I. Discussion of the Rule

The Department of Homeland Security (“DHS”) is revising its regulations at 6 CFR part 5, subpart C, Disclosure of Information in Litigation. DHS is making two changes.

First, historically, under these regulations, DHS's Office of the General Counsel has accepted service of process of summonses and complaints in person or by mail, at “Office of the General Counsel, United States Department of Homeland Security, Washington, DC 20528.” See 6 CFR 5.42(a). The mailing address in the applicable regulations is unclear and does not include information about service of process with respect to DHS's operational components. In addition, currently, appropriate employees of the Office of the General Counsel are not consistently available to accept in-person service at the relevant address, due to DHS's response to the current national emergency relating to the Coronavirus Disease 2019 (COVID-19) pandemic.

To address these issues, and consistent with rule 4( i )(2) of the Federal Rules of Civil Procedure, DHS is revising its procedures to provide for service of process of summonses and complaints by registered or certified mail to a specific address identified in the regulations. See revised 6 CFR 5.42(a); see also new appendix A to subpart C of 6 CFR part 5. The rule provides that DHS may also in its discretion accept service of process in person or by other means, as announced on the DHS website. See revised 6 CFR 5.42(a). The Office of the General Counsel currently does not accept service of process in person or by such other means. See DHS, Office of the General Counsel, Contact, https://www.dhs.gov/office-general-counsel (last visited Apr. 13, 2020).

Second, this rule also revises applicable procedures to clarify the appropriate address for service of subpoenas. See revised 6 CFR 5.43(a); new 6 CFR 5.43(g); see also new appendix A to subpart C of 6 CFR part 5. Like the changes described in the preceding paragraph, this rule provides DHS may in its discretion specify alternative means of service of subpoenas on the DHS website. See revised 6 CFR 5.43(a); new 6 CFR 5.43(g). Otherwise, the personal service requirement of rule 45(b) of the Federal Rules of Civil Procedure will continue to apply. This change supports DHS's response to the current national emergency; the Office of the General Counsel, for instance, is currently waiving personal service and accepting subpoenas by email, as announced on https://www.dhs.gov/office-general-counsel.

The aforementioned provisions are intended to be severable from the others, such that if any one provision is stayed, enjoined, or vacated by a court of competent jurisdiction, the others will remain in effect.

DHS did not publish a notice of proposed rulemaking for this rule. Under 5 U.S.C. 553(b)(A), this rule is exempt from notice and public comment rulemaking requirements because the change involves rules of agency organization, procedure, or practice. In addition, under 5 U.S.C. 553(b)(B), an agency may waive the notice and comment requirements if it finds, for good cause, that notice and comment is impracticable, unnecessary, or contrary to the public interest. DHS finds that notice and comment is unnecessary under 5 U.S.C. 553(b)(B) because the changes herein are procedural in nature and will have no substantive effect on the public. In addition, to whatever extent existing regulations at 6 CFR 5.42 and 5.43 could be said to require DHS to accept in-person service of process during the current national emergency, DHS has good cause to remove any such requirement to avoid the unnecessary spread of COVID-19. For the same reasons, DHS finds that the delayed effective date provision of 5 U.S.C. 553 does not apply because this rule is not “substantive,” and that even if the provision did apply, good cause exists under 5 U.S.C. 553(d)(3) for making this final rule effective immediately upon publication.

DHS considered numerous statutes and Executive orders related to rulemaking when developing this rule. Below are summarized analyses based on these statutes and Executive orders.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) 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 (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, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. Because this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See the OMB Memorandum titled “Guidance Implementing Executive Order 13771, titled `Reducing Regulation and Controlling Regulatory Costs'” (April 5, 2017). This rule involves non-substantive procedural changes; it will not impose any additional costs on the public. The benefit of the non-substantive change that updates internal agency procedures is increased clarity and accuracy of regulations for the public.

This rule is not preceded by a notice of proposed rulemaking. Therefore, it is exempt from the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The Regulatory Flexibility Act does not apply when notice and comment rulemaking is not required.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

DHS reviews proposed actions to determine whether the National Environmental Policy Act (NEPA) applies to them and if so what degree of analysis is required. DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the procedures that DHS and its components use to comply with NEPA and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508.

The CEQ regulations allow federal agencies to establish, with CEQ review and concurrence, categories of actions (“categorical exclusions”) which experience has shown do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4. For an action to be categorically excluded, it must satisfy each of the following three conditions: (1) The entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect. Instruction Manual section V.B(2)(a)-(c).

This rule is a technical amendment that updates internal agency procedures. Specifically, the amendment updates the address and procedures for service of summonses and complaints, and for service of subpoenas, court orders, and other demands or requests for official information from the Department. Therefore, it clearly fits within categorical exclusion A3(a) “Promulgation of rules . . . of a strictly administrative or procedural nature.” Instruction Manual, Appendix A, Table 1. Furthermore, the rule is not part of a larger action and presents no extraordinary circumstances creating the potential for significant environmental impacts. Therefore, the amendment is categorically excluded from further NEPA review.

The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, is delegating the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register .

For the reason stated in the preamble, DHS amends 6 CFR part 5 as follows:

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to remove AD 2008-24-04, Amendment 39-15744 (73 FR 71530, November 25, 2008) (“AD 2008-24-04”) and add a new AD. AD 2008-24-04 applied to Eurocopter France (now Airbus Helicopters) Model AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters. The NPRM published in the Federal Register on December 31, 2019 (84 FR 72254). The NPRM proposed to continue to require the requirements of AD 2008-24-04 of repetitively inspecting the lubricating pump and checking the chip detector and the MGB oil-sight glass. The NPRM proposed to add an option to alter the lubrication system (modification (MOD) 077222) as a terminating action for the repetitive inspections. For those helicopters that incorporate Mod 077222, the NPRM also proposed to require using mineral oil 0-155 in the combiner gearbox instead of synthetic oil 0-156. This NPRM proposed to exclude helicopters with MOD 077222 from the applicability. An owner/operator (pilot) may perform the visual checks proposed by the NPRM and must enter compliance with that paragraph into the helicopter maintenance records in accordance with Title 14 Code of Federal Regulations (14 CFR) §§  43.9(a)(1) through (4) and 14 CFR 91.417(a)(2)(v). A pilot may perform this check because it involves only a visual check and can be performed equally well by a pilot or a mechanic. This check is an exception to the FAA's standard maintenance regulations.

The NPRM was prompted by EASA AD No. 2007-0209R1, dated September 11, 2015 (EASA AD 2007-0209R1), issued by EASA, which is the Technical Agent for the Member States of the European Union. EASA AD 2007-0209R1 followed the issuance of service information by Airbus Helicopters to provide procedures for Airbus Helicopters MOD 077222, which improves the distribution of the oil flow between the accessory modules of the combiner gearbox and the MGB. EASA advises that Airbus Helicopters MOD 077222 provides the same level of safety as the MGB pump inspections. Accordingly, the EASA AD applies to Airbus Helicopters Model AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters with a lubrication pump part number 355A32-0700-01, 355A32-0700-02, or 355A32-0701-00 installed, except those with Airbus Helicopters MOD 077222 installed, and requires repetitive MGB pump inspections and chip detector and MGB oil-sight glass checks, and allows MOD 077222 as optional terminating action for the repetitive inspections.

The FAA gave the public the opportunity to participate in developing this AD, but the FAA did not receive any comments on the NPRM.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all information provided by EASA and determining the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

The EASA AD requires that the initial and repetitive MGB oil inspections be conducted after the last flight of each day without exceeding 10 flight hours between two successive checks. This AD requires those inspections before the first flight of each day and at intervals not to exceed 10 hours time-in-service.

The FAA reviewed Eurocopter Alert Service Bulletin (ASB) No. 05.00.51, dated July 9, 2007 (ASB 05.00.51), and Airbus Helicopters ASB No. 05.00.51, Revision 1, dated July 29, 2015. This service information contains procedures for monitoring the MGB oil pump for wear. Revision 1 of this service information omits helicopters with MOD 077222 installed.

The FAA also reviewed Airbus Helicopters Service Bulletin No. AS355-63.00.25, Revision 1, dated July 29, 2015, and Revision 2, dated June 22, 2017. This service information contains procedures for altering the lubrication system to increase oil flow between the accessory modules of the combiner gearbox and the MGB. This service information also specifies using mineral oil 0-155 in the combiner gearbox instead of synthetic oil 0-156 after completing the alteration. Airbus Helicopters identifies this alteration as MOD 077222. Revision 2 of this service information clarifies a procedure and updates a work card.

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

The FAA reviewed Eurocopter Emergency ASB No. 05.00.40, Revision 3, dated July 9, 2007. This service information specifies inspecting the MGB magnetic plug for sludge and oil sight for color. If there is sludge or if the oil is dark or dark purple, this service information specifies removing the lubrication pump and inspecting it for certain conditions, and replacing it as necessary. Revision 3 of this service information informs operators that this service information is superseded by ASB 05.00.51.

The FAA estimates that this AD affects 46 helicopters of U.S. Registry. Labor costs are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this AD.

• Checking the MGB oil and chip detector condition takes about 0.25 work-hour for an estimated cost of about $21 per helicopter and $966 for the U.S. fleet per check.

• Inspecting the lubricating pump takes about 1 work-hour for an estimated cost of $85 per helicopter and $3,910 for the U.S. fleet per inspection.

• Replacing the MGB and pump takes about 8 work-hours and costs about $64,000 (overhauled) in parts for an estimated cost of $64,680 per helicopter.

• Altering the lubrication system (optional MOD 077222) takes about 4 work-hours and costs about $2,335 in parts for an estimated cost of $2,675 per helicopter.

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

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

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

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

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

2. Will not affect intrastate aviation in Alaska, and

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

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

Background

The FAA published a final rule in the Federal Register for Docket No. FAA-2019-0677 (85 FR 13481, March 9, 2020), removing VOR Federal airway V-61 in its entirety and extending RNAV route T-286 in its place due to the planned decommissioning of the Robinson, KS, VOR NAVAID. The effective date for that final rule is May 21, 2020. Subsequent to the final rule, due to COVID-19 pandemic concerns and response considerations, ATC facilities across the National Airspace System (NAS) have adjusted controller scheduling and reduced staffing to reduce pandemic impacts. This has resulted in controller training and briefing challenges while they perform essential ATC duties supporting the NAS. As a result, some ATC facilities affected by the rule amendments were unable to complete the required pre-requisite controller training necessary to safely implement new air traffic procedures necessary to adopt the regulatory air traffic service (ATS) route amendments, and accompanying arrival procedure actions, to support the May 21, 2020, effective date.

To facilitate the safe and continuous use of existing air traffic procedures, and allow sufficient time for ATC facilities to complete the required prerequisite training necessary to safely implement the new air traffic procedures, the planned decommissioning of the Robinson, KS, VOR has been slipped to September 10, 2020. Therefore, the rule removing V-61 and amending T-286 is delayed to coincide with that date.

VOR Federal airways are published in paragraph 6010(a) and RNAV T-routes are published in paragraph 6011 of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways and RNAV T-route listed in this document will be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

Section 553(b)(3)(B) of Title 5, United States Code, (the Administrative Procedure Act) authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking. The FAA finds that prior notice and public comment to this final rule is unnecessary due to the brief length of the extension of the effective date and the fact that there is no substantive change to the rule.”

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and Orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this rule on or after May 26, 2020 are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

The docket includes information considered by the Agency in developing the proposed and final rules. The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2019-0263, is available at http://www.regulations.gov or at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

EPA is finalizing a SNUR under TSCA section 5(a)(2) for chemical substances which were the subject of PMNs P-16-425, P-18-125, P-18-228, P-18-234, P-18-270, P-18-322, P-19-4, and P-19-34. These SNURs require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.

Previously, in the Federal Register of June 11, 2019 (84 FR 27061) (FRL-9994-85), EPA proposed a SNUR for these chemical substances in 40 CFR part 721 subpart E. More information on the specific chemical substances subject to this final rule can be found in the Federal Register documents proposing the SNUR. The record for the SNUR was established in the docket under docket ID number EPA-HQ-OPPT-2019-0263. That docket includes information considered by the Agency in developing the proposed and final rules, public comments submitted for the proposed rule, and EPA's responses to public comments received on the proposed rule.

Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. As described in Unit V. of the proposed SNUR, the general SNUR provisions are found at 40 CFR part 721, subpart A.

General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination before the manufacture or processing for the significant new use can commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register , a statement of EPA's findings.

Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors. In determining what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, and potential human exposures and environmental releases that may be associated with the conditions of use of the substances, in the context of the four bulleted TSCA section 5(a)(2) factors listed in this unit.

EPA received public comments from two identifying entities on the proposed rule. The Agency's responses are described in a separate Response to Public Comments document contained in the public docket for this rule, EPA-HQ-OPPT-2019-0263.

EPA is establishing significant new use and recordkeeping requirements for chemical substances in 40 CFR part 721, subpart E. In Unit IV. of the June 11, 2019 proposed SNUR (84 FR 27061) (FRL-9994-85), EPA provided the following information for each chemical substance:

• PMN number.

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).

• Basis for the SNUR.

• Information identified by EPA that would help characterize the potential health and/or environmental effects of the chemical substances if a manufacturer or processor is considering submitting a SNUN for a significant new use designated by the SNUR.

This information may include testing not required to be conducted but which would help characterize the potential health and/or environmental effects of the PMN substance. Any recommendation for information identified by EPA was made based on EPA's consideration of available screening-level data, if any, as well as other available information on appropriate testing for the chemical substance. Further, any such testing identified by EPA that includes testing on vertebrates was made after consideration of available toxicity information, computational toxicology and bioinformatics, and high-throughput screening methods and their prediction models. EPA also recognizes that whether testing/further information is needed will depend on the specific exposure and use scenario in the SNUN. EPA encourages all SNUN submitters to contact EPA to discuss any potential future testing. See Unit VIII. for more information.

• CFR citation assigned in the regulatory text section of these rules.

The regulatory text section of these rules specifies the activities designated as significant new uses. Certain new uses, including production volume limits and other uses designated in the rules, may be claimed as CBI.

The chemical substances that are the subject of these SNURs completed premanufacture review. In addition to those conditions of use intended by the submitter, EPA has identified certain other reasonably foreseen conditions of use. EPA has preliminarily determined that the chemicals under their intended conditions of use are not likely to present an unreasonable risk. However, EPA has not assessed risks associated with the reasonably foreseen conditions of use for these chemicals. EPA is designating these reasonably foreseen and other potential conditions of use as significant new uses. As a result, those conditions of use are no longer reasonably foreseen to occur without first going through a separate, subsequent EPA review and determination process associated with a SNUN.

During review of the PMNs submitted for the chemical substances that are the subject of these SNURs and as further discussed in Unit IV of the June 11, 2019 proposed rule (84 FR 27061) (FRL-9994-85), EPA identified certain reasonably foreseen conditions of use and other circumstances different from the intended conditions of use identified in the PMNs and determined that those changes could result in changes in the type or form of exposure to the chemical substances and/or increased exposures to the chemical substances and/or changes in the reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of the chemical substances.

EPA is issuing these SNURs because the Agency wants:

• To receive notice of any person's intent to manufacture or process a listed chemical substance for the described significant new use before that activity begins.

• To have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

• To be obligated to make a determination under TSCA section 5(a)(3) regarding the use described in the SNUN, under the conditions of use. The Agency will either determine under section 5(a)(3)(C) that the significant new use is not likely to present an unreasonable risk, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use, or make a determination under section 5(a)(3)(A) or (B) and take the required regulatory action associated with the determination, before manufacture or processing for the significant new use of the chemical substance can occur.

• To be able to identify as significant new uses any manufacturing, processing, use, distribution in commerce, or disposal that does not conform to the restrictions imposed by the underlying Orders, consistent with TSCA section 5(f)(4).

Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the internet at http://www.epa.gov/opptintr/existingchemicals/pubs/tscainventory/index.html.

To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted EPA concludes that the designated significant new uses are not ongoing.

EPA designated June 6, 2019 as the cutoff date for determining whether the new use is ongoing. The objective of EPA's approach has been to ensure that a person could not defeat a SNUR by initiating a significant new use before the effective date of the final rule.

In the unlikely event that a person began commercial manufacture or processing of the chemical substances for a significant new use identified as of June 6, 2019 that person will have to cease any such activity upon the effective date of the final rule. To resume their activities, that person would have to first comply with all applicable SNUR notification requirements and wait until EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken such actions as are required with that determination.

EPA recognizes that TSCA section 5 does not require development of any particular new information ( e.g., generating test data) before submission of a SNUN. There is an exception: If a person is required to submit information for a chemical substance pursuant to a rule, Order or consent agreement under TSCA section 4 (15 U.S.C. 2603), then TSCA section 5(b)(1)(A) (15 U.S.C. 2604(b)(1)(A)) requires such information to be submitted to EPA at the time of submission of the SNUN.

In the absence of a rule, Order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see § 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Unit IV. of the proposed SNUR lists potentially useful information for all SNURs listed here. Descriptions are provided for informational purposes. The potentially useful information identified in Unit IV. of the proposed SNUR will be useful to EPA's evaluation in the event that someone submits a SNUN for the significant new use. Companies who are considering submitting a SNUN are encouraged, but not required, to develop the information on the substance, which may assist with EPA's analysis of the SNUN.

EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h).

The potentially useful information described in Unit IV. of the proposed SNUR may not be the only means of providing information to evaluate the chemical substance associated with the significant new uses. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e) or 5(f). EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.

By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at § 721.1725(b)(1).

Under these procedures a manufacturer or processor may request EPA to determine whether a proposed use would be a significant new use under the rule. The manufacturer or processor must show that it has a bona fide intent to manufacture or process the chemical substance and must identify the specific use for which it intends to manufacture or process the chemical substance. If EPA concludes that the person has shown a bona fide intent to manufacture or process the chemical substance, EPA will tell the person whether the use identified in the bona fide submission would be a significant new use under the rule. Since most of the chemical identities of the chemical substances subject to these SNURs are also CBI, manufacturers and processors can combine the bona fide submission under the procedure in § 721.1725(b)(1) with that under § 721.11 into a single step.

If EPA determines that the use identified in the bona fide submission would not be a significant new use, i.e., the use does not meet the criteria specified in the rule for a significant new use, that person can manufacture or process the chemical substance so long as the significant new use trigger is not met. In the case of a production volume trigger, this means that the aggregate annual production volume does not exceed that identified in the bona fide submission to EPA. Because of confidentiality concerns, EPA does not typically disclose the actual production volume that constitutes the use trigger. Thus, if the person later intends to exceed that volume, a new bona fide submission would be necessary to determine whether that higher volume would be a significant new use.

According to § 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and § 721.25. E-PMN software is available electronically at http://www.epa.gov/opptintr/newchems.

EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2019-0263.

This action establishes SNURs for several new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

According to PRA (44 U.S.C. 3501 et seq. ), an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable. EPA is amending the table in 40 CFR part 9 to list the OMB approval number for the information collection requirements contained in this action. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the display requirements of PRA and OMB's implementing regulations at 5 CFR part 1320. This Information Collection Request (ICR) was previously subject to public notice and comment prior to OMB approval, and given the technical nature of the table, EPA finds that further notice and comment to amend it is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) to amend this table without further notice and comment.

The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Regulatory Support Division, Office of Mission Support (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency hereby certifies that promulgation of this SNUR would not have a significant adverse economic impact on a substantial number of small entities. The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the final rule as a “significant new use.” Because these uses are “new,” based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. Although some small entities may decide to pursue a significant new use in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a small number of notices per year. For example, the number of SNUNs received was seven in Federal fiscal year (FY) 2013, 13 in FY2014, six in FY2015, 10 in FY2016, 14 in FY2017, and 11 in FY2018 and only a fraction of these were from small businesses. In addition, the Agency currently offers relief to qualifying small businesses by reducing the SNUN submission fee from $16,000 to $2,800. This lower fee reduces the total reporting and recordkeeping of cost of submitting a SNUN to about $10,116 for qualifying small firms. Therefore, the potential economic impacts of complying with this SNUR are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published in the Federal Register of June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that final SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined that this action does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq. ).

This action will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).

This action does not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This action does not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action.

This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

This action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.

In addition, since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), does not apply to this action.

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR parts 9 and 721 are amended as follows:

On June 22, 2010, (75 FR 35520) EPA promulgated a new 1-hour primary SO 2 NAAQS of 75 parts per billion (ppb). Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS. This designation process is described in section 107(d)(1) of the CAA. On August 5, 2013 (78 FR 47191), EPA designated 29 areas of the country, including the Allegheny Area, as nonattainment for the 2010 SO 2 NAAQS based on violating air quality monitoring data for calendar years 2009-2011. 1 The Allegheny Area is entirely within Pennsylvania and is comprised of the City of Clairton, the City of Duquesne, the City of McKeesport, the Townships of Elizabeth, Forward, and North Versailles, and the following Boroughs: Braddock, Dravosburg, East McKeesport, East Pittsburgh, Elizabeth, Glassport, Jefferson Hills, Liberty, Lincoln, North Braddock, Pleasant Hills, Port Vue, Versailles, Wall, West Elizabeth, and West Mifflin.

The Allegheny Area designation became effective on October 4, 2013. Section 191(a) of the CAA directs states to submit SIP revisions for designated SO 2 nonattainment areas to EPA within 18 months of the effective date of the designation, i.e., in this case by no later than April 4, 2015. Under CAA section 192(a), these SIP submissions are required to include measures that will bring the nonattainment area into attainment of the NAAQS as expeditiously as practicable, but no later than five years from the effective date of designation. The attainment date for the Allegheny Area was therefore October 4, 2018.

Attainment plans for SO 2 must meet sections 110, 172, 191 and 192 of the CAA. The required components of an attainment plan submittal are listed in section 172(c) of title 1, part D of the CAA. EPA's regulations governing SIPs are set forth at 40 CFR part 51, with specific procedural requirements and control strategy requirements at subparts F and G, respectively. Soon after Congress enacted the 1990 Amendments to the CAA, EPA issued comprehensive guidance on SIPs, in a document entitled “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” published at 57 FR 13498 (April 16, 1992) (General Preamble). Among other things, the General Preamble addressed SO 2 SIPs and fundamental principles for SIP control strategies. Id. at 13545-49, 13567-68. On April 23, 2014, EPA issued recommended guidance (hereafter 2014 SO 2 Guidance) for how state submissions could address the statutory requirements for SO 2 attainment plans. 2 In this guidance, EPA described the statutory requirements for an attainment plan, which include: An accurate base year emissions inventory of current emissions for all sources of SO 2 within the nonattainment area (172(c)(3)); an attainment demonstration that includes a modeling analysis showing that the enforceable emissions limitations and other control measures taken by the state will provide for expeditious attainment of the NAAQS (172(c)); RFP (172(c)(2)); implementation of RACM, including RACT (172(c)(1)); NNSR requirements (172(c)(5)); and adequate contingency measures for the affected area (172(c)(9)).

On March 18, 2016, effective April 18, 2016, EPA published a document that Pennsylvania and other states had failed to submit the required SO 2 attainment plans by the April 4, 2015 submittal deadline. See 81 FR 14736. This finding initiated a deadline under CAA section 179(a) for the potential imposition of new source review and highway funding sanctions. Additionally, under CAA section 110(c), the finding triggered a requirement that EPA promulgate a federal implementation plan (FIP) within two years of the effective date of the finding unless, by that time, the state has made the necessary complete submittal and EPA has approved the submittal as meeting applicable requirements before the Administrator promulgates a FIP. Following Pennsylvania's submittal of ACHD's attainment plan SIP on October 3, 2017, EPA sent a letter dated October 6, 2017 to Pennsylvania finding the submittal was complete and therefore the sanctions deadline no longer applied and sanctions under section 179(a) would not be imposed as a consequence of Pennsylvania's having missed the original deadline.

On November 19, 2018 (83 FR 58206), EPA proposed approval of Pennsylvania's October 3, 2017 SO 2 attainment plan submittal for the Allegheny Area. The notice of proposed rulemaking (NPRM) described the requirements that nonattainment plans are designed to meet and provided extensive discussion of EPA's rationale for proposing to approve the Pennsylvania submittal as meeting these requirements. Notably, the Allegheny Area attainment plan included 30-day rolling average hourly SO 2 emission limits for the following sources: Clairton Coke Works, Edgar Thomson, Irvin Works, and Harsco Metals. The NPRM included an extensive discussion of EPA's 2014 SO 2 Guidance allowing the use of 30-day rolling average hourly SO 2 emission limits, including a full discussion of EPA's rationale for concluding that properly set longer-term average SO 2 emission limits of up to 30 days (in particular, longer-term emission limits that are comparably stringent to the 1-hour limits that would otherwise be established) can be effective in providing for attainment. The NPRM then described EPA's review of the modeling that Pennsylvania submitted to demonstrate that the limits adopted by ACHD would provide for attainment of the 2010 SO 2 NAAQS and described EPA's review of whether the submittals met other applicable requirements, such as the requirements for an emissions inventory, RFP, NNSR, and contingency measures. On this basis, EPA proposed to conclude that the SO 2 emission limits established for Clairton, Edgar Thomson, Irvin, and Harsco Metals assure attainment in the Allegheny Area. More generally, EPA proposed to approve Pennsylvania's SIP submittal as addressing the nonattainment planning requirements. The specific attainment plan requirements and EPA's rationale for proposing approval of the Allegheny Area attainment plan are explained in detail in the NPRM and will not be restated here. Five commenters submitted comments on the NPRM. One commenter supported the proposal, and one commenter provided comments that were not germane to the proposed rulemaking. The remaining three commenters submitted adverse comments that are addressed in the next section. All of the comments are included in the Docket for this rulemaking at https://www.regulations.gov, Docket ID Number EPA-R03-OAR-2017-0730.

Three comment letters—one anonymous, one from the Sierra Club and one from the Clean Air Council—provided comments relevant to this rulemaking. The comments submitted by the Clean Air Council included comments that were originally submitted to ACHD in response to ACHD's proposal of the Allegheny Area attainment plan, which the Clean Air Council believed were not adequately addressed by ACHD.

Comment 1: The commenter noted that the attainment SIP for the Allegheny Area was due in April 2015, which Pennsylvania failed to meet, and that EPA subsequently issued a finding of failure to submit the SIP in March 2016. The commenter asserts that the finding triggered a requirement that EPA promulgate a FIP by March 2018, and that not only has EPA failed to issue a FIP, but EPA has also failed to enforce applicable sanctions against the State. 3

Response 1: Pennsylvania submitted an attainment plan SIP for the Allegheny SO 2 nonattainment area on October 3, 2017. EPA had an obligation to take action on the submittal or promulgate a FIP by April 18, 2018, as required under CAA section 110(c)(1)(A). EPA acknowledges that it did not approve the SIP revision or promulgate a FIP for the Allegheny Area by this date, as noted by the commenter. EPA also notes that since issuing its proposed approval of the SIP, EPA has become subject to a court order directing it to take final action on the SIP no later than April 30, 2020. See Center for Biological Diversity, et al. v. Wheeler, No. 4:18-cv-03544 (November 26, 2019). EPA believes that the most expeditious way to bring this area into attainment is to approve the submitted SIP with the limits and restrictions adopted by ACHD, making those limits and restrictions Federally-enforceable. Completion of our proposed action to approve the SIP, which contains emissions limits and requirements that are already effective and which the subject sources are already meeting, will result in achieving Federally-enforceable emissions reductions needed to attain the NAAQS far faster than would starting from scratch to develop, adopt, and apply new emissions limits and requirements in a FIP, the requirement for which would in any case be mooted by our final approval of the SIP. Thus, it is reasonable to use the most expeditious approach to a Federally-enforceable plan to bring the Area into attainment, and that is to approve this SIP rather than promulgate a FIP. With this final action to approve the Allegheny SO 2 attainment plan SIP, we are discharging our statutory obligation under CAA section 110(k)(2) to act on the SIP, and such approval terminates our FIP obligation under section 110(c)(1)(A) for the Allegheny SO 2 nonattainment area. We are also discharging our requirement under the court order to take final action on the SIP by April 30, 2020.

EPA disagrees that sanctions are applicable in the Allegheny Area. As discussed in the Background section of this preamble, Pennsylvania submitted the Allegheny attainment SIP on October 3, 2017, which was before the deadline of October 18, 2017 for the State to correct the deficiency that started the sanctions clock. CAA section 179(a). EPA's letter dated October 6, 2017 to Pennsylvania indicated that the submittal met the completeness criteria under 40 CFR part 51, and corrected the deficiency identified in EPA's March 18, 2016 finding of failure to submit SO 2 SIPs. Under EPA's regulations implementing mandatory sanctions clocks, as of October 6, 2017, the sanctions clock for the Allegheny Area was stopped; therefore, the sanctions under section 179(a) were not imposed as a consequence of Pennsylvania having missed the original deadline for submittal of the SIP. See 40 CFR 52.31(d)(5).

Comment 2: The commenter states that under the Clean Air Act, the NAAQS “compliance” deadline for this area was October 4, 2018, and that it is unclear how the SIP can meet the past compliance deadline when even those limits proposed in the ACHD submission are not presently Federally-enforceable. The commenter also states that the Allegheny nonattainment area is still failing to attain the standard over five years after designation, and that EPA cannot approve an attainment plan for an area that is “demonstrably failing to attain the standard, well-after the attainment deadline.” The commenter cites to EPA data that shows the 2015-2017 design value as 97 ppb, or roughly 30 percent above the NAAQS, and that the “current” 99th percentile SO 2 hourly concentration for the Allegheny Area is 130 ppb, which would result in a 2016-2018 design value of at least 103 ppb. The commenter points out that the 99th percentile hours for 2017 and 2018 are so high that Allegheny cannot come into attainment even if the monitor shows zero SO 2 emissions for every hour in 2019, and that EPA “confusingly states that the plan will somehow ‘ensure ongoing attainment’ and that the chosen control strategies ‘will bring the Area into attainment by the statutory attainment date of October 4, 2018.’ ” The commenter also says that EPA never addresses monitor data at all, except where monitored data plays a factor in the contingency measures for the area, and that EPA cannot approve an attainment plan that fails to actually attain the standard by the statutorily mandated deadline of October 4, 2018.

Response 2: The commenter makes an assertion that is incorrect—the CAA does not require that, before EPA can approve a SIP that provides for attainment, it must first find that the area factually attained the NAAQS as a result of the control strategy in the SIP. Nor does the CAA preclude approval of a control strategy that modeling shows will achieve NAAQS-attaining air quality merely because monitoring of historical air quality that preceded the implementation of controls that went into force still produces design values that do not reflect emissions reductions from those controls and that are consequently still above the NAAQS. Sections 172 and 192 of the CAA require states to submit SIP revisions that “provide for attainment” of the SO 2 NAAQS by the attainment date. In our proposal, we described the measures, supporting analyses, and the rationale for finding that the SO 2 attainment plan for the Allegheny Area submitted by Pennsylvania does provide for attainment. In particular, Pennsylvania's submittal provides modeling-based evidence that establishes that the control measures required on the sources of emissions in the Allegheny Area are sufficient to yield air quality that attains the NAAQS by the attainment deadline. As discussed in the proposal, the permits required that the Mon Valley Works facilities and the Harsco facility comply with the control measures needed for attainment by October 4, 2018.

The commenter submitted data showing monitored 99th percentile SO 2 concentrations from 2016 to 2018 (64 ppb, 116 ppb, and 130 ppb, respectively) that results in a design value for this three-year period of 103 ppb. The commenter further stated that regardless of the monitored values for 2019, the Area would not come into attainment because of the high 99th percentile concentrations for 2017 and 2018. The monitoring data in 2017 and 2018 cited by the commenter are accurate. However, the available monitoring data should not be interpreted as indicating that the attainment plan will fail to provide for timely attainment. The monitoring data cited by the commenter were collected before the full implementation of the measures in the Allegheny SO 2 attainment plan, which occurred by October 4, 2018. Therefore, these data measuring the air quality prior to full implementation of the measures reflected in the modeling demonstration are not a reliable indicator of whether air quality, after implementation of all modeled relevant control measures, would be expected to meet the standard at the attainment deadline. In other words, these data are not indicative of the adequacy of the plan and its modeling demonstration to provide for NAAQS attainment. Instead, as EPA explained in our 2014 SO 2 Guidance and in numerous proposed and final SIP actions implementing the SO 2 NAAQS, a key element of an approvable SO 2 attainment SIP is the required modeling demonstration showing that the remedial control measures and strategy are adequate to bring a previously or currently violating area into attainment. 4 Given the form of the 2010 SO 2 NAAQS as the 3-year average of the 99th percentile of the yearly distribution of 1-hour daily maximum SO 2 concentrations, it is often possible that the three-year period of monitored data will not reflect the actual air quality levels resulting from implementation of the newer remedial control measures implemented within that period. In such cases, as it is here, the more complete and representative analysis for informing action on a submitted SIP should focus on the results of newly implemented control measures required under the plan, rather than historical concentrations that do not reflect the results of the plan's required control measures. The former analysis explicitly addresses whether air quality will be attaining (as required) under the state's submitted plan, whereas the latter analysis may have little to no bearing on what will happen as a result of the plan. Therefore, in the context of reviewing the adequacy of those newer control measures to provide for newly attaining air quality under sections 172 and 192 of the CAA, we conclude that it is reasonable to focus on the modeling results that specifically account for those control measures and the resulting reductions in SO 2 emissions, rather than on monitored data that, in this case, do not represent air quality levels resulting from full implementation of the control measures in the attainment plan. In the Allegheny SO 2 attainment plan, ACHD's modeling shows that implementation of the measures included in the plan result in air quality that attains the NAAQS, and those measures are being met by the subject sources by the October 4, 2018 attainment date. Therefore, the SIP meets the requirement to demonstrate that it provides for timely attainment.

While the submitted modeling demonstrates attainment for the area, EPA acknowledges that some SO 2 exceedances were monitored in 2018 and 2019 that EPA believes were the result of a December 24, 2018 fire at the Clairton Coke Works which required the immediate shut down of No. 2 and No. 5 control rooms. The shutdown of the two control rooms resulted in the diversion of coke oven gas (COG) away from the desulfurization process within the facility's by-products operation, allowing SO 2 to be released from various flaring stacks into the ambient air. To mitigate the release of pollutants into the air, U.S. Steel, owner of the Clairton Coke Works, took remedial action to mitigate SO 2 emissions by using COG diluted with natural gas in the boilers. ACHD conducted a review of operational data for the period following the fire and determined that the facility was in violation of its hydrogen sulfide (H 2 S) permit limit. ACHD's review of monitor data for the period following the fire showed monitored violations. ACHD concluded that the mitigation efforts by U.S. Steel did not fully compensate for the shutdown of the two control rooms and the bypass of the desulfurization process. Therefore, on February 28, 2019, ACHD issued an Enforcement Order requiring U.S. Steel to extend coking times at all the Clairton batteries, reduce usage of COG at boilers located at the Edgar Thomson facility, and reduce the SO 2 emissions from coke oven batteries, boilers, and emissions stacks from all of the Mon Valley Works facilities by either one or a combination of reducing the volume of coal in each oven, extending the coking time further, limiting production at coke oven batteries by temporarily hot idling coke ovens, or some other plan submitted to ACHD to meet ACHD's stipulated reduction of SO 2 emissions from the facility. The enforcement order required weekly compliance reports to ACHD until all repairs were completed to No. 2 and No. 5 control rooms, and 100 percent of the COG exiting the control rooms was again being desulfurized, or until June 30, 2019, whichever was later. On March 12, 2019, following discussions with U.S. Steel, ACHD issued an amended order (Enforcement Order #190202A) compelling U.S. Steel to extend the time of the coking process. The control rooms were repaired and resumed operation on April 15, 2019, and COG was again sent to the desulfurization units on that date. A second fire occurred on the morning of June 17, 2019. The second fire again shut down the No. 2 and No. 5 control rooms, but both control rooms were back in operation by the evening of the same day. The data in EPA's Air Quality Systems (AQS) database for all of 2018 and 2019 shows three exceedances of the NAAQS in December 2018  5 and seven exceedances in early 2019, shown in Table 1 as follows:

As shown in Table 1, the monitored exceedances occurred at the Liberty and North Braddock monitors between December 26, 2018 and March 28, 2019, during the time when the desulfurization units were off-line. There were no monitored exceedances that occurred that correlate to the June 2019 fire. From October 2018, when compliance with the new measures was required at the affected facilities, until the December 2018 fire, no exceedances of the standard were monitored. Based on EPA's preliminary data for 2019, since April 15, 2019, when the desulfurization units resumed operation, to the end of 2019, no additional exceedances have been monitored. 6 This indicates that the additional measures required by ACHD to achieve attainment in the Area are in fact adequate to provide for attainment. 7

Under the CAA, a determination of whether an area has failed to attain is a separate action from the review of an attainment demonstration SIP. EPA's attainment SIP review for SO 2 occurs under CAA sections 110(k), 172(c) and 192(a), while a determination of whether an SO 2 nonattainment area has failed to attain is governed by CAA section 179(c)(1). Under section 110(k)(3), EPA is required to approve a SIP submission that meets all applicable requirements of the CAA. For the reasons described in our proposal and elsewhere in this action, we have concluded that the Allegheny SO 2 attainment plan meets all such requirements, including the requirement in 172(c) and 192(a) to provide for attainment by the attainment date. This is the determination that is the subject of this final SIP approval action.

Separately, in a different action under section 179(c)(1) that is beyond the scope of this final SIP approval action, EPA must determine within six months of the attainment date whether an area has attained the NAAQS based on the area's air quality as of the attainment date. Accordingly, EPA will take a separate action to analyze the pertinent information and determine whether the Allegheny SO 2 Area attained the NAAQS by the attainment date in accordance with section 179(c)(1).

Comment 3: One commenter states that the contingency measures in the attainment plan are “hazy and unspecified” and that the “thorough analysis to identify the sources of the violation and bring the area back into compliance with the NAAQS” is “wholly insufficient to address NAAQS exceedances and ensure attainment, and that EPA nowhere explains why such contingency measures are not already triggered by the continuing levels of SO 2 in the Allegheny area.” Another commenter states that ACHD should do more than what is described in its contingency measures, particularly as the 2014 SO 2 Guidance states that an air agency is not precluded from requiring additional contingency measures that are enforceable and appropriate for a particular source category, and should include a “comprehensive program to identify sources of violations and undertake an aggressive follow-up for compliance and enforcement, provide specific contingency measures, as well as including specific contingency measures.”

Response 3: As EPA explained in the 2014 SO 2 Guidance, SO 2 presents special considerations, compared to other criteria pollutants. 8 First, for some of the other criteria pollutants, the analytical tools for quantifying the relationship between reductions in precursor emissions and resulting air quality improvements remain subject to significant uncertainties, in contrast with procedures for directly-emitted pollutants such as SO 2. Second, emission estimates and attainment analyses for other criteria pollutants can be strongly influenced by overly optimistic assumptions about control efficiency and rates of compliance for many small sources. This is not the case for SO 2 .

In contrast, the control efficiencies for SO 2 control measures are well understood and are far less prone to uncertainty. Because SO 2 control measures are, by definition, based on what is directly and quantifiably necessary to attain the SO 2 NAAQS, it would be unlikely for an area to implement the necessary emission controls yet fail to attain the NAAQS. Therefore, for SO 2 programs, EPA has explained that “contingency measures” can mean that the air agency has a comprehensive program to identify sources of violations of the SO 2 NAAQS and to undertake an “aggressive” follow-up for compliance and enforcement, including expedited procedures for establishing enforceable consent agreements pending the adoption of the revised SIP. EPA believes that this approach continues to be valid for the implementation of contingency measures to address the 2010 SO 2 NAAQS. 9

As noted in the NPRM, Section 7 of the Allegheny attainment plan details the requirements whenever the SO 2 NAAQS is exceeded. It requires ACHD to, within 10 days of a violation, complete an analysis to determine the source and the conditions that contributed to the violation. The culpable source would then be required to submit, within 10 days of notification by ACHD, a written system audit report that details the operating parameters of all SO 2 emissions units for the time periods during which the violation occurred, along with recommended control strategies for any unit that may have contributed to the violation. Following a 30-day evaluation period and a 30-day consultation period with the source, additional control measures will be implemented as expeditiously as possible to return the area to compliance. Further, the installation permits for the four sources of SO 2 in the Area, which are incorporated by reference into the Allegheny portion of the Pennsylvania SIP, require SO 2 compliance testing, monitoring, and reporting to assure compliance with the permit limits, including any instances of non-compliance with the conditions of the permit and the corrective action taken to restore compliance.

Also, ACHD has a comprehensive program to identify potential sources causing SO 2 NAAQS violations, as specified in ACHD Article XXI, Part I, Regulations 2109.01 through 2901.06, and 2901.10 (Enforcement). Under these regulations, ACHD is authorized to take any action it deems necessary or proper for the effective enforcement of any provision of Article XXI and the rules and regulations promulgated under the article. Any violation authorizes ACHD to pursue the issuance of an enforcement order as authorized under the Article (for corrective action or shut down of a source or part of a source), the revocation of any applicable license or installation or operating permit, or initiation of criminal proceedings, civil penalty, or injunctive relief. Also, the permits for the four main sources of SO 2 include a requirement to record all instances of non-compliance with the conditions of the permits upon occurrence along with the corrective action taken to restore compliance. As explained in response to comment 2 of this action, following implementation of all the control measures contained in this attainment plan on October 4, 2018, the Allegheny Area did not experience any SO 2 NAAQS exceedances except for those exceedances directly traceable to the two fires and shutdowns of the desulfurization unit at the Clairton Coke Works. ACHD took immediate enforcement action to minimize emissions resulting from the first fire, in accordance with the contingency measures outlined in its attainment plan, and the desulfurization unit shutdown because of the second fire lasted only a few hours. ACHD's implementation of some of the contingency measures contained in its attainment plan in response to the first fire at Clairton shows that the source-specific enforcement response in the plan can be effective at preventing further exceedances of the SO 2 NAAQS. Since the restart of the desulfurization unit at Clairton and the return to typical operations at Clairton, there have been no further recorded exceedances of the SO 2 NAAQS in the Allegheny Area. Thus, the Allegheny Area is currently meeting the 2010 SO 2 NAAQS without implementation of the contingency measures in the plan, so there is no need to trigger contingency measures at this time. If there are no further unforeseen breakdowns in SO 2 emission controls at the four facilities, the modeling shows that the existing control measures in the plan are adequate to ensure attainment of the 2010 SO 2 NAAQS.

Comment 4: The commenter asserts that EPA's reliance on long-term emission limits ensures that attainment will not be achieved because the 2010 SO 2 NAAQS is a short-term, 1-hour standard, and the proposed 30-day averaging period for the Clairton and Irvin Plants are fundamentally incapable of protecting the standard. The commenter asserts that because the NAAQS is evaluated through reference to the 4th-highest daily maximum ambient concentration annually, ambient air quality conditions can be rendered unsafe by as few as four hours of elevated emissions over the course of a year, thus making an emission limit with an averaging period of longer than one hour unlikely to be able to protect this short-term standard. The commenter argued that spikes in emissions could cause short-term elevations in ambient SO 2 levels sufficient to violate the NAAQS while nonetheless averaging out over longer periods such that the 30-day average permit limit is “complied” with. To support this contention, the commenter provided language making similar points excerpted from two EPA letters that were included in the attachments to the commenter's December 19, 2018 comment letter on the NPRM, specifically an August 12, 2010 comment letter from EPA Region 7 to Kansas regarding the Sunflower Holcomb Station Expansion Project, and a February 1, 2012 comment letter from EPA Region 5 to Michigan regarding a draft construction permit for the Detroit Edison Monroe Power Plant. The commenter concluded that the 30-day average emission limit proposed for the major sources are 720 times the NAAQS and should be revised to adequately protect the NAAQS. The commenter states the proposed long-term limits should be rejected in favor of a plan with 1-hour emission limits to protect the 1-hour NAAQS.

Response 4: EPA disagrees with the commenter's statement that the proposed 30-day limits at Clairton and Irvin are fundamentally incapable of protecting the 1-hour SO 2 NAAQS. EPA believes as a general matter that properly set, longer-term average limits are comparably effective in providing for attainment of the 1-hour SO 2 standard as are 1-hour limits. EPA's 2014 SO 2 Guidance sets forth in detail the reasoning supporting its conclusion that the distribution of emissions that can be expected in compliance with a properly set longer-term average limit is likely to yield overall air quality protection that is as good as a corresponding hourly emissions limit set at a level that provides for attainment.

EPA's 2014 SO 2 Guidance specifically addressed this issue as it pertains to requirements for SIPs for SO 2 nonattainment areas under the 2010 NAAQS, especially with regard to the use of appropriately set comparably stringent limitations based on averaging times as long as 30 days. EPA found that a longer-term average limit which is comparably stringent to a short-term average limit is likely to yield comparable air quality; and that the net effect of allowing emissions variability over time but requiring a lower average emission level is that the resulting worst-case air quality is likely to be comparable to the worst-case air quality resulting from the corresponding higher short-term emission limit without variability. See 2014 SO 2 Guidance.

Any accounting of whether a 30-day average limit provides for attainment must consider factors reducing the likelihood of exceedances as well as factors creating risk of additional exceedances. To facilitate this analysis, EPA used the concept of a critical emission value (CEV) for the SO 2 -emitting facilities which are being addressed in a nonattainment SIP. The CEV is the continuous 1-hour emission rate which is expected to provide for the average annual 99th percentile maximum daily 1-hour concentration to be at or below 75 ppb, which in a typical year means that fewer than four days have maximum hourly ambient SO 2 concentrations exceeding 75 ppb. See 2014 SO 2 Guidance.

EPA recognizes that a 30-day limit can allow occasions in which emissions exceed the CEV, and such occasions yield the possibility of exceedances occurring that would not be expected if emissions were always at the CEV. At the same time, the establishment of the 30-day average limit at a level below the CEV means that emissions must routinely be lower than they would be required to be with a 1-hour emission limit at the CEV. On those critical modeled days in which emissions at the CEV are expected to result in concentrations exceeding 75 ppb, emissions set to comply with a 30-day average level which is below the CEV may well result in concentrations below 75 ppb. Requiring emissions on average to be below the CEV introduces significant chances that emissions will be below the CEV on critical days, so that such a requirement creates significant chances that air quality would be better than 75 ppb on days that, with emissions at the CEV, would have exceeded 75 ppb.

The NPRM provides an illustrative example of the effect that application of a limit with an averaging time longer than one hour can have on air quality. 10 This example illustrates both (1) the possibility of elevated emissions (emissions above the CEV) causing exceedances not expected with emissions at or below the CEV and (2) the possibility that the requirement for routinely lower emissions would result in avoiding exceedances that would be expected with emissions at the CEV. In this example, moving from a 1-hour limit to a 30-day average limit results in one day that exceeds 75 ppb that would otherwise be below 75 ppb, one day that is below 75 ppb that would otherwise be above 75 ppb, and one day that is below 75 ppb that would otherwise be at 75 ppb. In net, the 99th percentile of the 30-day average limit scenario is lower than that of the 1-hour limit scenario, with a design value of 67.5 ppb rather than 75 ppb. Stated more generally, this example illustrates several points: (1) The variations in emissions that are accounted for with a longer-term average limit can yield higher concentrations on some days and lower concentrations on other days, as determined by the factors influencing dispersion on each day, (2) one must account for both possibilities, and (3) accounting for both effects can yield the conclusion that a properly set longer-term average limit can provide as good or better air quality than allowing constant emissions at a higher level. As noted in the NPRM, and as described in Appendix B of the 2014 SO 2 Guidance, EPA expects that an emission profile with a comparably stringent 30-day average limit is likely to have a net effect of having a lower number of exceedances and better air quality than an emissions profile with maximum allowable emissions under a 1-hour emission limit at the critical emission value. Thus, EPA continues to assert that appropriately set 30-day emission limits can be protective of the 1-hour SO 2 standard.

Regarding the examples cited by the commenter to support the contention that only one-hour limits are protective of the NAAQS, EPA's April 2014 guidance acknowledges that EPA had previously recommended that averaging times in SIP emission limits should not exceed the averaging time of the applicable NAAQS. The specific examples of earlier EPA statements cited by the commenter ( i.e., those contained in Exhibits 1 and 2 of Appendix A of the comment submission) all pre-date the release of EPA's April 2014 SO 2 Guidance. As such, these examples only reflect the Agency's development of its policy for implementing the 2010 SO 2 NAAQS as of the dates of their own issuance. At the time of their issuance, EPA had not yet addressed the specific question of whether it might be possible to devise an emission limit with an averaging period longer than 1-hour, with appropriate adjustments that would make it comparably stringent to an emission limit shown to attain 1-hour emission levels, that could adequately ensure attainment of the SO 2 NAAQS. None of the pre-2014 EPA documents cited by the commenter address this question; consequently, it is not reasonable to read any of them as rejecting that possibility. However, EPA's April 2014 guidance specifically addressed this issue as it pertains to requirements for SIPs for SO 2 nonattainment areas under the 2010 NAAQS, especially with regard to the use of appropriately set comparably stringent limitations based on averaging times as long as 30 days (see p. 2). EPA developed this guidance pursuant to a lengthy stakeholder outreach process regarding implementation strategies for the 2010 NAAQS, which had not yet concluded (or in some cases even begun) when the documents cited by the commenter were issued. As such, EPA's April 2014 Guidance was the first instance in which the Agency provided recommended guidance for that component of this action. Consequently, EPA does not view those prior EPA statements as conflicting with the Agency's guidance addressing this specific question of how to devise a longer-term limit that is comparably stringent to a 1-hour CEV that has been modeled to attain the NAAQS. Moreover, EPA notes that the commenter has not raised specific objections to the general policy and technical rationale EPA provided in its proposed approval or in EPA's April 2014 SO 2 Guidance for why such longer-term averaging-based limits may in specific cases be adequate to ensure NAAQS attainment.

Additionally, ACHD requires supplementary limits to restrict excessive frequency or magnitude of elevated emissions. As explained in the April 2014 SO 2 Guidance, in addition to establishing a rate that is comparably stringent to the 1-hour average emission limit, a second important factor in assessing whether a longer-term average limit provides appropriate protection against NAAQS violations is whether the source can be expected to comply with a long term average limit in a manner that minimizes the frequency of occasions with elevated emissions and magnitude of emissions on those occasions. The 2014 SO 2 Guidance states that use of long term average limits is most defensible if the frequency and magnitude of such occasions of elevated emissions will be minimal, and that supplemental limits on the frequency and/or magnitude of occasions of elevated emissions can be a valuable element of a plan that protects against NAAQS violations. Limits against excessive frequency and/or magnitude of elevated emissions could further strengthen the justification for the use of longer-term average limits, with one option being shorter averaging times. Towards this end, ACHD established 24-hour average limits to supplement the 30-day average limits. A discussion of ACHD's evaluation of the limits and a tabular comparison of hourly emissions values to the 30-day, the 24-hour, and CEV limits may be found in the NPRM.

Comment 5: EPA relies on conversion factors from CEV calculated by reference to the sulfur content of the fuel the facilities use. Such content can vary widely, depending on the fuel mix the facility chooses to buy. However, nothing in the proposal requires that the historical fuel mix be maintained, meaning that variability could increase, and increase substantially, in the future, underscoring the inadequacy of long-term emission limits.

Response 5: In the 2014 SO 2 Guidance, EPA notes that it is important to recognize that some sources may have variable emissions, for example due to variations in fuel sulfur content as the commenter notes, that can make it extremely difficult, even with a well-designed control strategy, to ensure in practice that stringent hourly limits are never exceeded. It is this variability in emissions that EPA believes justifies the use of longer-term average limits.

EPA guidance provides for states to use historic data to assess the emissions variability that can be anticipated upon implementation of the plan. The state is to analyze these data to obtain a best estimate of the degree of adjustment needed for the state's longer-term limit to be comparably stringent to the one-hour limit that it would otherwise be adopting. EPA does not believe that imposing limits on variability is either appropriate or feasible. First, EPA's guidance for assessing variability is to use three to five years of data, which suggests that a limit on variability might require a similar amount of data. A limit based on three to five years of data would almost certainly not be practically enforceable. Second, a limit on variability would necessarily impose limits on the operation of the facility. As a general matter, EPA prefers to avoid restricting the operation of facilities, so long as EPA has reasonable confidence that air quality requirements are being met. The commenter gives no reason to believe that variability will increase and provides no recommendations on how to address the practical problems that limiting variability would entail. Furthermore, page 31 of EPA's 2014 SO 2 Guidance acknowledges the possibility that variability can change and provides EPA's views on how to address such situations: “If the EPA approves an attainment plan but subsequently learns that emissions variability at a source is exceeding the expected variability, such that the plan proves not to provide the expected confidence that the NAAQS is being attained, the EPA will use its available authority to pursue any necessary corrections of the plan.” However, at this time, EPA believes that ACHD has identified 1-hour limits that would provide for attainment and has submitted 30-day average limits (supplemented with 24-hour limits) that present evidence indicates are comparably stringent, and so EPA is concluding that these limits suffice to assure attainment.

Comment 6: The commenter expresses bafflement as to why EPA's November 19, 2018 NPRM did not definitively verify that certain controls required by the plan to be installed and operational no later than October 4, 2018 were actually installed and operating, especially when EPA relied upon the installation and operation of these controls when approving the attainment plan.

Response 6: The ACHD installation permits for Clairton, Edgar Thomson, Irvin, and Harsco required compliance on or before October 4, 2018. These facilities were required by that date to comply with the SO 2 emission limitations and other requirements for monitoring and recordkeeping set forth in the permits. The NPRM for this action did not include information on the sources' actual compliance with the required permit limits as of October 4, 2018. However, the issue in this rulemaking is whether compliance with the plan would result in timely attainment, as shown by the modeling. Whether such compliance or such attainment actually occurred is best addressed by the Clean Air Act's enforcement authorities and a determination of attainment under section 179(c)(1) of the CAA.

Comment 7: A commenter states that section V.D. of the proposed SIP requires Vacuum Carbonate Units (VCU) to be implemented at only two facilities, rather than at all facilities in the Allegheny Area, and opines that though this would allow the Area to meet the requirement for compliance, it does not comprise all reasonably available control measures on SO 2 emissions. The commenter further states that if a VCU is a reasonably available measure for some plants, it should be reasonable to many, if not all, of the facilities in the Area. To protect the nearby residents, the commenter thinks that as a minimum, all measures which can be reasonably enforced should be applied to all emitting facilities in the Allegheny Area.

Response 7: Section 172 (c)(1) of the CAA provides that “Such plan shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.” EPA intends to continue defining RACT for SO 2 as that control technology which will achieve the NAAQS within statutory timeframes. See General Preamble at 57 FR 13498, 13547 (April 16, 1992). CAA section 172(c)(6) requires plans to include enforceable emission limitations and control measures as may be necessary or appropriate to provide for attainment by the attainment date. The commenter has failed to consider that VCUs were already pre-existing at these process lines and that RACT for SO 2 is that which is necessary to attain the NAAQS. While additional controls may be reasonably available at other plants, the VCU upgrades at the two process lines at the Clairton facility show attainment of the 2010 SO 2 NAAQS by the attainment date, and thus further controls are not necessary to satisfy the requirement for RACT.

Emission reductions needed to reach attainment in the Allegheny Area, as determined through air dispersion modeling, are dependent on the control measures implemented at the existing sources at USS Mon Valley Works (upon which property Harsco Metals is located), which are the primary sources of SO 2 in the nonattainment area. The 100 and 600 VCU upgrade was initiated at the Clairton Coke Works to reduce the content of H 2 S in the COG sent to all the Mon Valley Works plants and Harsco. The 100 VCU upgrade was completed at the Clairton Coke Works in 2016, leading to significant decreases in sulfur content in COG. An upgrade for the 600 VCU added redundant controls for the COG line. All the USS Mon Valley Works facilities and Harsco must also provide source monitoring results to demonstrate continuous efficient operation of the VCU system. The reduction of H 2 S content in the COG produced at Clairton was needed for the USS Mon Valley Works plants and Harsco to comply with their permit limits. Emission limits at all four facilities were established through enforceable installation permits (See Appendix K of Pennsylvania's October 3, 2017 SIP submittal). 11 The collective emission limits and related compliance parameters ( i.e., testing, monitoring, record keeping and reporting) will be incorporated into the SIP as part of the attainment plan in accordance with CAA section 172. The emission limits for each of the SO 2 -emitting USS Mon Valley and Harsco facilities are listed in Tables 3, 4 and 5 of the proposal. The compliance parameters include continuous process monitoring of H 2 S content and flow rate of the COG at the Clairton facility and the four lines which feed the Edgar Thompson, Irvin, and Harsco facilities, as well as record-keeping, reporting, and stack testing requirements at all facilities.

ACHD nonetheless evaluated potential RACT at other sources in the Allegheny Area including Koppers Inc.—Clairton Plant, Clairton Slag—West Elizabeth Plant, Eastman Chemical Resins Inc.—Jefferson Plant, and Kelly Run Sanitation—Forward Township, each of which have less than 5 tons per year (tpy) of allowable SO 2 emissions. In addition, ACHD examined several RACM options for area, nonroad and mobile sources of SO 2 in the Area. ACHD determined that no additional controls beyond the emission limits at the four main SO 2 -emitting facilities in the Allegheny Area are needed to provide for attainment of the SO 2 NAAQS in the Area. Because of this, additional controls on other SO 2 sources in the Area are not required RACT for the Allegheny Area. 12

Comment 8: The commenter believes that the boundaries of the Allegheny Area may be drawn too narrowly, due to insufficient monitoring for SO 2 throughout Allegheny County. The commenter specifically notes that there is no monitoring station for SO 2 near Springdale, where the Cheswick Generating Station, the largest source of SO 2 in the County, is located. The commenter believes that ACHD's continuing failure to address the insufficient monitoring in Allegheny County means that the monitoring data is not fully representative of air quality in the nonattainment area. The commenter asks EPA to require ACHD to gather sufficient information regarding ambient levels of SO 2 near Springdale, or otherwise provide sufficient evidence that there is no possibility of the Area being in nonattainment with the NAAQS.

Response 8: EPA notes that the boundaries of the Allegheny Area were determined in 2013 as part of the process of designating the Area as nonattainment, and therefore the boundaries of the Area are not being reconsidered in this action. EPA issued its final rule identifying the first round of designations for the 2010 SO 2 NAAQS on August 5, 2013 (78 FR 47191). In the first round of SO 2 designations, EPA explained that the designations were based on recorded air quality monitoring data at existing monitor locations. Areas designated as nonattainment with the NAAQS were designated based on the design value at existing monitors that showed violations of the 1-hour SO 2 standard during the three-year period of 2009-2011. EPA designated as nonattainment 29 areas, including the Allegheny Area, in the August 5, 2013 action. In accordance with section 107(d)(1)(B)(ii) of the CAA, the boundaries of the Allegheny Area were also determined as part of the designations process. EPA determined at that time that the Allegheny Area should not include the portion of the County containing the Cheswick plant. EPA's technical support document (TSD) for the August 5, 2013 final rule provides the rationale for determining both the nonattainment designation and the boundaries of the Allegheny County area. As explained in the TSD, the Liberty monitor in Allegheny County showed violations of the 2010 SO 2 NAAQS, based on certified 2009-2011 air quality data and additional data from 2012 provided by Pennsylvania and ACHD. EPA concluded that, based on the supporting information relating to emissions, air quality data, meteorology, geography and jurisdictional boundaries provided by Pennsylvania and ACHD in response to EPA's 120-day letters, only a portion of Allegheny County should be initially included in the Allegheny Area, and that the remaining portion of the Area would be evaluated in a separate round of designations. Prior to finalizing the Round 1 designations, EPA provided the public with an opportunity to comment upon the proposed designations, including the boundaries of the designated area. 78 FR 11124, 11125-26 (February 15, 2013). The commenter's opportunity to express concerns about the boundaries of the Allegheny Area was during this public comment period, and therefore this comment is untimely and not germane to this final action. The commenter was again given an opportunity to comment on the air quality status of the remaining portion of Allegheny County that was not included in the Round 1 designation when EPA sought public input on the “Round 3” designations for SO 2 , which included the portion of Allegheny County containing the Cheswick plant. 82 FR 41903, 41905 (September 5, 2017).

On January 9, 2018 at 83 FR 1098, EPA published in the Federal Register , a final rule with Round 3 designations for the 2010 SO 2 NAAQS for numerous areas of the U.S., including the remaining portion of Allegheny County where the Cheswick plant is located. EPA designated this remaining portion as “unclassifiable,” meaning that under CAA section 107(d)(1) the area cannot be classified as meeting or not meeting the NAAQS or as contributing to a nearby area that does not meet the NAAQS based on available information. 834 FR 1154 January 9, 2018; 40 CFR 81.339. No one challenged EPA's designation of the remaining portion of Allegheny County. Therefore, EPA believes that this comment regarding the boundaries of the Allegheny Area is untimely and not germane to this rule.

Regarding the portion of the comment questioning the sufficiency of the SO 2 monitoring network in Allegheny County, and in particular near the Cheswick plant, EPA notes that the proper place to challenge any lack of monitors is when ACHD public notices its Annual Network Monitoring Plan for public comment. This action does not reopen EPA's previous designations made under the 2010 SO 2 standard, however, for informational purposes only, the following information from the 2013 Allegheny Area Round 1 designations TSD is provided herein. As part of the analysis for the 2013 Round 1 designation of the Allegheny Area, EPA evaluated the Cheswick Power Plant. Cheswick's emissions have been significantly reduced since installation and operation of its SO 2 control equipment, comprised of a wet flue gas desulfurization (FGD) unit installed in 2010. In the analysis, EPA looked at Cheswick's 2011 and 2012 SO 2 emissions from the Clean Air Markets Division (CAMD) database, which indicated a large decrease in annual SO 2 emissions between 2011 and 2012, primarily due to increased control efficiency at the plant. In 2011, Cheswick's coal-fired unit ran for 6,160 hours at an annually averaged emission rate of 0.71 pounds per Million british thermal units (lbs/MMbtu). In 2012, Cheswick's coal unit ran slightly less at 5,715 hours with an annually averaged emission rate of 0.15 lbs/MMbtu. In light of Cheswick's lower emission rates, its distance of approximately 24 kilometers from the Liberty monitor, and minimal change in the monitored values at the Liberty monitor, EPA did not include this source in the Allegheny nonattainment area. EPA therefore defined the nonattainment area boundaries for the Allegheny Area based on the information available at the time of the initial designations and is not reopening that designation in this final SIP approval for the Allegheny area.

Comment 9: The commenter believes that ACHD should install and operate an SO 2 monitor at the Glassport location, which was discontinued in 2006 but showed higher levels of SO 2 than the Liberty monitor while it was operating. The commenter states that the lack of a monitor at this location could become material to whether the area is determined to be in attainment, and that while EPA prefers air modeling over air monitoring for purposes of SO 2 attainment demonstrations, this does not apply to attainment determinations. The commenter cites EPA's Final rule for the SO 2 NAAQS, at 75 FR 35520, 35553 (June 22, 2010), in which EPA indicated it was still considering under what circumstances it may be appropriate to rely on monitoring data alone to make attainment determinations. The commenter refers to the requirement that design values for purposes of an attainment determination are necessarily based on actual data from an ambient air quality monitoring site, thus the failure to reactivate the Glassport monitor may become relevant to an accurate determination of air quality in this area.

Response 9: As noted in EPA's response to comment 2 of this action, a determination of whether an area has attained or failed to attain the NAAQS is a separate action from the review of an attainment demonstration SIP and is outside the scope of this action approving the SIP. EPA's SO 2 attainment SIP review occurs under CAA sections 110(k), 172(c) and 192(a), while a determination of attainment/nonattainment of the NAAQS is governed by CAA section 179(c)(1). Under section 110(k)(3), EPA is required to approve a SIP submission that meets all applicable requirements of the CAA. For the reasons described in our proposal and elsewhere in this action, we have concluded that the Allegheny Area attainment plan meets all such requirements, including the requirement in 172(c) and 192(a) to provide for attainment by the attainment date. This is the determination that is the subject of this final SIP approval action. EPA will take a separate action to analyze the pertinent information and determine whether the Allegheny Area attained the NAAQS by the attainment date, in accordance with section 179(c)(1) of the CAA.

Also, although the former Glassport monitor may have recorded higher levels of ambient SO 2 emissions than the Liberty monitor, those readings were taken before the new SO 2 limits were imposed on the USS Mon Valley Works and Harsco facilities as part of the attainment plan. The modeling analysis submitted by ACHD with its attainment plan shows that with these new limits at these facilities, the entire nonattainment area would attain the 2010 SO 2 NAAQS, including at the former Glassport monitor location.

Comment 10: A commenter claims that ACHD should evaluate impacts of its transported emissions of SO 2 on other states' attainment with the NAAQS, and that SO 2 is a precursor to the formation of fine particulates (PM 2.5 ). The commenter claims that “the Department”, i.e., ACHD, does not discuss the impact of sources in Allegheny County on levels of SO 2 or PM 2.5 outside this nonattainment area, but does discuss the impact of upwind sources (outside the County) on SO 2 levels in the Allegheny County nonattainment area. In addition, ACHD also included modeling of upwind sources outside the nonattainment area. The commenter cites to the attainment plan's statement that some sources outside of the NAA have been included in the modeling demonstration in order to properly account for transported emissions into the nonattainment area. The commenter states that a plan must include adequate provisions prohibiting any source from emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to a NAAQS as required under section 110(a)(2)(D) of the CAA. In ACHD's Response to Comments document dated June 13, 2017, the commenter claims that the Department avoids the question by asserting that “SO 2 as a precursor to PM 2.5 is better addressed via PM 2.5 modeling using photochemical modeling, and development of an attainment demonstration for the 2012 PM 2.5 NAAQS for Allegheny County is underway.” Comment #45, page 19-20. The commenter also states that ACHD incorrectly made an assertion that the PM 2.5 attainment plan was underway when responding to comments concerning transported emissions from Allegheny County during the state public comment period, and that ACHD was over two years late in meeting the CAA requirements to address the nonattainment with the 2012 PM 2.5 standard, asserting that ACHD only made revisions to its NNSR regulations after EPA issued a finding of failure to submit required nonattainment area requirements.

Response 10: Because the comment pertains to emissions that contribute significantly to nonattainment in, or interfere with maintenance by, any other state, EPA assumes that the commenter is referring specifically to the CAA requirements under section 110(a)(2)(D)(i)(I), and not the other elements of section 110(a)(2)(D) (namely 110(a)(2)(D)(i)(II), which pertains to measures required under part C to prevent significant deterioration of air quality or to protect visibility, and 110(a)(2)(D)(ii), which pertains to requirements for interstate and international pollution abatement). Section 110(a)(2)(D)(i)(I) of the CAA requires that SIPs contain adequate provisions to prohibit any emissions source or activity in a state from contributing significantly to nonattainment in, or interfering with maintenance by, any other state with respect to a primary or secondary NAAQS. The section 110(a)(2)(D)(i)(I) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. The requirements under section 110(a)(2)(D)(i)(I), where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Therefore, for the purposes of an attainment plan, EPA disagrees that the showing of noninterference with another state's SIP under CAA 110(a)(2)(D)(i)(I) is an element that must be addressed in a section 172(c) plan submitted for the purpose of attainment of a NAAQS within that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing an attainment plan. Thus, EPA does not believe that the CAA's section 110(a)(2)(D)(i)(I) interstate transport requirements should be construed to be applicable requirements for purposes of approval of the Allegheny Area attainment SIP submittal.

The requirements for nonattainment area SIPs are addressed in CAA sections 110(k), 172(a), and 192(a), and consist of an attainment plan, including an attainment demonstration, a base year emissions inventory, RFP, RACM/RACT, and contingency measures. EPA's evaluation of whether an attainment plan submittal is approvable hinges on the approvability of these nonattainment area requirements. In taking action on infrastructure SIPs under section 110(a)(2) of the CAA, of which the transport element is a part, EPA has long noted the separate requirements and the different time frames for submission of infrastructure SIPs and nonattainment area SIPs. In its attainment SIP, ACHD appropriately considered emissions from outside the nonattainment area in the modeling analysis to determine necessary limits at the SO 2 emitting facilities within the Allegheny County nonattainment area. However, an analysis of the impacts of any SO 2 or PM 2.5 emissions from sources in the Allegheny Area upon downwind areas in other states, is outside the scope of this action to approve the Allegheny Area attainment plan for the SO 2 NAAQS. Such an analysis would be a required part of any Pennsylvania submittal for an infrastructure SIP under section 110(a)(2). Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of approval of an attainment plan.

EPA also disagrees that nonattainment area requirements related to the PM 2.5 NAAQS must be addressed in the Allegheny Area's SO 2 attainment plan. While SO 2 is a precursor to PM 2.5 , the SO 2 attainment plan was submitted and is being approved to show attainment with the 2010 1-hour SO 2 NAAQS. EPA agrees with ACHD's response to the comment that the PM 2.5 attainment plan will have to address all PM 2.5 precursors, including SO 2 , and that the PM 2.5 modeling analysis is better suited to determining SO 2 's impact as a precursor to PM 2.5 when analyzing what is needed for PM 2.5 attainment. Finally, EPA's findings of failure to submit the PM 2.5 attainment plan for the 2012 PM 2.5 NAAQS, and whether or not attainment planning for PM 2.5 in Allegheny County is underway, are not relevant to this action to approve the Allegheny Area attainment plan for SO 2 .

Comment 11: The commenter suggested that there may be other measures and control strategies to facilitate attainment of the SO 2 NAAQS, and that EPA should require ACHD to develop additional requirements for emissions reductions from these facilities. The commenter included several suggestions for additional emission reductions, including the use of lower-sulfur coal, a lower percentage of allowable leaking doors at the Clairton facility, and efficiency initiatives.

Response 11: EPA agrees that it may be appropriate for the facilities to continue exploring operational and process improvements to reduce SO 2 emissions. However, EPA has determined that the submittal, including the measures in the facility permits submitted by Pennsylvania for incorporation into the Allegheny County portion of the Pennsylvania SIP, represent the level of controls and measures necessary for the Allegheny Area to attain the SO 2 NAAQS, and it is therefore not necessary to compel adoption of additional measures in order to approve the SIP. ACHD's modeling analysis shows these measures will achieve attainment of the SO 2 NAAQS in the Allegheny Area. See also the discussion of RACM/RACT for the Allegheny Area in EPA's response to comment 7 of this action.

Comment 12: ACHD should have imposed immediate deadlines for implementing proposed control strategies and should not have waited until the attainment date. This postponement of compliance with control strategies until the exact attainment date contradicts EPA's policy relating to attainment plans. The commenter claims that EPA requires the state permitting agency to generate at least one calendar year of compliance information, prior to the attainment date. The commenter referenced EPA's 2014 SO 2 Guidance, which states that “EPA would expect states to require sources to begin complying with the attainment strategy in the SIP no later than January 1, 2017. By this means, the plans would be able to provide at least l calendar year of air quality monitoring data (and at least 1 calendar year of compliance information which, when modeled, would show attainment) before the applicable attainment deadline, indicating that the plan is in fact providing for attainment.” In ACHD's Response to Comments document dated June 13, 2017, it states that “[t]he design, construction, and implementation of all projects for this SIP necessitate the longer schedule than prescribed by the general NAAQS schedule,” without citing any evidence. EPA should require more of an explanation from the Department for the delay in requiring control measures, which is inconsistent with EPA's guidance document.

Response 12: EPA's 2014 SO 2 Guidance, as cited by the commenter, sets forth the expectation that one year of compliance or monitored data would be available as supporting evidence that modeling performed for the attainment plan, and the control measures adopted by the attainment plan, provide for attainment. In the case of the measures for the sources in the Allegheny Area that were needed for attainment, EPA proposed approval of the plan based on ACHD's submitted modeling demonstration showing that the measures would provide for attainment. Although one year of compliance data was not available at the time of the proposal, EPA believes it was appropriate, despite the Guidance recommendation on monitoring and compliance data, to propose our action. As explained in our 2014 SO 2 Guidance and in numerous proposed and final SIP actions implementing the SO 2 NAAQS, a key element of an approvable SIP is the required modeling demonstration showing that the remedial control measures and strategy are adequate to bring a previously or currently violating area into attainment. 13 The 2014 SO 2 Guidance addresses the best case scenario, but does not fit the current situation, so EPA has to use its judgment as to whether the lack of one year of monitored data which reflects the implementation of the control measures prior to the attainment date, under these circumstances, invalidates the modeling showing that these controls can achieve attainment. As part of this analysis, EPA looked at the AQS data for the Liberty monitor, which is included in the docket for this final rule. This data shows that after October 4, 2018, the date by which the control measures in the attainment plan were required at the Mon Valley Works and Harsco facilities, there were no exceedances between October 4, 2018 and December 23, 2018, which was the day just preceding the day of the fire at the Clairton Plant. As discussed previously, outside of the time frame during which the desulfurization plant at Clairton was not operational due to the fire on December 24, 2018, there were no monitored violations at the Liberty monitor. Preliminary data for 2019 also shows that outside of the time frame for the control outage from the December 2018 fire, no monitored violations have occurred. EPA believes that although the 2019 data is preliminary, the October through December 2018 data and the 2019 preliminary data suggests that compliance with the measures have been effective in showing that the measures provide for attainment. The three quarters of preliminary data for 2019 is included in the docket for this final rule. Fourth quarter 2019 data is normally submitted into AQS by March 31, 2020, and certification of data is required by May 1, 2020. Because actual monitored data (that was not impacted by the fires) show no exceedances after the October 4, 2018 deadline to meet the new measures, it is not necessary or useful to look back at the reasons the measures were not required sooner.

The portion of the 2014 SO 2 Guidance referenced by the commenter is there for the purpose of recommending what is preferred for a determination of attainment under CAA section 179(c), rather than what is necessary for assessing whether an attainment plan would provide for attainment by the attainment date under section 172(c) of the CAA. Therefore, the lack of one year of monitored data before the attainment date does not invalidate this attainment plan approval action.

Comment 13: The commenter provided a preliminary evaluation of ambient air quality monitoring data for the three-year period of 2016-2018, which suggests that the Allegheny Area will be in nonattainment due to data at the Liberty monitor. The commenter cites a predicted design value of 101 ppb, based on the average of the fourth-highest maximum hourly values for 2016, 2017, and 2018. The commenter asked EPA to provide an evaluation whether the design value for 2016-2018 will in fact be below the NAAQS, as anticipated by ACHD. This should include substantiation regarding its projection of what the design value will be, based on monitored data. If the numbers demonstrate that it will exceed the standard, the commenter states that the Department should revise the state implementation plan to require additional emissions reductions sufficient to meet the standard.

Response 13: Although this design value was not as anticipated by ACHD when it responded to comments received on the proposed Allegheny Area attainment plan, the monitoring data available at that time should not be interpreted as indicating that the attainment plan fails to provide for attainment. The monitoring data cited by the commenter were collected before the full implementation of the measures in the Allegheny SO 2 attainment plan on October 4, 2018. Therefore, these data do not show the improvement in air quality and monitored values which were expected from full implementation of the measures used in the modeling demonstration. As such, these data are not a reliable indicator of whether air quality, after implementation of all modeled, relevant control measures, would be expected to meet the standard at the attainment deadline. In other words, these data are not indicative of the adequacy of the plan and its modeling demonstration to provide for NAAQS attainment. As noted previously, EPA's 2014 SO 2 Guidance and actions implementing the SO 2 NAAQS explain that a key element of an approvable SIP is the required modeling demonstration showing that the remedial control measures and strategy are adequate to bring a previously or currently violating area into attainment. Given the form of the 2010 NAAQS as the three-year average of the 99th percentile of the yearly distribution of 1-hour daily maximum SO 2 concentrations, it is often possible that the three-year period of monitored data will contain some monitored results which preceded implementation of the newer remedial control measures. These monitored results would not reflect the air quality levels resulting from implementation of the attainment plan control measures. In such cases, as it is here, the more complete and representative analysis for informing action on a submitted SIP should focus on the results of newly implemented control measures required under the plan and the modeling demonstration based on those control measures, rather than pre-control, measured concentrations that do not reflect the results of the plan's required control measures. The former analysis explicitly addresses whether air quality will be attaining (as required) under the state's submitted plan, whereas the latter analysis may have little to no bearing on what will happen as a result of the plan. Therefore, in the context of reviewing the adequacy of those newer control measures to provide for newly attaining air quality under sections 172 and 192 of the CAA, we conclude that it is reasonable to rely on the modeling results that specifically account for those control measures and the resulting reductions in SO 2 emissions, rather than on monitored data that, in this case, do not represent air quality levels resulting from full implementation of the control measures in the attainment plan. In the Allegheny SO 2 attainment plan, ACHD's modeling shows that implementation of the measures included in the plan result in air quality that attains the NAAQS.

Comment 14: The commenter claims that the Department (or ACHD) did not adequately address the problems in the proposed revision. ACHD correctly states that “reasonable further progress” contemplates “annual incremental reductions in emissions.” However, the data provided in this section only demonstrates overall ambient reduction in SO 2 at the Liberty monitor. The data would have to show annual incremental reductions in SO 2 emissions specifically at each source, in order to demonstrate reasonable further progress. See 42 U.S.C. 7501(1). The Department confuses the concept of “reasonable further progress” by setting forth a chart showing declining concentrations of SO 2 at a monitoring site. But as set forth above, that is not what the statute calls “reasonable further progress.” See 42 U.S.C. 7501(1). The Department provides further evidence of this confusion when it asserts that “[the] shutdown of Guardian Industries in 2015 is an additional decrease in emissions for the NAA . . . .” Id., page 32. Comparing decreases in ambient concentrations with decreases in source emissions is like comparing apples to oranges.

At best, the Department implies there have been some emissions reductions “due to partially-completed projects by USS (including projects that have not been quantified for this SIP).” See Id. But the Department must quantify those emissions, and it must demonstrate “reasonable further progress” in this proposed plan revision. The fact that projects are only “partially-completed,” and the Department has not even quantified them for this plan, demonstrates that the Department has failed to show “reasonable further progress.” See Id.

ACHD's response to the commenter was that, for RFP, “the definition is generally less pertinent to pollutants like SO 2 that usually have a limited number of sources affecting areas of air quality which are relatively well defined, and emissions control measures for such sources result in swift and dramatic improvement in air quality. . . . Given that source controls are in effect `single steps' for RFP for SO 2 , and the initial controls are only partially in place (for an 8-month period in 2016 for the VCU upgrades), incremental reductions cannot be classified. Emission reductions cannot be double counted by applying them to both the control strategy and RFP. As a method to indicate downward progress, concentration data was used along with quantifiable reductions in emissions.”  14

The commenter asserts that ACHD's argument is flawed because it is premised on the notion that there will be a swift and dramatic improvement in air quality, which remains to be seen, and also because emissions reductions cannot be double-counted by applying them to both the control strategy and RFP, and is not a defense to not doing single-counting of additional emissions reductions from means other than VCU upgrades, such as limiting leaking doors. Stated differently, just because a facility has invested in an item of capital equipment to reduce emissions does not mean that it should not be required to explore other opportunities for emissions reductions. The commenter believes that EPA should require more from ACHD by way of RFP and require additional emissions reductions above and beyond those achievable through recent projects.

Response 14: ACHD's response to comments on its proposed attainment plan relies on EPA's 2014 SO 2 Guidance and the discussion of the RFP requirement. As explained in the 2014 SO 2 Guidance, section 171(1) of the CAA defines RFP as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part (part D) or may reasonably be required by the EPA for the purpose of ensuring attainment of the applicable NAAQS by the applicable attainment date.” 2014 SO 2 Guidance, pp. 40 and 41. The 2014 SO 2 Guidance goes on to explain that “[a]s EPA has previously explained, this definition is most appropriate for pollutants that are emitted by numerous and diverse sources, where the relationship between any individual source and the overall air quality is not explicitly quantified, and where the emission reductions necessary to attain the NAAQS are inventory-wide. We have also previously explained that the definition is generally less pertinent to pollutants like SO 2 that usually have a limited number of sources affecting areas of air quality which are relatively well defined, and emissions control measures for such sources result in swift and dramatic improvement in air quality. That is, for SO 2 , there is usually a single `step' between pre-control nonattainment and post-control attainment, thus annual incremental reductions that would be required for some other pollutants, as discussed in the 2014 Guidance, would not be necessary prior to attainment. Therefore, for SO 2 , with its discernible relationship between emissions and air quality, and significant and immediate air quality improvements, we explained in the General Preamble that RFP is best construed as `adherence to an ambitious compliance schedule.' See 74 FR 13547, April 16, 1992. This means that the air agency needs to ensure that affected sources implement appropriate control measures as expeditiously as practicable in order to ensure attainment of the standard by the applicable attainment date.” Id. The Guidance further states that, by definition, the RFP provision requires only such reductions in emissions as are necessary to attain the NAAQS. If a modeling analysis for an area shows that the SIP will timely attain the NAAQS, then the purpose of the RFP requirement will have been fulfilled, and since the modeling for this area makes that demonstration, additionally showing that the area will make RFP toward attainment has no further utility. We took this view with respect to the general RFP requirement under CAA section l 72(c)(2) in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (General Preamble) (see 57 FR 13498, 13564, April 16, 1992). See 72 FR at 20604, 2014 SO 2 Guidance, p. 54. The modeling demonstration, which takes into account the new SO 2 reduction measures at the four facilities in the Area that were required no later than October 4, 2018, shows that the SIP provides for the Allegheny Area to attain the 2010 SO 2 NAAQS by October 4, 2018. Because the modeling for the Area shows attainment of the NAAQS by the attainment date through timely compliance with the new emission limits in the permits, RFP, as interpreted for the purpose of SO 2 , has been met in this Area.

Further, as noted in EPA's response to comment 2 of this action, preliminary monitoring data for 2019 (excluding the monitoring data collected during the control outage caused by the December 2018 fire at Clairton Coke Works) supports the modeling results that the SIP provides for attainment of the Area with respect to the 2010 SO 2 NAAQS.

Comment 15: The commenter believes that there should be no averaging period at all, given the complexity of the air shed in the nonattainment area, and that long-term averaging for the VCU at the Clairton facility should be rejected. The commenter also states that a better explanation of the calculations and analysis regarding the CEV should have been included in the submittal to provide EPA and the public an opportunity to assess whether the long-term average is appropriate in this case. The 2014 SO 2 Guidance sets forth the steps to establish longer-term limits that are comparably stringent, including determination of a CEV; each of these steps should be shown in the submittal to accurately assess whether there is comparable stringency. The commenter also stated that ACHD did not have enough data for its B Line VCU upgrade to determine comparable stringency values. The commenter believes that ACHD used eight months of data for this line, projected out to three to five years, as the basis of its calculations of an adjustment factor for determining long term average limits that would be comparably stringent to 1-hour limits at the CEV. The commenter believes that this amount of data is inadequate for this purpose and believes that ACHD should have used data from a comparable site having three to five years of operating data.

Response 15: The validity of long-term average limits is addressed in EPA's response to comment 4 of this action. With regard to the data used in the calculations for the determination of the CEV value, Appendix C of the 2014 SO 2 Guidance shows an example calculation and the steps needed to determine a longer-term average emission limit. Step 1 of the calculation is to conduct dispersion modeling to determine a source's 1-hour CEV that could be used as a baseline for determination of a longer-term average limit that is comparably stringent to the CEV. These values are shown in Tables 3-1 and 3-3 of the Commonwealth's submittal. Step 2 is to compile emissions data reflecting the distribution of emissions that is expected once the attainment plan is implemented. Emission distributions describe the frequency with which different emission levels occur, which may be depicted by graphing the number of hours per year (for example) that emissions are within a particular range, as a function of emission level. A key element of this step is selection of an appropriate emissions data set. This step is especially important if the attainment plan is expected to involve installation of control equipment or other similarly significant changes in operations. The choice of control strategy can have a significant effect on the emission distribution. For example, installation and operation of flue gas desulfurization equipment, particularly in the absence of requirements for continuous operation of the equipment, can lead to an emission distribution in which most emission values are significantly lower but occasional values remain relatively high, thus enlarging the difference between peak emission values and longer-term average emission values. Consequently, if the source being addressed does not currently operate flue gas desulfurization equipment but the attainment plan is likely to involve installation and operation of such equipment, the current emissions profile data for the source may not provide a suitable representation of the variability of emissions that might be expected after the attainment plan controls are in place.

The 2014 SO 2 Guidance states that in such cases, as suggested by the commenter, Step 2 would involve identifying another set of data that better reflects the source's expected emission variability, presumably from another comparable source that is already implementing the control strategy that the target source anticipates using. In other cases, the 2014 SO 2 Guidance states that “the air agency may determine that an area could attain through a control strategy that will not significantly change the emission distribution. Where the control strategy does not significantly change the distribution, the source's current emission distribution may be the best indicator of the source's post-control emission distribution. Irrespective of whether the future emissions variability does or does not match the historic emissions variability at a source, a critical element of Step 2 is to assure that the data used to analyze prospective emissions variability at the source properly reflects the emissions variability that might be expected at the source once the SIP is implemented”. See 2014 SO 2 Guidance, pp 31-32.

Clairton Works is a distinctive source, being the nation's largest coke works and being relatively well controlled. Thus, EPA believes that no other source could provide a data set that could represent the emissions variability resulting from burning COG from Clairton Works better than data from Clairton Works itself.

As described in Appendix D of its documentation, ACHD analyzes 2014 to 2016 data from four units at Clairton Works: Unit 1, Unit 2, Line A, and Line B. The commenter focuses in particular on the calculations for Line B, which the commenter incorrectly states are based on data for the eight months in this period after an upgrade to its sulfur removal equipment. In fact, these calculations are based on data for the entire 3-year period. EPA's 2014 SO 2 Guidance, at page 29, states, “The EPA anticipates that data sets reflecting hourly data for at least three to five years of stable operation ( i.e., without changes that significantly alter emissions variability) would be needed to obtain a suitably reliable analysis.” Thus, for Line B, the ideal data set would have reflected three to five years of data following implementation of the control upgrade. However, such a data base, by definition including data at least through April 2019, was not available to ACHD for its October 2017 submittal. Almost as good would have been a data base reflecting three to five years of data from before the control upgrade, so long as the data could be demonstrated to be reflective of variability after implementation of the control upgrade. ACHD did not explain whether or why such a data base was not available. However, ACHD did compare the emissions distributions before and after the control upgrade, concluding that the emissions after the control upgrade exhibit similar variability (albeit at around one fourth the levels) as emissions before the control upgrade. ACHD justified the use of data from the entirety of 2014 to 2016 on this basis.

As a general matter, EPA's recommendation to use data from a period without significant changes in controls is intended in part to assure that the data base purely represents variability of emissions within a specific control regime, not variability from one control regime to another. Although ACHD has provided information to support its assertions that the variability of emissions at the Line B after the control upgrade are similar to their variability before the control upgrade, this information does not address concerns about using a data base that mixes 28 months of relatively high (pre-upgrade) data with eight months of relatively low (post-upgrade) data.

EPA conducted additional analyses of ACHD's data to evaluate whether, despite these concerns, the results of ACHD's analysis of the Line B data might nevertheless provide a suitable estimation of the degree of adjustment warranted to determine comparably stringent longer-term average limits. EPA computed adjustment factors using 2014 SO 2 Guidance Appendix C methods for three scenarios: (1) Using all pertinent data for the full three years (as was done by ACHD), (2) using only pre-upgrade data, and (3) using a three year data set in which the post-upgrade data are adjusted according to the average emission reduction from the upgrade, to simulate a three-year pre-upgrade data base. A spreadsheet showing these computations is provided in the docket, and the results for these three scenarios are shown in Table 2.

As these results show, ACHD's results are similar to the results they would have obtained either using a 28-month data base using only pre-upgrade data or using a data base with adjustments as if all 36 months of data were at pre-upgrade levels. The data suggest that the 99th percentile values for all averaging times are, not surprisingly, during the higher, pre-upgrade period; in this respect, the analysis appears to be more sensitive to pre-upgrade variability than to post-upgrade variability, and the analysis predominantly reflects variability during a 28-month period and thus is a potentially less robust result than would be obtained with three years of data with a constant control regime. Nevertheless, these data support ACHD's assertion that post-upgrade variability is similar to pre-upgrade variability, and EPA believes more broadly that ACHD's results provide a suitable adjustment factor for determining the longer-term limits for units firing B Line COG that are comparably stringent to the 1-hour limits that otherwise would have been set.

Step 3 of EPA's recommended procedure is to use the selected data set to compute longer-term (in this case 30-day and 24-hour) average values. Step 4 is to determine the 99th percentile of the 1-hour and longer-term average values. Step 5 is to calculate the ratio of the values determined in Step 4, to be used as an adjustment factor. The values that ACHD obtained through these steps are documented in Appendix D Tables D-4-2, D-4-3, and D-4-4. The application of these adjustment factors to limits for units that fire COG from these four sources are shown in Table 3-3 of the main SIP document.

The commenter expresses concern that EPA does not have estimates of the expected frequency or magnitude of emissions in excess of the CEV. Such an analysis is complicated by the number of different emission units that burn COG from these four sets of COG origins. Nevertheless, as stated in the NPRM, the application of 24-hour average limits as well as 30-day limits will help assure that the frequency and magnitude of emissions above the CEV will be modest. If the facility has no values that exceed the 30-day and 24-hour average limits ( i.e., if the facility complies with the SIP limits), then EPA expects correspondingly few values above the corresponding 1-hour value ( i.e., the CEV) as well.

Comment 16: The commenter requested that EPA substantially revise the NPRM before finalizing and should ensure attainment without ignoring monitor data showing nonattainment with the standard.

Response 16: EPA has concluded that a revised NPRM is not warranted because the comments do not identify a flaw in ACHD's plan which would require a plan revision in order to meet the requirements of the CAA. As previously explained in our response to comments 2 and 13 of this action, in the context of reviewing the adequacy of newer control measures to provide for newly attaining air quality under sections 172 and 192 of the CAA, we conclude that it is reasonable to focus on the modeling results that specifically account for those control measures and the resulting reductions in SO 2 emissions, rather than on monitored data that, in this case, do not represent air quality levels resulting from full implementation of the control measures in the attainment plan, which ACHD's modeling shows result in air quality that attains the NAAQS. For the reasons described in our proposal and in the preceding responses to comments, we find that the Allegheny SO 2 attainment plan meets all applicable requirements under the CAA and EPA's implementing regulations. Accordingly, we are finalizing our approval of the Allegheny SO 2 attainment plan.

EPA is approving Pennsylvania's attainment plan SIP revision for the Allegheny Area, as submitted by ACHD through PADEP to EPA on October 3, 2017, for the purpose of demonstrating attainment of the 2010 1-hour SO 2 NAAQS. Specifically, EPA is approving the base year emissions inventory, a modeling demonstration of SO 2 attainment, an analysis of RACM/RACT, an RFP plan, and contingency measures for the Allegheny Area and that the Pennsylvania SIP revision has met the requirements for NNSR for the 2010 1-hour SO 2 NAAQS. Additionally, EPA is approving into the Allegheny County portion of the Pennsylvania SIP the SO 2 emission limits and compliance parameters in the following permits, all of which are dated September 14, 2017: ACHD Permit 0052-1017 for the Clairton Plant; ACHD Permit 0051-1006 for the Edgar Thomson Plant; ACHD Permit 0050-1008 for the Irvin Plant, and ACHD Permit 0265-1001 for Braddock Recovery/Harsco Metals.

EPA has determined that Pennsylvania's SO 2 attainment plan for the 2010 1-hour SO 2 NAAQS for the Allegheny Area meets the applicable requirements of the CAA and is consistent with EPA's 2014 SO 2 Guidance. Thus, EPA is approving Pennsylvania's attainment plan for the Allegheny Area as submitted on October 3, 2017. This final action of this SIP submittal removes EPA's duty to implement a FIP for this Area, and discharges EPA's requirement under the court order to take final action on the SIP by April 30, 2020.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of SO 2 emission limits and compliance parameters in ACHD permits. EPA has made, and will continue to make, these materials generally available at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 15

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);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

• 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 22, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the Allegheny Area attainment plan for the 2010 SO 2 NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

This action affects companies that manufacture or sell new light-duty vehicles, light-duty trucks, and medium-duty passenger vehicles, as defined under EPA's Clean Air Act (CAA) regulations. 1 Regulated categories and entities include:

EPA is finalizing two technical corrections to the light-duty vehicle greenhouse gas (GHG) emissions standards regulations first promulgated in the 2012 rulemaking that established standards for model years 2017-2025 light-duty vehicles. First, EPA is correcting an error in the regulations pertaining to how auto manufacturers must calculate credits for the GHG program's optional advanced technology incentives. The regulations previously in place resulted in some auto manufacturers receiving fewer credits than the agency intended for electric vehicles, plug-in hybrid electric vehicles, fuel cell electric vehicles, and natural gas fueled vehicles. Auto manufacturers requested through a petition letter submitted jointly by the Auto Alliance and Global Automakers in June 2016 that EPA correct the regulations to provide the intended level of credits for these technologies. Second, the regulations regarding how manufacturers must calculate certain types of off-cycle credits contained an error and were inconsistent with the 2012 final rule preamble, which raised implementation concerns for some manufacturers. The amendments finalized in this action correct and clarify the calculation methodologies in the regulations. Both of these corrections allow the program to be implemented as originally intended. EPA issued a proposal to correct the errors on October 1, 2018. 2 The corrections are described in detail in Section II below and EPA response to comments is provided in additional detail in Section III.

This final rule is effective immediately on publication. This rule constitutes the revision of a regulation under section 202 of the Clean Air Act (CAA) and as such it is covered by the rulemaking procedures in section 307(d) of the CAA. See CAA section 307(d)(1)(I). Section 307(d)(1) of the CAA states that: “The provisions of section 553 through 557 . . . of Title 5 shall not, except as expressly provided in this section, apply to actions to which this subsection applies.” Thus, section 553(d) of the APA does not apply to this rule. The EPA is nevertheless acting consistently with the policies underlying APA section 553(d) in making this rule effective April 23, 2020.

Section 553(d)(1) of the Administrative Procedure Act, 5 U.S.C. 553(d)(1), provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction.” The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. Fed. Commc'n Comm'n , 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic , 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However, when the agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. EPA has determined that this rule relieves a restriction because it corrects a calculation error that does not allow manufacturers to claim the appropriate number of credits. Finalization of this rule would provide manufacturers the flexibility EPA intended when the credits program was originally promulgated.

In addition, section 553(d)(3) of the Administrative Procedure Act (“APA”), 5 U.S.C. 553(d), provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . as otherwise provided by the agency for good cause.” In determining whether good cause exists to waive the 30-day delay, an agency should “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” Gavrilovic, 551 F.2d at 1105. EPA has determined that there is good cause for making this final rule effective immediately because Model Year 2019 credit information is due on May 1, 2020, and manufacturers may need to purchase or use the additional credits generated by the corrected methodology to demonstrate their performance with the 2019 standards. As described above, the effect of this rule is not adverse and manufacturers likely do not need additional time to prepare for the effective date of this action's revisions, so a delayed effective date is not necessary for reasonable notice. In addition, the corrections to the calculations align with the preamble language in the 2012 rulemaking, so affected parties have had sufficient notice that the corrected methodology is how the program was meant to function. On balance, the potential short-term need for the additional credits generated by the corrected methodology outweighs any unanticipated need for further notice.

Accordingly, EPA is making this rule effective immediately upon publication.

EPA is finalizing technical amendments to provisions of the light-duty vehicle GHG regulations under section 202 (a) of the Clean Air Act (CAA) ((42 U.S.C. 7521 (a)).

EPA does not expect the corrections finalized in this action to result in any significant changes in regulatory burdens, costs, or benefits.

This rule corrects two technical provisions in the regulations for the model year (MY) 2017-2026 greenhouse gas (GHG) emissions standards. The first correction addresses how manufacturers apply advanced technology vehicle multipliers during credit calculations to ensure that credits are calculated as EPA intended in the 2012 final rule. The second correction addresses how manufacturers must calculate off-cycle credits under the program's 5-cycle credit calculation methodology.

EPA views these items as technical amendments that correct and clarify the regulations and are not changes in how the program functions. Therefore, neither of these technical amendments introduce or remove any requirements on automobile manufacturers, nor do these changes impose additional regulatory costs. We describe each of these changes in the following sections.

This final rule corrects the application of advanced technology vehicle multipliers, and an off-cycle credit calculation methodology for MY 2012 and later vehicles. We note that in the “Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks” Part 2 Final Rule issued by EPA and the National Highway Traffic Safety Administration (NHTSA) regarding GHG and Corporate Average Fuel Economy (CAFE) standards for Model Years (MY) 2021 to 2026, EPA extended multipliers for dedicated and dual-fuel natural gas vehicles (NGVs) for model years 2022-2026. As discussed below, EPA has modified the regulations to ensure that credits attributable to this new multiplier are calculated correctly, consistent with the proposal, as well as for the multipliers established for various alternative fueled vehicles previously for MYs 2017-2021.

As part of the 2012 rule, EPA adopted temporary incentive multipliers for certain advanced technology vehicles, including battery electric vehicles (BEVs), plug-in hybrid electric vehicles (PHEVs), fuel cell vehicles (FCVs), and compressed natural gas (CNG) vehicles. 3 The multipliers allow manufacturers to count these lower CO 2 emitting vehicles as more than one vehicle in their fleet average compliance calculations. For example, the 2.0 multiplier for MY 2017 BEVs would allow a manufacturer to count every MY 2017 BEV produced as two vehicles produced. As part of the finalized SAFE Part 2 rule, EPA extended the availability of multipliers for dedicated and dual-fuel NGVs to MY 2022-2026. The multipliers are shown for reference in Tables 1 and 2 below.

In 2016, EPA and NHTSA received a joint petition from the Alliance of Automobile Manufacturers and the Association of Global Automakers regarding various aspects of the CAFE and GHG programs. 6 Item 8 of the petition, titled “Correct the Multiplier for BEVs, PHEVs, FCVs, and CNGs,” correctly notes that “the equation through which the number of earned credits is calculated is inaccurately stated in the regulations” and that credits would be inadvertently lost due to the error. As proposed, EPA is modifying the regulations so that the credits are calculated correctly in all cases such that no manufacturers would inadvertently lose credits. These advanced vehicle technology multipliers do not apply to the NHTSA CAFE program.

The uncorrected regulations regarding the application of the multipliers stated that “[T]the actual production of qualifying vehicles may be multiplied by the applicable value according to the model year, and the result, rounded to the nearest whole number, may be used to represent the production of qualifying vehicles when calculating average carbon-related exhaust emissions under § 600.512 of this chapter.”  7 The calculations are done separately for the passenger car and light truck fleets. The following shows the application of this regulatory text in equation form:  8

Under the uncorrected regulations at 40 CFR 86.1865-12(k)(4), the multiplier for advanced technology production is applied by modifying the way the CREE (E adj in the equation above) is calculated. The petitioners noted that applying the multiplier only to E adj does not produce the intended credit. The petitioners provided an example of the incorrect calculation for a manufacturer producing 5,000 battery electric vehicles (BEVs), which have a CREE of zero, showing that such a manufacturer would not receive any additional credits from the multiplier because the E adj term would remain zero (regardless of the multiplier or how many vehicles were produced) and the fleet average standard term ( i.e., the footprint-based standard) remains unchanged because the multiplier does not affect the fleet average standard calculation.

Example 1a below shows the calculation of credits without the multiplier and Example 1b shows the calculation with the uncorrected application of the multiplier using the 5,000 BEV example, assuming a footprint-based standard of 210 g/mile and a multiplier of 2.0.

Where the production weighted fleet average carbon related exhaust emissions, or E adj , with the multiplier applied is calculated as follows:

In order for the calculation to produce the correct result, the multiplier must be applied not only to the advanced technology vehicle production in the CREE average value, E adj , calculation but also to the advanced technology vehicle production in the average standard calculation and the advanced technology vehicle production portions of the total production. The calculation of credits in megagrams with the multiplier correctly applied, and as EPA is finalizing today, is represented by the following equations:

Using the corrected methodology, manufacturers would determine the additional credits associated with using the multiplier(s) by calculating fleet credits with and without the multiplier applied (the credits without the multiplier applied are shown below as term C). The credits calculated without the multiplier would be subtracted from the credits calculated with the multiplier with the difference reflecting the additional credits attributable to the multiplier.

Applying the above corrected equation to Example 1a produces the expected credits due to the multiplier. As shown using Example 1a from above, the correct application of the 2.0 multiplier doubles the resulting credit in this example, which is what EPA intended and manufacturers expected when the program was established in the 2012 rule.

Where the production weighted fleet average standard and fleet average carbon related exhaust emissions, or E adj , are calculated with the multiplier as follows:

And finally, the credits due to application of the multiplier are:

This is a summary of the Auction 105 Procedures Public Notice, AU Docket No. 19-244, FCC 20-18, adopted on February 28, 2020, and released on March 2, 2020. This summary incorporates the revised schedule for the auction as announced in a subsequent public notice, AU Docket No. 19-244, DA 20-330, released on March 25, 2020. The complete text of these documents, including attachments and any related documents, are available for public inspection and copying from 8:00 a.m. to 4:30 p.m. ET Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, located in Room CY-A257, of the FCC Headquarters, 445 12th Street SW, Washington, DC 20554, except when FCC Headquarters is otherwise closed to visitors. See, e.g. , Public Notice, Restrictions on Visitors to FCC Facilities, March 12, 2020. The complete text of both public notices is also available on the Commission's website at www.fcc.gov/auction/105 or by using the search function for AU Docket No. 19-244 on the Commission's 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. With the Auction 105 Procedures Public Notice, the Commission established the procedures for the upcoming auction of Priority Access Licenses (PALs) in the Citizens Broadband Radio Service in the 3550-3650 MHz Band (Auction 105).

2. The bidding for new licenses in Auction 105 is scheduled to commence on July 23, 2020. The Auction 105 Procedures Public Notice provides details regarding the procedures, terms, conditions, dates, and deadlines governing participation in Auction 105 bidding, and an overview of the post-auction application and payment processes. Dates and deadlines that were announced in the Auction 105 Procedures Public Notice were revised in a subsequent announcement, and this summary includes those revised dates.

3. In the 2015 3.5 GHz Report and Order, 80 FR 34119, June 23, 2015, the Commission made available 150 megahertz of spectrum in the 3550-3700 MHz band (3.5 GHz band) for both licensed and licensed-by-rule use. In that Order, the Commission established licensing and operating rules for the 3.5 GHz band, including the assignment of up to seven Priority Access Licenses (PALs) per geographic license area through the use of competitive bidding. Each PAL consists of a 10-megahertz unpaired channel within the 3550-3650 MHz band. In the 2018 3.5 GHz Report and Order, 83 FR 63076, December 7, 2018, the Commission adopted a county-based geographic license area for PALs, as well as a 10-year renewable license term, and it affirmed the Commission's prior decision to permit licensees to aggregate no more than four PALs per license area.

4. On September 27, 2019, in accordance with section 309(j)(3) of the Communications Act of 1934, as amended, the Commission released the Auction 105 Comment Public Notice, 84 FR 56743, October 23, 2019, seeking comment on certain competitive bidding procedures and various other procedures to be used in Auction 105. The Commission received comments from 17 parties in response to the Auction 105 Comment Public Notice, and 12 reply comments. These comments are available under proceeding 19-244 in the Commission's Electronic Comment Filing System (ECFS). The ECFS home page is publicly accessible at: www.fcc.gov/ecfs. In the Auction 105 Procedures Public Notice, the Commission resolved all open issues raised in the Auction 105 Comment Public Notice and addressed the comments received.

5. Prospective applicants should familiarize themselves with the Commission's general competitive bidding rules, including recent 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 Citizens Broadband Radio Service. Applicants must be thoroughly familiar with the procedures, terms, and conditions contained in the Auction 105 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 information to applicants. Additionally, the Wireless Telecommunications Bureau (Bureau) and the Office of Economics and Analytics (OEA) retain the authority to establish further procedures during the course of the auction. It is the responsibility of all applicants to remain current with all Commission rules and with all public notices pertaining to Auction 105. Copies of most auctions-related Commission documents, including public notices, can be retrieved from the Commission's FCC Auctions internet site at www.fcc.gov/auctions. Additionally, documents are available at the Commission's headquarters during normal business hours.

7. Auction 105 will offer seven PALs in each county-based license area. For purposes of this auction, counties shall be defined using the United States Census Bureau's data reflecting county legal boundaries and names valid through January 1, 2017. Information regarding PALs, including a map and list of 2017 counties, can be found at https://www.fcc.gov/35-ghz-band-overview. Each PAL consists of a 10-megahertz unpaired channel within the 3550-3650 MHz band. Auction 105 will offer a total of 22,631 PALs. A summary of the licenses offered in Auction 105 is available in Attachment A to the Auction 105 Comment Public Notice, which is available on the Auction 105 website at www.fcc.gov/auction/105. PALs are 10-year renewable licenses. A Priority Access Licensee may hold up to four 10-megahertz channel licenses (out of a total of seven) within the band in any license area at any given time.

8. A frequency coordinator called a Spectrum Access System (SAS) will assign the specific channel for a particular licensee on a dynamic basis. An individual PAL will not be identified by specific spectrum blocks. Although a Priority Access Licensee may request a particular channel or frequency range from an SAS following the auction, bidders should be mindful that licensees are not guaranteed a particular assignment. Potential bidders should also understand that an SAS may dynamically reassign a PAL to a different channel as needed to accommodate a higher priority Incumbent Access user. To the extent feasible, an SAS will assign geographically contiguous PALs held by the same Priority Access Licensee to the same channels in each geographic area and assign multiple channels held by the same Priority Access Licensee to contiguous channels in the same License Area. An SAS may, however, temporarily reassign individual PALs to non-contiguous channels to the extent necessary to protect incumbent users from harmful interference or if necessary, to perform its required functions. On January 27, 2020, the Bureau and the Office of Engineering and Technology certified the following SASs to begin full commercial operations: CommScope, Federated Wireless, Inc., Google, and Sony, Inc.

9. Each Priority Access Licensee must register its Citizens Broadband Radio Service Devices (CBSDs) with an SAS before operating those devices in the band. A CBSD registration includes its geographic location, antenna height, CBSD class, requested authorization status, FCC identification number, call sign, user contact information, air interface technology, unique manufacturer's serial number, sensing capabilities (if supported), and information on its deployment profile. An SAS relies on this information to coordinate access for Priority Access Licensees and General Authorized Access (GAA) users, and an SAS Administrator may charge Priority Access Licensees and GAA users a reasonable fee for its services.

10. The auction of PALs in the 3550-3650 MHz band will be referred to as Auction 105. Bidding in Auction 105 will begin on Thursday, July 23, 2020. The initial schedule for bidding rounds in Auction 105 will be announced by public notice at least one week before bidding in the auction starts.

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

12. The following dates and deadlines apply to Auction 105:

13. Those wishing to participate in Auction 105 must: Submit a short-form application (FCC Form 175) electronically prior to 6:00 p.m. ET on May 7, 2020, following the electronic filing procedures set forth in the FCC Form 175 Instructions (available in the Education section of the Auction 105 website at www.fcc.gov/auctions/105 ); submit a sufficient upfront payment and an FCC Remittance Advice Form (FCC Form 159) by 6:00 p.m. ET on June 19, 2020; and comply with all provisions outlined in the Auction 105 Procedures Public Notice and applicable Commission rules.

14. An application to participate in Auction 105, 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 financial qualifications to participate in a Commission auction for spectrum licenses. 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 105 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 105 is based on an applicant's short-form application and certifications, and on the applicant's submission of a sufficient upfront payment for the auction. In the second phase of the process, each winning bidder 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. Being deemed qualified to bid in Auction 105 does not constitute a determination that a party is qualified to hold a Commission license or is eligible for a designated entity bidding credit.

15. A party seeking to participate in Auction 105 must file an FCC Form 175 electronically via the Auction Application System prior to 6:00 p.m. ET on May 7, 2020, 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 as of the filing date will be used to determine whether the applicant may request the claimed bidding credit. An applicant that files an FCC Form 175 for Auction 105 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—6:00 p.m. ET on May 7, 2020. The prohibition will end for applicants on the post-auction down payment deadline for Auction 105.

16. An applicant bears full responsibility for submitting an accurate, complete, and timely short-form application. Each 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 it must confirm that it is legally, technically, financially, and otherwise qualified to hold a license. If an Auction 105 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.

17. 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.

18. 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. The Commission specifically has held that information submitted in support of receiving bidding credits in auction proceedings should be made available to the public.

19. An applicant must designate at least one individual as an authorized bidder, and no more than three, in its FCC Form 175. The Commission's rules prohibit an individual from serving as an authorized bidder for more than one auction applicant.

20. 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.

21. A party is generally permitted to participate in a Commission auction only through a single bidding entity. The filing of applications in Auction 105 by multiple entities controlled by the same individual or set of individuals generally will not be permitted. This restriction applies across all applications, without regard to the geographic areas selected. There is a limited exception to the general prohibition of the filing of multiple applications by commonly controlled entities for qualified rural wireless partnerships and individual members of such partnerships. Under this limited exception, each qualifying rural wireless partnership and its individual members will be permitted to participate separately in an auction.

22. After the initial short-form application filing deadline, Commission staff will review all timely submitted applications for Auction 105 to determine whether each application complies with the application requirements and whether the applicant has provided all required information concerning the applicant's 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.

23. An applicant should consult the Commission's rules to ensure that all required information is included in its short-form application. To the extent the information in the Auction 105 Procedures Public Notice does not address a potential applicant's specific operating structure, or if the applicant needs additional information or guidance concerning the following disclosure requirements, the applicant should review the educational materials for Auction 105 (see the Education section of the Auction 105 website at www.fcc.gov/auction/105 ) and/or use the contact information provided to consult with Commission staff to better understand the information it must submit in its short-form application.

24. An applicant must select all the county-based 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 county selections before the FCC Form 175 filing deadline because those selections cannot be changed after the auction application filing deadline. The FCC Auction Bidding System (bidding system) will not accept bids for blocks located in counties that the applicant did not select in its FCC Form 175. The auction application system, however, will provide an applicant the option to select “all counties.”

25. 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. A controlling interest includes all individuals or entities with positive or negative de jure or de facto control of the licensee. 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. If, after the FCC Form 175 filing deadline, an auction applicant enters into any agreement relating to the licenses being auctioned, then it is subject to these same disclosure obligations. All applicants must maintain the accuracy and completeness of the information in their pending auction application.

26. 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.

27. 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). A joint bidding arrangement includes any arrangement relating to the licenses being auctioned that addresses or communicates, directly or indirectly, bidding at 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.

28. 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. The Commission considers AT&T, Sprint, T-Mobile, and Verizon Wireless to be nationwide providers for the purpose of implementing the Commission's competitive bidding rules in Auction 105. A “non-nationwide provider” refers to any provider of communications services that is not a nationwide provider.

29. 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. 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 of joint bidding arrangements excludes certain agreements, including those that are solely operational in nature. Under the Commission's rules, agreements that are solely operational in nature are those that address operational aspects of providing a mobile service, such as agreements for roaming, device acquisition, and spectrum leasing and other spectrum use arrangements, provided that any such agreement does not both relate to the licenses at auction and address or communicate, directly or indirectly, bidding at auction (including specific prices to be bid) or bidding strategies (including the specific licenses on which to bid or not to bid) or post-auction market structure.

30. 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.

31. 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, certain discussions or exchanges could nonetheless touch upon impermissible subject matters, and compliance with the Commission's rules will not insulate a party from enforcement of the antitrust laws.

32. A winning bidder will be required to disclose in its FCC Form 601 post-auction 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.

33. Each applicant must comply with the applicable part 1 ownership disclosure requirements and provide information required by sections 1.2105 and 1.2112, and, where applicable, section 1.2110, of the Commission's rules. 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. Each applicant is responsible for ensuring that information submitted in its short-form application is complete and accurate.

34. 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. The most current ownership information contained in any FCC Form 602 or previous auction application on file with the Commission that used the same FCC Registration Number (FRN) the applicant is using to submit its FCC Form 175 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. Applicants are encouraged to submit an FCC Form 602 ownership report or update any ownership information on file with the Commission in an FCC Form 602 ownership report prior to starting an application for Auction 105 to ensure that their most recent ownership information is pre-filled into their short-form applications. 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.

35. 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 section 310(b), then it may seek to participate in Auction 105 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 section 310 or has filed a petition for declaratory ruling requesting Commission approval to exceed the applicable foreign ownership limit or benchmark in section 310(b) that is pending before, or has been granted by, the Commission. Additional information concerning foreign ownership disclosure requirements is provided in the FCC Form 175 Filing Instructions.

36. The Commission is limiting information available in Auction 105 in order to prevent the identification of bidders placing particular bids until after the bidding has closed. 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, (3) any applicant's bidding eligibility, and (4) any other bidding-related information that might reveal the identity of the bidder placing a bid.

37. Once the bidding begins in Auction 105, 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 licenses in each geographic area, the supply, the aggregate demand, the price at the end of the last completed round, and the price for the next round. The identities of bidders placing specific bids and the net bid amounts (reflecting bidding credits) will not be disclosed until after the close of bidding.

38. Bidders will have access to additional information related to their own bidding and bidding eligibility through the Commission's bidding system. For example, bidders will be able to view their own level of eligibility, both before and during the auction.

39. After the close of bidding, bidders' county selections, upfront payment amounts, bidding eligibility, bids, and other bidding-related actions will be made publicly available.

40. The 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. To the extent an applicant believes that such a disclosure is required by law or regulation, including regulations issued by the U.S. Securities Exchange Commission, the applicant should consult with the Commission staff in the Auctions Division before making such disclosure.

41. The rules prohibiting certain communications set forth in section 1.2105(c) apply to each applicant that files a short-form application (FCC Form 175) in Auction 105. Section 1.2105(c)(1) of the Commission's rules 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.

42. 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, and all officers and directors of that entity. A party that submits an application becomes an applicant under the rule at the application deadline, and that status does not change based on later developments. Thus, an auction applicant that does not correct deficiencies in its application, fails to submit a timely and sufficient upfront payment, or does not otherwise become qualified, remains an “applicant” for purposes of the rule and remains subject to the prohibition on certain communications until the Auction 105 down payment deadline.

43. The Commission considers AT&T, Sprint, T-Mobile, and Verizon Wireless to be nationwide providers for the purposes of the prohibited communications rule for Auction 105.

44. Section 1.2105(c)'s prohibition of 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.

45. Section 1.2105(c) of the Commission's rules 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 rules 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 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.

46. 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. Applicants must determine whether their communications with other parties are permissible under the rule once the prohibition begins at the deadline for submitting applications, even before the public notice identifying applicants is released.

47. Parties subject to section 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 conveyed to the other applicant through the shared officer, which creates an apparent violation of the rule.

48. Section 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. 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.

49. Business discussions and negotiations that are unrelated to bidding in Auction 105 and 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 105 will not violate the rule. In contrast, communicating 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.

50. 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.

51. 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 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.

52. When completing a short-form application, each applicant should avoid any statements or disclosures that may violate section 1.2105(c). An applicant should avoid including any information in its short-form application that might convey information regarding its county selections, such as referring to certain markets in describing agreements, including any information in application attachments that will be publicly available that may otherwise disclose the applicant's county selections, or using applicant names that refer to licenses being offered.

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

54. 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. The 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.

55. In the case of an individual, the objective precautionary measure of a firewall is not available. 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. 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.

56. Potential applicants 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. 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 counties selected on the short-form application, is conveyed to that individual. To the extent potential applicants can develop bidding instructions prior to the short-form deadline that a third party could implement without changes during bidding, the third party could follow such instructions for multiple applicants provided that those applicants do not communicate with the third party during the prohibition period.

57. 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 section 1.2105 violation. Similarly, an applicant's public statement of intent not to place bids during bidding in Auction 105 could also violate the rule.

58. By electronically submitting its FCC Form 175 auction application, each applicant certifies its compliance with section 1.2105(c) of the rules. If an applicant has a non-controlling interest with respect to more than one application, the applicant must certify that it has established internal control procedures to preclude any person acting on behalf of the applicant from possessing information about the bids or bidding strategies of more than one applicant or communicating such information with respect to either applicant to another person acting on behalf of and possessing such information regarding another applicant. However, the mere filing of a certifying statement as part of an application 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.

59. Section 1.2105(c)(4) requires that any applicant that makes or receives a communication that appears to violate section 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.

60. A party reporting any information or communication pursuant to sections 1.65, 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 section 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.

61. Parties 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 section 1.2105(c) must be filed consistent with the instructions set forth in the Auction 105 Procedures Public Notice. 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 auction105@fcc.gov. If you choose to submit a report in hard copy, contact Auctions Division staff at auction105@fcc.gov or (202) 418-0660 for guidance.

62. 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 section 0.459 of the Commission's rules. Filers requesting confidential treatment of documents must be sure that the cover page of the filing prominently displays that the documents seek confidential treatment. For example, a filing might include a cover page stamped with “Request for Confidential Treatment Attached” or “Not for Public Inspection.” Any such request must cover all the material to which the request applies. Such parties are encouraged coordinate with the Auctions Division staff about the procedures for submitting such reports.

63. 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. Such agreements must have been entered into prior to the filing of short-form applications. 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.

64. A summary listing of documents issued by the Commission and the Bureau/OEA addressing the application of section 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.

65. Applicants remain subject to the antitrust laws. Compliance with the disclosure requirements of section 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.

66. To the extent the Commission becomes aware of specific allegations that suggest that violations of the federal antitrust laws may have occurred, the Commission 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, it may be subject to a forfeiture and may be prohibited from participating further in Auction 105 and in future auctions, among other sanctions.

67. In Auction 105, 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). A bidding credit represents an amount by which a bidder's winning bid will be discounted. 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. Each applicant should review carefully the Commission's decisions regarding the designated entity provisions as well as the part 1 rules.

68. Applicants applying for designated entity bidding credits 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. 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.

69. For Auction 105, bidding credits will be available to eligible small businesses and consortia thereof. Under the service rules applicable to the PALs to be offered in Auction 105, the level of bidding credit available is determined as follows: A bidder with attributed average annual gross revenues that do not exceed $55 million for the preceding three years is eligible to receive a 15% discount on its winning bid; a bidder with attributed average annual gross revenues that do not exceed $20 million for the preceding three years is eligible to receive a 25% discount on its winning bid.

70. Small business bidding credits are not cumulative; an eligible applicant may receive either the 15% or the 25% bidding credit on its winning bid, 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. Thus, for example, the Commission's unjust enrichment provisions would not apply to a winning bidder that uses the 15% small business bidding credit and seeks to transfer control of its license to an entity that qualifies for either the 15% small business bidding credit or the rural service provider bidding credit. The provisions would apply, however, if that same winning bidder uses the 25% small business bidding credit, unless the proposed transferee also qualifies for the 25% small business bidding credit.

71. Each applicant claiming a small business bidding credit must disclose the gross revenues for the preceding three 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 105. 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 105, the identity and the attributable gross revenues of any such disclosable interest holder must be disclosed. 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 105. 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.

72. An eligible applicant may request a 15% discount on its winning bid 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, 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. For instance, a subscriber receiving both wireline and telephone service and broadband would be counted as a single subscriber.

73. 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 105. 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 105, the identity and the attributable subscribers of any such disclosable interest holder must be disclosed. Eligible rural service providers may 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.

74. Eligible applicants claiming either a small business or rural service provider bidding credit will be subject to certain caps on the total amount of bidding credit discounts that any eligible applicant may receive. The Commission adopted a $25 million cap on the total amount of bidding credit discounts that may be awarded to an eligible small business, and a $10 million cap on the total amount of bidding credit discounts that may be awarded to an eligible rural service provider in Auction 105. No winning designated entity bidder will 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. To the extent an applicant seeking a small business bidding credit does not claim the full $10 million in bidding credits in those smaller markets, it may apply the remaining balance to its winning bids on licenses in larger markets, up to the aggregate $25 million cap.

75. 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.

76. Applicants should refer to section 1.2110(c)(2) of the Commission's rules and the FCC Form 175 Instructions to understand how certain interests are calculated in determining control for purposes of attributing gross revenues. For example, officers and directors of an applicant are considered to have a controlling interest in the applicant.

77. 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.

78. 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, and (2) retaining control, on a license-by-license basis, over the spectrum associated with the licenses for which it seeks small business benefits. 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. Except under the limited provisions provided for spectrum manager lessors, the Commission's decision to discontinue its policy requiring designated entity licensees to operate as primarily facilities-based providers of service directly to the public does not alter the rules that require the Commission to consider whether any particular use agreement may confer control of or create affiliation with the applicant. 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 section 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. For instance, if an applicant has a spectrum use agreement on a particular license that calls into question whether, under the Commission's affiliation rules, the user's revenues should be attributed to the applicant for that particular license, rather than for its overall business operations, the applicant could be ineligible to acquire or retain benefits with respect to that particular license.

79. 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 section 310(d) of the Communications Act and related regulations, which require Commission approval of transfers of control. Although in this scenario the applicant may not be eligible for a bidding credit and may be subject to the Commission's unjust enrichment rules, the applicant need not be eligible for small business benefits on each of the spectrum licenses it holds in order to demonstrate its overall eligibility for such benefits. If that spectrum use agreement (either alone or in combination with the designated entity controlling interest and attribution rules) 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. The Commission applies the same de facto control standard to designated entity spectrum manager lessors that is applied to non-designated entity spectrum manager lessors.

80. The Commission's rules, 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. 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 105 will be subject to this attribution rule and must make the requisite disclosures.

81. Certain disclosable interest holders may be excluded from this attribution rule. 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 use agreement is 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. The Commission intends to withhold from public disclosure all information contained in any such attachments until after the close of Auction 105.

82. 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. 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, the gross revenues derived from that separate business would be attributed to the applicant, although any personal income from such separate business would not be attributed. 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 section 1.2110(b)(4)(iii) of the Commission's rules 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 section 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.

83. 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. The Commission will evaluate eligibility for an existing rural wireless partnership on the same basis as it would for an applicant applying for a bidding credit as a consortium of rural service providers. A partnership that includes a nationwide provider as a member will not be eligible for the benefit. Members of such partnerships that fall under this exception may also apply as individual applicants or members of a consortium (to the extent that it is otherwise permissible to do so under the Commission's rules) and seek eligibility for a rural service provider bidding credit.

84. A consortium of small businesses or rural service providers may seek an exception from the Commission's attribution 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 to ensure that each consortium member qualifies for the bidding credit sought by the consortium.

85. 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 105, 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. An applicant is considered a current defaulter or a current delinquent when it, any of its affiliates, any of its controlling interests, or any of the affiliates of its controlling interests, is in default on any payment for any Commission construction permit or license (including a down payment) or is delinquent on any non-tax debt owed to any Federal agency as of the filing deadline for auction applications. Non-tax debt owed to any Federal agency includes, within the meaning of the rule, all amounts owed under Federal programs, including contributions to the Universal Service Fund, Telecommunications Relay Services Fund, and the North American Numbering Plan Administration, notwithstanding that the administrator of any such fund may not be considered a Federal “agency” under the Debt Collection Improvement Act of 1996. For example, an applicant with a past due USF contribution as of the auction application filing deadline would be disqualified from participating in Auction 105 under the Commission's rules. If the applicant cures the overdue debt prior to the auction application filing deadline (and such debt does not fall within one of the exclusions described in section 1.2105(a)(2)(xii)), it may be eligible to participate in Auction 105 as a former defaulter. 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 it is 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. The term “controlling interest” is defined in section 1.2105(a)(4)(i) of the Commission rules.

86. An applicant is considered a former defaulter or a former delinquent when, as of the FCC Form 175 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. 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. 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. 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. A debt will not be deemed to be in default or delinquent until after the expiration of a final payment deadline. To the extent that the rules providing for payment of a specific federal debt permit payment after an original payment deadline accompanied by late fee(s), such debts would not be in default or delinquent for purposes of applying the former defaulter rules until after the late payment deadline. Any winning bidder that fails to timely pay its post-auction down payment or the balance of its final winning bid amount(s) or is disqualified for any reason after the close of an auction will be in default and subject to a default payment. Commission staff provide individual notice of the amount of such a default payment as well as procedures and information required by the Debt Collection Improvement Act of 1996, including the payment due date and any charges, interest, and/or penalties that accrue in the event of delinquency. Such notice provided by Commission staff assessing a default payment arising out of a default on a winning bid, constitutes notice of the final payment deadline with respect to a default on a Commission license.

87. 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.

88. 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. 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 sections 1.2105 and 1.2106, with regard to current and former defaults or delinquencies.

89. 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 section 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). A prospective applicant in Auction 105 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. Applicants that have their long-form applications dismissed will be deemed to have defaulted and will be subject to default payments under sections 1.2104(g) and 1.2109(c) of the Commission's rules. Each applicant should 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. To access the Commission's Red Light Display System, go to: https://apps.fcc.gov/redlight/login.cfm.

90. Applicants owned by members of minority groups and/or women, as defined in section 1.2110(c)(3), and rural telephone companies, as defined in section 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.

91. After the initial FCC Form 175 filing deadline, an Auction 105 applicant will be permitted to make only minor changes to its application consistent with the Commission's rules. Minor amendments include any changes that are not major, such as correcting typographical errors and supplying or correcting information as requested to support the certifications made in the application. 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 modification to an FCC Form 175 ( e.g., change of county 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 section 1.2105(b)(2), the major amendment will not be accepted and may result in the dismissal of the application. Any change in control of an applicant will be considered a major modification, and the application will consequently be dismissed. Even if an applicant's FCC Form 175 is dismissed, the applicant would remain subject to the communication prohibitions of section 1.2105(c) until the down-payment deadline for Auction 105.

92. 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 105. An applicant's FCC Form 175 and associated attachments will remain pending until the release of a public notice announcing the close of the auction. Auction 105 applicants remain subject to the section 1.2105(c) prohibition of certain communications until the post-auction deadline for making down payments on winning bids in Auction 105. An applicant's post-auction application (FCC Form 601) is considered pending from the time it is accepted for filing by the Commission until a Commission grant or denial of the application is no longer subject to reconsideration by the Commission or to review by any court. An applicant for Auction 105 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.

93. A party seeking to participate in Auction 105 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; 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. Applicants are advised to retain a copy of this confirmation page.

94. 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. An applicant will not be allowed to modify electronically in the Auction Application System the applicant's legal classification, the applicant's name, or the certifying official. During the resubmission filing window and after the release of the public notice announcing the qualified bidders for an auction, 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 sections 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).

95. 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, etc.) 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, the applicant must submit a letter briefly summarizing the changes to its FCC Form 175 via email to auction105@fcc.gov. The email summarizing the changes must include a subject line referring to Auction 105 and the name of the applicant, for example, “Re: Changes to Auction 105 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.

96. 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 auction105@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).

97. 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. 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.

98. Applicants must not submit application-specific material through the Commission's Electronic Comment Filing System. 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 section 1.2105(c) or the limited information procedures adopted for Auction 105. 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.

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

100. Each potential bidder 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 105. 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.

101. An applicant should perform its due diligence research and analysis before proceeding, as it would with any new business venture. Each potential bidder should perform technical analyses and/or refresh its previous analyses to assure itself that, should it become a winning bidder for any Auction 105 license, it will be able to build and operate facilities that will fully comply with all applicable technical and legal requirements. Each applicant should 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 other environmental statutes.

102. Each applicant in Auction 105 should 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 105 Procedures Public Notice do not constitute an exhaustive list of steps that should be undertaken prior to participating in Auction 105. 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.

103. 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 105. 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.

104. 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.

105. Potential applicants in Auction 105 should consider carefully the implications of the Commission's sharing scheme for the 3550-3650 MHz band. The 3550-3700 MHz band (collectively, the 3.5 GHz band) is governed by a three-tiered spectrum authorization framework. The three tiers of authorization are: Incumbent Access, Priority Access, and General Authorized Access (GAA). SASs will facilitate sharing among the three tiers of authorized users. Incumbent users receive protection from Priority Access Licensees and GAA users, while Priority Access Licensees receive protection from GAA users. The three-tiered structure is designed to accommodate a variety of commercial uses on a shared basis with incumbent federal and non-federal uses of the band. The Citizens Broadband Radio Service includes Priority Access Licensees in the 3550-3650 MHz band and GAA users throughout the 3.5 GHz band.

106. Potential applicants in Auction 105 should consider carefully the operations of incumbent licensees currently in the 3550-3650 MHz portion of the 3.5 GHz band when developing business plans, assessing market conditions, and evaluating the availability of equipment for Citizens Band Radio Service operations. Each applicant should follow closely releases from the Commission concerning these issues and consider carefully the technical and economic implications for commercial use of the 3550-3650 MHz band. Each applicant should also be aware of the exclusion zones for federal radiolocation sites posted on the National Telecommunications and Information Administration (NTIA) website, available at https://www.ntia.doc.gov/category/3550-3650-mhz.

107. Incumbent users, which have the highest priority, include federal radiolocation users in the 3550-3650 MHz band and non-Federal grandfathered Fixed Satellite Service (FSS) earth stations in the 3600-3650 MHz band.

108. The 3550-3650 MHz band segment is allocated for use by Department of Defense (DoD) radar systems on a primary basis and by Federal non-military Radiolocation Service on a secondary basis. Federal aeronautical radionavigation (ground-based) stations may also be authorized on a primary basis in the 3500-3650 MHz band when accommodation in the 2700-2900 MHz band is not technically or economically feasible. Non-Federal licensees, including Priority Access Licensees, may not cause harmful interference to or claim protection from federal stations in the aeronautical radionavigation (ground-based) and radiolocation services in the 3550-3650 MHz band. The NTIA may approve frequency assignments for new and modified Federal stations at current or new locations.

109. In the 3550-3650 MHz band, non-Federal stations in the Radiolocation Service that were licensed or had pending applications prior to July 23, 2015, may operate on a secondary basis to the Citizens Broadband Radio Service until the end of the equipment's useful lifetime. FSS (space-to-Earth) earth station operations in the 3600-3650 MHz band may operate on a primary basis if the Commission authorized operation prior to or granted an application filed prior to July 23, 2015, and if the FSS licensee constructed the subject earth station(s) within 12 months of the initial authorization. Any new FSS (space-to-Earth) earth stations in the 3600-3650 MHz band assigned after July 23, 2015, are authorized on a secondary basis. Regardless of primary or secondary status, all non-Federal FSS (space-to-Earth) operations in the 3600-3650 MHz band are limited to international inter-continental systems and subject to case-by-case electromagnetic compatibility analysis.

110. GAA users may operate in the 3550-3700 MHz band, but are not guaranteed protection from interference. GAA users may operate on any frequencies not in use by Priority Access Licensees (in the 3550-3650 MHz band) or Tier 1 users (across the 3.5 GHz band). The GAA tier is licensed-by-rule to permit open, flexible access to the band for the widest possible group of potential users.

111. Potential bidders seeking licenses for geographic areas adjacent to the Canadian and Mexican border should be aware that the use of the Citizens Broadband Radio Service frequencies they acquire in Auction 105 are subject to current and future agreements with the governments of Canada and Mexico. The Commission's rules require the SAS Administrators to implement the terms of any such agreements.

112. 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 3550-3650 MHz band must not cause harmful interference across the border, consistent with the terms of the agreements currently in force.

113. Licensees must comply with the Commission's rules for environmental review under the NEPA, the NHPA, and other environmental statutes. 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 the 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 (EA) when applicable. This assessment may require consultation with expert agencies having environmental responsibilities, such as U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers, and the Federal Emergency Management Agency, among others. If an EA is required, then facilities may not be constructed until environmental processing is completed. Under NHPA, a licensee or applicant must follow the procedures in section 1.1320 of the Commission's rules, 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 EA must be prepared.

114. Bidders are reminded of the Commission's spectrum aggregation limits applicable to the 3.5 GHz band. Priority Access Licensees may aggregate up to four PALs in any county license area at any given time. For purposes of applying this spectrum aggregation limit on Priority Access Licensees, the criteria in section 20.22(b) will apply in order to attribute partial ownership and other interests. The spectrum aggregation limit of 40 megahertz will ensure the availability of PALs for at least two users in the counties where there is the greatest likelihood of high demand for such spectrum.

115. Before the opening of the short-form filing window for Auction 105, detailed educational information will be provided in various formats to would-be participants on the Auction 105 web page. 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 has made available in the Education section of the Auction 105 website at www.fcc.gov/auction/105. 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.

116. In advance of the start of the mock auction, OEA will provide educational materials on the bidding procedures for Auction 105, beginning with release of a user guide for the bidding system and bidding system file formats, followed by an online bidding procedures tutorial. 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.

117. Parties interested in participating in Auction 105 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, listen to audio of the notes, and search for topics using a text search function. 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 105 website at www.fcc.gov/auction/105. Once posted, the tutorials will be accessible anytime.

118. In order to be eligible to bid in Auction 105, 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 6:00 p.m. ET on May 7, 2020. Late applications will not be accepted. No application fee is required.

119. Applications may be filed at any time beginning at noon ET on April 23, 2020, until the filing window closes at 6:00 p.m. ET on May 7, 2020. Applicants should 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 7, 2020.

120. 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 at (877) 480-3201, option nine; (202) 414-1250; or (202) 414-1255 (text telephone (TTY)); hours of service are Monday through Friday, from 8:00 a.m. to 6:00 p.m. ET. All calls to Technical Support are recorded.

121. Applicants are cautioned that the Commission periodically performs scheduled maintenance of its IT systems. During scheduled maintenance activities, which typically occur over the weekends, every effort is made to minimize any downtime to auction-related systems, including the Auction Application System. However, there are occasions when auction-related systems may be temporarily unavailable.

122. 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 a paper copy will be sent by overnight delivery 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 phone number of a Commission staff member who can answer questions specific to the application.

123. After the initial application filing deadline on April 9, 2019, applicants can make only minor modifications to their applications. Major modifications ( e.g., change of county, 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 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 105.

124. 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. In no event, however, will the Commission send auction registration materials to anyone other than the contact person listed on the applicant's FCC Form 175 or respond to a request for replacement registration materials from anyone other than the authorized bidder, contact person, or certifying official listed on the applicant's FCC Form 175. Authorizations may be sent by email to auction105@fcc.gov.

125. After Commission staff review 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.

126. In order to be eligible to bid in Auction 105, a sufficient upfront payment and a complete and accurate FCC Remittance Advice Form (FCC Form 159, Revised 2/03) must be submitted before 6:00 p.m. ET on June 19, 2020. 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.

127. Upfront payments for Auction 105 must be wired to, and will be deposited in, the U.S. Treasury. Wire transfer payments for Auction 105 must be received before 6:00 p.m. ET on June 19, 2020. An applicant must initiate the wire transfer through its bank, authorizing the bank to wire funds from the applicant's account to the proper account at the U.S. Treasury. 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 information needed to place an order for a wire transfer is set forth in the Auction 105 Procedures Public Notice.

128. 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 105”. To meet the upfront payment deadline, an applicant's payment must be credited to the Commission's account for Auction 105 before the deadline.

129. 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. 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.

130. All payments must be made in U.S. dollars. All payments must be made by wire transfer. Upfront payments for Auction 105 go to an account number different from the accounts used in previous FCC auctions.

131. Failure to deliver a sufficient upfront payment as instructed herein by the upfront payment deadline will result in dismissal of the short-form application and disqualification from participation in the auction.

132. Information that supplements the standard instructions for FCC Form 159 (Revised 2/03) is provided in the Auction 105 Procedures Public Notice to help ensure correct completion of FCC Form 159 for upfront payments for Auction 105. 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, and correspondence about an application may cause processing delays. Appropriate cross-references between the FCC Form Remittance Advise and the short-form application are described in the Auction 105 Procedures Public Notice.

133. 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.

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

135. An applicant must make an upfront payment sufficient to obtain bidding eligibility on the generic blocks on which it will bid. Upfront payments are based on MHz-pops, and that the amount of the upfront payment submitted by an applicant will determine its initial bidding eligibility, the maximum number of bidding units on which a bidder may place bids in any single round. In order to bid for a block, qualified bidders must have a current eligibility level that meets or exceeds the number of bidding units assigned to that generic block in a county. At a minimum, an applicant's total upfront payment must be enough to establish eligibility to bid on at least one block in one of the counties selected on its FCC Form 175 for Auction 105, 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.

136. The Commission adopted upfront payments for generic block in a county based on $0.01 per MHz-pop, with a minimum of $500 per county. The upfront payment amount per block in each county is set forth in the Attachment A file, available at www.fcc.gov/auction/105. The upfront payment amounts are approximately half the minimum opening bid amounts.

137. The Commission has assigned each generic block in a county a specific number of bidding units, equal to one bidding unit per $10 of the upfront payment. The number of bidding units for one block in a given county 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 for the auction covering that number of bidding units. In some cases, a qualified bidder's maximum eligibility may be less than the amount of its upfront payment because the qualified bidder has either previously been in default on a Commission construction permit or license or delinquent on non-tax debt owed to a Federal agency, see 47 CFR 1.2106(a), or has submitted an upfront payment that exceeds the total amount of bidding units associated with the licenses or license areas it selected on its FCC Form 175. In order to make this calculation, an applicant should add together the bidding units for the number of blocks in counties 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.

138. If an applicant is a former defaulter, it must calculate its upfront payment for the maximum amount of generic blocks in each county 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 divide the upfront payment received by 1.5 and round the result up to the nearest bidding unit. If a former defaulter fails to submit a sufficient upfront payment to establish eligibility to bid on at least one generic block in a county, the applicant will not be eligible to participate in Auction 105.

139. All qualified bidders for Auction 105 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.

140. Qualified bidders that do not receive this registration mailing will not be able to submit bids. Therefore, any qualified bidder for Auction 105 that has not received this mailing by noon on July 15, 2020, 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.

141. If SecurID® tokens are 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 replacements. To request replacement of these items, call the Auction Bidder Line at the telephone number provided in the registration materials or the Auction Hotline at (717) 338-2868.

142. Bidders will be able to participate in Auction 105 over the internet using the FCC Auction Bidding System (bidding system). Telephonic bidding will not be available for Auction 105 because it would not be feasible given the number of county-based licenses and the file upload required to submit bids. However, the Auction Bidder Line will be available during the mock auction and actual auction for bidder questions. The Auction Bidder Line telephone number will be supplied in the registration materials sent to each qualified bidder. Only qualified bidders are permitted to bid. Each authorized bidder must have his or her own SecurID® token, which the Commission will provide at no charge. Each applicant with one authorized bidder will be issued two SecurID® tokens, while applicants with two or three authorized bidders will be issued three tokens. A bidder cannot bid without his or her SecurID® tokens. 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 105. The SecurID® tokens can be recycled, and the Commission encourages bidders to return the tokens to the FCC. Pre-addressed envelopes will be provided to return the tokens once the auction has ended.

143. 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.

144. 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.

145. All qualified bidders will be eligible to participate in a mock auction, which will begin on July 20, 2020. Only those bidders that are qualified to participate in Auction 105 will be eligible to participate in the mock auction. The mock auction will enable qualified bidders to become familiar with the bidding system and to practice submitting bids prior to the auction. All qualified bidders, including all their authorized bidders, are encouraged to 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 105.

146. At any time before or during the bidding process, OEA, in conjunction with the Bureau, may delay, suspend, or cancel bidding in Auction 105 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 reasons to depart from it here. 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 and the Bureau will exercise this authority at their discretion.

147. As is the case with many business investment opportunities, some unscrupulous entrepreneurs may attempt to use Auction 105 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.

148. 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:

149. Complaints about specific deceptive telemarketing investment schemes should be directed to the FTC, the SEC, or the National Fraud Information Center at (202) 835-0618.

150. The Commission will conduct Auction 105 using an ascending clock auction design, in which bidders indicate their demands for generic license blocks in specific counties. The auction will proceed in a series of rounds, with bidding being conducted simultaneously for all spectrum blocks in all counties available in the auction. During each bidding round, the bidding system will announce a per-block clock price in each county, and qualified bidders will submit, for each county for which they wish to bid, the number of blocks they seek at the clock 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.

151. In Auction 105, in each county, the clock price for a generic license block will increase from round to round if bidders indicate total demand in that county that exceeds the number of blocks available. The bidding rounds will continue until, for all counties, the total number of blocks that bidders demand does not exceed the supply of available blocks. At that point, those bidders indicating demand for a block at the final price will be deemed winning bidders. No assignment phase will be held to assign frequency-specific licenses, as was done in previous spectrum auctions that used a clock format, because the frequencies associated with Priority Access Licensees' PALs will be dynamically assigned by SASs.

152. The specific bidding procedures that the Commission adopted in the Auction 105 Procedures Public Notice differ from the procedures proposed in the Auction 105 Comment Public Notice in that bidders will not be permitted to elect to bid at a Cellular Market Area (CMA) level for more populous CMAs; instead, all bidding will be on a county-level only. The auction format for Auction 105 therefore follows more closely the clock auction format used in Auctions 1002, 102, and 103. The Commission did, however, adopt its proposal to modify the bidding activity rules used in its prior clock auctions to allow an “upper activity limit,” which will help provide a safeguard against a bidder losing bidding eligibility under certain circumstances.

153. OEA, in conjunction with the Bureau has prepared and released an updated technical guide that provides the mathematical details of the adopted auction design and algorithms for Auction 105. The information in the updated technical guide, which may be found on the Commission's website ( www.fcc.gov/auction/105 ), supplements the Commission's decisions in the Auction 105 Procedures Public Notice.

154. In accordance with the 2018 3.5 GHz Report and Order and consistent with the rules governing Citizens Broadband Radio Service, 70 megahertz of spectrum designated for PALs in the 3550-3650 MHz band will be licensed in seven generic 10-megahertz blocks by county. Accordingly, in the auction, seven generic block licenses will be available for bidding in each county, for a total of 22,631 PALs.

155. Limit on number of blocks per bidder. The bidding system will limit to four the quantity of blocks that a bidder can demand in any given area at any point in the auction. This implements the Commission's rules limiting the aggregation for PALs to 40 megahertz ( i.e., four PALs) in any geographic area at any point in time. Therefore, in each bidding round, a bidder will have the opportunity to bid for up to four generic blocks of spectrum per county, subject to the eligibility rules.

156. Bidding at the county level only; no CMA-level bidding. In the Auction 105 Comment Public Notice the Commission proposed procedures that would allow bidders to bid at a CMA level for blocks in counties that comprise more populous CMAs. Under that proposal, prior to the auction bidders would have been able to elect to bid on a CMA-by-CMA level for PALs in those CMAs that are classified as Metropolitan Statistical Areas (MSAs) and that incorporate multiple counties. Those electing to bid at the CMA level would not have been permitted to bid at the county level in that CMA, and vice versa. Based on its record and in light of its experience in previous auctions, the Commission concludes that a standard ascending clock auction with county-by-county bidding will offer adequate opportunity for bidders to aggregate licenses in order to obtain the level of coverage they desire consistent with their business plans and therefore does not adopt its CMA-level bidding proposal. Bidders will be permitted to bid on a county-by-county basis only.

157. Auction 105 will proceed in a series of rounds, with bidding conducted simultaneously for all spectrum blocks for all counties available in the auction. During each bidding round, the bidding system will announce a per-block price in each county, and qualified bidders will submit, for each county for which they wish to bid, the number of blocks they seek at the clock 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.

158. In each county, the clock price for a generic license block will increase from round to round if bidders indicate total demand in that county that exceeds the number of blocks available. The bidding rounds will continue until, for all counties, the total number of blocks that bidders demand does not exceed the supply of available blocks. At that point, those bidders indicating demand for a block at the final price will be deemed winning bidders.

159. The initial bidding schedule will be announced in a public notice to be released at least one week before the start of bidding. The bidding schedule may be changed in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. Such changes may include 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. The bidding system will announce any such changes to the bidding schedule several rounds before the change occurs.

160. A bidder may submit its bids using the bidding system's upload function that allows bid files in a comma-separated value (CSV) format to be uploaded. The bidding system will not allow bids to be submitted unless the bidder selected the counties on its FCC Form 175 and the bidder has sufficient bidding eligibility.

161. During each round of the bidding, a bidder may also remove bids placed in the current bidding round. If a bidder modifies its bids for blocks in a county in a round, the system takes the last bid submission as that bidder's bid for the round.

162. The Commission will use a simultaneous stopping rule for Auction 105, under which all blocks in all counties will remain available for bidding until the bidding stops in every county. Bidding will close for blocks in all counties after the first round in which there is no excess processed demand in any county. Consequently, it is not possible to determine in advance how long the bidding in Auction 105 will last. No bids may be withdrawn after the close of a round. Unlike an auction conducted using the Commission's standard simultaneous multiple-round auction format for bidding on frequency-specific licenses (as opposed to generic blocks), there are no provisionally winning bids in a clock auction.

163. The Commission will make public after each round of Auction 105, for each county: (1) The supply, (2) the aggregate demand, (3) the posted price of the last completed round (which is the clock price of the previous round if demand exceeds supply; the start-of-round price of the previous round if supply exceeds demand; or the price at which a reduction caused demand to equal supply), and (4) the clock price for the next round. The identities of bidders demanding blocks in a specific county will not be disclosed until after Auction 105 concludes ( i.e., after the close of bidding).

164. Each bidder will have access to additional information related to its own bidding and bid eligibility. After the bids of a round have been processed, the bidding system will inform each bidder of the number of blocks it holds after the round (its processed demand) for every county and its eligibility for the next round.

165. Limiting the availability of bidding information during the auction balances the Commissions interest in providing bidders with sufficient information about the status of their own bids and the general level of bidding in all areas and license categories to allow them to bid confidently and effectively, while restricting the availability of information that may facilitate identification of bidders placing particular bids, which could potentially lead to undesirable strategic bidding.

166. Bidders are required to maintain a minimum, high level of activity in each clock round in order to maintain bidding eligibility, which will help ensure that the auction moves quickly and promote a sound price discovery process. The activity requirement (the activity requirement percentage) will be between 90% and 100% of a bidder's bidding eligibility in all clock rounds, as proposed. The initial activity requirement percentage will be 95%. 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 additional bids in the auction.

167. The Commission will use upfront payments to determine a bidder's initial (maximum) eligibility in terms of bidding units. Each spectrum block in a county will be assigned a specific number of bidding units based on the number of MHz-pops in the county. Therefore, a bidder's upfront payment will determine the maximum number of blocks as measured by their associated bidding units that a bidder can demand at the start of the auction.

168. The activity rule will be satisfied when a bidder has bidding activity on blocks with bidding units that total at least the activity requirement percentage (set between 90 and 100%) of its eligibility in the round. If the activity rule is met, then the bidder's eligibility will not change in the next round. Bidding eligibility will be reduced as the auction progresses if a bidder does not meet the activity requirement. For example, with an activity requirement of 95%, the eligibility of a bidder not meeting the activity requirement would be calculated as the bidder's activity multiplied by 100/95.

169. 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 processed demands, which may not be equal to its submitted demands. For instance, if a bidder requests a reduction in the quantity of blocks it demands in a category, but the bidding system does not apply the request because demand for the category would fall below the available supply, the bidder's activity will reflect its unreduced demand. Under the ascending clock auction format, the FCC auction bidding system will not allow a bidder to reduce the quantity of blocks it demands in an individual county if the reduction would result in aggregate demand falling below (or further below) the available supply of blocks in the county.

170. Activity upper limit. A bidder will be allowed to submit bids with associated bidding activity greater than its current bidding eligibility, noting, however, that a bidder's activity as applied by the auction system during bid processing will not exceed the bidder's current bidding eligibility. 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 that meet its activity requirement for the round. This may occur, for example, if the bidder bids to reduce its demand in county A by two blocks (with 10 bidding units each) and bids to increase its demand by one block (with 20 bidding units) in county B. If the bidder's demand can only be reduced by one block in county A (because there is only one block of excess demand), the increase in county B cannot be applied, and absent other bidding activity the bidder's eligibility would be reduced. The Commission anticipates that adopting an “activity upper limit” will help a bidder avoid having its eligibility reduced as a result of submitted bids that cannot be applied during bid processing. For example, depending upon the bidder's overall bidding eligibility and the activity limit percentage, a bidder could submit an “additional” bid or bids that would be considered (in price point order with its other bids) and applied as available eligibility permits during the bid processing. When submitting bids with associated bidding activity greater than its current bidding eligibility, a bidder would consider the price points associated with each of its bids to indicate the order in which it wishes the bidding system to consider its bid requests. Therefore, if bids submitted at lower price points cannot be applied as requested, thereby leaving the bidder with unused eligibility, then the system will consider the additional bids submitted at higher price points to use the otherwise lost eligibility. The Commission emphasizes, however, that a bidder may submit bids with associated bidding units exceeding 100% of its current bidding eligibility, but its processed activity can never exceed its eligibility.

171. After Round 1 a bidder may submit bids with bidding units totaling up to an activity upper limit equal to the bidder's current bidding eligibility for the round times a percentage (the activity limit percentage) equal to or greater than 100%. An an initial activity limit percentage of 120% will apply to Round 2 and subsequent rounds. For round 1, the activity upper limit will be 100% of the bidder's initial bidding eligibility. In any bidding round, the auction bidding system will advise the bidder of its current bidding eligibility, its required bidding activity, and its activity upper limit.

172. OEA retains the discretion to change the activity requirement percentage and the activity limit percentage during the auction, and to set the activity limit percentage within a range of 100% and 140%. 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.

173. Missing bids. Under the clock auction format, a bidder is required to indicate its demands in every round, even if its demands at the new round's prices are unchanged from the previous round. Missing bids—bids that are not reconfirmed—are treated by the auction bidding system as requests to reduce to a quantity of zero blocks for the county. If these requests are applied, or applied partially, then a bidder's bidding activity, and its bidding eligibility for the next round, may be reduced.

174. For Auction 105, as for other clock auctions, the Commission will not provide for activity rule waivers to preserve a bidder's eligibility. The adoption of an activity upper limit to permit a bidder to submit bids with bidding activity greater than its eligibility, within the precise limits set forth above, addresses 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 either bidder incentives to bid sincerely or the price-setting mechanism of the clock auction.

175. The Commission established in the Auction 105 Procedures Public Notice minimum opening bid amounts for Auction 105. The bidding system will not accept bids lower than the minimum opening bids for each product.

176. In the first bidding round of Auction 105, a bidder will indicate how many generic license blocks in a county it demands at the minimum opening bid price. Minimum opening bid amounts are calculated based on a formula $0.02 per MHz-pop, with a minimum of $1,000. As in Auction 103, the result will be rounded as follows: Results above $10,000 will be rounded up to the nearest $1,000; results below $10,000 but above $1,000 will be rounded up to the nearest $100; and results below $1,000 will be rounded up to the nearest $10. These minimum opening bid amounts are specified in the Attachment A file.

177. The Commission established in the Auction 105 Procedures Public Notice an aggregate reserve price of $107,991,840 for Auction 105. Although the Commission suggested in the Auction 105 Comment Public Notice that no reserve price would be necessary for Auction 105, the Commission agrees, based on subsequent correspondence with NTIA, that the frequencies involved in Auction 105 contain “eligible frequencies” as described by the Commercial Spectrum Enhancement Act (CSEA). As required by the CSEA, the Commission provided notice of its intent to auction PALs to NTIA on or before September 5, 2018. NTIA, in turn, provided notice of estimated sharing costs and timelines for such sharing on December 20, 2019, more than six months prior to the scheduled start of bidding in Auction 105. It is therefore necessary to establish a reserve price of no less than 110% of the estimated relocation or sharing costs provided by an eligible Federal entity. NTIA's estimated total sharing costs of $98,174,400 yield an aggregate reserve price of $107,991,840. The aggregate reserve price will be met if, at the close of the auction, the total net winning bids exceed this amount.

178. After bidding in the first round and before each subsequent round, 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 specify the number of blocks they demand during the round. As long as aggregate demand for blocks in the county exceeds the supply of blocks, the start-of-round price will be equal to the clock price from the prior round. Aggregate demand for a county is equal to the total number of blocks for which bidders have processed demand. If aggregate demand equals supply at a price in a previous round, either a clock price or an intra-round price, then the start-of-round price for the next round will be equal to the price at which demand equaled supply. If demand was less than supply in the previous round, then the start-of-round price for the next round will not increase.

179. The Commission will set the clock price for blocks in a specific county for a round by adding a percentage increment to the start-of-round price. For example, if the start-of-round price for a block in a given county is $10,000, and the percentage increment is 20%, then the clock price for the round will be $12,000. The total dollar amount of the increment (the difference between the clock price and the start-of-round price) will not exceed a certain amount. The cap on the increment is set initially at $10 million and the Commission retains the discretion to adjust this cap as rounds continue. Staff will retain the authority to adjust the cap as needed to manage the auction pace and ensure that bidding proceeds in an orderly fashion.

180. The Commission will set the increment percentage within a range of 5% to 20% inclusive and will set the initial increment percentage at 10%. The Commission may adjust the increment as rounds continue.

181. A bidder may make intra-round bids by indicating a point between the start-of-round price and the clock price at which its demand for blocks changes. In placing an intra-round bid, a bidder would indicate a specific price and a quantity of blocks it demands if the price for blocks should increase beyond that price. For example, if a bidder has processed demand of 3 blocks at the start of the round price of $100, but wishes to hold only 2 blocks if the price increases by more than $10 (assuming the bid increment is greater than $10), then the bidder will indicate a bid quantity of 2 at a price of $110 ($100+$10). Similarly, if the bidder wishes to reduce its demand to 0 should the price increase at all above $100, then the bidder will indicate a bid quantity of 0 at the start-of-round price of $100.

182. Intra-round bids are optional; a bidder may choose to express its demands only at the clock prices.

183. A bidder that is willing to maintain the same demand in a county at the new clock price will bid for that quantity at the clock price, indicating that it is willing to pay up to that price, if need be, for the specified quantity. Bids to maintain demand will always be applied by the auction bidding system. A bidder that wishes to change the quantity it demands in a county (relative to its demand from the previous round as processed by the bidding system) can express its demand at the clock price or at an intra-round price, but depending upon the bidder's eligibility and the aggregate demand for the county, the bidding system may not be able to apply the requested change.

184. The auction bidding system will, after each bidding round, process bids to change demand to determine the processed demand of each bidder in each county and a posted price for each county that would serve as the start-of-round price for the next round.

185. The FCC auction bidding system will not apply a bid to reduce the quantity of blocks a bidder demands in an individual county if the reduction would result in aggregate demand falling below (or further below) the available supply of blocks in the county. Therefore, if a bidder bids to reduce the number of blocks for which it has processed demand as of the previous round, then 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.

186. The bidding system will not allow a bidder to increase the quantity of blocks it demands in a product if the total number of bidding units associated with the bidder's demand exceeds the bidder's bidding eligibility for the round. Therefore, if a bidder bids to increase the number of blocks for which it has processed demand as of 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 activity to exceed its eligibility.

187. A bid that involves a reduction from the bidder's previous demands will be applied partially—that is, reduced by fewer blocks than requested in the bid—if excess demand is insufficient to support the entire reduction. A bid to increase a bidder's demands will be applied partially if the bidder's eligibility for the round is insufficient to apply the total number of bidding units associated with the bidder's increased demand.

188. After a round ends, the bidding system 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. For example, if the start-of-round price is $5,000 and the clock price is $6,000, a price of $5,100 will correspond to the 10% price point, since it is 10% of the bidding interval between $5,000 and $6,000. Bids to maintain demand are always applied before the bidding system considers bids to change demand. The bidding system will first consider intra-round bids in ascending order of price point and then bids at the clock price. The system will consider bids at the lowest price point across all counties, then look at bids at the next price point in all areas, and so on. If there are multiple bids at a single price point, the system will process bids in order of a bid-specific pseudo-random number. As it considers each submitted bid during bid processing, the bidding system will determine the extent to which there is excess demand in each county at that price point in the processing to determine whether a bidder's request to reduce demand can be applied. Similarly, 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.

189. Because in any given round some bidders may request to increase demands 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. Bids not applied because of insufficient aggregate demand or insufficient eligibility will be held in a queue and considered, again in order, if there should be excess supply or sufficient eligibility later in the processing after other bids are processed.

190. 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 the maximum extent to which that bid can be applied given bidders' demands as determined at that point in the bid processing. If the bid can be applied (either in full or partially), the number of licenses the bidder holds at that point in the processing will be adjusted, and aggregate demand will be recalculated accordingly. If the bid cannot be applied in full, the unfulfilled bid, or portion thereof, will be held in a queue to be considered later during bid processing for that round. The bidding system will then consider the bid submitted at the next highest price point, applying it in full, in part, or not at all, 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 or part of a bid is applied, the unfulfilled bids held in the queue will be reconsidered, in the order of their original price points (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.

191. The Auction 105 Procedures Public Notice describes the bid processing procedures to determine, based on aggregate demand, the posted price for each county for the round that will serve as the start-of-round price for the next round. The uniform price for all of the blocks in a county will increase from round to round as long as there is excess demand for blocks in the county, but will not increase if aggregate demand does not exceed the available supply of blocks.

192. If, at the end of a round, the aggregate demand for blocks in the county exceeds the supply of blocks (which is 7 for Auction 105), then the posted price will equal the clock price for the round. If a reduction in demand was applied during the round and caused demand in the county to equal supply, then the posted price will be the price at which the reduction was applied. If aggregate demand is less than or equal to supply and no bid to reduce demand was applied for the county, 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.

193. When a bid to reduce demand can be applied only partially, the uniform price for the county will stop increasing at that point, since the partial application of the bid will result in demand falling to equal supply. Hence, a bidder that makes a bid to reduce demand that cannot be fully applied will not face a price for the remaining demand that is higher than its bid price.

194. After the bids of the round have been processed, the FCC auction bidding system will announce clock prices to indicate a range of acceptable bids for the next round (assuming the stopping rule has not been met). Each bidder will be informed of its processed demand and the extent of excess demand for blocks in each county.

195. Bidders with processed demand in a county at the time the stopping rule is met will become the winning bidders of licenses corresponding to that number of blocks. The final price for a generic block in a county will be the posted price for the final round.

196. While final auction payments for winning bidders will be calculated with bidding credit caps applied on an aggregate basis, rather than to individual licenses, the bidding system will also calculate a net per-license price for each license. Such individual prices may be needed if a licensee later incurs license-specific obligations, such as unjust enrichment payments.

197. The gross per-license price of a license will be the final price. To calculate the net price, the bidding system will apportion any applicable bidding credit discounts in proportion to the gross payment for that license.

198. The bidding system will determine winning bidders as described above. After release of the public notice announcing auction results, the public will be able to view and download bidding and results data through the FCC Public Reporting System (PRS).

199. Commission staff will use auction announcements to report necessary information, such as schedule changes. All auction announcements will be available by clicking a link in the bidding system.

200. Shortly after bidding has ended in Auction 105, the Commission will issue a public notice declaring that the auction closed and establishing the deadlines for submitting down payments, final payments, and the long-form applications (FCC Form 601) for the auction.

201. Within 10 business days after release of the auction closing public notice for Auction 105, 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).

202. 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.

203. 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) for the license(s) they won through the auction.

204. A winning bidder claiming eligibility for a small business bidding credit or a rural service provider bidding credit must demonstrate its eligibility in its FCC Form 601 post-auction application for the bidding credit sought. Further instructions on these and other filing requirements will be provided to winning bidders in the auction closing public notice for Auction 105.

205. Winning bidders organized as bidding consortia must comply with the FCC Form 601 post-auction application procedures set forth in section 1.2107(g) of the Commission's rules. 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.

206. Within 10 business days after release of the auction closing public notice for Auction 105, each winning bidder must also comply with the ownership reporting requirements in sections 1.913, 1.919, and 1.2112 of the Commission's rules by submitting an ownership disclosure information report for wireless telecommunications services (FCC Form 602) with its FCC Form 601 post-auction application.

207. 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 it is not complete and accurate, it must submit a new one.

208. 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.

209. A winning bidder that intends to use its license(s) to deploy facilities and provide services to federally recognized tribal lands that are unserved by any telecommunications carrier or that have a wireline penetration rate equal to or below 85% is eligible to receive a tribal lands bidding credit as set forth in sections 1.2107 and 1.2110(f) of the Commission's rules. A tribal lands bidding credit is in addition to, and separate from, any other bidding credit for which a winning bidder may qualify.

210. Unlike other bidding credits that are requested prior to the auction, a winning bidder applies for the 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 inform the Commission whether it intends to seek a tribal lands bidding credit, for each license won in the 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 post-auction application filing window to amend its application to select the specific 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 section 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.

211. 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 section 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.

212. 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. The additional default payment for Auction 105 is 20% of the applicable bid for winning bids. The bidding system will calculate individual per-license prices that are separate from final auction payments, which are calculated on an aggregate basis. These prices determine the defaulted bid amount on individual licenses.

213. 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.

214. All refunds of upfront payment balances will be returned to the payer of record as identified on the FCC Form 159 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 in the Auction 105 Procedures Public Notice.

215. Paperwork Reduction Act. Neither the Auction 105 Procedures Public Notice nor the Auction 105 Rescheduling Public Notice contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, 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, see 44 U.S.C. 3506(c)(4).

216. Congressional Review Act. The Commission has determined, and the 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 this Public Notice to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

217. Supplemental Final Regulatory Flexibility Analysis. 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 105 Comment Public Notice released in September 2019. The Commission sought public comment on the proposals in the Auction 105 Comment Public Notice, including comments on the Supplemental IRFA. No comments were filed addressing the Supplemental IRFA. The Auction 105 Procedures Public Notice establishes the procedures to be used for Auction 105 and supplements the Initial and Final Regulatory Flexibility Analyses completed by the Commission in the 2017 Notice of Proposed Rulemaking, 82 FR 56193, November 29, 2017, and the 2018 3.5 GHz Report and Order, and other Commission orders pursuant to which Auction 105 will be conducted. This present Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) conforms to the RFA.

218. Need for, and Objectives of, the Rules. The Auction 105 Procedures Public Notice implements auction procedures for those entities that seek to bid to acquire licenses in Auction 105. Auction 105 will be the Commissions first auction of mid-band spectrum in furtherance of the deployment of fifth-generation (5G) wireless, the Internet of Things (IoT), and other advanced spectrum-based services. The Public Notice adopts procedural rules and terms and conditions governing Auction 105, and the post-auction application and payment processes, as well as setting the minimum opening bid amounts for Priority Access Licenses (PALs) in the 3.5 GHz (3550-3650) band that will be offered in Auction 105.

219. To promote the efficient and fair administration of the competitive bidding process for all Auction 105 participants, the Commission adopted the following procedures proposed in the Auction 105 Comment Public Notice:

• Use of anonymous bidding/limited information procedures which will not make public: (1) The licenses or license areas that an applicant selects for bidding in its auction application (FCC Form 175); (2) the amount of any upfront payment made by or on behalf of an applicant for Auction 105; (3) an applicant's bidding eligibility; and (4) any other bidding-related information that might reveal the identity of the bidder placing a bid, until after bidding has closed;

• establishment of bidding credit caps for eligible small businesses and rural service providers in Auction 105;

• adjustment of the bidding schedule as necessary in order to manage the pace of Auction 105;

• use of a simultaneous stopping rule where all blocks in all counties will remain open for bidding until bidding has stopped in every county;

• provision of discretionary authority to OEA, in conjunction with the Bureau, to delay, suspend, or cancel bidding in Auction 105 for any reason that affects the ability of the competitive bidding process to be conducted fairly and efficiently;

• use of a clock auction format for Auction 105 under which each qualified bidder will indicate in successive clock bidding rounds its demands for generic blocks in specific counties, and associated bidding and bid processing procedures to implement the clock auction format;

• use of an activity rule, which requires a bidder to bid actively during the auction on a high percentage of its bidding eligibility, including a modification that would allow a bidder to submit bids, but not to be assigned bids, that exceed its bidding eligibility;

• use of an activity rule that does not include a waiver of the rule to preserve a bidder's eligibility;

• a requirement that bidders be active on between 90% and 100% of a bidder's bidding eligibility in all clock rounds;

• a specific minimum opening bid amount for generic blocks in each county available in Auction 105;

• a limit of four generic license blocks of spectrum per county that a bidder can demand at any point in Auction 105;

• a specific upfront payment amount for generic blocks in each county available in Auction 105;

• 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 generic block;

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

• a methodology for processing bids and requests to reduce demand subject to the no excess supply rule for bids to reduce demand;

• use of bid processing procedures that the auction bidding system will use, after each bidding round, to process bids to determine the processed demand of each bidder and a posted price for each county that would serve as the start-of-round price for the next round; and

• establishment of additional default payments of 20% for bids pursuant to section 1.2104(g)(2) of the rules in the event that a winning bidder defaults or is disqualified after the auction.

220. The procedures for the conduct of Auction 105 constitute the more specific implementation of the competitive bidding rules contemplated by Parts 1 and 96 of the Commission's rules and the underlying rulemaking orders, including the 2015 3.5 GHz Report and Order and 2018 3.5 GHz Report and Order, and relevant competitive bidding orders, and are fully consistent therewith.

221. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments filed that specifically address the procedures and policies proposed in the Supplemental IRFA.

222. 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 comment filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) and to provide a detailed statement of any change made to the proposed 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 105 Comment Public Notice.

223. 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 herein. 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.

224. As noted above, Regulatory Flexibility Analyses were incorporated into the 2017 NPRM and 2018 3.5 GHz Report and Order. These orders provide the underlying authority for the procedures proposed in the Auction 105 Comment Public Notice and are adopted herein for Auction 105. In those regulatory flexibility analyses, the Commission described in detail the small entities that might be significantly affected. In the Auction 105 Procedures Public Notice, the Commission incorporated the descriptions and estimates of the number of small entities from the previous Regulatory Flexibility Analyses in the 2017 NPRM and 2018 3.5 GHz Report and Order.

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

226. The Commission does not expect that the processes and procedures adopted in the Auction 105 Procedures Public Notice will require small entities to hire attorneys, engineers, consultants, or other professionals to participate in Auction 105 and comply with the procedures the Commission adopts because of the information, resources, and guidance it make available to potential and actual participants. The Commission cannot quantify the cost of compliance with the procedures; however, the Commission does not believe that the cost of compliance will unduly burden small entities that choose to participate in the auction. 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. For example, the Commission will release an online tutorial that will help applicants understand the procedures for filing the auction short-form applications (FCC Form 175). The Commission will offer other educational opportunities for applicants in Auction 105 to familiarize themselves with the FCC Auction Application System and the bidding system. By providing these resources as well as the resources discussed below, the Commission expects small business entities that use the available resources to experience lower participation and compliance costs.

227. 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.”

228. The Commission has taken steps to minimize any economic impact of its auction procedures on small entities businesses through, among other things, the many free resources the Commission provides to potential auction participants. 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 105, which should alleviate any need to hire professionals. More specifically, 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. Additionally, an FCC Auctions Hotline will provide to 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 business entities, on issues such as access to or navigation within the electronic FCC Form 175 and use of the bidding system. 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. 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.

229. Various databases and other sources of information, including the Auctions program websites and copies of Commission decisions, are available to the public without charge, providing a low-cost mechanism for small businesses to conduct research prior to and throughout the auction. Prior to and at the close of Auction 105, the Commission will post public notices on the Auctions website, which articulate the procedures and deadlines for the auction. The Commission will make this information easily accessible and without charge to benefit all Auction 105 applicants, including small entities, thereby lowering their administrative costs to comply with the Commission's competitive bidding rules.

230. 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 intends to conduct Auction 105 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 105 by all eligible bidders and may result in significant cost savings for small entities that use these alternatives. Moreover, the adoption of bidding procedures in advance of the auction, consistent with statutory directive, is designed to ensure that the auction will be administered predictably and fairly for all participants, including small businesses.

231. Another step taken to minimize the economic impact for small entities participating in Auction 105 is the Commission's adoption of bidding credits for small businesses. In accordance with the service rules applicable to the PALs to be offered in Auction 105, bidding credit discounts will be available to eligible small businesses and small business consortiums on the following basis: (1) A bidder with attributed average annual gross revenues that do not exceed $55 million for the preceding three years is eligible to receive a 15% discount on its winning bid or (2) a bidder with attributed average annual gross revenues that do not exceed $20 million for the preceding three years is eligible to receive a 25% discount on its winning bid. Eligible applicants can receive only one of the available bidding credits—not both.

232. The total amount of bidding credit discounts that may be awarded to an eligible small business is capped at $25 million. The Commission adopts a $10 million cap on the overall amount of bidding credits that any winning small business bidder may apply to winning licenses in counties located within any PEA with a population of 500,000 or less. Based on the technical characteristics of the 3550-3650 MHz band and the Commissions 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.

233. These procedures for the conduct of Auction 105 constitute the more specific implementation of the competitive bidding rules contemplated by Parts 1 and 96 of the Commission's rules and the underlying rulemaking orders, including the 2015 3.5 GHz Report and Order and the 2018 3.5 GHz Report and Order, and relevant competitive bidding orders, and are fully consistent therewith.

234. Report to Congress. The Commission will send a copy of the Auction 105 Procedures Public Notice, including the Supplemental FRFA, in a report to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Auction 105 Procedures Public Notice, including the Supplemental FRFA to the Chief Counsel for Advocacy of the SBA. A copy of the Auction 105 Procedures Public Notice, and Supplemental FRFA (or summaries thereof), will also be published in the Federal Register .

This is a summary of the Commission's Report and Order, FCC 20-14, adopted on February 25, 2020 and released on February 25, 2020. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

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

1. Under the Communications Act of 1934, as amended (the Act), full power television broadcast stations, and certain low power stations and translator stations, are entitled to mandatory carriage of their signal (also known as “must carry”) on any cable system located within their local market. Alternatively, commercial television broadcast stations with carriage rights may elect “retransmission consent.” If the broadcaster and MVPD cannot reach an agreement under which the broadcaster gives consent for retransmission of its signal, the MVPD is prohibited from carrying that signal. Thus, commercial stations are presented with a carriage choice—elect mandatory carriage and forego compensation while assuring carriage, or elect retransmission consent and forego assured carriage while retaining the possibility of compensation for carriage. NCE stations are entitled to must carry but cannot elect retransmission consent.

2. As discussed more fully in the 2019 Report and Order in this proceeding, 84 FR 45659 (Aug. 30, 2019), when the Commission implemented the statutory provisions establishing the must carry/retransmission consent regime, it adopted a requirement that each commercial television broadcast station provide notice to every cable operator every three years electing either mandatory carriage or retransmission consent. Prior to the adoption of the 2019 Report and Order, the rules directed each commercial television broadcast station to send a triennial carriage election notice, via certified mail, to each cable system or DBS provider serving its market, and directed each NCE station to send such notices to DBS providers. The notice must state whether the station has elected mandatory carriage or retransmission consent. In addition, the rules generally also require stations to place triennial carriage election statements in their online public inspection files, to the extent they maintain such files.

3. The 2019 Report and Order generally adopted an approach for modernizing the carriage election notice process that was jointly recommended by the National Association of Broadcasters (NAB) and NCTA—the internet and Television Association (NCTA). The Commission's revised carriage election rules adopted therein apply to all television broadcast stations with mandatory carriage rights and to all MVPDs responsible for that carriage, except for the relatively few entities that participate in the must carry regime but do not use the online public file or COALS (the Excluded Entities). Under the new carriage election framework, broadcast stations are required to make their carriage elections by uploading those elections to their online public files and by providing a separate electronic notice of those elections to relevant MVPDs only when and if they change their election from the previous election period. Thus, only a limited number of notices will need to be sent to MVPDs and these will be sent via email instead of via paper mail. In addition, the 2019 Report and Order requires broadcast stations and DBS providers to upload to their online public files both an email address and a phone number for purposes of carriage-related inquiries and requires cable operators to upload the same information in COALS.

4. The rules adopted in the 2019 Report and Order require use of the Commission's online public inspection file and/or COALS. In the further notice of proposed rulemaking (FNPRM), 84 FR 45703 (Aug. 30, 2019) ( 2019 FNPRM ), accompanying the 2019 Report and Order, we sought comment on whether and how the modernized framework adopted in the 2019 Report and Order should extend to the Excluded Entities, which are subject to the must carry regime and do not use these Commission databases. Among other things, the Commission asked whether we should require the Excluded Entities to establish and maintain a very narrow public file solely for carriage-related information or require them to post any required information on a company website. We also sought comment on whether we should, alternatively, simply maintain the status quo with respect to the small number of Excluded Entities.

5. The Commission received only three comments in response to the 2019 FNPRM. All agree that the Excluded Entities should be transitioned to modernized carriage election rules and that any information these entities are required to provide should be posted on a Commission website or Commission-hosted database. All commenters support placing carriage election information in a centralized, Commission-established location rather than on company websites. NCTA contends that many non-Class A LPTV stations and qualified NCE translator stations do not maintain company websites, and a centralized repository would make it easier for MVPDs to locate carriage information for these entities. All commenters also agree that the Excluded Entities should make public contact information for use for carriage-related communications, and ACA Connects and NCTA also argue that the Excluded Entities should provide any required election statements or notices to the Commission to be made available on a Commission website or database.

6. We adopt a carriage election notification approach for the Excluded Entities that is supported by the record in this proceeding and that is, to the greatest extent possible, consistent with that adopted in the 2019 Report and Order, while recognizing the specific circumstances of these smaller entities. Specifically, we will require qualified LPTV stations to use the same process as full power television stations to notify MVPDs of any change in carriage election status. Rather than imposing a new public file obligation on qualified LPTV and qualified NCE translator stations, however, we require that they send a single “baseline” notice via email to MVPDs on which they will be seeking or expecting carriage in the 2021-2023 carriage cycle, even if they are making no change in their election status. We disagree with NCTA's and ACA Connects' contention that we should require the Excluded Entities to post election statements online each cycle in addition to sending election notices by email to MVPDs in the event of an election change. Qualified LPTV and qualified NCE translator stations are not currently required to make their election notices available to the public. We believe that the better approach is to maintain the status quo rather than impose a new public posting obligation that would increase burdens on these entities. Specifically, we believe that the creation of the proposed new database would impose unnecessary costs and inject unnecessary complexity into the election notice process.

7. In addition, we find that MVPDs with carriage-related questions must be able to rely on the contact information provided by these stations in LMS. We also require both qualified LPTV and qualified NCE translator stations to respond as soon as is reasonably possible to such questions. With respect to OVS, we require that they accept emailed election change notices, post contact information in COALS, and respond as soon as is reasonably possible to carriage election notifications and carriage-related questions, all in exactly the same manner as cable systems.

8. We agree with NCTA that the carriage election framework adopted in the 2019 Report and Order “greatly reduces administrative burdens” for stations and MVPDs by, among other changes, only requiring email notice of changed elections and eliminating redundant election notifications and carriage requests. As we stated in the 2019 Report and Order, our goal is to have a unified approach for carriage election notices, to the extent possible, to best serve the public interest and enhance administrative efficiency. Therefore, today we extend the benefits of the new carriage election framework to the Excluded Entities as well.

9. Consistent with our approach to commercial television broadcast stations, we require a qualified LPTV station that changes its carriage election to send an election change notice to each affected MVPD's carriage election-specific email address by the carriage election deadline. Such change notices must include, with respect to each station covered by the notice: The station's call sign, the station's community of license, the DMA where the station is located, the specific change being made in election status, and an email address and phone number for carriage-related questions. Consistent with our approach with respect to commercial full power broadcast stations, LPTV notices to cable operators need to identify specific cable systems for which a carriage election applies only if the broadcaster changes its election for some systems of the cable operator but not all. In addition, the broadcaster must carbon copy ElectionNotices@FCC.gov, the Commission's election notice verification email inbox, when sending its carriage elections to MVPDs. As noted in the 2019 Report and Order, this election notice verification email inbox will provide a verification response to assure broadcasters that the email has been received.

10. As with commercial full power broadcast stations, if an LPTV station does not receive a response verifying receipt of its change notice by the MVPD, or gets an indication that the message was not delivered, it must contact the MVPD via the provided phone number to confirm that the notice was received or arrange for it to be redelivered. If the email is timely and properly sent to the MVPD's listed address, but the broadcast station receives no verification and is unable to reach anyone at the provided phone number, the notice still will be considered to have been properly delivered if it was properly copied to the Commission's election verification notice email inbox.

11. Unlike commercial full power broadcast stations, qualified LPTV stations need not maintain a publicly accessible copy of their carriage election notices or statements. As noted above, LPTV stations are not currently required to maintain a public file with copies of their carriage election notices, and we decline to impose a new obligation in that regard in this proceeding. Rather than imposing a new public file requirement, however, we require all qualified LPTV stations, whether being carried pursuant to must carry or retransmission consent, to send an email notice to all MVPDs that are or will be carrying the station no later than the next carriage election deadline of October 1, 2020. Qualified LPTVs must do so even if they are not changing their carriage status from the current election cycle. This one-time notification requirement for all qualified LPTV stations will give MVPDs baseline information regarding qualified LPTV stations without imposing a new obligation on qualified LPTVs to make their election status publicly available. In addition, requiring a one-time filing of “baseline information” does not impose any greater burden on LPTV or NCE translator stations given that, under the current rules, such entities would be required to file a paper copy of their election notification with each affected MVPD.

12. As noted above, qualified NCE stations may only request mandatory carriage and are not permitted to “elect” retransmission consent on any MVPD. Once an NCE station requests mandatory carriage from an MVPD, the carriage request continues, absent a change in circumstances. We therefore do not require qualified NCE translator stations to send election change notifications. In addition, similar to our approach herein with respect to qualified LPTV stations, rather than impose new public file obligations on qualified NCE translator stations, we require qualified NCE translator stations to provide email notice to all MVPDs that are or will be carrying the translator no later than the next carriage election deadline of October 1, 2020. As with qualified LPTV stations, this one-time notification requirement for all qualified NCE translators will give MVPDs baseline information regarding these entities without imposing a new obligation on them to make their election status publicly available.

13. Each licensed broadcast station, including LPTV and translator stations, has a publicly-accessible entry in LMS with a field for contact information which can be updated easily. Therefore, in the absence of public file requirements for qualified LPTV and NCE translator stations, we find that MVPDs with carriage-related concerns must be able to rely upon the contact information that the LPTV or NCE translator station provides in LMS. As all licensed stations already have accounts in LMS, we conclude that it is more efficient and less burdensome to simply require that qualified LPTV and NCE translator stations maintain current contact information in LMS so that MVPDs can contact the station regarding carriage-related questions as necessary. We require qualified LPTV stations and encourage qualified NCE translator stations to review and, if necessary, provide contact information or update the existing contact information in LMS no later than July 31, 2020, approximately 60 days prior to the 2020 carriage election deadline, and to ensure that this information remains current thereafter. We will not establish a separate field in LMS for carriage-specific contact information for qualified LPTV and NCE translator stations, but require that these stations ensure that the general contact information in LMS can be used by MVPDs as a point of contact for carriage-related questions. If a station has designated a third party as contact representative or designates multiple types of contact representatives in LMS, questions should be directed to the licensee's email address rather than a contact representative's email address (if different from the licensee's email address). Qualified LPTV and NCE translator stations must ensure that, if an MVPD contacts the station via the licensee's phone or email address contained in LMS, that this carriage-related concern is addressed as soon as is reasonably possible.

14. In the 2019 FNPRM, we sought comment on applying the revised carriage election framework to MVPDs that do not use COALS or OPIF, identifying OVS specifically. OVS providers, however, are in fact required to establish and maintain an up-to-date COALS account in the same manner as cable operators. We therefore impose requirements on OVS operators that are identical to those in the 2019 Report and Order for cable operators. OVS operators must provide, via COALS, a specific carriage election email address where broadcasters will send election change notices and a phone number for broadcasters to use in the event of questions as to whether the OVS operator received the station's election notice. OVS operators must post carriage contact information to COALS by July 31, 2020, and maintain up-to-date contact information at all times thereafter. Each OVS operator must have a single email address and phone number for carriage issues, regardless of the number of markets served. Finally, like other entities subject to the must carry regime, OVS operators are required to respond as soon as is reasonably possible to carriage questions from broadcasters.

15. Again like cable operators, OVS operators must verify receipt of an emailed election change notice, via email sent back to the originating address, as soon as is reasonably possible. As we concluded in the 2019 Report and Order, this email response will serve only as verification that the notice email was received; it will not constitute a statement that the broadcaster has fully satisfied its notice obligation. Although we anticipate that these verification emails will be generated automatically in most cases, we require only that they be sent as soon as is reasonably possible. A timely and correct notice of a change in election that is sent to the email address provided by the OVS operator, carbon copied to ElectionNotices@FCC.gov, and placed in the station's public file (if the station has a public file obligation) must be honored by the MVPD.

16. We find that requiring OVS operators to use their existing COALS accounts is the most efficient and least burdensome way for OVS operators to publicize their contact information for this purpose. Maintaining contact information for carriage-related questions for all OVS operators in the COALS database will also assist broadcasters and others who need information regarding all MVPDs operating in a given geographic area for carriage purposes. We also note that § 76.1506(l) of our rules provides that the requirements in § 76.64 regarding the delivery of must carry/retransmission consent election notifications apply to OVS operators. The 2019 Report and Order revised § 76.64 of our rules to require cable operators to provide an up-to-date email address for carriage election notice submissions no later than July 31, 2020, to ensure that the information remains up-to-date, and to respond to questions from broadcasters as soon as is reasonably possible. We conclude that these existing requirements also apply to OVS operators.

17. Similar to our approach in the 2019 Report and Order, we apply these revised notification requirements to LPTV and NCE translator stations and OVS operators beginning with the 2020 election for the 2021-2023 carriage election cycle. Therefore, qualified LPTV broadcasters must email required notifications to MVPDs by October 1, 2020. Qualified LPTV and NCE translator stations must also ensure that the contact information for the station in LMS is accurate no later than July 31, 2020, and OVS operators must ensure that their carriage-related contact information in COALS is up to date by the same deadline.

18. As required by the Regulatory Flexibility Act of 1980 (RFA), an Initial Regulatory Flexibility Certification was incorporated into the 2019 FNPRM. The Federal Communications Commission (Commission) sought written public comment on the proposals in the 2019 FNPRM including comment on the IRFA. We received no comments specifically directed toward the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

19. In this Report and Order, we adopt proposals to modernize the Commission's carriage election notice rules with respect to certain television broadcast stations and open video system (OVS) operators to enhance administrative efficiency. In so doing, we adopt requirements largely consistent with those recently adopted for full power television broadcast stations. First, we conclude that low power television stations (LPTVs) that qualify for mandatory carriage (qualified LPTVs) must send notices to affected multichannel video programming distributors (MVPDs) by email when changing their carriage election status, in the same manner as full power television broadcast stations. However, unlike the requirement for full power television broadcast stations, qualified LPTVs and noncommercial educational (NCE) television translator stations that qualify for must carry (qualified NCE translators) will not be required to make their carriage election statements available for public inspection. Second, we find that MVPDs with carriage-related questions should be able to rely on the contact information provided by qualified LPTV and qualified NCE translator stations in the Commission's Licensing and Management System (LMS) database. If an MVPD contacts the phone number or email address provided by the station regarding a concern about carriage, those concerns must be addressed as soon as is reasonably possible. Third, we conclude that, in the same manner as cable operators, OVS operators must post contact information for questions regarding carriage election to the Cable Operations and Licensing System (COALS) database, accept email election change notices, and timely respond to carriage-related questions. Through this Order, we continue our efforts to modernize our rules.

20. No comments were filed in response to the IRFA.

21. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small 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. Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible.

22. Open Video Services. Open Video Service (OVS) systems provide subscription services. The open video system framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers. The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA small business size standard covering cable services, which is “Wired Telecommunications Carriers.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. To gauge small business prevalence for the OVS service, the Commission relies on data currently available from the U.S. Census for the year 2012. According to that source, there were 3,117 firms that in 2012 were Wired Telecommunications Carriers. Of these, 3,059 operated with less than 1,000 employees. Based on this data, the majority of these firms can be considered small. In addition, we note that the Commission has certified some OVS operators, with some now providing service. Broadband service providers (“BSPs”) are currently the only significant holders of OVS certifications or local OVS franchises. The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, at least some of the OVS operators may qualify as small entities. The Commission further notes that it has certified approximately 45 OVS operators to serve 116 areas, and some of these are currently providing service. Affiliates of Residential Communications Network, Inc. (RCN) received approval to operate OVS systems in New York City, Boston, Washington, DC, and other areas. RCN has sufficient revenues to assure that they do not qualify as a small business entity. Little financial information is available for the other entities that are authorized to provide OVS and are not yet operational. Given that some entities authorized to provide OVS service have not yet begun to generate revenues, the Commission concludes that up to 44 OVS operators (those remaining) might qualify as small businesses that may be affected by the rules and policies adopted herein.

23. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound.” These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: those having $38.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of this number, 656 had annual receipts of $25 million or less, 25 had annual receipts between $25 million and $49,999,999, and 70 had annual receipts of $50 million or more. Based on this data we therefore estimate that the majority of commercial television broadcasters are small entities under the applicable SBA size standard.

24. The Commission estimates that there are 1,900 LPTV stations and 3,631 TV translator stations. Given the nature of these services as secondary and in some cases purely a “fill-in” service, we will presume that all of these entities qualify as small entities under the above SBA small business size standard.

25. The Commission anticipates that the rule changes adopted in this Report and Order will lead to an overall immediate, long-term reduction in reporting, recordkeeping, and other compliance requirements for qualified LPTV stations. Specifically, after the 2020 carriage election, qualified LPTV stations will be required to send carriage election notices only when they are changing their election, will be permitted to send these notices via email, and will no longer need to produce and mail several letters to MVPDs, many of which are duplicative, to ensure that they are received by the MVPD. LPTV and NCE translator stations are not currently required to maintain a public file with a copy of their carriage election notices, and the Report and Order does not impose a new obligation in that regard in this proceeding. In the absence of public file requirements for qualified LPTV and NCE translator stations, the Report and Order permits MVPDs with carriage-related concerns to rely upon the contact information provided by the LPTV or NCE translator station in LMS. We require qualified LPTV stations, and encourage qualified NCE translator stations, to review and, if necessary, update this contact information in LMS no later than July 31, 2020, approximately 60 days prior to the 2020 carriage election deadline, and ensure that this information remains current thereafter. Qualified LPTV and NCE translator stations must ensure that, if an MVPD contacts the station via the phone or email address they have provided in LMS because it has concerns regarding carriage, the station will respond to those concerns as soon as is reasonably possible.

26. With respect to OVS operators, the Report and Order imposes no burdens beyond those imposed in the 2019 Report and Order. As with cable operators, broadcasters will send carriage election notifications to OVS operators via email rather than on paper, which will ease the administrative burden of reviewing these notifications, which were previously in letter form and many of which were previously duplicative. In addition, OVS operators must use COALS for purposes of providing a designated carriage election email address, where broadcasters will send election change notices, and a phone number for broadcasters to use in the event of questions as to whether the OVS operator received the station's election notice. This burden is de minimis and is outweighed by the benefits to OVS operators of the new carriage election framework.

27. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”

28. The Commission considered establishing a narrow online public file for the purposes of publicizing carriage-related contact information for qualified LPTV and NCE translator stations, but concluded that requiring qualified LPTV stations and encouraging qualified NCE translator stations to instead update their existing contact information in LMS as necessary would be more efficient and less burdensome both for stations and the Commission. In addition, the Commission concluded that requiring OVS operators use COALS to provide contact information for carriage election purposes, as required by the rules adopted in the 2019 Report and Order, is the most efficient and least burdensome way for OVS operators to publicize their contact information. The Commission also considered retaining the paper-based carriage election notice requirements for qualified LPTV and qualified NCE translator stations, as well as OVS operators, but concluded it would be preferable to allow these entities to benefit from the new carriage election framework and that to retain the previous rules for these entities might undermine our goal of reducing regulatory burdens.

29. Overall, the Report and Order appropriately balances the interests of the public against the interests of the entities who are subject to the rules, including those that are small entities.

30. None.

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

32. The Commission has determined, and the 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 Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

33. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i), 4(j), 325, 338, 614, 615, 631, 632, and 653 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 325, 338, 534, 535, 551, 552, and 573, this Report and Order is adopted and will become effective 30 days after publication in the Federal Register .

34. It is further ordered that part 76 of the Commission's Rules are amended as set forth in the Final Rules effective 30 days after publication in the Federal Register , except for § 76.64(h)(5), which contains new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act and shall become effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date.

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

36. It is further ordered that the Commission shall send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 76 as follows:

This is a summary of the Media Bureau's Order, DA 20-375, adopted and released on April 3, 2020. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at https://docs.fcc.gov/public/attachments/DA-20-375A1.doc. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. As the nation tackles the COVID-19 pandemic, multichannel video programming distributors (MVPDs) and providers of fixed broadband internet access service are among the entities that are integral to the Commission's ongoing, nationwide effort to keep Americans informed and connected during this national emergency. So that these service providers may focus their resources on this critical effort, we provide appropriate flexibility for MVPDs and providers of fixed broadband internet access service to fulfill their obligations under the Television Viewer Protection Act of 2019 (TVPA). Specifically, by this Order, we exercise our discretion under the TVPA to grant a blanket extension until December 20, 2020, of the effective date of new truth-in-billing requirements set forth in section 642 of the Communications Act of 1934, as amended (the Act), as added by section 1004 of the TVPA.

2. Section 642 of the Act requires MVPDs to “give consumers a breakdown of all charges related to the MVPD's video service” before entering into a contract with a consumer for service  1 and also provides consumers 24 hours in which to cancel such service without penalty. In addition, section 642 requires greater transparency in electronic bills and prohibits MVPDs and providers of fixed broadband internet access service from charging consumers for equipment they do not provide. Section 642, as added by the TVPA, becomes effective June 20, 2020, six months after the date of enactment of the TVPA; however, the Commission for “good cause” may extend the effective date by six months. On February 27, 2020, the Media Bureau issued a Public Notice seeking comment on whether good cause exists for granting a blanket extension of section 642's effective date by six months, until December 20, 2020. 2

3. Pursuant to section 1004(b) of the TVPA, we find that good cause exists for granting a blanket extension of section 642's effective date until December 20, 2020. We note that on March 13, 2020, approximately two weeks after issuance of the Public Notice in this proceeding, the President declared a national emergency concerning the COVID-19 pandemic. In view of the evolving and unpredictable nature of the pandemic, and the additional demands it is placing on MVPDs and providers of fixed broadband internet access service, we find that extending section 642's effective date as specified above is both reasonable and justified and will best serve the public interest. Compliance with the new truth-in-billing requirements in section 642 may require that subject entities make changes to existing billing systems, provide employee training, or take other compliance measures, thereby requiring providers to divert resources away from other consumer demands brought on by the pandemic. Indeed, we note that these service providers are the entities principally responsible for operating and maintaining the infrastructure that Americans increasingly depend on for continued business and interpersonal communications during the national emergency. As such, we believe their foremost obligation at this time is to ensure continuity of service adequate to meet the nation's needs. 3 We also conclude, given the indefinite length of time of the national emergency, that the public interest would be served best by affording subject entities until December 20, 2020—the maximum amount of time permitted by the statute—to come into compliance with the requirements of section 642. Indeed, we note that industry commenters claimed that an extension was necessary even if the pandemic had not occurred because six months likely would not have provided ample time for subject entities to take the steps needed to implement the relevant TVPA requirements.

4. Moreover, we find that the present national emergency provides “good cause” under the Administrative Procedure Act (APA) for extending section 642's effective date without prior notice and comment. 4 As explained above, we have already independently determined that the national emergency establishes good cause under section 1004(b) of the TVPA to issue a blanket extension of section 642's effective date, rendering notice and comment prior to extending the effective date “unnecessary.” In addition, in light of the disruptive effect of the national emergency on the daily activities of entities subject to section 642 and other interested parties, and the need for MVPDs and providers of fixed broadband internet access service to focus their resources on the national emergency, we find that delaying relief under the circumstances would not serve the purpose of the extension and would fail to yield the public interest benefits that notice and comment procedures are designed to produce. 5

5. Because this blanket extension does not require notice and comment pursuant to the “good cause” exception of the Administrative Procedure Act, the Regulatory Flexibility Act does not apply.

6. This Order does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA). In addition, 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.

7. The Commission has determined, and the 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 Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

8. Accordingly, it is ordered that, pursuant to the authority found in sections 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), section 1004 of the Television Viewer Protection Act of 2019, section 553(b)(3)(B) of the Administrative Procedure Act, 5 U.S.C. 553, and sections 0.5(c) and 0.283 of the Commission's rules, 47 CFR 0.5(c), 0.283, this Order is adopted. It is further ordered that, pursuant to section 1.113(a) of the Commission's rules, 47 CFR 1.113(a), the March 16, 2020 Public Notice in MB Docket No. 20-61 is hereby rescinded. It is further ordered that this Order shall be effective upon publication in the Federal Register . 6 It is further ordered that, should no petitions for reconsideration be timely filed, MB Docket No. 20-61 shall be terminated, and its docket closed.

Previous Federal Actions

On September 5, 2018, we published in the Federal Register (83 FR 45073) our 12-month finding on a petition to remove the golden conure from the List of Endangered and Threatened Wildlife ( i.e., “delist” the species) or to reclassify the golden conure from an endangered to a threatened species ( i.e., “downlist” the species) determining that reclassification was warranted. Accordingly, we published a proposed rule to downlist the golden conure under the Act (16 U.S.C. 1531 et seq. ) and proposed a rule pursuant to section 4(d) to further the conservation of the golden conure. Please refer to that document for information on Federal actions occurring before September 5, 2018, for the golden conure.

During the comment period on our September 5, 2018, proposed rule (83 FR 45073), we received updated information regarding the golden conure reintroduction program occurring in the Belém region of Pará at Utinga State Park. We have incorporated this information under Conservation Measures and Regulatory Mechanisms in this rule and have updated the species status assessment (SSA) report.

A thorough review of the taxonomy, life history, ecology, and overall viability of the golden conure is presented in the species status assessment (SSA) report for the golden conure (Service 2018; available at Docket No. FWS-HQ-ES-2015-0019 on http://www.regulations.gov ). The SSA report documents the results of the comprehensive biological study for the golden conure and provides an account of the species' overall viability through forecasting of the species' condition in the future (Service 2018, entire). In the SSA report, we summarize the relevant biological data and a description of past, present, and likely future stressors, and we conduct an analysis of the viability of the species. The SSA report provides the scientific basis that informs our statutory decision regarding whether this species should be listed as an endangered or a threatened species under the Act. This decision involves the application of standards within the Act, its implementing regulations, and Service policies (see Determination, below). The SSA report contains the risk analysis on which this determination is based, and the following discussion is a summary of the results and conclusions from the SSA report. We solicited peer review of the draft SSA report from five qualified experts. We received responses from four of the reviewers, and we modified the SSA report as appropriate. In addition to our SSA report, the summary of the biological background of the species can also be found in our September 5, 2018, proposed rule (83 FR 45073).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an “endangered species” or a “threatened species.” The Act defines an endangered species as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act directs us to determine whether any species is an endangered species or a threatened species because of one or more of the following factors affecting its continued existence: (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 completed a comprehensive assessment of the biological status of the golden conure, and prepared a report of the assessment, which provides a thorough account of the species' overall viability. In the discussion below, we summarize the conclusions of that SSA, which can be accessed at Docket No. FWS-HQ-ES-2015-0019 on http://www.regulations.gov. Please refer to the SSA report and the Summary of Factors Affecting the Species section in the proposed rule (83 FR 45073, September 5, 2018, pp. 45077-45080) for a more detailed discussion of the factors affecting the golden conure.

Large-scale deforestation in the Amazon has occurred since the 1970s and 1980s concurrent with the growth of Brazil's economy (GFA 2017, unpaginated). The Brazilian Amazon is approximately the size of Western Europe, and as of 2016, an area the size of France has been lost to deforestation (Fearnside 2017a, pp. 1, 3). Approximately 30 to 35 percent of the golden conure's range has already been lost to deforestation, primarily in the eastern states of Pará and Maranhão (Laranjeiras 2011a, unpaginated; Laranjeiras and Cohn-Haft 2009, p. 8), and another 23 to 30 percent of the golden conure's habitat is predicted to be lost within 22 years or three generations (Bird et al. 2011, appendix S1). The golden conure's range partially overlaps what is known as the “arc of deforestation,” an area in the southeastern Amazon where rates of deforestation and forest fragmentation have been the highest (Prioste et al. 2012, p. 701; Laranjeiras 2011a, unpaginated; Laranjeiras and Cohn-Haft 2009, p. 8).

After a long period of deforestation in the Amazon, rates of deforestation dropped dramatically to levels not recorded in recent decades (Alves et al. 2017, p. 76). However, despite declines in the deforestation rate, the total area deforested in Brazil's Amazon has risen steadily since deforestation rates were first measured in 1988 (IPAM 2017, p. 7 using PRODES 2017 data). More recently, deforestation rates are increasing again (Fearnside 2017b, p. 1; IPAM 2017, p. 15; Biderman and Nogueron 2016, unpaginated), as global demand for agricultural commodities continues to rise (Brando et al. 2016, abstract), and the “arc of deforestation” is likely to continue to be a hotspot (Alves et al. 2017, p. 76).

Forest habitat degradation and fragmentation typically begin with road construction and subsequent human settlement. Nearly 95 percent of all deforestation occurred within 5.5 kilometers (km) (3.4 miles (mi)) of roads or 1 km (0.6 mi) of rivers (Barber et al. 2014, pp. 203, 205 , 208). Roads are rapidly expanding in the region and contribute to further habitat degradation and fragmentation (Barber et al. 2014, p. 203).

Logging in the Amazon was once restricted to areas bordering major rivers, but the construction of highways and strategic access roads and the depletion of hardwood stocks in the south of Brazil made logging an important, growing industry (Veríssimo et al. 1992, p. 170). Logging operations typically occur on private lands (GFA 2018a and b, unpaginated). After logging, the land may be clear-cut and burned, in preparation for crops (Reynolds 2003, p. 10). Although the Brazilian forest code requires private landowners in the Amazon to maintain 80 percent of their land as forest, the code has been poorly enforced (GFA 2018b, unpaginated), and full compliance has not been achieved (Azevedo et al. 2017, entire; see Conservation Measures and Regulatory Mechanisms, below). Logging on public lands is allowed via concessions where logging companies are granted logging rights for a fee (GFA 2018a, unpaginated). However, the concession system is not currently working as intended, and illegal logging in public protected areas remains a serious threat, particularly logging of mahogany ( Swietenia macrophylla ) (BLI 2016, p. 5), a CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) Appendix II species (CITES 2018b). Although selective logging and requirements for minimum tree sizes are intended to minimize effects to the forest, logging of larger trees is likely to have a greater effect on the golden conure because the species uses larger, older trees for its nesting and roosting (Yamashita 2003, p. 38).

Expanding crop production and ranching are also major drivers of deforestation in the Amazon basin. Soy beans are primarily used for cattle feed, and in the 1990s and early 2000s, high demand for beef created a “soy-cattle pasture deforestation dynamic,” where soy production replaced existing cattle pasture, and forced new deforestation into the Amazon for cattle ranching (GFA 2018c, unpaginated). In the 2 years preceding the moratorium (instituted in 2006), approximately 30 percent of soy expansion occurred through deforestation rather than by replacement of pasture or other previously cleared lands; by 2014, just 1 percent of soy expansion was responsible for deforestation in Brazil's Amazon (Gibbs et al. 2015, p. 377). The soy moratorium was renewed indefinitely in 2016, or until it is no longer needed (Patiño 2016, unpaginated).

Cattle ranching is the largest cause of deforestation in every Amazon country and is responsible for about 80 percent of current deforestation rates (GFA 2018d, unpaginated). Brazil is the largest beef exporter in the world, supplying about one quarter of the world market (GFA 2018d, unpaginated). In 2015 and 2016, new markets for Brazilian beef were opened up via agreements with Russia, the United States, and China (Fearnside 2017b, p. 14). The Chinese market, in particular, has significant potential demand for both beef and leather, with China being the world's largest manufacturer of shoes (Fearnside 2017b, p. 16).

Conversion of native forest for the cultivation of palm plantations for the production of palm oil is likely to further reduce the amount of habitat available to the golden conure. The Brazilian government plans to increase biofuel production in the next decade, driven primarily by demands for fuel (ethanol and biodiesel) (Villela et al. 2014, p. 273). A recent study of regional avian biodiversity in palm oil plantations concluded that they are as detrimental to avian biodiversity as other forms of agriculture such as cattle pasture (Lees et al. 2015, entire). Therefore, any native forest converted to palm plantations will result in habitat loss for the golden conure, and any degraded land that is planted for palm oil will not regenerate or be restored to suitable habitat for the species.

Increased fire risk from human settlement and the activities noted above further contribute to deforestation (Barber et al. 2014, p. 203) (see Projected Effects from Climate Change, below). Fire for land management is now common in rural Amazonia (Malhi et al. 2008, p. 171), but wildfires in tropical forests of the Amazon were rare over the past millennia, and trees are not adapted for fire (Fearnside 2009, p. 1005). Amazonian trees have thin bark and fire heats the cambium under the bark at the base of the trunk, causing the tree to die and further contributing to deforestation (Fearnside 2009, p. 1005).

Hydroelectric dams are also a major contributor to deforestation in the Amazon. Brazil is the second-largest producer of hydroelectricity in the world (after China), and hydropower supplies about 75 percent of Brazil's electricity (GFA 2018e, unpaginated; Fearnside 2017c, unpaginated). The Brazilian government recently announced an end to the construction of large dams in the Amazon (Branford 2018, unpaginated), but smaller dams within the golden conure's range are still under construction or planned (GFA 2018e, unpaginated; Fearnside 2017c, unpaginated; Nobre et al. 2016, p. 10763).

Mining for minerals also contributes to deforestation of the Amazon; it grew from 1.6 percent of gross domestic product (GDP) in 2000, to 4.1 percent in 2011, and is projected to increase by a factor of 3 to 5 by 2030 (Brasil Ministério de Minas e Energia 2010, as cited by Ferreira et al. 2014, p. 706). Mining leases, exploration permits, and concessions collectively encompass 1.65 million square kilometers (km 2 ) (0.64 million square miles (mi 2 )) of land, with about 60 percent located in the Amazon forest (Departamento Nacional de Produção Mineral 2012, as cited in Sonter et al. 2017, p. 1).

Annual deforestation rates in the Brazilian Amazon have always varied, but have generally been correlated with national economic growth as measured by GDP (Petherick 2013, p. 7; Hochstetler and Viola 2012, p. 759). However, beginning in 2005, measures of deforestation and GDP have separated or “decoupled” (Lapola et al. 2014, p. 27; Petherick 2013, p. 7). The Amazon experienced dramatic reductions in annual average rates of deforestation from almost 21,000 km 2 (8,108 mi 2 ) between 2000 and 2004—to about 7,000 km 2 (2,703 mi 2 ) in 2009 and 2010 (Prodes 2017, unpaginated; Petherick 2013, p. 8; Hochstetler and Viola 2012, p. 759) and 6,418 km 2 (2,478 mi 2 ) in 2011 (Prodes 2017, unpaginated). During this same period, Brazil's GDP rose steadily, indicating strong, sustained growth from an export commodity boom (Petherick 2013 p.7; Hochstetler and Viola 2012, pp. 759-760).

Decoupling has been attributed to a number of factors with no clear consensus on which factor has been the most effective (Moutinho 2015, p. 2). Contributing factors include government strategies and policies for forest conservation (Assunção et al. 2012, p. 697) such as: (1) The expansion of protected areas, which reduced the supply of unclaimed forest land (Nepstad et al. 2014, p. 1118); (2) an effort that began in 2007 to blacklist the worst deforesters; and (3) efforts to monitor and control municipalities with high levels of illegal deforestation through sanctions and restricted access to credit (Moutinho 2015, p. 3; Assunção et al. 2012, p. 698). Reductions in deforestation have also been attributed to market and social forces, such as decreases in the price of agricultural commodities (including soy and beef) in 2005 (Fearnside 2017b, p. 1; Assunção et al. 2012, entire) and the 2006 soy moratorium (Gibbs et al. 2015, pp. 377-378).

Brazil is one of the countries that currently has comparatively low productivity levels and is projected to grow faster as it catches up with more developed countries (Guardian 2012, unpaginated). Forecasts vary for Brazil's GDP purchasing power parity (GDP PPP), with one forecast predicting that GDP PPP will rise steadily through 2050 (PWC Global 2016, unpaginated), while a more recent forecast predicts that GDP PPP will stagnate and then drop after about 2050 (Knoema 2018, unpaginated).

The golden conure is highly prized as an aviary bird and has been extensively trapped for both the domestic and international pet trade in the past (BLI 2016, p. 5; Alves et al. 2013, p. 60; Laranjeiras 2011a, unpaginated; Yamashita 2003, p. 38; Snyder et al. 2000, p. 132; Collar 1992, p. 304; Oren and Novaes 1986, pp. 329, 334-335). However, there is little evidence that this practice is continuing in international trade (Laranjeiras 2011a, unpaginated; Silveira and Belmonte in press, unpaginated).

In contrast, the illegal domestic market for the species is still occurring at some level (Silveira and Belmonte in press, unpaginated). Historically, keeping birds was an important part of local indigenous tradition and culture (Carvalho 1951 and Cascudo 1973, as cited by Alves et al. 2013, p. 54). Young birds were taken from the wild to raise as pets and for feathers, but now are also sold to bird traders (Oren and Novaes 1986, p. 335). Much of the area occupied by the golden conure is poor, and selling the birds for the domestic pet trade provides an extra source of income (Yamashita 2003, p. 39).

There are mixed reports regarding the degree to which illegal capture of golden conures from the wild (“poaching”) occurs. The Brazilian Institute of Environment and Renewable Natural Resources (IBAMA) has licensed and regulated bird breeding in an effort to reduce poaching (Alves et al. 2013, p. 61). As a result, several sources believe poaching is no longer a major concern for the species because trade is thought to mostly be from the substantial captive population (Silveira in litt. 2012, Lees in litt. 2013, in BLI 2016, p. 5). However, some level of illegal capture and trade of the species is still believed to occur (Lima in litt. 2018). Captive rearing may not be a practical alternative to illegal trade, particularly in low-income areas, because the price of commercially bred birds is approximately 10 times higher than wild-caught individuals (Renctas 2001, as cited in Alves et al. 2013, p. 61; Machado 2002, as cited in Alves et al. 2010, p. 155).

Additionally, oversight of domestic wildlife-breeding facilities in Brazil is limited (Alves et al. 2010, entire), and many wild bird species declared to be captive-bred are actually born in the wild and traded under fraudulent documentation (Alves et al. 2013, p. 61). Most wildlife centers responsible for managing, licensing, and inspecting all categories of breeders, traders, and zoos (Kuhnen and Kanaan 2014, p. 125) lack resources and funding (Padrone 2004, as cited in Kuhnen and Kanaan 2014, p. 125). Also, there are not enough inspections at market places and commercial breeding facilities to fight illegal domestic trade (Alves et al. 2010, pp. 154-155).

The United States is a major importer of pet birds, yet relatively little trade in the golden conure has been observed. We reviewed all records of legal and intercepted illegal trade in the CITES annual trade records submitted by the U.S. Fish and Wildlife Service from 1981 to 2016. Overall, the U.S. trade in the golden conure has been relatively low compared with other pet birds, likely because the golden conure was included in CITES Appendix I in 1975 and we listed the species under the Act in 1976.

Changes in Brazil's climate and associated changes to the landscape are likely to result in additional habitat loss for the golden conure. Across Brazil, temperatures are projected to increase and precipitation to decrease (Barros and Albernaz 2014, p. 811; Carabine and Lemma 2014, p. 11). The 2013 Intergovernmental Panel on Climate Change (IPCC) predicted that by 2100, South America will experience temperature increases ranging from 1.7 to 6.7 degrees Celsius (°C) (3.06 to 12.06 degrees Fahrenheit (°F)) under Representative Concentration Pathway (RCP) 4.5 and RCP 8.5, respectively (Carabine and Lemma 2014, p. 10; Magrin et al. 2014, p. 1502). Projected changes in precipitation in South America vary by region, with rainfall reductions in the Amazon estimated with medium confidence (about a 5 out of 10 chance) (IPCC 2018, unpaginated; Carabine and Lemma 2014, p. 11; Magrin et al. 2014, p. 1502).

Downscaled models, based in part on the 2007 IPCC data, predict more severe changes than the average expected global variation, with the greatest warming and drying occurring over the Amazon rainforest, particularly after 2040 (Marengo et al. 2011, pp. 8, 15, 27, 39, 48; Féres et al. 2009, p. 2). Estimates of temperature changes in the Amazon by the end of the 21st century are 2.2 °C (4 °F) under a low greenhouse gas emission scenario and 4.5 °C (8 °F) under a high-emission scenario (Marengo et al. 2011, p. 27). The downscaled model for the Amazon used a previously provided set of scenarios known as the Special Report on Emissions Scenarios (SRES) to project the low-emissions using scenario (SRES B1) and high-emissions scenario (SRES A2) (Marengo et al. 2011, p. 27). More recently, a newer set of scenarios ( i.e., RCPs) were prepared that include a wider range of future conditions and emissions. However, to compare the SRES and RCP scenarios, SRES B1 is roughly comparable to RCP 4.5 and SRES A2 is similar to RCP 8.5 (U.S. National Climate Change Assessment 2014, p. 821). These similarities between specific RCP and SRES scenarios make it possible to compare the results from different modeling efforts over time (U.S. National Climate Change Assessment 2014, p. 821).

The risks to the golden conure from deforestation will likely be intensified by synergistic effects associated with climate change (Staal et al. 2015, p. 2) because a number of large-scale drivers of environmental change ( i.e., land-use change from deforestation and climate changes due to global warming) are operating simultaneously and interacting nonlinearly in the Amazon (Nobre et al. 2016, p. 10759). Increased temperatures and frequency or severity of droughts put the Amazon region at a higher risk of forest loss and more frequent wildfires (Magrin et al. 2007, p. 596; Marengo et al. 2011, p. 48). The Amazon's rainforest may have two “tipping points”: (1) A temperature increase of 4.0 °C (7.2 °F); or (2) deforestation exceeding 40 percent (Nobre et al. 2016, p. 10759), that once exceeded could cause large-scale shifts in the vegetation to a savanna ( i.e., “savannization”) mostly in the southern and eastern Amazon (Nobre et al. 2016, p. 10759) within the golden conure's range.

Similarly, a study that considered only the effects from global warming ( i.e., absent deforestation) predicted that by the end of this century, some areas of rainforest will be replaced by deciduous forest and grassland using scenario RCP 4.5 and by all grassland using scenario RCP 8.5 (Lyra et al. 2016, entire). Although the projected outcomes of models are not definitive, any terra firme (unflooded) forest habitat that shifts from rainforest to other habitat types ( e.g., savanna) would result in loss of habitat for the golden conure.

Other potential stressors to the golden conure include hunting and persecution (Factor B), and predation or disease (Factor C). The species is likely still hunted at low levels as a food source and for feathers, and birds that raid crops may be shot by farmers (Oren and Novaes 1986, p. 335). However, we have no information about the rate that these activities may be occurring or the extent to which they may be affecting populations. Similarly, we have no information regarding diseases that may affect golden conures in the wild.

Golden conures, including eggs and nestlings, are prey to a variety of native predators, including toucans (Oren and Novaes 1986, p. 334; Forshaw 2017, p. 228); raptors (Laranjeiras 2008a, as cited in Laranjeiras 2011a, unpaginated; Silveira and Belmonte in press, unpaginated); monkeys; snakes; and the tayra ( Eira barbara ), an omnivorous weasel (Oren and Novaes 1986, p. 334). However, we have no information regarding the rates of predation on the golden conure from these predators and how that may be affecting the golden conure.

The conservation measures and regulatory mechanisms for the golden conure are described in the proposed rule (83 FR 45073; September 5, 2018) and are summarized below. The golden conure is considered “vulnerable” at the national level in Brazil (MMA 2014, p. 122). Golden conures and their nests, shelters, and breeding grounds are protected by Brazilian environmental laws (Clayton 2011, p. 4; Environmental Crimes law of Brazil (1999) as cited in MSU 2018, unpaginated; Official List of Brazilian Endangered Animal Species Order No. 1.522/1989 as cited in ECOLEX 2018; CFRB 2010, p. 150; Law No. 5.197/1967 as cited in LatinLawyer 2018, unpaginated). Various regulatory mechanisms (Law No. 11.516, Act No. 7.735, and Decree No. 78, as cited in ECOLEX 2018, unpaginated) and Law 6.938/1981(LatinLawyer 2018, unpaginated) direct Brazil's federal and state agencies to promote the protection of lands and govern the formal establishment and management of protected areas to promote conservation of the country's natural resources. Additionally, several Brazilian laws are designed to protect forest reserves and to prohibit fire and other actions, such as logging, without authorization (Clayton 2011, p. 5; Law No. 9.605/1998 as cited in LatinLawyer 2018, unpaginated).

Protected areas have traditionally formed the backbone of forest conservation in the Amazon Basin, and they still remain a vital conservation strategy (GFA 2018f, unpaginated). Brazil has the largest protected area network in the world. The National Protected Areas System (Federal Act 9.985/2000, as cited in LatinLawyer 2018, unpaginated) was established in 2000, and covers nearly 2.2 million km 2 (0.8 million mi 2 ) or 12.4 percent of the global total (WDPA 2012, as cited by Ferreira et al. 2014, p. 706). This extensive network of protected areas is intended to (1) preserve priority biodiversity conservation areas, (2) establish biodiversity corridors, and (3) protect portions of the 23 Amazonian ecoregions identified by the World Wildlife Fund (Rylands and Brandon 2005, pp. 612, 615; Silva 2005, entire). Brazil's Protected Areas may be categorized as “strictly protected” or “sustainable use” based on their overall management objectives. Strictly protected areas include national parks, biological reserves, ecological stations, natural monuments, and wildlife refuges protected for educational and recreational purposes and scientific research. Protected areas of sustainable use (national forests, environmental protection areas, areas of relevant ecological interest, extractive reserves, fauna reserves, sustainable development reserves, and private natural heritage reserves) allow for different types and levels of human use with conservation of biodiversity as a secondary objective.

By 2006, 1.8 million km 2 (0.7 million mi 2 ), or approximately 45 percent of Brazil's Amazonian tropical forest, was under some level of protection as federal- or state-managed land, or designated as indigenous reserve (managed by indigenous communities) (Barber et al. 2014, p. 204). Of this, 19.2 percent was strictly protected areas, and 30.6 percent was comprised of federal and state sustainable use areas, with indigenous reserves making up the remainder (Barber et al. 2014, p. 204).

Indigenous lands are legally recognized areas where indigenous peoples have perpetual rights of access, use, withdrawal, management, and exclusion over the land and associated resources (GFW 2018, unpaginated). Indigenous communities sustainably use their forest land, practice shifting cultivation, trade non-timber forest products, and may allow selective logging (GFA 2018g, unpaginated; Schwartzman and Zimmerman 2005, p. 721). Large-scale deforestation is prohibited (Barber et al. 2014, p. 204).

Protected areas have been emphasized as a key component for the golden conure's survival ( e.g., in the Tapajos River region and the Gurupi Biological Preserve) (Laranjeiras and Cohn-Haft 2009, pp. 1, 8; Silveira and Belmonte in press, unpaginated). The species' predicted range overlaps with numerous protected areas such as national parks and national forests, which have various levels of protection (Service 2018, pp. 68-70; Laranjeiras and Cohn-Haft 2009, p. 8). Additionally, the species occurs in nine areas recently designated as “Important Bird Areas” (IBAs) in Brazil (BLI 2018a-h, unpaginated; Lima et al. 2014, p. 318; Laranjeiras 2011a, unpaginated; Devenish et al. 2009, pp. 104-106). IBAs are places of international significance for the conservation of birds and other biodiversity (BLI 2018i, unpaginated). Levels of protection at IBAs vary from fully protected within Protected Areas to no protections and are outside the National Protected Area System (BLI 2018i, unpaginated).

Habitat modeling studies have estimated approximately 10,875 golden conures within 174,000 km 2 (67,182 mi 2 ) of suitable habitat across a range of approximately 340,000 km 2 (131,275 mi 2 ) (Laranjeiras 2011b, p. 311; Laranjeiras and Cohn-Haft 2009, pp. 1, 3). To date, the golden conure has been found in numerous protected areas or IBAs that have a total area of approximately 154,673 km 2 (51,719 mi 2 ) (Service 2018, pp. 68-70). However, not all of the area represented contains suitable habitat for the species, and several of the IBAs (39 percent) presently have no protection (61,864 km 2 (23,866 mi 2 )). An additional 26 percent of IBAs presently have just partial protection (40,582 km 2 (15,669 mi 2 )) (Service 2018, pp. 68-70). Despite significant efforts to designate and establish protected areas, funding and resources are limited, and adequate enforcement of these areas is challenging.

Brazil's forest code was created in 1965, and was subsequently changed in the 1990s via a series of presidential decrees (Soares-Filho et al. 2014, p. 363). As of 2001, the forest code required landowners in the Amazon to conserve native vegetation on their rural properties by setting aside what is called a “legal reserve” of 80 percent of their property ( i.e., with 20 percent available to be harvested) (Soares-Filho et al. 2014, p. 363). The forest code severely restricted deforestation on private properties but proved challenging to enforce, and full compliance has not been achieved (GFA 2018b, unpaginated; Azevedo et al. 2017, entire; Soares-Filho et al. 2014, p. 363).

In late 2012, a new forest code was approved that reduces restoration requirements by providing amnesty for previous illegal deforestation by smaller property holders (Soares-Filho et al. 2014, p. 363). Under the older forest code, legal reserves that were illegally deforested were required to be restored at the landowner's expense. The new forest code forgives the legal reserve debt of small properties (up to 440 hectares (1,087 acres)) (Soares-Filho et al. 2014, p. 363). Although the 2012 forest code reduced the restoration requirements, it also introduced measures that strengthen conservation including addressing (1) fire management, (2) forest carbon emissions and storage, and (3) payments for ecosystem services that increase the economic activities compatible with conservation of natural resources (Soares-Filho et al. 2014, p. 364; GFA 2018h, unpaginated). Additionally, the new forest code created an “environmental reserve quota,” where quota surplus on one property may be used to offset a legal reserve debt on another property within the same biome; this could create a market for forested lands, adding monetary value to native vegetation and potentially abating up to 56 percent of legal reserve debt (Soares-Filho et al. 2014, p. 363).

IBAMA has licensed and regulated breeding of native bird species, including golden conure, in an effort to reduce poaching (Alves et al. 2013, p. 61). The captive population of golden conures in Brazil is believed to be about 600 birds (Prioste et al. 2013, p. 146). Additional captive populations of golden conures exist as CITES-registered captive-breeding operations in the United Kingdom and the Philippines. Although we have no further information on these programs, captive rearing in Brazil is believed to have reduced the incidence of poaching of young golden conures from the wild (Silveira in litt. 2012, Lees in litt. 2013, as cited in BLI 2016, p. 5).

We know of only one attempt to reintroduce the golden conure to an area where it had been extirpated. The species was extirpated from the Belém region of Pará in 1848 (Moura et al. 2014, p. 5). In 2017, reintroductions of golden conure were attempted in this area (at Utinga State Park in Belém) (globo.com 2018, unpaginated; Silveira in litt. 2018; Organization of Professional Aviculturists in litt. 2018). Of the 24 birds involved in the release program, three died prior to release, and one died after release due to predation by a boa ( Boa constrictor ). There have been no reports of released conures being taken as pets, although it is a possibility in the future. Currently, seven of the released birds are living in close proximity to the release station, while another 13 birds have flown away from the release point. These 13 birds are not currently under observation, but reports have indicated that they are living within the green areas of the city of Belém. One pair of golden conures has also successfully produced one offspring in an artificial nest box provided near the release station. This chick was successfully reared without human intervention and is living as a wild parrot along with its parents that have been seen feeding on native fruits. This is the first documented wild born golden conure in the Belém area in over 50 years. Even though this project is in the initial stages, its prospects are promising (Silveira in litt. 2018; Organization of Professional Aviculturists in litt. 2018).

“Reducing Emissions from Deforestation and Forest Degradation” (REDD) is a “payment for ecological services” initiative developed by the United Nations that creates a financial value for the carbon stored in forests (GFA 2018h, unpaginated). The program offers incentives to developing countries to reduce emissions from forested lands and invest in low-carbon paths to sustainable development (GFA 2018h, unpaginated). REDD plus (REDD+) goes one step further by including objectives for (1) biodiversity conservation, (2) sustainable management of forests, and (3) improvements to forest governance and local livelihoods (GFA 2018h, unpaginated). Brazil is one of the most advanced countries in the world in REDD+ planning and maintains an “Amazon Fund,” which receives compensation for reductions in deforestation. To date, the Norwegian government is the major donor; lesser donors include the government of Germany and the Brazilian oil company Petrobras (GFA 2018h, unpaginated). The successful funding and implementation of REDD+ is expected to reduce rates of deforestation in Brazil's Amazon rainforest and would likely benefit the golden conure and its habitat. However, the initiative is in its early stages and is being hampered by numerous issues, particularly unresolved land-tenure problems (May et al. 2018, p. 44).

The golden conure is protected under CITES, an international agreement between member governments to ensure that the international trade of CITES-listed plant and animal species is sustainable and does not threaten species' survival. Under this treaty, CITES Parties (member countries or signatories) regulate the import, export, and re-export of specimens, parts, and products of CITES-listed plant and animal species. Brazil is a Party to CITES. Trade in CITES-listed plants and animals must be authorized through a licensing system of permits and certificates that are provided by the designated CITES Management Authority of each CITES Party. CITES includes three Appendices that list species meeting specific criteria. Depending on the Appendix in which they are listed, species are subject to various permitting requirements.

The golden conure is included in CITES Appendix I and receives the highest degree of protection. Species listed in this Appendix are those that are threatened with extinction and which are, or may be, affected by trade. Commercial trade in Appendix I wildlife species is strictly prohibited, except in limited circumstances provided by the treaty. However, commercial international trade may be allowed in certain circumstances where animals have been produced by CITES-registered captive-breeding operations. Trade in specimens from registered operations may be treated as if they were listed in CITES Appendix II, although they remain Appendix I listed specimens. Each shipment requires the issuance of both CITES export and import documents. There are two CITES-registered captive-breeding operations for the golden conure: one in the United Kingdom and the other in the Philippines. The United States may also allow noncommercial trade in this species on a case-by-case basis for approved purposes such as scientific, zoological, and educational activities.

Two other laws in the United States apart from the Act provide protection from the illegal import of wild-caught birds into the United States: the Wild Bird Conservation Act (WBCA; 16 U.S.C. 4901 et seq. ) and the Lacey Act (18 U.S.C. 42; 16 U.S.C. 3371 et seq. ). The WBCA was enacted in 1992, to ensure that exotic bird species are not harmed by international trade and to encourage wild bird conservation programs in countries of origin. Under the WBCA and our implementing regulations (50 CFR 15.11), it is unlawful to import into the United States any exotic bird species listed under CITES that is not included in the approved list of species, except under certain circumstances. We may issue permits to allow import of listed birds for scientific research, zoological breeding or display, cooperative breeding, or personal pet purposes when the applicant meets certain criteria (50 CFR 15.22-15.25).

The Lacey Act was originally passed in 1900, and was the first Federal law protecting wildlife. Today, it provides civil and criminal penalties for the illegal trade of animals and plants. Under the Lacey Act, in part, it is unlawful to (1) import, export, transport, sell, receive, acquire, or purchase any fish, or wildlife taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law; or (2) import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law. Therefore, because the take of wild-caught golden conures would be in violation of Brazil's wildlife law, the subsequent import of the species would be in violation of the Lacey Act. Similarly, under the Lacey Act, it is unlawful to import, export, transport, sell, receive, acquire, or purchase specimens of these species traded contrary to CITES.

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 SSA report that informed our proposed rule, and we received responses from four of the five peer reviewers. We also invited any additional comments from the peer reviewers on the proposed rule during its public comment period. The purpose of peer review is to ensure that our reclassification determination is based on scientifically sound data, assumptions, and analyses. All substantive information from the peer review was fully considered and incorporated into this final rule, where appropriate. The peer reviewers' comments and suggestions are available at https://www.fws.gov/endangered/improving_ESA/peer_review_process.html.

The public comment period for our September 5, 2018, proposed rule (83 FR 45073) lasted for 60 days, ending November 5, 2018. During that comment period, we received 31 comments on our proposed rule to downlist the golden conure. The majority of the comments support downlisting the golden conure from endangered to threatened with a 4(d) rule to allow import/export and interstate commerce of certain golden conures. Additionally, commenters provided updated information regarding the golden conure reintroduction program occurring in the Belém region of Pará at Utinga State Park. We have incorporated this information under Conservation Measures and Regulatory Mechanisms, above, and have updated the SSA report. Other comments are discussed below by topic.

Comment (1): Many commenters state that the 4(d) rule will help improve the breeding pool because allowing interstate commerce of golden conures will develop more diverse genes and blood lines. Thus, the continued breeding of the species in the United States can provide a safety reservoir of individuals for reintroduction if needed.

Our Response: While we agree with the commenters that interstate commerce of golden conures could allow the development of more diverse genes and blood lines, we do not believe that captive-bred golden conures in the United States as pets are good candidates for reintroduction into the wild. Golden conures bred as pets would likely be socialized with humans and in turn fail to act appropriately with wild individuals when released. In addition, golden conures held as pets may pose a disease risk to wild populations.

Comment (2): A few commenters disagreed with the proposed downlisting because they claim that we underestimate the effect of deforestation and increased human population growth within the range of the golden conure. Therefore, they state that the golden conure should not be downlisted to threatened because the species remains in danger of extinction due to deforestation.

Our Response: Our analysis of the stressors to the golden conure as discussed in the SSA report (Service 2018, pp. 25-35) and summarized here and in the proposed rule includes the contribution of an increasing human population and how it impacts the species through habitat degradation and fragmentation. While we agree the golden conure faces significant risk from loss and degradation of its habitat from deforestation in the foreseeable future, because the golden conure is more widespread than previously thought and near-term threats to the species have been reduced, we do not find the species is presently in danger of extinction throughout all or a significant portion of its range. Thus, it does not meet the definition of an “endangered species” under the Act.

Drivers of habitat degradation and deforestation include roads; human settlement; logging; and agricultural expansion for soy cultivation, cattle ranching, and palm oil production (an emerging threat). Additionally, infrastructure projects such as hydroelectric dams and mining operations are growing sources of deforestation that also contribute to loss of forest habitat in the range of the conure. Based on the best available scientific studies and information assessing land-use trends (including deforestation, lack of enforcement of laws, predicted landscape changes under climate-change scenarios, and predictions about the impact of those threats), we conclude that the golden conure is likely to be in danger of extinction in the foreseeable future throughout its range and meets the definition of a “threatened species” under the Act.

Comment (3): One commenter stated that downlisting the golden conure to threatened will provide the species with less protection than if it was listed as endangered.

Our Response: We must make our determination on whether the species is endangered or threatened based solely on the best available scientific and commercial data available. If a species is determined to be an endangered species, the Act extends certain prohibitions to the species pursuant to section 9. If the species is listed as threatened, we may develop a rule pursuant to 4(d) to provide for its conservation.

The golden conure is more widespread than previously thought, and threats to the species have been reduced to the point that it is no longer in danger of extinction throughout all or a significant portion of its range. Our analysis also assessed the biological status of the golden conure in light of the broad protections provided to the species under CITES and the WBCA. We determined that the golden conure meets the definition of a “threatened species” under the Act. A threatened species is likely to become endangered throughout all or a significant portion of its range within the foreseeable future. Section 4(d) of the Act states that the “Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation” of species listed as threatened. Therefore, we include the golden conure in the 4(d) rule for birds at 50 CFR 17.41(c) to address the golden conure's specific threats and conservation needs, which will promote conservation of the golden conure. We find that this 4(d) rule contains all the prohibitions and authorizations necessary and advisable for the conservation of the species.

We acknowledge that we do not have authority to directly regulate activities in a foreign country that may cause the golden conure to be an endangered species or a threatened species. However, conservation measures or benefits provided to foreign species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and may encourage and result in conservation actions by foreign governments, Federal and State governments, private agencies and interest groups, and individuals.

Comment (4): Some commenters stated that Bird Life International (BLI) has downlisted the species from “endangered” to “vulnerable” because the estimated population is 10,000 to 19,999 individuals. The commenters state that BLI is a recognized authority, and their recommendations should be taken as “best scientific evidence.”

Our Response: We determined that the best available information indicates the current wild population of the golden conure is about 10,875 individuals (Laranjeiras 2011b, p. 311). Birdlife International's population estimate is 6,600-13,400 individuals (BLI 2019, unpaginated). We note that this estimate is within the range of the range of individuals cited by BLI.

The decision to list a species under the Act is based on whether the species meets the definition of an endangered species or a threatened species as defined under section 3 of the Act, considering the factors set forth in section 4(a)(1) of the Act, and is made solely on the basis of the best scientific and commercial data available. BLI uses different standards and criteria to assign its status designations; therefore, a determination of status under the Act is not interchangeable with a BLI designation. Using the best scientific and commercial data available, as summarized in this rule, we find that the golden conure meets the definition of a “threatened species” under the Act.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following 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.

After evaluating threats to the golden conure and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we reviewed the status of the golden conure and assessed the five factors to evaluate whether the species is endangered or threatened throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the golden conure. We reviewed information presented in the August 21, 2014, petition we received from the American Federation of Aviculture, Inc.; information available in our files; information gathered through our 90-day finding in response to the petition; information gathered in the SSA report; information from public comments on our September 5, 2018, proposed rule (83 FR 45073); and other available published and unpublished information.

When we listed the golden conure as endangered (41 FR 24062; June 14, 1976), the species was perceived to be declining in numbers due to either Factor A, Factor B, or Factor D, or a combination of all three factors. At present, while we consider deforestation and habitat degradation to be a significant risk to the golden conure in the future, the best scientific and commercial information available on the range and abundance of the species indicates that the species is more widespread and abundant than previously believed and that the threat from overutilization for the pet trade (Factor B) has diminished (Silveira in litt. 2012, Lees in litt. 2013, in BLI 2016, p. 5; Snyder et al. 2000, p. 99).

Approximately 10,875 golden conures occur within 174,000 km 2 (67,182 mi 2 ) of suitable habitat across a range of approximately 340,000 km 2 (131,275 mi 2 ) (Laranjeiras 2011b, p. 311; Laranjeiras and Cohn-Haft 2009, pp. 1, 3). Tighter enforcement of CITES, stricter European Union legislation, adoption of the WBCA in the United States, and adoption of national legislation in other countries have all helped to significantly curtail illegal international trade (Snyder et al. 2000, p. 99). Government-authorized captive breeding programs in Brazil are thought to have curtailed the illegal domestic trade (Silveira in litt. 2012, Lees in litt. 2013, in BLI 2016, p. 5). Thus, after assessing the best available information, we conclude the golden conure is not currently in danger of extinction throughout its range.

We next considered whether the golden conure is likely to become in danger of extinction throughout its range within the foreseeable future. Our proposed rule described “foreseeable future” as the extent to which we can reasonably rely on predictions about the future in making determinations about the future conservation status of the species. The Service since codified its understanding of foreseeable future in 50 CFR 424.11(d) (84 FR 45020; August 27, 2019).

In those regulations, we explain the term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. The Service will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. The Service need not identify the foreseeable future in terms of a specific period of time. These regulations did not significantly modify the Service's interpretation; rather they codified a framework that sets forth how the Service will determine what constitutes the foreseeable future based on our long-standing practice. Accordingly, though these regulations do not apply to the final rule for the golden conure since it was proposed prior to their effective date, they do not change the Service's assessment of foreseeable future for the golden conure as contained in our proposed rule.

The golden conure has already lost 30 to 35 percent of its historical range (Laranjeiras 2011a, unpaginated; Laranjeiras and Cohn-Haft 2009, p. 8). We expect both the species' global population and its habitat to decline an additional 23 to 30 percent in 22 years (Service 2018, pp. 42-46; Bird et al. 2011, appendix S1).

Additionally, habitat loss and degradation is likely to be intensified by synergistic effects associated with the consequences of climate change (Service 2018, pp. 42-46; Staal et al. 2015, p. 2). There is a strong likelihood of warming by at least 1.5 to 2.0 °C (2.7 to 3.6 °F) in Latin America by the end of the century (Carabine and Lemma 2014, p. 8), and downscaled estimates for the Amazon over the same time period ( i.e., by the end of the century) indicate temperature increases of 2.2 °C (4 °F) under a low greenhouse gas emission scenario, SRES B1 that equates to RCP 4.5, and 4.5 °C (8 °F) under a high-emission scenario, SRES A2 that equates to RCP 8.5 (Marengo et al. 2011, p. 27). Increased temperatures of these amounts put the Amazon region at a high risk of forest loss and more frequent wildfires (Magrin et al. 2007, p. 596). Downscaled models, based in part, on the earlier (2007) IPCC data, predict severe changes (increased warming and drying) over the Amazon rainforest, particularly after 2040 (Marengo et al. 2011, pp. 8, 15, 27, 39, 48; Féres et al. 2009, p. 2). Additionally, extreme weather events, such as droughts, will increase in frequency, with drought becoming a 9-in-10-year event, by 2060 (Marengo et al. 2011, p. 28), further contributing to deforestation due to more risk from fires (Marengo et al. 2011, p. 16).

Based on the best available data, we assessed foreseeable future to be 22 to 42 years (or approximately three to six generations of the golden conure). We based the lower end of this range (22 years) on the peer-reviewed work by Bird et al. 2011, relating to deforestation and declines in the population. We based the upper end of this range (42 years) on peer-reviewed studies predicting effects from climate change (such as drought) on deforestation after about 2040 to 2060 (Marengo et al. 2011, pp. 8, 15, 27, 28, 39, 48; Féres et al. 2009, p. 2). We conclude that it is reasonable to rely on the predictions made in these peer-reviewed studies to determine both the future threats and the species' response to these threats in making determinations about the foreseeable future of the golden conure.

Although the golden conure is now known to be more widespread and abundant than previously thought, the species occurs only within the southern basin of Brazil's Amazon. Much of this area is in the “arc of deforestation” and is threatened by loss and degradation of its rainforest habitat from deforestation. Effects from deforestation are exacerbated by the projected effects from climate change. Additionally, even though government-authorized captive breeding programs in Brazil are thought to have curtailed the illegal domestic trade, some unknown level of illegal collection and trade is ongoing, particularly within Brazil (Silveira and Belmonte in press, unpaginated).

Existing regulatory mechanisms and conservation efforts do not currently adequately ameliorate threats to the golden conure (Factor D). Although the species is no longer in danger of extinction now, the factors identified above continue to affect the golden conure such that it is likely to become in danger of extinction within the foreseeable future throughout all of its range. Based on the best available scientific studies and information assessing land-use trends, adequacy of enforcement of laws, predicted landscape changes under climate-change scenarios, and predictions about how those threats may impact the golden conure, we conclude that the species is likely to be in danger of extinction within the foreseeable future throughout all of its range.

Thus, after assessing the best available information, we conclude the golden conure is not currently in danger of extinction, but is likely to become in danger of extinction within the foreseeable future throughout all of its range.

Having determined that the golden conure is likely to become an endangered species within the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction in a significant portion of its range. The range of a species can theoretically be divided into portions in an infinite number of ways, so we first screen the potential portions of the species' range to determine if there are any portions that warrant further consideration. To do the “screening” analysis, we ask whether there are portions of the species' range for which there is substantial information indicating that: (1) The portion may be significant; and (2) the species may be, in that portion, in danger of extinction. For a particular portion, if we cannot answer both questions in the affirmative, then that portion does not warrant further consideration and the species does not warrant listing as endangered because of its status in that portion of its range. We emphasize that answering these questions in the affirmative is not a determination that the species is in danger of extinction throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required.

If we answer these questions in the affirmative, we then conduct a more thorough analysis to determine whether the portion does indeed meet both of the “significant portion of its range” prongs: (1) The portion is significant and (2) the species is, in that portion, in danger of extinction. Confirmation that a portion does indeed meet one of these prongs does not create a presumption, prejudgment, or other determination as to whether the species is an endangered species. Rather, we must then undertake a more detailed analysis of the other prong to make that determination. Only if the portion does indeed meet both prongs would the species warrant listing as endangered because of its status in a significant portion of its range

At both stages in this process—the stage of screening potential portions to identify any portions that warrant further consideration and the stage of undertaking the more detailed analysis of any portions that do warrant further consideration—it might be more efficient for us to address the “significance” question or the “status” question first. Our selection of which question to address first for a particular portion depends on the biology of the species, its range, and the threats it faces. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the second question for that portion of the species' range.

For golden conure, we chose to evaluate the status question ( i.e., identifying portions where the golden conure may be in danger of extinction) first. To conduct this screening, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: Habitat loss; illegal collection and trade; climate change; and other stressors of hunting, persecution, and predation; and including cumulative effects. We found no concentration of threats in any portion of the golden conures' range at a biologically meaningful scale. For the golden conure, we found both: The species is not in danger of extinction throughout all of its range, and there is no geographical concentration of threats so the threats to the species are essentially uniform throughout its range. The “arc of deforestation” is a hotspot of deforestation in the Amazon and the golden conure's range partially overlaps this area. However, deforestation caused by fires, ranching, and agriculture occurs in many parts of the Amazon and in the conure's range outside of the “arc of deforestation.”

If both (1) a species is not in danger of extinction throughout all of its range and (2) the threats to the species are essentially uniform throughout its range, then the species could not be in danger of extinction in any biologically meaningful portion of its range. Therefore, we conclude, based on this screening analysis, that no portions warrant further consideration through a more detailed analysis, and the species is not in danger of extinction in any significant portion of its range. Our approach to analyzing significant portions of the species' range in this determination is consistent with the courts' holdings in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018); Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017); and Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020).

Our review of the best available scientific and commercial information indicates that the golden conure meets the definition of a threatened species. Therefore, we are listing the golden conure as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

When a species is listed as endangered, certain actions are prohibited under section 9 of the Act and our regulations at 50 CFR 17.21. These include, among others, prohibitions on take within the United States, within the territorial seas of the United States, or upon the high seas; import; export; and shipment in interstate or foreign commerce in the course of a commercial activity. Exceptions to the prohibitions for endangered species may be granted in accordance with section 10 of the Act and our regulations at 50 CFR 17.22.

The Act does not specify particular prohibitions and exceptions to those prohibitions for threatened species. Instead, under section 4(d) of the Act, the Secretary of the Interior, as well as the Secretary of Commerce depending on the species, was given the discretion to issue such regulations as deemed necessary and advisable to provide for the conservation of such species. The Secretary also has the discretion to prohibit by regulation with respect to any threatened species any act prohibited under section 9(a)(1) of the Act. For the golden conure, the Service is exercising our discretion to issue a rule under section 4(d) of the Act by extending the regulations at 50 CFR 17.41(c) that provide for the conservation of certain species in the parrot family to the golden conure. These provisions generally extend the prohibitions included in 50 CFR 17.21, except 50 CFR 17.21(c)(5) and as provided in subpart A of part 17, or in a permit. Further, the import and export of certain golden conures into and from the United States and certain acts in interstate commerce will be allowed without a permit under the Act, as explained below.

The 4(d) rule imposes a prohibition on imports and exports, but creates exceptions for certain golden conures. Shipments of captive specimens ( i.e., not taken from the wild) may include live and dead golden conures and parts and products, including the import and export of personal pets and research samples. The 4(d) rule adopts the existing conservation regulatory requirements of CITES and the WBCA as the appropriate regulatory provisions for the import and export of these golden conure specimens.

This 4(d) rule allows a person to import or export, into and from the United States, captive specimens, without a permit issued under the Act, provided that the export is authorized under CITES and the import is authorized under CITES and the WBCA. The import would require a CITES document issued by the foreign Management Authority indicating a source code of “C”, “D”, or “F.” Exporters of captive birds would need to provide a signed and dated statement from the breeder of the bird, along with documentation that identifies the source of their breeding stock in order to obtain a CITES export permit from the U.S. Fish and Wildlife Service's Division of Management Authority. Exporters of captive-bred birds must provide a signed and dated statement from the breeder of the bird confirming its captive-bred status, and documentation on the source of the breeder's breeding stock. The source codes of C, D, and F for CITES permits and certificates are as follows:

• Source Code C: Animals bred in captivity in accordance with Resolution Conf. 10.16 (Rev.), as well as parts and derivatives thereof, exported under the provisions of Article VII, paragraph 5 of the Convention.

• Source Code D: Appendix I animals bred in captivity for commercial purposes in operations included in the Secretariat's Register, in accordance with Resolution Conf. 12.10 (Rev. CoP15), and Appendix I plants artificially propagated for commercial purposes, as well as parts and derivatives thereof, exported under the provisions of Article VII, paragraph 4, of the Convention.

• Source Code F: Animals born in captivity (F1 or subsequent generations) that do not fulfill the definition of “bred in captivity” in Resolution Conf. 10.16 (Rev.), as well as parts and derivatives thereof.

The 4(d) rule does not allow any U.S. import or export of golden conures that are taken from the wild; such birds would continue to need a permit under the Act, with the following exception: A person may import or export a wild golden conure specimen if the specimen was held in captivity prior to the date the species was listed in CITES Appendix I ( i.e., prior to the date that CITES entered into force on July 1, 1975, with “golden parakeet” ( i.e., the golden conure) listed in Appendix I) and provided that the specimen meets all the requirements of CITES and WBCA. If a specimen was taken from the wild and held in captivity prior to that date (July 1, 1975), the exporter will need to provide documentation as part of the application for a U.S. CITES preconvention certificate. Examples of documentation may include: (1) A copy of the original CITES permit indicating when the bird was removed from the wild, (2) veterinary records, or (3) museum specimen reports. Additionally, consistent with the 4(d) rule for other species in the parrot family at 50 CFR 17.41(c), the prohibitions on take will apply and the 4(d) rule will require a permit under the Act for any activity that could take a golden conure. Our regulations at 50 CFR 17.3 establish that take, when applied to captive wildlife, does not include generally accepted animal husbandry practices, breeding procedures, or provisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices are not likely to result in injury to the wildlife.

We assessed the conservation needs of the golden conure in light of the broad protections provided to the species under CITES and the WBCA. As noted above in Summary of Factors Affecting the Species, some level of poaching for illegal trade of golden conures is occurring within Brazil (Silveira and Belmonte in press, unpaginated), but there is little evidence that this practice occurs at the international level (Laranjeiras 2011a, unpaginated; Silveira and Belmonte in press, unpaginated). The best available commercial data indicate that tighter enforcement of CITES, stricter European Union legislation, adoption of the WBCA in the United States, and adoption of national legislation in other countries have all helped to significantly curtail illegal international trade (Snyder et al. 2000, p. 99). Therefore, illegal international trade is not likely to be occurring at levels that negatively affect the golden conure population. Additionally, legal international trade of the species is not currently occurring at levels that affect the golden conure population. Therefore, we find that the import and export requirements of the 4(d) rule provide the necessary and advisable conservation measures that are needed for this species. This 4(d) rule will streamline the permitting process for these types of activities by deferring to existing laws that are protective of golden conures in the course of import and export.

Under the 4(d) rule, except where use after import is restricted under 50 CFR 23.55, a person may deliver, receive, carry, transport, or ship a golden conure in interstate commerce in the course of a commercial activity, or sell or offer to sell in interstate commerce a golden conure without a permit under the Act. At the same time, the prohibitions on take under 50 CFR 17.21 apply under this 4(d) rule, and any interstate commerce activities that could incidentally take golden conure or otherwise constitute prohibited acts in foreign commerce require a permit under 50 CFR 17.32.

Between 1981 and 2016, persons within the United States imported 54 golden conures and exported 26; all were reported as live captive-bred birds except two exported birds that originated from an unknown source and one imported bird seized upon import (UNEP-WCMC 2018, unpaginated; Service 2018, p. 33). These imports and exports were made for commercial, captive-breeding, zoological, and personal purposes (UNEP-WCMC 2018, unpaginated; Service 2018, p. 33). We have no information to indicate that interstate commerce activities in the United States are associated with threats to the golden conure or would negatively affect any efforts aimed at the recovery of wild populations of the species. Therefore, because (1) acts in interstate commerce within the United States have not been found to threaten the golden conure, (2) the species is otherwise protected in the course of interstate and foreign commercial activities under the take provisions as extended through 50 CFR 17.41(c), and (3) international trade of this species appears to be effectively regulated under CITES, we find the 4(d) rule contains all the prohibitions and authorizations necessary and advisable for the conservation of the golden conure.

50 CFR 17.11(c) and 17.12(b) direct us to use the most recently accepted scientific name of any wildlife or plant species, respectively, that we have determined to be an endangered or threatened species. The golden conure currently appears on the List as the “golden parakeet” ( Aratinga guarouba ). Both “golden conure” and “golden parakeet” are common names associated with Guaruba guarouba. However, we find that the best available scientific information available supports the designation of the golden conure to its own genus ( Guaruba ). Therefore, we are updating the List to reflect this change in the scientific name for golden conure.

The basis for this taxonomic change is supported by published studies in peer-reviewed journals ( e.g., Urantówka and Mackiewicz 2017, entire; Tavares et al. 2004, pp. 230, 236-237, 239; Sick 1990, p. 112). Accordingly, we are correcting the scientific name of the species under section 4 of the Act (16 U.S.C. 1531 et seq. ) by changing the name as currently listed ( i.e., golden parakeet ( Aratinga guarouba )) to the corrected species name ( i.e., golden conure or golden parakeet ( Guaruba guarouba )).

We have determined that we do not need to prepare an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted under section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov under Docket No. FWS-HQ-ES-2015-0019 or upon request (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this final rule are the staff members of the Branch of Delisting and Foreign Species, Ecological Services Program, U.S. Fish and Wildlife Service.

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: