The Intermediary Lending Pilot (ILP) program was authorized by Congress as a 3-year pilot program in the Small Business Jobs Act of 2010, Public Law 111-240, enacted September 27, 2010. Under the ILP program, SBA provided loans to selected nonprofit intermediaries (ILP Intermediaries) for the purpose of providing loans to small businesses. Currently, there are 33 lenders participating in the ILP program. SBA was authorized to make loans to ILP Intermediaries in fiscal years 2011, 2012, and 2013. SBA published a proposed rule on March 5, 2020, proposing to remove three regulations from the Code of Federal Regulations (CFR) that are no longer necessary because SBA is no longer authorized to select new ILP Intermediaries. 85 FR 12875 (March 5, 2020). The proposed rule also contained two conforming amendments. SBA received no comments to these proposed ILP changes. Therefore, SBA is proceeding with the changes as proposed.

This section describes the application process to become an ILP Intermediary, including publication of a Notice of Funds Availability (NOFA) in the Federal Register to announce the availability of funds for the program and specify any special rules, procedures, and restrictions for a particular funding round. This section also includes the requirements for an ILP Intermediary application.

This section describes the process by which SBA evaluates ILP Intermediary applications. The rule specifies that SBA will make loans to not more than 20 selected ILP Intermediaries, and that applications will be evaluated and scored based on the criteria specified in the NOFA.

Section 109.220 states that no ILP Intermediary may receive more than $1 million in ILP Loans.

SBA's authority to make loans to ILP Intermediaries has expired; therefore, SBA is not accepting any new ILP Intermediary applications. Since the program no longer allows for new ILP Intermediaries, the removal of these three regulations will reduce confusion and regulatory burden. Requirements for current ILP Intermediaries are found in the remaining provisions of part 109.

In addition to removing the three regulations described above, the final rule also makes two conforming amendments. First, SBA is revising the definition of ILP Intermediary in section 109.20 to remove reference to the competitive application process. Because the regulations describing the application process (sections 109.200 and 109.210) have been removed, this revision is necessary to avoid confusion. Second, SBA is removing the cross-reference to section 120.173, Lead-based paint, in section 109.440. Section 109.440 states that loans made by an ILP Intermediary must comply with all applicable laws, including SBA's Lead-based paint regulation in section 120.173. In a separate rulemaking, SBA is proposing to remove section 120.173 because it is no longer necessary—16 CFR part 1303 already bans paint containing a concentration of lead in excess of 0.009% (90 parts per million) for use in residences, schools, hospitals, parks, playgrounds, and public buildings or other areas where consumers will have direct access to the painted surface. Therefore, SBA is removing the cross-reference in part 109 as well.

The Office of Management and Budget (OMB) has determined that this rule does not constitute a significant regulatory action for purposes of Executive Order 12866 and is not a major rule under the Congressional Review Act, 5 U.S.C. 801, et seq.

This final rule is expected to be an Executive Order 13771 deregulatory action with an annualized net savings of $8,980 and a net present value of $128,285 in savings, both in 2016 dollars. This rule will remove information about applying to the ILP program which will save potential applicants time in reading and researching/inquiring about this obsolete program and reduce confusion around whether applications are being accepted.

SBA is aware of approximately 500 nonprofit lenders that could potentially search for and read about applying for the ILP program. Assuming that, each year, 20 percent of these nonprofit lenders would review SBA's ILP regulations and that each would save one hour of review time due to removal of the regulations discussed in this rule, these nonprofits would be relieved of 100 burden hours. Valuing this time at $124.90 per hour—the wage of a financial manager based on 2019 BLS data and adding 100% more for benefits and overhead, this produces total savings per year of $12,450 in current dollars.

On February 24, 2017, the President issued Executive Order 13777, Enforcing the Regulatory Reform Agenda, which further emphasized the goal of the Administration to alleviate the regulatory burdens placed on the public. Under Executive Order 13777, agencies must evaluate their existing regulations to determine which ones should be repealed, replaced, or modified. In doing so, agencies should focus on identifying regulations that, among other things: Eliminate jobs or inhibit job creation; are outdated, unnecessary or ineffective; impose costs that exceed benefits; create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; or are associated with Executive orders or other Presidential directives that have been rescinded or substantially modified. SBA has engaged in this process and has identified the regulations in this rulemaking as appropriate for removal in accordance with Executive Order 13777.

This action meets applicable standards set forth in sec. 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

This rule does not have federalism implications as defined in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in the Executive order. As such it does not warrant the preparation of a Federalism Assessment.

The SBA has determined that this final rule does not affect any existing collection of information.

When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

SBA is aware of approximately 500 nonprofit lenders that could potentially search for and read about applying to the ILP program. The removal of obsolete regulations related to the ILP program would reduce confusion for these lenders and the time required to read and/or inquire about obsolete regulations. The total annual savings to these nonprofit lenders is $12,450 in current dollars, or about $25 per nonprofit lender. More information on this estimate can be found in the Executive Order 13771 discussion above.

Accordingly, the Administrator of the SBA hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Accordingly, for the reasons stated in the preamble, SBA amends 13 CFR part 109 as follows:

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to remove AD 2017-09-05, Amendment 39-18867 (82 FR 21913, May 11, 2017) (“AD 2017-09-05”), and add a new AD. AD 2017-09-05 applied to Airbus Helicopters Model AS332C, AS332C1, AS332L, AS332L1, AS332L2, and EC225LP helicopters with emergency flotation gear installed. The NPRM published in the Federal Register on August 7, 2020 (85 FR 47921). The NPRM proposed to require, within 15 hours time-in-service (TIS) and thereafter, before each flight over water, visually checking each emergency flotation gear left-hand (LH) and right-hand (RH) rear upper fitting for the presence of screw heads and looseness. An owner/operator (pilot) may perform the required visual check but must enter compliance with the applicable paragraph of this AD in the helicopter maintenance records in accordance with 14 CFR 43.9(a)(1) through (4) and 91.417(a)(2)(v). A pilot may perform this check because it involves visually checking the rear upper fittings of the LH and RH emergency flotation gears for the presence of screw heads and twisting the screws by hand. This action can be performed equally well by a pilot or a mechanic. This check is an exception to the FAA's standard maintenance regulations. If any screws are loose or any screw heads are missing, the NPRM proposed to require removing from service the screws on each LH and RH side on the flotation gear rear fitting and installing MOD 0728456, base washers and spherical washers. The NPRM also proposed to require, within 300 hours TIS, installing MOD 0728456 as a terminating action for the repetitive checks.

AD 2017-09-05 was prompted by EASA AD 2015-0239-E, dated December 18, 2015 (EASA AD 2015-0239-E), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model AS332C, AS332C1, AS332L, AS332L1, AS332L2, and EC225LP helicopters. EASA advised that a screw ruptured on the rear upper fitting on the LH emergency flotation gear of an AS332 helicopter. EASA stated that this condition, if not detected and corrected, could result in the failure of an emergency flotation system when ditching and unstable floating of the helicopter, possibly resulting in injuries to the occupants. The EASA AD consequently required repetitive inspections of the lower attachment screws of rear upper fitting on the rear LH and RH emergency flotation gears. EASA stated that the root cause of the failure had not yet been identified.

After the FAA issued AD 2017-09-05, Airbus Helicopters identified the root cause of the screw rupture as a tapering gap under the fitting attachment screw heads creating excessive stress loads. Consequently, EASA issued AD No. 2018-0090, dated April 20, 2018 (EASA AD 2018-0090), to supersede EASA AD 2015-0239-E. EASA AD 2018-0090 retains the repetitive inspection requirements in EASA AD 2015-0239-E and also requires the installation of Airbus Helicopters MOD 0728456 as a terminating action for the repetitive inspections. MOD 0728456 involves the installation of spherical washers and longer screws on the rear upper fittings of the flotation gear to remove the stress applied to the screw heads.

Since the FAA issued the NPRM, it was identified that the NPRM specified installing MOD 0728456 by using Airbus Helicopters Alert Service Bulletin (ASB) No. AS332-25.03.43 or ASB No. EC225-25A207, each Revision 0 and dated April 4, 2018, in paragraphs (f)(3)(i) through (iii) of this AD. However, the FAA intended to update this service information to Airbus Helicopters ASB No. AS332-25.03.43 or ASB No. EC225-25A207, each Revision 2 and dated March 21, 2019. Since the updated service information does not affect compliance, this final rule allows the use of either Revision 0 or Revision 2 of this service information to install MOD 0728456.

The FAA gave the public the opportunity to participate in developing this final rule, but the FAA did not receive any comments on the NPRM or on the determination of the cost to the public.

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 of the information provided by EASA and determining the unsafe condition exists and is likely to exist or develop on other helicopters of these same type design and that air safety and the public interest require adopting the AD requirements as proposed except for minor editorial changes. The two instances of 17mm (+ 0.1/+ 0.1) as published in the Required Actions of the NPRM have been corrected to 17mm (+ 0.1/− 0.1). These minor editorial changes are consistent with the intent of the proposals in the NPRM and will not increase the economic burden on any operator nor increase the scope of this AD.

The EASA AD allows using tools for the inspection, while this AD requires checking by hand. The EASA AD requires contacting Airbus Helicopters if a screw is missing or loose, while this AD does not. The EASA AD requires that repetitive inspections occur at intervals not to exceed 15 hours TIS, while this AD requires the repetitive checks before each flight over water.

Airbus Helicopters has issued ASB No. AS332-25.03.43, Revision 0, dated April 4, 2018, for Model AS332C, AS332C1, AS332L, AS332L1, and AS332L2 helicopters and for military Model AS332B, AS332B1, AS332F1, AS332M, and AS332M1 helicopters. The FAA also reviewed ASB No. EC225-25A207, Revision 0, dated April 4, 2018, for Model EC 225 LP helicopters. This service information specifies, within 12 months, installing MOD 0728456 by installing spherical leveling washers and longer screws to attach the rear upper fittings of the LH and RH emergency flotation gear. Airbus Helicopters specifies that helicopters that have undergone MOD 0728456 are exempt from these service information requirements. Airbus Helicopters revised each of these ASBs, now at Revision 2 and dated March 21, 2019, to specify an alternative to the protection of the spotfacing(s) and add an instruction to apply primer after the protection and before painting the parts.

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.

Airbus Helicopters has issued Emergency Alert Service Bulletin (EASB) No. 05.01.06, Revision 0, dated December 18, 2015, for Model AS332C, AS332C1, AS332L, AS332L1, and AS332L2 helicopters and for military Model AS332B, AS332B1, AS332F1, AS332M, and AS332M1 helicopters, and EASB No. 05A047, Revision 0, dated December 18, 2015, for Model EC225LP helicopters. This service information specifies repetitively inspecting the lower screws of the rear upper fitting on the rear LH and RH emergency floating gears for the presence of the heads and stressing the screw heads using a tool to make sure that the screw head does not move. If all screw heads are present, the service information requires no further action. If at least one screw head is missing or is loose, the service information specifies replacing the two lower screws and the upper screw and informing Airbus Helicopters. Airbus Helicopters revised each of these EASBs to Revision 1, dated April 4, 2018, to exclude helicopters with MOD 0728456 installed from the effectivity.

The FAA estimates that this AD affects 29 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Checking the screws for looseness and a missing head takes about 5 minutes, for an estimated cost of about $7 per helicopter and $203 for the U.S. fleet.

Performing the MOD takes about 16 work-hours, and parts cost about $3,030 for total estimated cost of $4,390 per helicopter and $127,310 for the U.S. fleet.

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:

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0110R1, dated May 27, 2020; and EASA AD 2020-0111R2, dated June 16, 2020 (“EASA AD 2020-0110R1” and “EASA AD 2020-0111R2”) (also referred to as “the Mandatory Continuing Airworthiness Information,” or “the MCAI”); to correct an unsafe condition for all Airbus SAS Model A300 series airplanes and Airbus SAS Model A300-600 series airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 series airplanes and Airbus SAS Model A300-600 series airplanes. The NPRM published in the Federal Register on September 1, 2020 (85 FR 54286). The NPRM was prompted by reports of cracking at hole location #10 on the LH side of FR4. The NPRM proposed to require repetitive inspections for discrepancies of certain areas in and around the fuselage, as specified in two EASA ADs.

The FAA is issuing this AD to address fatigue cracking, which could result in reduced structural integrity of the fuselage. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. FedEx indicated its support for the NPRM.

The FAA reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

EASA AD 2020-0110R1 describes procedures for repetitive special detailed inspections for discrepancies ( i.e., cracking) of the fuselage internal structure at certain frames, windshield frame lower section and closing panel, fuselage skin lap joint, and center wing bottom skin internal angle; and applicable corrective actions (repairing discrepancies).

EASA AD 2020-0111R2 describes procedures for repetitive special detailed inspections for discrepancies of the outer wing bottom skin internal joint plate, outer wing bottom skin, fuselage internal structure at certain frames, and windshield frame lower section and closing panel; and applicable corrective actions (repairing discrepancies).

This material 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 estimates that this AD affects 118 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data that would enable the agency to provide cost estimates for the on-condition actions specified in this AD.

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

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

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:

This action extends the expiration date of the prohibition against certain U.S. civil flight operations in the Damascus FIR (OSTT) by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when the operator of such aircraft is a foreign air carrier. Specifically, this amendment extends the expiration date of SFAR No. 114, § 91.1609 of title 14, Code of Federal Regulations (CFR), from December 30, 2020, to December 30, 2023, due to the significant, continuing hazards to U.S. civil aviation operation in the Damascus FIR (OSTT) associated with the ongoing and complex conflict in Syria, as described in the preamble to this final rule. This action also republishes the approval process and exemption information for this SFAR, consistent with other recently published flight prohibition SFARs, and makes minor administrative revisions.

The FAA is responsible for the safety of flight in the U.S. and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. Sections 106(f) and (g) of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA Administrator's authority to issue rules on aviation safety. Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the Agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise this authority consistently with the obligations of the U.S. Government under international agreements.

The FAA is promulgating this rulemaking under the authority described in 49 U.S.C. 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.

This regulation is within the scope of the FAA's authority because it continues to prohibit the persons described in paragraph (a) of SFAR No. 114, § 91.1609, from conducting flight operations in the Damascus FIR (OSTT) due to the significant, continuing hazards to the safety of U.S. civil flight operations, as described in the preamble to this final rule.

Section 553(b)(3)(B) of title 5, U.S. Code, 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.” Section 553(d) also authorizes agencies to forgo the delay in the effective date of the final rule for good cause found and published with the rule. In this instance, the FAA finds good cause exists to forgo notice and comment because notice and comment would be impracticable and contrary to the public interest. In addition, it is contrary to the public interest to delay the effective date of this SFAR.

The risk environment for U.S. civil aviation in airspace managed by other countries with respect to safety of flight is fluid due to the risks posed by weapons capable of targeting, or otherwise negatively affecting, U.S. civil aviation, as well as other hazards to U.S. civil aviation associated with fighting, extremist or militant activity, or heightened tensions. This fluidity and the need for the FAA to rely upon classified information in assessing these risks make issuing notice and seeking comments impracticable and contrary to the public interest. With respect to the impracticability of notice and comment procedures, the potential for rapid changes in the risks to U.S. civil aviation significantly limits how far in advance of a new or amended flight prohibition the FAA can usefully assess the risk environment. Furthermore, to the extent that these rules and any amendments to them are based upon classified information, the FAA is not legally permitted to share such information with the general public, who cannot meaningfully comment on information to which they are not legally allowed access.

Under these conditions, public interest considerations favor not providing notice and seeking comment for this rule. While there is a public interest in having an opportunity for the public to comment on agency action, there is a greater public interest in having the FAA's flight prohibitions, and any amendments thereto, reflect the Agency's current understanding of the risk environment for U.S. civil aviation. This allows the FAA to protect the safety of U.S. operators' aircraft and the lives of their passengers and crews without overrestricting U.S. operators' routing options.

The FAA has determined extending the expiration date of SFAR No. 114, § 91.1609, is necessary due to safety-of-flight hazards associated with the ongoing and complex conflict in Syria. These hazards continue to present significant risks to U.S. civil aviation operations in the Damascus FIR (OSTT), as described in the preamble to this rule. Therefore, the FAA's flight prohibition for U.S. civil aviation operations in the Damascus FIR (OSTT) must continue, without interruption.

Accordingly, the FAA finds good cause exists to forgo notice and comment and any delay in the effective date for this rule.

On December 10, 2018, the FAA amended SFAR No. 114, § 91.1609, to extend the expiration date of the rule from December 30, 2018, to December 30, 2020. 1 In issuing the 2018 final rule, the FAA stated the situation in the Damascus FIR (OSTT) remained hazardous for U.S. civil aviation due to a variety of aviation safety risks associated with the ongoing conflict in Syria. 2

The situation in the Damascus FIR (OSTT) continues to present an unacceptable level of risk for U.S. civil aviation safety. The conflict in Syria between pro-Assad regime forces, third country military forces, as well as opposition groups, and extremist elements, is extremely complex.

The presence of third parties conducting independent military operations in Syria against pro-Assad regime forces, opposition groups, and extremist elements, exacerbates the situation. Third-party airstrikes in Syria often result in Syrian military air defense responses. Syrian authorities do not adequately de-conflict these air defense activities, which include indiscriminate surface-to-air missile (SAM) fire, with civil aviation operations in the Damascus FIR (OSTT), including, but not limited to, civil flight operations in close proximity to international airports in Syria. For example, in late February 2020, Syrian air defense activities forced a commercial Cham Wings Airbus 320 passenger flight on final approach to Damascus International Airport to divert to an alternate airfield in Syria.

The lack of de-confliction of Syrian air defense activity with civil air traffic is just one of the risks to U.S. civil aviation operations in the Damascus FIR (OSTT) emanating from third-party involvement in Syria. Russia, Iran, and the Lebanese terrorist organization, Hizballah, all of which are Syrian regime allies, continue to conduct military operations in Syria and have deployed significant air defense and electronic warfare capabilities, including Global Positioning System (GPS) jammers, which present a risk to U.S. civil aviation operations in the Damascus FIR (OSTT). In March 2020, Russian, Turkish and Syrian forces clashed in Idlib Province. During these clashes, fighter aircraft and possible SAMs shot down several manned and unmanned aircraft.

In addition to the hazards associated with third-party involvement in the Syrian conflict, extremist threats to civil aviation safety continue to exist in Syria. Terrorist groups, including the Islamic State of Iraq and ash-Sham (ISIS) and al Qaida-aligned entities possess, or have access to, a wide array of anti-aircraft weapons that pose a risk to civil aviation operations in the Damascus FIR (OSTT). Anti-regime forces, extremists, and militants have successfully shot down multiple military aircraft using man-portable air defense systems (MANPADS) during the Syrian conflict. Additionally, various elements have successfully targeted military aircraft using advanced anti-tank guided missiles (ATGMs). ATGMs primarily pose a risk to civil aircraft operating near, or parked at, an airport. Finally, various groups employ unmanned aircraft systems to surveil and attack Syrian and Syrian-allied fielded forces and airfields.

As a result of the ongoing military activities by multiple actors and the lack of progress towards ending the conflict, the FAA expects significant hazards to the safety of U.S. civil aviation in the Damascus FIR (OSTT) will endure. Therefore, as a result of the significant, continuing risk to the safety of U.S. civil aviation in the Damascus FIR (OSTT), the FAA extends the expiration date of SFAR No. 114, § 91.1609, from December 30, 2020, to December 30, 2023.

Amendments to SFAR No. 114, § 91.1609, could be appropriate if the risk to aviation safety and security changes. In this regard, the FAA will continue to monitor the situation and evaluate the extent to which persons described in paragraph (a) of this rule might be able to operate safely in the Damascus FIR (OSTT). The FAA may amend or rescind SFAR No. 114, § 91.1609, as necessary, prior to its expiration date.

The FAA also republishes the details concerning the approval and exemption processes in Sections V and VI of this preamble, with clarifications for consistency with other recently published flight prohibition SFARs. Lastly, the FAA makes minor administrative revisions, including updating the applicability paragraph of the regulatory text to make it consistent with other recently published flight prohibition SFARs.

In some instances, U.S. Government departments, agencies, or instrumentalities may need to engage U.S. civil aviation to support their activities in the Damascus FIR (OSTT). If a department, agency, or instrumentality of the U.S. Government determines that it has a critical need to engage any person described in SFAR No. 114, § 91.1609, including a U.S. air carrier or commercial operator, to transport civilian or military passengers or cargo or conduct other operations in the Damascus FIR (OSTT), that department, agency, or instrumentality may request the FAA to approve persons described in paragraph (a) of SFAR No. 114, § 91.1609, to conduct such operations.

The requesting department, agency, or instrumentality of the U.S. Government must submit the request for approval to the FAA's Associate Administrator for Aviation Safety in a letter signed by an appropriate senior official of the requesting department, agency, or instrumentality. 3 The FAA will not accept or consider requests for approval from anyone other than the requesting department, agency, or instrumentality. In addition, the senior official signing the letter requesting FAA approval on behalf of the requesting department, agency, or instrumentality must be sufficiently positioned within the organization to demonstrate that the senior leadership of the requesting department, agency, or instrumentality supports the request for approval and is committed to taking all necessary steps to minimize operational risks to the proposed flights. The senior official must also be in a position to: (1) Attest to the accuracy of all representations made to the FAA in the request for approval, and (2) ensure that any support from the requesting U.S. Government department, agency, or instrumentality described in the request for approval is in fact brought to bear and is maintained over time. Unless justified by exigent circumstances, requests for approval must be submitted to the FAA no less than 30 calendar days before the date on which the requesting department, agency, or instrumentality wishes the proposed operation(s) to commence.

The requestor must send the request to the Associate Administrator for Aviation Safety, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591. Electronic submissions are acceptable and the requesting entity may request that the FAA notify it electronically as to whether the FAA grants the approval request. If a requestor wishes to make an electronic submission to the FAA, the requestor should contact the Air Transportation Division, Flight Standards Service, at (202) 267-8166, to obtain the appropriate email address. A single letter may request approval from the FAA for multiple persons described in SFAR No. 114, § 91.1609, or for multiple flight operations. To the extent known, the letter must identify the person(s) the requester expects the SFAR to cover on whose behalf the U.S. Government department, agency, or instrumentality seeks FAA approval, and it must describe—

• The proposed operation(s), including the nature of the mission being supported;

• The service that the person(s) covered by the SFAR will provide;

• To the extent known, the specific locations in the Damascus FIR (OSTT) where the proposed operation(s) will occur, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the Damascus FIR (OSTT) and the airports, airfields, or landing zones at which the aircraft will take off and land; and

• The method by which the department, agency, or instrumentality will provide, or how the operator will otherwise obtain, current threat information and an explanation of how the operator will integrate this information into all phases of the proposed operations ( i.e., the pre-mission planning and briefing, in-flight, and post-flight phases).

The request for approval must also include a list of operators with whom the U.S. Government department, agency, or instrumentality requesting FAA approval has a current contract(s), grant(s), or cooperative agreement(s) (or its prime contractor has a subcontract(s)) for specific flight operations in the Damascus FIR (OSTT). The requestor may identify additional operators to the FAA at any time after the FAA issues its approval. Neither the operators listed in the original request, nor any operators the requestor subsequently seeks to add to the approval, may commence operations under the approval until the FAA issues them an Operations Specification (OpSpec) or Letter of Authorization (LOA), as appropriate, for operations in the Damascus FIR (OSTT). The approval conditions discussed below apply to all operators, whether included in the original list or subsequently added to the approval. Requestors should send updated lists to the email address they obtain from the Air Transportation Division by calling (202) 267-8166.

If an approval request includes classified information, requestors may contact Aviation Safety Inspector Stephen Moates for instructions on submitting it to the FAA. His contact information appears in the FOR FURTHER INFORMATION CONTACT section of this final rule.

FAA approval of an operation under SFAR No. 114, § 91.1609, does not relieve persons subject to this SFAR of the responsibility to comply with all other applicable FAA rules and regulations. Operators of civil aircraft must comply with the conditions of their certificates, OpSpecs, and LOAs, as applicable. Operators must also comply with all rules and regulations of other U.S. Government departments or agencies that may apply to the proposed operation(s), including, but not limited to, regulations issued by the Transportation Security Administration.

If the FAA approves the request, the FAA's Aviation Safety organization will send an approval letter to the requesting department, agency, or instrumentality informing it that the FAA's approval is subject to all of the following conditions:

(1) The approval will stipulate those procedures and conditions that limit, to the greatest degree possible, the risk to the operator, while still allowing the operator to achieve its operational objectives.

(2) Before any approval takes effect, the operator must submit to the FAA:

(a) A written release of the U.S. Government from all damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising out of or related to the approved operations in the Damascus FIR (OSTT); and

(b) The operator's written agreement to indemnify the U.S. Government with respect to any and all third-party damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising from or related to the approved operations in the Damascus FIR (OSTT).

(3) Other conditions the FAA may specify, including those the FAA might impose in OpSpecs or LOAs, as applicable.

The release and agreement to indemnify do not preclude an operator from raising a claim under an applicable non-premium war risk insurance policy the FAA issues under chapter 443 of title 49, U.S. Code.

If the FAA approves the proposed operation(s), the FAA will issue an OpSpec or LOA, as applicable, to the operator(s) identified in the original request authorizing them to conduct the approved operation(s). In addition, the FAA will notify the U.S. Government department, agency, or instrumentality that requested the FAA's approval of any additional conditions beyond those contained in the approval letter.

Any operations not conducted under an approval the FAA issues through the approval process set forth previously may only occur in accordance with an exemption from SFAR No. 114, § 91.1609. A petition for exemption must comply with 14 CFR part 11. The FAA will consider whether exceptional circumstances exist beyond those the approval process described in the previous section contemplates. To determine whether a petition for exemption from the prohibition this SFAR establishes fulfills the standard of 14 CFR 11.81, the FAA consistently finds necessary the following information:

• The proposed operation(s), including the nature of the operation;

• The service the person(s) covered by the SFAR will provide;

• The specific locations in the Damascus FIR (OSTT) where the proposed operation(s) will occur, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the Damascus FIR (OSTT) and the airports, airfields, or landing zones at which the aircraft will take off and land;

• The method by which the operator will obtain current threat information and an explanation of how the operator will integrate this information into all phases of its proposed operations ( i.e., the pre-mission planning and briefing, in-flight, and post-flight phases); and

• The plans and procedures the operator will use to minimize the risks, identified in this preamble, to the proposed operations, to establish that granting the exemption would not adversely affect safety or would provide a level of safety at least equal to that provided by this SFAR. The FAA has found comprehensive, organized plans and procedures of this nature to be helpful in facilitating the agency's safety evaluation of petitions for exemption from flight prohibition SFARs.

The FAA includes, as a condition of each such exemption it issues, a release and agreement to indemnify, as described previously.

The FAA recognizes that, with the support of the U.S. Government, the governments of other countries could plan operations SFAR No. 114, § 91.1609, affects. While the FAA will not permit these operations through the approval process, the FAA will consider exemption requests for such operations on an expedited basis and in accordance with the order of preference set forth in paragraph (c) of SFAR No. 114, § 91.1609.

If a petition for exemption includes security-sensitive or proprietary information, requestors may contact Aviation Safety Inspector Stephen Moates for instructions on submitting it to the FAA. His contact information appears in the FOR FURTHER INFORMATION CONTACT section of this final rule.

Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act of 1979 (Pub. L. 96-39), as codified in 19 U.S.C. Chapter 13, prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, the FAA has determined this final rule has benefits that justify its costs. This rule is a significant regulatory action, as defined in section 3(f) of Executive Order 12866, as it raises novel policy issues contemplated under that Executive Order. This rule also complies with the requirements of the Department of Transportation's administrative rule on rulemaking at 49 CFR part 5. As 5 U.S.C. 553 does not require notice and comment for this final rule, 5 U.S.C. 603 and 604 do not require regulatory flexibility analyses regarding impacts on small entities. This rule will not create unnecessary obstacles to the foreign commerce of the United States. This rule will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector, by exceeding the threshold identified previously.

This action extends the expiration date of the SFAR prohibiting certain flight operations in the Damascus FIR (OSTT) for an additional three years due to the significant, continuing hazards to U.S. civil aviation detailed in the preamble of this final rule. U.S. Government departments, agencies, and instrumentalities may take advantage of the approval process on behalf of U.S. operators and airmen with whom they have a contract, grant, or cooperative agreement, or with whom their prime contractor has a subcontract. U.S. operators and airmen who seek to conduct operations in the Damascus FIR (OSTT) without any of the foregoing types of arrangements with the U.S. Government may petition for exemption from this rule.

The FAA acknowledges this flight prohibition might result in additional costs to some U.S. operators, such as increased fuel costs and other operational-related costs. However, the FAA expects the benefits of this action exceed the costs because it will result in the avoidance of risks of fatalities, injuries, and property damage that could occur if a U.S. operator's aircraft were shot down (or otherwise damaged) while operating in the Damascus FIR (OSTT).

The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever 5 U.S.C. 553 or any other law requires an agency to publish a general notice of proposed rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553, after that section or any other law requires publication of a general notice of proposed rulemaking. The FAA concludes good cause exists to forgo notice and comment and to not delay the effective date for this rule. As 5 U.S.C. 553 does not require notice and comment in this situation, 5 U.S.C. 603 and 604 similarly do not require regulatory flexibility analyses.

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and determined that its purpose is to protect the safety of U.S. civil aviation from risks to their operations in the Damascus FIR (OSTT), a location outside the U.S. Therefore, the rule complies with the Trade Agreements Act of 1979.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million.

This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires the FAA to consider the impact of paperwork and other information collection burdens it imposes on the public. The FAA has determined no new requirement for information collection is associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, the FAA's policy is to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined no ICAO Standards and Recommended Practices correspond to this regulation. The FAA finds this action is fully consistent with the obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA exercises its duties consistently with the obligations of the United States under international agreements.

While the FAA's flight prohibition does not apply to foreign air carriers, DOT codeshare authorizations prohibit foreign air carriers from carrying a U.S. codeshare partner's code on a flight segment that operates in airspace for which the FAA has issued a flight prohibition for U.S. civil aviation. In addition, foreign air carriers and other foreign operators may choose to avoid, or be advised or directed by their civil aviation authorities to avoid, airspace for which the FAA has issued a flight prohibition for U.S. civil aviation.

The FAA has analyzed this action under Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, and DOT Order 5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be informed of environmental considerations and take those considerations into account when making decisions on major Federal actions that could have environmental impacts anywhere beyond the borders of the United States. The FAA has determined this action is exempt pursuant to Section 2-5(a)(i) of Executive Order 12114 because it does not have the potential for a significant effect on the environment outside the United States.

In accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 8-6(c), FAA has prepared a memorandum for the record stating the reason(s) for this determination and has placed it in the docket for this rulemaking.

The FAA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. The Agency has determined this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, this rule will not have federalism implications.

The FAA analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined it is not a “significant energy action” under the executive order and will not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609 and has determined that this action will have no effect on international regulatory cooperation.

This rule is not subject to the requirements of Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, because the FAA is issuing it with respect to a national security function of the United States.

An electronic copy of a rulemaking document may be obtained from the internet by—

• Searching the docket for this rulemaking at https://www.regulations.gov;

• Visiting the FAA's Regulations and Policies web page at https://www.faa.gov/regulations_policies; or

• Accessing the Government Publishing Office's website at https://www.govinfo.gov.

Copies may also be obtained by sending a request (identified by amendment or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.

Except for classified material, all documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the internet through the docket for this rulemaking.

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the persons listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations, as follows:

Under the DPA, upon finding that conditions exist which may pose a direct threat to the national defense or its preparedness programs, the President or his designee may consult with representatives of industry, business, financing, agriculture, labor, and other interests in order to provide for the making by such persons, with the approval of the President or his designee, of voluntary agreements and plans of action to help provide for the national defense. 50 U.S.C. 4558(c)(1)-(2). The DPA requires that each proposed voluntary agreement or proposed plan of action be reviewed by the Attorney General prior to becoming effective. If, after consulting with the Chairman of the Federal Trade Commission, the Attorney General finds that the purposes of 50 U.S.C. 4558(c) “may not reasonably be achieved through a voluntary agreement or plan of action having less anticompetitive effects or without any voluntary agreement or plan of action,” the agreement or plan may become effective. 50 U.S.C. 4558(f)(1)(B).

The DPA therefore requires action from the Attorney General from the standpoint of the antitrust laws. As a result, the Assistant Attorney General in charge of the Antitrust Division is already assigned the preparation of the Attorney General's approval or disapproval whenever such action is required by the DPA from the standpoint of the antitrust laws. 28 CFR 0.40(e). Conditions that may pose a direct threat to the national defense or its preparedness programs are inherently dynamic, and it is of utmost importance to be able to respond rapidly to such conditions. Therefore, the Attorney General has made the determination to promulgate a regulation unambiguously delegating to the Assistant Attorney General in charge of the Antitrust Division his authority to perform all functions that the Attorney General is required or authorized to perform by section 708 of the DPA (50 U.S.C. 4558).

This rule is a rule of agency organization and relates to a matter relating to agency management and is therefore exempt from the requirements of prior notice and comment and a 30-day delay in the effective date. See 5 U.S.C. 553(a)(2), 553(b)(A), 553(d).

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities because it pertains to personnel and administrative matters affecting the Department. Further, a Regulatory Flexibility Analysis is not required to be prepared for this final rule because the Department was not required to publish a general notice of proposed rulemaking for this matter. 5 U.S.C. 604(a).

This action has been drafted and reviewed in accordance with section 1(b) of Executive Order 12866, “Regulatory Planning and Review,” and section 1(b) of Executive Order 13563, “Improving Regulation and Regulatory Review.” This rule is limited to agency organization, management, and personnel as described in section 3(d)(3) of Executive Order 12866 and, therefore, is not a “regulation” or “rule” as defined by the order. Accordingly, this action has not been reviewed by the Office of Management and Budget.

This rule is not subject to the requirements of Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” because it is not a significant regulatory action under Executive Order 12866, and because it is “related to agency organization, management, or personnel” and thus not a “regulation” or “rule” under section 4(b) of Executive Order 13771.

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

This rule was drafted in accordance with the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year (adjusted annually for inflation), and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act, 5 U.S.C. 804(3)(B), (C). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Accordingly, by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510, part 0 of title 28 of the Code of Federal Regulations is amended as follows:

The Federal Death Penalty Act provides that a capital sentence in a Federal case is to be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” 18 U.S.C. 3596(a). However, if the “law of the State in which the sentence is imposed” “does not provide for implementation of a sentence of death,” then the statute directs the court to designate another State whose law does “provide for the implementation of a sentence of death, and the sentence shall be implemented in the latter State in the manner prescribed by such law.” Id.

The current execution regulations, promulgated in a final rule published on January 19, 1993, Implementation of Death Sentences in Federal Cases, 58 FR 4898 (Jan. 19, 1993), and codified at 28 CFR part 26, authorize execution only through lethal injection, except to the extent a court orders otherwise. Specifically, they direct the attorney for the government to “file with the sentencing court a proposed Judgment and Order” stating that “[t]he sentence shall be executed by intravenous injection of a lethal substance or substances in a quantity sufficient to cause death.” 28 CFR 26.2(a). The regulations further state that, except to the extent a court orders otherwise, a sentence of death shall be executed on a date and at a time and at a “federal penal or correctional institution designated by the Director of the Federal Bureau of Prisons . . . [b]y intravenous injection of a lethal substance or substances in a quantity sufficient to cause death.” Id. § 26.3(a).

Execution by lethal injection is authorized in all States that have capital punishment. See In re Fed. Bureau of Prisons' Execution Protocol Cases, 955 F.3d 106, 114 (D.C. Cir. 2020) (Katsas, J., concurring) (“Every state that authorizes capital punishment uses lethal injection `as the exclusive or primary means of implementing the death penalty.' ” (quoting Baze v. Rees, 553 U.S. 35, 42 (2008) (plurality opinion))). However, some States also authorize execution by other means in certain circumstances. See, e.g., Ala. Code 15-18-82.1(a) (by lethal injection but electrocution or nitrogen hypoxia may be elected); Miss. Code Ann. 99-19-51(1)-(4) (by lethal injection but by nitrogen hypoxia, electrocution, or firing squad if other methods are held unconstitutional or otherwise unavailable); Okla. Stat. tit. 22, sec. 1014 (same); Ark. Code Ann. 5-4-617( l ) (by electrocution if execution by lethal injection is invalidated); Fla. Stat. 922.105 (by lethal injection but electrocution may be elected); see also Bucklew v. Precythe, 139 S. Ct. 1112, 1142 (2019) (Breyer, J., dissenting) (noting States permitting use of nitrogen hypoxia); Glossip v. Gross, 135 S. Ct. 2726, 2796 (2015) (Sotomayor, J., dissenting) (noting State using firing squad). One State has recently used electrocution. See Media Advisory, Tenn. Dep't of Corr. (Dec. 5, 2019, 7:27 p.m.), https://www.tn.gov/correction/news/2019/12/5/media-advisory.html. Some States also provide by law that a prisoner may choose the manner of execution from among several options, in at least some circumstances. See Ala. Code 15-18-82.1(b); Ariz. Rev. Stat. Ann. 13-757(B); Cal. Penal Code 3604; Fla. Stat. 922.105; Ky. Rev. Stat. Ann. 431.220(1)(b); S.C. Code Ann. 24-3-530(A); Tenn. Code Ann. 40-23-114(b); Va. Code Ann. 53.1-234. States may authorize execution by other means in the future, and it is possible that a State in the future will provide that a manner other than lethal injection is the only authorized means of execution. Section 3596(a) would then require execution in that manner for a Federal offender sentenced in the State.

The current regulations also provide that a Federal execution shall occur “[a]t a federal penal or correctional institution designated by the Director of the Federal Bureau of Prisons.” 28 CFR 26.3(a)(2). Section 3597(a), however, provides that State and local facilities and personnel may be used in carrying out Federal executions. As discussed above, future situations may arise in which it is necessary to carry out an execution by some means other than lethal injection. However, the Federal Bureau of Prisons (“BOP”) facility for carrying out executions, located at the Terre Haute correctional complex in Indiana, is equipped for carrying out executions only by lethal injection. If cases arise in which the Department is required to execute a Federal inmate according to the law of a State that uses a method other than lethal injection, the most expedient means of carrying out the execution may be to arrange for State assistance.

The Department published a notice of proposed rulemaking (“NPRM”) on August 5, 2020, Manner of Federal Executions, 86 FR 47324 (Aug. 5, 2020), proposing amendments to 28 CFR part 26 intended to provide the Federal Government with greater flexibility to conduct executions in any manner authorized by section 3596(a) and to implement the statutory authorization in section 3597(a) that provides that State and local facilities and personnel may be used in carrying out Federal executions. The proposed rule also proposed various amendments to other provisions of the regulations, as described in detail below, that would eliminate redundancies, such as eliminating § 26.2 regarding filing of a judgment and order with the sentencing court, and that would update the regulations for current practice by the Department and its components, such as granting authority for decision-making about certain matters to the Director of BOP or his designee, rather than to the Warden of the institution where the execution is to be conducted.

By the end of the 30-day comment period on September 4, 2020, the Department received 23 comments that were responsive to the proposed rule. Following are the Department's responses to those comments.

After evaluating the 23 public comments, the Department has determined that no major changes to the proposed rule are necessary. As described in the next section, the majority of public comments reflected general opposition to the death penalty. Although the Department is mindful of those views, no changes are necessary in response to those comments, as the death penalty is expressly authorized by Federal statute and has been repeatedly upheld by the Supreme Court as constitutional. See Bucklew v. Precythe, 139 S. Ct. 1112, 1122 (2019) (“The Constitution allows capital punishment.”). Other comments opposed various provisions in the rule as unnecessary, unauthorized by the statute, or contrary to the statute. The Department disagrees with those assertions for the reasons stated below and declines to change the proposed rule in response to them. Other comments suggested amendments to the existing regulations that were not proposed by the Department and that the Department has declined to adopt. Other comments raised issues that are more properly addressed in the BOP execution protocol (including its manual and addendum).

In response to three comments, Department has amended the proposed rule as follows: First, the final rule corrects a scrivener's error in the NPRM that deleted “Except to the extent a court orders otherwise,” from the first line of § 26.4; second, it adds, in § 26.4(a), a notice to the prisoner of the method of execution to be employed or, where applicable, of the prisoner's option to choose from among multiple methods; and third, it clarifies in § 26.4(b) that the designee of the BOP Director can allow other persons to visit the inmate in the seven days prior to the date of execution.

Although no commenter objected to a proposed amendment in § 26.3(a)(3) changing the officials responsible for selection of personnel assisting the execution from the United States Marshal and the Warden of the institution to solely the Director of BOP or his designee, the Department has determined upon further reflection that that revision would not be efficient for administrative and management purposes. Instead, the final rule amends the provision to provide that personnel will be selected by the Director of the United States Marshals Service and the Director of BOP or their designees.

As noted above, a large majority of comments did not address specific proposed changes to the regulations. Rather, they expressed opposition to the use of capital punishment in general. Furthermore, many of those comments misunderstood the nature of the proposed amendments as designed to expedite executions or expand the use of capital punishment. As described above, the proposed amendments are not designed to achieve those objectives.

One comment by counsel for Federal death row inmates, as well as several other comments, had specific comments on the edits proposed in the NPRM. Following are responses to those comments.

The proposed rule proposed to amend part 26 to provide, in 28 CFR 26.3(a)(4), that Federal executions are to be carried out by lethal injection “or by any other manner prescribed by the law of the State in which the sentence was imposed or which has been designated by a court in accordance with 18 U.S.C. 3596(a).” The amendment would ensure that the Department would be authorized to use the widest range of manners of execution permitted by law. Two commenters opposed this amendment.

One commenter argued that the rule should specify the guidelines that the Department would follow to ensure the humane implementation of a sentence and gave several examples of procedures for lethal injection that the commenter argued should be delineated in the regulations, as well as how a prisoner's medical conditions would be accommodated. A second commenter argued that the language of the preamble of the proposed rule inappropriately referred to authorizing any method under Federal law while the statute refers to requiring use of any method authorized by State law.

The Department declines to make changes to the proposed rule in response to these comments.

The issues raised by the first commenter included detailed matters about lethal injection, such as the nature of drugs used, placement and other procedures for use of the IV for provision of the drugs, and use of lethal injection in inmates with certain medical conditions. These are matters that the current regulations do not address and that the proposed rule did not propose to address. To the extent that the comment is arguing that issues it raises should nevertheless be addressed in the regulations, the Department considers these matters properly addressed in the BOP execution protocol, which includes more granular details regarding execution procedures.

The Department notes that this comment included a recommendation for consideration of alternative methods of execution, such as the firing squad, for prisoners with medical conditions for whom the commenter contended lethal injection would be inappropriate. The Department takes this comment as consistent with the overall purpose of the proposed rule to provide for methods of execution besides lethal injection, where they are prescribed by the relevant State law, although the specific application of any method to a particular prisoner is beyond the scope of this rulemaking.

This commenter also recommended that the notice of the date of execution provided to a prisoner also should state the method of execution to be used. The Department agrees with this recommendation. As the final rule provides for the possibility that methods other than lethal injection may be employed by the Department, it is reasonable that a prisoner be provided with notice of the method to implement that prisoner's sentence. In addition, as noted above, some State laws provide the prisoner the option to choose the method of execution.

For these reasons, in § 26.4(a), the final rule inserts “the manner of execution and” before “date designated for execution,” deletes “date of” after “previously scheduled and noticed,” and adds a new sentence at the end of the paragraph to read as follows: “If applicable law provides that the prisoner may choose among multiple manners of execution, the Director or his designee shall notify the prisoner of that option.”

The second commenter misunderstands the proposed rule. The commenter is correct that the Federal Death Penalty Act refers to the use of the method of execution “prescribed by the law of the State in which the sentence was imposed.” However, the preamble of the proposed rule properly referred to “federal” law, because it is the Federal Death Penalty Act that provides the authority for the rule. In any event, the text of the proposed rule uses exactly the language of the statute, namely, “by any other manner prescribed by the law of the State in which the sentence was imposed,” as the commenter apparently was concerned that it should do.

The NPRM proposed to permit use of State facilities, in accordance with the authorization in section 3597(a), by striking “federal” before “penal or correctional institution” in § 26.3(a)(2), and replacing “[b]y” with “[u]nder the supervision of” a United States Marshal in § 26.3(a)(3). This change also is addressed in the regulatory certification with regard to Executive Order 13132 on federalism, which stated that there were no federalism implications under that order.

Several commenters objected to these changes. One commenter argued that it was “implausible” that the change would not have an impact on States and that the federalism implications were “self-evident.” In addition, this commenter alleged that the provision could violate the constitutional “anti-commandeering” principle. A second commenter opposed the provision on unclear grounds but possibly because the commenter believed that State officials would not be able to implement a Federal sentence without facing criminal liability for doing so. A third commenter stated that rather than using State facilities, the Department should expand the capabilities of the Terre Haute facility or other facilities to be able to implement executions through means other than lethal injection.

The Department declines to make changes to the proposed rule in response to the comments. Each of the commenters misunderstands the need for this change and the nature of the change. First, as noted, the change does nothing more than implement an existing statutory provision, which expressly provides the Federal Government with the option to contract with willing States to use their facilities and personnel in Federal executions. The policy implications or trade-offs, such as whether to expand Federal capabilities or potential liability for State workers, are not at issue in this rulemaking, which simply ensures that the Department is able to use an option expressly provided by statute.

Second, as to the federalism implications, the Department reiterates that the rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government as laid out in Executive Order 13132. The commenter misunderstands the purpose of Executive Order 13132. It is intended to limit Federal power to make national standards in policy and legislation that would preempt States from developing their own, and to prevent imposition of “unfunded mandates” on States by the Federal Government. The amendments at issue here do not implicate these concerns, nor do they implicate the anti-commandeering principle. The Federal Government would be implementing its own policy by an agreement with a willing State government and would cover any costs to the State, as expressly provided by section 3597(a). It is notable that Federal executions routinely occurred in State facilities in the 20th century, and that practice does not appear to have raised any federalism concerns. See Execution Protocol Cases, 955 F.3d at 137 (Rao, J., concurring). It also is significant that no State government—that is, none of the affected entities—commented in opposition to the proposed regulation.

For these reasons, the final rule makes no changes to the proposed rule's amendments to implement the statutory authority to use and pay for State facilities.

The NPRM proposed to add a new provision, § 26.1(b), that would authorize the Attorney General to vary from the regulation to the extent necessary to comply with applicable law. One commenter commented that the NPRM did not provide sufficient explanation of why the addition of this paragraph was necessary or identify the legal basis for that paragraph. In addition, the commenter claimed that the new paragraph would provide a catch-all provision allowing the Attorney General to ignore or change regulations at will with no further process, and ad hoc, even in specific cases for impermissible reasons, at the last moment, and without notice. The commenter claimed that this would be a conflict of interest as well, because the Attorney General could change the regulations that apply to the individual his agency is responsible for prosecuting and executing. The comment identified these alleged concerns but did not suggest specific changes to the proposed rule.

The Department declines to make changes to the proposed rule in response to the comment. This provision was added to account for the statutory requirement that the Attorney General implement an execution “in the manner prescribed by the law of the State in which the sentence is imposed.” 18 U.S.C. 3596(a). The new paragraph is therefore intended only to ensure that the Attorney General can comply with State statutes that contradict the regulations. It is possible that at some point in the future a State statute that applies to the execution of a Federal inmate may differ, even in a minor respect, from the regulations. The specifics of such a difference are not currently foreseeable, however. Hence, in order to allow the execution to proceed without undue delay, this provision authorizes the Attorney General to account for that difference. The language of new § 26.1(b) itself clearly indicates that this is the intended purpose. It states, emphasis added, “ Where applicable law conflicts with any provision of this part, the Attorney General may vary from that provision to the extent necessary to comply with the applicable law .” In fact, rather than providing the Attorney General with discretion to act arbitrarily or ad hoc, this provision limits the Attorney General's ability to vary from the regulation only in circumstances where controlling law requires him to do so and only to the extent necessary.

For these reasons, the final rule adopts new § 26.1(b) as proposed.

The NPRM also proposed to add a new provision, § 26.1(c), that would reiterate the Attorney General's authority to manage the Department's execution process, by stating that any task or duty assigned to any officer or employee of the Department of Justice under part 26 may be delegated by the Attorney General to any other officer or employee of the Department of Justice. Two commenters opposed this provision, stating that this change would allow the Attorney General to change regulations without notice to the public, rewrite the statute in violation of Congress's specific designation of certain officials—particularly a United States Marshal—to carry out certain duties, and violate the “statutory scheme” for executions in which the U.S. Marshals Service is given responsibility and accountability for implementation.

The Department declines to make changes to the proposed rule in response to the comments. As the NPRM explained, the proposed new paragraph is in line with the Attorney General's well-established authority to manage the Department. The commenters' arguments to the contrary are unavailing. First, one commenter's claim that the Attorney General could change regulations without notice is not relevant, as this provision itself is notice to the public that the Attorney General may re-designate responsibilities to other officials. Second, two commenters argued that the Attorney General lacks authority to reassign responsibilities that Congress has vested in other components by default. These comments ignore the plain language of the relevant sections of title 28 of the U.S. Code: “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General,” 28 U.S.C. 509; “The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General,” 28 U.S.C. 510. One commenter also argued that the provision would violate the “statutory scheme” for executions because the Director of the U.S. Marshals Service is accountable to Congress, as a Senate-confirmed officer. However, the U.S. Marshals Service is “a bureau within the Department of Justice under the authority and direction of the Attorney General,” 28 U.S.C. 561(a), and, as the provisions of title 28 noted above establish, the ultimate accountability for all actions of the Department and its officials lies with the Attorney General, who is also a Senate-confirmed officer. Likewise, the same principle applies to the commenter's arguments that the U.S. Marshals Service is “uniquely suited” to carrying out the law in localities across the country. As a matter of law, the Attorney General, through all the components of the Department of Justice, enforces Federal law in all districts of the Nation. This is true notwithstanding the 26-year-old internal DOJ memo cited by the commenter, Memorandum to U.S. Marshals Service Director Gonzalez et al. from Deborah Westbrook, General Counsel, The “Violent Crime Control and Law Enforcement Act of 1994” (House Report 103-771) (Sept. 9, 1994), which makes the factual determination that the U.S. Marshals Service would be responsible for implementation of death sentences. Finally, the commenter is incorrect that implementing executions “falls squarely within the `primary role and mission' ” of the U.S. Marshals Service of enforcing court orders—and no other component's role and mission. As explained in more detail later in this preamble, although all death sentences are embodied in court orders, the details of implementing a death sentence by the Department of Justice do not depend on a court order alone.

The NPRM proposed removing the content of § 26.2, concerning a proposed Judgment and Order, and reserving it for future use. One commenter commented that the NPRM did not provide sufficient explanation for why the deletion of this section was necessary. In addition, the commenter claimed that deleting this section—and in particular, the requirement that the court's Judgment and Order include a statement that the sentence be executed on a date and at a place designated by the Director of the BOP—runs afoul of a claimed legal principle that BOP's authority to set an execution date is derived solely from the authority of the courts. The commenter further asserted that vesting authority for setting an execution date in BOP would deprive courts of necessary oversight over when and whether death-sentenced inmates had exhausted their judicial remedies.

The Department declines to make changes to the proposed rule in response to the comment. Section 26.2 was promulgated in 1993, requiring prosecutors to submit a proposed Judgment and Order to the court in cases in which the defendant was sentenced to death. The content of the Judgment and Order would include four basic points: (1) The sentence was to be executed by a United States Marshal, (2) by injection of a lethal substance, (3) on a date and at a place designated by BOP, and (4) the prisoner under sentence of death was to be committed to the custody of the Attorney General or his designee for detention pending execution of the sentence. Subsequently, Congress enacted the Federal Death Penalty Act, 18 U.S.C. 3591 et seq. Within that Act, section 3596(a) essentially codified two of these points, leaving out that the execution occur by lethal injection and on a date and at a place designated by BOP. The rule's requirement that the Judgment and Order specify the manner of execution as lethal injection is inconsistent with section 3596(a), which authorizes executions “in the manner prescribed by the law of the State in which the sentence is imposed,” which may not necessarily involve lethal injection. As to the requirement for the Judgment and Order to specify that executions occur on a date and at a place designated by BOP, that provision is also reflected in § 26.3(a)(1) and (2) (“Except to the extent a court orders otherwise, a sentence of death shall be executed: (1) On a date and at a time designated by the Director of the Federal Bureau of Prisons . . . ; (2) At a federal penal or correctional institution designated by the Director of the Federal Bureau of Prisons . . . .”). The provisions of 18 U.S.C. 3596 and 28 CFR 26.3 thus render § 26.2 unnecessary, meriting its removal.

In any event, the commenter's premise that BOP's authority to set an execution date derives solely from the courts is incorrect as a matter of law. See, e.g., LeCroy v. United States, 975 F.3d 1192, 1195-96 (11th Cir. 2020) (recognizing that, while the courts may historically have had some “concurrent” responsibility in setting execution dates, “[t]he Code of Federal Regulations vests the Bureau Director with broad authority and discretion to set execution dates as an initial matter”); United States v. Lee, No. 4:97-cr-00243-LPR-2, 2020 WL 3921174, at *3 (E.D. Ark. July 10, 2020) (expressing skepticism “that the founding generation . . . understood the implementation of a sentence to be of an entirely judicial nature” and noting that “until 1830 courts were all over the place as to whether they would set execution dates themselves or leave it to the Executive Branch”). The Executive Branch's authority to set an execution date, and the Attorney General's codification of that authority in the 1993 regulations, also are consistent with the Executive Branch's constitutional and statutory duties in general. Cf. United States v. Tipton, 90 F.3d 861, 902-03 (4th Cir. 1996) (concluding that “absent directly preempting congressional action, the Attorney General had constitutional and statutory authority to provide by regulation the means for executing death sentences imposed under [the Anti-Drug Abuse Act of 1988],” which preceded the Federal Death Penalty Act). Moreover, even if BOP's authority to set an execution date were derived from the authority of the courts, nothing would compel the court to use the precise “magic words” contained in § 26.2 to effectuate the delegation of its authority to BOP. Lee, 2020 WL 3921174, at *4 (rejecting claim that the only way a court may properly delegate its authority to implement a death sentence is by adopting the content of § 26.2 in an order).

The commenter's concern that removal of § 26.2 would deprive courts of oversight relating to execution dates also is misplaced. Section 26.3(a)'s prefatory language belies this concern, authorizing BOP's Director to set an execution date and time “[e]xcept to the extent a court orders otherwise.” And nothing in the proposed amendment of the regulations, including the deletion of § 26.2, alters the courts' power to set aside or postpone execution dates pursuant to their authority to issue stays and injunctions. See LeCroy, 975 F.3d at 1196 (“the regulations . . . sensibly recognize—as they must—a court's authority to stay or enjoin a scheduled execution”).

For these reasons, the final rule removes § 26.2 as proposed.

Section 26.3(a)(1) addresses the date and time of an execution and specifies that if the date designated for execution passes by reason of a stay of execution, then a new date shall be designated promptly by the Director of the Federal Bureau of Prisons when the stay is lifted. The NPRM did not propose any changes to this paragraph. Nonetheless, several commenters sua sponte suggested alterations to this provision, contending that: The BOP Director lacks authority to designate the date and time of an execution; the Department should further define the phrase “when the stay is lifted” and the term “promptly”; and the regulations should set out procedures to follow in the event of a stay.

The Department declines to make changes to the proposed rule in response to the comments. First, the suggested changes are beyond the scope of the current rulemaking, in which the Department did not propose any changes to this portion of the regulations. In any event, as explained above in this preamble, the Attorney General may delegate authority in execution-related matters to the BOP Director. Moreover, as reflected in the current regulations, detailed procedures are better addressed in the Federal execution protocol. The Department also notes that the existing rule (along with § 26.4(a)) appropriately takes into account the possibility that an inmate's or court's last-minute actions may delay an execution past midnight, causing the execution to be performed the day after it had been formally scheduled. The Department may consider the suggestions and proposals made in the comments if it undertakes further changes to the regulations or execution protocol.

For these reasons, the final rule makes no changes to § 26.3(a)(1).

In § 26.3(a)(3), the NPRM proposed clarifying that “qualified” personnel must carry out an execution, regardless of manner. Commenters suggested that “qualified” must be defined with objective criteria.

The Department declines to make changes to the proposed rule in response to the comment. The regulatory requirement that the Department employ “qualified personnel” in an execution is not new; the current language of § 26.3(a)(4) requires that lethal injections “be administered by qualified personnel.” With the expansion of permissible Federal execution methods, moving this phrase from paragraph (a)(4) to paragraph (a)(3) merely ensures that whatever method of execution is employed in light of the relevant State's laws, the personnel implementing that method will be suitably qualified. To the extent that the Department considers it appropriate to set out further details regarding qualifications, it may do so in the Federal execution protocol, as it has done in the addendum to the protocol regarding lethal injection. The Department notes that the relevant qualifications may change depending on the execution method called for by State law, and that to the extent that States change their methods, see supra (discussing expansion of Federal execution methods), entrenching static qualification criteria in regulations would be antithetical to the rulemaking's goal of ensuring that Federal executions may be responsibly carried out in accordance with any State's prescribed method of execution.

The amendments to § 26.3(a)(3) in the NPRM also had the effect of revising the official responsible for selection of personnel assisting the execution from the Marshal and the Warden of the institution to solely the Director of BOP or his designee. No commenter commented on this provision. The Department has determined that that revision would not be efficient for administrative and management purposes, however. Instead, the final rule amends the provision to provide that personnel will be selected by the Director of the U.S. Marshals Service and the Director of BOP or their designees.

For these reasons, the final rule revises § 26.3(a)(3) to provide that the sentence of death be executed under the supervision of a United States Marshal designated by the Director of the United States Marshals Service, assisted by additional qualified personnel who are selected by the Director of the United States Marshals Service and the Director of the Federal Bureau of Prisons, or their designees, and acting at the direction of the Marshal.

In the first line of § 26.4, the proposed rule eliminated the phrase “Except to the extent a court orders otherwise”. One commenter claimed that this change was unexplained, contrary to the original justification for the existing regulation, and would “eliminate judicial oversight over critical aspects of the execution process.”

The Department notes that this change was a scrivener's error that inadvertently appeared in the final text of the NPRM during the process of formatting the operative text of the proposed rule.

For this reason, the final rule re-inserts the phrase “Except to the extent a court orders otherwise,” in the first line of § 26.4.

Section 26.4(a) provides that a prisoner will receive notice of the date designated for execution “at least 20 days in advance, except when the date follows a postponement of fewer than 20 days of a previously scheduled and noticed date of execution, in which case” the prisoner shall be notified “as soon as possible.” The only change proposed to this section in the NPRM was to place responsibility for such notification with the “Director of the Federal Bureau of Prisons or his designee” instead of with the “Warden.”

Commenters provided a number of suggestions unrelated to the proposed change, including arguments that this regulation should: Require notice to counsel; define what constitutes sufficient notice; limit who can be a “designee” for purposes of notice; and limit the Government's ability to continue a noticed execution date. Commenters also criticized the existing regime as limiting prisoners' ability to apply for clemency.

The Department declines to make changes to the proposed rule in response to the comments. These suggestions are beyond the scope of the current rulemaking, which sought only to change the official charged with providing notice of an execution date, not to alter the contours of that notice. In all respects relevant to these comments, the proposed rule is the same as the existing rule. Moreover, as discussed in connection with § 26.3(a)(1), the prompt rescheduling of an execution date may be necessary and appropriate where last-minute litigation requires a delay of execution past midnight of an originally scheduled date. Further, the Department observes that prisoners are free to prepare clemency petitions at any time and, per 28 CFR 1.10(b), to file such petitions as soon as proceedings on their direct appeal and first petition under 28 U.S.C. 2255 have terminated.

Furthermore, commenters' suggestion that 28 CFR 1.10(b) provides prisoners with a right to 30 days to file a clemency petition is incorrect; that provision creates a limitation, not an entitlement, providing that such petitions should be filed “ no later than 30 days after the petitioner has received notification from the Bureau of Prisons of the scheduled date of execution.” (Emphasis added.) Nor does the existing regulation conflict with 28 CFR 1.10(c), which permits prisoners' counsel to request to make an oral presentation to the Office of the Pardon Attorney within the Department. Clemency counsel may still request and make such presentations well before a scheduled execution, even if the prisoner receives the minimum 20-day notice. Indeed, a clemency proceeding may be conducted within 20 days where an impending execution date requires such dispatch.

For these reasons, the final rule adopts new § 26.4(a) as proposed. The Department may consider the suggestions and proposals made in the comments if it undertakes further changes to the regulations or to the execution protocol.

Section 26.4(b) governs prisoner access to other persons in the week before the designated execution date, limiting such access to spiritual advisers, defense attorneys, family members, institution officials, and—upon the approval of the BOP Director—“such other proper persons as the prisoner may request.” The NPRM proposed to clarify that the BOP Director may approve prisoner requests for types of visitors not listed in the regulation, eliminating a reference to the “Warden.” It did not propose any other changes to this provision. Commenters nevertheless suggested a wide range of changes nonresponsive to the proposal, suggesting that the language limiting prisoner visits should be deleted, and that the regulation should be revised to permit attendance by anyone the inmate wants, subject to disapproval by officials only for good cause. Commenters also suggested replacing “defense attorneys” with “members of defense team,” adding “all” before “members of his family,” and eliminating “only” before the list of permitted visitors in the week before the execution. Some commenters even suggested removing all “restrict[ions on] the type of visitors” other than that they “pass the security clearances” at the facility.

The Department declines to make changes to the proposed rule in response to the comments. The NPRM did not propose substantive changes to the categories of persons to whom a prisoner may have access in the week before his execution date, and the comments are thus beyond the scope of the present rulemaking. The Department may consider the suggestions and proposals made in the comments if it undertakes further changes to the regulations or to the execution protocol.

Even were these comments responsive to proposed changes to the rules, the Department notes that to the extent that commenters desire a regulation creating a prisoner entitlement to unlimited types or numbers of visitors, their proposals are inconsistent with the need to limit visiting when necessary to ensure the security and good order of the institution and consideration of institution resources. The existing rule strikes an appropriate balance between providing a prisoner with access to spiritual, legal, and familial support, while maintaining security and conserving resources. The existing rule also already provides a mechanism to permit additional visitors identified by commenters (such as friends or paralegals working with a legal defense team), where BOP agrees that a prisoner's particular circumstances so warrant and the additions can be made without disrupting that balance or disturbing prison officials' discretion to determine which visitors may enter these high-security facilities, as provided at 28 CFR part 540, subpart D. The Department further notes that additional details, such as those relating to the frequency or method of visitation, are better addressed in the more finely reticulated provisions of BOP policy.

Another comment noted that proposed § 26.4(b), by deleting “Warden,” would authorize only the BOP Director to allow other persons to visit the inmate, which may be impractical. The commenter's observation is correct as to the proposed paragraph and the practical impact of deleting “Warden”; the Department did not add “or his designee” after the reference to the BOP Director in § 26.4(b), when it deleted “Warden,” whereas the reference to the “Warden” throughout the regulation was elsewhere replaced with the BOP Director “or his designee.” For the sake of consistency with the rest of the amendments in the proposed rule, the Department agrees with the commenter that § 26.4(b) should also refer to the Director's designee.

For these reasons, the final rule revises § 26.4(b) as proposed, but also adds “or his designee” after “Director of the Federal Bureau of Prisons.”

Section 26.4(c) governs execution attendance, requiring certain official personnel to attend and imposing limits on the numbers and types of other persons whom the prisoner and officials may designate to attend. The NPRM proposed eliminating references to the “Warden,” thus eliminating the requirement that the Warden attend executions, while maintaining the requirement that the Marshal attend. The only other proposed change was to vest authority for selecting necessary personnel in the Marshal and the BOP Director or his designee, instead of in the Marshal and the Warden. With respect to § 26.4(c)(1), commenters expressed concern that such authority could not be vested in the BOP Director or his designee and sought clarification whether the regulation was intended to require the agreement of both the Marshal and the BOP Director or his designee regarding personnel attendance. With respect to § 26.4(c)(3), although the commenters recognized that its text in the proposed rule remained materially unchanged from the existing regulation, they nonetheless proposed changes to it. Specifically, commenters requested that the regulation be revised to provide prisoners with an entitlement to have persons they specify attend their executions, suggesting that the inability of a prisoner-designated witness to attend should halt or delay an execution, potentially through litigation.

The Department declines to make changes to the proposed rule in response to the comments.

With respect to § 26.4(c)(1), as explained above, the BOP Director, or his designee, may properly be vested with authority in execution-related matters. With respect to the commenter's concerns about potential disagreements between Department officials regarding the personnel necessary to attend the execution, those concerns are unfounded as a practical matter, as each official selects personnel from his own agency to attend and no disagreements about personnel have ever arisen between the Marshal and the Warden under the existing regulation. In any event, the Attorney General has ultimate authority over all relevant officials and functions of the Department.

With respect to § 26.4(c)(3), no changes were proposed to this provision, and the commenters' proposed alterations are outside the scope of this rulemaking. In any event, the commenters erroneously suggest that the existing rule can be read to provide certain potential witnesses an entitlement to attend an execution. The clear language of the regulation specifies that “ [n]ot more than the following numbers of” certain persons designated by the prisoner “shall be present” at an execution. (Emphasis added.) As the Seventh Circuit concluded in interpreting analogous language in § 26.4(c)(4), these terms establish “a limitation on, not an entitlement to, witness attendance.” Peterson v. Barr, 965 F.3d 549, 553 (7th Cir. 2020) (also rejecting the argument that § 26.4(c)(4) required the attendance of witnesses designated by Department officials “before the execution may proceed”). To the extent commenters suggest that the regulation should instead provide an entitlement for specific persons to attend an execution, or even to permit potential witnesses to delay or halt an execution if unable or unwilling to attend, the Department disagrees. Such a regime could permit a prisoner's lawyers or family members to unilaterally halt an execution they oppose by the simple expedient of refusing to attend. The existing rule provides a reasonable avenue for Department officials to permit a prisoner's spiritual advisor, defense attorneys, and friends or relatives to attend without effecting this unprecedented and potentially disruptive change in execution procedures.

For these reasons, the final rule adopts the amendments to § 26.4(c) as proposed, and declines to make any changes to § 26.4(c)(3) as suggested by the commenters.

Current § 26.4(f) provides that “[n]o photographic or other visual or audio recording of the execution shall be permitted.” One commenter objected to this paragraph, stating that defense counsel should be permitted to video- and audio-record executions, and alternatively recommends that the Department also record executions. The commenter states that a recording is necessary to ensure a record for review by courts and by the legislature to adjudge whether the execution method is humane. The commenter states that witness observation through the window of rooms adjacent to the execution room is insufficient.

The Department declines to make changes to the proposed rule in response to the comment. The NPRM did not propose changes to § 26.4(f) and the Department will not change this provision in response to the comment. The Department values preserving the order, privacy, and solemnity of the proceeding more than the speculative value of audio or video recording of the execution. Recording also risks revealing the identities of personnel performing tasks implementing an execution; these persons' identities are not publicly available in order to protect them from harassment and threats. Further, multiple witnesses as identified in § 26.4(c) may attend the execution to observe. The presence of these witnesses accommodates the public interest in reports and eyewitness accounts of the execution.

Accordingly, the Department adopts the rule as proposed without revising § 26.4(f).

The proposed rule proposed to extend to non-DOJ employees (including contractors) existing protections that currently apply to DOJ employees, allowing them not to be in attendance at or to participate in any execution if such attendance or participation is contrary to the moral or religious convictions of the DOJ employee. The new language was almost the exact language on this matter used in 18 U.S.C. 3597(b).

No comments were received on this proposed amendment. Therefore, the final rule adopts the amendments to § 26.5 as proposed.

One commenter commented that attorneys for the prisoner present at the execution should be allowed to have mobile phones or immediate access to a dedicated phone line to communicate outside the facility. The commenter further stated that prisoners should be able to communicate with counsel by phone when in the execution facility.

The Department declines to make changes to the proposed rule in response to the comment. Modifying the rule to detail the manner and means of accommodating phone communication between the prisoner and his attorney, and attorney access to phone communications when inside the execution facility, is unnecessary. The current rule and the NPRM do not address phone calls and visits with attorneys. The BOP execution protocol addresses this subject and permits calls and visits between the prisoner and his attorney including during the final 24 hours leading to the execution. The Department declines to incorporate the details of the manner and means of those communications into the text of the rule.

One commenter objected to all those provisions (§§ 26.3(a)(3), 26.4(a), 26.4(c)(1), 26.4(c)(4), 26.4(e), and 26.4(g)) in which the proposed rule proposed to add “or his designee” after “Director of the Federal Bureau of Prisons” or replace “Warden” with “Director of the Federal Bureau of Prisons or his designee.” The commenter stated that the rule fails to define who can be a designee and fails to set any limits on which designees may make the decision or take the action described in the rule. Thus, the comment recommended that the rule include a definition of “designee” to ensure the person entrusted with the task is competent to do so and is specifically authorized.

The Director of the Federal Bureau of Prisons is authorized to redelegate duties vested in him. See 28 CFR 0.97. The authority to redelegate responsibilities regarding management of Federal correctional institutions and the custody and care of persons held therein allows appropriate flexibility in managing correctional institutions, including activities related to executions. Adopting the recommendation would unnecessarily curtail flexibility. Further, to the extent the Director redelegates the duties vested in him by this rule, such delegations would be better placed in the BOP execution protocol, which sets forth internal policy and procedures for carrying out the execution of a person convicted of a capital offense. Therefore, this subject is not suited to further elaboration in the rule and there is no need to modify the rule as the commenter recommends.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this final rule and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities because it concerns the manner of implementing Federal death sentences on individuals convicted of capital offenses.

This final rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), “The Principles of Regulation,” and Executive Order 13563, “Improving Regulation and Regulatory Review.” The Office of Information and Regulatory Affairs has determined that the rule is a “significant regulatory action” under Executive Order 12866, section 3(f).

In the proposed rule, the Department stated that if finalized, the rule could entail financial costs if, at some point in the future, a prisoner is to be executed by a manner other than lethal injection. The Department would then either have to provide its own system for an execution by a manner other than lethal injection or pay for the use of State or local facilities and personnel to perform the execution. In such a circumstance, the cost would likely be the development of Federal capabilities to implement such a sentence or payment for the use of State or local facilities and personnel. No further information either in support of this analysis or in contradiction of it was received during the public comment period. The Department has therefore not changed its analysis of the impact of the rule.

This final rule is not a regulatory action for purposes of Executive Order 13771.

This final rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Section 3597 of title 18 provides that the Federal Government “may use appropriate State or local facilities for the purpose [of implementing a sentence of death], may use the services of an appropriate State or local official or of a person such an official employs for the purpose, and shall pay the costs thereof.” The statutory authorization and the rule to implement it are directed at the Federal Government. Neither the statute nor the final rule imposes any requirements for action or costs on States. Any actions using the services of State or local governments would be done by agreement, and with the Federal Government paying the costs thereof. As noted above, some commenters opposed the rule on federalism grounds, but those commenters misunderstood the requirements of Executive Order 13132 and the impact of the rule. Therefore, in accordance with Executive Order 13132, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment.

This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

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

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

Accordingly, for the reasons stated in the preamble, part 26 of chapter I of title 28 of the Code of Federal Regulations is amended as follows:

Elsewhere in this issue of the Federal Register , the Agency has announced a new system of records, NLRB-34, NLRB iTrak and Banned Entry List, pursuant to the Privacy Act of 1974, 5 U.S.C. 552a.

Pursuant to subsections (k)(1), (2), and (5) of the Privacy Act, and for the reasons set forth below, the Board includes within 29 CFR 102.119 additional paragraphs (q) and (r), exempting portions of the amended system of records (NLRB-34) from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) of the Privacy Act.

Subsection (k)(1) of the Privacy Act authorizes the head of an agency to exempt a system of records from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) of the Privacy Act (5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), (f)) (hereinafter, “the applicable subsections”) if records are properly classified pursuant to an Executive order, within the meaning of section 552(b)(1) of the Freedom of Information Act.

Subsections (k)(2) and (5) of the Privacy Act, in combination, authorize the head of an agency to exempt a system of records from the applicable subsections if records are created or maintained for the purpose of law enforcement (other than material within the scope of subsection (j)(2) of the Privacy Act), as well as determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. As indicated in the Agency's accompanying Privacy Act system of records notice issuing NLRB-34, this system contains information compiled by the Agency in the course of carrying out its security responsibilities.

The requirements of the applicable subsections, if applied to the system of records NLRB-34, would substantially compromise the ability of the Agency's Security Branch staff to effectively conduct investigations concerning the suitability, eligibility, and fitness for service of applicants for Federal employment and contract positions at the Agency, in addition to determining the appropriate level of access to the Agency's facilities. For instance, the disclosure requirements as set forth in the provisions for notice, access, amendment, review, and accountings could enable subject individuals to take action to jeopardize the physical safety or anonymity of confidential sources used during investigatory proceedings. Additionally, the disclosure of information gathered during a security investigation may unreasonably weaken the interests of protecting properly classified information and the objectivity of certain examination materials.

This rule relates to individuals rather than small business entities. Accordingly, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, this rule will not have a significant impact on a substantial number of small business entities.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the Agency has determined that this rule would not impose new recordkeeping, application, reporting, or other types of information collection requirements on the public.

The rule 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 levels of government. Therefore, it is determined that this rule does not have federalism implications under Executive Order 13132.

In accordance with Executive Order 12866, it has been determined that this rule is not a “significant regulatory action,” and therefore does not require a Regulatory Impact Analysis.

For the reasons stated in the preamble, the NLRB amends 29 CFR part 102 as follows:

The Coast Guard will enforce a special local regulation for the Palm Beach Holiday Boat Parade published in 33 CFR 100.702, Table to § 100.702, Line 9, on December 5, 2020 from 5:30 p.m. through 8:30 p.m. This action is being taken to provide for the safety and security of certain navigable waters along the Intracoastal Waterway during this one-day event. Our regulation for marine events within the Seventh Coast Guard District, § 100.702, specifies the location of the special local regulation for the Palm Beach Holiday Boat Parade, which encompasses a moving buffer zone of 50 yards around the parade as it travels north along the Intracoastal Waterway in Palm Beach, FL. Only event sponsor designated participants and official patrol vessels will be allowed to enter the regulated area. Spectators may contact the Coast Guard Patrol Commander to request permission to pass through the regulated area. If permission is granted, spectators must pass directly through the regulated area at a safe speed without loitering.

In addition to this notice of enforcement in the Federal Register , the Coast Guard will inform the public through Local Notice to Mariners and marine information broadcasts at least 24 hours in advance of the enforcement of the special local regulation.

On November 13, 2020, at 85 FR 72569, VA published a rulemaking establishing in regulation its processes and procedures for issuing guidance documents. This final rulemaking will implement the mandates of Executive Order 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents.

In FR Doc. 2020-25121, appearing on column 3 of page 72570, in the Federal Register of 85 FR 72570, the following correction is made:

On February 11, 2020, VA published in the Federal Register (85 FR 7683) a proposed rule to amend its regulations governing the application process for FSGLI coverage for member spouses of SGLI-covered members. Interested persons were invited to submit written comments on or before April 13, 2020. VA received one comment concerning the submission of proof of good health for former member spouses. The commenter recommended that VA revise the rulemaking to allow a member to elect FSGLI coverage on a member spouse without submitting proof of good health for 120 days following a marriage or a former member spouse's separation from service. The commenter suggested that this grace period would minimize adverse selection and bring parity to FSGLI eligibility requirements for civilian and member spouses and is consistent with Congressional intent to avoid creating FSGLI debts for members who do not want FSGLI coverage on member spouses. Based on internal agency reconsideration of the proposed regulation and the comment received, VA is making the following revisions.

Section 1969(g)(2)(B) of title 38, U.S.C., requires VA to manage FSGLI according to sound actuarial principles, and VA explained in the proposed rulemaking that this requires limiting the risk of adverse selection of FSGLI applicants. VA has determined that removing the proposed requirement for members to submit proof of their member spouse's good health for 240 days following a member's marriage to another member or a member's spouse entering service is consistent with sound actuarial principles. If a member does not elect or increase coverage on a member spouse within the 240-day period, then the member will have the opportunity to receive FSGLI coverage by applying for such coverage and submitting proof of their member spouse's good health. Although the commenter recommended a 120-day “no health” period for a member to elect FSGLI without submitting proof of their member spouse's good health, VA has determined that a 240-day “no health” period is more appropriate since it would allow for greater participation in FSGLI and would remain consistent with sound actuarial principles. This change is reflected in new § 9.24(a).

VA is also amending our proposed rulemaking to allow a member, upon election, to initiate FSGLI coverage at the maximum statutory amount or a lesser amount, or to increase existing FSGLI coverage, on a former member spouse. A member will only be required to submit proof of good health when more than 240 days have passed following the former member spouse's separation from service. If a member does not elect FSGLI at the maximum statutory amount or a lesser amount, or increase existing FSGLI coverage, within 240 days following their former member spouse's separation from service, then the member will have the opportunity to apply for FSGLI or to increase existing FSGLI coverage by submitting proof of their former member spouse's good health. Although the commenter recommended a 120-day “no health” period for a member to elect or increase FSGLI without submitting proof of their former member spouse's good health, VA has determined that a 240-day “no health” period is more appropriate because it would allow for greater participation in FSGLI and would remain consistent with sound actuarial principles. We also note that the 240-day period is consistent with 38 CFR 9.2(c), which allows a former member to apply for Veterans' Group Life Insurance within 240 days after separating from service without submitting proof of good health. This change is reflected in new § 9.24(c).

VA is making two technical amendments to the amendatory language in this final rule. In the proposed rulemaking, we proposed to create a new paragraph (f) in current 38 CFR 9.2 and to create a new 38 CFR 9.3. In this final rule, we are creating a new paragraph (g) because paragraph (f) was recently added by 85 FR 35562, Extension of Veterans' Group Life Insurance (VGLI) Application Period in Response to the COVID-19 Public Health Emergency (June 11, 2020) (interim final rule). We are clarifying that paragraph (g) applies to member spouses eligible for coverage under 38 U.S.C. 1967(a)(1)(A)(ii) as well as (C)(ii). We are also clarifying that § 9.2(g)(2) refers to a member-spouse covered under 38 U.S.C. 1967(a)(1)(A)(i) and who was also eligible for coverage under 38 U.S.C. 1967(a)(1)(A)(ii) or (C)(ii) but who was not so insured or was insured at a reduced amount by reason of the member's election pursuant to 38 U.S.C. 1967(a)(2)(B) or (a)(3)(B). We are also moving proposed § 9.3 to new 38 CFR 9.24 for purposes of minimizing disruption to the other regulations in part 9. We are clarifying that this section applies to member spouses eligible for coverage under 38 U.S.C. 1967(a)(1)(A)(ii) as well as (C)(ii). New § 9.2(g) and new § 9.24 reflect the changes discussed above.

For the reasons discussed above, VA is adopting the proposed rule as a final rule with the above-noted changes.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866.

VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. There are no small entities involved with processing and/or determining eligibility for SGLI and FSGLI. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.103, Life Insurance for Veterans.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Brooks D. Tucker, Assistant Secretary for Congressional and Legislative Affairs, Performing the Delegable Duties of the Chief of Staff, Department of Veterans Affairs, approved this document on November 16, 2020, for publication.

For the reasons stated in the preamble, VA proposes to amend 38 CFR part 9 as set forth below:

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

On July 5, 2016, the EPA promulgated a final rule titled “Approval, Disapproval, and Promulgation of Air Quality Implementation Plans; Partial Approval and Partial Disapproval of Air Quality Implementation Plans and Federal Implementation Plan; Utah; Revisions to Regional Haze State Implementation Plan; Federal Implementation Plan for Regional Haze,” which approved, in part, a regional haze SIP revision submitted by the State of Utah on June 4, 2015. 1 In the July 2016 final rule, the EPA also disapproved, in part, the Utah regional haze SIP submission, including the NO X BART Alternative (also “BART Alternative” or “Alternative”) for Hunter Units 1 and 2 and Huntington Units 1 and 2, which are BART units as explained in more detail below. The BART Alternative relied on sulfur dioxide (SO 2 ), NO X , and PM emission reductions from the 2015 closure of PacifiCorp's Carbon power plant, as well as NO X reductions achieved through combustion control upgrades at Hunter Units 1, 2 and 3 and Huntington Units 1 and 2, which were installed in 2006-2014 (Hunter Unit 3 is not a BART unit). The combustion control upgrades for Hunter Units 1 and 2 and Huntington Units 1 and 2 include an Alstom TSF 2000 TM low-NO X firing system and two elevations of separated overfire air (SOFA). The combustion upgrades for Hunter Unit 3 include upgraded low-NO X burners (LNB) and overfire air (OFA). Concurrent with disapproving the NO X BART Alternative, EPA promulgated a FIP in the July 2016 final rule that imposed a NO X BART emission limit of 0.07 lb/MMBtu (30-day rolling average) for each of the four BART units based on the emission reductions achievable through the installation and operation of selective-catalytic reduction (SCR) plus upgraded combustion controls.

On July 3, 2019, Utah submitted a revised SIP that, based on new technical information and a different regulatory test, seeks to demonstrate that the previously submitted NO X BART Alternative achieves greater reasonable progress than BART. The SIP revision also includes amendments to Utah's SO 2 milestone reporting requirements under the SO 2 Backstop Trading Program pursuant to 40 CFR 51.309 such that SO 2 emission reductions resulting from the closure of the Carbon plant are not counted under both the SO 2 Backstop Trading Program and the NO X BART Alternative. On January 22, 2020, the EPA proposed to approve the State's July 3, 2019 SIP revision based on this new information. 2 Specifically, we proposed to incorporate the following into Utah's SIP:

• A NO X emission limit of 0.26 lb/MMBtu (30-day rolling average) each for Hunter Units 1 and 2 and Huntington Units 1 and 2.

• A NO X emission limit of 0.34 lb/MMBtu (30-day rolling average) for Hunter Unit 3.

• A requirement to permanently close and cease operation of the Carbon power plant by August 15, 2015.

• The associated amendments to the SO 2 milestone reporting requirements.

Because approval of the NO X BART Alternative satisfies Utah's BART obligation for Hunter Units 1 and 2 and Huntington Units 1 and 2, we also proposed to withdraw the FIP for NO X BART at these units. In particular, we proposed to find that the NO X BART Alternative would achieve greater reasonable progress towards natural visibility conditions than would be achieved through the installation and operation of BART at Hunter Units 1 and 2 and Huntington Units 1 and 2 under EPA's 2016 FIP.

The EPA also proposed to approve a December 3, 2019 SIP supplement to the July 3, 2019 SIP revision that includes monitoring, recordkeeping, and reporting (MRR) requirements for the units subject to the NO X BART Alternative and PM BART. The supplement also includes amendments that require each source to submit a report of any deviation from applicable emission limits and operating practices, including deviations attributable to upset conditions, the probable cause of such deviations, and any corrective actions or preventive measures taken.

Finally, contingent on our approval of these two SIP revisions, we proposed to find that Utah's SIP fully satisfies the requirements of section 309 of the Regional Haze Rule and that, therefore, the State has fully complied with the requirements for reasonable progress, including BART, for the first implementation period.

EPA requested comment on its proposed approval of Utah's regional haze SIP elements related to the NO X BART Alternative under 40 CFR 51.309(d)(4)(vii) and 51.308(e)(2) and (3), as well as the MRR elements for the units subject to that BART Alternative and to PM BART. EPA previously approved Utah's regional haze SIP as meeting all other requirements of 40 CFR 51.309, 3 and we neither reopened nor requested comment on previously approved elements.

The EPA conducted a public hearing for our proposed action in Price, Utah on February 12, 2020. Our public comment period closed on March 23, 2020.

Our January 2020 proposed rule provided background on the requirements of the CAA and EPA's Regional Haze Rule, a summary of Utah regional haze SIP submittals and related EPA actions, and the EPA's rationale for its proposed action. That background information and rationale will not be restated here. For the reasons stated in the proposed rule, this document, and in the accompanying Response to Comments (RTC) document, the EPA concludes that Utah's NO X BART Alternative achieves greater reasonable progress under 40 CFR 51.308(e)(2) and (3).

We received both written and oral comments at the public hearings we held in Price, Utah. We also received comments through the internet and mail. The full text of comments received from these commenters is included in the publicly posted docket associated with this action at https://www.regulations.gov. Our RTC document, which is also included in the docket associated with this action, provides detailed responses to all significant comments received except for those addressed below. 4 Our RTC document is organized similarly to the structure presented in this section. Therefore, if additional information is desired concerning how we addressed a particular comment, the reader should refer to the appropriate section in our RTC document.

PacifiCorp, conservation organizations (HEAL Utah, Sierra Club, National Parks Conservation Association, Utah Physicians for a Healthy Environment, and Natural Resources Defense Council), Edison Electric Institute, Ute Mountain Ute Tribe, and Salt Lake City's Capitol Hill Action Group submitted detailed written comments. Many general comments were made at the public hearing.

Comment summary: Some commenters argued that the modeling assumptions used for comparing the BART Benchmark (the controls required by the 2016 FIP)  5 to the NO X BART Alternative overstated emissions for non-BART units in the BART Benchmark scenario. Specifically, the commenters argued that emissions for the Carbon plant should have reflected compliance with the Mercury and Air Toxics Standards (MATS) rule, which was required by April 15, 2015. According to the commenters, compliance with MATS would have resulted in a greater than 50 percent reduction in SO 2 emissions at Carbon Units 1 and 2 compared to its historical emissions. Additionally, the commenters argued that emissions from Hunter Unit 3 in the BART Benchmark scenario should have reflected combustion controls installed in 2007. The modeling instead assumed that under this scenario, the Carbon plant and Hunter Unit 3 would emit pollutants consistent with the 2001-2003 baseline. 6 The commenters argued that such assumption overstates the emissions from these sources that would have occurred under the BART Benchmark and thus understates the visibility benefits that would occur under the BART Benchmark.

Response: Utah's modeling of emissions at Carbon and Hunter Unit 3 under the NO X BART Alternative and the BART Benchmark is reasonable and authorized under the EPA's regulations for BART alternatives. In particular, assuming continued emissions from sources that would not be subject to BART controls in the BART Benchmark scenario, when such emissions would be eliminated under the BART Alternative, is simply a necessary analytical step for making a proper comparison of the two scenarios to determine which achieves “greater reasonable progress.”  7 This is authorized by the Regional Haze Rule, and it is consistent with the EPA's prior regulatory actions, EPA guidance, and case law.

I. Background II. Discussion of the Final Rule, Section-by-Section Analysis, and Response to Comments on the Proposed Rule III. Procedural Matters I. Background

On December 18, 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA; 43 U.S.C. 1601, et seq. ), which repealed the Alaska Native Allotment Act (34 Stat. 197, as amended). During the time leading up to the repeal of the Alaska Native Allotment Act, certain Alaska Natives who were eligible to apply for allotments were serving in the U.S. military and may have missed their opportunity to apply because of their military service.

In 1998, Congress enacted a law allowing certain Alaska Native veterans a new opportunity to apply for allotments under the Alaska Native Allotment Act, as it was in effect before its repeal (Alaska Native Veterans Allotment Act of 1998; 43 U.S.C. 1629g). Those Alaska Native veterans were able to apply for allotments from July 31, 2000 to January 31, 2002. Under the Alaska Native Veterans Allotment Act of 1998, about 250 allotments were issued to Alaska Native veterans or their heirs.

On March 12, 2019, Congress enacted Section 1119 of the Dingell Act (codified at 43 U.S.C. 1629g-1) to provide an additional opportunity for Alaska Native veterans who have not applied for or received an allotment under prior laws to apply for an allotment. Congress required the BLM to issue regulations implementing the Dingell Act as it pertains to land allotments for Alaska Native veterans. This rule will carry out that congressional mandate.

The BLM developed this rule based on the proposed rule published in the Federal Register on July 10, 2020 (85 FR 41495). The BLM invited public comment for 30 days and received written comments from 28 individuals and groups. In addition, the agency in collaboration with the Bureau of Indian Affairs (BIA) held public meetings in Anchorage and Fairbanks prior to the drafting of the proposed rules to give participants an opportunity to provide early input into the proposed rule. The primary purpose of these meetings was to gather input from Alaska Native entities and the State, in keeping with the requirement in the Dingell Act for consulting with State, Native corporations on available lands for selection. Oral comments were recorded in writing at each of the meetings prior to the drafting of the proposed rules. Additionally, four virtual public meetings were held during the 30-day comment period. All the meetings were open to the public and were advertised in local media. Participants included both Alaska Native and non-Native individuals. Transcripts and recordings were captured for three of the virtual meetings and are included in the administrative record for this rule.

Most of the written comments we received during the 30-day comment period addressed more than one section of the proposed rule. Comments are addressed on a section-by-section basis.

This preamble discusses the proposed rule and the comments the BLM received from the public about the rule. It explains the changes the BLM incorporated into this final rule and why the BLM made them. It also explains why the BLM did not adopt all of the changes recommended by the public.

The final rule is adopted with the changes to the proposed rule discussed in this section. In summary, the final rule establishes the requirements for participating in the Alaska Native Vietnam Veterans Land Allotment Program (Program). It contains the requirements an applicant must meet in order to qualify to apply for and receive an allotment.

The final rule establishes:

1. The types of Federal land that the BLM can and cannot convey to an allotment applicant;

2. When and how an applicant may apply for a substitute selection if the original application describes land that cannot be conveyed;

3. How a personal representative may apply for an allotment on behalf of eligible veterans or the heirs of eligible veterans; and

4. The processing of applications for allotments.

In preparing the final rule, the BLM considered each of the 171 comments received from 28 individuals and groups during the 30-day public comment period. A discussion of those comments follows. The discussion deals with changes made to the final rule resulting from comments the BLM received, as well as through internal review. The discussion also covers changes urged by the public that the BLM is not adopting. In both cases we explain the reason(s) for the decisions.

Many of the comments the BLM received were about the applicant's inability to select lands because they are currently unavailable. Section 1119(b) of the Dingell Act identifies certain Federal lands that are excluded from being allotted under this Program, including but not limited to lands within the boundary of a National Forest System Unit, a U.S. Fish and Wildlife Service (USFWS) refuge, a National Park System Unit, or a congressionally designated wilderness area. The statute also excludes lands that are subject to a withdrawal under section 17(d)(1) of the Alaska Native Claims Settlement Act, or other authority. Commenters noted that a majority of Alaska Native veterans (or heirs) who are eligible for this Program reside in the Southeast portion of Alaska where lands are not available for selection because Congress excluded the National Forest System Units, including the Tongass National Forest. As a result of these statutory exclusions, allottees and their heirs will not be able to receive ancestral lands or lands near their homes. The Dingell Act makes only vacant, unappropriated, and unreserved lands available for selection. The BLM has no authority to make lands available except pursuant to the Dingell Act, and the regulations cannot open any new lands.

Another category of comments pertained to the 60-day time periods in the proposed rule for applicants to respond to certain actions, such as notifications for correcting errors and responding to BLM decisions. Commenters were concerned that these 60-day deadlines are not long enough. We address these comments—which were directed to many different sections of the proposed rule—in the discussion of § 2569.414 that follows.

The BLM added language to some sections where commenters said the language was not clear. We are making other changes to ensure that the rule is consistent from one section to another and that the meaning of certain terms is clear.

The following is a section-by-section discussion of the comments the BLM received, and which suggestions we adopted and which suggestions we rejected and our reasons for doing each.

Section 2569.201 contains definitions that are used in the regulations. The BLM is adding new definitions that clarify the meaning of “error” as it relates to the application process. Based on comments received, the BLM agrees that it should not reject an application with very minor errors and should consider it to be “received.” This change requires the BLM to differentiate in the regulations between errors that are very minor, major errors that are correctable, and major errors that cannot be corrected; the BLM determined it would use the terms “technical error,” “substantive error,” and “uncorrectable defect” respectively to define each category of errors. The discussion of how these new definitions will be applied during the application process is addressed later in this preamble (see discussion under §§ 2569.410 and 2569.411).

Specific terms addressing comments or additions for clarity include:

Allotment. Several commenters requested that the definition include language from the previous 1998 Act stating that proof of prior use and occupancy of selected lands is not required. Although the BLM agrees that such proof is not required, since the regulations only provide for what is required (and not what is not), we are not changing the text in the final rule in response to these comments.

Available Federal Lands. This term in the final rule incorporates the definition from the Dingell Act. In general, “available Federal land” is defined as vacant, unappropriated, and unreserved public land. One commenter requested that available lands include lands withdrawn pursuant to section 17(d)(1) of the Alaska Native Claims Settlement Act. These lands are only available when the withdrawal is revoked. We are not changing the definition in the final rule in response to this comment.

Eligible Individual. This term is used throughout the regulations to refer to an Alaska Native veteran who is eligible to receive an allotment under the Dingell Act, or another person who is eligible to apply for an allotment on the behalf of such a veteran. One commenter requested clarity on whether a person who previously applied for, but did not receive, an allotment is eligible. An individual who previously applied for, but did not receive, an allotment does qualify for this Program. We are not changing the definition in the final rule because the definition already states that a Native Veteran who “has not already received” an allotment is an eligible individual.

Another commenter asked whether a pending application under the 1998 Act would disqualify an individual for this Program. The BLM found that this is a very rare situation and in the final rule has deleted a reference to “pending applications” from the proposed definition. If the BLM receives an application from a pending applicant, it will contact the individual and explain the options for going forward. The pending application will need to be relinquished or denied before the BLM can process an application under this Program. Therefore, the BLM removed the phrase “and does not have a pending application” from the definition. In so doing, there is no longer a reason to refer to prior allotment programs cited in the Dingell Act, and that reference has been removed. The BLM will change the definition in the regulation to solely refer to the Dingell Act since it is no longer modifying when an applicant is deemed to have received an allotment under the other allotment acts.

Another commenter recommended spelling out the definition as written in the Dingell Act instead of referring readers to the Act. The BLM decided to retain the reference to the Act instead of reciting the definition in the Act to ensure that the language stays consistent with the Act.

Mineral. A commenter requested that the BLM add a definition for “minerals.” In the proposed and final rules, the United States will reserve to itself all minerals associated with lands allotted under this Program. The commenter requested this new definition in order to limit the U.S. mineral reservation to coal, oil, and gas. The BLM agrees that providing a definition of mineral will be beneficial because the term “mineral” is vague. However, the commenter's requested definition is too limited considering the legislative intent behind the Dingell Act. Congress's intent was to offer Alaska Natives, who served in the military during the Vietnam era, a chance to receive an allotment similar to the one that they otherwise could have received under the Alaska Native Allotment Act of 1906. Congress also intended to eliminate historic delays related to agency review of the mineral potential for requested allotments by allowing applicants to select any available lands while reserving the mineral estate to the United States. Under the Alaska Native Allotment Act of 1906, allotments could be made only on vacant, unappropriated, and unreserved “nonmineral” land, which is generally defined as lands that are not known to contain any leasable, saleable, or locatable minerals, in such quantities and of such qualities as would, with reasonable prospects of success in developing a paying mine thereon, induce a person of ordinary prudence to expend the time and money necessary to such development. In 1980, however, section 905(a)(3) of the Alaska National Interest Lands Conservation Act (43 U.S.C. 1634(a)(3)) expanded the definition of “nonmineral” lands under the Alaska Native Allotment Act of 1906 to include lands with valuable deposits of sand or gravel. Based on this revised definition of “nonmineral” lands under the Alaska Native Allotment Act of 1906, “mineral” is properly defined for this rule as including coal, oil, natural gas, other leasable minerals, locatable minerals, and saleable minerals, other than sand and gravel.

Realty Service Provider. This term refers to the tribal and intertribal organizations that provide Trust Real Estate Services pursuant to a contract or compact with the BIA. Although § 2569.412(a) lists the website the public can use to determine which Service Provider serves a particular area for assistance with an application, one commenter recommended that the link be added to the definition as well. The BLM believes that the location of the website URL is more appropriate in § 2569.412 and did not change this definition in the final rule.

Receipt date. This term is used in the regulations to refer to the date on which an application arrives at the BLM Alaska State Office. The Receipt Date is used to determine which application will receive preference if two or more applications contain conflicting selections. A commenter suggested that a postmark be the determining factor for preference versus the date an application arrives at the BLM Alaska State Office. This situation is addressed later in this preamble in the discussion of § 2569.502. The BLM did not change this definition in the final rule as a result of this comment.

Substantive error. As discussed later in this preamble (see §§ 2569.410 and 2569.411), this new definition is added to the final rule to describe one category of errors or omissions that the BLM may find on applications and supporting documents submitted as required under § 2569.402. Substantive errors include, but are not limited to: Missing land descriptions and missing forms required under § 2569.404, if applicable. When an applicant corrects this type of error, the correction could show that the application has an uncorrectable defect, for instance, the applicant is not an Alaska Native.

Technical error. As discussed later in this preamble (see §§ 2569.410 and 2569.411), this new definition is added to the final rule to describe one category of errors or omissions that the BLM may find on applications and supporting documents submitted as required under § 2569.402. A “technical error” is defined as a type of error that does not rise to the level of a substantive error or uncorrectable defect. For example, not signing your application is a technical error that can easily be corrected and does not raise any new issues that would cause an application to be rejected.

Uncorrectable defect. As discussed later in this preamble (see §§ 2569.410 and 2569.411), this new definition is added to the final rule to describe one category of errors or omissions that the BLM may find on applications and supporting documents submitted as required under § 2569.402. An uncorrectable defect in an application is evidence that shows you are not qualified for an allotment. That evidence includes a lack of qualifying military service or proof of Alaska Native descent, or shows that the applicant has already received an allotment under a previous allotment program.

Valid relinquishment. The Dingell Act allows an Eligible Individual to select and receive from the BLM lands that have been selected by the State or a Native corporation if that entity “agrees to voluntarily relinquish the selection.” A commenter requested that the BLM clarify that for the relinquishment to be valid, the voluntary relinquishment must be signed by a person authorized by a board resolution of the Native corporation or a delegated official of the State. The BLM already included this requirement in the definition and it will not make any changes.

The BLM has added the new definitions in alphabetic order, which requires us to redesignate the individual definitions as paragraphs (a) through (q) in the final rule. We did not receive comments on the following definitions and they have not changed in the final rule: “Allotment,” “Native,” “Native corporation,” “Segregate,” “Selection,” “State,” “State or Native corporation selected lands,” and “Veteran.”

The Department of Defense (DOD) and the Department of Veterans Affairs (VA) identified and delivered to the BIA the names of veterans who served during the Vietnam Era as specified in the Act. The BIA, after subsequent review, delivered the names of Native veterans to the BLM. The BLM further reviewed the names to determine whether the Native veterans previously received an allotment of land pursuant to previous allotment Acts. As a result, the BLM has notified approximately 2,000 individuals that it believes to be eligible for the Program. There are still individuals with pending determinations.

Comments were received from several Alaska Native organizations that suggested the BLM or the BIA share the list of Eligible Individuals publicly or directly to enhance outreach. The list cannot be shared publicly due to the Privacy Act. However, when the BLM sends notification letters to Eligible Individuals, the Realty Service Provider and/or the BIA will be copied for their likely assistance with future applications. One commenter requested that the BLM notify the specific Native corporation when an application is received for lands within their specific region. When an application is considered received by the BLM, the location of the selection gets entered onto the Master Title Plat, which the public, including Native corporations, can monitor. The Privacy Act prevents the BLM from publishing or otherwise releasing the names of Eligible Individuals without their consent.

Eligible Individuals who were not identified through the process described earlier will need to provide documentation to demonstrate that they are eligible. In addition to the application, those individuals will be required to provide a Certificate of Degree of Indian Blood or other documentation from the BIA demonstrating that they meet the definition of a Native, and a Certificate of Release or Discharge from Active Duty (Form DD-214) or other documentation from the DOD or VA demonstrating that they meet the definition of a veteran. One commenter asked the BLM to allow an affidavit in place of the DOD or VA documentation for Veteran status. The BLM has a responsibility to ensure public lands are only granted to a private individual when the person qualifies under the Dingell Act. The BLM would be unable to ensure it was meeting its responsibility if it accepted an affidavit alone and will not incorporate this suggestion into the final rule.

Section 2569.303 sets out who can apply on behalf of an Eligible Individual. The BLM received many comments addressing how a personal representative is appointed. Several commenters suggest the BLM interpret the requirements of the Dingell Act at 43 U.S.C. 1629g-1(a)(2)(B) that a “personal representative . . . has been duly appointed in the appropriate Alaska State court or a registrar has qualified” broadly, with one specifically pointing to the phrase, “a registrar has qualified” as a basis for a broad interpretation. When interpreting a statute, the language of the statute is the first consideration. The BLM believes that the Dingell Act is clear. The first portion addresses a formal probate which is done by a judge for the Alaska State Court System. The second portion, regarding the registrar, addresses informal probates. The position of registrar is set out in the Alaska State statutes as the position that makes the determination on informal probates within the Alaska State Court System (AS 13.16.085). As such, the Dingell Act requires that a personal representative be appointed by an Alaska State Court System, whether by a judge in the formal probate process or by the registrar in the informal process. The BLM cannot add an alternative method for personal representatives to be appointed.

Commenters variously suggested that the BLM expand the ways a personal representative can be appointed to include those appointed by other state courts, tribal courts, affidavits from the family, and by the wills of the deceased. The BLM does not have the authority or the expertise to determine the heirs of a deceased veteran. It also does not have the authority to choose or appoint personal representatives. Often there will be multiple heirs or persons claiming to be heirs. The BLM cannot know which allotment application to process or which parcel of land to convey without a formal determination of the estate representative and the heirs who will benefit. Likewise, allowing the appointment of personal representatives from multiple jurisdictions could put the BLM in the position of deciding among competing appointments and the BLM is ill-equipped to make that determination. The lack of a formal representative would cause considerable chaos and dramatically slow down the processing of all allotment applications. Lastly, the Dingell Act is clear that only personal representatives appointed by the Alaska State Court System can apply on behalf a deceased Eligible Individual. Therefore, the BLM declines to make any of the requested changes in the regulations.

One commenter suggested a clarification be added to § 2659.303(b) that would indicate that an attorney-in-fact would not need to be appointed by a court. We are responding to the comment by changing the order of the sentence to clarify that an attorney-in-fact does not need to be court-appointed. However, we are not adopting a recommendation that the attorney-in-fact must be appointed according to Alaska State law since this restriction is not required by the Dingell Act and could cause confusion for applicants living in other states.

As mandated under the Dingell Act, the application period begins on the effective date of this final rule and will run for a period of 5 years (43 U.S.C. 1629g-1(b)(3)(B)). Several commenters mistakenly referred to the 5 years as the period for the BLM to process an application.

Several commenters requested the five-year window be extended. The statute directs the period that the Program will be in effect, and the BLM lacks authority to extend the application period beyond the statutory deadline. Any extension of the period will require additional legislation from Congress. Therefore, no change was made to the final rule as a result of these comments.

One commenter requested an extension of the 5 years because the State of Alaska is so over-selected under the Statehood Act that there are currently limited lands available. As stated previously, the Dingell Act sets out the application period, and the BLM lacks the authority to change it. Again, no change was made to the final rule as a result of this comment. Also, the BLM notes that State-selected lands are available for selection under this Program if the State is willing to relinquish portions of its selection.

Another commenter states it would be unfair if an application is submitted during the 5-year period and considered late because the BLM does not adjudicate it quickly enough, and then considers it to be too late to process. The amount of time it takes the BLM to adjudicate an application does not change the date for when the BLM deems an application to be received for the purposes of the 5-year application period. An application submitted prior to the end of the 5-year window will be considered timely filed.

Upon reviewing the comments received on this section as a whole, the BLM recognizes that there is a need to address the situation where an application is received in the BLM State office after the 5-year period is over, but the application is post-marked prior to the end of the application period. Under final § 2569.502, the BLM will use the receipt date for the purposes of adjudicating the application preference rights under the Dingell Act. However, in determining whether an application is timely filed, the BLM will use the post-mark date for applications that were sent by mail, as provided for under new paragraph (a)(2) of § 2569.401 of the final rule. Additionally, new paragraph (a)(1) has been added to clarify that BLM will consider applications timely filed that an applicant submits prior to the beginning of the application period, but BLM will not adjudicate the application until the application period begins on December 28, 2020.

One commenter proposed that proof of an applicant's valid enrollment as a citizen of a federally recognized tribe be added to the list of supporting documents that applicants must provide to the BLM to prove they are Eligible Individuals. This section already requires applicants to provide a Certificate of Degree of Indian Blood or other documentation from the BIA to prove they are eligible. The BIA has the sole authority to make a determination of whether a person is an Alaska Native. In the absence of a Certificate of Degree of Indian Blood, an individual or a tribe can work with the BIA to make sure the determination meets the definition under ANCSA (43 U.S.C. 1602) for “Native.” The BLM did not change the final rule in response to this comment.

This section covers the special provisions that apply when an applicant applies for Federal lands within State or Native corporation selected lands. One commenter recommended that the BLM make it clear in the final rule that applicants may need to request up to three relinquishments in order to obtain an allotment. Such a situation could arise, the commenter said, when a village Native corporation has selected the surface estate and the regional Native corporation has automatically selected the subsurface estate, and the State has top-filed some of the same lands. The proposed and final rule only require one relinquishment, because when a village corporation relinquishes the surface, the subsurface selection by the Regional corporation is automatically relinquished. Paragraph (c) establishes that the applicant's selection takes precedent over the State's top-filing, and thus a relinquishment from the State is unnecessary. We did not change the final rule in response to this comment.

One commenter requested that the BLM consider an application complete even if the applicant has not received a valid relinquishment. The BLM added a new sentence to paragraph (a) that clarifies that an applicant is not required to provide the relinquishment with the application. The BLM will request a relinquishment from the State or Native corporation on behalf of the applicant if an applicant applies for selected lands and does not include a relinquishment. If the State or Native corporation is unwilling to provide a relinquishment within 60 days, the application will still be considered complete, but the applicant will need to submit a substitute selection pursuant to § 2569. 411(c).

One commenter requested that the regulations require the BLM to notify the “appropriate Native regional and/or village corporation so that those corporations can pro-actively assist the applicant to obtain the necessary relinquishments or select alternate lands.” The change discussed previously also addresses this comment.

Another commenter stated the regulations incentivize applicants to apply for currently available lands rather than apply for State or Native corporation selected lands because available land the applicant would otherwise select may no longer be available by the time the applicant learns the State or Native corporation will not relinquish their selected land. The Dingell Act established a first come, first served basis for the BLM to award an allotment of land. The regulations follow the same structure, which we agree does create a situation where applicants who are risk averse may choose to apply for land they know is open rather than take a chance on land that is State or Native corporation selected. This is an unavoidable trade-off that the regulations cannot change. We did not change the final rule in response to this comment.

Several commenters had a misunderstanding that the size of the land allotment has to be less than 160 acres. This section clearly states that an allotment cannot be more than 160 acres or less than 2.50 acres. We did not change the final rule in response to this comment.

Several commenters recommended that the BLM allow applications to be submitted online or electronically. This option was considered but found to be impracticable within the statutory timeframe for promulgating the final rules. Congress required the BLM to issue regulations implementing section 1119 of the Dingell Act no later than 18 months after March 12, 2019. The BLM's current System of Records Notice (SORN), which is a requirement under the Privacy Act of 1974 and covers the BLM's collection of information from the public for this new regulation, was established without a means to collect information electronically and would require an amendment. The process related to a SORN amendment or renewal takes a length of time which could not be completed prior to accepting applications for this Program. We did not change the final rule in response to this comment.

Several commenters requested additional clarification regarding the types of errors that would or would not warrant a rejection of an application. The BLM agrees with the need to ensure that minor errors do not lead to applicants losing their preferred parcels. However, some errors could lead to an applicant being unqualified, and those errors need to be addressed differently. In response to the comments, the BLM has developed a new system for the final rule that addresses how the different types of errors will be handled.

In response to commenters' requests, this section will now explain how the BLM will review an application for errors when it is submitted. This initial review will determine whether an application can be deemed received and is not the final adjudication of whether an applicant qualifies under the Dingell Act. The BLM will review the applications to determine if there are uncorrectable defects or correctable errors in the application. An uncorrectable defect is where the application or the attached materials demonstrate that the applicant is not qualified. For instance, if a person has previously received an allotment under another allotment Act, they are not eligible under the Dingell Act. If the person indicates on their application that they have previously received an allotment, and the BLM finds that this is correct, the BLM will find that the application has an uncorrectable defect. In the case of an uncorrectable defect, the BLM will issue a decision rejecting the application and the applicant will have the right to appeal.

If the BLM finds a correctable error in an application, it will characterize the error or omission as either a technical error or a substantive error. In both cases, the BLM will send a notice to the applicant identifying the error and provide the applicant 60 days after receiving the notice to correct the error. The applicant will need to correct the error or omission by mailing the correction to the BLM postmarked by the end of the 60-day period. If the BLM does not receive a timely correction of the error, it will reject the application.

The BLM will characterize the type of error because a technical error will be treated differently than a substantive error for the purposes of the conflict provisions in § 2569.411. As defined in § 2569.201, a “technical error” is a minor error in the information provided on the application that will assist the BLM in adjudicating the claim. Typically, the error will be an omission such as failing to sign the application. The BLM needs the information, but this omitted information is not likely to result in the BLM rejecting the application for not meeting the statutory requirements once the missing information is provided. As such, the BLM finds it likely that such an application will be approved once the information is submitted. The BLM will treat the application as received on its original receipt date once the technical error has been corrected.

Conversely, a “substantive error” in the application is the type of error or omission that goes to the very substance of the requirements of the Dingell Act. The BLM needs to ensure that allotments are only awarded to those individuals qualified to receive an allotment. A substantive error would include not providing the documents required by § 2569.404 that show proof that the applicant is an Alaska Native or a veteran, if the applicant is not on the list of Eligible Individuals. This type of error is much more likely to result in the application being rejected due to the BLM finding the person does not meet the qualifications of the Act. Due to the increased likelihood of the application not meeting the requirements, the BLM will not consider an application with a substantive error as received for the purposes of the conflict provision at § 2569.411 until the corrections are submitted. Leaving out the land description or providing a description that fails to provide sufficient detail for the BLM to determine the applicant's intended selection will also be considered a substantive error because the BLM has no way to determine what land it should segregate and make unavailable for future selections.

These changes were addressed by adding paragraphs (b), (c), and (d) to this section.

One comment, which was also addressed in § 2569.410, requested that the BLM consider an application to be “received” when it has technical errors. Following the changes to § 2569.410 discussed earlier, the BLM clarifies in the final rule that an application that is free of substantive errors will be considered received on the original receipt date—that is, the date on which the application is physically received by the BLM Alaska State Office (see § 2569.201(h)). Thus, if the receipt date of an application was on Day 1, the BLM would use Day 1 as the received date even if it took the BLM until Day 15 to review the application and determine that the application is free of substantive errors. This application would have preference over any application submitted after Day 1.

If an application contains a technical or substantive error, the BLM will provide notice as set forth in § 2569.410 and require the applicant to correct the error. Once an application with only technical errors is corrected, the application will receive the preference corresponding to the date on which the BLM physically received the original application at the BLM State Office. An application with substantive errors will receive the preference corresponding to the date upon which the BLM physically receives all corrections to the substantive errors at the BLM State Office.

Changes made in § 2569.504 to the final regulations to allow applicants to amend their selections requires a change in this section as well. If the applicant chooses to file an amended selection pursuant to § 2569.504, the applicant would receive the preference corresponding to the date on which the amended selection was physically received at the BLM Alaska State Office, assuming that the amended selection is free from technical errors or conflicts. Similar to the way a substitute selection will be handled, in terms of its application date, the BLM finds that an amended selection should not retain its the original application date in order to ensure fairness to all applicants. The BLM revised paragraph (c) in this section to reflect this change by adding the phrase “or an amended selection under § 2569.504.”

The BLM received comments pertaining to Eligible Individuals getting help with filling out their applications. The proposed rule highlighted the Realty Service Provider's role as being crucial. Several commenters raised concerns regarding limited internet access and how this could affect applicants' ability to print maps from the Available Lands Map website ( https://arcg.is/1HTrrO ). Several commenters specifically requested that the BLM provide maps to the public showing lands that are available lands for selection. It would be logistically difficult for the BLM to supply maps of all the available lands for selection at a scale that would enable an individual to confidently select a parcel. Realty Service Providers will assist applicants with viewing, selecting, and printing selections from the Available Lands Map website, which includes zoom capabilities, background changes to topography or satellite views. However, the BLM will fulfill map requests from the public for a specific area or location. The BLM's contact information for requesting maps for those without internet capability is found at § 2569.412 of the regulatory text. We did not change the final rule in response to these comments.

One commenter requested that we clarify the roles for the VA and the Department of Interior (DOI) regarding proposed § 2569.412(d) which included the VA in a list of places that applicants could seek assistance in filling out their applications. The VA does not have a role in providing assistance to applicants in completing applications; that role belongs to the BLM. The VA's role is to effectively direct inquiries about the Program that are made to the VA to the BLM or the BIA Alaska. The VA's statutory obligations to provide outreach to veterans and make referrals to the DOI regarding this Program will continue, along with its support in determining veteran eligibility. In response to this comment, in the final rule we removed proposed § 2569.412(d) to eliminate any confusion and redesignated paragraph (e) as new paragraph (d).

One commenter requested that the specific contact information for the BIA and the BLM, such as direct phone numbers or website addresses be included in the rule. The regulatory text includes the requested contact information, and no further information needs to be added to the final rule. We did not change the final rule in response to this comment.

The BLM received a number of comments pertaining to how the BLM would issue Notices and Decisions, how applicants would reply to them, how applicants could update their contact information, and who the BLM should contact when it issues Notices and Decisions.

One commenter requested that the BLM clarify how applicants could update their contact information. Paragraph (c) in the proposed and final rules provides the information on how applicants can update their address of record and has been updated for the final rule to include information on how to contact the BLM via fax and email.

One commenter asked the BLM to clarify when it considers a response to be received by the BLM, especially when the response is mailed. In response, the BLM added paragraph (d) to the final rule to clarify that a response will be deemed received either on the date it is physically received at the BLM Alaska State Office; if the response is mailed, on the date it was post-marked; or, if emailed, the date the email was sent.

One commenter requested that the BLM provide additional means in the final regulations for applicants to respond to notices and decisions. Rather than making this change in the final rule, the BLM will state within the individual notices and decisions that it sends to applicants how they may respond. Generally, a response can be submitted by email or fax, but not in every case. To avoid any confusion, the methods of response will be addressed in the notice or decision. We did not change the final rule in response to this comment.

Another commenter requested that the BLM clarify the substitute method referenced in § 2569.413(b)(2) for re-delivering Notices or Decisions if they are returned to the BLM as undelivered, or if the recipient refused to sign the Return Receipt. Generally, the BLM will use first-class mail to deliver Notices and Decisions, but it may use other methods such as personal delivery or any method that the BLM determines has the highest chance of success at the time. No change was made to the rule in response to this comment.

One commenter requested that the BLM notify the Realty Service Provider and the village and regional corporation if the first delivery of a Notice or Decision is unsuccessful. By policy, the BLM will send the Realty Service Provider and/or the BIA a courtesy copy of all documents sent to an applicant. The BLM will also send the Realty Service Provider and/or the BIA a notice when a document is returned for any reason, and the BLM requests a current address from the Realty Service Provider and/or the BIA at that time. Likewise, if the land selected by an applicant is also selected by a Native corporation, the appropriate village and regional corporation will receive a courtesy copy of all documents sent to the applicant.

In preparing the final rule, the BLM found paragraphs (b)(i) through (iii) were incorrectly numbered in the proposed rule. We redesignated those paragraphs as (b)(1) through (3) for the final rule to conform with U.S. Government Publishing Office style requirements.

In response to comments requesting that the BLM extend various deadlines for things such as responding to notifications for correcting errors on applications and responding to BLM Notices, the BLM added § 2569.414 to the final rule which expressly allows extensions of time for good cause. Several commenters recommended a longer time, up to 1 year, for applicants to respond to Notices. During the consultation process that the Department conducted in 2019 with potentially affected tribes, the proposed response time for correcting errors on applications at that time was 30 days, which participants said was too short. The BLM doubled the response time, to 60 days, for nearly all clarification issues related to the application process. For correcting technical issues, the DOI determined that it creates an unfair situation for other applicants to keep the land segregated and unavailable from other applicants to select while the original applicant makes corrections. Likewise, to extend a response time for substantive errors beyond 60 days could create an undue hardship on the applicant in that the application will not be considered received until the corrections are received, and the applicant may unwittingly lose the preference for their favored parcel.

Overall, the BLM finds that using a consistent period of 60 days to respond takes into consideration the myriad of communication difficulties that can occur in Alaska, while providing consistency throughout the regulation to avoid confusion. The time period the BLM has adopted in the rule is also fair because the 60-day response time starts when the applicant receives the Notice, and responses are considered received when postmarked. Hence, any delay in the mail would not affect the length of time the applicant has to reply. Permitting extensions to the 60-day deadline for “good cause” when fixing some types of errors or responding to Notices provides an additional safeguard to ensure fairness.

We received numerous comments on the steps the BLM will take to process applications after they are received. One commenter requested that the BLM send a copy of all Notices of Survey to the Realty Service Providers. As discussed earlier, the Realty Service Provider and/or the BIA will receive copies of all documents, including the Notice to Survey, that the BLM sends to applicants. We did not change the final rule in response to this comment.

Another commenter expressed confusion about what it means that the BLM will note the selection to the Master Title Plat and asked whether this is a public process that is open to public comments. The Master Title Plat is a BLM-managed, publicly available record of actions that have taken place on Federal lands. Notations to the Master Title Plat are administrative functions that do not warrant public participation or comment. The BLM did not change the final rule in response to this comment.

Several commenters requested that the BLM provide a timeline for completing each of the steps outlined in paragraphs (a) through (j) in § 2569.501. Some of the commenters suggested that the BLM should issue an Interim Conveyance within one year of receiving an application, and then complete the survey and issue the Certificate of Allotment within two years. The Dingell Act states that it is the intent of Congress that once the application period begins the BLM will issue Certificates of Allotments within one year of receiving the applications of Eligible Individuals. While the BLM will strive to meet the intent of Congress, unforeseen complications with surveying parcels or adjudicating applications, for example, may cause delays. The expression of intent by Congress did not impose a statutory deadline. Also, unlike the ANCSA, the Dingell Act does not give the BLM authority to issue an interim conveyance. The BLM did not change the final rule in response to this comment.

One commenter requested that the BLM provide a notice to the applicant when an application is submitted. The BLM finds this is a matter better addressed by policy rather than in the regulations. The BLM will issue a notification to the applicant with a courtesy copy to the Realty Service Provider and/or the BIA when an application is submitted. If the selection involves State- or Native corporation-selected lands, that entity will also receive notification that an application has been filed. The notification will provide the results of the BLM's review for errors under § 2569.410 and specify whether the application has been deemed received. If the BLM finds errors, the notification will alert the applicant and identify exactly what information is needed and why. If the BLM finds errors in the application, the applicant will have 60 days to submit a correction. We did not change the final rule in response to this comment.

One commenter requested that paragraph (c) clearly state whether an allotment adjustment could affect the acreage. The BLM will attempt to retain the acreage requested in the selection, but the adjustment may cause a reduction or addition in the acreage by straightening the boundaries or otherwise making it easier to survey. This clarification was added to the section.

This section addresses what happens when two applicants apply for the same land. The BLM will consider an application “received” even if it has technical errors. An applicant can wait for the BLM to issue a final decision pursuant to paragraph (b) before selecting a substitute selection. However, an applicant may want to select a substitute parcel if the original selection conflicts with another application that has technical errors. As such, the BLM added paragraph (c) to give applicants the option to select a substitute parcel prior to a final decision on the conflict. This fully optional provision alleviates the need for applicants to wait 60 days for parcels they are unlikely to receive. This responds to several comments received that stated that the application with minor errors should not be at a disadvantage in the conflict provision. The benefit to applicants is that they can obtain a preference right to the substitute selection earlier. The risk is being unable to choose the originally desired land later if technical errors in the conflicting application are not corrected and the original selection re-opens.

One commenter wanted confirmation that Eligible Individuals can still apply for an allotment within the five-year timeframe if their applications are rejected. This was part of the proposed rule in paragraph (c) and it is retained in the final rule. Because we are adding a new paragraph between two existing paragraphs in § 2569.502, we are renumbering the remaining paragraphs of this section in the final rule. Paragraph (c) in the proposed § 2569.502 will be paragraph (d) in the final rule.

One commenter requested that the BLM make the preference on a substitute selection based on the receipt date of their original application. While the BLM recognizes the justification for this recommendation, the logistical challenges of doing so would cause disruption throughout the adjudication process. Later applicants who had no conflict with their selection when it was made could lose out to a substitute selection made in the future. This could create a chain reaction where the applicant that is now conflicted files a substitute selection over a previous applicant as well. The delays this would cause to adjudication and the uncertainty it would cause for applicants outweigh the equitable considerations for the single applicant whose substitute selection cannot relate back to his original application receipt date. No change was made to the final rule as a result of this comment.

One commenter recommended that the first tiebreaker for determining an application's preference should be the postmark date on the application. This suggestion could cause delays as the BLM would have to wait to process any of the applications until enough time had passed for potentially conflicting applications to be received in the mail that may have an earlier postmark date. In paragraph (a)(1), the BLM chose to make the first tiebreaker the date for when the BLM receives the application in order to speed up the processing time for applications. Under paragraph (a)(2), postmarks or shipping dates would be used to break a tie if the receipt dates on multiple applications are the same. No change was made to the final rule based on this comment.

One commenter recommended that the BLM allow an applicant to include an alternative selection with their application as a backup in case there is a conflict. The BLM has considered how this recommendation would work logistically. The BLM does not believe it is sound policy to segregate the alternative selection when the application is deemed received because that would block other applicants from requesting the land, and without segregating the land, there is no guarantee that the alternative selection would remain open. As such, asking for an alternative selection would tie up lands that other Eligible Individuals could select and add complexity to an application that is of little benefit. No change was made to the final rule as a result of this comment.

Another commenter asked whether a person determined by the VA and the BIA to be an Eligible Individual pursuant to § 2569.301 would receive preference over an applicant who was not predetermined to be eligible. The conflict provision in this section rests solely on when the BLM receives a complete application, and no consideration is given to applicants who are predetermined to be Eligible Individuals. No change was made to the final rule based on this comment.

One commenter requested that an application submitted on unavailable lands should be considered as received on the receipt date. The BLM will consider the date submitted for applications, even if the applicant selected unavailable lands, in determining whether an application is timely filed for purposes of the 5-year window under the Dingell Act. However, the BLM will issue the applicant a decision informing the applicant that the lands selected are not available. The applicant will then have the same choices he or she would have under § 2569.503(a). The applicant could make a substitute selection that consists of an adjustment to his or her original selection that excludes the lands that are not available or make a new selection in a different area. For purposes of determining preference under the conflict provision, a substitute selection which describes new lands will be deemed received when the substitute selection is submitted. No change was made to the final rule as a result of this comment.

The BLM received several comments recommending that the BLM allow applicants to amend their selections when new lands become available. In response to these comments, the BLM re-analyzed the fairness of allowing applicants to amend their selection. Currently, the available lands are geographically restricted, primarily due to withdrawals of lands under section 17(d)(1) of the ANCSA or other authority, or because the land is within a National Wildlife Refuge or a National Forest. Actions by either the Secretary or Congress may make these lands available during the selection period. The BLM recognizes the applicants' desire to amend their application in the event land closer to their homes or places of subsistence activities become available. On the other hand, the applicant's original selection segregates the land from all other applicants and taxpayer dollars would be expended to perform surveys that would have to be redone if applicants changed their selection.

One commenter recommended that the BLM “should allow for changes to selections up until the BLM schedules the surveys of the selected lands.” The BLM believes that this recommendation balances the concerns of both the applicants and the BLM and has changed § 2569.504 in the final rule accordingly. Under new paragraph (a), the applicant would be able to amend their application up until their response to the Notice of Survey under § 2569.501(e) is due. This will limit the time in which a selection can block future applicants from selecting the land and ensure that the BLM does not waste resources on surveys which will not be needed. Likewise, it will give applicants a period of time to see if new lands have become available.

In making this change, the BLM recognized a similar issue may arise where an applicant has relinquished their application after BLM has already undergone the expense of the survey and decides to apply again. Therefore, the BLM added new paragraph (c) to only allow an application for new land if the original application is relinquished before the applicant responds to the Notice of Survey or where the original selection is no longer available.

Several comments were received related to the requirement that a selection must be surveyed before the BLM can convey it to the applicant and the timeliness of the survey. One commenter said the survey should be an immediate priority for the BLM. To the best of its ability, the BLM will follow the intent of the legislation to issue a Certificate of Allotment within one year of an application, including the survey. No change was made to the final rule as a result of these comments.

Several comments were received pertaining to the Certificate of Allotment. The Certificate of Allotment issued under the Dingell Act will have the same benefits as a Certificate of Allotment issued under the Alaska Native Allotment Act of 1906 as to being inalienable and nontaxable until otherwise provided by Congress, or until the Secretary of the Interior or the Secretary's delegate approves a deed of conveyance vesting in the purchaser a complete title to the land. No change was made to the final rule as a result of this comment.

One commenter requested that the lands not be encumbered or impeded by any Federal designation, including, but not limited to, Wild and Scenic River or Areas of Critical Environmental Concern. A Certificate of Allotment is a grant of a private title which means that the land is no longer federally managed land subject to such federal designations. No change was made to the final rule as a result of this comment.

One commenter requested clarification about how the Certificate of Allotment will be issued if there are multiple heirs, devisees, and/or assigns. They suggested that the BLM issue multiple Certificates of Allotment in the names of each heir. The BLM does not determine who the heirs, devisees and/or assigns are. There will be one Certificate of Allotment, just like the other allotment programs, which will state it is for the Heirs, Devisees and/or Assigns of (name of the Eligible Individual). The BLM added paragraph (d) to § 2569.506 to clarify how the Certificate of Allotment will be issued when the Eligible Individual is deceased.

In reviewing the proposed rules, the BLM found that the end of the last sentence of paragraph (d) could create confusion about how a Certificate of Allotment is issued when the Eligible Individual is deceased. To correct this, the BLM has removed the phrase: “and will issue the Certificate of Allotment in the name of the deceased Eligible Individual” from the final rule.

Many comments identified additional lands they believed should be included as available lands for selection. Lands that they identified included lands in the Tongass National Forest, non-navigable lands within the Tongass, land within State or municipal boundaries, areas around ports, and the USFWS refuge lands. As stated earlier, the Dingell Act identified the lands that are available, and the BLM lacks the authority to make any lands available for selection that are not vacant, unappropriated, or unreserved.

Additionally, several commenters identified un-patented mining claims and State or Native selections in the Southeast as lands they believed should be available for selection. These lands would not become available for selection when the mining claim is forfeited or relinquished, or after the State or Native selections are denied or relinquished, unless the underlying land is vacant, unappropriated, or unreserved and certified as free of known contaminants.

Several commenters noted that currently available lands are isolated. Some commenters cited costs related to visiting the currently available remote sites prior to making a commitment to a selection. One of the commenters questioned applicants' ability to access their newly acquired allotments. ANILCA section 1323(b) guarantees access across all the BLM land and, again, the Act defines the lands that are available to be conveyed. These rules cannot open any lands not identified by the Dingell Act.

One commenter requested that the Alaska Native Veterans Allotment Program of 2019 map show “potentially available lands.” The current map does show “potentially available lands.” The commenter also proposed subsequent legislation to release ANCSA withdrawals on individually selected parcels. Legislative action is within the purview of Congress, not the BLM.

There were several comments suggesting that maps be printed and sent to applicants, and that applicants should be able to comment on them. The BLM is not printing maps Program-wide because of the vast area of available lands, the fact that available lands will change over time, and the significant resources required to print maps of suitable size for selections. Eligible Individuals are directed instead to use the online Available Lands Map to review and print land selections. For those without access to the internet, a physical copy of the map of available Federal lands can be requested from the agencies and offices listed in § 2569.412. Members of the public are always encouraged to provide comments on available products, such as maps, to the BLM to ensure the map is as user friendly as possible.

A commenter asked what the process is for the BLM to add additional lands as they become available. The BLM continually updates its land records with conveyances and other actions. When new lands become available, the BLM will do a contamination review and, if the lands have no known contaminants, the newly available lands will be reflected on the Available Lands Map. However, the BLM does not have the authority to add additional lands by request as the available lands are defined in the Act.

No changes were made to the final rule as a result of these comments.

One commenter requested a “more rigorous level of effort” to determine whether or not a land selection is free of known contaminants, to include a site visit to complete an environmental assessment. The BLM will perform a contaminated site review by reviewing the databases listed in § 2569.602 for contamination reports. The land would not be available for selection if any of the databases indicated that the land is potentially contaminated. The BLM finds that the approach outlined in § 2569.602 adheres to the statutory requirement to certify that the land is free of known contamination. The BLM will be cautious in its review, and any land found to have possible contamination based on these searches will not be available for selection. Throughout the Program, new land databases may become available to review for contamination, and the BLM will continue to seek out the most up-to-date information. The public is encouraged to suggest any other sources the BLM should review before it certifies the lands as free from contamination. No change was made to the final rule as a result of this comment.

The proposed rules did not include a § 2569.603. In the final rule, proposed rule § 2569.604 is now designated § 2569.603. The BLM also revised the title and the regulation to provide additional clarification.

One commenter requested that the BLM clarify in the rule whether the allottee would receive royalties for minerals removed from the land. Minerals are reserved to the United States, so the allottee will not hold any interest in the minerals to acquire a royalty interest. Another commenter stated, “The word `you' should be replaced with `Eligible Individuals or to the devisees and/or assigns of Eligible Individuals.' ” The BLM implemented this change to add clarity to the regulations.

The proposed rules did not include a § 2569.603. Section 2569.605 in the proposed rule was changed to § 2569.604 in the final rules following the removal of the missing section.

One commenter asked how new lands would become available and suggested that the rule should include a timeframe for the BLM to review new additions and make them available. New lands may become available for selection through the revocation of ANCSA section 17(d)(1) withdrawals which have been recommended by the BLM in Resource Management Plans, or through new legislation. In both scenarios, the BLM cannot estimate a timeline because the ability to open these lands is outside of the agency's control. If new land becomes available, the BLM must certify that it is free of known contamination before making it available for selection. The BLM will then update the Available Lands Map and its records to show those additional lands as available for selection. The BLM will work quickly to complete these steps if land becomes available. No change was made to the final rule as a result of these comments.

Several commenters requested the ability to change their selection if national wildlife refuge lands become available. These comments were addressed in § 2569.504, which explains the opportunity for changing a land selection. Another commenter requested that lands be made available within the Yukon Delta National Wildlife Refuge. While national wildlife refuge lands are not available for selection under this Program, the Dingell Act directs the USFWS to submit a report to Congress with its determination of which lands within the National Wildlife Refuge System should be made available for allotment selection. Such refuge lands could be made available for selection through subsequent legislation. No changes were made to the final rule as a result of these comments.

Some of the comments the BLM received were general in nature but did not pertain to any language that appeared in the proposed rule itself. Several commenters were appreciative of the Program, one commenter requested outreach on specific media outlets, a comment from a Native corporation stated that they will require a cultural tie to any selection before the corporation will relinquish its selection for an Eligible Individual. No changes were made to the final rule as a result of these comments.

Several comments requested assurance that the Realty Service Providers are funded to assist applicants. The Dingell Act did not provide funding to the BIA or the BLM for implementing the Program. The BIA has taken measures to provide one-time funding to help offset these costs, and it intends to continue assisting the Realty Service Providers to ensure the success of the Program. Another commenter suggested that funding be made available to potential applicants to perform site visits. Any costs to visit a site are the responsibility of the Eligible Individual.

The BLM received one comment suggesting that monetary compensation be offered instead of an allotment of land, especially since 43 U.S.C. 1629g-1(b) limited the types of Federal land that can be conveyed. 43 U.S.C. 1629g-1(b) does not contain any provision for monetary compensation in lieu of an allotment of land. The BLM has no authority to include such a provision in its regulations.

No change was made to the final rule as a result of these comments.

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. These regulations are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866.

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

These regulations will not have an effect of $100 million or more on the economy and will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The effect of these regulations will be on a limited number of individuals who are qualified to apply for allotments and on the Interior Department agencies responsible for administering the allotment Program. The allotment application period is limited by law to 5 years. The regulations create simple adjudication tasks for the BLM staff to implement the Dingell Act.

For more detailed information, see the Regulatory Impact Analysis (RIA) prepared for this rule. The RIA has been posted in the docket for the rule on the Federal eRulemaking Portal: In the Searchbox, enter “RIN1004-AE66,” click the “Search” button, open the Docket Folder, and look under Supporting Documents.

This rule is not a significant regulatory action under E.O. 12866, and therefore is not considered an E.O. 13771 regulatory action.

Congress enacted the Regulatory Flexibility Act of 1980, as amended (5 U.S.C. 601 et seq. ), to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule will have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. This rule would apply only to certain Alaska Native veterans eligible to apply for allotments and applies only to Alaska Native veterans as individuals. Therefore, the Department of the Interior certifies that this document will not have any significant impacts on small entities under the Regulatory Flexibility Act.

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

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

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

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

The BLM is promulgating regulations to implement section 1119 of the Dingell Act, which provides an additional opportunity for Alaska Native veterans who have received allotments under prior laws to apply for allotments. This rule will have no significant economic impact. This rule will specify the procedures under which applications for allotments under section 1119 of the Dingell Act are submitted and processed. Processing of these applications by the BLM will result in the transfer of lands selected by veterans from the Federal Government to the veterans, as required by Congress. Submitting and processing these applications will result in minor costs to the applicants and to the Government.

This final rule will not impose an unfunded mandate on State, local, tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments, or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This final rule will not affect a taking of private property or otherwise have taking implications under E.O. 12630. Section 2(a) of E.O. 12630 identifies policies that do not have takings implications, such as those that abolish regulations, discontinue governmental programs, or modify regulations in a manner that lessens interference with the use of private property.

Under the final rules, lands selected by an applicant must be federally owned lands in the State of Alaska that are vacant, unappropriated, and unreserved. An applicant may select, in whole or in part, land that has been selected by the State or a Native corporation, but has not yet been conveyed to that entity; however, the State or Native corporation must choose to make that land available by relinquishing their selection.

The rule will not affect private property rights. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

A Federalism assessment is not required because the rule 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.

This final rule complies with the requirements of Executive Order 12988. Specifically, this rule:

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

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

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. This final rule complies with the requirements of Executive Order 13175 and Department of the Interior Secretarial Order 3317. Specifically, while preparing this rule, the BLM initiated consultation with potentially affected tribes. Examples of consultation include written correspondence, and meetings and discussions about objectives of this rulemaking effort with representatives of tribal governments.

This rule contains new information collections. All information collections require approval under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ). The BLM may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number.

The information collection requirements identified below associated with the Alaska Native Vietnam Veteran Land Allotment Program require approval by OMB:

(1) Provide Proof of Eligibility (43 CFR 2569.302) —Section 2569.302 would allow individuals who believe that they are eligible to participate in the program, but who have not been automatically notified by the BLM that they are eligible, to apply for an allotment. Such individuals would be required to provide with their application supporting documents to prove they are eligible, such as a Certificate of Degree of Indian Blood and a Certificate of Release or Discharge from Active Duty (Form DD-214).

(2) Appointment of Personal Representative/Guardian/Attorney-in-fact (43 CFR 2569.303 and 2569.404) —Section 2569.303 would allow another person to apply for an allotment on behalf of an Eligible Individual. A personal representative of the estate of an Eligible Individual could apply for an allotment for the benefit of the estate. The personal representative must be appointed in an appropriate Alaska State court by either a judge in the formal probate process or the registrar in the informal probate process. A court-appointed guardian or conservator or an attorney-in-fact of an Eligible Individual could apply for an allotment for the benefit of the Eligible individual. Similarly, under § 2569.507 if an applicant dies or becomes incapacitated before completing the application process, a personal representative, guardian, conservator, or attorney-in-fact could be appointed to continue to represent the applicant or the applicant's estate.

Section 2569.404 identifies the information and documents that applicants would be required to include on their initial application form under various applicant scenarios. This form would collect basic contact information, along with the Eligible Individual's date of birth, and:

• A map showing the location of the requested allotment, along with a written description of the land requested. The BLM will provide an internet-based mapping tool with the identified available Federal lands;

• Appropriate documentation proving that the Eligible Individual is an Alaska Native;

• Appropriate documentation proving that the Eligible Individual is a Veteran who served during the Vietnam Conflict (between August 5, 1964, and December 31, 1971); and

• If applicable, documentation from an Alaska State Court that shows that a personal representative, guardian/conservator, or attorney-in-fact is authorized to file the application or pursue an already-filed application on behalf of the Eligible Individual or his/her estate.

If additional time is needed for the applicant or the applicant's heirs to arrange for a personal representative, guardian, conservator, or attorney-in-fact to be appointed, the BLM would allow the applicant, an employee of the BIA, or a Realty Service Provider to request that the application be held in abeyance for 2 years.

(3) Request for 2-year Extension of Application Deadline (43 CFR 2569.401 and 2569.507) —Section 2569.401 would set a 5-year deadline for Eligible Individuals, their heirs, or representatives to submit initial applications. In the case of those who submit applications that are incorrect, incomplete, or conflict with other selections, Eligible Individuals would have 60 days after the BLM notifies them of these defects to submit corrected, completed, or substitute applications. This period may be extended for up to 2 years in order to allow a personal representative, guardian, conservator, or attorney-in-fact to be appointed. (see §§ 2569.410, 2569.502, and 2569.503) (This two-year extension language appears in both §§ 2569.401(b) and 2569.507(c) reg text. The preamble in the rule discusses the two-year extension under the 2569.401 discussion and includes the .507(c) citation.)

(4) Allotment Application—Form BLM No. AK-2469 (43 CFR 2569.402 and 2569.404) —Section 2569.402 would require applicants to fill out and sign an application form (BLM No. AK-2569). The requirements associated with § 2569.404 are specified above.

Section 2569.403 would require the BLM to directly mail a copy of the application form to those persons who have been preliminarily identified as Eligible Individuals through the process described in § 2569.301. The applications would be mailed to the most recent addresses on file with the VA, the BIA, and the BLM. This section also identifies locations where copies of the application form would be available for applicants who do not receive an application in the mail.

(5) Multiple Applications That Include Selected State and Native Corporation Lands (43 CFR 2569.405) —If an applicant requests land previously selected by, but not yet conveyed by the Federal Government to the State or an Alaska Native corporation, the applicant, or the BLM acting on behalf of the applicant, could request that the State or Alaska Native corporation relinquish the land to the applicant. This relinquishment would be conditioned upon the applicant successfully completing the application process. In conjunction with this rulemaking, the BLM anticipates that the State and Alaska Native corporations would also issue blanket conditional relinquishments of certain selected unconveyed lands. These blanket relinquishments also would take effect only if valid applications for these lands are successfully completed.

Upon receipt of an application requesting State or Alaska Native corporation selected, unconveyed lands, if the application does not include a relinquishment request from either the State or Naive corporation, the BLM would automatically request such relinquishment on behalf of the applicant. The BLM must receive a valid relinquishment from the State or Native corporation, agreeing to relinquish the land to the applicant before approving the application. Following existing Alaska Conveyance Program policy, the relinquishment would be in the form of a letter from the State or Alaska Native corporation and must include the legal description of the parcel the entity is willing to relinquish. The letter must also describe the conditions, if any, for the relinquishment. If the relinquishment is by a Native corporation, the letter must be accompanied by a board resolution authorizing the relinquishment and granting the person signing the letter authority to do so.

If an application requests land covered by a blanket State or Alaska Native corporation relinquishment, a relinquishment letter and an Alaska Native corporation board resolution would not be required.

(6) Correcting Technical Errors on Applications (43 CFR 2569.410) —If the BLM finds a technical error in an application, such as an incomplete or unsigned application, it would notify the applicant. The applicant would then have 60 days after receiving notification to correct the error.

(7) Correcting Errors in Survey-related Documents (43 CFR 2569.501) —After receiving an application, reviewing the legal description of the land requested, and making minor boundary adjustments, if needed, the BLM would send the applicant a Notice of Survey, informing the applicant of the shape and location of the lands the BLM planned to survey. The applicant would have an opportunity to challenge, in writing, the draft Plan of Survey within 60 days of receipt of the BLM's notice.

(8) Substitute Selections—Multiple Applications on Same Lands (43 CFR 2569.502) —If two or more Eligible Individuals select the same lands, in whole or in part, the BLM would decide which application would be given preference based on either submission dates and times, or a lottery. The non-preferred applicants could, within 60 days of receipt of the BLM's decision, either provide the BLM a new substitute selection or request that the BLM continue to adjudicate the non-conflicting portion of the selection.

If a non-preferred applicant does not respond to the BLM's decision within 60 days, the BLM would reject the application and the Eligible Individual could file a new application for different lands before the end of the five-year program.

Upon completion of the survey, the BLM would mail the applicant a document titled Conformance to Plat of Survey. If the applicant found an error in the way the BLM surveyed the land, based on the Plan of Survey, the applicant could dispute the survey in writing within 60 days of receipt of the Conformance of Plat of Survey.

(9) Substitute Selections and Requests for Partial Adjudication (43 CFR 2569.502 and 2569.503) —If an Eligible Individual's selection includes lands that are not available Federal lands, the BLM would issue a decision informing the applicant that the land is unavailable. The applicant could, within 60 days of receipt of the BLM's decision either provide the BLM a new substitute selection or request that the BLM continue to adjudicate the portion of the selection that is within available Federal lands.

If the applicant fails to respond within 60 days of receipt of the BLM's decision, the BLM will reject the initial application and the Eligible Individual could file a new application for different lands before the end of the five-year application period.

(10) Appeals of BLM Decisions (43 CFR 2569.502, 2569.503, and 2569.801) —Applicants would be allowed to appeal any of the BLM's Decisions regarding their applications to the Interior Board of Land Appeals as provided for under 43 CFR part 4. If the applicant is a non-preferred applicant under 43 CFR 2569.502, the losing applicant could select a substitute selection under § 2569.502(b).

Title of Collection: Alaska Native Vietnam Era Veterans Land Allotment.

OMB Control Number: 1004-0216.

Form Number: None.

Type of Review: New.

Respondents/Affected Public: Individuals and State/Local/Tribal governments.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion.

Estimated Annual Nonhour Burden Cost: $55,000 (associated with court fees and miscellaneous expenses).

The Department believes that its decision-making ought to be transparent, rational, and well-honed to achieve legitimate government objectives with minimum transaction costs to the affected sector. This policy furthers those objectives and the objectives of the Richardson Waiver (see 36 FR 2532 (Feb. 5, 1971)), and various Executive Orders by requiring that all regulations issued by this Department are necessary, understandable, and provide clear guidance to the public and regulated entities regarding the standards to be met and procedures to be followed. Redundant, overlapping, or inconsistent regulations undermine these goals by injecting uncertainty, creating potentially conflicting regulatory regimes, and increasing transactions costs with no discernible benefit to the public.

Effective immediately, all agencies and offices of the Department that prepare regulations must ensure that any rule is not inconsistent with, and does not overlap with, any regulation that has already been issued through an agency within the Department. In the event an agency proposing that the Secretary issue a rule discovers that such rule is inconsistent or overlaps with another Department rule, the proposing agency shall not recommend issuance until it also recommends to the Secretary the steps to be taken to avoid duplicative or overlapping regulations.

Collection of information requirements: This document does not impose information collection requirements.

This a final rule summary for the Commission's report and order released October 9, 2020. A full text copy of this document can be accessed at the following internet address: https://www.fcc.gov/document/fcc-modernizes-rules-toll-free-calls .

1. 8YY services have long been a prominent fixture of the telecommunications landscape. Calls to 8YY numbers differ from other calls carried over the public switched telephone network in that the party receiving the call—not the party placing the call—pays the toll charges. When long-distance calls were expensive, allowing consumers to call businesses and other institutions without worrying about the cost of toll service was a benefit to consumers and to the companies receiving their calls. Reductions in toll rates and the rise of unlimited, all-distance calling plans have largely eliminated separate toll charges for consumers, yet 8YY services continue to have significant value, as evidenced by the persistently high demand for toll free numbers. Businesses and other institutions increasingly use 8YY numbers to support branding efforts, and to facilitate and evaluate marketing efforts—by, for example, assigning specific numbers to individual advertising campaigns to track the effectiveness of those campaigns.

2. The record indicates that the percentage of originating traffic attributable to 8YY has grown significantly over the years and currently accounts for the vast majority of originating access traffic. According to AT&T, for example, in 2008, 8YY originating minutes accounted for 64% of all AT&T originating access minutes (including minutes from AT&T affiliates) and by 2019, they accounted for 83% of all originating access minutes. Increased demand for toll free numbers has led the Commission to authorize a half a dozen additional toll free codes beyond the original 800 code, including the 888, 877, 866, 855, 844, and 833 codes.

3. To understand intercarrier compensation for 8YY calls, it is first necessary to understand how toll free calls are routed and how that differs from the routing of non-toll free calls. When a caller dials an 8YY number, the originating carrier does not simply pass the call to the customer's pre-subscribed interexchange carrier, as it would for a non-toll free call. Instead, to determine how to route a toll free call, the originating carrier typically queries an industrywide database operated by the Toll Free Number Administrator (the 8YY Database) to determine the 8YY provider for the dialed number. Typically, for calls routed over time-division multiplexing (TDM) based networks, to query the 8YY Database a carrier must route the 8YY call through a switch, equipped with a “service switching point.” The service switching point “suspends” routing of the call and, during this suspension, sends a query over the signaling system 7 (SS7) channel to a service control point. Service control points are “regional databases that contain routing instructions for the toll free numbers located in . . . particular geographic regions.” 8YY calls from customers served by local exchange carrier end offices that are not connected to a service control point can be routed to one of the local exchange carrier's tandem switches that is equipped with a service control point, and the call is processed from there. Local exchange carriers that do not own a service control point can purchase database query services from carriers that do.

4. A database query produces a carrier identification code, which tells the local exchange carrier to route the call to the 8YY provider, typically an interexchange carrier, associated with that carrier identification code. The originating carrier then uses its own or an intermediate carrier's transport and switching facilities to route the call to the designated 8YY provider.

5. Carriers assess intercarrier compensation somewhat differently for 8YY calls than for other calls. When a caller places a regular long-distance call from a landline telephone, the caller's local exchange carrier routes that call to the long-distance carrier (interexchange carrier) used by the caller through pre-arranged direct connections with the interexchange carrier or through a nearby tandem switch and the interexchange carrier pays the local exchange carrier for originating the call. The interexchange carrier is then responsible for routing the call to its final destination and for paying any charges associated with its decisions about how to route the call. For its part, the interexchange carrier is paid by the customer that placed the call.

6. By contrast, when a caller makes a toll free call from a landline telephone, the 8YY provider pays the caller's local exchange carrier for originating the call and for performing the 8YY Database query. The 8YY provider also pays tandem switching and transport charges to intermediate carriers in the call path between the local exchange carrier and the 8YY provider. The 8YY customer compensates the 8YY provider for completing the call. The rates paid by 8YY providers for various access charges typically are tariffed rates which vary widely depending on where an 8YY call originates and how it is routed.

7. The situation is slightly different for 8YY calls placed using a wireless carrier. The Commission's rules prohibit wireless carriers from tariffing terminating or originating access charges. As a result, a wireless carrier cannot assess 8YY providers for originating end office charges, database query charges, or tandem switching or transport charges.

8. In the 2011 USF/ICC Transformation Order (76 FR 73830, Nov. 29, 2011), finding that the intercarrier compensation system had become “riddled with inefficiencies and opportunities for wasteful arbitrage,” the Commission undertook comprehensive reform of the intercarrier compensation system by adopting bill-and-keep “as the default methodology for all intercarrier compensation traffic.” As a first step in moving intercarrier compensation toward bill-and-keep, the Commission established a plan to transition all terminating end office rates and some terminating tandem switching rates to bill-and-keep over six years for price cap carriers and competitive local exchange carriers that benchmark to price cap carriers and nine years for rate-of-return carriers and the competitive local exchange carriers that benchmark to them.

9. As part of the intercarrier compensation reforms adopted in the USF/ICC Transformation Order, the Commission created a transitional Eligible Recovery mechanism to mitigate revenue reductions wrought by the transition of terminating end office charges to bill-and-keep. The Commission defined as “Eligible Recovery” the amount of intercarrier compensation revenue reductions that price cap and rate-of-return incumbent local exchange carriers would be eligible to recover. An incumbent local exchange carrier's Eligible Recovery is based on a percentage of the reduction in intercarrier compensation revenues resulting from the reforms adopted in the USF/ICC Transformation Order. After calculating Eligible Recovery, incumbent local exchange carriers may recover that amount through Access Recovery Charges, subject to caps and, where eligible, Connect America Fund Intercarrier Compensation support. The Commission adopted a rebuttable presumption that these revenue recovery mechanisms would allow carriers to earn a reasonable return on their investment, and also adopted a Total Cost and Earnings Review to allow individual carriers to demonstrate that the rebuttable presumption is incorrect and that additional recovery is needed to prevent a taking.

10. In the USF/ICC Transformation Order, the Commission found that “originating charges for all telecommunications traffic subject to [its] comprehensive intercarrier compensation framework should ultimately move to bill-and-keep.” It declined, however, to move originating access to bill-and-keep immediately. Instead, it capped most originating access charges as “a first step” in a “measured transition toward comprehensive reform.” The Commission capped all interstate originating access charges and intrastate originating access charges for price cap carriers at their then current rates. The Commission also capped interstate originating access charges for rate-of-return carriers. But, it declined to cap intrastate originating rates for rate-of-return carriers to “control the size” of the Connect America Fund and to “minimize burdens on consumers.” The Commission further specified that the access charge reforms undertaken in the USF/ICC Transformation Order would “generally apply to competitive [local exchange carriers (LECs)] via the [competitive local exchange carrier (CLEC)] benchmarking rule,” which allows competitive local exchange carriers to tariff interstate access charges “at a level no higher than the tariffed rate for such services offered by the incumbent LEC serving the same geographic area.”

11. In the USF/ICC Transformation Further Notice of Proposed Rulemaking (FNPRM) (76 FR 78384, Dec. 16, 2011), the Commission committed to transition originating access charges to bill-and-keep and sought further comment on how to make that transition. It also specifically sought comment on the appropriate treatment of 8YY originating access, including the “need for a distinct 8YY resolution.” There was wide variation in 8YY originating access charges when the Commission capped most 8YY originating access charges at their 2011 rates in the USF/ICC Transformation Order. As a result, such rates continue to vary widely among carriers. Database query charge rates, for example, range from $0.0015 to $0.015 per query.

12. The unique routing of, and compensation for, 8YY calls have created opportunities for arbitrage and other abuse of the intercarrier compensation system. As AT&T describes it, “originating access charges for 8YY calls inherently invite fraud and abuse, because they create a mismatch in pricing signals” and carriers “are increasingly exploiting this arbitrage opportunity, and . . . increasingly focusing their efforts on 8YY calling now that most terminating access charges have gone to bill-and-keep.” Moreover, as the Commission observed in the USF/ICC Transformation FNPRM, “because the calling party chooses the access provider but does not pay for the toll call, it has no incentive to select a provider with lower originating access rates.” Because 8YY originating access charges have not yet transitioned to bill-and-keep, neither the originating carrier nor any intermediate provider that performs tandem switching and transport has an incentive to use the lowest cost means of routing the call since both may collect access charges. Incentives for 8YY abuse are further enhanced by the fact that 8YY access and 8YY Database query rates vary significantly, creating incentives for some providers to use carriers with higher rates to increase their revenues. Commenters identify four types of abuse associated with 8YY calls: traffic pumping, benchmarking abuse, mileage pumping, and database query abuse.

13. 8YY traffic pumping, or “robocalling,” occurs when an access-stimulating entity enters into a revenue sharing agreement with a local exchange carrier and then uses auto-dialing equipment to generate significant amounts of 8YY traffic that the carrier passes on to the interexchange carrier for payment. This kind of abuse involves the generation of 8YY traffic that has no legitimate purpose and exists solely for the purpose of obtaining intercarrier compensation. As AT&T explains, “these fraudulent calling schemes cause a wide variety of harms” including inundating “8YY customers with unwanted calls that increase the 8YY customer's expense,” and affect “the ability of legitimate calls to be completed or cause other systems to be disrupted.” As a result, 8YY customers “must pay for the traffic pumpers' calls to their numbers, for the time wasted by congested incoming lines and lost employee productivity, and for the procurement of remedial services.” 8YY robocallers have become very sophisticated and are able to display a different spoofed telephone number for each call they place to elude easy detection of their illegitimate calls.

14. A second type of benchmarking abuse occurs when an originating carrier in one part of the country sends its toll free calls to a competitive local exchange carrier located in a different part of the country where the incumbent local exchange carrier serving that geographic area has relatively high access charges. As AT&T explains, some competitive local exchange carriers “have set themselves up as 8YY `aggregators,' agreeing to handle 8YY calls from many originating providers.” The aggregating competitive local exchange carrier hands off its aggregated 8YY traffic to interexchange carriers in these more remote areas, thereby allowing the competitive local exchange carrier to charge higher access charges “relative to what the provider would have been able to charge in the incumbent LEC area where the call was actually placed.”

15. As Bandwidth further explains, toll free aggregators “that are inserted into the call path by the originators of Toll Free traffic routinely ignore the routing instructions in the SMS 800 database.” These toll free aggregators chosen by the originating carriers route 8YY calls to “whichever IXC or tandem is willing to pay the highest rate.” This kind of arbitrage “increases the amount of revenue to be shared, often adds additional hops, and can result in failed calls . . . driving up costs and disrupting [carriers'] ability to properly manage their networks.” These practices can also affect network management, causing unnecessary network congestion and ultimately distorting network investment.

16. A third type of 8YY arbitrage is mileage pumping, which occurs when a carrier artificially inflates the distance it routes an 8YY call to increase the transport revenues it receives when it hands off an 8YY call to the interexchange carrier that serves as the 8YY provider. Mileage pumping occurs when “a CLEC tariffs a per-mile charge for transport and then either (i) bills the IXC for transport it does not actually provide (because it is provided by a different provider) or (ii) inefficiently routes traffic long distances—sometimes more than a hundred miles—to inflate the number of miles applied to the per-mile transport charge.”

17. Finally, there is 8YY Database query abuse, which results from relatively high and varied database query charges and the fact that often more than one carrier assesses a database query charge in the course of routing an 8YY call ( i.e., double dipping). A significant portion of 8YY origination revenues are derived from assessing database query charges. The ability to assess high database query charges provides an additional incentive and revenue source for carriers engaged in other forms of 8YY arbitrage.

18. In 2016, the Commission sought comment on a petition filed by AT&T which, in relevant part, sought forbearance from rules related to pricing regulation and tariffing of 8YY Database query charges. AT&T subsequently moved to withdraw its petition and the Commission granted its motion.

19. In 2017, the Wireline Competition Bureau (Bureau) issued a Public Notice seeking to update the record in the USF/ICC Transformation Order dockets on 8YY access charges, in part in response to an ex parte letter filed by Ad Hoc Telecommunications Users Committee (Ad Hoc). In its letter, Ad Hoc alleges that there has been an increase in 8YY-related arbitrage and asks the Commission to reduce or eliminate incentives for that arbitrage.

20. In 2018, the Commission adopted a further notice of proposed rulemaking ( 8YY FNPRM ) (83 FR 31099, July 3, 2018) seeking comment on a proposal to move all 8YY originating access charges to bill-and-keep, impose a nationwide cap on 8YY Database query charges, and impose a limit of one query charge per 8YY call. The 8YY FNPRM also invited commenters to “propose additional, or alternative, methods for reforming originating 8YY access charges” in ways that “would reduce abusive practices related to 8YY calls.” It also sought comment on potential sources of revenue recovery.

21. In this document, we take the next steps toward transitioning intercarrier compensation to bill-and-keep by adopting rules aimed at curtailing abuse of the 8YY intercarrier compensation regime and preserving the value of toll free services. As an initial step, and to avoid further opportunities for arbitrage or rate increases during the transitions, we cap all originating 8YY end office, tandem switching and transport, and database query charges at their current rates as of the effective date of this Order. We then transition each of these rate elements. We reduce originating 8YY end office charges to bill-and-keep over three further steps beginning July 1, 2021 and ending July 1, 2023. We also adopt a single uniform nationwide rate cap of $0.001 per minute for originating 8YY tandem switching and transport access charges as of July 1, 2021. We reduce database query charges to a cap of $0.0002 per query in three steps ending July 1, 2023, and as of the effective date of this Order, we end double dipping by prohibiting carriers from charging for more than one query per call. These changes, which are consistent with recommendations in the USTelecom industry consensus proposal, will lower 8YY calling costs by removing inefficiencies, reducing incentives for carriers to use TDM networks and thereby encouraging the adoption of IP-based networks, and diminishing 8YY intercarrier compensation disputes. In making these changes to intercarrier compensation for 8YY traffic we continue our progress toward moving our intercarrier compensation system toward a bill-and-keep end state and drastically reduce the incentives that have led to the proliferation of 8YY arbitrage schemes.

22. As proposed in the 8YY FNPRM we transition originating 8YY end office charges to bill-and-keep. We agree with those commenters that argue that moving 8YY originating end office charges to bill-and-keep is the best way to remove the underlying incentives to route calls inefficiently and generally inflate the charges imposed on 8YY providers created by the existence of originating access charges for 8YY traffic. We also agree with those commenters that propose a three-year transition period as one that will give carriers sufficient time to adjust to this new regime.

23. As the initial step, we cap all intrastate originating 8YY end office rates not previously capped at their current levels as of the effective date of this Order. As the Commission explained when it capped most originating access rates, capping rates “ensures that no rates increase during reform” and also “minimize disruption to consumers and service providers by giving parties time, certainty, and stability” as they adjust to the changes we make in this document.

24. Then, effective July 1, 2021, we require all local exchange carriers to bring any intrastate originating 8YY end office access rates that exceed the comparable interstate rates into parity with the comparable interstate rates. As the Commission has recognized, intrastate rates that vary from interstate rates create “incentives for arbitrage and pervasive competitive distortions within the industry.” By bringing intrastate rates into parity with comparable interstate rates, this initial step will “minimize opportunities for arbitrage that could be presented by disparate intrastate rates.”

25. In the USF/ICC Transformation Order, the Commission declined to cap intrastate originating rates for rate-of-return carriers because it wanted to “minimize[ ] the burden intercarrier compensation reform [would] place on consumers and . . . help manage the size of the access replacement mechanism.” The Commission sought comment on whether to “initially defer the transition to bill-and-keep for originating access to the states to implement.” Some state commissions have urged the Commission to proceed cautiously, if at all, and to allow an additional time period to transition originating access to bill-and-keep. In the nine years since the Commission adopted the USF/ICC Transformation Order, the industry has transitioned the majority of interstate and intrastate terminating charges to bill-and-keep without disrupting carriers' ability to operate and update their networks. Thus, the Pennsylvania Public Utilities Commission's argument that it would be premature for the Commission to proceed with any further intercarrier compensation reform because “the Commission has not yet fully implemented the initial rate transition for terminating access charges that it adopted in 2011” is now moot. Likewise, the Pennsylvania Public Utilities Commission's concern that a “notice to refresh the record is not the proper vehicle to consider and adopt any comprehensive proposals” to reform intercarrier compensation is no longer relevant. We only revise originating access for 8YY services, not other aspects of intercarrier compensation, and we do so after the Commission released a further notice of proposed rulemaking ( 8YY FNPRM ) and a rigorous examination of the record we have received in response to that FNPRM. We find no reason to further delay the transition of intrastate originating 8YY access charges for rate-of-return carriers. To the contrary, we find that bringing some rate-of-return carriers' intrastate originating 8YY end office access rates to parity and capping them all will reduce arbitrage with minimal disruption, and will provide an appropriate starting point for the multiyear transition of these rates to bill-and-keep that we adopt herein.

26. Although the Commission capped price cap carriers' interstate and intrastate originating rates in the USF/ICC Transformation Order, the Commission did not require those carriers to bring originating intrastate rates to parity with the comparable originating interstate rates. If a price cap carrier's capped originating intrastate end office rates are above the comparable interstate rates, that carrier is required to reduce its intrastate rates to interstate levels on July 1, 2021.

27. After reducing or capping intrastate 8YY end office rates, we next transition all intrastate and interstate originating 8YY end office charges from their capped amounts to bill-and-keep in two equal reductions. Effective July 1, 2022, we reduce all originating 8YY end office rates to half of their capped levels. Then, effective July 1, 2023, we reduce all originating 8YY end office rates to bill-and-keep.

28. Moving originating 8YY end office charges to bill-and-keep is consistent with the Commission's long-held determination that bill-and-keep will be the end state for all access charges, including originating access. It therefore aligns with the Commission's adoption of bill-and-keep for local exchange carriers' terminating end office access charges in the 2011 USF/ICC Transformation Order as well as the Commission's decision that wireless providers cannot impose access charges. Indeed, as Ad Hoc observes, “[t]he legitimacy of the use of bill-and-keep as a mechanism for access traffic has not been the subject of serious debate for some time.”

29. We also agree with those commenters that argue that moving to bill-and-keep is the best approach to reducing (or eliminating) incentives for 8YY arbitrage and other abuse. Under our existing rules, the interexchange carrier is unable to choose the originating call path and must pay the local exchange carrier's charges to originate the call, and there is evidence that carriers routinely ignore the routing direction provided by the 8YY provider in the 8YY Database. This mismatch in incentives is “what inherently creates the opportunity for arbitrage and fraud,” as originating local exchange carriers not only lack incentives to minimize intercarrier compensation charges but actually have an incentive to inflate those charges. As Ad Hoc explains, “[b]ecause the choosing party has no incentive to select the provider with the lowest access charges, there is no competitive pressure on those charges. But there are powerful incentives for unscrupulous actors to take advantage of this broken market by generating traffic to 8YY numbers for no purpose other than to inflate the access charge revenues that are ultimately paid by toll free service customers.” Bill-and-keep, by contrast, “will incentivize efficient call routing and will benefit the public interest,” as the originating “LEC would recover its costs from its end user”—or from existing recovery mechanisms—and will face competitive pressure to make cost-efficient routing decisions.

30. The Commission previously adopted bill-and-keep as the default methodology for all intercarrier compensation traffic and recognized that adopting bill-and-keep “imposes fewer regulatory burdens and reduces arbitrage and competitive distortions inherent in the current [intercarrier compensation] system, eliminating carriers' ability to shift network costs to competitors and their customers.” We find no merit to arguments that 8YY traffic should be excluded from our actions to move intercarrier compensation to bill-and-keep. Contrary to some commenters' claims, apart from the obligation of 8YY providers to pay the long-distance costs, there is nothing unique about 8YY traffic that militates in favor of exempting such traffic from a bill-and-keep regime. Bill-and-keep itself remains “competitively neutral, treating all carriers equally.” And, moving end office charges to bill-and-keep will significantly reduce 8YY arbitrage, given that end office charges represent a majority of all originating access charges. In sum, we agree that adopting bill-and-keep for 8YY end office charges “fosters competition, is simple to establish and administer, and addresses arbitrage,” and “the `competitive distortions' 8YY access charges create.”

31. Some commenters argue against moving to bill-and-keep and instead urge us to adopt narrower, more targeted rules to prohibit specific 8YY arbitrage or abusive practices or simply pursue enforcement through the Commission's Enforcement Bureau or the courts. Targeted enforcement actions are important, but insufficient because enforcement under our current rules for the provision of 8YY services would not be able to address the underlying incentives that drive 8YY arbitrage and abuse. While adopting rules narrowly targeting specific practices would likely result in parties revising their arbitrage schemes to circumvent the specific prohibitions, adopting narrower solutions would also be “impractical and unworkable as a matter of day-to-day implementation,” and would continue to place the burden of detection and enforcement on 8YY providers, rather than on the carriers that are abusing the current access charge regime. We also agree with AT&T that there is a risk that “ ex ante prohibitions will not deter bad actors from pursuing traffic-pumping or other arbitrage schemes, and the result of any such system will inevitably be extensive ex post litigation and billing disputes.” And despite requests for targeted enforcement against, for example, “robocalling-enabled arbitrage or other bad practices,” commenters do not provide specifics that would allow us to identify these “bad practices,” or what specific measures we should take to curtail them. Without eliminating the financial incentives to engage in arbitrage, the Commission would continually find itself reacting to new arbitrage schemes designed to exploit our rules, given the creativity and adaptability of entities engaging in arbitrage. We conclude that focusing on the next steps in transitioning 8YY access rates to “bill-and-keep eliminates the financial incentives” for 8YY arbitrage and is more likely to eliminate these practices than targeted measures.

32. For similar reasons, we also decline to adopt Aureon's proposal that instead of modifying our intercarrier compensation rules we adopt a blanket prohibition against “8YY abuse as an unjust and unreasonable practice.” Aureon offers no details about the types of conduct it would have us prohibit, let alone how we could effectively enforce such a prohibition. Further, nothing in Aureon's submission or in the record supports its assertion that merely adopting an amorphous prohibition against 8YY abuse would lead industry to “work cooperatively and take the legal and technical actions necessary to prevent unlawful 8YY calls.” Aureon's contention that the Commission's “indirect approaches, which have so far focused upon financial incentives and modifications to intercarrier compensation, have not stopped access arbitrage” is not supported by the facts. In 2011, before the USF/ICC Transformation Order took effect, terminating access arbitrage was estimated to cost carriers and their customers as much as $330 million to $440 million annually. By 2019, that estimate declined to $60 million to $80 million, a dramatic reduction that we believe was largely the result of the Commission's reform efforts. The rules we adopted last year in the access arbitrage proceeding appear to be further reducing the costs of terminating access arbitrage. The rules we adopt in this document are another step in the Commission's “comprehensive intercarrier compensation reform,” and continue our effort to address, over time, carriers' incentives and ability to abuse our intercarrier compensation rules.

33. We find unnecessary suggestions that we adopt rules requiring local exchange carriers to offer direct connections to interexchange carriers. AT&T, for example, proposes that we adopt a rule requiring that local exchange carriers either offer direct connections to interexchange carriers for originating 8YY access or, if the originating carrier refuses to do so, require the local exchange carrier to assume financial responsibility for delivering the call to the interexchange carrier. AT&T argues that its proposal would alleviate concerns that tandem providers would be unable to charge for their services if the Commission moved tandem switching and transport to bill-and-keep because tandem providers have no end users. But the non-zero rate cap we adopt for tandem switching and transport as we continue our transition ultimately to bill-and-keep will allow intermediate tandem providers to charge for their services, obviating any need to adopt AT&T's proposal. Moreover, we agree with Aureon that AT&T's proposal would not accomplish the goals of this proceeding.

34. Other, more detailed direct connection proposals are both unnecessary to achieve the objectives of this proceeding and create additional challenges. For example, West's proposal that we require all carriers to negotiate bilateral direct connections in good faith would require us to determine whether such negotiations were undertaken in good faith, a factual question which would be difficult to resolve. O1's proposal that we mandate that carriers offer direct connections “to requesting carriers that send or receive at least four T-1s of originating/terminating traffic per month” extends to issues beyond the scope of this proceeding and the current record does not provide a sufficient basis for us to evaluate the impact these proposals would have on the industry.

35. We likewise decline requests that we undertake other broad changes to our intercarrier compensation system in this proceeding, such as transitioning all originating access charges to bill-and-keep or addressing “all of the remaining intercarrier compensation transition issues” stemming from the USF/ICC Transformation Order holistically rather than in a piecemeal fashion. Such broad changes would be inconsistent with the incremental approach the Commission has taken to intercarrier compensation reform and the transition to bill-and-keep, which is designed to provide carriers the necessary time and flexibility to adapt their businesses to the changes we adopt without undue disruption. Those proposals would also “fail[] to account in any way for the differences between 8YY originating access functionality and terminating access functionality,” most notably network functions, such as database queries, that are particular to 8YY traffic.

36. We also decline suggestions to issue a second further notice of proposed rulemaking to seek comment on “more refined proposals” for combating 8YY abuses. Issuing another further notice would only create uncertainty and unnecessarily delay our ability to address 8YY arbitrage schemes and eliminate the harms such schemes continue to inflict on both consumers and on 8YY subscribers.

37. We also disagree with parties that suggest the record contains insufficient data to justify adopting new rules to combat 8YY arbitrage. According to AT&T, for example, “arbitrage and fraud in connection with 8YY calling have become widespread and are growing.” In quantifying that growth, AT&T specifies that in 2008, 8YY traffic was 64% of all originating traffic and by 2019, it had grown to 83% of all originating traffic. Verizon echoes AT&T's claims, alleging that 8YY abuse is “proliferating since terminating access rates have transitioned to bill-and-keep.” Given AT&T and Verizon's role as 8YY providers and the relatively comprehensive market data they have access to, we find their characterizations of the 8YY market to be an acceptable basis for the actions we take. Furthermore, 8YY subscribers concur in this assessment. The record also makes clear that 8YY subscribers “have seen an increase in the number of fraudulent calls terminating to their toll free numbers” and that “fraudulent access stimulation in the 8YY market is not an isolated problem.” 8YY customers have had to “pay for the traffic pumpers' calls to their numbers, for the time wasted by congested incoming lines and lost employee productivity, and for the procurement of remedial services from companies that provide voice network security services . . . .” And in a 2016 survey conducted by the Toll Free Number Administrator, 35% of all Toll Free Responsible Organizations reported that traffic pumping was a “key obstacle facing the industry.” The Toll Free Number Administrator estimates that up to 20% of toll free minutes for some carriers could be the result of traffic pumping. This and other evidence convince us of the pressing need to reform the 8YY access charge regime. Reducing the costs of 8YY arbitrage is more than sufficient justification for the rules we adopt in this Order, and the record regarding the burdens 8YY arbitrage imposes on carriers, toll free subscribers, and consumers is extensive. Various carriers describe a “wide variety of harms” that 8YY schemes cause ranging from unwanted calls and increased expenses to call completion issues. While Ad Hoc explains that its members have seen an increase in the number of fraudulent calls terminating to their toll free numbers, resulting in tied up lines, lost productivity, and the need for unnecessary remedial expenses such as voice network security services. Critics of the record in this proceeding set too high an evidentiary threshold for Commission action; have not submitted data in the record to support their position; and fail to acknowledge the prevalence of 8YY arbitrage or the harms caused by such arbitrage.

38. We are also unpersuaded by commenters arguing that moving originating end office charges to bill-and-keep would enable IXCs to reap windfall profits. Instead, we agree with GCI that “[e]liminating the implicit subsidies in the current system cannot fairly be described as a `windfall'; rather, it will incentivize efficient call routing and will benefit the public interest.” In fact, the Commission rejected similar arguments when it moved terminating end office charges to bill-and-keep, finding that a significant proportion of interexchange carriers' reduced access expenses were likely to be passed through to benefit consumers. We expect that the cost savings resulting from our new rules will flow through to interexchange carriers' customers, in the form of lower prices or better service or both, and we therefore decline to require interexchange carriers to pass through the benefits they receive as some commenters have suggested.

39. We disagree with Public Knowledge that the approach we take in this document “will allow IXCs to `double dip' by charging 8YY subscribers fees to own an 8YY number as well as charging LECs that route the 8YY calls” resulting in a “windfall” for interexchange carriers. The rules we adopt in this document do not allow an interexchange carrier to charge a local exchange carrier for originating a call. To the contrary, moving originating 8YY end office charges to bill-and-keep will foreclose any carrier's ability to assess those intercarrier charges. Indeed, the premise of bill-and-keep is that carriers rely on their own end users, rather than other carriers, to recover their costs. At the same time, 8YY providers will continue to be responsible for the long-distance charges for calls placed to their 8YY numbers.

40. There is also no reason to believe that moving 8YY end office access charges to bill-and-keep will lead to an appreciable increase in rates for local service. As Ad Hoc points out, “in wireless markets, the bill-and-keep framework has been in place for years and no separate, toll free specific charges have been imposed on callers.” In fact, charges for wireless calling plans declined even as access charges for wireless calls moved to bill-and-keep. There is no reason to expect a different outcome here.

41. Relatedly, we are unpersuaded by commenters' unsupported assertions that moving to bill-and-keep will somehow hamper rural local exchange carriers' ability to meet the broadband needs of their customers. Our rules provide a revenue recovery system for lost interstate 8YY revenue for the rate-of-return local exchange carriers and we leave it to the states to handle the substantially smaller impact on intrastate 8YY revenue. Furthermore, as important as we find broadband deployment, we continue to reject the suggestion that we should preserve inefficiencies in our intercarrier compensation regime to implicitly subsidize carriers' efforts to deploy broadband.

42. Contrary to the views expressed by some commenters that appear to profit as middlemen in the existing intercarrier compensation regime, we find that interexchange carriers' customers, and consumers in general, will benefit from our efforts to address 8YY abuses. By reducing the incentives for local exchange carriers to engage in 8YY arbitrage, we expect to see a reduction in, or elimination of, such arbitrage. As AT&T points out, bill-and-keep “shifts originating costs to end user charges, where they can be disciplined by competition.” This will result in inflated costs being “competed away, which will make the overall system more efficient and permit 8YY calling to occur at efficient (and still robust) levels.”

43. The reforms we adopt here do not alter the fact that the toll portion of an 8YY call will still be paid by the called party, not the calling party, thereby preserving the toll free nature of 8YY calls. Thus, arguments by some parties that 8YY calls would no longer be “free” with the imposition of bill-and-keep are misplaced. For the same reason, we find that concerns that Teliax and others have raised about potential false advertising claims related to 8YY calling are groundless; the calls will remain toll free to consumers even after this Order takes effect. It is also worth noting that consumers have always paid for service from their local provider as a component of any toll free call.

44. With respect to issues of self-help that some commenters have raised, we reiterate our previous statements cautioning parties to be mindful of “their payment obligations under the tariffs and contracts to which they are a party.” We continue to discourage providers from engaging in self-help except to the extent that such self-help is consistent with the Communications Act of 1934, as amended (the Act), our regulations, and applicable tariffs. Disallowing self-help, whether in the access stimulation context or not, would be inconsistent with existing tariffs, some of which permit customers to withhold payment under certain circumstances.

45. Transition. We find that the multiyear transition period that we adopt for moving originating 8YY end office access charges to bill-and-keep “affords a reasonable period [for carriers to] make adjustments” to reduce these rates to bill-and-keep. We amend §§ 51.907 and 51.909 of our rules to effectuate this transition for price cap and rate-of-return carriers and rely on the application of the existing benchmark requirements in §§ 51.911(c) and 61.26 of our rules to apply this same transition to tariffed rates charged by competitive local exchange carriers. We begin by capping all intrastate and interstate originating 8YY end office rates that are not already capped as of the effective date of this Order. Next, we require carriers to bring their intrastate originating 8YY end office rates that exceed their interstate originating 8YY end office rates into parity with their interstate rates as of July 1, 2021. In doing so, we “balance the importance of starting the first step of reform as quickly as possible with the practical realities that billing system implementation and tariff revisions” will take some time. This step of our transition provides a “gradual rate reduction of intrastate to interstate charges,” followed by a 12-month period before the next rate reduction to enable carriers to “appropriately adjust and phase in revenue changes.” Additionally, these rate reductions and those scheduled for July 1, 2022 and July 1, 2023 are timed to coincide with annual access tariff filing dates, minimizing administrative burdens on filing entities and on the Commission. The transition period exceeds the two-year transition for originating 8YY access rates on which the Commission sought comment in the USF/ICC Transformation FNPRM. It also closely parallels the transition proposed in the 8YY FNPRM by reducing rates in three steps over a three-year transition. Several commenters support transitions of similar duration, and we find that a three-year transition with rate changes tied to the annual access tariff filings benefits both carriers and consumers.

46. Some commenters advocate for a shorter transition period, or even for no transition at all. They suggest that the costs of 8YY arbitrage are significant enough to justify a more rapid transition. However, we find that allowing no transition or only a single year would not give providers adequate time to adapt their business plans to accommodate the move to bill-and-keep. Other commenters argue for a longer transition, some as long as the transition provided to move terminating end office charges to bill-and-keep. We agree, however, with those commenters that argue that a six- or nine-year transition, like the one the Commission adopted for terminating end office access charges, would inappropriately “perpetuate incentives for the originating . . . carriers involved to engage in traffic pumping and other arbitrage schemes,” and “allow perpetrators of fraud and traffic pumping to eke out [additional] years of access revenues.” In 2011, transitioning to bill-and-keep was a relatively untested concept. By now, carriers have had over eight years to adapt to bill-and-keep and have successfully accomplished that transition for terminating end office rates. Carriers have also been on notice since at least 2011 that the Commission plans to move all intercarrier compensation to bill-and-keep. The multiyear transition we adopt today for originating access charges means that carriers will have had eleven years to prepare for the elimination of 8YY originating end office rates. We find that the transition period we adopt strikes the appropriate balance between providing carriers adequate lead time to adjust to the new rules, “while still moving quickly to the desired end state of bill-and-keep.”

47. Our decision is also influenced by the fact that the revenues affected by this Order are likely to be smaller than those affected as a result of the USF/ICC Transformation Order. In the USF/ICC Transformation Order, the Commission reduced most terminating intrastate rates to interstate rates, capped most originating intrastate and interstate charges for price cap carriers and originating interstate charges for rate-of-return carriers at 2011 levels, and reduced carriers' Eligible Recovery by 10% annually for price cap carriers and 5% annually for rate-of-return carriers. By contrast, according to NTCA estimates, rural local exchange carriers' (RLECs) total originating 8YY access revenues for the 12 months from July 2019 through June 2020 were approximately $30.3 million. In addition, the record shows that while 8YY arbitrage has increased in recent years as a percentage of originating traffic, overall originating traffic and therefore originating access revenues have declined. Thus, we find that moving originating end office access charges for 8YY calls to bill-and-keep will have a smaller relative impact on carriers than did the rules the Commission adopted in the USF/ICC Transformation Order. Accordingly, we find that a multiyear transition ending July 1, 2023 is reasonable for moving originating 8YY end office charges to bill-and-keep.

48. Next, to reduce incentives for arbitrage with respect to 8YY originating tandem switching and transport rates while preserving the role of independent tandem providers, we move rates for these services toward bill-and-keep by adopting the proposal made by USTelecom that we impose a single nationwide tariffed joint tandem switched transport access service rate cap of $0.001 per minute for originating 8YY traffic. We amend §§ 51.907 and 51.909 of our rules to effectuate this transition for price cap and rate-of-return carriers and rely on the application of the existing benchmark requirements in §§ 51.911(c) and 61.26 of our rules to apply this same transition to tariffed rates charged by competitive local exchange carriers. In the interest of reducing administrative burdens, we allow carriers to implement any necessary changes as part of their next set of annual tariff revisions, and make the cap effective July 1, 2021. To prevent gamesmanship in the interim, we cap all intrastate and interstate originating toll free tandem switching and transport rates at their current levels as of the effective date of this Order.

49. Although the Commission proposed moving these rates to bill-and-keep in the 8YY FNPRM, we agree with commenters that doing so at this stage would leave uncompensated those intermediate providers that do not serve end customers. We remain committed to moving all intercarrier compensation to bill-and-keep and by taking this interim step toward that goal, we leave for further consideration questions of the network edge and how intermediate providers will be compensated when we reach a full bill-and-keep-regime. Allowing carriers to charge for tandem switching and transport service under a uniform nationwide rate cap will preserve independent tandem service providers' role in routing originating 8YY traffic until we complete the transition of these rates to bill-and-keep.

50. In the meantime, we find that instituting a single uniform tandem switching and transport rate cap “will immediately remove the largest incentive to create [8YY] arbitrage schemes.” Because originating carriers and intermediate providers currently charge interexchange carriers for transport on a distance-sensitive, per-minute, per-mile basis, they have an incentive to engage in “mileage pumping, inefficient routing and aggregation of 8YY traffic to high rate areas.” AT&T, for example, describes mileage pumping schemes in which “a CLEC tariffs a per-mile charge for transport and then either (i) bills the IXC for transport it does not actually provide . . . or (ii) inefficiently routes traffic long distances—sometimes more than a hundred miles—to inflate the number of miles applied to the per-mile transport charge.” As Verizon explains, “as long as 8YY tandem-switched transport rates remain high, and continue to vary from LEC to LEC, there will be strong incentives for carriers to engage in such arbitrage schemes.” We agree with USTelecom that, because “the lack of uniformity in current rate structures tend[s] to distort the market by incenting 8YY call origination and aggregation in remote areas,” setting a nationwide cap on originating 8YY tandem switching and transport rates will reduce 8YY arbitrage, particularly abuses related to 8YY benchmarking. Although they do not necessarily agree with the level of the rate cap, several intermediate providers agree that we should cap the rate for tandem switching and transport. Inteliquent, for example, “emphasized its agreement with USTelecom that the Commission should adopt a nationwide tandem rate to address any abuses in tandem charges assessed for 8YY-related costs.”

51. In addition to eliminating incentives for 8YY benchmarking and mileage pumping, a single nationwide tandem switching and transport rate cap for 8YY traffic constitutes another transitional step in the process of achieving the Commission's longer term goal of moving all intercarrier compensation to bill-and-keep. Furthermore, if we transition 8YY originating end office charges to bill-and-keep without also taking action to begin the transition of originating 8YY tandem switching and transport charges toward bill-and-keep by reducing those rates, we could create incentives for carriers to shift the focus of their 8YY arbitrage schemes to tandem switching and transport charges. Such a shift would not be unlike the shift in arbitrage practices that occurred when the Commission moved terminating end office rates to bill-and-keep but left certain terminating tandem switching and transport rates in place.

52. We agree with commenters that it is premature to move originating toll free tandem switching and transport charges to full bill-and-keep, as proposed in the 8YY FNPRM. As commenters including AT&T, CenturyLink, and independent tandem providers argue, because intermediate tandem providers generally do not serve end-user customers, moving tandem switching rates to bill-and-keep--which is premised on carriers obtaining compensation from their end users--could strand them without a clear source of revenue. Commenters observe that the result could be to “disincentivize investment in tandem facilities,” and “limit[] the benefits tandem services provide to the entire public switched network.” We agree that independent tandem services add important “network redundancy and alternative routing options,” and “are a fundamental component of today's telecommunications network.” Mindful of the importance of these attributes, our institution of an interim national rate cap retains “an IXC payment obligation for tandem functionality utilized for originating 8YY traffic,” and preserves independent tandem providers' ability to receive compensation for the services they provide.

53. Some parties claim that today's reforms will shift financial incentives to engage in 8YY traffic stimulation to interexchange carriers, or allege that interexchange carriers are responsible for the increase in access charges they must pay because IXCs have encouraged their 8YY customers to increase their use of toll free services. These assertions are unsupported by the record. Commenters provide no explanation as to how interexchange carriers either drive or would engage in such arbitrage, nor do they offer any evidence that such schemes exist. These commenters also fail to acknowledge that by moving 8YY end office charges to bill-and-keep and moving to a uniform nationwide tandem switched transport access service rate cap, we reduce incentives for all carriers to engage in 8YY arbitrage.

54. FailSafe Communications, Inc., (FailSafe) requests that we provide an indefinite exemption from bill-and-keep for 8YY access traffic associated with small and medium-sized business end users with less than 24 phone lines, arguing that the “loss of the [carrier access billing] contribution” would upset its current business model targeted at small and medium-sized businesses. We do not find that such an exemption is justified. FailSafe fails to recognize that to the extent that its clients are the recipients of 8YY calls, they will benefit from lower access prices paid by their 8YY provider. To the extent FailSafe's business model relies on intermediate carriers being paid for tandem switching and transport, we provide a uniform tariffed rate for those services. Furthermore, FailSafe does not offer a justification for the broad waiver it requests for access traffic associated with small and medium-sized business end users, nor does it explain how such a waiver could be operationalized.

55. We also decline to adopt the alternative proposal the Commission sought comment on in the 8YY FNPRM that would have imposed mileage limitations on 8YY transport charges and would have transitioned originating 8YY tandem switching and transport rates to bill-and-keep, but only where the “originating carrier also owns the tandem.” There is no basis in the record for treating some tandem and transport providers owned by originating providers differently than independent tandem providers. Further, this proposal would allow abuse by independent tandem providers to continue unchecked.

56. Upon review of the record, we now reject proposals to impose specific distance-based mileage caps such as a ten-mile flat distance cap, mileage limits that “vary by the type of market,” or a cap based on the “shortest practicable direct route.” We find these and other suggestions in the record concerning tandem switching and transport overly narrow and therefore unlikely to be as successful in curtailing abuse as adopting a single, uniform rate cap. Any attempt to cap just 8YY transport mileage would only create incentives to abuse other aspects of the rate. In addition, commenters that recommend a mileage cap have provided insufficient data to allow us to determine the appropriate distance for a mileage cap, if we were to adopt one. Alternatively, ITTA recommends that we require competitive local exchange carriers to benchmark tandem and transport rates to the “charges of the ILEC in the market where 8YY traffic originates.” We find this approach would be administratively burdensome and potentially unworkable given the difficulties inherent in determining “where [an 8YY] call originates,” difficulties that will only increase with the evolution of new technologies.

57. Instead, we find that the most workable interim solution to addressing arbitrage of toll free tandem switching and transport rates in connection with intercarrier compensation for 8YY traffic is to set a single nationwide joint tandem switched transport access service rate cap of $0.001 per minute as an interim step toward moving these services toward bill-and-keep. USTelecom proposes this rate as part of its consensus proposal and states that this rate “would address negative incentives that currently exist in the market while allowing legitimate cost recovery and providing a level competitive playing field for all market participants.” USTelecom explains that “$0.001 remains an `above cost' rate' ” and that “rates at and below $0.001 exist today and CLECs currently provide service in those areas at those rates due to the ILEC benchmarking rule.” According to USTelecom, a rate of $0.001 per minute is approximately at the midpoint of rates currently assessed by its larger members. In addition, USTelecom members that own tandem switches “agree to provide service at this rate” and find no reason to charge higher existing rates given their agreement.

58. Bandwidth, a facilities-based competitive local exchange carrier that operates an interexchange network to provide 8YY service, agrees with the USTelecom proposal, explaining that, in Bandwidth's experience “without revenue sharing, a tandem charge of $0.001 should be sufficient to recover an IP tandem provider's costs of delivering the traffic to the [Responsible Organization].” According to Bandwidth the $0.001 per minute rate “is likely high enough to enable a revenue share of $0.0005-7,” suggesting that costs to provide tandem switching may in fact be lower than $0.001 per minute. As Bandwidth also explains, adopting a higher rate could retard the transition to IP networks by perpetuating a high rate for TDM switching. Indeed, although independent tandem providers may be more reliant than other carriers on revenues from these services, their filings in the record of this proceeding also make clear that they rely principally on lower-cost IP-based switching and transport to provide service and are therefore likely to have lower costs than carriers that operate legacy TDM-based networks. Given this record evidence, we find that a cap of $0.001 per minute will allow carriers, including intermediate tandem providers, a reasonable level of compensation for providing 8YY tandem switching and transport services as we transition all 8YY access rates ultimately to bill-and-keep. Allowing carriers to charge as much as $0.001 per minute for tandem switching and transport also addresses concerns that intermediate providers would not receive compensation for 8YY traffic routed over their networks. Given the support for a uniform nationwide rate cap in general, particularly from intermediate providers such as Inteliquent and Bandwidth, we concur that a uniform cap is suitable, notwithstanding the potentially variable nature of transport service.

59. Unsurprisingly, even among carriers that support a uniform rate cap, not all carriers support the $0.001 per minute rate for joint tandem switched transport access services. In particular, Inteliquent proposes a nationwide uniform rate cap of $0.0017 per minute, which it describes as a national average tandem usage rate it calculated using its own internal traffic data. Inteliquent claims its proposed rate is “based on those charged by the largest ILECs, which in turn were based originally on cost studies.” Yet, Inteliquent fails to acknowledge that those cost studies are almost three decades old and, given the generally declining costs of providing telecommunications service, those dated cost-based rates almost certainly overstate carriers' current costs. Moreover, the fact that a broad consensus of USTelecom member companies is willing to accept a lower rate would appear to confirm that Inteliquent's average rate is unlikely to reflect the USTelecom member companies' current costs. Inteliquent also argues that “picking an arbitrary, unweighted number that might be sufficiently compensatory to some carriers in some circumstances is not a form of `averaging' ” accepted by courts. But, of course, there is nothing arbitrary about the rate cap of $0.001 that we adopt.

60. Inteliquent's preferred approach, however, would be the adoption of a higher rate cap of $0.002814/minute that would include tandem switching, transport, and what it refers to as “dedicated tandem charges” as the “best method” to avoid harming competitive tandem providers like Inteliquent. Our rules governing tandem-switched transport access services currently exclude flat rated charges for transport of traffic over dedicated transport facilities. We similarly exclude such dedicated charges from the rules we adopt here for joint tandem switched transport access services. The Commission sought comment on the possible inclusion of “fixed charges” in the 8YY FNPRM but, apart from Inteliquent's suggestion, the record is devoid of any discussion of the potential implications of including dedicated transport services in our rate cap. Inteliquent's claim that if we do not incorporate dedicated tandem charges into the uniform tandem switching and transport rate, incumbent LECs will simply increase the rates for those charges is misplaced. Those charges were capped by the USF/ICC Transformation Order at their 2011 levels, with the exception of rate-of-return carriers' intrastate traffic, which represents a small minority of all 8YY traffic. We also have some concern that setting a toll free tandem switching and transport rate cap inclusive of dedicated transport charges could overcompensate at least some competitive tandem providers. If, as Inteliquent explains, dedicated tandem charges are “disproportionally levied by incumbent LECs,” then adopting a higher unified rate for tandem switching, transport and dedicated transport would offer a windfall to the competitive carriers that do not typically charge for those services and increase, rather than decrease, the cost of 8YY services. As we continue to proceed incrementally in the implementation of bill-and-keep for 8YY traffic, we will monitor the impact of this Order on toll free dedicated transport charges and will revisit the issue if our actions in this Order adversely impact competition for these services.

61. After careful review of the record, we find that a rate cap of $0.001 will reasonably compensate providers for tandem switching and transport access services while we consider how best to move all intercarrier compensation to a bill-and-keep regime. As we make that transition, there is no legal requirement that we establish purely cost-based rates. The rate cap we adopt here is not intended primarily to reflect carriers' costs but is instead intended to ensure a reasonable transitional rate as part of our transition of originating toll free tandem switching and transport rates to bill-and-keep. The Commission has previously delineated the merits of bill-and-keep as a rate methodology and affirms those benefits here. Carriers that believe this cap provides insufficient revenue recovery may seek a Total Cost and Earnings Review provided for in this Order.

62. Implementation. To achieve this nationwide uniform cap, effective July 1, 2021, we require that tandem providers eliminate existing tandem switching charges and transport charges for originating 8YY traffic, and instead subsume charges for both tandem switching and transport into a single joint tandem switched transport access service rate element not to exceed $0.001 per minute. The new rate structure we adopt will compensate the tandem provider for the use of its facilities whenever it provides either or both elements of a joint tandem switched transport access service. We find that requiring carriers to combine their tandem switching and transport rates into a single per minute rate element is “simpler to implement” than an approach that keeps the two separate, reducing the burden on carriers that must implement the new rules.

63. To give tandem providers adequate time to implement our rate cap, we require carriers to file tariffs that comply with the interim rate cap for originating 8YY tandem switching and transport rates effective July 1, 2021. We find that this period of time provides carriers with a reasonable timeframe in which to transition their rates to the $0.001 per minute cap, and allows for implementation of necessary changes to billing systems and the filing of required tariff changes as part of carriers' annual tariff revisions. At the same time, to avoid gamesmanship before July 1, 2021, we cap all existing toll free tandem switching and transport rates as of the effective date of this Order.

64. A longer transition, such as the one we adopt for moving originating 8YY end office charges to bill-and-keep, is unnecessary in this instance because tandem switching accounts for a smaller proportion of total originating access charges, and carriers will still be able to charge intercarrier compensation for toll free tandem switching and transport and will not need to find alternative sources of revenue for their tandem switching and transport costs during this transition. Adopting a longer transition, on the other hand, would unnecessarily prolong carriers' incentives to engage in 8YY arbitrage and could delay carriers' transition to IP-enabled services.

65. Network edge. In response to a request in the 8YY FNPRM for comment on whether a distinct approach to determining the network edge is necessary in the 8YY context, T-Mobile proposes that we require carriers to interconnect at “no more than a few dozen POIs for the entire country” instead of at “hundreds, or even thousands of POIs across the country.” It describes existing interconnection arrangements as an inefficient system that is “slowing the transition from legacy transmission platforms and services to those based fully on internet Protocol.” NTCA opposes the T-Mobile proposal, claiming that “the shift of all financial responsibility to RLECs serving relatively small customer bases in remote rural areas for transport to reach distant points would undermine universal service and the ability to maintain reasonably comparable rates.” NTCA also argues that “moving from existing network edges would introduce a much greater degree of uncertainty and exacerbate the potential for confusion or disruption as underlying network technologies change.” We decline to implement T-Mobile's proposal in this proceeding. Mandating such fundamental changes to carriers' interconnection obligations would have unpredictable consequences for a wide range of interconnection arrangements and are best dealt with in a comprehensive fashion in the separate proceedings where the Commission previously sought comment on issues relating to intercarrier compensation and the network edge.

66. GCI proposes a four-part plan for determining the default network edge for 8YY traffic in Alaska. But the record does not provide any information on the financial implications of its proposal for other Alaska carriers or the impact of its proposal on carriers' network build-out and rates, let alone provide other parties sufficient opportunity to comment on its financial or operational implications. All of which underscores the need to address GCI's proposal in the broader context of our network edge proceeding. We therefore decline to adopt GCI's proposed approach to the network edge for 8YY traffic in Alaska here.

67. Finally, NTCA raises concerns that if larger providers are no longer responsible for 8YY transport costs, they may attempt to “leverage such changes to demand rearrangement of existing interconnection arrangements and to move the network edges . . . from existing locations in rural areas to points that may be [great distances] from the rural areas where those calls originate or terminate.” Contrary to NTCA's concerns, although our rules transition 8YY transport and tandem switching access charges incrementally toward bill-and-keep, they do not alter the fact that interexchange carriers and wireless carriers continue to be responsible for those charges. Furthermore, we affirm that nothing we do in this Order is intended to affect or alter existing network edge arrangements. To address NTCA's concerns, it requests that we adopt a default rule specifying that: “(1) The RLECs will be able to choose the point of interconnection in its service area; and (2) in no event will an RLEC be financially responsible for transport of calls beyond its service area.” We decline to adopt NTCA's proposal as unnecessary, but at NTCA's request, we take this opportunity to remind all stakeholders that a carrier has no legal obligation to agree to unilateral attempts to change network interconnection points. And, on several occasions the Commission has found that unilateral attempts by a carrier to change its interconnection point with another carrier that results in increased costs or inefficient routing of traffic is unjust and unreasonable under section 201(b) of the Act.

68. To continue our transition of all intercarrier compensation to bill-and-keep, to remove the incentive for arbitrage created by the existing wide disparity in rates charged for 8YY Database queries, and to put an end to abuse of the intercarrier compensation system created by multiple carriers charging for 8YY Database queries for a single call, we adopt an interim nationwide cap of $0.0002 per 8YY Database query and limit 8YY Database query charges to a single charge per call to be assessed by the carrier that originates the call ( i.e., no double dipping). Finally, we adopt a multistep transition to the rate cap of $0.0002 per query for intrastate and interstate 8YY Database queries to ensure carriers have sufficient time to adapt their businesses to the new rate.

69. In response to the negative incentives created by the wide variety of 8YY Database query charges, and general agreement that there should be a nationwide database query rate, we transition 8YY Database query charges to a single, nationwide rate cap of $0.0002. Current database query rates are widely disparate, ranging from $0.0015 to $0.015 per query, because of the disparities that existed when the Commission capped most 8YY Database query charges as part of the intercarrier compensation reforms it adopted in the USF/ICC Transformation Order. Although some commenters suggest that the different query rates may be based in carriers' differing rate structures, none provide examples of those different structures. This high degree of variability in rates strongly suggests that some, possibly many, of these rates do not reflect the costs carriers incur in providing these services, creating opportunities for 8YY arbitrage. Generating 8YY Database query charges has become one of the principal reasons driving the increase in 8YY arbitrage. Additionally, there is nothing currently stopping more than one carrier in a call path from querying the 8YY Database and charging the interexchange carrier for the query. As a result, database query charges make up a disproportionately high proportion of intercarrier compensation paid by IXCs. AT&T, for example, reports that 8YY Database query charges represent 20% of all of its originating access expenses. As AT&T emphasizes “[t]he cost to perform an 8YY database dip is very low, and therefore one would not expect database query charges to represent such a high percentage of AT&T's overall originating access expense.”

70. We are persuaded that a cap of $0.0002 per database query, as proposed by USTelecom, is a reasonable nationwide rate cap and will further our goals of ultimately transitioning all access charges to bill-and-keep, minimizing access costs, and routing 8YY traffic as efficiently as possible. USTelecom describes this rate as “the estimated cost of performing a database dip.” Additionally, the fact that this cap represents the “agreed upon amount” by USTelecom's members, which include companies that range from the largest to some of the smallest incumbent local exchange carriers, competitive local exchange carriers, and interexchange carriers, all with widely varying business models and cost characteristics makes it likely that it will be sufficient for carriers to recover their costs.

71. We considered suggestions that we adopt a higher rate cap, including the proposal that we cap database queries at different rates, for example, the “national average” rate of $0.004248 per query. We agree that “the Commission should not adopt a higher cap, such as the national average, because such a cap would simply lock in the excessive, unregulated rates that many carriers charge today,” perpetuating opportunities for continued arbitrage.

72. We also considered suggestions that we move 8YY Database query charges to bill-and-keep. As the Commission recognized in the 8YY FNPRM, “the database query is a cost a LEC must incur in order to route an 8YY call to the proper IXC, either by maintaining its own SCP database or by paying a third-party SCP for the database query.” USTelecom agrees that “providers incur costs associated with the [database query] function” and therefore “does not propose to reduce the rate to zero.” The payment of a query charge ultimately supports the existence of the 8YY Database, which is essential to competition in the provision of toll free services. That said, such charges nonetheless remain a component part of access charges generally, to which the Commission's commitment to bring all such charges to a bill-and-keep methodology applies. In the interim, as USTelecom explains, by setting the transitional query rate cap at a low, “near-zero rate” we will remove most incentives to engage in 8YY Database query charge abuse while still allowing carriers to recover their costs. Setting the cap at this level will also ensure that 8YY customers and, ultimately consumers, will not bear the burden of unreasonable query charges. As proposed in the 8YY FNPRM and consistent with our goal of addressing fraud and arbitrage that affects all 8YY charges, this transition applies to both interstate and intrastate 8YY Database query charges. Carriers that can demonstrate higher costs may seek a waiver of the cap pursuant to the Commission's waiver processes.

73. To avoid a flash cut in revenue received by carriers for database queries, as proposed by USTelecom, we implement the nationwide rate cap for 8YY Database query charges over a multistep transition period. First, we cap all 8YY Database query charges not previously capped at their current levels as of the effective date of the Order. Capping all 8YY Database query rates will serve as an important step in curbing the arbitrage that currently exists for database query charges. It will also prevent carriers from gaming our reform efforts by changing or modifying existing rates in anticipation of the adoption of the first interim query rate for 8YY Database queries.

74. Second, effective July 1, 2021, we cap 8YY Database query rates for each carrier at the national average query rate of $0.004248. (Capped 8YY Database query rates from step one of the transition that are lower than $0.004248 must remain at those lower capped rates.) Several commenters supported setting the initial cap at this level. But, consistent with the USTelecom proposal we make this the second step of the transition. Setting July 1, 2021 as the effective date for this step will allow carriers ample time to prepare to transition higher rates to the cap. We find that adopting an implementation date of July 1, 2021 for this transitional step will ensure that carriers have ample time to reduce the “excessive, unregulated rates that many carriers charge today” and therefore “mitigate this form of arbitrage.” Third, effective July 1, 2022, all database query rates will be transitioned half of the way to the final target rate of $0.0002. So, if a carrier's database query rate is capped at $0.004248 in the second step, its cap would be $0.002224 on July 1, 2022. If a carrier's rate cap is below $0.004248, then it will use its capped rate to arrive at its rate effective July 1, 2022. Finally, effective July 1, 2023, carriers may not charge more than $0.0002 for an 8YY Database query.

75. Adopting a multistep, multiyear transition period to implement the 8YY Database query rate cap is consistent with the prior Commission's actions and will “provide [the] industry with certainty and sufficient time to adapt to a changed regulatory landscape” and help minimize disruption to consumers and service providers. Accordingly, we agree with parties that favor a reasonable transition period to avoid the negative effects that might have resulted from imposing a “flash cut” to the new nationwide cap.

76. Implementation of the database query rate cap and transition will occur through application of amendments to § 51.907 of our rules for price cap carriers, § 51.909 of our rules for rate-of-return carriers, and § 51.911 of our rules for competitive local exchange carriers.

77. Nearly two decades ago, the Commission declined to subject competitive local exchange carrier database query charges to the benchmarking rules because of the dearth of information about such carriers' query charges in the proceeding before it. This proceeding by contrast includes robust discussion of competitive providers' database query charges and we find that given our adoption of a nationwide rate cap for all database query charges, the simplest and most administrable manner to implement that change for competitive local exchange carriers is by applying our benchmark rules to competitive local exchange carrier database query charges. The competitive local exchange carrier benchmark rule in § 61.26 of our rules and the benchmarking requirements for access reciprocal compensation rates in § 51.911(c) of our rules already applies to competitive local exchange carrier interstate charges, except database query charges. We now amend § 51.911 of our rules to make clear that beginning July 1, 2021, a competitive local exchange carrier providing interstate or intrastate switched exchange access services for use in the delivery of a Toll Free Call shall not have a tariffed interstate or intrastate Toll Free Database Query Charge rate that exceeds the rate charged by the competing ILEC.

78. To further reduce the abuse of the 8YY Database query, as of the effective date of this Order, we will eliminate double dipping and allow only one carrier in a call path to charge a single database query for each 8YY call. If the originating carrier is unable to conduct the 8YY query or transmit the results of the query, the next carrier in the call path that is able to do so may conduct the single query and assess the charge. We agree with the Toll Free Number Administrator that “multiple dip charges are unnecessary and increase the cost of a call to a[n 8YY number].” There is broad support in the record for this action, with many commenters agreeing that “there is no legitimate reason why an IXC should be expected to pay for multiple database queries.” We agree that “a single dip could allow [a] call to be correctly routed” and that “routing information should be carried with that call until it is terminated.” Allowing only one query per call will eliminate an obvious source of 8YY arbitrage and encourage efficient routing.

79. In the typical 8YY call path, it is the originating carrier that conducts the query because the query is a necessary prerequisite to routing the call to the proper 8YY provider. Some commenters support allowing the originating carrier to assess the database query charge, while others support allowing the carrier that hands the call off to the 8YY provider to assess the charge. We find that allowing the originating carrier to assess the 8YY Database query charge or, if that carrier is unable to conduct the query or transmit the results of the 8YY query, allowing the next carrier in the call path to assess the charge, is consistent with long-standing industry practice and fosters efficient routing of 8YY calls from their inception. Conducting the database query at the point of initiation of the call, allows the originating carrier and all subsequent carriers in the call path to use the correct call routing information to transmit the call. In contrast, allowing the last carrier that hands the call off to the 8YY provider to assess the query charge would necessarily entail inefficient routing up to the point where the final carrier conducts the query.

80. Commenters suggest that some originating carriers' networks may lack the requisite signaling functionality to pass the results of an 8YY Database query, necessitating an additional query by the next carrier in the call path. In the very limited instances where an originating carrier cannot pass the results of an 8YY Database query, that carrier is not required to perform a query, and may not charge for an 8YY Database query. In this circumstance, we allow the next carrier in the call path to conduct the query and assess the single charge. Carriers other than the next carrier in the call path after the originating carrier remain free to perform their own database queries but may not assess a charge for them. Not allowing intermediate carriers to assess a second 8YY Database query charge per call should have a de minimis impact on those carriers' bottom lines generally. Although the record does not allow us to quantify the number of carriers that lack these basic signaling capabilities, this likely involves a subset of rural carriers which are likely to serve a relatively small fraction of customers and a similarly small fraction of 8YY calls overall. Intermediate providers that are affected by this restriction transport such traffic pursuant to voluntary agreements and can decide whether to renegotiate their contractual arrangements. In fact, the record shows that competitive local exchange carriers and interconnected Voice over internet Protocol providers partner with other providers, including intermediate tandem providers, to perform the database queries needed “to determine the IXC serving the dialed toll free number . . . and then route[] the call to the IXC through an unaffiliated carrier's tandem switch that is interconnected with the serving IXC.”

81. We find that our existing revenue recovery mechanisms are sufficient to facilitate incumbent local exchange carriers' reasonable recovery needs as we move originating 8YY end office charges to bill-and-keep and move to national rate caps for 8YY joint tandem switched transport service and 8YY Database query charges. Consistent with the principles of bill-and-keep, competitive local exchange carriers, which are not subject to prescriptive rate regulation, can decide whether to recover from their end users any revenues they “lose” as a result of this Order. Accordingly, we decline requests to adopt new recovery mechanisms specifically tailored to 8YY.

82. The Commission adopted the current rules for Eligible Recovery as part of the intercarrier compensation reforms it undertook in the USF/ICC Transformation Order. The Commission designed those rules to enable price cap and rate-of-return carriers to recover a portion of the revenues they lost as terminating end office access rates transitioned to bill-and-keep. Our existing recovery mechanisms reflect “the differences faced by price cap and rate-of-return carriers.” Rate-of-return carriers, “which are generally smaller and less able to respond to changes in market conditions than are price cap carriers” require a “greater degree of certainty” in connection with intercarrier compensation reforms. We therefore conclude that it is reasonable and appropriate to rely on these mechanisms here, especially insofar as commenters have not demonstrated that they are unable to recover all or part of their lost revenues through existing federal and state recovery mechanisms and insofar that these mechanisms permit rate-of-return carriers to obtain some recovery from explicit universal service support through Connect America Fund Intercarrier Compensation. As the Commission provided for in the USF/ICC Transformation Order, we continue here to provide an opportunity for carriers to request additional support if needed through a petition for a Total Cost and Earnings Review. In addition, carriers retain the option of seeking a waiver of any provision of the Commission's rules.

83. Rate-of-return carriers will continue to calculate their Eligible Recovery using the methodology adopted in the USF/ICC Transformation Order and pursuant to § 51.917(d) of our rules. The Eligible Recovery calculation will allow rate-of-return carriers to account for most of their total lost 8YY revenues. Because the Eligible Recovery calculation requires rate-of-return carriers to subtract expected interstate switched access revenues from Base Period Revenue, adjusted downward 5% annually, a decline in originating 8YY interstate switched access revenues resulting from the reforms we make today means that less revenue will be subtracted from the adjusted Base Period Revenue. This will increase rate-of-return carriers' Eligible Recovery. Thus, the Eligible Recovery calculation will reflect rate-of-return carriers' lost interstate end office and tandem switching and transport access revenues and allow recovery of those revenues.

84. Consistent with the Commission's rules, and the recommendation of ITTA, WTA, and USTelecom, rate-of-return carriers will continue to recover Eligible Recovery through the same two-step process set forth in the USF/ICC Transformation Order: first through the Access Recovery Charge, subject to the current caps, and then through Connect America Fund Intercarrier Compensation, as permitted by the Commission's rules. In the USF/ICC Transformation Order, the Commission explained that carriers—especially rate-of-return carriers—likely would not be able to recover all of their lost revenues through Access Recovery Charges alone, given the constraints imposed by our caps on permissible Access Recovery Charges and by the Residential Rate Ceiling. Accordingly, the Commission allowed incumbent local exchange carriers to rely on Connect America Fund Intercarrier Compensation to recover Eligible Recovery that they could not recover through permitted Access Recovery Charges.

85. Consistent with the concept of moving to bill-and-keep, rate-of-return carriers will continue to look first to their end users for recovery through the Access Recovery Charge. Some commenters suggest that we modify the Access Recovery Charge caps for rate-of-return carriers, but do not offer any specifics on how those caps should be modified. Rate-of-return carriers can rely on Connect America Fund Intercarrier Compensation support to recover at least some of the revenues that they cannot recover through their Access Recovery Charges.

86. Rate-of-return carriers will recover any Eligible Recovery permitted by § 51.917(f) of our rules through Connect America Fund Intercarrier Compensation pursuant to § 54.304 of our rules. We agree with ITTA that using Connect America Fund Intercarrier Compensation support in this manner is consistent with the Commission's mandate under section 254 of the Act to advance universal service through “specific, predictable and sufficient” mechanisms and the Commission's use of universal service funding as a component of prior intercarrier compensation reforms.

87. We conclude that concerns that allowing rate-of-return carriers to continue receiving support from Connect America Fund Intercarrier Compensation will limit the funds available under the Alaska Plan are unfounded. As GCI concedes, the Alaska Plan provides “fixed amounts of support to participating ILECs and CMRS providers in exchange for specific, tailored obligations to deploy broadband over a ten-year period.” Nothing we do in this Order alters Alaska Plan support. Accordingly, the rules that we adopt today will not “upend the carefully calibrated commitments” made as part of that Plan.

88. Our rules for calculating rate-of-return Eligible Recovery will consider reductions in originating interstate revenue but not any reductions in originating intrastate revenue. Although the recovery mechanism established in the USF/ICC Transformation Order adopted a formal mechanism for terminating intrastate revenue recovery for rate-of-return carriers, we adopt a different approach here for several reasons. The hundreds of millions of dollars in rate-of-return carriers' annual intrastate revenues potentially affected by the USF/ICC Transformation Order' s reforms dwarf the intrastate revenues at issue here, which NTCA estimates will be approximately $6.5 million per year. Further, even the recovery mechanism in the USF/ICC Transformation Order declined to ensure revenue-neutrality, and we are not persuaded to go further here, particularly given the comparatively limited revenues at stake. In addition, in contrast to interstate rate regulation, intrastate revenue recovery largely is a matter of state control, presenting a real risk of over-recovery if we were to establish a formal recovery mechanism for intrastate 8YY origination charges here. For one, many states have granted local exchange carriers a significant amount of flexibility regarding intrastate rates. In addition, in contrast to our regulation of price cap carriers, we have left rate-of-return carriers' intrastate originating access rates uncapped—and continue to do so, except with specific respect to 8YY originating charges as reformed in this Order. Furthermore, we anticipate that our reform of 8YY originating charges will reduce billing disputes, leading to some cost savings for local exchange carriers. The record thus does not demonstrate that a formal recovery mechanism genuinely is needed here for intrastate 8YY origination charges above and beyond the recovery possible under state law.

89. We find it unnecessary to adopt ITTA's proposal to “restart the timeline” of the 5% annual reductions in rate-of-return carriers' Baseline Adjustment Factor or to otherwise adjust the Eligible Recovery calculation for rate-of-return carriers to accommodate our changes to the 8YY access charge regime. ITTA fails to provide a basis for changing the 5% annual reductions which were instituted to approximate the rate of line losses rate-of-return carriers were experiencing at the time of the adoption of the USF/ICC Transformation Order. We therefore decline to modify the 5% annual reduction.

90. Like rate-of-return carriers, we find that price cap carriers should look to the existing rules to determine how to adjust to the changes we make today to our intercarrier compensation system. We decline to adopt the suggestion of some commenters that we revise our Eligible Recovery rules to allow price cap carriers to include 8YY originating access revenues in their Eligible Recovery calculations. Instead, consistent with our move to bill-and-keep, price cap carriers may increase their Subscriber Line Charges or their Access Recovery Charges, to the extent they are otherwise able to do so. There is no compelling evidence in the record that further change to our recovery mechanisms is warranted. In fact, parties have not provided any meaningful data regarding the amount of revenue price cap carriers as a whole derive from 8YY originating access charges, or how such revenues should be considered as part of the Eligible Recovery calculations. Without actionable data regarding the revenues price cap carriers might lose as a result of our reform, and their ability to recover that revenue from their end users absent rule changes, we are unable to justify amending the Eligible Recovery calculation. The Commission has concluded that “[p]rice cap carriers generally are less dependent than rate-of-return carriers on interstate access charge revenues and universal service support, and better able to use various economies of scale to generate cost-saving efficiencies, thereby reducing the relative impact of any revenue reductions.” These same considerations lead us to conclude that price cap carriers will be able to accommodate changes in 8YY originating access revenues without the need for new universal service support. We also find that the transitions we adopt for today's reforms will give price cap carriers adequate time to adapt to these changes.

91. We also decline to implement proposals to freeze the annual 10% reduction in the Price Cap Carrier Traffic Demand Factor or to offset that annual 10% reduction by the amount of revenues lost as a result of our reform of 8YY access charges. Although we sought “quantifiable data or evidence” to help us determine what proportion of originating access revenues are attributable to 8YY calls and, more broadly, the need for originating local exchange carriers to replace the revenues they currently obtain from 8YY-related access charges, parties failed to submit the data we would need to quantify the revenues that price cap carriers might lose as a result of our reforms. Without that data, we are unable to justify amending the Eligible Recovery calculation. Commenters also do not attempt to explain how our reforms to 8YY originating access charges are related to the Commission's mechanism designed to estimate line loss for price cap carriers, which is reflected in the 10% annual reduction. Nor do they claim that the 10% annual reduction has somehow ceased to reasonably predict line loss trends. Furthermore, the 10% reduction is applied only to the revenue reductions included in the Eligible Recovery calculation—required reductions to a price cap carrier's terminating access revenues.

92. We also decline to adopt suggestions by CenturyLink and ITTA that we amend our existing revenue recovery rules to allow price cap carriers to receive Connect America Fund Intercarrier Compensation support to recover revenues lost as the result of today's reform. In the USF/ICC Transformation Order, the Commission allowed price cap carriers to seek recovery from Connect America Fund Intercarrier Compensation on a transitional basis and phased out such support over time. The Commission chose to phase out this support for price cap carriers in part because it adopted measures allowing price cap carriers the opportunity to receive additional universal service support through other mechanisms. The same logic applies today. With the new support mechanisms now phased in, there is no basis to revisit the phase-out of Connect America Fund Intercarrier Compensation support “designed to reflect the efficient costs of providing service over a voice and broadband network.” Since the adoption of the USF/ICC Transformation Order, price cap carriers that have chosen to receive high-cost universal service support have been able to maintain and improve their networks using universal service support they receive through the phased-in Connect America Fund mechanisms apart from the phased-out Connect America Fund Intercarrier Compensation. Therefore, we decline to extend Connect America Fund Intercarrier Compensation support to price cap carriers to recover lost 8YY access revenues at this time.

93. Although we do not adopt a specific revenue recovery mechanism for price cap carriers, we also do not foreclose those carriers from recovering reduced revenues through lawful end-user charges such as the Subscriber Line Charge. Indeed, such end-user recovery is one of the central tenets of bill-and-keep. Some price cap carriers claim they are unable to bill their end users to offset reduced 8YY access charge revenues given the Commission's limits on end user charges. We note, however, that certain price cap carriers' tariffs contain end user charges that are below the Commission's caps on these charges, which would enable a measure of recovery of reduced 8YY revenues.

94. At the same time, we decline proposals to allow price cap carriers to pursue recovery through increases in the caps on Subscriber Line Charges and Access Recovery Charges, or through an increase in the Residential Rate Ceiling. In regulating end-user charges, the Commission has always had to account for important consumer interests, including “ensuring that all consumers have affordable access to telecommunications services.” To ensure that increases in end-user charges do “not impact the affordability of rates” the Commission has routinely capped such increases. USTelecom does not provide any justification for its proposed increases of as much as $12 per line per year to the Subscriber Line Charge after two years. Frontier and Windstream fail to justify their proposal for two annual increases of $0.15 per line per month in Subscriber Line Charges for price cap carriers. Windstream offers no data in support of that proposal. Frontier justifies the proposal based loosely on the amount of interstate and intrastate revenue it estimates it would lose should we adopt the USTelecom proposal without any new revenue recovery mechanism for price cap carriers. Frontier's estimates, however, appear not to take into account the extent it can offset 8YY revenue reductions through remaining room under the existing Access Recovery Charge or Subscriber Line Charge caps. Moreover, Frontier's proposal would be applicable to all price cap carriers, and no other price cap carriers have offered data estimating their anticipated revenue losses. The very fact that different parties representing price cap carriers make two such widely varying proposals for Subscriber Line Charge increases in this proceeding underscores the arbitrary and unsupported nature of both proposals. Proposals to increase the caps on Access Recovery Charges are cursory, lack supporting evidence or analysis, and fail to address the impact of such increases on affordability. Because we are concerned about affordability, we reject those proposals and the USTelecom proposal to increase the Residential Rate Ceiling by $1.00 a month to $31.00 per month. USTelecom offers no information to demonstrate that there is a meaningful relationship between the revenue reductions carriers will face as a result of this Order and the ability of some carriers to recover more revenue through Access Recovery Charges should we raise the residential rate ceiling by $1 per month. We also agree with NTCA that USTelecom's proposal to raise the residential rate ceiling makes no sense with respect to rate-of-return carriers which have a different revenue recovery mechanism than price cap carriers. None of these proposals provide an adequate basis for us to adopt industry-wide pricing rules. Absent adequate justification, we are also unable to analyze the potential effects on end users of increases in the Subscriber Line Charge, Access Recovery Charges or the Residential Rate Ceiling and whether the increases and timing are reasonable.

95. We provide an opportunity for revenue recovery through existing mechanisms to promote an orderly transition in the reform of 8YY originating access charges. As explained in the USF/ICC Transformation Order, we do not have a legal obligation to ensure that carriers recover access revenues lost as a result of reform, absent a showing of a taking. In that Order, the Commission established a rebuttable presumption that the revenue recovery mechanisms it adopted would allow incumbent local exchange carriers to earn a reasonable return on their investment and established a “Total Cost and Earnings Review,” through which a carrier may petition the Commission to rebut that presumption and request additional support. The Commission identified factors that it could consider in analyzing requests for additional support and predicted that the limited recovery permitted would be more than sufficient to provide carriers reasonable recovery for regulated services, both as a matter of the constitutional obligations underlying rate regulation and as a policy matter of providing a measured transition away from incumbent local exchange carriers' historical reliance on intercarrier compensation revenues to recovery that better reflects competitive markets. Nonetheless, the Commission adopted a Total Cost and Earnings Review to allow individual carriers to demonstrate that this rebuttable presumption is incorrect and that additional recovery is needed to prevent a taking. We take the same approach here and adopt a rebuttable presumption that the existing revenue recovery mechanisms will allow incumbent local exchange carriers to earn a reasonable return on investment. We also continue to make the Total Cost and Earnings Review available to carriers affected by the 8YY originating access reforms we adopt today.

96. To show that the existing recovery mechanisms are legally insufficient, a carrier faces a “heavy burden,” and must demonstrate that the regime “threatens the financial integrity of [the carrier] or otherwise impedes [its] ability to attract capital.” As the Supreme Court has long recognized, when a regulated entity's rates “enable the company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed,” the company has no valid claim to compensation under the Takings Clause, even if the current scheme of regulated rates yields “only a meager return” compared to alternative rate-setting approaches. We believe that our existing recovery mechanisms provide recovery well beyond any constitutionally required minimum, and we find no convincing evidence in the record that those mechanisms will yield confiscatory results.

97. As we seek to protect consumers from undue rate increases or increases in contributions to universal service funding, we will conduct the most comprehensive review of any requests for additional support allowed by law. Our existing recovery mechanisms go beyond what might strictly be required by the constitutional takings principles underlying historical Commission regulations. Therefore, although our recovery mechanisms do not seek to precisely quantify and address all considerations relevant to resolution of a takings claim, carriers will need to address these considerations to the extent that they seek to avail themselves of the Total Cost and Earnings Review procedure based on a claim that recovery is legally insufficient.

98. The record is clear that the benefits of the actions we take today to move 8YY access charges toward bill-and-keep far outweigh the costs. By eliminating 8YY arbitrage opportunities based on high and varying originating end office access rates, tandem switching and transport rates, and database query rates, we reduce the incidence of 8YY robocalls, incent more efficient (and therefore lower cost) routing of 8YY calls, and encourage greater competition among 8YY providers on the basis of quality and price.

99. Carriers, 8YY customers, and consumers will all benefit from better quality, lower-priced 8YY services as a result of the actions we take to move 8YY charges to or toward bill-and-keep. We conclude that there are at least four ways in which our actions benefit consumers and firms and enhance the public interest. First, by transitioning interstate and intrastate end office originating access rates for 8YY calls to bill-and-keep, moving 8YY tandem switching and transport services and database query charges to nationally capped low rates, and limiting database queries to one charge per call, we discourage inefficient routing designed to maximize 8YY access revenues. Consistent with the Commission's findings in the USF/ICC Transformation Order, moving originating 8YY end office access rates to bill-and-keep will move prices closer to being cost reflective and, as a consequence, “carrier decisions to invest in, develop, and market communications services will increasingly be based on efficient price signals.” Taken together, these actions will reduce the access charge and network operation costs carriers incur, and will provide better investment incentives. Additionally, reducing 8YY robocalls will mitigate network congestion, lower the costs of access for 8YY providers and help ensure that legitimate callers can reach their intended destinations. We expect some of the carriers' cost savings that will arise from more efficient network use to be passed on to their 8YY customers in the form of better service and/or lower prices. Ultimately, this will lead businesses using 8YY services to provide better service and/or lower prices to their own customers.

100. Second, our actions will reduce the 8YY originating access rates paid by interexchange carriers for legitimate 8YY calls. We estimate that originating end office charges for 8YY services exceed $56 million annually, and are possibly many times this. Because of our actions, these end office access expenses will fall to zero over the next three years. Establishing nationally uniform rate caps for 8YY tandem switching and transport charges and 8YY Database queries and reducing the number of queries per call to one will further reduce interexchange carriers' costs of providing 8YY services. These declines in access charges will further lower 8YY prices and/or increase innovation.

101. Third, our actions will encourage carriers to efficiently transition to IP services. Under the current system of intercarrier compensation, access revenues can be inflated by inefficiently exchanging traffic over TDM facilities. Reducing those revenues will reduce incentives to route traffic inefficiently and to use TDM facilities which will further encourage the transition to IP services. As the Commission previously found, taking steps to foster the transition to IP-based and other advanced communications technologies “can dramatically reduce network costs and lead to the development of new and innovative services, devices, and applications, and can also result in improvements to existing product offerings and lower prices.”

102. Finally, our reforms will reduce intercarrier compensation disputes. Carriers will no longer need to devote as many resources to monitor their 8YY call traffic and dispute 8YY invoices. For end office switching, billing will not be necessary. Although some of these benefits are difficult to quantify, together they will be substantial.

103. The impact of our rule changes on the intercarrier compensation revenue and expenses of carriers will vary by carrier. To the extent one carrier's losses are gains to another, for example, because the amount of access revenue losses on call origination services for one carrier constitute reduced access expenses for another carrier, these changes are transfers, and therefore do not of themselves impact economic efficiency. As such, transfers are not directly relevant to a cost-benefit analysis. In any case, except to the extent that there may be some carriers for which 8YY arbitrage is the core of a narrow business plan, relative to the scale of most carriers' operations, the impact of our action on any carrier's revenues will be small, and we expect carriers may make ameliorating adjustments to their business plans. Despite the fact that some commenters have sought approval to raise their end user charges in conjunction with this rulemaking, we expect that robust competitive pressure for voice services nationwide will limit the extent to which carriers of all types respond to our rule changes by raising their end user charges. In any case, the rule changes will provide more efficient incentives for carriers' pricing decisions, product offerings, and investments.

104. It is possible that small price increases could occur due to our actions. Rate-of-return incumbent local exchange carriers may recover a portion of their lost revenue through a combination of Access Recovery Charges and Connect America Fund Intercarrier Compensation. We estimate that the total Universal Service Fund program collection will increase at most by approximately 0.3% due to our actions. Increases in Access Recovery Charges will be paid by rate-of-return carriers' end user customers and increased Connect America Fund Intercarrier Compensation support will require increases in Universal Service Fund contributions, partially offsetting the benefits of the price declines generated by our actions. The costs of higher contributions arise because they raise prices for end users and hence distort efficient consumption of interstate services. However, we expect this loss of efficiency will be small relative to the benefits our actions will bring, primarily because the inefficiency brought about by higher contribution rates is small relative to the substantial inefficiency created by current 8YY arbitrage, and because the revenue impacts of lower 8YY access charges will only be partially offset by contribution increases. Moreover, meeting universal service obligations from contributions is simpler and more transparent than the existing opaque implicit subsidy system under which carriers pay to support other carriers' network costs through origination charges.

105. We estimate the costs necessary to update the relevant carrier's billing systems to be approximately $6 million. We estimate billing costs as follows. We use a labor cost per hour to implement billing system changes of $70. We estimate the hourly wage for this work to be $47, equivalent to the hourly pay for a General Schedule 12, step 5 employee of the federal government. This rate does not include non-wage compensation. To capture this, we markup wage compensation by 46%. The result is an hourly rate of $68.62 [= $47 × 1.46], which we round up to $70. As many as 859 carrier holding companies may be impacted by our actions. In 2018 on Form 499 filings, 859 holding companies reported non-zero revenue from per-minute charges for originating or terminating calls provided under state or federal access tariff (based on aggregated data from Form 499, line 304.1). These holding companies vary significantly in size and therefore likely face varying costs to implement billing system changes. We assume that at most 100 hours of work is required to adjust billing systems for the largest holding companies and the most complicated systems, and conservatively use that figure as the estimate for every holding company. Thus, our estimate of the costs for billing adjustment is approximately $6 million [= 859 x $70 × 100]. We acknowledge the limits of our attempt to estimate these costs but believe this approach yields a reasonable estimate for the purposes of this cost-benefit analysis.

106. On balance, the benefits of our actions outweigh their costs. Consumers, 8YY customers, and carriers will benefit as we transition 8YY access charges toward bill-and-keep, reducing the inefficiencies inherent in 8YY arbitrage, lowering 8YY access charges, causing prices of 8YY services to fall and innovation to increase, reducing 8YY congestion, encouraging network modernization, and reducing intercarrier compensation disputes. Our actions will also reduce “competitive distortions inherent in the current system, eliminating carriers' ability to shift network costs to competitors and their customers.” There will be some costs imposed, largely due to the need to collect additional Universal Service Fund contributions to fund rate-of-return carriers who face losses in 8YY originating access charges. Nonetheless, the costs of higher retail rates due to any increase in Access Recovery Charges are likely to be de minimis, and compliance costs are a small transitional expense. The significant benefits of our actions more than compensate for the necessary, yet small costs they impose.

107. In this Order we correct the perverse incentives the current rules create for local exchange carriers to choose expensive and inefficient call paths for 8YY traffic. We also continue to advance the goals and objectives the Commission articulated in the USF/ICC Transformation Order and take further steps toward the Commission's goal of adopting a bill-and-keep regime for all intercarrier compensation.

108. As in the USF/ICC Transformation Order, our statutory authority to implement changes to the pricing methodology governing the exchange of traffic with local exchange carriers flows directly from sections 201(b), 251(b)(5), and 251(g) of the Act. Section 201(b) permits us to “prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter,” including the provision requiring the “charges, practices, classifications, and regulations” for interstate communications to be just and reasonable. The new rules we adopt in this Order will help ensure originating 8YY rates are just and reasonable as required by section 201(b) and should end the abuse of these charges, including the artificial inflation of originating access charges.

109. Section 251(b)(5) specifies that local exchange carriers have a “duty to establish reciprocal compensation arrangements for the transport and termination of telecommunications.” In the USF/ICC Transformation Order the Commission “br[ought] all traffic within the section 251(b)(5) regime.” In finding that it had the authority to comprehensively reform intercarrier compensation and move all interstate and intrastate access charges to bill-and-keep, the Commission explained that its authority to implement bill-and-keep as the default framework for the exchange of traffic with local exchange carriers flows directly from sections 251(b)(5) and 201(b) of the Act. This comprehensive reform approach necessarily includes originating access charges. Indeed, the Commission has long held that the absence of any reference to originating traffic in section 251(b)(5) means that—apart from access charge rules temporarily preserved by section 251(g)—the originating carrier is barred from charging another carrier for delivery of traffic that falls within the scope of section 251(b)(5). Section 251(g) of the Act—which preserves existing “originating access until the Commission adopts rules to transition away from that system”—provides additional legal authority for our regulation of origination charges and our continuation of the measured transition away from historical access charge regimes that the Commission began in the USF/ICC Transformation Order. Relying on those sections of the Act, the Commission confirmed that originating charges for all telecommunications traffic should ultimately move to bill-and-keep, but capped interstate and certain intrastate originating access charges in the USF/ICC Transformation Order pending more comprehensive reform.

110. In considering challenges to the USF/ICC Transformation Order, the Tenth Circuit held that the Commission's inclusion of originating access charges in its reform effort was “reasonable” and entitled to deference. The Court also expressly affirmed the Commission's authority over intrastate originating access charges. The Commission's authority to take such action for interstate and intrastate originating charges is thus well settled. Arguments that we lack authority over such charges or the methodology that should apply to those charges are entirely without merit.

111. This statutory authority also allows us to establish a transition plan to reform 8YY originating access charges. We agree with CenturyLink that “the Commission can rely on ( inter alia ) sections 4(i) and 201 through 205 of the Act, which together afford the Commission broad discretion in establishing carrier rates.” As the Commission concluded in the USF/ICC Transformation Order, “although the [Act] provides that each carrier will have the opportunity to recover its costs, it does not entitle each carrier to recover those costs from another carrier, so long as it can recover those costs from its own end users and through explicit universal service support where necessary. We continue this framework today by allowing end user recovery and, where permitted, explicit universal service support.

112. Paperwork Reduction Act Analysis. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the 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.

113. In this Report and Order, we have assessed the effects of transitioning inter- and intrastate originating 8YY end office and transport rates to bill-and-keep, and of adopting a single national rate for originating 8YY tandem switching and transport charges and database query charges and find that the tariff modifications required by our rules are both necessary and not overly burdensome. We believe that many carriers affected by this Report and Order will be small businesses and may employ less than 25 people. However, we find the benefits that will be realized by a decrease in the problematic consequences associated with 8YY abuse outweigh any burden associated with the changes (such as making tariff or billing revisions) required by this Report and Order.

114. 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 Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

115. Final Regulatory Flexibility Analysis. The Regulatory Flexibility Act as amended (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in this Report and Order on small entities. The FRFA is set forth below.

116. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the 8YY FNPRM in this proceeding released in June 2018. The Commission sought written public comments on the proposals in the 8YY FNPRM, including comment on the IRFA. The Commission did not receive comments specifically directed as a response to the IRFA. However, the Commission did receive comments from NTCA-The Rural Broadband Association (NTCA), Iowa Network Services, Inc. d/b/a Aureon Network Services (Aureon), Public Knowledge, and FailSafe Communications, Inc., (FailSafe) relating to small entities. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

117. Arbitrage and fraud have a significant and increasing effect that undermines the intercarrier compensation system for 8YY calls. This arbitrage takes on a variety of forms, including traffic pumping schemes generating large numbers of illegitimate calls to toll free numbers, so-called benchmarking abuses where competitive local exchange carriers aggregate other carriers' 8YY traffic to hand it off to 8YY providers in areas where they can charge higher rates, and “double dipping” schemes where multiple Toll Free Database query charges are assessed when only one is needed. This 8YY arbitrage results in higher costs for 8YY providers and customers alike, and ultimately burdens consumers. Left unchecked, 8YY arbitrage threatens to undermine the broad array of useful toll free services on which consumers, businesses and other organizations commonly rely.

118. In the Order, the Commission takes steps to address these problems by, in some cases, reducing and, in others, eliminating, over time, most of the 8YY originating access charges that provide the underlying incentive for 8YY arbitrage schemes, consistent with the Commission's previous commitment to move all intercarrier compensation to bill-and-keep. The Commission moves 8YY originating end office access charges to bill-and-keep over three years, caps 8YY originating transport and tandem switching charges at a combined rate of $0.001 per minute, caps 8YY Database query charges needed to route 8YY calls and transitions these query charges to $0.0002 over three years, and prohibits carriers from assessing more than one query charge per 8YY call. We allow carriers to recover lost revenues from these 8YY access charge reductions to the extent existing mechanisms such as Access Recovery Charges and Connect America Fund Intercarrier Compensation allow. By striking at the root of these practices, we eliminate carriers' incentives to engage in arbitrage for 8YY calls. Our actions reduce the cost of 8YY calling overall, decrease inefficiencies in 8YY call routing and compensation, encourage the transition to IP-based networks, and diminish the frequency and costs of 8YY intercarrier compensation disputes. Additionally, the policies adopted in the Order will preserve the value of toll free services for both consumers and businesses.

119. No comments were filed in response to the IRFA. However, parties did file comments addressing the impact of proposals in the 8YY FNPRM on small entities. NTCA, for example, expresses concern that the approach proposed by the Commission in the 8YY FNPRM would shift financial responsibility to rural local exchange carriers (LECs) serving relatively small customer bases in remote rural areas for transport to reach distant points undermining universal service and maintaining reasonably comparable rates. NTCA urges the Commission to ensure that “any such reforms in the future will not have a negative precedential impact on reasonable cost recovery otherwise and critical universal service objectives.” NTCA also raises interconnection and “network edge” issues arising out of a transition to bill-and-keep. In addition, NTCA expresses concern that a move to bill-and-keep without default interconnection rules could create new opportunities for arbitrage and allow providers to dictate unilateral shifts in “edges” aimed at reducing their relative financial responsibilities for transport and thereby shift such costs instead on interconnecting carriers—and that rural local exchange carriers, serving small rural customer bases, were at particular risk of suffering serious harm from such arbitrage. As set forth in the Order, though our rules transition 8YY transport and tandem switching access charges incrementally toward bill-and-keep, interexchange carriers continue to be responsible for the payment of access charges during the transition. In addition, our rules provide a recovery mechanism for rate-of-return local exchange carriers' interstate revenue reduction. Further, we affirm that nothing we do in the Order is intended to affect or alter existing network edge arrangements, and as suggested by NTCA, we clarify that unilateral attempts by carriers to change network interconnection points may be unjust and unreasonable in violation of the Act, and carriers have no obligation to agree to such unilateral attempts to change interconnection points.

120. Aureon, a provider of centralized equal access (CEA) service in Iowa, argues that moving tandem switching and transport to bill-and-keep, as proposed in the 8YY FNPRM, would not be “just and reasonable” under section 201(b) of the Communications Act of 1934, as amended (the Act) because bill-and-keep would amount to “zero compensation” for intermediate access providers that do not serve end users. Our adoption of a universal nationwide rate cap for originating 8YY tandem switching and transport obviates this concern by providing intermediate carriers with a regulated intercarrier compensation rate for 8YY calls, rather than moving to full bill-and-keep at this time. Public Knowledge argues that the increased cost and reduced revenues will make it harder for small rural local exchange carriers to meet the needs of rural customers, and would have a detrimental impact on the digital divide.

121. As explained in the Order, however, our rules provide a revenue recovery system for lost interstate 8YY revenue for the rate-of-return local exchange carriers about which Public Knowledge expresses concern and we leave it to the states to handle the substantially smaller impact on intrastate 8YY revenue. In addition, by tying 8YY-related rate changes to annual access tariff filings we minimize the cost of implementing 8YY-related tariff revisions.

122. FailSafe, a provider of disaster recovery telecommunications solutions, for emergency response providers and a wide variety of enterprise customers, argues that “[a]n overly-broad Order would destroy the only Disaster Recovery option available to millions of [small and medium-sized businesses]. At a minimum, it would price [small and medium-sized businesses] out of a Disaster Recovery/call overflow solution due to loss of the [carrier access billing] contribution” and requests (1) an indefinite exemption from bill-and-keep for access traffic associated with small and medium-sized business end users with less than 24 phone lines and (2) a three-year transition to bill-and-keep for “other services related to emergency communications.” As the Order explains, to the extent that FailSafe's clients are the recipients of 8YY calls, they will benefit from lower access prices paid by their 8YY provider. To the extent FailSafe's business model relies on intermediate carriers being paid for tandem switching and transport, the Order provides a uniform tariffed rate for those services. Furthermore, FailSafe does not offer a justification for the broad waiver it requests for access traffic associated with small and medium-sized business end users, nor does it explain how such a waiver could be operationalized. As to FailSafe's request for a three-year transition to bill-and-keep for some services related to emergency communications, the Order provides for a three-year transition to bill-and-keep for all originating 8YY end office access charges.

123. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments.

124. The Chief Counsel did not file any comments in response to this proceeding.

125. 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 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.

126. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 30.7 million businesses.

127. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2018, there were approximately 571,709 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

128. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 36,931 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

129. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

130. Local Exchange Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated for the entire year. Of that total, 3,083 operated with fewer than 1,000 employees. Thus, under this category and the associated size standard, the Commission estimates that the majority of local exchange carriers are small entities.

131. Incumbent Local Exchange Carriers. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 indicate that 3,117 firms operated the entire year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our actions. According to Commission data, one thousand three hundred and seven (1,307) incumbent local exchange carriers reported that they were incumbent local exchange service providers. Of this total, an estimated 1,006 have 1,500 or fewer employees. Thus, using the SBA's size standard the majority of incumbent local exchange carriers can be considered small entities.

132. Competitive Local Exchange Carriers, Competitive Access Providers, Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS Code category is Wired Telecommunications Carriers, and under that size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on this data, the Commission concludes that the majority of Competitive Local Exchange Carriers, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers, are small entities. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services. Of these, an estimated 1,256 have 1,500 or fewer employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. Also, 72 carriers have reported that they are Other Local Service Providers. Of this total, 70 have 1,500 or fewer employees. Consequently, based on internally researched FCC data, the Commission estimates that most competitive local exchange carriers, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers are small entities.

133. We have included small incumbent local exchange carriers in this RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

134. Interexchange Carriers. Neither the Commission nor the SBA has developed a small business size standard specifically for interexchange carriers. The closest applicable NAICS Code category is Wired Telecommunications Carriers. The applicable size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 indicate that 3,117 firms operated for the entire year. Of that number, 3,083 operated with fewer than 1,000 employees. According to internally developed Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of this total, an estimated 317 have 1,500 or fewer employees. Consequently, the Commission estimates that the majority of interexchange service providers are small entities.

135. Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. The SBA category of Telecommunications Resellers is the closest NAICS code category for local resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. Under the SBA's size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census data for 2012 show that 1,341 firms provided resale services during that year. Of that number, all of which operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, all of these resellers can be considered small entities. According to Commission data, 213 carriers have reported that they are engaged in the provision of local resale services. Of these, an estimated 211 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers are small entities.

136. Toll Resellers. The Commission has not developed a definition for Toll Resellers. The closest NAICS Code Category is Telecommunications Resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 2012 U.S. Census Bureau data show that 1,341 firms provided resale services during that year. Of that number, 1,341 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of these resellers can be considered small entities. According to Commission data, 881 carriers have reported that they are engaged in the provision of toll resale services. Of this total, an estimated 857 have 1,500 or fewer employees. Consequently, the Commission estimates that the majority of toll resellers are small entities.

137. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable NAICS Code category is for Wired Telecommunications Carriers, as defined above. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. The applicable SBA size standard consists of all such companies having 1,500 or fewer employees. U.S. Census Bureau data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of Other Toll Carriers can be considered small. According to internally developed Commission data, 284 companies reported that their primary telecommunications service activity was the provision of other toll carriage. Of these, an estimated 279 have 1,500 or fewer employees. Consequently, the Commission estimates that most Other Toll Carriers are small entities that may be affected by the rules proposed in the Notice.

138. Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business definition specifically for prepaid calling card providers. The most appropriate NAICS code-based category for defining prepaid calling card providers is Telecommunications Resellers. This industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual networks operators (MVNOs) are included in this industry. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that 1,341 firms provided resale services during that year. Of that number, 1,341 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of these prepaid calling card providers can be considered small entities. According to the Commission's Form 499 Filer Database, 86 active companies reported that they were engaged in the provision of prepaid calling cards. The Commission does not have data regarding how many of these companies have 1,500 or fewer employees, however, the Commission estimates that the majority of the 86 active prepaid calling card providers that may be affected by these rules are likely small entities.

139. Wireless Telecommunications Carriers (except Satellite). This industry is comprised of establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of Wireless Telecommunications Carriers (except Satellite) are small entities.

140. The Commission's own data—available in its Universal Licensing System—indicate that, as of August 31, 2018, there are 265 Cellular licensees that may be affected by our actions. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

141. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. In the Commission's auction for geographic area licenses in the WCS there were seven winning bidders that qualified as “very small business” entities, and one winning bidder that qualified as a “small business” entity.

142. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite). Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Commission data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees and 12 firms had 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that a majority of these entities can be considered small. According to Commission data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Therefore, more than half of these entities can be considered small.

143. All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for All Other Telecommunications, which consists of all such firms with annual receipts of $35 million or less. For this category, U.S. Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of those firms, a total of 1,400 had annual receipts less than $25 million and 15 firms had annual receipts of $25 million to $49,999,999. Thus, the Commission estimates that the majority of “All Other Telecommunications” firms potentially affected by our action can be considered small.

144. Recordkeeping and Reporting. We take definitive steps to address the problems that plague 8YY intercarrier compensation by reducing or eliminating, over time, the intercarrier compensation charges that provide the underlying incentive for 8YY arbitrage schemes. We expect the requirements we adopt in the Order will impose some additional compliance obligations on small entities. In the Order, the Commission adopts new rules for originating toll free access charges that will involve reduced 8YY originating access charges, the adoption of bill-and-keep, and the adoption of nationwide rate caps associated with 8YY traffic. Some of the changes involve a transitional period to complete implementation and will require modification of existing tariffs and filing of these tariff revisions. For small entities that may be affected, their compliance obligations may also include certain reporting and recordkeeping requirements to determine and establish their eligibility to receive revenue recovery from other sources as 8YY originating access revenue is reduced. The Commission believes the impacts of reporting, recordkeeping, and/or other compliance obligations on small entities will be mitigated by the greater certainty and reduced litigation that should occur as a result of the reforms adopted.

145. In the Order, the Commission moves 8YY originating end office access charges to bill-and-keep over approximately three years, caps 8YY originating transport and tandem switching charges at a combined rate of $0.001 per minute, caps 8YY Database query charges nationwide and transitions these query charges to $0.0002 over approximately three years, and prohibits carriers from assessing more than one query charge per 8YY call. Carriers are allowed to recover lost revenues from these 8YY calls to the extent existing mechanisms such as Access Recovery Charges and the Connect America Fund Intercarrier Compensation allow. By adopting policies that strike at the root of these practices, we eliminate carriers' incentives to engage in arbitrage for 8YY calls, thereby preserving the value of toll free services for both consumers and businesses.

146. The rule changes adopted in this Order will require affected carriers to revise their existing tariffs and internal billing systems. More specifically, carriers involved in originating toll free calls will be required to file tariff revisions to remove or revise their existing tariffs. Affected carriers will also need to file tariff revisions to modify toll free originating transport charges as these charges move to bill-and-keep. Tariff revisions will likewise be needed for the three-year transition period to bill-and-keep for toll free end office access charges. Similarly, carriers will need to file tariff revisions to implement the nationwide cap on 8YY Database queries and the three-year transition of these query charges to $0.0002 per query, as well as the rule change that allows only one carrier to assess the toll free database query charge per call. Carriers will also need to make tariff revisions to recover lost revenues from toll free calls to the extent existing mechanisms such as Access Recovery Charges and the Connect America Fund Intercarrier Compensation allow. Nevertheless, the Commission believes that with the changes to originating 8YY access charges and 8YY Database query charges, carriers' recordkeeping burdens may be reduced given the simplification of tariffing and billing that the Order entails. In particular, the three-year transition adopted by the Commission is timed to coincide with the annual access tariff filing dates to minimize the administrative burdens on small entities as well as other entities that are required to make such filings. These changes will require carriers to employ the same types of professional skills they typically employ whenever they file tariffs or make billing changes, including legal, accounting, and/or tariffing expertise.

147. With regard to the internal billing system changes that will be necessary for compliance with our Order, the cost of compliance will vary by carrier. Overall, the Commission estimates the costs necessary to update the affected carriers' billing systems will be approximately $6 million. This estimate is conservative since it is based on costs incurred by the largest carrier holding companies and the costs of modification of the most complicated systems. The $6 million industry-wide estimate results in approximately $7,000 of expense per carrier holding company. Since the Commission is not in a position to determine the actual costs for small entities, or for any specific entity for that matter, we have applied our conservative estimate to every holding company that may be impacted by decision. As we mention above, our estimate is based on requirements for the largest carrier holding companies, and thus the actual expense will likely be lower for small entities.

148. Notwithstanding the compliance costs that small entities will incur, on balance the Commission believes the benefits of its actions outweigh their costs. Consumers, 8YY customers, and carriers will benefit as we transition 8YY access charges toward bill-and-keep, thereby reducing the inefficiencies inherent in 8YY arbitrage, lowering 8YY access charges, causing prices of 8YY services to fall and innovation to increase, reducing 8YY congestion, encouraging network modernization, and reducing intercarrier compensation disputes. The “competitive distortions inherent in the current system, eliminating carriers' ability to shift network costs to competitors and their customers,” will also be reduced. Thus, the significant benefits of our actions more than compensate for the necessary costs imposed on small entities and other carriers.

149. 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 may include (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 rules 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.

150. As a general matter, actions taken as a result of our actions should benefit small entities as well as other service providers by reducing the inefficiencies inherent in 8YY arbitrage, providing greater regulatory certainty, and moving toward the Commission's goal of bill-and-keep for all access charges. Our tailored approach to allowing carriers different transition timeframes to implement our different rate changes is designed to balance the circumstances facing different carrier types and provide all carriers with the necessary predictability, certainty, and stability to transition from the current intercarrier compensation system.

151. Transition Periods. To minimize the impact of the changes to 8YY intercarrier compensation adopted in the Order on affected small entities, as well as other affected service providers we adopt multistep transition periods for transitioning originating 8YY end office access rates to bill-and-keep and 8YY Database query charges to no more than $0.0002 for an 8YY Database query. For end office access charges, we initially cap all intrastate originating 8YY end office rates not previously capped at their current levels as of the effective date of the Order. This first step will ensure against any rate increases during the transition and will benefit small entities and other service providers by giving parties time, certainty, and stability as they adjust to the changes. Then, effective July 1, 2021, we require all local exchange carriers to bring any intrastate originating 8YY end office access rates that exceed the comparable interstate rates into parity with the comparable interstate rates. After reducing or capping intrastate 8YY end office rates, we will transition all intrastate and interstate originating 8YY end office charges from their capped amounts to bill-and-keep in two equal annual reductions. Effective July 1, 2022, we reduce all originating 8YY end office rates to half of their capped levels. Then, effective July 1, 2023, we reduce all originating 8YY end office rates to bill-and-keep.

152. In a similar fashion, small entities will benefit from the multistep, multiyear transition period to implement the 8YY Database query rate cap. Specifically, small entities will avoid the negative economic effects that might have resulted from imposing a “flash cut” to the new nationwide cap. Our actions which are consistent with prior Commission actions, will provide small entities with certainty and sufficient time to adapt to a changed regulatory landscape and will help minimize service disruptions. First, we cap all 8YY Database query charges not previously capped at their current levels as of the effective date of the Order. Second, we cap 8YY Database query rates for each carrier at the national average query rate of $0.004248 for those carriers whose capped database query rates are not already at or below $0.004248 or the rate capped in step one of the transition, if lower than $0.004248, effective July 1, 2021. This step will allow small entities and other carriers ample time to prepare to transition higher rates to the cap. Third, all 8YY Database query rates will be transitioned halfway to the final target rate of $0.0002. If a carrier's cap rate is below $0.004248, then it will use its capped rate to arrive at its rate effective July 1, 2022. Finally, effective July 1, 2023, carriers will not be allowed to charge more than $0.0002 for an 8YY Database query.

153. While the Commission proposed moving 8YY originating tandem switching and transport rates to bill-and-keep in the 8YY FNPRM, we instead move rates for these services toward bill-and-keep by adopting a nationwide tariffed tandem switched transport access service rate cap of $0.001 per minute for originating 8YY traffic effective July 1, 2021. This approach avoids the economic hardship for small and other intermediate providers that do not serve end customers, and who would be uncompensated under bill-and-keep. Making the cap effective July 1, 2021 will reduce the administrative burdens for small entities and other carriers by allowing carriers to implement any necessary changes as part of their next set of annual tariff revisions. Further, the Commissions finds the adopted effective date will provide carriers with a reasonable timeframe in which to transition their rates to the $0.001 per minute cap and will allow for implementation of necessary changes to their billing systems. To avoid gamesmanship before July 1, 2021, however, we cap all existing toll free tandem switching and transport rates as of the effective date of the Order.

154. The multistep transition periods will allow carriers sufficient time to adapt to our new rules for 8YY calling and to spread the financial impact of these changes over three years. By gradually implementing these changes, we will avoid burdening small entities, and provide small carriers, as well as other carriers, with adequate time to adjust to the new rates, while at the same time minimizing existing arbitrage. We considered adopting shorter transitions or even no transitions as proposed in the record and rejected them because these proposed options would not allow carriers sufficient time to implement the changes we adopt to our system of 8YY intercarrier compensation rules. We also considered proposals in the record to allow longer transitions but rejected them since they would unnecessarily perpetuate the problem of 8YY arbitrage and the burdens it imposes on all carriers involved in 8YY calling.

155. Finally, as discussed in Section E, we recognize that carriers involved in providing toll free service may need to revise their internal billing systems to reflect the rate changes related to the actions in this Order and to file tariff revisions as necessary. Although we believe that internal billing system changes will be not be overly burdensome to make, we reiterate that the transitions we adopt today will ensure that small entities as well as other carriers have sufficient time, predictability, and certainty to transition their tariffs and billing systems to reflect the rates required by our new rules.

156. The Commission will send a copy of the Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Order and FRFA (or summaries thereof) will also be published in the Federal Register .

157. Accordingly, it is ordered that, pursuant to sections 1, 2, 4(i), 201-206, 251, 252, 254, 256, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 201-206, 251, 252, 254, 256, 303(r), 403, and § 1.1 of the Commission's rules, 47 CFR 1.1, this Report and Order is adopted.

158. It is further ordered that part 51 of the Commission's rules, 47 CFR part 51, Is Amended as set forth in the Final Rules, and that such rule amendments shall be effective thirty (30) days after publication of this Report and Order in the Federal Register , except for §§ 51.907(i)-(k), 51.909(l)-(o), and 51.911(e), which contain information collections that require approval by the Office of Management and Budget under the Paperwork Reduction Act. The Commission directs the Wireline Competition Bureau to announce the effective date for those information collections in a document published in the Federal Register after OMB approval, and directs the Wireline Competition Bureau to cause §§ 51.907, 51.909, and 51.911 of the Commission's rules to be revised accordingly.

159. 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 Analysis, to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

160. 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 Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons set forth above, the Federal Communications Commission amends part 51 of title 47 of the Code of Federal Regulations as follows:

The snapper-grouper fishery of the South Atlantic includes gray triggerfish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All weights in this temporary rule are given in round weight.

The commercial ACL (equivalent to the commercial quota) for gray triggerfish in the South Atlantic is divided into two 6-month fishing seasons. The total commercial ACL of 312,324 lb (141,668 kg) is allocated 50 percent to each commercial fishing season, or 156,162 lb (70,834 kg) for January through June, and the same amount for July through December, as specified in 50 CFR 622.190(a)(8)(i) and (ii).

After the January through June 2020 fishing season, 25,468 lb (11,552 kg) of the gray triggerfish commercial quota remained unharvested. As specified in 50 CFR 622.190(a)(8)(iii), NMFS added this unused portion of the gray triggerfish commercial quota to the commercial quota for the July through December 2020 fishing season. Therefore, the gray triggerfish commercial quota for the July through December 2020 fishing season is 181,630 lb (82,385 kg). Any unused commercial quota for the July through December fishing season becomes void and will not be added to any subsequent quota (622.190(a)(8)(iii)).

Under 50 CFR 622.193(q)(1)(i), NMFS is required to close the commercial sector for gray triggerfish when the commercial quota specified in 50 CFR 622.190(a)(8)(ii) is reached or is projected to be reached by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial quota for South Atlantic gray triggerfish for the July through December 2020 fishing season will be reached by November 29, 2020. Accordingly, the commercial sector for South Atlantic gray triggerfish is closed effective at 12:01 a.m., local time, on November 29, 2020, and remains closed until the start of the next January through June fishing season on January 1, 2021.

The operator of a vessel with a valid Federal commercial vessel permit for South Atlantic snapper-grouper with gray triggerfish on board must have landed and bartered, traded, or sold such gray triggerfish prior to 12:01 a.m., local time, on November 29, 2020. During the commercial closure, the recreational bag limit specified in 50 CFR 622.187(b)(8), and the recreational possession limits specified in 50 CFR 622.187(c), apply to all harvest or possession of gray triggerfish in or from the South Atlantic EEZ. Also during the commercial closure, the sale or purchase of gray triggerfish taken from the South Atlantic EEZ is prohibited. The prohibition on the sale or purchase does not apply to gray triggerfish that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, on November 29, 2020, and were held in cold storage by a dealer or processor.

For a person on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, the bag and possession limits and sale and purchase prohibitions for gray triggerfish apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.193(q)(1)(i), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is excempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulations associated with the commercial quota for South Atlantic gray triggerfish have already been subject to notice and comment, and all that remains is to notify the public of the commercial closure for the remainder of the July through December 2020 fishing season. Prior notice and opportunity for public comment on this action is contrary to the public interest because of the need to immediately implement the commercial closure to protect South Atlantic gray triggerfish, since the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and would potentially result in a harvest that exceeds the commercial quota.

For the aforementioned reasons, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in the effective date of this action.

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006) and amendments. NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

The current baseline General and Reserve category quotas are 555.7 mt and 29.5 mt, respectively. See § 635.27(a). Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a “subquota” or portion of the annual General category quota. The baseline subquotas for each time period are as follows: 29.5 mt for January; 277.9 mt for June through August; 147.3 mt for September; 72.2 mt for October through November; and 28.9 mt for December. Any unused General category quota rolls forward from one time period to the next and is available for use in subsequent time periods. To date for 2020, NMFS has taken several actions that resulted in adjustments to the General and Reserve category quotas, leaving 20 mt of quota currently available in the Reserve category (85 FR 17, January 2, 2020; 85 FR 6828, February 6, 2020; 85 FR 43148, July 16, 2020; 85 FR 59445, September 22, 2020; 85 FR 61872, October 1, 2020; 85 FR 64411, October 13, 2020; and 85 FR 68798, October 30, 2020).

For the January 2020 subquota period, NMFS transferred 19.5 mt of BFT quota from the December 2020 subquota period, and transferred 51 mt from the Reserve category, resulting in an adjusted subquota of 100 mt for the January 2020 period and a subquota of 9.4 mt for the December 2020 period (85 FR 17, January 2, 2020, and 85 FR 6828, February 6, 2020). The General category fishery is currently closed and reopens December 1, 2020.

Under § 635.27(a)(9), NMFS has the authority to transfer quota among fishing categories or subcategories, after considering regulatory determination criteria provided under § 635.27(a)(8). NMFS has considered all of the relevant determination criteria and their applicability to this inseason quota transfer. These considerations include, but are not limited to, the following:

Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(8)(i)), biological samples collected from BFT landed by General category fishermen and provided by BFT dealers continue to provide valuable data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT in the General category would support the collection of a broad range of data for these studies and for stock monitoring purposes.

NMFS also considered the catches of the General category quota to date (including during the summer/fall and winter fisheries in the last several years), and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(8)(ii) and (ix)). Preliminary landings data as of November 16, 2020, indicate that the General category has landed approximately 818 mt this year, which is also the total of the adjusted subquotas for the January through November time period. Absent a transfer, the December General category fishery would reopen on December 1 with an available quota of 9.4 mt, which, depending on BFT availability and fishing conditions, could be harvested quickly. Transferring 19.5 mt of BFT quota from the Reserve category would result in 28.9 mt being available to the General category in December, restoring the December subquota to its base amount prior to the January 2, 2020 action (85 FR 17), and would leave 0.5 mt in the Reserve category to account for any BFT mortalities associated with research.

Regarding the projected ability of the vessels fishing under the particular category quota (here, the General category) to harvest the additional amount of BFT quota transferred before the end of the fishing year (§ 635.27(a)(8)(iii)), NMFS considered General category landings over the last several years and landings to date this year. Landings are highly variable and depend on access to commercial-sized BFT and fishing conditions, among other factors. NMFS anticipates that General category participants will be able to harvest the 19.5 mt of transferred BFT quota by the end of the fishing year.

NMFS also considered the estimated amounts by which quotas for other gear categories of the fishery might be exceeded (§ 635.27(a)(8)(iv)) and the ability to account for all 2020 landings and dead discards. In the last several years, total U.S. BFT landings have been below the available U.S. quota such that the United States has carried forward the maximum amount of underharvest allowed by ICCAT from one year to the next. NMFS will need to account for 2020 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations, and anticipates having sufficient quota to do that, even with this 19.5 mt transfer to the General category. Thus, this quota transfer would allow fishermen to take advantage of the availability of fish on the fishing grounds to the extent consistent with the available amount of transferrable quota and other management objectives, while avoiding quota exceedance.

NMFS also considered the effects of the adjustment on the BFT stock and the effects of the transfer on accomplishing the objectives of the FMP (§ 635.27(a)(8)(v) and (vi)). This transfer would be consistent with the current quotas, which were established and analyzed in the 2018 BFT quota final rule (83 FR 51391, October 11, 2018), and with objectives of the 2006 Consolidated HMS FMP and amendments and is not expected to negatively impact stock health or to affect the stock in ways not already analyzed in those documents. Another principal consideration is the objective of providing opportunities to harvest the full annual U.S. BFT quota without exceeding it based on the goals of the 2006 Consolidated HMS FMP and amendments, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest their full BFT quota allocations (related to § 635.27(a)(8)(x)). Specific to the General category, this includes providing opportunity equitably across all time periods.

Based on the considerations above, NMFS is transferring 19.5 mt from the Reserve category to the General category. Therefore, NMFS adjusts the General category December 2020 subquota quota to 28.9 mt and adjusts the Reserve category quota to 0.5 mt. The General category fishery reopens December 1, 2020, and will remain open until December 31, 2020, or until the adjusted General category quota is reached, whichever comes first.

NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustment, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov or by using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional action ( e.g., closure) is necessary to ensure available subquotas are not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

NMFS reminds General category participants that when the fishery reopens December 1, 2020, the BFT General category daily retention limit will be one large medium or giant BFT per vessel per day/trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 635, which was issued pursuant to section 304(c), and is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason quota transfers to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement the quota transfer for the December 2020 subquota period at this time is impracticable and contrary to the public interest as NMFS could not have proposed this action earlier, as it needed to consider and respond to updated landings data in deciding to transfer a portion of the Reserve quota to the General category quota. If NMFS was to offer a public comment period now, after having appropriately considered that data, it could preclude fishermen from harvesting BFT that are legally available consistent with all of the regulatory criteria. This action does not raise conservation and management concerns. Transferring quota from the Reserve category to the General category does not affect the overall U.S. BFT quota, and available data shows the adjustment would have a minimal risk of exceeding the ICCAT-allocated quota. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

In June 2018, NMFS determined that two stocks of Chinook salmon managed under the Council's Pacific Coast Salmon Fishery Management Plan (FMP) met the overfished criteria of the FMP and the MSA. Overfished is defined in the FMP to be when the three-year geometric mean of a salmon stock's annual spawning escapements falls below the reference point known as the minimum stock size threshold (MSST). The three-year geometric mean of spawning escapement fell below MSST for both KRFC and SRFC salmon stocks for the period 2015-2017. In response to the overfished determination, the Council developed rebuilding plans for these stocks, which were transmitted to NMFS for approval and implementation. NMFS published a proposed rule (85 FR 6135, February 4, 2020) describing the rebuilding plans and soliciting comments from the public on the proposed rule and on the draft environmental assessments (EA) that were prepared under the National Environmental Policy Act (NEPA).

NMFS published a proposed rule on February 4, 2020 (85 6135) and related draft EAs for public comment. The comment period ended on March 5, 2020. NMFS received four public comment submissions from individuals on the proposed rule and no comments on the draft EA. The comments and responses are below.

Comment 1: One person objected to NOAA's management of salmon stocks and said NOAA failed to protect salmon from exploitation in commercial fisheries.

Response: NOAA's NMFS disagrees that there was a failure to protect salmon from exploitation in commercial fisheries. NMFS is responsible for implementing the MSA to manage the nation's fisheries in a sustainable manner, including rebuilding overfished stocks. NMFS works with the Council to manage West Coast salmon stocks according to conservation objectives and status determination criteria specified in the FMP. It is through these measures that NMFS and the Council recognized the overfished situation for KRFC and SRFC and are managing fisheries to rebuild these stocks consistent with the provisions of the MSA. Annual management measures for ocean salmon fisheries are informed by annual stock abundance projections using the best available science, including analyses by the Council's Salmon Technical Team and Scientific and Statistical Committee. The management measures apportion the ocean harvest equitably among treaty Indian, non-treaty commercial, and recreational fisheries. The measures are also intended to allow a portion of the salmon runs to escape the ocean fisheries in order to provide for spawning escapement and to provide fishing opportunity in state waters.

Comment 2: One person wrote to support “replenishing of the fish stocks” and hopes for sustainable populations for the future.

Response: Sustainability is key to NMFS' mission and the cornerstone of the MSA. These rebuilding plans have been prepared to be consistent with the provisions of the MSA, and the Council and NMFS assess salmon stocks annually to assure fisheries are being managed in a sustainable manner.

Comment 3: One person supported the regulation of fisheries and acknowledged that environmental factors which contribute to fish mortality complicate fishery management. This person supports banning or highly regulating fisheries during rebuilding and additional research into salmon mortality from environmental causes and possible solutions.

Response: NMFS does not support banning fisheries in response to the current overfished status of KRFC and SRFC at this time. The Council and NMFS considered a no-fishing alternative. The estimated time to rebuild either of these Chinook salmon stocks under a no-fishing scenario was only one year shorter than under the Council's recommended alternative. The MSA requires the Secretary of Commerce to consider the needs of fishing communities in implementing a rebuilding plan. A no-fishing scenario, for either KRFC or SRFC, would include a total closure of ocean salmon fisheries from Cape Falcon, OR to the U.S./Mexico border, resulting in an estimated loss of $46 million per year to fishing communities. NMFS can only regulate fisheries in the exclusive economic zone (3 to 200 nmi—5.6 to 370.4 km—offshore) and does not have regulatory authority over fisheries shoreward of 3 nmi and in-river fisheries; therefore, NMFS does not have the authority to implement a rebuilding plan that would have no fishing-related mortality on the overfished Chinook salmon stocks since in-river freshwater fishing-related mortality would likely continue. Therefore, in consideration of these factors, NMFS is approving the Council's recommendation as the rebuilding plan that will rebuild the stocks in the shortest amount of time while taking into consideration the needs of fishing communities.

Comment 4: One person objected strongly to the use of the term “overfished.” This person called on NMFS to identify lack of coordination among various agencies on water discharge to benefit salmon as the cause of salmon decline.

Response: NMFS understands the concern regarding the term overfished. Under the MSA, a stock or stock complex is considered overfished when its biomass has declined below MSST (50 CFR 600.310(e)(2)(i)(E)), irrespective of the cause of the decline. NMFS supports coordination among agencies to improve salmon productivity. The Council and NMFS considered several possible factors in the decline of the overfished Chinook salmon stocks and, as stated in the proposed rule (85 FR 6135, February 4, 2020), found that the overfished condition was due to: (1) Low flows and high water temperatures in the freshwater environment which resulted in low smolt survival for both stocks, disease issues in the Klamath River, and pre-spawn mortality of migrating adults in the Sacramento River; (2) warm, unproductive ocean conditions that compromised survival in the marine environment for both stocks; (3) hatchery practices in the Sacramento River that resulted in straying of migrating salmon which lead to higher than expected in-river fishing mortality for SRFC; and (4) stock assessment errors that resulted in over-forecasting of SRFC and underpredictions of both ocean and in-river fishery mortality rates.

There are no substantive changes made to the regulatory text from the proposed rule, beyond nonsubstantive editorial changes.

Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the MSA, and other applicable law.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

This proposed rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

This final rule was developed after meaningful collaboration with the tribal representative on the Council who has agreed with the provisions that apply to tribal vessels.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

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

The 2020 TAC of Pacific ocean perch, in the EAI, allocated to vessels participating in the BSAI trawl limited access sector fishery was established as a directed fishing allowance of 938 metric tons by the final 2020 and 2021 harvest specifications for groundfish in the BSAI (85 FR 13553, March 9, 2020).

In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the EAI by vessels participating in the BSAI trawl limited access sector fishery. While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the Pacific ocean perch directed fishery in the EAI for vessels participating in the BSAI trawl limited access sector fishery. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 19, 2020.

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

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

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

The 2020 TAC of Atka mackerel, in the BS/EAI, allocated to vessels participating in the BSAI trawl limited access sector fishery was established as a directed fishing allowance of 2,100 metric tons by the final 2020 and 2021 harvest specifications for groundfish in the BSAI (85 FR 13553, March 9, 2020).

In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the BS/EAI by vessels participating in the BSAI trawl limited access sector fishery. While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Atka mackerel directed fishing in the BS/EAI for vessels participating in the BSAI trawl limited access sector fishery. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 19, 2020.

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

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