On September 3, 2021, OPM issued an interim final rule (86 FR 49461) amending 5 CFR part 890, to expand access to enrollment in the FEHB Program to Indian tribes or tribal organizations carrying out programs under the Tribally Controlled Schools Act of 1988 (TCSA) for their employees. OPM provided 60 days for the public to comment on the interim final rule. The comment period expired on November 2, 2021. However, comments were not accepted on regulations.gov during the first 18 days of the comment period due to a technical error. Therefore, OPM published an extension (86 FR 60357) of the period for public comment on the interim final rule from November 2, 2021 to November 20, 2021.

OPM notes the following clarifications to the preamble of the interim final rule, 86 FR 49461. In the section on “Need for Regulatory Action,” footnotes 4 and 5 in the interim final rule should have been reversed. In the section on “Effects on Tribal Employees,” footnote 10 is listed twice. A new footnote 6 should be inserted after the sentence, stating “Another urgent concern is that American Indian/Alaska Natives (AI/AN) experience health disparities, and, according to the Centers for Disease Control and Prevention (CDC), AI/AN have experienced disproportionate rates of infection and mortality during the COVID-19 pandemic.” This footnote 6 should have included a citation to a report located at https://www.cdc.gov/mmwr/volumes/69/wr/mm6949a3.htm. The current Footnotes 6 should be renumbered as footnote 7, and current footnotes 7-10 should be renumbered as 8-11. In the section on “Effects on Other Parties,” a footnote was made to the medical loss regulations without any text in accompanying footnote 13. The footnote should have included a citation to 77 FR 28790 and should be renumbered as footnote 12.

Section 1114 of the Consolidated Appropriations Act, 2021 (Pub. L. 116- 260) amended Section 409 of the Indian Health Care Improvement Act (25 U.S.C. 1647b) to extend entitlement to Indian tribes or tribal organizations carrying out programs under the TCSA (25 U.S.C. 2501 et seq. ) to purchase coverage, rights and benefits under the FEHB Program for their employees.

The FEHB Program is administered by OPM in accordance with Title 5, Chapter 89, United States Code and implementing regulations (Title 5, parts 890, 892 and Title 48, Chapter 16).

The Patient Protection and Affordable Care Act (ACA) (Pub. L. 111-148) and the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111- 152), as amended extended entitlement to Indian tribes and tribal organizations carrying out programs under the Indian Self-Determination and Education Assistance Act (ISDEAA) (Pub. L. 93- 638), and urban Indian organizations carrying out programs under Title V of the Indian Health Care Improvement Act (IHCIA) to purchase coverage, rights, and benefits under the FEHB Program for their employees, defined in the FEHB regulations as “tribal employees.” As the administrator of the FEHB Program, OPM extended eligibility to tribal employees of entitled tribal employers within the meaning of section 409 of the IHCIA. Tribal employers began purchasing FEHB for their employees on March 22, 2012 with coverage effective on May 1, 2012. As of January 2022, 138 tribal employers participate in the FEHB Program, and 1l of those are tribally controlled schools. As of January 2022, the total tribal enrollment in the FEHB Program is 34,333 with an estimated 63,000 covered lives.

OPM received 2 comments from the members of the public. One commenter noted all school employees should have the opportunity to be protected during the pandemic and expanding enrollment in the Federal Employees Health Benefits Program will expand access. Another commenter also expressed support for the rule. OPM appreciates the commenters' support for the regulation and notes that this rule applies only to TCSA grant schools; schools operating under the ISDEAA (Pub. L. 93-638) were already entitled to purchase FEHB for tribal employees. As noted earlier in the rule, OPM is providing a cite the medical loss regulations which is a clarification. No other changes are made.

While this rule identifies TCSA grant schools as tribal employers entitled to purchase FEHB coverage for their tribal employees, pursuant to Public Law 116- 260, OPM does not believe this regulation will have a large impact on the broader health insurance markets. Currently, there are an estimated 4,533 eligible tribal employees of tribally controlled schools, including TCSA grant schools and “638 contract schools.” Eligible tribal employees are full-time common law employees as determined by a tribal employer. There are an estimated 4,328 newly eligible tribal employees at TCSA grant schools. The impact on carriers is relatively small, as tribal enrollments make up 0.78 percent of enrollments in the FEHB Program. As of January 2022, 138 tribal employers participate in the FEHB Program, and 11 of those are tribally controlled schools. As of January 2022, the total tribal enrollment in the FEHB Program is 34,333 with an estimated 63,000 covered lives. Overall, as of March 2021 there are over 4.1 million separate enrollments in the FEHB Program, providing health insurance to about 8.2 million Federal employees, annuitants, certain tribal employees, and their family members covered by the FEHB Program.

For states with larger American Indian/Alaska Native (AI/AN) populations, OPM does not expect an outsized impact on local carriers as local carriers plans generally reflect the cost of their area. OPM does not anticipate that the newly eligible tribal employees will be significantly more expensive than other current FEHB enrollees in the same geographic region. For example, OPM estimates, for tribally controlled schools in which data is available, that in states with large AI/AN populations, such as New Mexico, Arizona, and South Dakota, only about 1,899 tribal employees are eligible at TCSA grant schools. Therefore, OPM does not anticipate a material impact if these tribal enrollees were to enroll in FEHB coverage. For FEHB nationwide fee-for-service (FFS) plans, there will not be enough new enrollees in this group to have a material impact.

As described above, one expected impact of this rule is that affected tribal employees will gain access to health insurance plans with lower health insurance premiums. A reduction in those premiums reflects transfers between various parties involved in these transactions. The clearest effect is a transfer toward parties paying for health benefits absent the expansion of FEHB benefits, which largely include tribal employers and employees. This transfer is most likely to come initially from reductions in payments to health insurance providers or from offsetting increases in FEHB health insurance premiums. We expect that, due to medical loss ratio  1 regulations, premiums largely reflect medical costs experienced by those insured by the plan. As a result, we expect that the rule will largely initially result in a transfer from those paying FEHB premiums (including enrollees and the Federal Government) in the baseline to entities who experience premium reductions under this rule. As described above, we expect these effects to be quite small.

OPM is unaware of feasible alternatives to this rule, as this regulation aligns FEHB eligibility with the FY21 CAA, which amended section 409 of the IHCIA. Currently, OPM regulations do not include FEHB eligibility for Indian tribes or tribal organizations carrying out programs under the TCSA, and this rule expands eligibility along these lines.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). This final rule is not a significant regulatory action under E.O. 12866 and was not reviewed by OMB.

OPM certifies this regulation will not have a significant economic impact on a substantial number of small entities.

OPM has examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or Tribal governments.

This regulation meets the applicable standard set forth in Executive Order 12988.

This rule will not result in the expenditure by State, local or Tribal governments of more than $100 million annually. Thus, no written assessment of unfunded mandates is required.

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act) (5 U.S.C. 801 et seq. ) requires rules (as defined in 5 U.S.C. 804) to be submitted to Congress before taking effect. OPM will submit to Congress and the Comptroller General of the United States a report regarding the issuance of this action before its effective date, as required by 5 U.S.C. 801. OMB's Office of Information and Regulatory Affairs has determined that this is not a “major rule” as defined by the Congressional Review Act (5 U.S.C. 804(2)).

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number.

This rule involves an OMB approved collection of information subject to the PRA for the FEHB Program, OMB Control Number 3206-0160, Health Benefits Election Form. The public reporting burden for this collection is estimated to average 30 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The total burden hour estimate for this form is 9,000 hours. The systems of record notice for this collection is: OPM/Central-23, “FEHB Program Enrollment Records,” available at https://www.federalregister.gov/d/ 2021-01259.

Accordingly, OPM adopts the interim rule published September 3, 2021, at 86 FR 49461, as final without change.

This action, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This final rule is issued under Marketing Order No. 922, as amended (7 CFR part 922), regulating the handling of apricots grown in designated counties in Washington. Part 922 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The State of Washington Apricot Marketing Committee (Committee) locally administers the Order and is comprised of producers and handlers operating within the production area.

The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 12866 and 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

In addition, this final rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. USDA has determined this final rule is unlikely to have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to a marketing order may file with USDA a petition stating that the marketing order, any provision of the marketing order, or any obligation imposed in connection with the marketing order is not in accordance with law and request a modification of the marketing order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

The Committee meets regularly to consider recommendations for modification, suspension, or termination of the Order's regulatory requirements. Committee meetings are open to the public and interested persons may express their views at these meetings. Agricultural Marketing Service (AMS) reviews Committee recommendations, including information provided by the Committee and from other available sources, and determines whether modification, suspension, or termination would tend to effectuate the declared policy of the Act.

On May 11, 2021, the Committee met and deliberated over the continuance of the Order. Following this meeting, the Committee unanimously recommended that AMS terminate the Order and suspend the collection of assessments. This final rule indefinitely suspends handler assessments as well as any remaining reporting requirements of the Order while AMS is processing the termination. The termination will be conducted in a separate rulemaking action.

Section 922.41 provides authority for the Committee to assess handlers for their pro rata share of the Committee expenses authorized each fiscal period. Section 922.60 authorizes the Committee to collect reports and other information necessary for the Committee to perform its duties under the Order. This final rule suspends § 922.235, which established a continuing assessment rate of $2.86 per ton, effective for the 2019-2020 and subsequent fiscal periods. Any reports that are currently being collected are no longer required.

The Order has been in effect since 1957 and has provided the apricot industry in Washington with authority for grade, size, quality, maturity, pack, and container regulations, as well as authority for mandatory product inspection.

Handling regulations requiring apricots to be inspected and meet mandatory pack and container requirements were in effect until 2007 and minimum grade, size, maturity, and quality requirements until 2014. Following a recommendation from the Committee, AMS suspended the container regulations for apricots for one-year, effective April 6, 2006 (71 FR 16982), and subsequently extended that suspension indefinitely effective August 1, 2007 (72 FR 16265). The Committee believed that with changing market dynamics container regulations were no longer necessary to ensure orderly marketing and that suspension would provide greater flexibility to handlers for packing and shipping apricots.

In 2013, based on the Committee's recommendation, AMS issued an interim rule suspending the handling regulations for apricots effective October 24, 2013 (78 FR 62936). A final rule affirming the indefinite suspension published in the Federal Register March 20, 2014 (79 FR 15539). Again, the Committee believed the cost of complying with the Order's handling and inspection requirements outweighed the benefits to both producers and handlers of apricots. Both actions were unanimously recommended by the Committee.

Following these regulatory suspensions, the Committee continued to levy assessments to maintain its functionality. The Committee believed that it should continue to fund its full operational capability, collect industry statistics on an ongoing basis, and maintain the program in the event market conditions warranted regulation.

The Committee met on May 11, 2021, to discuss market dynamics and the Committee's budget and assessments. A significant decrease in the 2020-2021 crop production and increased Committee expenses would require the Committee to increase the assessment rate by 365 percent, from $2.86 to $13.30 per ton, to maintain its functionality. During those discussions, the Committee determined that the suspension of handling and container requirements had not adversely affected the marketing of Washington apricots rendering the Order no longer necessary to the industry. The Committee concluded that termination of the Order would have no adverse effect on industry. In preparing to terminate the Order, the Committee recommended a budget of expenditures of $5,508 for the period beginning April 1, 2021, and ending with the termination.

Following the May 11, 2021, meeting, the Committee conducted a vote among all its members to terminate the Order. Termination of the Order was unanimously supported by the Committee. This final rule indefinitely suspends the handler assessments and any reports being collected, in preparation for the termination of the Order.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this final rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 315 growers of Washington apricots and approximately 8 apricot handlers in the production area subject to regulation under the Order. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $30,000,000, and small agricultural producers are defined as those having annual receipts of less than $1,000,000 (13 CFR 121.201).

Based on USDA's National Agricultural Statistics Service (NASS) data, and given the number of Washington apricot growers, average grower revenue is below $1,000,000. NASS's 2020 Washington apricot price per ton of $2,040 yields annual grower estimated revenue of $3,321,120 which equals approximately $10,543 average annual receipts per grower ($2,040 price per ton multiplied by 1,628 tons divided by 315 growers). Thus, most Washington apricot growers would be considered small businesses under the SBA definition.

In addition, according to data from USDA's Market News Service, an estimated Washington apricot 2020 season average Free on Board (f.o.b.) shipper (handler) price per carton was approximately $31.59 (for Washington apricots, 2-layer tray pack carton, all sizes, June-July 2020, midpoint of the “mostly low” and “mostly high” prices). With a standard Market News weight of 18 pounds per tray pack carton of apricots, the f.o.b. price is approximately $1.755 per pound, or $3,510 per ton ($31.59 divided by 18 pounds). The Committee reported that the industry shipped 1,628 tons for the 2020 season. Total 2020 estimated handler receipts are $5.714 million (1,628 tons times $3,510 per ton). Average annual receipts per handler are approximately $714,000 ($5.714 million divided by 8 handlers). Thus, most Washington apricot handlers would be considered small businesses under the SBA definition.

This final rule suspends the assessment requirements of the Order and any reports currently being collected. The assessment rate that suspended is the $2.86 per ton rate in effect for the 2019-2020 fiscal period and continuing to the present day. The Committee also recommended a budget of expenditures of $5,508 for the period beginning April 1, 2021, and ending with the termination of the Order. The budget was based on the Committee's estimated financial resources on March 31, 2021. Budgeted expenditures include administrative expenses and any expenses necessary to finalize the termination of the Order.

On July 7, 2021, the Committee made the recommendation to suspend the remaining reporting and handler assessments as an adjunct to the recommendation to terminate the Order. As such, the alternative discussed by the Committee was to maintain the status quo and continue to collect handler assessments. The Committee determined that the decrease in the 2020-2021 crop production and the increases in Committee expenses would require the Committee to increase the assessment rate by 365 percent, from $2.86 to $13.30 per ton. Further, the 2020-2021 crop production was the smallest crop on record, and evidence suggests that this decline is a continuation of an industry trend.

In addition, the suspension of the handling and packing regulations has not adversely affected the marketing of Washington apricots. Evidence from the past 7 years showed that apricots can be marketed from the production area in the absence of the Order's requirements without a negative economic impact on the industry.

After considering the alternative, the Committee concluded that the cost to maintain the Order outweighed its benefit to producers and handlers and, therefore, unanimously voted to suspend the reporting requirements and collection of assessments beginning with 2021 fiscal period, and to terminate the Order.

This action suspends the reporting and assessment obligations imposed on handlers. When in effect, assessments are applied uniformly on all handlers, and some of those costs may be passed on to producers. The suspension of the reporting and assessment requirements reduces the regulatory burden on handlers and would be expected to reduce the burden on producers.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0189 Fruit Crops. This final rule suspends those information collection requirements, and any reporting requirements under the Order.

This final rule does not impose any additional reporting or recordkeeping requirements on either small or large apricot handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, AMS has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.

USDA is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The Committee's meetings were widely publicized throughout the Washington apricot industry, and all interested persons are invited to attend the meetings and participate in Committee deliberations on all issues. Meetings are held virtually or in a hybrid style with participants having a choice whether to attend in person or virtually.

A proposed rule concerning this action was published in the Federal Register on November 23, 2021 (86 FR 66462). Copies of the proposal were provided by the Committee to members and handlers. Finally, the proposed rule was made available through the internet by AMS and the Office of the Federal Register. A 60-day comment period ending January 24, 2022, was provided to allow interested persons to respond to the proposal. During the comment period, one comment was received in response to the proposal. The comment received did not address the merits of this rule. Accordingly, no changes have been made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, AMS finds that this rule will tend to effectuate the declared policy of the Act.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 922 as follows:

ONRR regulations at 30 CFR parts 1210, 1218, and 1243 authorize various forms to be filed with ONRR related to Federal and Indian royalty reporting and payment and appeal bonding by mail, courier, or overnight delivery. As further described in the amendatory instructions, this final rule amends these parts to update room number, mailstop, or other information for these delivery methods.

Title 30 CFR 1210.151 authorizes form ONRR-4393, Request to Exceed Regulatory Allowance Limitation, to be filed with ONRR by mail, courier, overnight delivery, or email, but it does not provide an email address for doing so. This final rule amends this section to specify royaltyvaluation@onrr.gov as the email address for filing form ONRR-4393 with ONRR by email.

Title 30 CFR 1210.151, 1210.152, and 1210.153 authorize various forms to be filed with ONRR related to royalty reporting for Indian leases by mail, courier, or overnight delivery. This final rule amends these sections to also authorize the filing of these forms with ONRR electronically by email to onrrindianforms@onrr.gov.

This is a final rulemaking with no request for public comment. This rulemaking is exempt from the notice and comment requirements of 5 U.S.C. 553(b) because it relates to a rule “of agency organization, procedure, or practice” under 5 U.S.C. 553(b)(A). Furthermore, 5 U.S.C. 553(b)(B) provides an exception to the public comment requirement when an agency for good cause finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” ONRR finds that public comment is not necessary because this is a technical rule to amend ONRR's mailing and email addresses.

E.O. 12866 provides that the Office of Information and Regulatory Affairs (“OIRA”) will review all significant rules. OIRA has determined that this rule is not significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability and reduce uncertainty, and to use the most innovative and least burdensome tools for achieving regulatory ends. Furthermore, E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 also emphasizes that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. ONRR developed this rule in a manner consistent with these requirements.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., generally requires Federal agencies to prepare a regulatory flexibility analysis for rules that are subject to the notice-and-comment rulemaking requirements under the APA if the rule would have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 601-612. The Department of the Interior certifies that this final rule will not have a significant economic effect on a substantial number of small entities. This final rule will impact large and small entities but will not have a significant economic effect on either because it is a technical rule to update addresses and to provide email addresses that a person may elect to use to submit certain documents electronically.

This final rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This final rule:

(1) Does not have an annual effect on the economy of $100 million or more.

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This final rule does not impose an unfunded mandate on State, local, or Tribal governments, or the private sector of more than $100 million per year. This final rule does not have a significant or unique effect on State, local, or Tribal governments, or the private sector. Therefore, ONRR is not required to provide a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ).

Under the criteria in E.O. 12630, this final rule does not have any significant takings implications. This final rule applies to Outer Continental Shelf and Federal and Indian onshore leases. It does not apply to private property. A takings implication assessment is not required.

Under the criteria in section 1 of E.O. 13132, this final rule does not have sufficient federalism implications that warrant the preparation of a federalism summary impact statement. This is a technical rule to amend ONRR's mailing and email addresses. A federalism summary impact statement is not required.

This final rule complies with the requirements of E.O. 12988. Specifically, this rule:

1. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

2. Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. ONRR has evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and has determined that it has no substantial direct effect on federally recognized Indian Tribes and that consultation under the Department's Tribal consultation policy is not required.

This final rule does not contain information collection requirements. A submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) is not required.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (“NEPA”) is not required because this rule is categorically excluded under: “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature.” See 43 CFR 46.210(i) and DOI Departmental Manual, part 516, section 15.4.D. ONRR has determined that this rule is not involved in any of the extraordinary circumstances under 43 CFR 46.215 that would require further analysis under NEPA. The procedural changes resulting from these amendments have no consequences with respect to the physical environment. This rule will not alter in any material way natural resource exploration, production, or transportation.

This final rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

ONRR is required by E.O.s 12866 (section 1 (b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule ONRR publishes must use:

(1) Logical organization.

(2) Active voice to address readers directly.

(3) Clear language rather than jargon.

(4) Short sections and sentences.

(5) Lists and tables wherever possible.

If you feel that ONRR has not met these requirements, send your remarks to ONRR_RegulationsMailbox@onrr.gov. To better help ONRR revise the rule, your remarks should be as specific as possible. For example, you should tell ONRR the numbers of the sections or paragraphs that are not clearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

For the reasons discussed in the preamble, under the authority provided by Reorganization Plan No. 3 of 1950 (64 Stat. 1262) and Secretarial Order No. 3299, ONRR amends parts 1210, 1218, and 1243 of title 30 CFR, chapter XII as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone immediately and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying this rule would be contrary to public safety due to the danges associated with fireworks.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the Chattanooga Presents—TN Aquarium 30th Anniversary Fireworks starting April 30, 2022, will be a safety concern for anyone within mile marker (MM) 464.0 to 464.5 on the Tennessee River. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the firework display.

This rule establishes a temporary safety zone from 9 p.m. through 10 p.m. on April 30, 2022. The safety zone will cover all navigable waters between MM464.0 to 464.5 on the Tennessee River, extending the entire width of the river. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the fireworks display is occuring. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Ohio Valley.

Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. To seek entry into the safety zone, contact the COTP or the COTP's representative by telephone at 502-779-5422 or on VHF-FM channel 16.

Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and Marine Safety Information Bulletins (MSIBs) about this safety zone, enforcement period, as well as any changes in the dates and times of enforcement.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. This safety zone restricts transit on a point five segment of the Tennessee River for 1 hour on one day. Moreover, the Coast Guard will issue Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and Marine Safety Information Bulletins (MSIBs) about this safety zone so that waterway users may plan accordingly for this short restriction on transit, and the rule allows vessels to request permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 1 hour that will prohibit entry between MM 464.0 to 464.5 on the Tennessee River for the fireworks display. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. Due to the emergency nature of this rulemaking, a Record of Environmental Consideration is not required.

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

On March 31, 2022, the Coast Guard issued notification of a rulemaking creating a temporary safety zone on the navigable waters of Chincoteague Bay to protect persons and vessels during damage assessment and salvage operations at the aircraft wreck site. The original safety zone was effective through April 7, 2022. A copy of the rulemaking that ended on April 7, 2022 is available in the Docket USCG-2022-0751, which can be found using instructions in the ADDRESSES section. However, additional time is needed to conduct the damage assessment and salvage operations, and, as a result, the Coast Guard is establishing through temporary regulations a safety zone that will be in effect through May 6, 2022. The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this extension because it would be impracticable and contrary to the public interest. The Coast Guard was unable to publish an NPRM and hold a reasonable comment period for this rulemaking due to the emergent nature of the continuing damage assessment and salvage operations and required publication of this extension.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action to restrict vessel traffic within the aircraft wreckage site is needed to protect life, property and the environment, therefore a 30-day notice period is impracticable. Delaying the effective date would be contrary to the safety zone's intended objectives of providing immediate protection to on-scene emergency personal, creating a working buffer necessary to mitigate any safety and potential pollution threats caused by the wreckage and establishing immediate maritime safety in the vicinity of on-scene salvage and damage assessments.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Virginia (COTP) has determined that potential hazards exist within the aircraft wreckage site and it is necessary to keep the area clear while assessments and salvage operations are being conducted. This rule is needed to protect persons who may transit in the vicinity of the wreckage site which involves on-going damage assessments, the potential for floating wreckage debris, potential pollution, and salvage operations.

This rule establishes a temporary safety zone through May 6, 2022. The safety zone includes all navigable waters within 500 yards of the wreckage site at approximate position 37°59.27′ N, 075°18.75′ W just north of Wildcat Point. The extended duration of the zone is intended to protect personnel, vessels, and the maritime environment in these navigable waters while damage assessment and salvage operations are conducted. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and limited duration of the safety zone. This zone impacts a small designated area of the Chincoteague Bay for a total of no more than 30 days and operations may suspend early at the discretion of the Captain of the Port, Sector Virginia.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting for 30 days that will prohibit entry within certain navigable waters of the Chincoteague Bay. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard is issuing this emergency temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone immediately and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the TVA Colbert Fossil Plant Implosion will be a safety concern for anyone within 2 miles of the Colbert Plant implosion, and is establishing a safety zone from mile marker (MM) 244.0 to 246.0 on the Tennessee River. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters for the duration of the fiber line installation.

This rule establishes an emergency safety zone from 6 a.m. until 8 a.m. on April 14, 2022. The safety zone will cover all navigable waters between Mile Marker (MM) 244.0 to 246.0 on the Tennessee River, extending the entire width of the river. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while TVA is imploding the Colbert Fossil Plant. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Ohio Valley.

Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. To seek entry into the safety zone, contact the COTP or the COTP's representative by telephone at 502-779-5422 or on VHF-FM channel 16. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and Marine Safety Information Bulletins (MSIBs) about this safety zone, enforcement period, as well as any changes in the dates and times of enforcement.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. This safety zone restricts transit on a two mile segment of the Tennessee River for 2 hours on one day. Moreover, the Coast Guard would issue Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and Marine Safety Information Bulletins (MSIBs) about this safety zone so that waterway users may plan accordingly for this short restriction on transit, and the rule allows vessels to request permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 2 hours that will prohibit entry between MM 244.0 to 246.0 on the Tennessee River to implode the Colbert Fossil Plant. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. Due to the emergency nature of this rulemaking, a Record of Environmental Consideration is not required. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On October 7, 2020, the Maryland Department of the Environment (MDE) submitted a revision to the Maryland SIP entitled, “SIP-20-04 2017 Base Year Inventory for the Washington, DC-MD-VA 2015 Ozone NAAQS Nonattainment Area.” This revision is referred to as the “MD submittal” in this rule. On November 4, 2020, the District of Columbia Department of Energy and Environment (DOEE), submitted a revision to the DC SIP entitled, “DC 2015 Ozone NAAQS Attainment Plan Base Year Inventory.” This revision is referred to as the “DC submittal” in this rule. On December 11, 2020, the Virginia Department of Environmental Quality (VADEQ) submitted a revision to the Virginia SIP entitled, “8-Hour Ozone (2015 Standard)—Washington Attainment Plan ` VA_2017O3BYEI_12112020.' ” This revision is referred to as the “VA submittal” in this rule. The individual state SIP revisions, referred to collectively in this rule action as the “DC Area base year inventory SIPs,” address the base year inventory requirement for the DC Area for the 2015 ozone NAAQS.

On February 24, 2022 (87 FR 10318), EPA published a notice of proposed rulemaking (NPRM) for the States. In the NPRM, EPA proposed approval of the DC Area base year inventory SIPs. The formal SIP revisions were submitted by MD on October 7, 2020, DC on November 4, 2020, and VA on December 11, 2020.

On October 1, 2015, EPA strengthened the 8-hour ozone NAAQS, lowering the level of the NAAQS from 0.075 ppm parts per million (ppm) to 0.070 ppm. 80 FR 65292 (October 26, 2015). Effective August 3, 2018, EPA designated the following jurisdictions in the DC Area as marginal nonattainment for the 2015 ozone NAAQS: District of Columbia; Calvert, Charles, Frederick, Montgomery, and Prince George's Counties in MD; and Arlington, Fairfax, Loudoun, and Prince William Counties and Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park Cities in VA. 83 FR 25776 (June 4, 2018). CAA section 182(a)(1) requires ozone nonattainment areas classified as marginal or above to submit a comprehensive, accurate, current inventory of actual emissions from all emissions sources in the nonattainment area, known as a “base year inventory.” The DC Area base year inventory SIPs address a base year inventory requirement for the DC Area.

EPA's review of the DC Area base year inventory SIPs indicate that they meet the base year inventory requirements for the 2015 ozone NAAQS.

EPA prepared a technical support document (TSD) for each state's submittal in support of this rule. In those TSDs, EPA reviewed the results, procedures, and methodologies for the SIP base year, and found them to be acceptable and developed in accordance with EPA's technical guidance. EPA's TSDs for the individual state SIPs are available online at http://www.regulations.gov, Docket ID No. EPA-R03-OAR-2021-0727.

In EPA's December 6, 2018 rule, “Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area State Implementation Plan Requirements,” known as the “SIP Requirements Rule,” EPA set out nonattainment area requirements for the 2015 ozone NAAQS. (83 FR 62998). The SIP Requirements Rule established base year inventory requirements, which were codified at 40 Code of Federal Regulations (CFR) 51.1315. As required by 40 CFR 51.1315(a), each 2015 ozone nonattainment area must submit a base year inventory within 2 years of designation.

Also, 40 CFR 51.1315(a) requires that the inventory year be selected consistent with the baseline year for the reasonable further progress (RFP) plan as required by 40 CFR 51.1310(b), which states that the baseline emissions inventory shall be the emissions inventory for the most recent calendar year for which a complete triennial inventory is required to be submitted to EPA under the provisions of subpart A of 40 CFR part 51, Air Emissions Reporting Requirements, 40 CFR 51.1 through 50. The most recent triennial inventory year conducted for the National Emissions Inventory (NEI) pursuant to the Air Emissions Reporting Requirements (AERR) rule is 2017. 73 FR 76539 (December 17, 2008). The States selected 2017 as their baseline emissions inventory year for RFP. This selection comports with EPA's implementation regulations for the 2015 ozone NAAQS because 2017 is the inventory year. 40 CFR 51.1310(b). 1

Further, 40 CFR 51.1315(c) requires emissions values included in the base year inventory to be actual ozone season day emissions as defined by 40 CFR 51.1300(q), which states: Ozone season day emissions means an average day's emissions for a typical ozone season work weekday. The state shall select, subject to EPA approval, the particular month(s) in the ozone season and the day(s) in the work week to be represented, considering the conditions assumed in the development of RFP plans and/or emissions budgets for transportation conformity. The States included actual ozone season day emissions, pursuant to 40 CFR 51.1315(c).

The DC Area base year inventory SIPs, contain an explanation of each State's 2017 base year emissions inventory for stationary, non-point, non-road, and on-road anthropogenic sources, as well as biogenic sources, in the DC Area. The States estimated anthropogenic emissions for volatile organic compound (VOC), nitrogen oxide (NOx), and carbon monoxide (CO) for a typical ozone season work weekday. The DC Area base year inventory SIPs were developed collaboratively. As such, their 2017 base year emissions inventory (BYEI) are almost identical and, therefore, will be referred to collectively as the “2017 DC Area BYEI” in the remainder of this rule, unless otherwise noted because individual distinctions are necessary. 2

The States developed the 2017 DC Area BYEI with the following source categories of anthropogenic emissions sources: Point, quasi-point, non-point, non-road model, on-road, and commercial marine vessels, airport, and railroad (MAR) emissions sources, in addition to biogenic total sources. The 2017 DC Area BYEI sets out the methodologies the States used to develop their base year inventory for each source listed. Those methodologies are explained in further depth within appendices A-D of each state's submission. Data justifying the inventories are also provided within appendices A-D of each state's submission. Note, however, that Virginia only included appendix items relevant to their own state but uploaded files jointly with DC for the full inventory development. Furthermore, the MD submittal was earliest and, as such, contains data, development, and guidance that precedes the widespread adoption of the 2017 NEI. This timing differential accounts for the differences in the MD submittal as compared to the DC and VA submittals.

EPA's review of the DC Area base year inventory SIPs indicates that they meet the base year inventory requirements for the 2015 ozone NAAQS. Other specific requirements of MDE's October 7, 2020 submittal, DOEE's November 4, 2020 submittal and VADEQ's December 11, 2020 submittal and the rationale for EPA's proposed action, including further information on each source category, are explained in the NPRM and will not be restated here. No public comments were received on the NPRM.

EPA's review of this material indicates the DC area base year inventory SIPs meet the base year inventory requirement for the 2015 ozone NAAQS for the DC Area. Therefore, EPA is approving the DC Area base year inventory SIPs, which were submitted on October 7, 2020 (MD), November 4, 2020 (DC), and December 11, 2020 (VA).

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts . . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 13, 2022. 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 final rule approving the DC Area base year inventory SIPs may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

This is a summary of the Commission's document, Auction 108 Procedures Public Notice, in AU Docket No. 20-429, FCC 22-24, released on March 21, 2022. The complete text of this document, including attachments and any related document, is available on the Commission's website at http://www.fcc.gov/auction/108 or by using the search function for on the Commission's Electronic Comment Filing System (ECFS) web page at www.fcc.gov/ecfs. Alternative formats are available to persons with disabilities by sending an email to FCC504@fcc.gov or by calling the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. By the Auction 108 Procedures Public Notice, the Commission establishes the procedures to be used for Auction 108, the auction of approximately 8,000 new flexible-use geographic overlay licenses in the 2.5 GHz band. Auction 108 will offer the single largest contiguous portion of available mid-band spectrum below 3 GHz, and the licenses made available in this auction will help extend 5G service beyond the most populated areas.

2. Bidding in Auction 108 is scheduled to commence on July 29, 2022. Auction 108 will be conducted using an ascending clock auction with a supply of one in each category of frequency-specific channel blocks, referred to as the clock-1 auction format. The Auction 108 Procedures Public Notice provides details regarding the procedures, terms, conditions, dates, and deadlines governing participation in Auction 108 bidding, as well as an overview of the post-auction application and payment processes.

3. In the 2.5 GHz Report and Order, 84 FR 57343, July 11, 2019, the Commission made available 117.5 megahertz of spectrum in the 2.5 GHz band for new licensed use. In that Order, the Commission established a Rural Tribal Priority Window to enable federally-recognized Tribal Nations an opportunity to obtain 2.5 GHz licenses to provide service using unassigned spectrum in the former Educational Broadband Service (EBS) band on rural Tribal lands before the remaining unassigned spectrum is made generally available through competitive bidding. Among other things, the Commission authorized both fixed and mobile operations in the 2.5 GHz band using geographic area licensing, replaced the regulatory regime of the EBS with new flexible-use licensing and operating rules, and decided to use its competitive bidding rules to assign remaining overlay licenses following the close of the Rural Tribal Priority Window.

4. On January 13, 2021, in accordance with section 309(j)(3) of the Communications Act of 1934, as amended (Communications Act), the Commission released the Auction 108 Comment Public Notice, 86 FR 12146, March 2, 2021, seeking comment on certain competitive bidding procedures and various other procedures to be used in Auction 108. Interested parties filed 16 comments and 26 reply comments in response to the Auction 108 Comment Public Notice. On February 9, 2022, the Commission's Office of Economics and Analytics (OEA) and Wireless Telecommunications Bureau (WTB) released the Auction 108 Further Comment Public Notice, 87 FR 8764, February 16, 2022, seeking further comment on multiple-round auction procedures for Auction 108. Specifically, OEA and WTB sought comment on whether a clock auction would address commenters' concerns and suggestions regarding the simultaneous multiple-round (SMR) and single-round, sealed bid auction formats proposed in the Auction 108 Comment Public Notice. Interested parties filed 13 comments in response to the Auction 108 Further Comment Public Notice. On February 18, 2022, OEA and WTB released the Auction 108 Inventory Comment Public Notice, 87 FR 11379, March 1, 2022, that announced an updated auction inventory and sought comment whether any procedures need to be adjusted for all the licenses available in Auction 108 in light of additions to the initial license inventory. Interested parties filed eight comments in response to the Auction 108 Inventory Comment Public Notice. In the Auction 108 Procedures Public Notice, the Commission resolves all open issues raised in the Auction 108 Comment Public Notice, the Auction 108 Further Comment Public Notice, and the Auction 108 Inventory Comment Public Notice and address the comments received.

5. Other Commission rules and decisions provide the underlying authority for the procedures the Commission adopts for Auction 108. Among other things, prospective applicants should familiarize themselves with the Commission's general competitive bidding rules, including amendments and clarifications thereto, as well as Commission decisions regarding competitive bidding procedures, application requirements, and obligations of Commission licensees. Prospective applicants also should familiarize themselves with the Commission's rules regarding the 2.5 GHz band, as well as the licensing and operating rules that are applicable to all Part 27 services. In addition, applicants must be thoroughly familiar with the procedures, terms, and conditions contained in the Auction 108 Procedures Public Notice and any future public notices that may be released in this proceeding.

6. The terms contained in the Commission's rules, relevant orders, and public notices are not negotiable. The Commission may amend or supplement the information contained in its public notices at any time and will issue public notices to convey any new or supplemental generally applicable information to applicants. Pursuant to the Commission's rules, OEA and WTB also retain the authority to implement further procedures during the course of Auction 108. It is the responsibility of all applicants to remain current with all Commission rules and with all public notices pertaining to Auction 108.

7. Consistent with the Commission's determination, any remaining unassigned EBS spectrum will be made available in Auction 108. Auction 108 will offer geographic overlay licenses for unassigned spectrum in the 2.5 GHz (2496-2690 MHz) band. The Commission will offer up to three blocks of spectrum—49.5 megahertz, 50.5 megahertz, and 17.5 megahertz blocks, respectively—licensed on a county basis. Specifically, the first channel block will include channels A1-A3, B1-B3, C1-C3 (49.5 megahertz); the second channel block will include channels D1-D3, the J channels, and channels A4, B4, C4, D4, and G4 (50.5 megahertz); and the third channel block will include channels G1-G3 and the relevant K channels (16.5 megahertz of contiguous spectrum and 1 megahertz of the K channels associated with the G channel group, for a total of 17.5 megahertz). New overlay licenses in the EBS portion of the 2.5 GHz band will be issued for 10-year, renewable license terms. A licensee in this band may provide any services permitted under terrestrial fixed or mobile allocations, as set forth in the non-Federal Government column of the Table of Frequency Allocations in 47 CFR 2.106.

8. Concurrent with the release of the Auction 108 Comment Public Notice, OEA and WTB made available a file listing all county and channel block combinations potentially available for Auction 108. Several commenters, including some incumbent licensees, noted potential discrepancies between the Commission's initial list of potentially available licenses and commenters' own analyses of available white space in the band. These commenters and others urged the Commission to audit the preliminary list of licenses available in Auction 108 to ensure that the final list of available licenses is complete and accurate. In light of these comments, WTB staff performed additional geographic information systems (GIS) analysis of existing 2.5 GHz licenses and prepared a new list of potentially available licenses based on license service area data extracted from the Universal Licensing System (ULS) on February 2, 2022. The revised list also took into account licenses issued pursuant to Rural Tribal Priority Window applications and information provided by commenters. OEA and WTB released that updated list of potentially available licenses, which added 189 licenses to the list and removed 370, on February 18, 2022, and requested comment on whether any of the procedures proposed in the Auction 108 Comment Public Notice or the Auction 108 Further Comment Public Notice needed to be adjusted in light of licenses added to the initial license inventory.

9. Many of the issues raised by commenters in response to the Auction 108 Comment Public Notice were addressed in the revised inventory released with the Auction 108 Inventory Comment Public Notice. The revised list of licenses also excluded county/channel block combinations where the only areas with unassigned spectrum were over large bodies of water such as the Atlantic Ocean or the Great Lakes. Since a licensee may only place base stations within their geographic service area (GSA) and limit the power flux density of their signal within their GSA, there would be no prospect for a licensee to deploy service to land-based populations in that scenario.

10. The revised license inventory released in conjunction with the Auction 108 Procedures Public Notice incorporates WTB's comprehensive review of the inventory in response to additional GIS analyses and feedback from interested parties including incumbent licensees and lessees. The Commission declines a request by certain parties to implement a more formal process by which interested parties may submit data to challenge the revised license inventory. Interested parties had multiple opportunities to provide input on the development of the license inventory, as WTB has continued to refine and revise the inventory in response to feedback from interested parties. Most recently, several parties submitted additional information in response to the Auction 108 Inventory Comment Public Notice, and WTB has taken that information into account in developing the most recent inventory listing reflected in the updated Attachment A that is being released in conjunction with the Auction 108 Procedures Public Notice. Second, a new, formal process at this time would significantly delay the auction of critical mid-band spectrum.

11. On March 15, 2022, WTB granted seven additional Rural Tribal Priority Window applications in Alaska. As a result of those grants, all 2.5 GHz spectrum in Bristol Bay and Lake and Peninsula Boroughs in Alaska was assigned on all three channel blocks. Accordingly, the three licenses for those boroughs have been removed from the list of available licenses.

12. In light of comments, the Commission has also excluded from its analysis of active licensees' geographic service areas the potential effect of licenses that expired before January 10, 2005, and were not reinstated prior to March 10, 2008. As a result, the Commission removed 80 licenses in 57 counties from the auction inventory.

13. Concurrent with the release of the Auction 108 Procedures Public Notice, the Commission makes available an updated file listing all county and channel block combinations potentially available for Auction 108. This file is listed as an Attachment A file on the Auction 108 website at www.fcc.gov/auction/108. This inventory of overlay licenses available in Auction 108 released concurrently with the Auction 108 Procedures Public Notice removes 87 licenses from the revised inventory released on February 18, 2022, based on OEA and WTB review of comments and the results of the Rural Tribal Priority Window. If additional licenses are removed from inventory because of future Rural Tribal Priority Window grants, those actions will be announced by subsequent public notice(s).

14. The Commission has also made available resources to assist applicants in conducting due diligence research regarding potential encumbrances in the band. These resources include a new mapping tool to help identify and view existing licenses and Rural Tribal Priority Window applications. The new mapping tool is being made available to all potential bidders in Auction 108, and the public generally, concurrently with the release of the Auction 108 Procedures Public Notice. It can be found under the Education tab on the Auction 108 website at www.fcc.gov/auction/108. Potential applicants are reminded, however, that this mapping tool is merely a graphical aid for potential applicants and does not represent official licensing information; all information should be confirmed in the Universal Licensing System (ULS) for any specific license or area.

15. The Commission will not adopt an expansion of existing requirements on incumbent licensees and lessors in this band that would mandate disclosure of additional details of spectrum lease agreements to potential bidders. The Commission finds that adoption of proponents' expanded disclosure requirement is beyond the bounds of the existing spectrum leasing rules and the Commission's prior determinations supporting those disclosure requirements. The Commission's spectrum leasing rules already provide that each licensee that enters into a leasing agreement must disclose to the Commission a significant amount of information pertaining to the agreement, including the identity of the lessee, the term, and the spectrum and geographic area covered, and that such information is publicly available through ULS. Given the spectrum lease information already available, the Commission finds that proponents of disclosure have not supported their assertion that additional information is necessary in making decisions about whether or how to participate in this auction. Finally, even if additional information may be helpful or material to one or more bidders—and the Commission makes no such finding—the Commission is not convinced that the benefits to potential bidders of obtaining such information would outweigh the potential competitive harm to the leaseholders from disclosure.

16. Each potential bidder is solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the potential uses of a license that it may seek in Auction 108, including the availability of unassigned white space in any particular license area. In addition to the typical due diligence considerations encouraged of bidders in all auctions, the Commission calls particular attention in Auction 108 to potential encumbrances due to existing licenses and pending applications. In particular there will be a substantial number of licenses in the inventory where the amount of unassigned area or unassigned spectrum is very small. For example, there could be licenses in Channel Block 2 where as little as .333 megahertz of spectrum is unassigned. There are also a substantial number of licenses where the area with unassigned spectrum is smaller than one square mile. Each applicant should carefully consider these issues and the technical and economic implications for commercial use of the 2.5 GHz band.

17. The auction of licenses in the 2.5 GHz band will be referred to as Auction 108. Bidding in Auction 108 will begin on Friday, July 29, 2022. Pre-bidding dates and deadlines are listed below. The initial schedule for bidding rounds in Auction 108 will be announced by public notice at least one week before bidding begins.

18. Unless otherwise announced, bidding on all licenses will be conducted on each business day until bidding has stopped on all licenses.

19. The following dates and deadlines apply to Auction 108:

20. Those wishing to participate in Auction 108 must:

• Submit a short-form application (FCC Form 175) electronically prior to 6 p.m. ET on May 10, 2022, following the electronic filing procedures and other instructions set forth in the Auction 108 Procedures Public Notice and in the FCC Form 175 Instructions.

• Submit a sufficient upfront payment and an FCC Remittance Advice Form (FCC Form 159) by 6 p.m. ET on June 23, 2022, following the procedures and instructions set forth in the Auction 108 Procedures Public Notice.

• Comply with all provisions outlined in the Auction 108 Procedures Public Notice and applicable Commission rules.

21. For the reasons set forth in the Auction 108 Comment Public Notice, the Commission adopts the proposal to require any applicant seeking to participate in Auction 108 to certify in its short-form application, under penalty of perjury, that it has read the Auction 108 Procedures Public Notice adopting procedures for Auction 108 and that it has familiarized itself with these procedures and with the requirements for obtaining a license and operating facilities in the 2.5 GHz band. No commenter opposed the proposed certification, and one commenter,T-Mobile, supports it.

22. This certification is designed to bolster applicants' efforts to educate themselves about the procedures for auction participation and to ensure that, prior to submitting their short-form applications, applicants understand their obligation to stay abreast of relevant, forthcoming information. Familiarity with the Commission's rules and procedures governing Auction 108 may also help bidders avoid the consequences to them associated with defaults, which also cause harm to other applicants and the public by reducing the efficiency of the auction process and reducing the likelihood that the license will be assigned to the bidder that values it the most. This certification, along with the other certifications required pursuant to 47 CFR 1.2105(a), will promote submission of applications that meet the Commission's requirements, thereby leading to a more efficient application process.

23. A substantively similar requirement was recently instituted for Auction 110, a Commission auction of flexible-use licenses in the 3.45-3.55 GHz band. That requirement furthered a long-standing policy under which the Commission expressly places a burden upon each applicant to be thoroughly familiar with the procedures, terms, and conditions contained in the relevant Procedures Public Notice and any future public notices that may be released in the auction proceeding. While the certification the Commission adds refers to information regarding auction procedures and licensing that is available at the time of certification, potential auction applicants are on notice that their educational efforts must continue even after their short-form applications are filed. Commission staff routinely makes available detailed educational materials, such as interactive, online tutorials and technical guides, to enhance interested parties' comprehension of the pre-bidding and bidding processes and to help minimize the need for applicants to engage outside engineers, legal counsel, or other auction experts.

24. For these reasons, the Commission will require each Auction 108 applicant to certify as follows in its short-form application: That the applicant has read the public notice adopting procedures for the auction and that it has familiarized itself both with the auction procedures and with the requirements for obtaining a license and operating facilities in the 2.5 GHz band.

25. An applicant must provide this certification under penalty of perjury, consistent with 47 CFR 1.2105(a). This certification is in addition to the certifications already required under 47 CFR 1.2105. Consistent with the other certifications required in the short-form application, an applicant's failure to make this certification in its FCC Form 175 by the May 10, 2022 filing deadline will render its application unacceptable for filing, and its application will be dismissed with prejudice.

26. An application to participate in Auction 108, referred to as a short-form application or FCC Form 175, provides information that the Commission uses to determine whether the applicant has the legal, technical, and/or financial qualifications to participate in a Commission auction for spectrum licenses or permits. The short-form application is the first part of the Commission's two-phased auction application process. In the first phase, a party seeking to participate in Auction 108 must file a short-form application in which it certifies, under penalty of perjury, that it is qualified to participate. Eligibility to participate in Auction 108 is determined based on an applicant's short-form application and certifications and on the applicant's upfront payment. After bidding closes, in the second phase of the process, each winning bidder in Auction 108 must file a more comprehensive post-auction long-form application (FCC Form 601) for the licenses it wins in the auction, and it must have a complete and accurate ownership disclosure information report (FCC Form 602) on file with the Commission.

27. A party seeking to participate in Auction 108 must file an FCC Form 175 electronically via the Auction Application System prior to 6 p.m. ET on May 10, 2022, following the procedures prescribed in the FCC Form 175 Instructions. If an applicant claims eligibility for a bidding credit, then the information provided in its FCC Form 175 will be used to determine whether the applicant appears to be eligible for the claimed bidding credit, with the final determination of bidding credit eligibility to occur based on a winning bidder's post-auction long-form application. Below the Commission describes more fully the information disclosures and certifications required in the short-form application. Each Auction 108 applicant will be subject to the Commission's rule prohibiting certain communications. An applicant is subject to the prohibition beginning at the deadline for filing short-form applications—6 p.m. ET on May 10, 2022.

28. An Auction 108 applicant bears full responsibility for submitting an accurate, complete, and timely short-form application. Pursuant to the Commission's competitive bidding rules, an applicant must make a series of certifications under penalty of perjury on its FCC Form 175 related to the information provided in its application and its participation in the auction, and an applicant must confirm that it is legally, technically, financially, and otherwise qualified to hold a license. As noted above, each participant in Auction 108 must also certify that it has read the Auction 108 Procedures Public Notice and familiarized itself both with the auction procedures and with the requirements for obtaining a license and operating facilities in the 2.5 GHz band. If an Auction 108 applicant fails to make the required certifications in its FCC Form 175 by the filing deadline, then its application will be deemed unacceptable for filing and cannot be corrected after the filing deadline.

29. An applicant should note that submitting an FCC Form 175 (and any amendments thereto) constitutes a representation by the certifying official that he or she is an authorized representative of the applicant with authority to bind the applicant, that he or she has read the form's instructions and certifications, and that the contents of the application, its certifications, and any attachments are true and correct. Submitting a false certification to the Commission may result in penalties, including monetary forfeitures, license forfeitures, ineligibility to participate in future auctions, and/or criminal prosecution.

30. Applicants are cautioned that, because the required information submitted in FCC Form 175 bears on each applicant's qualifications, requests for confidential treatment will not be routinely granted. The Commission generally has held that it may publicly release confidential business information where the party has put that information at issue in a Commission proceeding or where the Commission has identified a compelling public interest in disclosing the information. In this regard, the Commission specifically has held that information submitted in support of receiving bidding credits in auction proceedings should be made available to the public.

31. An applicant must designate between one and three individuals as authorized bidders in its FCC Form 175. The Commission's rules prohibit an individual from serving as an authorized bidder for more than one auction applicant.

32. In order to access the auction bidding system, each authorized bidder will be required to have a unique email address associated with an FCC Username Account that is linked to the applicant's FCC Registration Number (FRN) in the Commission Registration System (CORES). This added security measure is newly implemented for bidding in Commission auctions. If an authorized bidder does not provide an FCC Username Account linked to the applicant's FRN in the applicant's FCC Form 175, that bidder will be unable to place or submit bids. For further details, applicants should refer to the FCC Form 175 Instructions for Auction 108.

33. No individual or entity may file more than one short-form application or have a controlling interest in more than one short-form application. If a party submits multiple short-form applications for an auction, then only one application may form the basis for that party to become qualified to bid in that auction.

34. Similarly, and consistent with the Commission's general prohibition on joint bidding agreements, a party generally is permitted to participate in a Commission auction only through a single bidding entity. Accordingly, the filing of applications in Auction 108 by multiple entities controlled by the same individual or set of individuals generally will not be permitted. As noted by the Commission in adopting the prohibition on applications by commonly controlled entities, this rule, in conjunction with the prohibition against joint bidding agreements, protects the competitiveness of the Commission's auctions.

35. After the initial short-form application filing deadline, Commission staff will review all timely submitted applications for Auction 108 to determine whether each application complies with the application requirements and whether the applicant has provided all required information concerning its qualifications for bidding. After this review is completed, a public notice will be released announcing the status of applications and identifying the applications that are complete and those that are incomplete because of minor defects that may be corrected. That public notice also will establish an application resubmission filing window, during which an applicant may make permissible minor modifications to its application to address identified deficiencies. The public notice will include the deadline for resubmitting modified applications. To become a qualified bidder, an applicant must have a complete application ( i.e., have timely filed an application that is deemed complete after the deadline for correcting any identified deficiencies), and must make a timely and sufficient upfront payment. Qualified bidders will be identified by public notice at least 10 days prior to the mock auction.

36. The Commission discusses below additional details regarding certain information required to be submitted in the FCC Form 175. An applicant should consult the Commission's rules to ensure that, in addition to the materials described below, all required information is included in its short-form application. To the extent the information in the Auction 108 Procedures Public Notice does not address an applicant's specific operating structure, or if the applicant needs additional information or guidance concerning the described disclosure requirements, the applicant should review the educational materials for Auction 108 (see the Education section of the Auction 108 website at www.fcc.gov/auction/108 ) and use the contact information provided in the Auction 108 Procedures Public Notice to consult with Commission staff to better understand the information that it must submit in its short-form application.

37. An applicant must select all of the license areas on which it may want to bid from the list of available counties on its FCC Form 175. An applicant must carefully review and verify its license area ( i.e., county) selections before the FCC Form 175 filing deadline because those selections cannot be changed after the auction application filing deadline. An applicant is not required to place bids on licenses in any or all of the license areas selected, but the FCC Auction Bidding System (bidding system) will not accept bids for licenses in license areas ( i.e., counties) that the applicant did not select in its FCC Form 175.

38. When two or more short-form applications (FCC Form 175) are submitted selecting the same licenses in Auction 108, mutual exclusivity exists for auction purposes as to those licenses, and the licenses must be awarded by competitive bidding procedures. Once mutual exclusivity exists for auction purposes, even if only one applicant is qualified to bid for a particular license, that applicant is required to submit a bid in order to obtain the license. An applicant may select licenses on its Form 175 by using the select all licenses checkbox or by selecting any particular county. Selection of a county will allow the applicant to bid on any available license within that county, provided that it otherwise becomes a qualified bidder and has sufficient bidding eligibility.

39. An applicant must provide in its FCC Form 175 a brief description of, and identify each party to, any partnerships, joint ventures, consortia or agreements, arrangements, or understandings of any kind relating to the licenses being auctioned, including any agreements that address or communicate directly or indirectly bids (including specific prices), bidding strategies (including the specific licenses on which to bid or not to bid), or the post-auction market structure, to which the applicant, or any party that controls or is controlled by the applicant, is a party. In connection with the agreement disclosure requirement, the applicant must certify under penalty of perjury in its FCC Form 175 that it has described, and identified each party to any such agreements, arrangements, or understandings to which it (or any party that controls it or that it controls) is a party. Moreover, since each applicant must maintain the accuracy and completeness of the information in its pending auction application, if it enters into any agreement relating to the licenses being auctioned after the FCC Form 175 filing deadline, then that agreement is subject to these same disclosure requirements.

40. For purposes of making the required agreement disclosures on the FCC Form 175, if parties agree in principle on all material terms prior to the application filing deadline, then each party to the agreement that is submitting an auction application must provide a brief description of, and identify the other party or parties to, the agreement on its respective FCC Form 175, even if the agreement has not been reduced to writing. Parties that have not agreed in principle by the FCC Form 175 filing deadline should not describe, or include the names of parties to, the discussions on their applications.

41. The Commission's rules generally prohibit joint bidding and other arrangements involving auction applicants (including any party that controls or is controlled by such applicants). For purposes of the prohibition, a joint bidding arrangement includes any arrangement relating to the licenses being auctioned that addresses or communicates, directly or indirectly, bidding in the auction, bidding strategies, including arrangements regarding price or the specific licenses on which to bid, and any such arrangement relating to the post-auction market structure.

42. This prohibition applies to joint bidding arrangements involving two or more nationwide providers, as well as joint bidding arrangements involving a nationwide provider and one or more non-nationwide providers, where at least one party to the arrangement is an applicant for the auction. In the Updating Part 1 Report and Order, 80 FR 56763, Sep. 18, 2015, the Commission stated that entities that qualify as nationwide providers generally would be identified in procedures public notices released before each auction. To that end, and consistent with the Commission's decisions in recent spectrum auctions and in the 2020 Communications Marketplace Report, the Commission considers AT&T, T-Mobile, and Verizon to be nationwide providers for the purpose of implementing the competitive bidding rules in Auction 108.

43. Under certain circumstances, a non-nationwide provider may enter into an agreement to form a consortium or a joint venture (as applicable) that results in a single party applying to participate in an auction. Specifically, a designated entity can participate in one consortium or joint venture in an auction, and non-nationwide providers that are not designated entities may participate in an auction through only one joint venture. A non-nationwide provider may enter into only one agreement to form a consortium or joint venture (as applicable), and such consortium or joint venture shall be the exclusive bidding vehicle for its members in the auction. The general prohibition on joint bidding arrangements excludes certain agreements, including those that are solely operational in nature, as defined in 47 CFR 1.2105(a)(2)(ix)(A)-(C).

44. To implement the prohibition on joint bidding arrangements, the Commission's rules require each applicant to certify in its short-form application that it has disclosed any arrangements or understandings of any kind relating to the licenses being auctioned to which it (or any party that controls or is controlled by it) is a party. The applicant must also certify that it (or any party that controls or is controlled by it) has not entered and will not enter into any arrangement or understanding of any kind relating directly or indirectly to bidding at auction with, among others, any other applicant or a nationwide provider.

45. Although the Commission's rules do not prohibit auction applicants from communicating about matters that are within the scope of an excepted agreement that has been disclosed in an FCC Form 175, the Commission reminds applicants that certain discussions or exchanges could nonetheless touch upon impermissible subject matters, and that compliance with the Commission's rules will not insulate a party from enforcement of the antitrust laws.

46. Applicants should bear in mind that a winning bidder will be required to disclose, in its post-auction long-form application, the specific terms, conditions, and parties involved in any agreement relating to the licenses being auctioned into which it had entered prior to the time bidding was completed. This applies to any bidding consortium, joint venture, partnership, or other agreement, arrangement, or understanding of any kind entered into relating to the competitive bidding process, including any agreements relating to the licenses being auctioned that address or communicate directly or indirectly bids (including specific prices), bidding strategies (including the specific licenses on which to bid or not to bid), or the post-auction market structure, to which the applicant, or any party that controls or is controlled by the applicant, is a party.

47. Each applicant must comply with the applicable part 1 ownership disclosure requirements and provide information required by 47 CFR 1.2105 and 1.2112, and, where applicable, 47 CFR 1.2110. Specifically, in completing FCC Form 175, an applicant must fully disclose information regarding the real party- or parties-in-interest in the applicant or application and the ownership structure of the applicant, including both direct and indirect ownership interests of 10% or more, as prescribed in 47 CFR 1.2105 and 1.2112 and, where applicable, 47 CFR 1.2110. Each applicant is responsible for ensuring that information submitted in its short-form application is complete and accurate.

48. In certain circumstances, an applicant may have previously filed an FCC Form 602 ownership disclosure information report or filed an auction application for a previous auction in which ownership information was disclosed. If the applicant used the same FCC Registration Number (FRN) the applicant is using to submit its FCC Form 175, the most current ownership information contained in any such filing will automatically be pre-filled into certain ownership sections on the applicant's FCC Form 175, if such information is in an electronic format compatible with FCC Form 175. Each applicant must carefully review any ownership information automatically entered into its FCC Form 175, including any ownership attachments, to confirm that all information supplied on FCC Form 175 is complete and accurate as of the application filing deadline. Any information that needs to be corrected or updated must be changed directly in FCC Form 175.

49. Section 310 of the Communications Act requires the Commission to review foreign investment in radio station licenses and imposes specific restrictions on who may hold certain types of radio licenses. Section 310 applies to applications for initial radio licenses, applications for assignments and transfers of control of radio licenses, and spectrum leasing arrangements under the Commission's secondary market rules. In completing FCC Form 175, an applicant is required to disclose information concerning foreign ownership of the applicant. If an applicant has foreign ownership interests in excess of the applicable limit or benchmark set forth in 47 U.S.C. 310(b), then it may seek to participate in Auction 108 as long as it has filed a petition for declaratory ruling with the Commission prior to the FCC Form 175 filing deadline. An applicant must certify in its FCC Form 175 that, as of the deadline for filing its application to participate in the auction, the applicant either is in compliance with the foreign ownership provisions of 47 U.S.C. 310 or has filed a petition for declaratory ruling requesting Commission approval to exceed the applicable foreign ownership limit or benchmark in 47 U.S.C. 310(b) that is pending before, or has been granted by, the Commission.

50. Consistent with past practice in many prior spectrum license auctions, the Commission adopts the proposal to limit information available in Auction 108 in order to prevent the identification of bidders placing particular bids until after the bidding has closed. Specifically, the Commission will not make public until after bidding has closed: (1) The license areas that an applicant selects for bidding in its short-form application, (2) the amount of any upfront payment made by or on behalf of an applicant for Auction 108, (3) any applicant's bidding eligibility, and (4) any other bidding-related information that might reveal the identity of the bidder placing a bid.

51. Once bidding begins in Auction 108, under the limited information procedures (sometimes also referred to as anonymous bidding), information to be made public after each round of bidding will include, for each license, the aggregate demand, the posted price of the completed round, and the clock price for the next round. The identities of bidders placing specific bids will not be disclosed until after the close of bidding.

52. Throughout the auction, bidders will have access to additional information related to their own bidding and bidding eligibility through the Commission's bidding system. Specifically, after the bids of a round have been processed, the bidding system will inform each bidder of its processed demand, whether the bidder has a proxy instruction in place for each license, and its eligibility for the next round.

53. After the close of bidding, bidders' license area selections, upfront payment amounts, bidding eligibility, bids, and other bidding-related actions will be made publicly available. Bids placed according to a bidder's proxy instructions will be available, but a bidder's proxy instructions will not be disclosed.

54. The Commission warns applicants that direct or indirect communication to other applicants or the public disclosure of non-public information ( e.g., reductions in eligibility, identities of bidders) could violate the Commission's rule prohibiting certain communications. Therefore, to the extent an applicant believes that such a disclosure is required by law or regulation, including regulations issued by the U.S. Securities and Exchange Commission (SEC), the Commission strongly urges that the applicant consult with Commission staff in the Auctions Division before making such disclosure.

55. The rules prohibiting certain communications set forth in 47 CFR1.2105(c) apply to each applicant in Auction 108. Section 1.2105(c)(1) provides that, subject to specified exceptions, after the short-form application filing deadline, all applicants are prohibited from cooperating or collaborating with respect to, communicating with or disclosing, to each other or any nationwide provider of communications services that is not an applicant, or, if the applicant is a nationwide provider, any non-nationwide provider that is not an applicant, in any manner the substance of their own, or each other's, or any other applicants' bids or bidding strategies (including post-auction market structure), or discussing or negotiating settlement agreements, until after the down payment deadline.

56. An applicant for purposes of this rule includes all controlling interests in the entity submitting the FCC Form 175 auction application, as well as all holders of interests amounting to 10% or more of the entity (including institutional investors and asset management companies), and all officers and directors of that entity. Under 47 CFR 1.2105(c), a party that submits an application becomes an applicant under the rule, which goes into effect at the application deadline, and that status does not change based on later developments.

57. As proposed in the Auction 108 Comment Public Notice, the Commission considers AT&T, T-Mobile, and Verizon to be nationwide providers for the purposes of the prohibited communications rule for Auction 108.

58. The prohibition in 47 CFR 1.2105(c) on certain communications begins at an auction's short-form application filing deadline and ends at the auction's down payment deadline after the auction closes, which will be announced in a future public notice.

59. Section 1.2105(c) prohibits certain communications between applicants for an auction, regardless of whether the applicants seek permits or licenses in the same geographic area or market. The rule also applies to communications by applicants with non-applicant nationwide providers of communications services and by nationwide applicants with non-applicant, non-nationwide providers. The rule further prohibits joint bidding arrangements, including arrangements relating to the permits or licenses being auctioned that address or communicate, directly or indirectly, bidding at the auction, bidding strategies, including arrangements regarding price or the specific permits or licenses on which to bid, and any such arrangements relating to the post-auction market structure. The rule allows for limited exceptions for communications within the scope of any arrangement consistent with the exclusion from the Commission's rule prohibiting joint bidding, provided such arrangement is disclosed on the applicant's auction application. Applicants may communicate pursuant to any pre-existing agreements, arrangements, or understandings relating to the licenses being auctioned that are solely operational or that provide for the transfer or assignment of licenses, provided that such agreements, arrangements, or understandings are disclosed on their applications and do not both relate to the licenses at auction and address or communicate bids (including amounts), bidding strategies, or the particular permits or licenses on which to bid or the post-auction market structure.

60. In addition to express statements of bids and bidding strategies, the prohibition against communicating in any manner includes public disclosures as well as private communications and indirect or implicit communications. Consequently, an applicant must take care to determine whether its auction-related communications may reach another applicant.

61. Parties subject to 47 CFR 1.2105(c) should take special care in circumstances where their officers, directors, and employees may receive information directly or indirectly relating to any applicant's bids or bidding strategies. Such information may be deemed to have been received by the applicant under certain circumstances. For example, Commission staff have found that, where an individual serves as an officer and director for two or more applicants, the bids and bidding strategies of one applicant are presumed to be conveyed to the other applicant through the shared officer, which creates an apparent violation of the rule.

62. Subject to the limited exceptions for communications within the scope of any arrangement consistent with the exclusion from the Commission's rule prohibiting joint bidding, 47 CFR 1.2105(c)(1) prohibits applicants from communicating with specified other parties only with respect to their own, or each other's, or any other applicant's bids or bidding strategies. The Prohibited Communications Guidance Public Notice, 80 FR 63215, October 19, 2015, released in advance of the broadcast incentive auction (Auction 1000) reviewed the scope of the prohibition generally, as well as in that specific auction's forward auction of spectrum licenses and reverse auction to relinquish broadcast licenses. As the Commission explained therein, a communication conveying bids or bidding strategies (including post-auction market structure) must also relate to the licenses being auctioned in order to be covered by the prohibition. Thus, the prohibition is limited in scope and does not apply to all communications between or among the specified parties. The Commission consistently has made clear that application of the rule prohibiting communications has never required total suspension of essential ongoing business. Entities subject to the prohibition may negotiate agreements during the prohibition period, provided that the communications involved do not relate to both: (1) The licenses being auctioned and (2) bids or bidding strategies or post-auction market structure.

63. Accordingly, business discussions and negotiations that do not convey information about the bids or bidding strategies, including the post-auction market structure, of an applicant are not prohibited by the rule. Moreover, not all auction-related information is covered by the prohibition. For example, communicating merely whether a party has or has not applied to participate in Auction 108 will not violate the rule. In contrast, communicating, among other things, how a party will participate, including specific geographic areas selected, specific bid amounts, and/or whether or not the party is placing bids, would convey bids or bidding strategies and would be prohibited.

64. While 47 CFR 1.2105(c) does not prohibit business discussions and negotiations among auction applicants that are unrelated to the auction, each applicant must remain vigilant not to communicate, directly or indirectly, information that affects, or could affect, bids or bidding strategies. Certain discussions might touch upon subject matters that could convey price or geographic information related to bidding strategies. Such subject areas include, but are not limited to, management, sales, local marketing agreements, and other transactional agreements.

65. The Commission cautions applicants that bids or bidding strategies may be communicated outside of situations that involve one party subject to the prohibition communicating privately and directly with another such party. For example, the Commission has warned that prohibited communications concerning bids and bidding strategies may include communications regarding capital calls or requests for additional funds in support of bids or bidding strategies to the extent such communications convey information concerning the bids and bidding strategies directly or indirectly. Moreover, the Commission found a violation of the rule against prohibited communications when an applicant used the Commission's bidding system to disclose its bidding strategy in a manner that explicitly invited other auction participants to cooperate and collaborate in specific markets, and it has placed auction participants on notice that the use of its bidding system to disclose market information to competitors will not be tolerated and will subject bidders to sanctions.

66. Likewise, when completing a short-form application, each applicant should avoid any statements or disclosures that may violate 47 CFR 1.2105(c), particularly in light of the limited information procedures in effect for Auction 108. Specifically, an applicant should avoid including any information in its short-form application that might convey information regarding its license area selections, such as referring to counties or other geographic areas in describing agreements, including any information in application attachments that will be publicly available that may otherwise disclose the applicant's license area selections, or using applicant names that refer to licenses being offered.

67. Applicants also should be mindful that communicating non-public application or bidding information publicly or privately to another applicant may violate 47 CFR 1.2105(c) even though that information subsequently may be made public during later periods of the application or bidding processes.

68. Section 1.2105(c) does not prohibit an applicant from communicating bids or bidding strategies to a third party, such as a consultant or consulting firm, counsel, or lender. An applicant should take appropriate steps, however, to ensure that any third party it employs for advice pertaining to its bids or bidding strategies does not become a conduit for prohibited communications to other specified parties, as that would violate the rule. For example, an applicant might require a third party, such as a lender, to sign a non-disclosure agreement before the applicant communicates any information regarding bids or bidding strategy to the third party. Within third-party firms, separate individual employees, such as attorneys or auction consultants, may advise individual applicants on bids or bidding strategies, as long as such firms implement firewalls and other compliance procedures that prevent such individuals from communicating the bids or bidding strategies of one applicant to other individuals representing separate applicants. Although firewalls and/or other procedures should be used, their existence is not an absolute defense to liability if a violation of the rule has occurred.

69. As the Commission has noted in other spectrum auctions, in the case of an individual, the objective precautionary measure of a firewall is not available. As a result, an individual that is privy to bids or bidding information of more than one applicant presents a greater risk of becoming a conduit for a prohibited communication. The Commission will take the same approach to interpreting the prohibited communications rule in Auction 108. The Commission emphasizes that whether a prohibited communication has taken place in a given case will depend on all the facts pertaining to the case, including who possessed what information, what information was conveyed to whom, and the course of bidding in the auction.

70. The Commission reminds potential applicants that they may discuss the short-form application or bids for specific licenses or license areas with the counsel, consultant, or expert of their choice before the short-form application deadline. Furthermore, the same third-party individual could continue to give advice after the short-form deadline regarding the application, provided that no information pertaining to bids or bidding strategies, including license areas, or counties, selected on the short-form application, is conveyed to that individual.

71. Applicants also should use caution in their dealings with other parties, such as members of the press, financial analysts, or others who might become conduits for the communication of prohibited bidding information. For example, even though communicating that it has applied to participate in the auction will not violate the rule, an applicant's statement to the press that it intends to stop bidding in an auction could give rise to a finding of a 47 CFR 1.2105 violation. Similarly, an applicant's public statement of intent not to place bids during bidding in Auction 108 could also violate the rule.

72. By electronically submitting its FCC Form 175, each applicant for Auction 108 certifies its compliance with 47 CFR 1.2105(c). The mere filing of a certifying statement as part of an application, however, will not outweigh specific evidence that a prohibited communication has occurred, nor will it preclude the initiation of an investigation when warranted. Any applicant found to have violated these communication prohibitions may be subject to sanctions.

73. 47 CFR 1.2105(c)(4) requires that any applicant that makes or receives a communication that appears to violate 47 CFR 1.2105(c) must report such communication in writing to the Commission immediately, and in no case later than five business days after the communication occurs. Each applicant's obligation to report any such communication continues beyond the five-day period after the communication is made, even if the report is not made within the five-day period.

74. A party reporting any information or communication pursuant to 47 CFR 1.65(a), 1.2105(a)(2), or 1.2105(c)(4) must take care to ensure that any report of a prohibited communication does not itself give rise to a violation of 47 CFR 1.2105(c). For example, a party's report of a prohibited communication could violate the rule by communicating prohibited information to other parties specified under the rule through the use of Commission filing procedures that allow such materials to be made available for public inspection.

75. An applicant must file only a single report concerning a prohibited communication and must file that report with the Commission personnel expressly charged with administering the Commission's auctions. This rule is designed to minimize the risk of inadvertent dissemination of information in such reports. Any reports required by 47 CFR 1.2105(c) must be filed consistent with the instructions set forth in the Auction 108 Procedures Public Notice. For Auction 108, such reports must be filed with the Chief of the Auctions Division, Office of Economics and Analytics, by the most expeditious means available. Any such report should be submitted by email to the Auctions Division Chief and sent to auction108@fcc.gov. If you choose instead to submit a report in hard copy, contact Auctions Division staff at auction108@fcc.gov or (202) 418-0660 for guidance.

76. Given the potential competitive sensitivity of public disclosure of information in such a report, a party seeking to report such a prohibited communication should consider submitting its report with a request that the report or portions of the submission be withheld from public inspection by following the procedures specified in 47 CFR 0.459. The Commission encourages such parties to coordinate with the Auctions Division staff about the procedures for submitting such reports.

77. Each applicant that is a winning bidder will be required to provide as part of its long-form application any agreement or arrangement it has entered into and a summary of the specific terms, conditions, and parties involved in any agreement it has entered into. This applies to any bidding consortia, joint venture, partnership, or agreement, understanding, or other arrangement entered into relating to the competitive bidding process, including any agreement relating to the post-auction market structure. Failure to comply with the Commission's rules can result in enforcement action.

78. A summary listing of documents issued by the Commission and OEA/WTB addressing the application of 47 CFR 1.2105(c) is available on the Commission's auction web page at www.fcc.gov/summary-listing-documents-addressing-application-rule-prohibiting-certain-communications.

79. Regardless of compliance with the Commission's rules, applicants remain subject to the antitrust laws, which are designed to prevent anticompetitive behavior in the marketplace. Compliance with the disclosure requirements of 47 CFR 1.2105(c)(4) will not insulate a party from enforcement of the antitrust laws. For instance, a violation of the antitrust laws could arise out of actions taking place well before any party submits a short-form application. The Commission has cited a number of examples of potentially anticompetitive actions that would be prohibited under antitrust laws: for example, actual or potential competitors may not agree to divide territories in order to minimize competition, regardless of whether they split a market in which they both do business, or whether they merely reserve one market for one and another market for the other.

80. To the extent the Commission becomes aware of specific allegations that suggest that violations of the federal antitrust laws may have occurred, they may refer such allegations to the United States Department of Justice for investigation. If an applicant is found to have violated the antitrust laws or the Commission's rules in connection with its participation in the competitive bidding process, then it may be subject to a forfeiture and may be prohibited from participating further in Auction 108 and in future auctions, among other sanctions.

81. A bidding credit represents an amount by which a bidder's overall payment across all of the licenses won will be discounted, subject to the caps discussed below. As set forth in 47 CFR 1.2110, and as described below, the designated entity rules include, but are not limited to: (1) A two-pronged standard for evaluating eligibility for small business benefits, (2) an attribution rule for certain disclosable interest holders of applicants claiming designated entity benefits, (3) updated gross revenue amounts defining eligibility for small business benefits, (4) a bidding credit for eligible rural service providers, and (5) caps on the total amount of designated entity benefits any eligible winning bidder may receive.

82. In Auction 108, designated entity bidding credits will be available to applicants demonstrating eligibility for a small business or a rural service provider bidding credit and subsequently winning license(s). These bidding credits will not be cumulative—an applicant is permitted to claim either a small business bidding credit or a rural service provider bidding credit, but not both. Each applicant must also certify that it is eligible for the claimed bidding credit in its FCC Form 175. In addition to the information provided below, each applicant should review carefully the Commission's decisions regarding the designated entity provisions as well as the part 1 rules.

83. In particular, the Commission reminds applicants applying for designated entity bidding credits that they should take due account of the requirements of the Commission's rules and implementing orders regarding de jure and de facto control of such applicants. These rules include a prohibition, which applies to all applicants (whether they seek bidding credits or not), against changes in ownership of the applicant that would constitute an assignment or transfer of control after the initial filing deadline for FCC Form 175. Applicants should not expect to receive any opportunities to revise their ownership structure after the filing of their short- and long-form applications, including making revisions to their agreements or other arrangements with interest holders, lenders, or others in order to address potential concerns relating to compliance with the designated entity bidding credit requirements. This policy will help to ensure compliance with the Commission's rules applicable to the award of bidding credits prior to the conduct of the auction, which will involve competing bids from those that do and do not seek bidding credits, and thus preserves the integrity of the auction process. The Commission also believes that this will meet the Commission's objectives in awarding licenses through the competitive bidding process.

84. For Auction 108, bidding credits will be available to eligible small businesses and consortia thereof, subject to the caps discussed below. Under the service rules applicable to the 2.5 GHz band licenses to be offered in Auction 108, the level of bidding credit available is determined as follows:

• A bidder that qualifies as a small business— i.e., one with attributed average annual gross revenues that do not exceed $55 million for the preceding five years—is eligible to receive a 15% discount on its overall payment.

• A bidder that qualifies as a very small business— i.e., one with attributed average annual gross revenues that do not exceed $20 million for the preceding five years—is eligible to receive a 25% discount on its overall payment.

85. In adopting this two-tiered approach in the 2.5 GHz Report and Order, the Commission observed that this approach would provide consistency and predictability for small businesses.

86. Small business bidding credits are not cumulative; an eligible applicant may receive either the 15% or the 25% bidding credit on its overall payment, but not both. The Commission's unjust enrichment provisions also apply to a winning bidder that uses a bidding credit and subsequently seeks to assign or transfer control of its license within a certain period to an entity not qualifying for at least the same level of small business bidding credit.

87. Each applicant claiming a small business bidding credit must disclose the gross revenues for the preceding five years for each of the following: (1) The applicant, (2) its affiliates, (3) its controlling interests, and (4) the affiliates of its controlling interests. The applicant must also submit an attachment that lists all parties with which the applicant has entered into any spectrum use agreements or arrangements for any licenses that may be won by the applicant in Auction 108. In addition, to the extent that an applicant has an agreement with any disclosable interest holder for the use of more than 25% of the spectrum capacity of any license that may be won in Auction 108, the applicant must disclose the identity and the attributable gross revenues of any such disclosable interest holder. This attribution rule will be applied on a license-by-license basis. As a result, an applicant may be eligible for a bidding credit on some, but not all, of the licenses for which it is bidding in Auction 108. If an applicant is applying as a consortium of small businesses, then the disclosures described in this paragraph must be provided for each consortium member.

88. An eligible applicant may request a 15% discount on its overall payment using a rural service provider bidding credit, subject to the cap discussed below. To be eligible for a rural service provider bidding credit, an applicant must: (1) Be a service provider that is in the business of providing commercial communications services and, together with its controlling interests, affiliates, and the affiliates of its controlling interests, has fewer than 250,000 combined wireless, wireline, broadband, and cable subscribers; and (2) serve predominantly rural areas. Rural areas are defined as counties with a population density of 100 or fewer persons per square mile. An applicant seeking a rural service provider bidding credit must provide the number of subscribers served as of the short-form application deadline. An applicant may count any subscriber as a single subscriber even if that subscriber receives more than one service.

89. Each applicant seeking a rural service provider bidding credit must disclose the number of its subscribers, along with the number of subscribers of its affiliates, controlling interests, and the affiliates of its controlling interests. The applicant must also submit an attachment that lists all parties with which the applicant has entered into any spectrum use agreements or arrangements for any licenses that may be won by the applicant in Auction 108. In addition, to the extent that an applicant has an agreement with any disclosable interest holder for the use of more than 25% of the spectrum capacity of any license that may be won in Auction 108, the identity and the attributable subscribers of any such disclosable interest holder must be disclosed. Like applicants seeking eligibility for small business bidding credits, eligible rural service providers may also form a consortium. If an applicant is applying as a consortium of rural service providers, then the disclosures described in this paragraph, including the certification, must be provided for each consortium member.

90. Eligible applicants claiming either a small business or rural service provider bidding credit will be subject to specified caps on the total bidding credit discount that they may receive. The Commission adopts the bidding credit caps for Auction 108 at the amounts proposed for the reasons discussed by the Commission in the Auction 108 Comment Public Notice. Specifically, the Commission adopts a $25 million cap on the total bidding credit discount that may be awarded to an eligible small business, and a $10 million cap on the total bidding credit discount that may be awarded to an eligible rural service provider. Additionally, to create parity among eligible small businesses and rural service providers competing against each other in smaller markets, no winning designated entity bidder may receive more than $10 million in bidding credit discounts in total for licenses won in counties located within any partial economic area (PEA) with a population of 500,000 or less.

91. Pursuant to 47 CFR 1.2110, an applicant's eligibility for designated entity benefits is determined by attributing the gross revenues (for those seeking small business benefits) or subscribers (for those seeking rural service provider benefits) of the applicant, its affiliates, its controlling interests, and the affiliates of its controlling interests. Controlling interests of an applicant include individuals and entities with either de facto or de jure control of the applicant. Typically, ownership of greater than 50% of an entity's voting stock evidences de jure control. De facto control is determined on a case-by-case basis based on the totality of the circumstances. The following are some common indicia of de facto control:

• The entity constitutes or appoints more than 50% of the board of directors or management committee;

• the entity has authority to appoint, promote, demote, and fire senior executives that control the day-to-day activities of the licensee; and

• the entity plays an integral role in management decisions.

92. Additionally, for attribution purposes, officers and directors of an applicant seeking a bidding credit are considered to have a controlling interest in the applicant. Applicants should refer to 47 CFR 1.2110(c)(2) and the FCC Form 175 Instructions to understand how certain interests are calculated in determining control for purposes of attributing gross revenues.

93. Affiliates of an applicant or controlling interest include an individual or entity that: (1) Directly or indirectly controls or has the power to control the applicant, (2) is directly or indirectly controlled by the applicant, (3) is directly or indirectly controlled by a third party that also controls or has the power to control the applicant, or (4) has an identity of interest with the applicant. The Commission's definition of an affiliate of the applicant encompasses both controlling interests of the applicant and affiliates of controlling interests of the applicant. For more information on the application requirements regarding controlling interests and affiliates, applicants should refer to 47 CFR 1.2110(c)(2) and (5) respectively, as well as the FCC Form 175 Instructions.

94. An applicant seeking a small business bidding credit must demonstrate its eligibility for the bidding credit by: (1) Meeting the applicable small business size standard, based on the controlling interest and affiliation rules discussed above; and (2) retaining control, on a license-by-license basis, over the spectrum associated with the licenses for which it seeks small business benefits. For purposes of the first prong of the standard, applicants should note that control and affiliation may arise through, among other things, ownership interests, voting interests, management and other operating agreements, or the terms of any other types of agreements—including spectrum lease agreements—that independently or together create a controlling, or potentially controlling, interest in the applicant's or licensee's business as a whole. In addition, once an applicant demonstrates eligibility as a small business under the first prong, it must also be eligible for benefits on a license-by-license basis under the second prong. As part of making the FCC Form 175 certification that it is qualified as a designated entity under 47 CFR 1.2110, an applicant is certifying that it does not have any spectrum use or other agreements that would confer either de jure or de facto control of any license it seeks to acquire with bidding credits.

95. Applicants should note that, under this standard for evaluating eligibility for small business bidding credits, if an applicant executes a spectrum use agreement that does not comply with the Commission's relevant standard of de facto control, then it will be subject to unjust enrichment obligations for the benefits associated with that particular license, as well as the penalties associated with any violation of 47 U.S.C. 310(d) and related regulations, which require Commission approval of transfers of control. If that spectrum use agreement (either alone or in combination with the designated entity controlling interest and attribution rules described above) goes so far as to confer control of the applicant's overall business, then the gross revenues of the additional interest holders will be attributed to the applicant, which could render the applicant ineligible for all current and future small business benefits on all licenses.

96. Under 47 CFR 1.2110(c)(2)(ii)(J), the gross revenues (or the subscribers, in the case of a rural service provider) of an applicant's disclosable interest holder are attributable to the applicant, on a license-by-license basis, if the disclosable interest holder has an agreement with the applicant to use, in any manner, more than 25% of the spectrum capacity of any license won by the applicant and acquired with a bidding credit during the five-year unjust enrichment period for the applicable license. For purposes of this requirement, a disclosable interest holder of an applicant seeking designated entity benefits is defined as any individual or entity holding a 10% or greater interest of any kind in the applicant, including but not limited to, a 10% or greater interest in any class of stock, warrants, options, or debt securities in the applicant or licensee. Any applicant seeking a bidding credit for licenses won in Auction 108 will be subject to this attribution rule and must make the requisite disclosures.

97. Certain disclosable interest holders may be excluded from this attribution rule. Specifically, an applicant claiming the rural service provider bidding credit may have spectrum license use agreements with a disclosable interest holder, without having to attribute the disclosable interest holder's subscribers, so long as the disclosable interest holder is independently eligible for a rural service provider credit and the disclosable interest holder's spectrum use and any spectrum use agreements are otherwise permissible under the Commission's existing rules. If applicable, the applicant must attach to its FCC Form 175 any additional information as may be required to indicate any license (or license area) that may be subject to this attribution rule or to demonstrate its eligibility for the exception from this attribution rule. Consistent with the Commission's limited information procedures, the Commission intends to withhold from public disclosure all information contained in any such attachments until after the close of Auction 108.

98. Applicants claiming designated entity benefits may be eligible for certain exceptions from the Commission's attribution rules. For example, in calculating an applicant's gross revenues under the controlling interest standard, the Commission will not attribute to the applicant the personal net worth, including personal income, of its officers and directors. However, to the extent that the officers and directors of the applicant are controlling interest holders of other entities, the gross revenues of those entities will be attributed to the applicant. Moreover, if an officer or director operates a separate business, then the gross revenues derived from that business would be attributed to the applicant.

99. The Commission has also exempted from attribution to the applicant the gross revenues of the affiliates of a rural telephone cooperative's officers and directors, if certain conditions specified in 47 CFR 1.2110(b)(4)(iii) are met. An applicant claiming this exemption must provide, in an attachment, an affirmative statement that the applicant, affiliate and/or controlling interest is an eligible rural telephone cooperative within the meaning of 47 CFR 1.2110(b)(4)(iii), and the applicant must supply any additional information as may be required to demonstrate eligibility for the exemption from the attribution rule.

100. An applicant claiming a rural service provider bidding credit may be eligible for an exception from the Commission's attribution rules as an existing rural partnership. To qualify for this exception, an applicant must be a rural partnership providing service as of July 16, 2015, and each member of the rural partnership must individually have fewer than 250,000 combined wireless, wireline, broadband, and cable subscribers. Because each member of the rural partnership must individually qualify for the bidding credit, by definition, a partnership that includes a nationwide provider as a member will not be eligible for the benefit.

101. Finally, a consortium of small businesses or rural service providers may seek an exception from the Commission's attribution rules. Under the Commission's rules, a consortium of small businesses or rural service providers is a conglomerate organization composed of two or more entities, each of which individually satisfies the definition of small business or rural service provider. A consortium must provide additional information for each member demonstrating each member's eligibility for the claimed bidding credit in order to show that the applicant satisfies the eligibility criteria for the bidding credit. The gross revenue or subscriber information of each consortium member will not be aggregated for purposes of determining the consortium's eligibility for the claimed bidding credit. This information must be provided, however, to ensure that each consortium member qualifies for the bidding credit sought by the consortium.

102. A winning bidder that intends to use its license(s) to deploy facilities and provide services to qualifying Tribal lands that have a wireline penetration rate equal to or below 85% is eligible to receive a Tribal lands bidding credit. A tribal lands bidding credit is in addition to, and separate from, any other bidding credit for which a winning bidder may qualify. Unlike other bidding credits that are requested prior to an auction, a winning bidder applies for a Tribal lands bidding credit after the auction when it files its FCC Form 601 post-auction application.

103. Pursuant to the rules governing competitive bidding, each applicant must make certifications regarding whether it is a current or former defaulter or delinquent. A current defaulter or delinquent is not eligible to participate in Auction 108, but a former defaulter or delinquent may participate so long as it is otherwise qualified and makes an upfront payment that is 50% more than would otherwise be necessary. Accordingly, each applicant must certify under penalty of perjury on its FCC Form 175 that it, its affiliates, its controlling interests, and the affiliates of its controlling interests are not in default on any payment for a Commission construction permit or license (including down payments) and that they are not delinquent on any non-tax debt owed to any Federal agency. Additionally, an applicant must certify under penalty of perjury whether it (along with its controlling interests) has ever been in default on any payment for a Commission construction permit or license (including down payments) or has ever been delinquent on any non-tax debt owed to any Federal agency, subject to the exclusions described below. For purposes of making these certifications, the term controlling interest is defined in 47 CFR 1.2105(a)(4)(i).

104. Under the Commission's rule regarding applications by former defaulters, an applicant is considered a former defaulter or a former delinquent when, as of the FCC Form 175 filing deadline, the applicant or any of its controlling interests has defaulted on any Commission construction permit or license or has been delinquent on any non-tax debt owed to any Federal agency, but has since remedied all such defaults and cured all of the outstanding non-tax delinquencies. For purposes of the certification under 47 CFR 1.2105(a)(2)(xii), the applicant may exclude from consideration any cured default on a Commission construction permit or license or cured delinquency on a non-tax debt owed to a Federal agency for which any of the following criteria are met: (1) The notice of the final payment deadline or delinquency was received more than seven years before the FCC Form 175 filing deadline, (2) the default or delinquency amounted to less than $100,000, (3) the default or delinquency was paid within two quarters ( i.e., six months) after receiving the notice of the final payment deadline or delinquency, or (4) the default or delinquency was the subject of a legal or arbitration proceeding and was cured upon resolution of the proceeding. With respect to the first exclusion, notice to a debtor may include notice of a final payment deadline or notice of delinquency and may be express or implied depending on the origin of any Federal non-tax debt giving rise to a default or delinquency. Additionally, for the third exclusion, the date of receipt of the notice of a final default deadline or delinquency by the intended party or debtor will be used for purposes of verifying receipt of notice.

105. In addition to the Auction 108 Procedures Public Notice, applicants are encouraged to review previous guidance on default and delinquency disclosure requirements in the context of the auction short-form application process. Parties are also encouraged to consult with Auctions Division staff if they have any questions about default and delinquency disclosure requirements.

106. The Commission considers outstanding debts owed to the United States Government, in any amount, to be a serious matter. The Commission has previously adopted rules, including a provision referred to as the red light rule, that implement its obligations under the Debt Collection Improvement Act of 1996, which governs the collection of debts owed to the United States. Under the red light rule, applications and other requests for benefits filed by parties that have outstanding debts owed to the Commission will not be processed. When adopting that rule, the Commission explicitly declared, however, that its competitive bidding rules are not affected by the red light rule. As a consequence, the Commission's adoption of the red light rule does not alter the applicability of any of its competitive bidding rules, including the provisions and certifications of 47 CFR 1.2105 and 1.2106, with regard to current and former defaults or delinquencies.

107. The Commission reminds each applicant, however, that any indication in the Commission's Red Light Display System, which provides information regarding debts currently owed to the Commission, may not be determinative of an auction applicant's ability to comply with the default and delinquency disclosure requirements of 47 CFR 1.2105. Thus, while the red light rule ultimately may prevent the processing of long-form applications by auction winners, an auction applicant's lack of current red light status is not necessarily determinative of its eligibility to participate in an auction (or whether it may be subject to an increased upfront payment obligation). Moreover, a prospective applicant in Auction 108 should note that any long-form applications filed after the close of bidding will be reviewed for compliance with the Commission's red light rule, and such review may result in the dismissal of a winning bidder's long-form application. The Commission encourages each applicant to carefully review all records and other available Federal agency databases and information sources to determine whether the applicant, or any of its affiliates, or any of its controlling interests, or any of the affiliates of its controlling interests, owes or was ever delinquent in the payment of non-tax debt owed to any Federal agency.

108. Applicants owned by members of minority groups and/or women, as defined in 47 CFR 1.2110(c)(3), and rural telephone companies, as defined in 47 CFR 1.2110(c)(4), may identify themselves regarding this status in filling out their FCC Form 175 applications. This applicant status information is collected for statistical purposes only and assists the Commission in monitoring the participation of various groups in its auctions.

109. After the initial FCC Form 175 filing deadline, an Auction 108 applicant will be permitted to make only minor amendments to its application consistent with the Commission's rules. Examples of minor changes include the deletion or addition of authorized bidders (to a maximum of three) and the revision of addresses and telephone numbers of the applicant, its responsible party, and its contact person. Major amendments to an FCC Form 175 ( e.g., change of license area selection, certain changes in ownership that would constitute an assignment or transfer of control of the applicant, change in the required certifications, change in applicant's legal classification that results in a change in control, or change in claimed eligibility for a higher percentage of bidding credit) will not be permitted after the initial FCC Form 175 filing deadline. If an amendment reporting changes is a major amendment, as described in 47 CFR 1.2105(b)(2), the major amendment will not be accepted and may result in the dismissal of the application.

110. Pursuant to 47 CFR 1.65, each applicant has a continuing obligation to maintain the accuracy and completeness of information furnished in a pending application, including a pending application to participate in Auction 108. Consistent with the requirements for prior spectrum auctions, an applicant for Auction 108 must furnish additional or corrected information to the Commission within five business days after a significant occurrence, or amend its FCC Form 175 no more than five business days after the applicant becomes aware of the need for the amendment. An applicant is obligated to amend its pending application even if a reported change may result in the dismissal of the application because it is subsequently determined to be a major modification.

111. As noted above, a party seeking to participate in Auction 108 must file an FCC Form 175 electronically via the FCC's Auction Application System. During the initial filing window, an applicant will be able to make any necessary modifications to its FCC Form 175 in the Auction Application System. An applicant that has certified and submitted its FCC Form 175 before the close of the initial filing window may continue to make modifications as often as necessary until the close of that window; however, the applicant must re-certify and re-submit its FCC Form 175 before the close of the initial filing window to confirm and effect its latest application changes. After each submission, a confirmation page will be displayed stating the submission time and submission date.

112. An applicant will also be allowed to modify its FCC Form 175 in the Auction Application System, except for certain fields, during the resubmission filing window and after the release of the public notice announcing the qualified bidders for an auction. During these times, if an applicant needs to make permissible minor changes to its FCC Form 175 or must make changes in order to maintain the accuracy and completeness of its application pursuant to 47 CFR 1.65 and 1.2105(b)(4), then it must make the change(s) in the Auction Application System and re-certify and re-submit its application to confirm and effect the change(s).

113. An applicant's ability to modify its FCC Form 175 in the Auction Application System will be limited between the closing of the initial filing window and the opening of the application resubmission filing window, and between the closing of the resubmission filing window and the release of the public notice announcing the qualified bidders for an auction. During these periods, an applicant will be able to view its submitted application, but will be permitted to modify only the applicant's address, responsible party address, and contact information ( e.g., name, address, telephone number) in the Auction Application System. An applicant will not be able to modify any other pages of the FCC Form 175 in the Auction Application System during these periods. If, during these periods, an applicant needs to make other permissible minor changes to its FCC Form 175, or changes to maintain the accuracy and completeness of its application pursuant to 47 CFR 1.65 and 1.2105(b)(4), then the applicant must submit a letter briefly summarizing the changes to its FCC Form 175 via email to auction108@fcc.gov. The email summarizing the changes must include a subject line referring to Auction 108 and the name of the applicant, for example, Re: Changes to Auction 108 Auction Application of XYZ Corp. Any attachments to the email must be formatted as Adobe® Acrobat® (PDF) or Microsoft® Word documents. An applicant that submits its changes in this manner must subsequently modify, certify, and submit its FCC Form 175 application(s) electronically in the Auction Application System once it is again open and available to applicants.

114. Applicants should also note that even at times when the Auction Application System is open and available to applicants, the system will not allow an applicant to make certain other permissible changes itself ( e.g., correcting a misstatement of the applicant's legal classification). If an applicant needs to make a permissible minor change of this nature, then it must submit a written request by email to the Auctions Division Chief, via auction108@fcc.gov requesting that the Commission manually make the change on the applicant's behalf. Once Commission staff has informed the applicant that the change has been made in the Auction Application System, the applicant must then re-certify and re-submit its FCC Form 175 in the Auction Application System to confirm and effect the change(s).

115. As with filing the FCC Form 175, any amendment(s) to the application and related statements of fact must be certified by an authorized representative of the applicant with authority to bind the applicant. Applicants should note that submission of any such amendment or related statement of fact constitutes a representation by the person certifying that he or she is an authorized representative with such authority and that the contents of the amendment or statement of fact are true and correct.

116. Applicants must not submit application-specific material through the Commission's Electronic Comment Filing System. Further, as discussed above, parties submitting information related to their applications should use caution to ensure that their submissions do not contain confidential information or communicate information that would violate 47 CFR 1.2105(c) or the limited information procedures adopted for Auction 108. An applicant seeking to submit, outside of the Auction Application System, information that might reflect non-public information, such as an applicant's county selection(s), upfront payment amount, or bidding eligibility, should consider including in its email a request that the filing or portions of the filing be withheld from public inspection until the end of the prohibition on certain communications pursuant to 47 CFR 1.2105(c).

117. Questions about FCC Form 175 amendments should be directed to the Auctions Division at (202) 418-0660.

118. The Commission reminds each potential bidder that it is solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the value of the licenses that it is seeking in Auction 108 and that it is required to certify, under penalty of perjury, that it has read the Auction 108 Procedures Public Notice and has familiarized itself with the auction procedures and the service rules for the 2.5 GHz band. The Commission makes no representations or warranties about the use of this spectrum or these licenses for particular services. Each applicant should be aware that a Commission auction represents an opportunity to become a Commission licensee, subject to certain conditions and regulations. This includes the established authority of the Commission to alter the terms of existing licenses by rulemaking, which is equally applicable to licenses awarded by auction. A Commission auction does not constitute an endorsement by the Commission of any particular service, technology, or product, nor does a Commission license constitute a guarantee of business success.

119. An applicant should perform its due diligence research and analysis before proceeding, as it would with any new business venture. In particular, the Commission encourages each potential bidder to perform technical analyses and/or refresh its previous analyses to assure itself that, should it become a winning bidder for any Auction 108 license, it will be able to build and operate facilities that will fully comply with all applicable technical and legal requirements. The Commission urges each applicant to inspect any prospective sites for communications facilities located in, or near, the geographic area for which it plans to bid, confirm the availability of such sites, and to familiarize itself with the Commission's rules regarding the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and any other environmental statutes that may apply.

120. As noted above, applicants must carefully consider potential encumbrances on existing licenses. The Commission notes in particular that there will be a substantial number of licenses in inventory where the amount of unassigned area or unassigned spectrum is very small. For example, there could be licenses in Channel Block 2 where as little as .333 megahertz of spectrum is unassigned. There are also a substantial number of licenses where the area with unassigned spectrum is smaller than one square mile. Each applicant should carefully research the existence of incumbent licenses and the technical and economic implications for commercial use of the 2.5 GHz band.

121. The Commission also encourages each applicant in Auction 108 to continue to conduct its own research throughout the auction in order to determine the existence of pending or future administrative or judicial proceedings that might affect its decision on continued participation in the auction. Each applicant is responsible for assessing the likelihood of the various possible outcomes and for considering the potential impact on licenses available in an auction. The due diligence considerations mentioned in the Auction 108 Procedures Public Notice do not constitute an exhaustive list of steps that should be undertaken prior to participating in Auction 108. As always, the burden is on the potential bidder to determine how much research to undertake, depending upon the specific facts and circumstances related to its interests. For example, applicants should pay particular attention to the results applications filed in the Rural Tribal Priority Window, which will determine the final inventory of licenses available for bidding in Auction 108. The Commission emphasizes again that licenses granted through applications received during the Rural Tribal Priority Window have incumbent status vis-à-vis licenses awarded in Auction 108. In other words, any winning bidder awarded a license in Auction 108 will not be allowed to operate within the license area of a successful Rural Tribal Priority Window applicant, even if that application remains pending today or at the time of issuance of the overlay license. In addition, the Commission reminds applicants that the tools made available to assess the available licenses in Auction 108, including the mapping tool described above, may not represent official licensing information and all information should be confirmed in ULS for any specific license or area.

122. Applicants are solely responsible for identifying associated risks and for investigating and evaluating the degree to which such matters may affect their ability to bid on, otherwise acquire, or make use of the licenses available in Auction 108. Each potential bidder is responsible for undertaking research to ensure that any licenses won in the auction will be suitable for its business plans and needs. Each potential bidder must undertake its own assessment of the relevance and importance of information gathered as part of its due diligence efforts.

123. The Commission makes no representations or guarantees regarding the accuracy or completeness of information in its databases or any third-party databases, including, for example, court docketing systems. To the extent the Commission's databases may not include all information deemed necessary or desirable by an applicant, it must obtain or verify such information from independent sources or assume the risk of any incompleteness or inaccuracy in said databases. Furthermore, the Commission makes no representations or guarantees regarding the accuracy or completeness of information that has been provided by incumbent licensees and incorporated into its databases.

124. Potential applicants in Auction 108 should carefully review the new rules applicable to the 2.5 GHz band as well as the results of applications filed in the Rural Tribal Priority Window, which will determine the final license inventory for Auction 108, when developing business plans, assessing market conditions, and evaluating the availability of equipment for 2.5 GHz operations. Each applicant should closely follow releases from the Commission concerning these issues and consider carefully the technical and economic implications for commercial use of the 2.5 GHz band.

125. Potential bidders seeking licenses for geographic areas adjacent to the Canadian and Mexican borders should be aware that the use of the 2.5 GHz frequencies they acquire in Auction 108 are subject to current and future agreements with the governments of Canada and Mexico.

126. The Commission routinely works with the United States Department of State and Canadian and Mexican government officials to ensure the efficient use of the spectrum as well as interference-free operations in the border areas near Canada and Mexico. Until such time as any adjusted agreements, as needed, between the United States, Mexico, and/or Canada can be agreed to, operations in the 2.5 GHz band must not cause harmful interference across the border, consistent with the terms of the agreements currently in force.

127. Licensees must comply with the Commission's rules for environmental review under the NEPA, the NHPA, and any other environmental statutes that may apply. Licensees and other applicants that propose to build certain types of communications facilities for licensed service must follow Commission procedures implementing obligations under NEPA and NHPA prior to constructing the facilities. Under NEPA, a licensee or applicant must assess if certain environmentally sensitive conditions specified in the Commission's rules are relevant to the proposed facilities, and prepare an environmental assessment when applicable. If an environmental assessment is required, then facilities may not be constructed until environmental processing is completed. Under NHPA, a licensee or applicant must follow the procedures in 47 CFR 1.1320, the Nationwide Programmatic Agreement for Collocation of Wireless Antennas and the Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process. Compliance with section 106 of the NHPA requires Tribal consultation, and if construction of the communications facilities would have adverse effects on historic or Tribally significant properties, an environmental assessment must be prepared.

128. The Commission reminds bidders of the Commission's mobile spectrum holdings policies applicable to the 2.5 GHz band. Specifically, the Commission did not impose a pre-auction bright-line limit on acquisitions of the 2.5 GHz band. The Commission determined that “EBS white space spectrum should be considered available for purposes of the spectrum screen.” In addition, the Commission eliminated the EBS white space discounts and ended the 5% exclusion of spectrum from the screen. The Commission also concluded that it would perform case-by-case review of secondary market transactions to assess the effect of educational use restrictions in existing spectrum leases in particular local markets.

129. Before the opening of the short-form filing window for Auction 108, detailed educational information will be provided in various formats to would-be participants on the Auction 108 web page. Specifically, the Commission directs OEA to provide various materials on the pre-bidding processes in advance of the opening of the short-form application window, beginning with the release of step-by-step instructions for completing the FCC Form 175, which OEA will make available in the Education section of the Auction 108 website at www.fcc.gov/auction/108. In addition, OEA will provide an online application procedures tutorial for the auction, covering information on pre-bidding preparation, completing short-form applications, and the application review process.

130. In advance of the start of the mock auction, OEA will provide educational materials on the bidding procedures for Auction 108, including a user guide for the bidding system, bidding system file formats, and an online bidding procedures tutorial. These materials will provide detailed information on bidding features specific to the ascending clock auction format, including intra-round bidding and proxy bids. The Commission recognizes the importance of these materials to applicants' and bidders' comprehension of the bidding procedures adopted in the Auction 108 Procedures Public Notice. Accordingly, the educational materials shall be released as soon as reasonably possible to provide potential applicants and bidders with time to understand them and ask questions before bidding begins.

131. The Commission believes that parties interested in participating in Auction 108 will find the interactive, online tutorials an efficient and effective way to further their understanding of the application and bidding processes. The online tutorials will allow viewers to navigate the presentation outline, review written notes, and listen to audio of the notes. Additional features of this web-based tool include links to auction-specific Commission releases, email links for contacting Commission staff, and screen shots of the online application and bidding systems. The online tutorials will be accessible in the Education section of the Auction 108 website at www.fcc.gov/auction/108. Once posted, the tutorials will remain continuously accessible.

132. In order to be eligible to bid in Auction 108, an applicant must first follow the procedures to submit a short-form application (FCC Form 175) electronically via the Auction Application System, following the instructions set forth in the FCC Form 175 Instructions. The short-form application will become available with the opening of the initial filing window and must be submitted prior to 6 p.m. ET on May 10, 2022. Late applications will not be accepted. No application fee is required for short-form applications.

133. Applications may be filed at any time beginning at noon ET on April 27, 2022, until the filing window closes at 6 p.m. ET on May 10, 2022. Applicants are strongly encouraged to file early and are responsible for allowing adequate time for filing their applications. There are no limits or restrictions on the number of times an application can be updated or amended until the initial filing deadline on May 10, 2022.

134. An applicant must always click on the CERTIFY & SUBMIT button on the Certify & Submit screen to successfully submit its FCC Form 175 and any modifications; otherwise the application or changes to the application will not be received or reviewed by Commission staff. Additional information about accessing, completing, and viewing the FCC Form 175 is provided in the FCC Form 175 Instructions. Applicants requiring technical assistance should contact FCC Auctions Technical Support using the contact information provided in Section VI.D. (Contact Information), below. In order to provide better service to the public, all calls to Technical Support are recorded.

135. After the deadline for filing auction applications, the Commission will process all timely submitted applications to determine whether each applicant has complied with the application requirements and provided all information concerning its qualifications for bidding. OEA will issue a public notice with applicants' initial application status, identifying: (1) Those that are complete; and (2) those that are incomplete or deficient because of defects that may be corrected. The public notice will include the deadline for resubmitting corrected applications and an electronic copy will be sent by email to the contact address listed in the FCC Form 175 for each applicant. In addition, each applicant with an incomplete application will be sent information on the nature of the deficiencies in its application, along with the name and contact information of a Commission staff member who can answer questions specific to the application.

136. After the initial application filing deadline on May 10 2022, applicants can make only minor modifications to their applications. Major modifications ( e.g., change of license area selection, change in ownership that would constitute an assignment or transfer of control of the applicant, change in the required certifications, change in applicant's legal classification that results in a change in control, or change in claimed eligibility for a higher percentage of bidding credit) will not be permitted. After the deadline for resubmitting corrected applications, an applicant will have no further opportunity to cure any deficiencies in its application or provide any additional information that may affect Commission staff's ultimate determination of whether and to what extent the applicant is qualified to participate in Auction 108.

137. Commission staff will communicate only with an applicant's contact person or certifying official, as designated on the applicant's FCC Form 175, unless the applicant's certifying official or contact person notifies Commission staff in writing that another representative is authorized to speak on the applicant's behalf. Authorizations may be sent by email to auction108@fcc.gov.

138. After Commission staff reviews resubmitted applications and upfront payments, OEA will release a public notice identifying applicants that have become qualified bidders for the auction. A Qualified Bidders Public Notice will be issued before bidding in the auction begins. Qualified bidders are those applicants with submitted FCC Form 175 applications that are deemed timely filed and complete and that have made a sufficient upfront payment.

139. In order to be eligible to bid in Auction 108, a sufficient upfront payment and a complete and accurate FCC Remittance Advice Form (FCC Form 159, Revised 2/03) must be submitted before 6 p.m. ET on June 23, 2022. After completing its short-form application, an applicant will have access to an electronic pre-filled version of the FCC Form 159. An accurate and complete FCC Form 159 must accompany each payment. Proper completion of this form is critical to ensuring correct crediting of upfront payments. Payers using the pre-filled FCC Form 159 are responsible for ensuring that all the information on the form, including payment amounts, is accurate. Instructions for completing FCC Form 159 for Auction 108 are provided below.

140. Upfront payments for Auction 108 must be wired to, and will be deposited in, the U.S. Treasury.

141. Wire transfer payments for Auction 108 must be received before 6 p.m. ET on June 23, 2022. No other payment method is acceptable. To avoid untimely payments, applicants should discuss arrangements (including bank closing schedules and other specific bank wire transfer requirements, such as an in-person written request before a specified time of day) with their bankers several days before they plan to make the wire transfer, and must allow sufficient time for the transfer to be initiated and completed before the deadline. The following information will be needed:

ABA Routing Number: 021030004.

Receiving Bank: TREAS NYC, 33 Liberty Street, New York, NY 10045.

Beneficiary: FCC, 45 L Street NE, 3rd Floor, Washington, DC 20554.

Account Number: 827000001002.

Originating Bank Information (OBI Field): (Skip one space between each information item).

“AUCTIONPAY”

Applicant FCC Registration Number (FRN): (use the same FRN as used on the applicant's FCC Form 159, block 21).

Payment Type Code: (same as FCC Form 159, block 24A: “U108”).

Note: The beneficiary account number (BNF Account Number) is specific to the upfront payments for Auction 108. Do not use a BNF Account Number from a previous auction.

142. At least one hour before placing the order for the wire transfer (but on the same business day), applicants must print and fax a completed FCC Form 159 (Revised 2/03) to the FCC at (202) 418-2843. Alternatively, the completed form can be scanned and sent as an attachment to an email to RROGWireFaxes@fcc.gov. On the fax cover sheet or in the email subject header, write “Wire Transfer—Auction Payment for Auction 108”. To meet the upfront payment deadline, an applicant's payment must be credited to the Commission's account for Auction 108 before the deadline.

143. Each applicant is responsible for ensuring timely submission of its upfront payment and for timely filing of an accurate and complete FCC Form 159. An applicant should coordinate with its financial institution well ahead of the due date regarding its wire transfer and allow sufficient time for the transfer to be initiated and completed prior to the deadline. The Commission repeatedly has cautioned auction participants about the importance of planning ahead to prepare for unforeseen last-minute difficulties in making payments by wire transfer. Each applicant also is responsible for obtaining confirmation from its financial institution that its wire transfer to the U.S. Treasury was successful and from Commission staff that its upfront payment was timely received and that it was deposited into the proper account. As a regulatory requirement, the U.S. Treasury screens all payments from all financial institutions before deposits are made available to specified accounts. If wires are suspended, the U.S. Treasury may direct questions regarding any transfer to the financial institution initiating the wire. Each applicant must take care to assure that any questions directed to its financial institution(s) are addressed promptly. To receive confirmation from Commission staff, contact Scott Radcliffe of the Office of Managing Director's Revenue & Receivables Operations Group/Auctions at (202) 418-7518 or Theresa Meeks at (202) 418-2945.

144. Please note the following information regarding upfront payments:

• All payments must be made in U.S. dollars.

• All payments must be made by wire transfer.

• Upfront payments for Auction 108 go to an account number different from the accounts used in previous FCC auctions.

145. Failure to deliver a sufficient upfront payment as instructed in the Auction 108 Procedures Public Notice by the upfront payment deadline will result in dismissal of the short-form application and disqualification from participation in the auction.

146. The following information supplements the standard instructions for FCC Form 159 (Revised 2/03) and is provided to help ensure correct completion of FCC Form 159 for upfront payments for Auction 108. Applicants need to complete FCC Form 159 carefully, because:

• Mistakes may affect bidding eligibility; and

• Lack of consistency between information provided in FCC Form 159 (Revised 2/03), FCC Form 175, long-form application (FCC Form 601), and correspondence about an application may cause processing delays.

147. Therefore, appropriate cross-references between the FCC Form 159 Remittance Advice and the short-form application (FCC Form 175) are described below.

148. The Commission has authority to determine appropriate upfront payments for each license being auctioned, taking into account such factors as the efficiency of the auction process and the potential value of similar licenses. An upfront payment is a refundable deposit made by each applicant seeking to participate in bidding to establish its eligibility to bid on licenses. Upfront payments that are related to the inventory of licenses being auctioned protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of bidding.

149. Applicants that are former defaulters must pay upfront payments 50% greater than non-former defaulters. For purposes of classification as a former defaulter or a former delinquent, defaults and delinquencies of the applicant itself and its controlling interests are included.

150. An applicant must make an upfront payment sufficient to obtain bidding eligibility on the licenses on which it will bid. The Commission adopts the proposals to set upfront payments based on the total potential MHz-pops of each license offered in the auction and to determine an applicant's initial bidding eligibility, the maximum number of bidding units on which a bidder may place bids in any single round, based on the amount of the upfront payment. In order to bid for a license, qualified bidders must have a current eligibility level that meets or exceeds the number of bidding units assigned to that license. At a minimum, therefore, an applicant's total upfront payment must be enough to establish eligibility to bid on at least one license in one of the license areas selected on its FCC Form 175 for Auction 108, or else the applicant will not become qualified to participate in the auction. The total upfront payment does not affect the total dollar amount the bidder may bid.

151. In the Auction 108 Comment Public Notice, the Commission proposed to require applicants to submit upfront payments based on $0.003 per MHz-pop with a minimum of $500 per license. Because upfront payments protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of bidding, the Commission adopts the proposal. For the 49.5-megahertz and 50.5-megahertz channel blocks, the calculation will be based on 50 megahertz, which is beneficial for the purpose of allowing switch bids because it will result in the same number of bidding units, as described below, for each of those channel blocks within a county. For the 17.5-megahertz channel block, the calculation will be based on the 16.5 megahertz of contiguous spectrum not including the 1-megahertz guard band. The Commission uses the 16.5 megahertz of contiguous spectrum and excludes the 1-megahertz guard band for comparability with the larger blocks that consist of contiguous spectrum only. The upfront payment amount per license potentially available in Auction 108 is set forth in the Attachment A file on the Auction 108 website at www.fcc.gov/auction/108.

152. For the reasons set forth in the Auction 108 Comment Public Notice, the Commission also adopts the proposal to assign each license a specific number of bidding units, equal to one bidding unit per $100 of the upfront payment, which is necessary for implementing the activity requirement described in Section IV.F. (Activity Rule) below, and facilitates the efficient conduct of the auction. The number of bidding units for a given license is fixed and does not change during the auction as prices change. Thus, in calculating its upfront payment amount, an applicant should determine the maximum number of bidding units on which it may wish to bid in any single round, and submit an upfront payment amount covering that number of bidding units. In order to make this calculation, an applicant should add together the bidding units for the licenses on which it seeks to be active in any given round. Applicants should check their calculations carefully, as there is no provision for increasing a bidder's eligibility after the upfront payment deadline.

153. If an applicant is a former defaulter, it must calculate its upfront payment for the maximum number of licenses on which it plans to bid by multiplying the number of bidding units on which it wishes to be active by 1.5. In order to calculate the number of bidding units to assign to former defaulters, the Commission will calculate the number of bidding units a non-former defaulter would get for the upfront payment received, divide that number by 1.5, and round the result up to the nearest bidding unit.

154. All qualified bidders for Auction 108 are automatically registered for the auction. Registration materials will be distributed prior to the auction by overnight delivery. The mailing will be sent only to the contact person at the contact address listed in the FCC Form 175 and will include the SecurID® tokens that will be required to place bids.

155. Qualified bidders that do not receive this registration mailing will not be able to submit bids. Therefore, any qualified bidder for Auction 108 that has not received this mailing by noon on July 20, 2022, should call the Auctions Hotline at (717) 338-2868. Receipt of this registration mailing is critical to participating in the auction, and each applicant is responsible for ensuring it has received all the registration materials.

156. In the event that a SecurID® token is lost or damaged, only a person who has been designated as an authorized bidder, the contact person, or the certifying official on the applicant's short-form application may request a replacement. To request a replacement, call the Auction Bidder Line at the telephone number provided in the registration materials or the Auction Hotline at (717) 338-2868.

157. Bidders will be able to participate in Auction 108 over the internet using the FCC Auction Bidding System (bidding system). Only qualified bidders are permitted to bid.

158. Each authorized bidder must have his or her own SecurID® token, which the Commission will provide at no charge. Each applicant will be issued three SecurID® tokens. A bidder cannot bid without his or her SecurID® token. In order to access the bidding function of the bidding system, bidders must be logged in during the bidding round using the passcode generated by the SecurID® token and a personal identification number (PIN) created by the bidder. For security purposes, the SecurID® tokens and a telephone number for bidding questions are only mailed to the contact person at the contact address listed on the FCC Form 175. Each SecurID® token is tailored to a specific auction. SecurID® tokens issued for other auctions or obtained from a source other than the FCC will not work for Auction 108. Please note that the SecurID® tokens can be recycled, and the Commission requests that bidders return the tokens to the FCC. Pre-addressed envelopes will be provided to return the tokens once the auction has ended.

159. The Commission makes no warranties whatsoever, and shall not be deemed to have made any warranties, with respect to the bidding system, including any implied warranties of merchantability or fitness for a particular purpose. In no event shall the Commission, or any of its officers, employees, or agents, be liable for any damages whatsoever (including, but not limited to, loss of business profits, business interruption, loss of use, revenue, or business information, or any other direct, indirect, or consequential damages) arising out of or relating to the existence, furnishing, functioning, or use of the bidding system. Moreover, no obligation or liability will arise out of the Commission's technical, programming, or other advice or service provided in connection with the bidding system.

160. To the extent an issue arises with the bidding system itself, the Commission will take all appropriate measures to resolve such issues quickly and equitably. Should an issue arise that is outside the bidding system or attributable to a bidder, including, but not limited to, a bidder's hardware, software, or internet access problem that prevents the bidder from submitting a bid prior to the end of a round, the Commission shall have no obligation to resolve or remediate such an issue on behalf of the bidder. Similarly, if an issue arises due to bidder error using the bidding system, the Commission shall have no obligation to resolve or remediate such an issue on behalf of the bidder. Accordingly, after the close of a bidding round, the results of bid processing will not be altered absent evidence of any failure in the bidding system.

161. All qualified bidders will be eligible to participate in a mock auction. The mock auction, which will begin on July 26, 2022, will enable qualified bidders to become familiar with the bidding system and to practice submitting bids prior to the auction. The Commission recommends that all qualified bidders, including all their authorized bidders, participate to assure that they can log in to the bidding system and gain experience with the bidding procedures. Participating in the mock auction may reduce the likelihood of a bidder making a mistake during the auction. Details regarding the mock auction will be announced in the Qualified Bidders Public Notice for Auction 108.

162. At any time before or during the bidding process, OEA, in conjunction with WTB, may delay, suspend, or cancel bidding in Auction 108 in the event of a natural disaster, technical obstacle, network interruption, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. This approach has proven effective in resolving exigent circumstances in previous auctions, and the Commission finds no reason to depart from it for Auction 108. OEA will notify participants of any such delay, suspension, or cancellation by public notice and/or through the bidding system's announcement function. If the bidding is delayed or suspended, then OEA may, in its sole discretion, elect to resume the auction starting from the beginning of the current round or from some previous round, or cancel the auction in its entirety. The Commission emphasizes that OEA will exercise this authority at its discretion.

163. As is the case with many business investment opportunities, some unscrupulous parties may attempt to use Auction 108 to deceive and defraud unsuspecting investors. Common warning signals of fraud include the following:

• The first contact is a cold call from a telemarketer or is made in response to an inquiry prompted by a radio or television infomercial.

• The offering materials used to invest in the venture appear to be targeted at IRA funds, for example, by including all documents and papers needed for the transfer of funds maintained in IRA accounts.

• The amount of investment is less than $25,000.

• The sales representative makes verbal representations that: (a) The Internal Revenue Service, Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), FCC, or other government agency has approved the investment; (b) the investment is not subject to state or federal securities laws; or (c) the investment will yield unrealistically high short-term profits. In addition, the offering materials often include copies of actual FCC releases, or quotes from FCC personnel, giving the appearance of FCC knowledge or approval of the solicitation.

164. Information about deceptive telemarketing investment schemes is available from the FCC, as well as the FTC and SEC. Additional sources of information for potential bidders and investors may be obtained from the following sources:

• The FCC's Consumer Call Center at (888) 225-5322 or by visiting www.fcc.gov/general/frauds-scams-and-alerts-guides.

• The FTC at (877) FTC-HELP ((877) 382-4357) or by visiting consumer.ftc.gov.

• The SEC at (202) 942-7040 or by visiting www.sec.gov/investor.

165. Complaints about specific deceptive telemarketing investment schemes should be directed to the FTC, the SEC, or the National Consumer League's Fraud Center at fraud.org or (202) 835-3323, Ext. 815.

166. The Auction 108 Comment Public Notice and the Auction 108 Further Comment Public Notice sought comment on three different auction formats for Auction 108: A single-round auction format with user-defined package bidding, a simultaneous multiple-round (SMR) auction format, and an ascending clock auction format. The Auction 108 Inventory Comment Public Notice also sought comment on the previously-detailed auction procedures in light of additions to the initial license inventory. As discussed below, there are arguments for and against each auction format. After consideration of the record, the Commission finds on balance the record supports using an ascending clock auction format for Auction 108 by which bidding will be conducted simultaneously for all licenses available in the auction and bidders will be able to bid for specific licenses. Accordingly, the Commission selects the clock-1 auction format for Auction 108. This format will be similar to the clock phase of past Commission ascending clock auctions, but rather than offering multiple generic spectrum blocks in a category in a geographic area, it will offer only a single frequency-specific license in a category in a county. Thus, by using a supply of 1 in each category, a clock-1 auction format allows bidders to bid on frequency-specific licenses and negates the need for an assignment phase, which have been typical of past Commission ascending clock auctions.

167. In response to the Auction 108 Comment Public Notice, interested parties filed numerous comments that were split fairly evenly between parties that favored the single-round auction format and those that favored an SMR auction. OEA and WTB subsequently released the Auction 108 Further Comment Public Notice, suggesting an alternative clock auction format that would address two frequently-cited commenter concerns. Specifically, the clock-1 format would be familiar to bidders that have participated in FCC auctions previously (addressing concerns about the unfamiliarity of the single-round format) and would incorporate elements to help mitigate a drawback of an SMR auction—its likely long duration—by both potentially shortening the length of the auction and making it easier for bidders to participate in a longer auction. In response to the Auction 108 Further Comment Public Notice, interested parties filed comments in favor of the single-round auction format and others in favor of the multiple-round clock-1 auction. Many commenters that originally supported an SMR auction format in response to the Auction 108 Comment Public Notice support use of the clock-1 format as proposed in the Auction 108 Further Comment Public Notice. Recognizing that there are advantages and disadvantages to each auction format for each individual bidder, on the whole, the Commission finds that for Auction 108 the clock-1 format balances these competing interests.

168. The Commission directs OEA, in conjunction with WTB, to prepare and release, concurrently with this Public Notice, an updated technical guide (Auction 108 Technical Guide) that provides the mathematical details of the adopted auction design and algorithms for the clock phase of Auction 108. The information in the Auction 108 Technical Guide, which is available in the Education section of the Auction 108 website ( www.fcc.gov/auction/108 ), supplements the decisions in the Auction 108 Procedures Public Notice.

169. Under the clock-1 format that the Commission adopts, each bidder will be able to bid for licenses in the license areas selected on its short-form application, where a specific license will be identified by a category and a county. The auction will proceed in a series of rounds, with bidding conducted simultaneously for all licenses available in the auction. Consistent with prior FCC clock auctions, for each bidding round, the bidding system will announce a clock price for each license, and a bidder will indicate its demand for licenses at the prices associated with the current round. The prices associated with the round are prices between the start-of-round price and the clock price, inclusive.

170. The clock price for a license will increase from round to round if more than one bidder indicates demand for that license. The bidding rounds will continue until, for all licenses—that is, all categories in all counties—the number of bidders demanding each license does not exceed one. Once bidding rounds stop, the bidder with demand for a license becomes the winning bidder.

171. Auction 108 will offer geographic overlay licenses for unassigned spectrum in the 2.5 GHz (2496-2690 MHz) band offered in up to three channel blocks of spectrum—49.5 megahertz, 50.5 megahertz, and 17.5 megahertz blocks—licensed on a county basis. For bidding in this clock auction, in the counties where available, the Commission adopts bidding categories as follows: The 49.5 megahertz channel block is bidding category 1 (C1); the 50.5 megahertz channel block is bidding category 2 (C2); and the 17.5 megahertz channel block is bidding category 3 (C3). Therefore, the combination of a bidding category and a county would define a single specific license, and bidding for a category and a county under the clock-1 auction format would constitute license-by-license bidding.

172. Auction 108 will consist of sequential bidding rounds, each followed by the release of round results. The Commission will conduct bidding simultaneously for all licenses—all categories in all counties available in the auction. In the first bidding round of Auction 108, a bidder will indicate, for each category and county, whether it demands the license at the minimum opening bid price. Before each subsequent bidding round, the bidding system will announce a start-of-round price and a clock price for each license, and during the round, qualified bidders will indicate the licenses for which they wish to bid at the prices associated with the current round. Bidding rounds will be open for predetermined periods of time. Bidders will be subject to activity and eligibility rules that govern the pace at which they participate in the auction.

173. For each category and county—that is, each license—the clock price will increase from round to round if more than one bidder indicates demand for that license. The bidding rounds will continue until, for every license, demand does not exceed one. At that point, the bidder still indicating demand for a license will be the winning bidder.

174. The initial bidding schedule will be announced in a public notice to be released at least one week before the start of bidding. Details on viewing round results, including the location and format of downloadable results files for each round, will be released concurrent with or prior to that public notice.

175. The Commission will conduct Auction 108 over the internet. A bidder will be able to submit its bids using the bidding system's upload function, which allows bid files in a comma-separated values (CSV) text format to be uploaded.

176. The bidding system will allow a bidder to submit bids only for licenses in license areas ( i.e., counties) the bidder selected on its FCC Form 175 and for which the bidder has sufficient bidding eligibility.

177. During each round of the bidding, a bidder will be able to modify its bids placed in the current bidding round. It can do so by uploading a new file of all its bids, including the modifications, which would replace bids previously submitted in the round. The system will take the last bid file submission as that bidder's bids for the round. The Commission urges bidders to verify their bids in each round. Information on how to do so will be made available in educational materials that OEA will provide, including a bidding system user guide and an online bidding procedures tutorial.

178. The Commission adopts the proposal that OEA retain the discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. This will allow OEA to change the amount of time for bidding rounds, the amount of time between rounds, or the number of rounds per day, depending upon bidding activity and other factors.

179. For Auction 108, the Commission will employ a simultaneous stopping rule approach, which means all licenses remain available for bidding until bidding stops on every license. Specifically, bidding will close for all licenses after the first round in which demand does not exceed one for any license. Consequently, under this approach, it is not possible to determine in advance how long Auction 108 will last.

180. The Commission adopts the proposal to make public after each clock phase bidding round, for each license, the aggregate demand, the posted price of the last completed round, and the clock price for the next round. The identities of bidders making specific bids will not be disclosed until after the close of bidding in the auction.

181. Each bidder will have access to additional information related to its own bidding and bid eligibility. Specifically, after the bids of a round have been processed, the bidding system will inform each bidder of the licenses it currently demands (its processed demand), whether it has proxy instructions for those licenses, and its eligibility for the next round.

182. Activity Requirement. For the reasons set forth in the Auction 108 Comment Public Notice, the Commission adopts the proposal to employ an activity rule that requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. For this clock auction, a bidder's activity in a round for purposes of the activity rule will be the sum of the bidding units associated with the bidder's demands as applied by the auction system during bid processing. Bidders are required to be active on a specific percentage (the activity requirement percentage ) of their current bidding eligibility during each round of the auction. Failure to maintain the requisite activity level will result in a reduction in the bidder's eligibility, possibly curtailing or eliminating the bidder's ability to place bids in subsequent rounds of the auction.

183. The Commission adopts the proposal to require that bidders maintain a fixed, high level of activity in each round of Auction 108 in order to maintain bidding eligibility. The clock auction requires a high level of certainty about bidder demand in order to set accurate prices and provide reliable information to bidders. Consistent with past practice, bidders must be active on between 90% and 100% of their bidding eligibility in all clock rounds, with the specific percentage within this range to be set for each round by OEA. Thus, the activity rule will be satisfied when a bidder has bidding activity on blocks with bidding units that total 90% to 100% of its current eligibility in the round. OEA The Commission will set the activity requirement percentage initially at 95%. If the activity rule is met, then the bidder's eligibility will not change for the next round. If the activity rule is not met in a round, then the bidder's eligibility will be reduced to an amount that brings the bidder into compliance with the rule. Bidding activity will be based on the bids that are applied by the FCC auction bidding system. That is, if a bidder bids to reduce its demand for a license, but the FCC auction bidding system cannot apply the request because demand for that license would fall below one, then the bidder's activity would reflect its unreduced demand.

184. OEA retains the discretion to change the activity requirement percentage during the auction. The bidding system will announce any such changes in advance of the round in which they would take effect, giving bidders adequate notice to adjust their bidding strategies.

185. Contingent Bidding Limit. Because a bidder's eligibility for the next round is calculated based on the bidder's demands as applied by the auction system during bid processing, a bidder's eligibility may be reduced even if the bidder submitted bids with activity that exceeds the required activity for the round. To help a bidder avoid potentially having its eligibility reduced as a result of submitted bids that could not be applied during bid processing, the Commission adopts procedures to allow a bidder to submit bids with associated bidding activity greater than its current bidding eligibility. However, the Commission emphasizes that even under these additional procedures, the bidder's activity as applied by the auction system during bid processing will not exceed the bidder's current bidding eligibility. That is, even if a bidder submits bids with associated bidding units exceeding 100% of its current bidding eligibility, its processed activity cannot exceed its eligibility.

186. Under these procedures, after Round 1, a bidder may submit bids with bidding units totaling up to a contingent bidding limit greater than or equal to the bidder's current bidding eligibility for the round times a contingent bidding percentage equal to or greater than 100%. The Commission adopts an initial contingent bidding percentage of 120%, which will apply starting in Round 2. The Commission finds that 120% provides a useful amount of flexibility to a bidder trying to guard against loss of eligibility when requesting a reduction in its demand. This limit will be subject to change in subsequent rounds within a range of 100% to 140%. If it appears that the contingent bidding limit is being misused, OEA may use its discretion to change the contingent bidding limit percentage. In any bidding round, the auction bidding system will advise the bidder of its current bidding eligibility, its required bidding activity, and its contingent bidding limit. The Auction 108 Technical Guide provides examples of use of the contingent bidding limit, and bidders are encouraged to review them.

187. As with the activity requirement percentage, OEA will retain the discretion to change the contingent bidding percentage during the auction and will announce any such changes in advance of the round in which they would take effect.

188. For Auction 108, the Commission will not provide for activity rule waivers to preserve a bidder's eligibility. The Commission notes that the contingent bidding limit, which permits a bidder to submit bids with bidding activity greater than its eligibility, within the precise limits set forth above, and allowing bidders to submit proxy instructions will address some of the circumstances under which a bidder risks losing bidding eligibility and otherwise could wish to use a bidding activity waiver, while minimizing any potential adverse impacts on bidder incentives to bid sincerely and on the price setting mechanism of the clock auction. This approach not to allow waivers is consistent with the ascending clock auction procedures used in other FCC clock auctions. The clock auction relies on precisely identifying the point at which demand decreases to equal supply to determine winning bidders and final prices. Allowing waivers would create uncertainty with respect to the exact level of bidder demand and would interfere with the basic clock price-setting and winner determination mechanism. Moreover, uncertainty about the level of demand would affect the way bidders' requests to reduce demand are processed by the bidding system, as addressed below.

189. As is typical for each auction, the Commission sought comment on the use of a minimum opening bid amount and/or reserve price, as mandated by 47 U.S.C. 309(j). The Commission will establish minimum opening bid amounts for Auction 108. The bidding system will not accept bids lower than the minimum opening bids for each license. Based on the Commission's experience in past auctions, setting minimum opening bid amounts judiciously is an effective tool for accelerating the competitive bidding process.

190. The Commission establishes the minimum bid amounts in Auction 108 using the total potential MHz-pops of each license offered in the auction, rather than on available white space in each block. The Commission bases these calculations on $0.006 per MHz-pop, with a minimum of $500 per license. Consistent with the calculations for upfront payments and bidding units adopted in the Auction 108 Procedures Public Notice, for the 49.5-megahertz and 50.5-megahertz blocks, the Commission bases the calculation on 50 megahertz. For the 17.5-megahertz channel block, the calculation will be based on the 16.5 megahertz of contiguous spectrum not including the 1-megahertz guard band. Additionally, when calculating minimum bid amounts, the Commission rounds the results of calculations as follows: Results below $1,000 will be rounded down to the nearest $100; results between $1,000 and $10,000 will be rounded down to the nearest $1,000; results between $10,000 and $100,000 will be rounded down to the nearest $10,000; and results above $100,000 will be rounded down to the nearest $100,000. The rounding procedures will lessen the differences between minimum bid amounts for licenses in counties with similar population instead of reflecting relatively small differences in total potential MHz-pops that are not necessarily representative of the available white space.

191. The minimum opening bid amounts for each license offered in Auction 108 are set forth in the Attachment A file on the Auction 108 website at www.fcc.gov/auction/108.

192. The Commission adopts the procedures regarding clock price increments described in the Auction 108 Further Comment Public Notice. Therefore, after bidding in the first round and before each subsequent round, for each license, the FCC auction bidding system will announce the start-of-round price and the clock price for the upcoming round—that is, the lowest price and the highest price at which bidders can indicate their demand for the license during the round. As long as aggregate demand for the license exceeds one, the start-of-round price will be equal to the clock price from the prior round. If aggregate demand equaled one at a price in a previous round, then the start-of-round price for the next round will be equal to the price at which aggregate demand equaled one. If aggregate demand was zero in the previous round, then the start-of-round price for the next round will not increase.

193. The Commission will set the clock price for a license for a round by adding a percentage increment to the start-of-round price. The Commission will set the initial increment percentage at 10% and OEA may adjust within a range of 5% to 30% inclusive as rounds continue. The Commission recognizes that an increment larger than the initial 10% may be useful in managing the length of the auction, and OEA may increase the percentage increment during the auction, but OEA will take bidding activity into account before deciding to do so and will announce any change in advance. To ensure that an increase in the percentage increment does not result in an unduly large increase for a license, the total dollar amount of the increment (the difference between the clock price and the start-of-round price) will be capped at a certain amount. The Commission will set this cap on the increment initially at $10 million and OEA may adjust the cap as rounds continue. The 5% to 30% increment range and cap will allow us to set a percentage that manages the auction pace and takes into account bidders' needs to evaluate their bidding strategies while moving the auction along quickly.

194. As described in the Auction 108 Further Comment Public Notice, in any round after the first round, the Commission will permit a bidder to make intra-round bids by indicating a point between the start-of-round price and the clock price at which its demand for a license changes. In placing an intra-round bid for a license, a bidder will indicate a specific price and the changed quantity it demands (either zero or one) if the price for the license should increase beyond that price. For example, if a bidder has processed demand for a license at the start-of-round price of $200, but no longer wants the license if the price increases by more than $10, the bidder would indicate a bid quantity of zero at a price of $210. Similarly, if the bidder wishes to reduce its demand to zero if the price increases at all above $200, the bidder would indicate a bid quantity of zero at the start-of-round price of $200.

195. Intra-round bids are optional; a bidder may choose to express its demands only at the start-of-round price or the clock price. Using intra-round bidding will allow the auction system to use relatively large percentage increments, thereby speeding up the auction, without running the risk that a jump in the clock price will overshoot the market clearing price—the point at which only one bidder demands the license—because bidders can specify a price lower than the clock price.

196. Intra-round bid amounts will be limited to multiples of $10 for prices below $10,000; to multiples of $100 for prices between $10,000 and $100,000, inclusive; and to multiples of $1,000 for prices above $100,000.

197. The Commission adopts the proposal to provide each bidder with the option to use proxy bidding under the clock-1 format. Accordingly, a bidder will be allowed to submit a proxy instruction to the bidding system to reduce its demand for a license to zero at a price higher than the current round's clock price. Proxy instructions to increase a bidder's demand for a license at a given price will not be permitted.

198. Under these procedures, if a proxy instruction has been submitted, the bidding system will automatically submit a proxy bid to maintain the bidder's demand for the license in every subsequent round as long as the clock price for the round is less than the proxy instruction price. In the first round in which the clock price is greater than or equal to the proxy instruction price, the bidding system will submit a proxy bid on behalf of the bidder to reduce the bidder's demand for that license to zero at the proxy instruction price. For example, if a bidder has processed demand for a license with a clock price of $1,000, but the bidder is willing to purchase the license for a price up to $1,800, the bidder could submit a proxy instruction to reduce its demand for the license to 0 at $1,800. In that case, the bidding system will submit proxy bids to maintain the bidder's demand for the license in each subsequent round as long as the clock price is less than $1,800.

199. In the case that a bid to reduce demand, placed according to proxy instructions or submitted by the bidder in the round, is not applied during bid processing, the bidding system will automatically generate a proxy instruction at the bid price and, in the following rounds, submit proxy bids on behalf of the bidder according to that proxy instruction. For example, suppose that the start-of-round price for a license is $10,000, the clock price is $12,000, and a bidder with processed demand for the license submits a bid to reduce its demand to 0 at price $11,500. If the bid is not applied during bid processing ( e.g., because there were no other bids for the license in the round), in the following round the bidding system will submit a proxy bid on behalf of the bidder to reduce demand for the license to 0 at price $11,500. The proxy instruction preserves in the bidding system the bidder's interest in retaining demand for the license at a price no higher than $11,500, which may help avoid having the license sold later in the auction to another bidder at a price less than what the initial bidder is willing to pay.

200. In any round, a bidder can remove or modify any existing proxy instructions or proxy bids for the round by uploading a new bid file, including the modifications, which would replace any bids and proxy instructions previously submitted. The system will take the last bid file submission as that bidder's bids and proxy instructions.

201. As is the case for intra-round bid amounts, proxy instruction prices will be limited to multiples of $10 for prices below $10,000; to multiples of $100 for prices between $10,000 and $100,000, inclusive; and to multiples of $1,000 for prices above $100,000. Proxy instructions will not be publicly released either during or after the auction.

202. Under the clock-1 auction format adopted for Auction 108, as in other FCC spectrum clock auctions, a bidder will indicate in each round the licenses it demands at the prices associated with the round. Bidders will be permitted to make two types of bids: Simple bids and switch bids.

203. A simple bid indicates a desired quantity (in this auction, one or zero) at a price. A bidder that is willing to maintain its demand for a license at the new clock price would bid for the license at the clock price, indicating that it is willing to pay up to that price, if need be, for the license. A bidder that wishes to change the quantity it demands for a license (relative to its processed demand from the previous round) would express the price (either the clock price or an intra-round price) at which it wishes to change its demand.

204. A switch bid allows the bidder to request to move its demand for a license from C1 to C2, or vice versa, within the same county at a price for the from category (either the clock price or an intra-round price). Switch bids are allowed only in counties with both an available category 1 license and an available category 2 license.

205. Bids to maintain demand will always be applied by the auction bidding system during bid processing. Simple bids to change demand and switch bids will not necessarily be applied during bid processing.

206. Under the clock-1 auction format, a bidder is required to indicate its demands in every round or have a proxy instruction in place, even if its demands at the new round's prices are unchanged from the previous round. If a bidder does not submit a new bid for a license for which it had processed demand from the previous round and does not have a proxy instruction in place, the system will consider that a missing bid.

207. Missing bids are treated by the auction bidding system as requests to reduce demand to a quantity of zero for the license. If these requests are applied, then a bidder's bidding activity, and its bidding eligibility for the next round, may be reduced. Unlike in previous FCC clock auctions for spectrum licenses, under the clock1 format for Auction 108, a bidder is permitted to enter proxy instructions. Thus, a bidder that is unable to indicate its demands in every round can avoid having missing bids by entering appropriate proxy instructions.

208. The Commission adopts bid processing procedures that the auction bidding system will use, after each bidding round, to process bids to change demand to determine the processed demand of each bidder for each license and a posted price for each license that will serve as the start-of-round price for the next round.

209. Under the clock-1 auction format, the FCC auction bidding system will not allow a bidder to reduce its demand for a license if the reduction would cause aggregate demand to fall below one. Therefore, if a bidder has been bidding for a specific license but submits a simple bid to reduce its demand to zero for the license if the price should increase above the price in its bid, the FCC auction bidding system will treat the bid as a request to reduce demand that will be applied only if the no excess supply rule would be satisfied. Similarly, if a bidder submits a switch bid to move its demand from the C1 license to the C2 license in the same county, the FCC auction bidding system will treat the bid as a request that will be applied only if the no excess supply rule would be satisfied for C1 in the county, and vice versa.

210. The bidding system will not allow a bidder to increase its demands for licenses if the total number of bidding units associated with the bidder's demands exceeds the bidder's bidding eligibility for the round. Therefore, if a bidder submits a simple bid to add a license for which it did not have processed demand in the previous round, the FCC auction bidding system will treat the bid as a request to increase demand that will be applied only if that would not cause the bidder's processed activity to exceed its eligibility.

211. The Commission adopts the procedures described in the Auction 108 Further Comment Public Notice to determine the order in which the bidding system will process bids after a round ends. After a round ends, the bidding system will first consider and apply all bids to maintain demand, and then it will process bids to change demand in order of price point, where the price point represents the percentage of the bidding interval for the round. The bidding system will process bids to change demand in ascending order of price point, first considering intra-round bids in order of price point and then bids at the clock price. The system will consider bids at the lowest price point across all licenses, then look at bids at the next price point across all licenses, and so on. As it considers each submitted bid during bid processing, the FCC auction bidding system will determine whether there is excess demand for a license at that point in the processing in order to determine whether a bidder's request to reduce demand for that license can be applied. Likewise, the auction bidding system will evaluate the activity associated with the bidder's most recently determined demands at that point in the processing to determine whether a request to increase demand can be applied.

212. Because in any given round some bidders may request to increase demand for licenses while others may request reductions, the price point at which a bid is considered by the auction bidding system can affect whether it is applied. In addition, bids that were not applied because demand would fall below one or because the bidder's activity (as applied by the auction system) would exceed its eligibility will be held in a queue and considered, again in price point order, if there should be excess demand or if the bidder's activity (as applied by the auction system) is reduced sufficiently later in the processing after other bids are processed.

213. Therefore, once a round closes, the auction system will process bids to change demand by first considering the bid submitted at the lowest price point and determining whether that bid can be applied given bidders' demands as determined at that point in the bid processing. If the bid can be applied, the licenses that the bidder holds at that point in the processing will be adjusted, and aggregate demand for the license will be recalculated accordingly. If the bid cannot be applied, the unfulfilled bid will be held in a queue to be considered later during bid processing for that round. The FCC auction bidding system will then consider the bid submitted at the next lowest price point, applying it or not given the most recently determined demands of bidders. Any unfulfilled requests will again be held in the queue, and aggregate demand will again be recalculated. Every time a bid is applied, the unfulfilled bids held in the queue will be reconsidered, in the order of the original price points of the bids (and by pseudo-random number, in the case of tied price points). The auction bidding system will not carry over unfulfilled bid requests to the next round, however. The bidding system will advise bidders of the status of their bids when round results are released.

214. As described in the Auction 108 Further Comment Public Notice, the FCC auction bidding system further will determine, based on aggregate demand, the posted price for each license for the round that will serve as the start-of-round price for the next round. The price for a license will increase from round to round as long as there is excess demand for the license but will not increase if only a single bidder demands the license.

215. If, at the end of a round, the aggregate demand for a license exceeds the supply of one, the posted price will equal the clock price for the round. If a reduction in demand was applied during the round and caused demand to fall to one, the posted price will be the price at which the reduction was applied. If aggregate demand is zero, or aggregate demand is one and no bid to reduce demand was applied for the license, then the posted price will equal the start-of-round price for the round. The range of acceptable bid amounts for the next round will be set by adding the percentage increment to the posted price.

216. Under the clock-1 auction format, if a bid to reduce demand is not applied, it is because there is not excess demand for the license and, therefore, the posted price will not increase. Hence, a bidder that makes a bid to reduce demand that cannot be applied will not face a price for the license that is higher than its bid price.

217. After the bids of the round have been processed, if the stopping rule has not been met, the FCC auction bidding system will announce clock prices to indicate a range of acceptable bids for the next round. Each bidder will be informed of the licenses for which it has processed demand and of the aggregate demand for each license.

218. Under the clock-1 auction format, a bidder with processed demand for a license at the time the stopping rule is met will become the winning bidder for the license. The final price for a license will be the posted price for the final round.

219. The public notice announcing the close of the bidding and auction results will be released within several days after bidding has ended in Auction 108. The Auction 108 Procedures Public Notice will also establish the deadlines for submitting down payments, final payments, and the long-form applications (FCC Form 601) for the auction.

220. The Commission's rules provide that, unless otherwise specified by public notice, within 10 business days after the release of the auction closing public notice for Auction 108, each winning bidder must submit sufficient funds (in addition to its upfront payment) to bring its total amount of money on deposit with the Commission to 20% of the net amount of its winning bids (less any bidding credits, if applicable).

221. Each winning bidder will be required to submit the balance of the net amount for each of its winning bids within 10 business days after the deadline for submitting down payments.

222. The Commission's rules provide that, within 10 business days after release of the auction closing public notice, winning bidders must electronically submit a properly completed post-auction application (FCC Form 601), including the applicable filing fee, for the license(s) they won through the auction.

223. A winning bidder claiming eligibility for a small business bidding credit or a rural service provider bidding credit must demonstrate its eligibility for the bidding credit sought in its FCC Form 601 post-auction application. Further instructions on these and other filing requirements will be provided to winning bidders in the auction closing public notice for Auction 108

224. Winning bidders organized as bidding consortia must comply with the FCC Form 601 post-auction application procedures set forth in 47 CFR 1.2107(g). Specifically, license(s) won by a consortium must be applied for as follows: (a) An individual member of the consortium or a new legal entity comprising two or more individual consortium members must file for licenses covered by the winning bids; (b) each member or group of members of a winning consortium seeking separate licenses will be required to file a separate FCC Form 601 for its/their respective license(s) in their legal business name; (c) in the case of a license to be partitioned or disaggregated, the member or group filing the applicable FCC Form 601 shall include the parties' partitioning or disaggregation agreement with the FCC Form 601; and (d) if a designated entity credit is sought (either small business or rural service provider), the applicant must meet the applicable eligibility requirements in the Commission's rules for the credit.

225. Within 10 business days after release of the auction closing public notice for Auction 108, each winning bidder must also comply with the ownership reporting requirements in 47 CFR 1.913, 1.919, and 1.2112 by submitting an ownership disclosure information report for wireless telecommunications services (FCC Form 602) with its FCC Form 601 post-auction application.

226. If a winning bidder already has a complete and accurate FCC Form 602 on file in the FCC's Universal Licensing System (ULS), then it is not necessary to file a new report, but the winning bidder must certify in its FCC Form 601 application that the information on file with the Commission is complete and accurate. If the winning bidder does not have an FCC Form 602 on file, or if the form on file is not complete and accurate, then the winning bidder must submit a new one.

227. When a winning bidder submits an FCC Form 175, ULS automatically creates an ownership record. This record is not an FCC Form 602, but it may be used to pre-fill the FCC Form 602 with the ownership information submitted on the winning bidder's FCC Form 175 application. A winning bidder must review the pre-filled information and confirm that it is complete and accurate as of the filing date of the FCC Form 601 post-auction application before certifying and submitting the FCC Form 602. Further instructions will be provided to winning bidders in the auction closing public notice.

228. As noted above, a winning bidder that intends to use its license(s) to deploy facilities and provide services to qualifying Tribal lands that have a wireline penetration rate equal to or below 85 percent is eligible to receive a Tribal lands bidding credit as set forth in 47 CFR 1.2107 and 1.2110(f). A Tribal lands bidding credit is in addition to, and separate from, any other bidding credit for which a winning bidder may qualify.

229. Unlike other bidding credits that are requested prior to an auction, a winning bidder applies for a Tribal lands bidding credit after the auction when it files its FCC Form 601 post-auction application. When initially filing the post-auction application, the winning bidder will be required to advise the Commission whether it intends to seek a Tribal lands bidding credit, for each license won in a particular auction, by checking the designated box(es). After stating its intent to seek a Tribal lands bidding credit, the winning bidder will have 180 days from the close of the applicable post-auction application filing window to amend its application to select the specific qualifying Tribal lands to be served and provide the required Tribal government certifications. Licensees receiving a Tribal lands bidding credit are subject to performance criteria as set forth in 47 CFR 1.2110(f)(3)(vii). For additional information on the Tribal lands bidding credit, including how the amount of the credit is calculated, applicants should review the Commission's rulemaking proceeding regarding Tribal lands bidding credits and related public notices.

230. Any winning bidder that defaults or is disqualified after the close of an auction ( i.e., fails to remit the required down payment by the specified deadline, fails to submit a timely long-form application, fails to make a full and timely final payment, or is otherwise disqualified) is liable for default payments as described in 47 CFR 1.2104(g)(2). A default payment consists of a deficiency payment, equal to the difference between the amount of the bidder's winning bid and the amount of the winning bid the next time a license covering the same spectrum is won in an auction, plus an additional payment equal to a percentage of the defaulter's bid or of the subsequent winning bid, whichever is less.

231. The percentage of the applicable bid to be assessed as an additional payment for defaults in a particular auction is established in advance of the auction. For the reasons set forth in the Auction 108 Comment Public Notice, the Commission adopts the proposal to set the additional default payment for Auction 108 at 15% of the applicable bid for winning bids.

232. Finally, in the event of a default, the Commission has the discretion to re-auction the license or offer it to the next highest bidder (in descending order) at its final bid amount. In addition, if a default or disqualification involves gross misconduct, misrepresentation, or bad faith by an applicant, then the Commission may declare the applicant and its principals ineligible to bid in future auctions and may take any other action that it deems necessary, including institution of proceedings to revoke any existing authorizations held by the applicant.

233. If a refund is due, the Bidder must request a refund in writing with the information listed below and to the email listed below. All refunds of upfront payment balances will be returned to the payer of record as identified on the FCC Form 159, or on the wire transfer, unless the payer submits written authorization instructing otherwise. Bidders are encouraged to use the Refund Information icon found on the Auction Application Manager page or the Refund Form link available on the Auction Application Submit Confirmation page in the FCC Auction Application System to access the form. After the required information is completed on the blank form, the form should be printed, signed, and submitted to the Commission by mail, fax, or email as instructed below.

234. If you have elected not to access the Refund Form through the Auction Application Manager page, the Commission is requesting that all information listed below be supplied in writing.

The refund request must be submitted by fax to the Revenue & Receivables Operations Group/Auctions at (202) 418-2843, by email to RROGWireFaxes@fcc.gov .

Note: Refund processing generally takes up to two weeks to complete. Bidders with questions about refunds should contact Scott Radcliffe at (202) 418-7518 or Theresa Meeks at (202) 418-2945.

235. The Office of Management and Budget (OMB) has approved the information collections in the Application to Participate in an FCC Auction, FCC Form 175. The Auction 108 Procedures Public Notice does not contain new or substantively modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198. The Commission will be submitting a non-substantive change request to OMB concerning OMB 3060-0600 related to the certification requirement for Auction 108 applicants adopted in the Auction 108 Procedures Public Notice, and the Commission will not require Auction 108 applicants to make this certification on FCC Form 175 until OMB has approved the non-substantive change request.

236. The Commission has determined, and Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, 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 Auction 108 Procedures Public Notice to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

237. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), a Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) was incorporated in the Auction 108 Comment Public Notice released in January 2021. In February 2022, a Second Supplemental Initial Regulatory Flexibility Analysis (Second Supplemental IRFA) was incorporated in the Auction 108 Further Comment Public Notice, and a Third Supplemental Initial Regulatory Flexibility Analysis (Third Supplemental IRFA) was incorporated in the Auction 108 Revised Inventory Public Notice. The Commission sought public comment on the proposals in all three public notices, including comments on the three supplemental IRFAs. No comments were filed addressing the Supplemental IRFA, Second Supplemental IRFA, or Third Supplemental IRFA. The Auction 108 Procedures Public Notice establishes the procedures to be used for Auction 108. The Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) reflects actions taken in the Auction 108 Procedures Public Notice, and supplements the Final Regulatory Flexibility Analyses completed by the Commission in the 2.5 GHz Report and Order and other Commission orders pursuant to which Auction 108 will be conducted. The present FRFA conforms to the RFA.

238. Need for, and Objectives of, the Rules. The Auction 108 Procedures Public Notice resolves all open issues, and addresses comments filed in response to the Auction 108 Comment Public Notice, the Auction 108 Further Comment Public Notice, and the Auction 108 Revised Inventory Public Notice. The Auction 108 Procedures Public Notice implements auction procedures for those entities that seek to bid in Auction 108 to acquire new flexible-use geographic overlay licenses in the 2.5 GHz band. Auction 108 will offer the single largest contiguous portion of available mid-band spectrum below 3 GHz, and the licenses made available in Auction 108 will help extend 5G service beyond the most populated areas. The Auction 108 Procedures Public Notice adopts procedural rules and terms and conditions governing Auction 108, and the post-auction application and payment processes, as well as sets the minimum opening bid amounts for new flexible-use overlay licenses in the 2.5 GHz band that will be offered in Auction 108.

239. To promote the efficient and fair administration of the competitive bidding process for all Auction 108 participants, the Commission adopts the following procedures for Auction 108:

• A requirement that any applicant seeking to participate in Auction 108 certify in its short-form application, under penalty of perjury, that it has read the public notice adopting procedures for Auction 108 and that it has familiarized itself with those procedures and the requirements for a license and operating facilities in the 2.5 GHz band;

• provision of discretionary authority to OEA, in conjunction with WTB, to delay, suspend, or cancel bidding in Auction 108 for any reason that affects the ability of the competitive bidding process to be conducted fairly and efficiently;

• establishment of bidding credit caps for eligible small businesses, very small businesses, and rural service providers in Auction 108;

• designation of AT&T, T-Mobile, and Verizon Wireless as nationwide providers for purposes of the prohibition of certain communications;

• use of anonymous bidding/limited information procedures which will not make public until after bidding has closed: (1) The license areas that an applicant selects for bidding in its short-form application (FCC Form 175), (2) the amount of any upfront payment made by or on behalf of an applicant for Auction 108, (3) any applicant's bidding eligibility, and (4) any other bidding-related information that might reveal the identity of the bidder placing a bid;

• establishment of an additional default payment of 15% under 47 CFR 1.2104(g)(2)in the event that a winning bidder defaults or is disqualified after the auction;

• a specific upfront payment amount for each license available in Auction 108;

• establishment of a bidder's initial bidding eligibility in bidding units based on that bidder's upfront payment through assignment of a specific number of bidding units for each license;

• establishment of minimum opening bid amounts based on $0.006 per MHz-pop, with a minimum of $500 per license;

• use of an ascending clock auction format for Auction 108 under which each qualified bidder will indicate in successive clock bidding rounds its demand for the single frequency-specific license in each category in each county. Categories are determined based on the framework set forth in the 2.5 GHz Report and Order, in which the 49.5 megahertz block is bidding category 1 (C1); the 50.5 megahertz block is bidding category 2 (C2); and the 17.5 megahertz block is bidding category 3 (C3);

• use of a simultaneous stopping rule for Auction 108, under which all licenses remain available for bidding until bidding stops on every license;

• retention by OEA of discretion to adjust the bidding schedule as necessary in order to manage the pace of Auction 108;

• permission for bidders to make two types of bids: Simple bids and switch bids. A simple bid indicates a desired quantity (one or zero) at a price (either the clock price or an intra-round price). A switch bid allows the bidder to request to move its demand for a license from C1 to C2, or vice versa, within the same county at a price for the from category (either the clock price or an intra-round price);

• use of information procedures which would make public after each round of Auction 108, for each category in each county, the aggregate demand, the posted price of the last completed round, and the clock price for the next round;

• use of an activity rule that would require bidders to be active on between 90% and 100% of their bidding eligibility in all clock rounds with the activity requirement percentage initially set at 95%;

• use of a contingent bidding limit that would allow a bidder to submit bids with associated bidding activity greater than its current bidding eligibility, and establishment of an initial contingent bidding percentage at 120%, which would be subject to change in subsequent rounds within a range of 100% to 140%;

• a specific minimum opening bid amount for licenses available in Auction 108;

• an option to permit a bidder to submit a proxy instruction to reduce its demand for a license to zero at a price higher than the current round's clock price and a requirement that bidders indicate their demands in every round or submit appropriate proxy instructions;

• establishment of acceptable bid amounts, including clock price increments and intra-round bids, along with a methodology for calculating such amounts; and

• establishment of a methodology for processing bids and requests to reduce and increase demand subject to the no excess supply rule for bids to reduce demand and the eligibility rule for bids to increase demand.

240. The procedures for the conduct of Auction 108 constitute the more specific implementation of the competitive bidding rules contemplated by parts 1 and 27 of the Commission's rules and the underlying rulemaking orders, including the 2.5 GHz Report and Order, and relevant competitive bidding orders, and are fully consistent therewith.

241. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments filed that specifically address the information in the Supplemental IRFA, Second Supplemental IRFA, or Third Supplemental IRFA. One commenter, Mile One styled a proposal for the Commission to facilitate “pairing infrastructure providers and small innovators in commercial market trial programs” as a comment to the Auction 108 Comment Public Notice Supplemental IRFA. The substance of this proposal, however, does not specifically address the information in the Supplemental IRFA or the procedures and policies proposed in the Auction 108 Comment Public Notice and is outside of the scope of the procedures established in the Auction 108 Further Comment Public Notice and the Auction 108 Revised Inventory Public Notice.

242. 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 SBA and to provide a detailed statement of any changes made to the proposed procedures as a result of those comments. The Chief Counsel did not file any comments in response to the procedures that were proposed in the Auction 108 Comment Public Notice, Auction 108 Further Comment Public Notice, or Auction 108 Revised Inventory Public Notice.

243. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the rules and policies adopted in the Auction 108 Procedures Public Notice. The RFA generally defines the term small entity as having the same meaning as the terms small business, small organization, and small governmental jurisdiction. In addition, the term small business has the same meaning as the term small business concern under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated, (2) is not dominant in its field of operation, and (3) satisfies any additional criteria established by the SBA.

244. As noted above, a regulatory flexibility analysis was incorporated into the 2.5 GHz Report and Order. That order provides the underlying authority for the procedures proposed in the Auction 108 Comment Public Notice, Auction 108 Further Comment Public Notice, and Auction 108 Revised Inventory Public Notice, and that are adopted in the Auction 108 Procedures Public Notice for Auction 108. In the 2.5 GHz Report and Order Regulatory Flexibility Analysis, the Commission described in detail the small entities that might be significantly affected. In the Auction 108 Procedures Public Notice, in the Supplemental FRFA, the Commission incorporates by reference the descriptions and estimates of the number of small entities from the regulatory flexibility analysis in the 2.5 GHz Report and Order.

245. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. The Commission designed the auction application process to minimize reporting and compliance requirements for small businesses and other applicants. In the first part of the Commission's two-phased auction application process, parties desiring to participate in an auction file streamlined, short-form applications in which they certify under penalty of perjury as to their qualifications, and to having reviewed the Auction 108 Procedures Public Notice. Eligibility to participate in bidding is based on an applicant's short-form application and certifications, as well as its upfront payment. In the second phase of the process, winning bidders file a more comprehensive long-form application. Thus, an applicant that fails to become a winning bidder does not need to file a long-form application or provide the additional showings and more detailed demonstrations required of a winning bidder.

246. Applicants that wish to participate in Auction 108 are required to certify that they have read the Auction 108 Procedures Public Notice and the procedures adopted in the Auction 108 Procedures Public Notice for Auction 108, and are familiar with the procedures and requirements for obtaining a license and operating facilities in the 2.5 GHz band. The certification requirement allows applicants to educate themselves about the procedures for participation in Auction 108, and their obligation to stay abreast of relevant information before bidding in Auction 108 begins, and throughout the entire Auction 108 process. Adoption of this requirement may help small entities and other applicants avoid, among other things, rule violations or technical error that could prevent them from becoming a qualified bidder or obtaining a license after placing a winning bid. Moreover, the requirement will ensure that small entity applicants are aware of the detailed educational materials, such as interactive, online tutorials and technical guides, made available by the Commission to enhance the understanding of the pre-bidding and bidding processes, and should minimize the need for small entity applicants to hire outside engineers, legal counsel, or other auction experts.

247. Some of the resources that the Commission makes available to small entities and other applicants are discussed above. In light of all of the information, resources, and guidance made available to potential and actual participants at no cost, the Commission does not expect that the processes and procedures adopted in the Auction 108 Procedures Public Notice will require small entities to hire attorneys, engineers, consultants, or other professionals to participate in Auction 108 and comply with the procedures they adopt. Although, the Commission cannot quantify the cost of compliance with the procedures adopted for Auction 108, they do not believe that the cost of compliance will unduly burden small entities that choose to participate in the auction. The Commission notes that the processes and procedures are consistent with existing Commission policies and procedures used in prior auctions. Thus, some small entities may already be familiar with such procedures and have the processes and procedures in place to facilitate compliance resulting in minimal incremental costs to comply. For those small entities that may be new to the Commission's auction process, the various resources that will be made available, including, but not limited to, the mock auction, remote electronic bidding, and access to hotlines for both technical and auction assistance, should help facilitate participation without the need to hire professionals. These resources are in addition to the resources discussed above that small entities and other applicants will be able to access. By providing these resources as well as the resources discussed below, the Commission expects small entities that use the available resources to experience lower participation and compliance costs.

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

249. The Commission has taken steps to minimize any economic impact of its auction procedures on small entities through, among other things, the many free resources the Commission provides to potential auction participants. As mentioned above, consistent with the past practices in prior auctions, small entities that are potential participants will have access to detailed educational information and Commission personnel to help guide their participation in Auction 108, which should alleviate any need to hire professionals. For example, small entities and other would-be participants will also be provided with various materials on the pre-bidding process in advance of the short-form application filing window, which includes step-by-step instructions on how to complete FCC Form 175. The Commission has taken steps to ensure that the application system is simple to use, and that FCC Form 175 is easy to complete. For example, the application will pre-fill ownership information that an applicant has previously provided in an FCC Form 175 for prior auctions or in an FCC Form 602 filing.

250. In addition, small entities will have access to the web-based, interactive online tutorials produced by Commission staff to familiarize themselves with auction procedures, filing requirements, bidding procedures, and other matters related to an auction. The Commission has also made available resources to assist applicants in conducting due diligence research regarding potential encumbrances in the 2.5 GHz band, including a mapping tool to help identify and view existing licenses and Rural Tribal Priority Window applications in the Commission's Universal Licensing System (ULS) database.

251. After the initial application stage, auction participants whose applications have been deemed incomplete have the opportunity to correct certain errors. An applicant whose application is deemed incomplete will receive a letter from the Commission identifying the specific errors in their application and providing contact information for a specific FCC staff member who has been assigned to provide assistance. Additionally, after the application process is complete and the Commission has identified the applicants who will be qualified to bid in Auction 108, all qualified bidders for Auction 108 will automatically be registered for the auction, and registration materials will be distributed prior to the auction by overnight delivery. Applicants are not required to take any further steps until bidding commences.

252. Prior to the start of bidding, eligible bidders will be given an opportunity to become familiar with auction procedures and the bidding system by participating in a mock auction. Eligible bidders will have access to a user guide for the bidding system, bidding file formats, and an online bidding procedures tutorial in advance of the mock auction. Further, the Commission will conduct Auction 108 electronically over the internet using a web-based auction system that eliminates the need for small entities and other bidders to be physically present in a specific location. These mechanisms are made available to facilitate participation in Auction 108 by all eligible bidders and may result in significant cost savings for small entities that use them. Moreover, the adoption of bidding procedures in advance of the auction, consistent with statutory directive, is designed to ensure that the auction will be administered predictably and fairly for all participants, including small businesses.

253. Small entities and other auction participants may seek clarification of, or guidance on, complying with competitive bidding rules and procedures, reporting requirements, and using the bidding system at any stage of the auction process. Additionally, an FCC Auctions Hotline will provide small entities one-on-one access to Commission staff for information about the auction process and procedures. Further, the FCC Auctions Technical Support Hotline is another resource that provides technical assistance to applicants, including small entities, on issues such as access to or navigation within the electronic FCC Form 175 and use of the bidding system.

254. The Commission also makes various databases and other sources of information, including the Auctions program websites and copies of Commission decisions, available to the public without charge, providing a low-cost mechanism for small entities to conduct research prior to and throughout the auction. Prior to the start of bidding, and at the close of Auction 108, OEA and WTB will post public notices on the Auctions website that articulate the procedures and deadlines for the auction. The Commission makes this information easily accessible and without charge to benefit all Auction 108 applicants, including small entities, thereby lowering their administrative costs to comply with the Commission's competitive bidding rules.

255. Another step taken to minimize the economic impact for small entities participating in Auction 108 is the Commission's adoption of bidding credits for small businesses and rural service providers. In accordance with the service rules applicable to the 2.5 GHz band licenses to be offered in Auction 108, bidding credit discounts will be available to eligible small businesses and small business consortia on the following basis: (1) A bidder with attributed average annual gross revenues that do not exceed $55 million for the preceding five years is eligible to receive a 15% discount on its overall payment; or (2) a bidder with attributed average annual gross revenues that do not exceed $20 million for the preceding five years is eligible to receive a 25% discount on its overall payment. Eligible applicants can receive only one of the available small business bidding credits—not both.

256. An eligible rural service provider may request a 15% discount on its overall payment using a rural service provider bidding credit. To be eligible for a rural service provider bidding credit, an applicant must: (1) Be a service provider that is in the business of providing commercial communications services and, together with its controlling interests, affiliates, and the affiliates of its controlling interests, has fewer than 250,000 combined wireless, wireline, broadband, and cable subscribers; and (2) serve predominantly rural areas. Rural areas are defined as counties with a population density of 100 or fewer persons per square mile. Eligible applicants can request either a small business bidding credit or a rural service provider bidding credit, but not both.

257. The total bidding credit discount that may be awarded to an eligible small business is capped at $25 million and there is a $10 million cap on the total bidding credit discount that may be awarded to an eligible rural service provider. In addition, to create parity among eligible small businesses and rural service providers competing against each other in smaller markets, the Commission adopts a $10 million cap on the overall amount of bidding credits that any winning designated entity may apply to winning licenses in markets with a population of 500,000 or less. Based on the technical characteristics of the 2.5 GHz band and their analysis of past auction data, the Commission anticipates that the caps will allow the majority of small businesses to take full advantage of the bidding credit program, thereby lowering the relative costs of participation for small businesses. While eligible entities will have the opportunity to compete at auction without being unduly constrained, the caps are reasonable enough to ensure that ineligible entities are not encouraged to undercut the Commission's rules, thereby achieving the Commission's dual statutory goals of benefitting designated entities and at the same time preventing unjust enrichment.

258. A Tribal lands bidding credit will also be available to winning bidders that intend to deploy facilities and provide services to qualifying Tribal lands that have a wireline penetration rate equal to or below 85 percent. The Tribal lands bidding credit is in addition to, and separate from, any other bidding credit winning bidders may qualify to claim. Therefore, small entities that are eligible for the small or rural bidding credit can also claim the Tribal lands bidding credit, provided they meet the requirements of 47 CFR 1.2107 and 1.2110(f).

259. These procedures for the conduct of Auction 108 constitute the more specific implementation of the competitive bidding rules contemplated by parts 1 and 27 of the Commission's rules and the underlying rulemaking orders, including the 2.5 GHz Report and Order and relevant competitive bidding orders, and are fully consistent therewith.

260. Report to Congress. The Commission will send a copy of the Auction 108 Procedures Public Notice, in a report to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Auction 108 Procedures Public Notice, including the Supplemental FRFA to the Chief Counsel for Advocacy of the SBA.

Why we need to publish a rule. On February 28, 2018, the Center for Biological Diversity filed suit against the Department of the Interior and the Service on the 2013 listing and 4(d) rules for the streaked horned lark (78 FR 61452; October 3, 2013). The plaintiff challenged the adequacy of our significant portion of the range analysis, and the 4(d) rule's exception to the take prohibition for agricultural activities in the Willamette Valley. The court did not vacate the rules but remanded them to us for reconsideration. On April 13, 2021, we published a proposed rule (86 FR 19186) that reflected an updated assessment of the status of the subspecies and proposed revisions to the current 4(d) rule. Under the Act, we are required to make a final determination on our proposal within 1 year.

What this document does. With this final rule, we affirm the listing of the streaked horned lark as a threatened species, and we revise the 4(d) rule for the species.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the streaked horned lark faces threats from the ongoing loss and degradation of suitable habitat (Factor A), as well as land management activities and related effects, and recreation (Factor E), combined with the synergistic effects of small population size and climate change (Factor E), such that it is likely to become an endangered species within the foreseeable future.

Peer review and public comment. The purpose of peer review is to ensure that our listing determinations and 4(d) rules are based on scientifically sound data, assumptions, and analyses. The Service prepared the Species Status Assessment for the Streaked Horned Lark (SSA report) (U.S. Fish and Wildlife Service 2021a, entire) and sought peer review on the report in accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act. We solicited expert opinions of five appropriate specialists with expertise in ornithology and streaked horned lark biology and habitat, and we received three responses. These peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the SSA report. Additionally, we sent the SSA report to six agency partners for review and received responses from three partners. We also considered all comments and information we received from the public during the comment period for the April 13, 2021, proposed rule (86 FR 19186).

On October 3, 2013, we published in the Federal Register (78 FR 61452) a final rule listing the streaked horned lark as a threatened species under the Act; that rule was accompanied by a 4(d) rule to except certain activities from the take prohibitions of the Act and our regulations in order to provide for the conservation of the streaked horned lark.

In addition, on October 3, 2013, we published in the Federal Register (78 FR 61506) a final rule designating critical habitat for the streaked horned lark in Washington and Oregon.

On February 28, 2018, the Center for Biological Diversity filed suit against the Department of the Interior and the Service on the listing and 4(d) rules for the streaked horned lark. The court did not vacate the rules but remanded the rules to us for reconsideration and ordered us to submit a revised proposed listing determination to the Federal Register no later than March 31, 2021. To facilitate consideration of new information, the Service conducted a new species status assessment (SSA) analysis informed by our SSA framework (Service 2016a, entire).

On April 13, 2021, we published a proposed rule (86 FR 19186) that reflected an updated assessment of the status of the subspecies (including an updated analysis of any significant portions of the range) based on the SSA report, and proposed revisions to the current 4(d) rule.

A team of Service biologists, in consultation with other species experts, prepared the SSA report for the streaked horned lark (U.S. Fish and Wildlife Service 2021a, entire). The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. This final rule is based on the scientific information compiled in the SSA report.

In preparing this final rule, we reviewed and fully considered comments from the public on the April 13, 2021, proposed rule (86 FR 19186). We made many small, nonsubstantive clarifications and corrections throughout the SSA report and this rule, including under Summary of Biological Status and Threats, below, in order to ensure better consistency, clarify some information, and update or add new references. We considered whether this additional information altered our analysis of the magnitude or severity of threats facing the species.

We updated the SSA report (to version 2.0) and the final rule based on comments and additional information provided as follows:

(a) We include updated survey information provided to the Service and other reports of additional occurrences we received.

(b) We use an updated definition of suitable habitat throughout the final rule; wherein suitable habitat is defined as early seral stage communities with low-statured vegetation and substantive amounts of bare ground or sparsely vegetated conditions.

(c) We update Table 3 in the SSA and present an updated Table 1 in this final rule.

(d) We omit the proposed rule's Figure 1 from this final rule and instead present a new Table 3 where mean number of pairs are detected across all sites per region. Subsequent tables are renumbered to remain in sequence.

(e) We add text to the exception of take in the 4(d) rule for habitat restoration activities (§  17.41(a)(2)(iv)(E)) to clarify that the Service will determine whether these activities are consistent with this final rule on a case-by-case basis.

(f) We update the numbers reporting acreage of agriculture in the Willamette Valley, and specifically the amount of land used in production of grass seed.

We conclude that the information we received during the comment period for the proposed rule did not change our previous analysis of the magnitude or severity of threats facing the species or our determination that streaked horned lark is a threatened species.

In our April 13, 2021, proposed rule (86 FR 19186), we requested that all interested parties submit written comments on the proposal by June 14, 2021. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposed rule. Newspaper notices inviting general public comment were published in The Oregonian on April 18, 2021, The News Tribune on April 19, 2021, and The Olympian on April 19, 2021. We did not receive any requests for a public hearing. All substantive information provided during the comment period either has been incorporated directly into the final rule or is addressed below.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of five appropriate specialists regarding the 2021 SSA report. The peer reviewers have expertise that includes familiarity with streaked horned lark and its habitat, biological needs, and threats. We received responses from three specialists, which informed the SSA report and our April 13, 2021, proposed rule. The purpose of peer review is to ensure that our listing determinations and 4(d) rules are based on scientifically sound data, conclusions, and analyses. We reviewed all peer review comments we received from the specialists for substantive issues and new information regarding streaked horned lark and incorporated into the final SSA report (Service 2021a) as appropriate.

We received seven submissions during the comment period for the proposed rule. We reviewed all submissions for substantive comments and new information regarding the proposed rule. Four submissions included substantive comments or new information concerning the April 13, 2021, proposed rule and the SSA report (Service 2021a). Updated information received was incorporated into the final SSA report and our final rule as appropriate. Below, we provide a summary of the substantive comments raised in the public submissions we received; however, comments outside the scope of the proposed rule, and those without supporting information, did not warrant an explicit response and, thus, are not presented here. Identical or similar comments have been consolidated.

(1) Comment: Several commenters argued that the subspecies should be listed as endangered in all or a significant portion of the range due to small population sizes, ongoing loss of habitat, and lack of protection across most of its range.

Response: The streaked horned lark has been listed since 2013 and since that time the Service has been coordinating with partners to implement recovery actions throughout the range. The subspecies continues to be affected by a variety of stressors including agriculture, airport management, military operations, dredged material placement, and recreation. Despite the ongoing influence of stressors, the subspecies is not currently in danger of extinction, because the species retains multiple populations in high and moderate condition across all representative regions and those populations occur in a variety of habitat types. While the subspecies has shown variable abundance across the range, both from location-to-location and year-to-year, each representative region has at least 8 redundant populations. Negative influence factors on the subspecies have not fluctuated much for the last 20 years and are not of a scope or magnitude such that the subspecies is currently in danger of extinction.

As noted in the Background and Summary of Biological Status and Threats sections, abundance of larks across the Willamette Valley appears relatively high, but many of these local populations cannot be surveyed due to lack of access. Although the current abundance of local populations along the Pacific Coast is lower than other areas, it has been low for many years, and we see no apparent declining trend in this regional population based on survey data from 2013 to 2019. Recent detections of birds at Clatsop Spit, as well as sites with restored habitat on private lands in the Willamette Valley, indicate that individuals can move between sites, and there are a few instances of detections at previously unoccupied locations, but recolonization appears low and difficult to predict.

(2) Comment: One commenter stated we should have coordinated with outside entities to quantify our assessment of streaked horned larks and evaluate specific threats or issues.

Response: The streaked horned lark has been listed since 2013, with recovery actions coordinated by the Streaked Horned Lark Recovery Working Group (Working Group). The Streaked Horned Lark Recovery Working Group consists of several entities outside of the Service, including state biologists from both Oregon and Washington as well as species experts from American Bird Conservancy, Oregon State University, Center for Natural Lands, and other private individuals. Species status assessments (SSAs) are typically led by Service biologists and can include biologists from other agencies (state, Tribes and Federal). However, regardless of membership on an SSA core team, we call upon species experts and technical experts from other agencies to help us fill information gaps or check our analytical approach and did so with the streaked horned lark SSA. We drafted the SSA internally in response to the litigation remand and provided the draft SSA report for peer and partner review to a variety of people for external coordination, including the members of the Working Group. We took their comments into consideration when finalizing the SSA report and drafting the April 13, 2021, proposed rule. We also sent notice of the availability of the proposed rule to the members of the Working Group and took their comments into consideration when finalizing the rule. The 60-day public comment period on the April 13, 2021, proposed rule (86 FR 19186) provided interested parties an opportunity to comment and provide information on the proposed rule.

(3) Comment: We received comments stating the analysis of the current resiliency, redundancy, and representation of streaked horned lark in the SSA report, which provided the basis for the reaffirmed status determination for the subspecies, is not in alignment with population targets in the draft recovery plan.

Response: Recovery plans provide important guidance to the Service, States, Tribes, and other partners on methods of enhancing conservation and minimizing threats to listed species, as well as criteria against which to measure progress towards recovery, but they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. For this status determination, we analyzed the best available scientific and commercial data through the SSA framework to inform current and projected future resiliency of regional populations, and redundancy and representation of the subspecies. The SSA framework is currently the standard approach the Service is using for status assessments, and it may not always be in perfect alignment with a previously developed recovery plan.

Recovery plans identify metrics that describe what recovery of the species may look like; the SSA is used to analyze the current status of the species and project future conditions under a suite of plausible scenarios to support management decisions. The streaked horned lark draft recovery plan is supported by two supplementary documents: A Species Biological Report, which served as the basis for the SSA; and a Recovery Implementation Strategy, which details specific near-term activities identified in the draft recovery plan (U.S. Fish and Wildlife Service. 2019b, entire). For the streaked horned lark SSA, we incorporated information from the draft recovery plan into our analysis when appropriate and consistent with the SSA framework and, in response to peer review on the SSA, we revised our demographic metrics for current condition to be more in line with population targets in the draft recovery plan. As described under Determination of Streaked Horned Lark's Status, below, our review of the best available scientific and commercial information (which we analyzed in the SSA process) indicates that the streaked horned lark meets the Act's definition of a threatened species.

(4) Comment: We received several comments stating the methods of analysis used for interpreting changes in local and regional populations were flawed due to variability in survey efforts (both between years and between regions) and noting a lack of statistical analysis incorporated into our SSA and proposed rule. One commenter recommended we account for this variability in assessing population status and reference results presented in Keren and Pearson (2019). Another commenter stated that trends were based on data where conservation actions are implemented or land management activities are regulated through the section 7 consultation process and that this basis skews any apparent increase in population status over time toward the positive (which is not representative of the majority of the population that occurs on lands in the Willamette Valley, where no regulations protect the species from potential threats).

Response: We incorporated information from Keren and Pearson (2019) where appropriate in the SSA report and in this final rule, and in our discussion of variability in survey efforts (both between years and between regions) in both documents. In this rule, to incorporate the best available science, we update Table 1 to show corrected population estimates, add Tables 2 and 3 to show mean number of pairs detected across all sites per region, and include additional information on our characterization of trends to reflect the variability in survey effort between regions and the uncertainty regarding trends (see additional explanation as population estimates as a function of survey effort in Tables 1-3). If information relating to the status of the species on private lands in the Willamette Valley becomes available after publication of this final rule, we will take that information into consideration and can reassess status at that time.

(5) Comment: One commenter stated that the process for evaluating connectivity between local populations and habitat conditions needs to be better described in the SSA report to account for how these metrics were evaluated with regards to the current condition.

Response: In the SSA report and this final rule, we revised our description of the metrics used to evaluate current condition, including connectivity of local populations during the breeding season and between years based on evidence from color-banded individuals, as well as general habitat conditions at sites in the Willamette Valley where lark populations are monitored regularly and where land management activities maintain suitable habitat.

Our assessment and conclusions regarding connectivity were based on seasonal and intra-annual observations of larks moving between sites (within a breeding season, based on color-banded or tagged birds, and observations of birds returning to alternate breeding sites relative to where they were banded) (see Figure 1 for additional information).

(6) Comment: We received comments stating that the availability of suitable habitat in the Willamette Valley may not be the primary driver of the subspecies' status and distribution, as evidenced by the abundance of suitable habitat where larks are not detected.

Response: In response to this comment, we clarified our definition of suitable habitat throughout this final rule as early seral stage communities with low-statured vegetation and substantive amounts of bare ground or sparsely vegetated conditions. This definition is consistent with that of suitable habitat in the draft recovery plan, the SSA, and scientific literature describing preferred habitats used by larks. We further acknowledge that there are other factors (in addition to the availability of suitable habitat) that drive the status of larks in the Willamette Valley. These include vegetation succession, land usage, crop conversion, the timing and method of equipment operation, the loss of natural disturbance processes, and any other habitat perturbations during the breeding season. We updated the SSA to clarify that the primary driver of the subspecies' status and distribution is a combination of habitat availability and disturbance activities during the breeding season.

(7) Comment: One commenter stated we need to better describe how the benefits of land management activities used to replicate or mimic suitable habitat conditions in the Willamette Valley outweigh the potential risks to breeding streaked horned larks.

Response: Early spring conditions in recently established grass seed fields in the Willamette Valley attract streaked horned lark by providing suitable habitat ( i.e., the areas between rows of grass that contain very little or no vegetation) for breeding. Streaked horned lark adults, nestling, and eggs can be negatively affected by mowing of these fields. Although streaked horned lark breeding can extend until late summer, that time period covers additional nest attempts, and the peak of breeding (first nest attempts) occurs in late May to mid-June before peak mowing (which typically occurs from mid-June to mid-July) in the Willamette Valley. Additional nesting attempts can occur from late June into August and may occur whether the first nest attempt failed or was successful (Pearson and Hopey 2004, p. 11). See also this discussion in the Summary of Biological Status and Threats section below.

(8) Comment: One commenter stated that although agricultural practices maintain habitat for larks, the industry is declining, and replacement crops are not suitable for larks. They note that if suitable crop types are declining, it would be logically consistent that lark populations would decline based on loss of habitat, but the proposed rule describes the current condition for the Willamette Valley population as increasing.

Response: As noted in our response to Comment (6), above, we acknowledge that there are drivers of population status other than grass seed production. In this rule, we present updated population survey numbers for the Willamette Valley population; however, there was variability in survey efforts and corresponding variability in mean number of birds detected during surveys across all regions. The increases at some local sites are balanced by fluctuations in lark detections during surveys and variability in survey effort across all years.

(9) Comment: One commenter stated that the timing of agricultural activities in the Willamette Valley is mischaracterized in the SSA report and the potential effects to nesting larks are greater than portrayed in the SSA report.

Response: Larks arrive on breeding sites in February (Pearson et al. 2016, p. 5), and the occupancy survey window extends from mid-April to mid-July. The nesting season ( i.e. clutch initiation to fledging) for streaked horned larks begins in mid-April and ends in late August, with peaks in May and June (Pearson and Hopey 2004, p. 11; Moore 2011, p. 32; Wolf 2011, p. 5; Wolf and Anderson, 2014, p. 19). Harvest of grass seed usually commences in late June after the typical first nest attempt. While peak breeding occurs early in the summer, streaked horned larks can nest until August, and can re-nest throughout the summer, so they have multiple chances to breed even if a first nest attempt fails. Second and third breeding attempts typically occur during or after harvest practices have occurred. Nest success in general is highly variable. While there is potential for streaked horned lark nesting success to be impacted by grass seed harvest activities, the best available information does not indicate that those harvest activities are negatively affecting the current resiliency of streaked horned lark populations.

(10) Comment: One commenter stated that prairie restoration in the Willamette Valley does not substantially contribute to long-term conservation of streaked horned larks in the Willamette Valley. The commenter stated that because birds that breed in these locations are displaced from nearby sites and nests, they are at risk of lethal effects from land management activities, such as mowing or pesticide application, that are used to maintain vegetation at the restoration site. Another commenter said restoration success is likely based on soil structure (in general, glacial outwash in Puget Lowlands compared to fertile organic soil in Willamette Valley) and the likelihood of plant growth occurring following restoration.

Response: Larks at restoration sites throughout the subspecies' range are potentially affected by mowing and other land management activities similar to excepted activities at airports and in agricultural fields, but the results of prairie restoration in Willamette Valley indicate that restoration sites may provide short-term benefits to larks. Activities associated with streaked horned lark habitat restoration ( e.g., removing nonnative plants and planting native plants, creating open areas, and maintaining sparse vegetation through vegetation removal or suppression via controlled burns) would be very beneficial to the subspecies; any adverse effects to the subspecies from these activities would likely be only short-term or temporary, especially with respect to harassment or disturbance of individual larks. In the long term, the risk of adverse effects to both individuals and populations is expected to be mitigated, as these types of land management activities will likely benefit the subspecies by helping to preserve and enhance the habitat of existing local populations over time.

(11) Comment: We received several comments stating that the success of most existing conservation efforts results from section 7 consultation with Federal agencies, leaving streaked horned lark on private lands mostly unprotected. We received other comments stating that private landowners should receive protection via safe harbor agreements or other programs to incentivize them to promote conservation for the species.

Response: It is well documented that listed species benefit from a higher level of protection on Federal lands when compared to privately owned lands, due in part to the requirement for section 7 consultation under the Act and other Federal programs. In contrast, protections for listed species on non-Federal lands rely more on section 9 take prohibitions and voluntary or discretionary conservation measures. Since we listed the streaked horned lark as threatened under the Act in 2013, numerous conservation measures resulting from section 7 consultation under the Act in the range of the streaked horned lark have helped reduce the effects of threats on the subspecies.

Conservation of listed species in many parts of the United States is dependent upon working partnerships with a wide variety of entities, including the voluntary cooperation of non-Federal landowners. Building partnerships and promoting cooperation of landowners are essential to understanding the status of species on non-Federal lands and may be necessary to implement recovery actions such as reintroducing listed species, habitat restoration, and habitat protection. We encourage any landowners with a listed species such as streaked horned lark present on their property and who want to help conserve the species or think they carry out activities that may negatively impact that listed species to work with the Service to promote conservation. We promote these private sector efforts through the Department of the Interior's cooperative conservation philosophy (see https://www.fws.gov/services for more information). Once a species is listed, for private or other non-Federal property owners we offer voluntary safe harbor agreements that can contribute to the recovery of species, habitat conservation plans that allow activities ( e.g., grazing) to proceed while minimizing effects to species, funding through the Partners for Fish and Wildlife Program to help promote conservation actions, and grants to the States under section 6 of the Act. We recently completed a Safe Harbor Agreement with a private landowner in the Willamette Valley to create and maintain habitat conditions that support larks and increase the distribution and abundance of larks in this region (U.S. Fish and Wildlife Service 2021b, entire).

(12) Comment: We received several comments stating that despite the joint effort to evaluate voluntary lark conservation in the Willamette Valley (funded by the USDA's Natural Resources Conservation Service, the Service, the American Bird Conservancy, and other partners), there was no incentive for agricultural producers (who are excepted under the 4(d) rule) to engage with the Federal government for conservation, even when financial incentives were available. One commenter stated that the assumption that the proposed 4(d) rule provides an incentive to landowners that results in creation or maintenance of habitat is erroneous and suggests producers do not make decisions based on market economics.

Response: We determined that the specific provisions in the 4(d) rule adequately protect streaked horned lark while facilitating the conservation and management of the species where individuals currently occur and may occur in the future. There are a variety of factors that understandably drive the type of crop that agricultural producers choose to grow and why they might change to a different crop over time. On farms where larks utilize crops such as perennial rye grass seed after the first few years of planting, the 4(d) is intended to remove possible disincentive to farmers to continue growing this crop—and not change the crop to something that will exclude use by larks or to keep it longer in non-suitable habitat status. Section 4(d) of the Act states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for conservation of species listed as threatened. Section 4(d) of the Act provides the Secretary with broad discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. As described below under II. Final Rule Issued Under Section 4(d) of the Act, the provisions of our 4(d) rule will promote conservation of the streaked horned lark by encouraging management of the landscape in ways that can meet both land management considerations and the conservation needs of the streaked horned lark. The prohibitions identified in the 4(d) rule, however, are considered necessary and advisable for the conservation of the streaked horned lark (see next comment and response).

(13) Comment: Several commenters stated that the proposed 4(d) rule leaves the streaked horned lark unprotected, and that existing regulations are insufficient to protect extant populations. One commenter stated that our rationale assumes that regulating agricultural practices would result in producers changing their practices or crops to avoid said regulations, but that the rise of the grass seed industry occurred in the same timeframe that larks began to decline. The commenter described the Willamette Valley as an ecological sink, where birds are attracted to habitat conditions, but management activities compromise reproductive success and survival. Commenters also note that the 4(d) rule excepts the agricultural industry as a whole, in spite of known effects on mortality, disturbance, and habitat alteration (shift in crop types based on market demands), for reasons other than conservation of the species, leaving the majority of the population in unregulated land use circumstances.

Response: With the loss of historical habitats during the last century, alternative breeding and wintering sites, including active agricultural lands, have become critical for the continued survival and recovery of the streaked horned lark. The largest area of potential habitat for streaked horned larks is the agricultural land base in the Willamette Valley. Larks are attracted to the wide, open landscape context and low vegetation structure in agricultural fields, especially in grass seed fields, probably because those working landscapes resemble the historical habitats formerly used by the subspecies when the historical disturbances associated with floods and fires maintained a mosaic of suitable habitats. In any year, some portion of the 920,000 ac (372,311 ha) of agricultural lands in the Willamette Valley will contain patches of suitable streaked horned lark habitat, but the geographic location of those areas may not be consistent from year to year, nor can we predict their occurrence due to variable agricultural practices (crop rotation, fallow fields, etc.), and we cannot predict the changing and dynamic locations of those areas.

While agricultural activities also have the potential to harm or kill individual streaked horned larks or destroy their nests, maintenance of extensive agricultural lands (primarily grass seed farms) in the Willamette Valley is crucial to maintaining the population of streaked horned larks in the valley and aiding in the recovery of the subspecies in Oregon, and our revised 4(d) rule provides landowners some incentive to continue operating and maintaining their lands in a manner that is consistent with current operations which provide habitats that the birds currently rely on. As discussed in the response to Comment 12, we acknowledge that there are a number of reasons why a landowner may change their practices or convert their crop to a different commodity, however, and our revised 4(d) rule will promote conservation of the streaked horned lark in that it recognizes and supports management of the landscape in ways that meet both land management considerations and the conservation needs of the streaked horned lark.

Currently in the Willamette Valley, there are approximately 360,000 ac (145,000 ha) of grass seed fields in production. In any year, some portion of these lands will have suitable streaked horned lark habitat, but the geographic location of those areas may not be consistent from year to year, nor can we predict their occurrence due to variable agricultural practices (crop rotation, fallow fields, etc.), and we cannot predict the changing and dynamic locations of those areas. Maintenance of extensive agricultural lands (primarily grass seed farms) is crucial to maintaining the population of streaked horned larks. The beneficial effects to the subspecies from maintaining these agricultural activities outweighs the negative effects from injuries to particular individual larks from these same activities. The exception for incidental take for certain agricultural activities on non-Federal lands in the revised 4(d) rule applies to the entire range of the subspecies, to encourage management actions that would facilitate the use of areas other than civilian and military airports by streaked horned larks within the range of the subspecies in Oregon and Washington.

Because landowners are free to allow vegetation growth that results in the conversion of lands into habitats unsuitable for the streaked horned lark, conservation of the species will benefit from the support of agricultural practices that result in the creation and maintenance of habitat that is suitable for the subspecies. Excepting routine agricultural activities on non-Federal lands throughout the range of the streaked horned lark from the prohibition on take will provide an overall benefit to the subspecies by maintaining suitable habitat.

(14) Comment: One commenter disagreed with our rationale for including restoration in the proposed 4(d) exceptions, stating the potentially lethal effects to larks resulting from restoration activities such as mowing, spraying pesticides, and tilling compromise the overall justification for excepting these activities. They also state that inclusion of prairie restoration in the proposed 4(d) rule eliminates opportunities for partnerships to address impacts with successful tools (nest protection).

Response: We acknowledge that the effects from habitat restoration activities (mowing, spraying, tilling, etc.) on larks are similar to the effects of disturbance mechanisms that occur at airports (mowing) and on agricultural fields (mowing, tilling, harvesting, etc.), which maintain habitat for larks through semi-regular disturbance. However, we continue to support restoration of native habitats throughout the subspecies' range because these sites may provide additional temporary habitat for larks. Furthermore, while there are potential effects to larks from habitat management activities on restoration sites, if these activities were discontinued, plant growth and vegetation succession would occur, which would result in habitats no longer supporting the low-stature vegetation with areas of bare ground or sparsely vegetated ground that larks prefer. In parallel to our excepting of routine agricultural activities, excepting habitat restoration actions (that may include adverse effects to lark in the short-term), will provide an overall benefit by maintaining and/or adding to suitable habitat for the subspecies. While the loss of individuals is never welcome, the continuation of land management activities that create replacement habitat is very important for conservation of the subspecies, and the benefits to the subspecies as a whole appear to outweigh the associated cost of the loss of individuals.

(15) Comment: Two commenters expressed concern that the 4(d) rule precludes actions necessary for the lark's survival and recovery, namely nest protection for the brief incubation period for larks nesting on privately owned agricultural land. The commenters did not provide suggestions for how such a nest protection program may be designed or administered on those private lands other than referencing application of section 9 take prohibitions. They did reference positive nest conservation efforts for the lark at Joint Base Lewis McChord (JBLM) in Washington, and for the western snowy plover ( Charadrius alexandrinus nivosus ) as examples of what they believe should be implemented in Oregon's private agricultural lands.

Response: Some amount of nest mortality may occur as a consequence of excepted agricultural activities. The Service is sensitive to this concern and has taken reasonable steps to minimize the risk to nesting streaked horned larks while also supporting these same activities that maintain habitat the subspecies depends on for nesting.

The commenters cite to lark nest protection on Federal lands at JBLM and to nest protection buffers applied for western snowy plover on Federal and state lands in Oregon, calling for similar protections for lark nests on private agricultural lands in Oregon. However, there are significant problems with this recommendation that serve to underscore and highlight the reasonable justifications for the 4(d) exceptions.

First, the examples cited by the commenters involve conservation occurring completely on public lands: U.S. Department of Defense lands at JBLM for lark conservation and, for the snowy plover, lands owned by the U.S. Forest Service, Bureau of Land Management, and the Oregon Parks and Recreation Department. The requirements and opportunities for conservation on these Federal and state lands are significantly different than those for privately owned lands. Under the Act, the Federal agencies have a section 7 obligation to provide for the conservation of the streaked horned lark and western snowy plover. Likewise, on State Park lands, conservation of listed species is an explicit component of the State's land management goals, and the State voluntarily sought and received a section 10 permit from the Service for western snowy plover conservation on their park lands. These examples stand in sharp contrast to the conservation measures that are legally required of private landowners under the Act. The commenters' use of these examples does not recognize the important distinction between landownership and associated conservation obligations.

Secondly, the commenters' recommendation that we locate, identify, buffer, and protect streaked horned lark nests on private agricultural lands presents several problems. The recommendation presupposes that we know where nests are across this vast landscape, or that we have a reliable mechanism for locating and accessing them. Unfortunately, we have very little detailed information about where streaked horned larks are nesting within this expansive agricultural private landscape of grass seed farms in the Willamette Valley (approximately 360,000 ac (145,000 ha)). As explained earlier, nesting sites shift over time and space, and larks are likely only using a very small subset of these areas in any given year, making nest site prediction and detection difficult. In addition, we do not have legal access to the majority of this privately owned landscape to survey and locate nests; this greatly limits our ability to identify and determine if and where any lark nests may be impacted. In the Willamette Valley, other than surveying for larks along the gravel margins of public roads or other public access points, we are reliant on private landowners to voluntarily share information about the presence of larks on their land as it becomes available to them. It is well documented in the scientific literature that most private landowners will not voluntarily share such information if they are concerned about adverse regulatory impacts to their economic livelihood, cultural practices, and private property rights (Raymond and Olive 2008, p. 485; Brook et al. 2003, pp. 1644-47; Mir and Dick 2012, entire). This dynamic makes conserving species on private lands one of the most difficult challenges of implementing the Act, both in Oregon and across the country (see, e.g., Epanchin-Niell and Boyd 2020, p. 410). Therefore, under this very specific set of circumstances regarding private agricultural lands (and in contrast to the commenters' examples regarding western snowy plovers and streaked horned larks on public lands), the tradeoffs contained in this section 4(d) rule represent the best conservation approach to a very difficult situation.

A thorough review of the taxonomy, life history, and ecology of the streaked horned lark is presented in the SSA report (U.S. Fish and Wildlife Service 2021a, pp. 4-19).

The streaked horned lark, a small songbird endemic to the Pacific Northwest, is one of 42 subspecies of horned lark worldwide and one of five breeding subspecies of horned larks in Washington and Oregon (Beason 1995, p. 2). Adults are pale brown, but shades of brown vary geographically among the subspecies. The male's face has a yellow wash in most subspecies. Adults have a black bib, black whisker marks, black “horns” (feather tufts that can be raised or lowered), and black tail feathers with white margins (Beason 1995, p. 2). Adults feed mainly on grass and forb seeds, but feed insects to their young (Beason 1995, p. 6). At coastal sites, streaked horned larks forage in the wrack line (the area where kelp, seagrass, shells, etc. are deposited at high tide) and in intertidal habitats (Pearson and Altman 2005, p. 8), and streaked horned larks in the Willamette Valley eat seeds of introduced weedy grasses and forbs, focusing on the seed source that is most abundant (Moore 2008a, p. 9).

Streaked horned larks historically selected habitat in relatively flat, open areas that were maintained by flooding, fire, and sediment transport dynamics. The interruption of these historical processes due to flood control dams, fire suppression, and reduction of sediment transport by dams resulted in a steep decline in the extent of historical habitat available for the lark. Currently, streaked horned larks are found in open areas free from visual obstructions like grasslands, prairies, wetlands, beaches, dunes, and modified or temporarily disturbed habitats such as agricultural or grass seed fields, airports, dredged material placement sites, and gravel roads. Streaked horned larks need relatively flat landscapes with sparse vegetation, preferring habitats with an average of 17 percent bare ground for foraging and 31 percent of bare ground for nesting (Altman 1999, p. 18). Typically, preferred habitats contain short vegetation, contain forbs and grasses that are less than 13 inches (in) (33 centimeters (cm)) in height, and have few or no trees or shrubs (Altman 1999, p. 18; Pearson and Hopey 2005, p. 27). The large, open areas used by populations of larks are regularly disturbed via burning, mowing, herbicide application, crop rotation, dredging material placement, and/or other anthropogenic regimes.

Habitat characteristics of agricultural lands used by streaked horned larks include: (1) Bare or sparsely vegetated areas within or adjacent to grass seed fields, pastures, or fallow fields; (2) recently planted (0 to 3 years) conifer farms with extensive bare ground; and (3) wetland mudflats or “drown outs” ( i.e., washed out and poorly performing areas within grass seed or row crop fields). Currently, there are approximately 420,000 acres (ac) (169,968 hectares (ha)) of grass seed fields and 500,000 ac (202,343 ha) of other agriculture in Oregon. Of the 420,000 ac, approximately 360,000 ac (145,000 ha) are located in the Willamette Valley (Oregon Seed Council 2018, p. 1). In any year, some portion of these areas will have suitable streaked horned lark habitat, but the geographic location of those areas may not be consistent from year to year due to variable agricultural practices (fallow fields, crop rotation, etc.), and we cannot predict the changing and dynamic locations of those areas.

Horned larks form breeding pairs in the spring (Beason 1995, p. 11), and territory size is variable. Territory size can range from 1.5 to 2.5 ac (0.61 to 1.0 ha) (Altman 1999, p. 11), and varies widely between sites and across years. For example, for 16 pairs of larks, territories ranged in size from 4.0 to 20.6 ac (1.6 to 8.3 ha) (Wolf et al. 2017, p. 12). Territories overlap substantially, and represent the semi-colonial breeding behavior of the species, where breeding territories are adjacent to other pairs at the same site but nests are not in extremely close proximity (Wolf et al. 2017, p. 12). The nesting season ( i.e., clutch initiation to fledging) for streaked horned larks begins in mid-April and ends in late August, with peaks in May and early June (Pearson and Hopey 2004, p. 11; Moore 2011, p. 32; Wolf 2011, p. 5; Wolf and Anderson, 2014, p. 19). After the first nesting attempt in April, streaked horned larks will often re-nest in late June or early July (Pearson and Hopey 2004, p. 11). Nests are positioned adjacent to vegetation or other structural elements and are lined with soft vegetation (Pearson and Hopey 2005, p. 23; Moore and Kotaich 2010, p. 18). Streaked horned lark nesting success ( i.e., the proportion of nests that result in at least one fledged chick) is highly variable, which is consistent with other ground-nesting passerines (Best 1978, pp. 16-20; Johnson and Temple 1990, p. 6).

The average minimum viable population (MVP) for the groups Aves and Passerines has been identified as 5,269 and 6,415 individuals, respectively. This number was determined using methodology described in a meta-analysis of multiple taxa (birds, fish, mammals, reptiles and amphibians, plants, insects, and marine invertebrates) (Anderson 2015, p. 2). Although we do not know what the historical abundance was for streaked horned lark rangewide (historical abundance estimates throughout the lark's range are largely anecdotal in nature), based on the MVPs for similar species, it was most likely larger than the current abundance. The draft recovery plan for streaked horned lark (U.S. Fish and Wildlife Service 2019, entire) has a rangewide population goal of 5,725 individuals. The most recent rangewide population estimate for streaked horned larks is 1,170 to 1,610 individuals. This estimate is based on data compiled from multiple survey efforts, plus extrapolation to areas of potential suitable habitat not surveyed ( e.g., inaccessible private lands), particularly in the Willamette Valley (Altman 2011, p. 213).

The streaked horned lark currently occurs in local populations (defined here as scattered breeding sites or areas of habitat to which individuals return each year) in three regions across the range: The South Puget Lowlands in Washington, the Pacific Coast and Lower Columbia River in Washington and Oregon, and the Willamette Valley in Oregon.

Under authority of the WCPFC Implementation Act (16 U.S.C. 6901 et seq. ), NMFS published an interim final rule that established a framework to implement short-notice WCPFC decisions. NMFS simultaneously issued temporary specifications to implement three short-notice WCPFC decisions until September 14, 2021. Additional background information on the Commission, the Convention, the interim final rule, and temporary specifications, is available in the Federal Register document that includes the interim final rule and temporary specifications (86 FR 31178; June 11, 2021). Pursuant to a WCPFC decision, NMFS extended the effective date of those three temporary specifications until April 14, 2022 (87 FR 885; January 7, 2022).

On April 8, 2020, in response to the international concerns over the health of observers and vessel crews due to COVID-19, the Commission made an intersessional decision to suspend the requirements for observer coverage on purse seine vessels on fishing trips in the Convention Area through May 31, 2020. The Commission subsequently extended that decision several times, and the current extension is effective until June 15, 2022.

On April 20, 2020, in response to the international concerns over the health of vessel crews and port officials due to COVID-19, the Commission made an intersessional decision to modify the prohibition on at-sea transshipment for purse seine vessels as follows—purse seine vessels can conduct at-sea transshipment in an area under the jurisdiction of a port State, if transshipment in port cannot be conducted, in accordance with the domestic laws and regulations of the port State. The Commission decided not to extend that decision past March 15, 2022.

On May 13, 2020, in response to the international concerns over the health of observers and vessel crews due to COVID-19, the Commission made an intersessional decision to suspend the requirements for observer coverage for at-sea transshipments. The Commission subsequently extended that decision and the current extension is effective until June 15, 2022.

NMFS is using the framework as set forth at 50 CFR 300.228 to extend the effective date of the temporary specifications implementing two of the three recent WCPFC intersessional decisions (WCPFC decisions dated April 8, 2020 and May 13, 2020), described above, that are in effect until June 15, 2022. The regulations to implement short-notice WCPFC decisions at 50 CFR 300.228 provide that temporary specifications to implement such short-notice decisions will remain in effect for less than one year. Because NMFS implemented the temporary specifications on purse seine and at-sea transshipment observer coverage on June 11, 2021, these temporary specifications cannot be extended past June 10, 2022 under the current framework at 50 CFR 300.228.

Accordingly, the requirements of the following regulations are waived. Such waiver shall remain in effect until June 10, 2022, unless NMFS earlier rescinds this waiver by publication in the Federal Register :

• 50 CFR 300.223(e)(1). During the term of this waiver, U.S. purse seine vessels are not required to carry WCPFC observers  1 on all fishing trips in the Convention Area. However, the regulations at 50 CFR 300.215(c)(1) that require all vessels with WCPFC Area Endorsements or for which WCPFC Area Endorsements are required to carry WCPFC observers when directed by NMFS remain in effect; and

• 50 CFR 300.216(b)(2) and 50 CFR 300.215(d). During the term of this waiver, owners and operators of U.S. commercial fishing vessels fishing for highly migratory species in the Convention Area are not prohibited from at-sea transshipment without a WCPFC observer on board the offloading or receiving vessel.

NMFS is using the framework as set forth at 50 CFR 300.228 to revoke the temporary specification that implemented the WCPFC decision dated April 20, 2020, to waive the prohibition on purse seine at-sea transshipments set forth at 50 CFR 300.216(b)(1).

NMFS issues this action pursuant to the WCPFC Implementation Act and the regulations at 50 CFR 300.228. This action is exempt from review under Executive Order 12866.

There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment on the temporary measures included in this action, because prior notice and the opportunity for public comment is unnecessary and would be contrary to the public interest. Opportunity for public comment is unnecessary because the regulations establishing the framework and providing notice of the Commission's decisions described above have already been subject to notice and public comment, and all that remains is to notify the public of the extension of those Commission decisions. NMFS will be responding to public comments received on the framework and those Commission decisions in a separate rule. In addition, the opportunity for public comment is unnecessary because the extensions of effective date of two short-notice WCPFC decisions have already gone into effect and as a contracting party to the Convention, NMFS is obligated to carry out those extensions.

For the reasons articulated above, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective dates for the temporary measures.

The snapper-grouper fishery of the South Atlantic includes golden tilefish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The commercial sector for golden tilefish comprises the longline and hook-and-line components. The commercial golden tilefish ACL is allocated 75 percent to the longline component and 25 percent to the hook-and-line component. The commercial ACL (equivalent to the commercial quota) is 331,740 lb (150,475 kg) gutted weight, and the longline component quota is 248,805 lb (112,856 kg) gutted weight (50 CFR 622.190(a)(2)(iii).

Under 50 CFR 622.193(a)(1)(ii), NMFS is required to close the commercial longline component for golden tilefish when the longline component's commercial quota specified under 50 CFR 622.190(a)(2)(iii) is reached or is projected to be reached by filing a notification to that effect with the Office of the Federal Register. After the longline component quota is reached or is projected to be reached, golden tilefish may not be commercially fished or possessed by a vessel with a golden tilefish longline endorsement. NMFS previously determined that the commercial quota for the golden tilefish longline component in the South Atlantic would be reached by March 16, 2022. Therefore, NMFS published a temporary rule to close the commercial longline component for South Atlantic golden tilefish from March 16, 2022, through the end of the 2022 fishing year (87 FR 14419; March 15, 2022). However, a recent landings estimation indicates that the commercial longline ACL for golden tilefish has not been met.

In accordance with 50 CFR 622.8(c), NMFS temporarily re-opens the commercial longline component for golden tilefish for 6 days to allow for the commercial longline ACL to be reached. The commercial longline component will reopen at 12:01 a.m. eastern time on April 11, 2022, and will close at 12:01 a.m. eastern time on April 17, 2022. NMFS has determined that this re-opening will allow for an additional opportunity to commercially harvest the golden tilefish longline component quota while minimizing the risk of exceeding the commercial ACL. Following the 6 day reopening, harvest for golden tilefish by the commercial longline component will be closed for the remainder of 2022 and will open on January 1, 2023, the start of the next fishing year.

The operator of a vessel with a valid Federal commercial vessel permit for South Atlantic snapper-grouper and a valid commercial longline endorsement for golden tilefish having golden tilefish on board must have landed and bartered, traded, or sold such golden tilefish prior to 12:01 a.m. eastern time on April 17, 2022. During the subsequent commercial longline closure, golden tilefish may still be commercially harvested using hook-and-line gear on a vessel with a commercial South Atlantic Unlimited Snapper-Grouper permit without a longline endorsement until the hook-and-line quota specified in 50 CFR 622.190(a)(2)(ii) is reached.

However, a vessel with a golden tilefish longline endorsement is not eligible to fish for or possess golden tilefish using hook-and-line gear under the hook-and-line commercial trip limit, as specified in 50 CFR 622.191(a)(2)(ii). During the commercial longline closure, the recreational bag limit and possession limits specified in 50 CFR 622.187(b)(2)(iii) and (c)(1), respectively, apply to all harvest or possession of golden tilefish in or from the South Atlantic EEZ by a vessel with a golden tilefish longline endorsement.

The sale or purchase of longline-caught golden tilefish taken from the South Atlantic EEZ is prohibited during the commercial longline closure. The prohibition on sale or purchase does not apply to the sale or purchase of longline-caught golden tilefish that were harvested, landed ashore, and sold prior to 12:01 a.m. eastern time on April 17, 2022, and were held in cold storage by a dealer or processor. Additionally, the recreational bag and possession limits and the sale and purchase provisions of the commercial closure apply to a person on board a vessel with a golden tilefish longline endorsement, regardless of whether the golden tilefish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.8(c) and 622.190(a)(2)(iii), issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment is unnecessary and contrary to the public interest. Such procedures are unnecessary and contrary to public interest because the regulations associated with the commercial golden tilefish longline component ACL and a reopening of harvest have already been subject to notice and public comment, and all that remains is to notify the public of the commercial longline component reopening.

For the aforementioned reasons, the Assistant Administrator for Fisheries also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

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

The B season apportionment of the 2022 Pacific cod TAC allocated to catcher vessels using trawl gear in the BSAI is 3,262 metric tons (mt) as established by the final 2022 and 2023 harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022). NMFS closed directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI under § 679.20(d)(1)(iii) on April 2, 2022 (87 FR 19808, April 6, 2022).

NMFS has determined that as of April 7, 2022, approximately 1,700 metric tons of Pacific cod remain in the B season apportionment of the 2022 Pacific cod allocated to catcher vessels using trawl gear in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2022 total allowable catch (TAC) of Pacific cod in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod by catcher vessels using trawl gear in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.

While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of Pacific cod by catcher vessels using trawl gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of April 7, 2022.

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

Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher vessels by trawl gear in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until April 28, 2022.

Authority: 16 U.S.C. 1801 et seq.