.8%, of the 2,392 existing LPTV stations likely would receive interference above a 2% threshold and that 5.3% to 11% of the 3,135 existing translators likely would be affected under their proposal. Other estimates, however, deviated substantially from Petitioners' results. The wide variability in these predictions reveals the difficulty in establishing a reliable basis for an interference study consistent with Petitioners' proposal. This difficulty reinforces our decision to take a more measured course of action at this time, one that will provide additional flexibility and certainty in the placement of DTS transmitters without posing the same risk of interference to LPTV stations that would have resulted under the initial proposal.

31. Moreover, although the collective impact of our revised rule on other spectrum users depends significantly on the number of stations that deploy DTS transmitters, the number, location, and relative power of those transmitters, and a host of other issues, the rule we adopt permits less spillover than the initial proposal. We are confident therefore that the interference impact will be far less than it would have been with the initial proposal, and we expect that our revised rule, given the contour it applies, is a reasonable approach that will not have a significant impact on authorized secondary licensees or unduly limit entry of new secondary licensees. Likewise, we do not anticipate a significant impact on the availability of spectrum for white space operations or other unlicensed uses, such as wireless microphones.

32. We decline to use this proceeding to take up the issue of, or to alter, the current regulatory status ( i.e., interference rights and obligations) of DTS stations or of any other existing or future users of broadcast spectrum. Notably, the NPRM did not propose to afford interference protection to DTS signals in the spillover area, and we see no reason to grant any. The approach we adopt in this document is consistent with the intent of our DTS rules that any spillover should be incidental to, and in service of, improving coverage within a station's authorized service area, rather than intended to extend service to communities outside that area. We therefore decline to provide interference protection to DTS signals in areas beyond the authorized service area. Thus, our interference protections, and the existing relative status of primary, secondary, and unlicensed users in the television spectrum, remain unchanged. DTS signals will continue to receive no interference protection in spillover areas; nor are stations obligated to protect secondary and unlicensed users from interference in the spillover area. Accordingly, the rule change we adopt does not modify or enlarge the area within which a DTV station is protected from interference. In addition, we do not believe that the fact that the Television White Spaces (TVWS) database already protects DTS transmissions that spill over beyond a station's authorized service area requires us to make an affirmative statement that DTS receivers are not protected from harmful interference beyond the DTV station/DTS reference point's service area defined by its 41 dBu F(50,90) contour. However, we direct the Media Bureau and the Office of Engineering and Technology to work with relevant stakeholders to ensure that DTS operations and the TVWS database, respectively, are being implemented consistent with all applicable FCC rules and decisions.

33. In addition, we decline to provide additional protection to noncommercial and educational (NCE) FM stations by requiring full service emission mask filters in the construction and operation of DTS facilities for DTV Channel 6 stations, like those required for DTV channels 14 and 17. To the extent there is a concern about the potential for interference between NCE FM stations and newly permitted spillover outside a DTV Channel 6 station's authorized service area, the rule we adopt allows for less spillover than the initial proposal, which should reduce the chances of such interference events occurring.

34. Other Issues. We conclude that no rule changes other than the ones specified herein are currently necessary to implement our revised approach. For example, we note that the rule we adopt does not, in and of itself, do anything to change a station's carriage rights. Following our rule change, stations will continue to enjoy all the rights they have, or could pursue, today by increasing coverage through the use of a single-transmitter facility. Because full power stations have market-wide carriage rights, their expansion of coverage within their DMAs should not raise market modification issues. Moreover, there are several, nonexclusive statutory factors the Commission considers in deciding whether to grant or deny such market modification requests, of which the scope of a station's signal is but one.

35. Beyond the primary issue of revising the spillover rule to facilitate the siting of DTS transmitters, the NPRM also sought comment on issues related to the implementation of revised DTS rules. For example, the Commission asked whether it should revise its licensing process for DTS sites shared by multiple licensees, change any of its forms or licensing systems, impose additional power restrictions on DTS transmitters, include a certification requirement on DTS applications, or adjust its technical requirements. Given that we are making only modest, targeted modifications to the DTS rules in this document, we decline to make general changes to our implementation of the DTS rules. We further find we can evaluate better the need for any changes after we see what kinds of networks broadcasters deploy in light of our action and whether and how our processes could be improved to support that deployment. Thus, as we gain experience with this new rule, we will adjust our processes as necessary.

36. Finally, we do not require broadcasters switching to and using DTS to take any specific action with respect to their television translators. One of the benefits of DTS is the more efficient use of spectrum that can be achieved by using DTS transmitters instead of television translators because DTS transmitters broadcast on the same channel as the main transmitter. We will not require a full power broadcaster adding DTS facilities to relinquish its translator channel, if it has one, to an LPTV station affected by DTS interference and to reimburse the LPTV station for the costs of moving to the relinquished channel or another channel. We find such a requirement would be heavy-handed and unwarranted at this time, particularly given the uncertainty regarding the extent to which broadcasters will make use of DTS as a replacement for television translators.

37. Use of DTS by Low Power Stations: In addition to affording full power television stations greater flexibility and certainty in siting DTS transmitters, we also ease the way for Class A, LPTV, and television translator stations (low power stations) to pursue DTS operations. We eliminate the requirement that these stations must apply for DTS facilities on an experimental basis prior to operation. Rather, in order to allow low power stations to pursue DTS operations in a manner similar to full power stations, we adopt a rule with a contour-based limit defining acceptable DTS spillover, taking into account the technical differences between full power and low power services. Specifically, as discussed below, we will permit low power stations to employ DTS facilities so long as such facilities meet the following conditions: First, DTS transmitters must be located within the authorized F(50,90) contour for the station, and second, the F(50,50) contour of each DTS must be contained within the station's F(50,50) contour based on currently authorized technical parameters (as opposed to an authorized service area drawn according to a Table of Distances). In so doing, we give low power stations the same flexibility of a streamlined licensing process as we give full power stations.

38. We note that the rules already allow licensees of multiple digital Class A, LPTV, and/or television translator stations to operate on a non-experimental basis through interconnected single frequency DTS networks, i.e., to operate a network of stations co-channel using their multiple licenses. In 2008, the Commission approved the use of DTS technologies on an experimental basis by a single low power station to provide service within its authorized service area, finding that there was not an adequate record at that time to resolve the technical issues for LPTV stations as they differ from full power television stations. The Commission further concluded at that time that there was insufficient interest in DTS among individual low power stations; that LPTV stations serve smaller geographic areas than full power stations, making the likelihood of needing DTS to provide service relatively low; and that Class A and LPTV stations, which were not subject to the 2009 DTV transition, did not have the same urgent need for DTS to provide post-transition service. The Commission indicated that it would revisit its decision if circumstances changed.

39. On balance and based on the record before us, we find that changes in the marketplace following the DTV transition, including the evolution of the ATSC 3.0 transmission standard, have made the use of DTS more attractive for low power stations today, despite their smaller service areas. There is now sufficient indication of a demonstrated interest in DTS among Class A and LPTV stations and evidence that the ability to provide DTS service would improve their service. We find that deployment of DTS by low power stations offers potential benefits to consumers, including by facilitating the deployment of ATSC 3.0 services. In light of these changed circumstances, we eliminate the requirement that low power stations must apply for DTS facilities on an experimental basis and allow these stations to employ DTS facilities provided that such facilities comply with the contour-based limit defining acceptable DTS spillover we adopt herein.

40. In crafting an approach for low power stations, we note that there are some important differences between full power and low power stations that we must take into account. Most notably, the LPTV services do not rely currently on the Table of Distances, either with respect to service area distance or interference contour distance. In part, this is because low power stations do not have antenna height limitations, making it difficult to readily establish a Table of Distances for them. In addition, the concept of the largest station in the market, which affords full power stations an additional metric by which they can establish authorized service, does not apply to low power stations. Accordingly, the Table of Distances and the largest station in the market constructs discussed above for full power DTS operations do not apply to these stations. Rather, we require that the DTS facilities of low power stations be contained within the station's authorized F(50,90) and F(50,50) contours as follows. First, DTS transmitters must be located within the authorized F(50,90) contour for the station. Second, the F(50,50) contour of each DTS must be contained within the station's F(50,50) contour. As discussed above, the F(50,50) curve can be considered as representative of an area in which most of the people could view a DTV signal a substantial amount of the time. Accordingly, we find that it makes sense to limit spillover service to this area, an area that likely already experiences some level of reception from the existing non-DTS facility and thus may already have viewership of the station. In this way, we define the permissible spillover for the low power service and afford LPTV stations greater flexibility to more easily deploy DTS facilities.

41. We note that shifting from authorizing LPTV DTS facilities on a case-by-case, experimental basis to licensing under a codified rule applicable to all low power stations will require a modification of a number of processes, including FCC forms, the Licensing and Management System (LMS), and engineering review applicable to low power stations. Accordingly, we direct the Media Bureau and the Office of Engineering and Technology to take the practical steps necessary to implement the rule change we adopt in this document, including the modification of applicable forms (including Schedules C, D, E, and F of FCC Form 2100) and the revision of TVStudy. In the interim, we will continue to process DTS requests for LPTV and Class A stations on a case-by-case basis, filed as a request for Special Temporary Authority (STA), using the guidelines we establish in this document. We decline to consider an approval process for DTS transmitters for LPTVs that would require either no application or a blanket application for lower power LPTV DTS transmitters.

42. Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), see 5 U.S.C. 604, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to this Order.

43. Paperwork Reduction Analysis. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

44. In this present document, we have assessed the effects of our rule changes easing limitations on the placement of DTS transmitters by full power and low power television stations and find that these changes do not impose new burdens on businesses with fewer than 25 employees.

45. Congressional Review Act. The Commission will submit this draft Report & Order to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, for concurrence that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of the Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

46. Additional Information. For additional information on this proceeding, contact Ty Bream, Media Bureau, Industry Analysis Division, at Ty.Bream@fcc.gov or (202) 418-0644.

47. Final Regulatory Flexibility Analysis: As required by the RFA, as amended, see 5 U.S.C. 603, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM in this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. This present FRFA conforms to the RFA. See 5 U.S.C. 604.

48. Need for, and Objectives of, the Report and Order. This Order adopts a technical modification to the Commission's rules governing the use of a distributed transmission system (DTS), or single frequency network (SFN), by a broadcast television station. Specifically, the Order replaces the current restriction that prohibits DTS signals from spilling over beyond a station's authorized service area by more than a “minimal amount,” see 47 CFR 73.626(f)(2), with a clearer, service-based approach that allows broadcasters greater flexibility in locating DTS transmitters, so long as, for UHF stations, the 41 dBu F(50,50) contour for each DTS transmitter does not exceed the reference station's 41 dBu F(50,50) contour. A 41 dBu F(50,50) contour refers to a boundary at which a signal is predicted to exceed 41 dBu at 50% of locations 50% of the time. We provide corresponding dBu values for F(50,50) limiting contours for Low and High VHF stations in the revised Table of Distances. Those values are 28 dBu for Low VHF and 36 dBu for High VHF. Consistent with the current approach, DTS transmissions will not be entitled to interference protection beyond a station's authorized service area. The decision to replace the current, subjective spillover standard with a bright-line rule that both expands and clarifies the permissible range of spillover will not only promote DTS use by facilitating more efficient and more economical siting of DTS transmitters, but it also will establish a clearly defined limit that will promote regulatory certainty. Consistent with the goal of addressing technical issues that may impede the adoption of DTS technology, the Order concludes that modestly easing limitations on DTS transmitters and providing additional clarity in our rules can help unlock the potential of DTS at this crucial time when many stations are considering migrating to the next generation broadcast television standard (ATSC 3.0). As the record in this proceeding demonstrates, affording broadcasters greater flexibility in the placement of DTS transmitters can allow them to enhance signal capabilities and fill coverage gaps, improve indoor and mobile reception, and increase spectrum efficiency by reducing the need for television translator stations operating on separate channels.

49. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments to the IRFA filed.

50. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. 5 U.S.C. 604(a)(3). The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

51. Description and Estimate of the Number of Small Entities to Which the Rules Apply. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 5 U.S.C. 603(b)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register .” 5 U.S.C. 601(3). A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 5 U.S.C. 632. Application of the statutory criteria of dominance in its field of operation and independence are sometimes difficult to apply in the context of broadcast television. Accordingly, the Commission's statistical account of television stations may be over-inclusive.

52. Television Broadcasting. The rule changes adopted would apply to television broadcast licensees and potential licensees of television stations using DTS. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound.” 13 CFR 121.201 (2012), NAICS Code 515120. These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: Those having $41.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of this number, 656 had annual receipts of less than $25 million. See U.S. Census Bureau, Table No. EC1251SSSZ4, Information: Subject Series—Establishment and Firm Size: Receipts Size of Firms for the United States: 2012 (Jan. 8, 2016), https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ4&prodType=table. Based on this data we therefore estimate that the majority of commercial television broadcasters are small entities under the applicable SBA size standard.

53. Additionally, the Commission has estimated the number of licensed commercial television stations to be 1,368. See Press Release, FCC, Broadcast Station Totals as of September 30, 2020 (MB Oct. 2, 2020) (Broadcast Station Totals), https://docs.fcc.gov/public/attachments/DOC-367270A1.pdf. Of this total, 1,174 stations (or 85.8%) had revenues of $41.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) based on 2019 revenue data, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates the number of licensed noncommercial educational (NCE) television stations to be 390. The Commission does not compile and does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

54. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has the power to control both.” 13 CFR 21.103(a)(1). Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive.

55. Class A, LPTV, and TV translator stations. The rule changes adopted would apply to and/or impact licensees and potential licensees of Class A stations, LPTV stations, and TV translator stations, as well as to potential licensees in these television services. The same SBA definition that applies to television broadcast licensees would apply to these stations. As noted above, the SBA defines such businesses as a small business if they have $41.5 million or less in annual receipts. 13 CFR 121.201 (2012), NAICS Code 515120.

56. There are 386 Class A stations. Given the nature of these services, the Commission presumes that all of these stations qualify as small entities under the applicable SBA size standard. In addition, there are 1,860 LPTV stations and 3,543 TV translator stations. Given the nature of these services as secondary and in some cases purely a “fill-in” service, we will presume that all of these entities qualify as small entities under the above SBA small business size standard. We note, however, that under the SBA's definition, revenue of affiliates that are not LPTV stations should be aggregated with the LPTV station revenues in determining whether a concern is small. Our estimate may thus overstate the number of small entities since the revenue figure on which it is based does not include or aggregate revenues from non-LPTV affiliated companies. We do not have data on revenues of TV translator or TV booster stations, but virtually all of these entities are also likely to have revenues of less than $41.5 million and thus may be categorized as small, except to the extent that revenues of affiliated non-translator or booster entities should be considered.

57. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. In this section, we identify the reporting, recordkeeping, and other compliance requirements imposed by the Order and consider whether small entities are affected disproportionately by any such requirements. As discussed above, this Order relaxes the current restriction that prohibits DTS signals from spilling over beyond a station's authorized service area by more than a “minimal amount.” Specifically, the Order adopts a service-based approach that allows broadcasters to extend their DTS transmissions out to their 41 dBu F(50,50) contour. This rule change replaces the imprecise “minimal amount” standard with a clearly defined limit that will promote regulatory certainty. In so doing, we note that the use of DTS is at the discretion of the broadcast licensee. Thus, the Order does not impose any new mandatory reporting, recordkeeping, or compliance requirements for small entities, unless such entities, i.e., licensees, choose to use DTS. The Order therefore will not impose additional obligations or expenditure of resources on small businesses. However, we note that the adoption of the proposed rules may require modification of current requirements and processes for entities that choose to use DTS, such as modification of FCC forms, including, but not limited to, Schedules A and B of FCC Form 2100. The Order delegates to the Media Bureau the authority to update FCC forms to conform with the adopted rule changes.

58. Steps Taken to Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603(c)(1)-(c)(4).

59. The premise of the rules is to facilitate DTS deployment by TV broadcasters, large and small alike, and thereby benefit their viewers. Among other benefits, easing limitations on DTS transmitters will help unlock the potential of DTS to extend service throughout a station's coverage area, to improve indoor and mobile reception, and to increase spectrum efficiency by reducing the need for television translators using separate channels.

60. In this proceeding, the Commission has three chief alternatives available for the DTS rule for full power stations—retaining the rule in its existing form, modifying the rule as proposed in the Petition (proposed approach), or modifying the rule in a manner that avoids the technical omission in the Petition's proposed rule (bright-line rule). The Commission finds that the public interest and technical and marketplace realities support relaxing the DTS rule by enacting the bright-line rule. A further internal analysis of the NPRM proposal revealed that it does not account for the additive effect of DTS transmissions and thus underestimates its potential interference impact. The bright-line approach set forth below remedies that technical omission and provides broadcasters ample leeway to improve coverage, with less interference risk to other spectrum users. Further, the additional DTS flexibility it offers will facilitate the deployment of ATSC 3.0 and its many anticipated consumer benefits, such as enhanced over-the-air programming, mobile viewing capabilities, geo-targeting of emergency alerts, and advanced data services supported by broadband connectivity.

61. For low power stations, the Commission has two chief alternatives—retaining the requirement that these stations must apply for DTS facilities on an experimental basis prior to operation or eliminating the requirement. In order to allow low power stations to pursue DTS operations in a manner similar to full power stations, the Order eliminates the requirement and adopts a rule with a contour-based limit defining acceptable DTS spillover, taking into account the technical differences between full power and low power services. Specifically, the Order will permit low power stations to employ DTS facilities so long as such facilities meet the following conditions: First, DTS transmitters and their resulting contours must be located within the authorized F(50,90) contour for the station, and second, the F(50,50) contour of each DTS must be contained within the F(50,50) contour for the station's authorized service area (as opposed to an authorized service area drawn according to a Table of Distances).

62. Report to Congress. The Commission will send a copy of this Order, including this FRFA, in a report to Congress and the Government Accountability Office pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. See 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

63. Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rule. None.

64. Ordering Clauses: Accordingly, it is ordered that, pursuant to the authority found in sections 1, 4, 7, 301, 302, 303, 307, 308, 309, 316, 319, 324, and 336 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 157, 301, 302, 303, 307, 308, 309, 316, 319, 324 and 336, this Order is adopted.

65. It is further ordered that, pursuant to the authority found in sections 1, 4, 7, 301, 302, 303, 307, 308, 309, 316, 319, 324, and 336 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 157, 301, 302, 303, 307, 308, 309, 316, 319, 324 and 336, the Commission's rules are amended, effective May 24, 2021, except for those rules and requirements involving Paperwork Reduction Act burdens, which shall become effective on the effective date announced in the Federal Register document announcing OMB approval.

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

67. It is further ordered that, pursuant to Section 801(a)(1)(A) of the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission shall send a copy of the Order to Congress and to the Government Accountability Office.

68. It is further ordered that, should no petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 20-74 shall be terminated and its docket closed.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 73 and 74 as follows: