RHS administers the Section 538 Guaranteed Rural Rental Housing Program (GRRHP) under the authority of the Housing Act of 1949, as amended (42 U.S.C. 1490p-2). Under the GRRHP, RHS guarantees loans for the development of housing and related facilities in rural areas. Section 538(g) authorizes the Secretary of Agriculture to charge certain fees to lenders for loan guarantees. See 42 U.S.C. 1490p-2(g). The charged fees are required to be used to offset costs associated with loan guarantees. ID at 1490p-2(u).

The Agency's GRRHP implementing regulation is at 7 CFR part 3565 and currently sets the exact percentage of the initial guarantee fee and the annual guarantee fee charged by the Agency. The Agency is proposing to amend the regulation by removing the language that indicates the specific amount of the initial guarantee fee and the annual guarantee fee currently charged by the Agency. The Agency is making this change to allow for flexibility and to allow the program to create the maximum housing affordability to residents by lowering program costs when practical. In most cases, the annual guarantee fee is passed onto the borrower, where it is most likely included in the interest rate. Thus, any reduction in the fee will result in a lower interest rate and would ultimately create a reduction in rental rates.

The calculation of the initial guarantee fee is the product of the percentage of the guarantee times the initial principal amount of the guaranteed loan times the Guarantee Fee Rate. The initial guarantee fee will be due at the time the closing package is submitted to the Agency for review and approval. The GRRHP annual fee is a non-refundable amount that the lender must pay the year that the loan closes and going forward each year that the loan guarantee remains in effect.

If changes do occur in the fee amounts, the Agency will release those changes through a Notice in the Federal Register . When the fee changes are announced in the Federal Register , the Agency will provide guidance on how to process the loans which will be impacted by the new fee structure. Interested parties will be able to locate current fees on the Agency's public website.

The Agency published a proposed rule on September 3, 2019 at 84 FR 45927-45929, proposing to amend its regulation to remove the stated amount that the Agency will charge for the initial and annual guarantee fees. Three comments were received. Two commenters were in full support of the rule change. One commenter supports the rule; however, they suggested that the Agency establish a maximum limit on the annual fee amount. The Agency will not adopt this comment to establish a maximum limit on the annual fee amount as the intention of this regulation change is to offer flexibility in adjusting fees each year. This regulatory action will adopt the process of announcing the amount of fees charged through a published notice in the Federal Register , consistent with other RD programs, including the OneRD Guarantee Loan regulation. Therefore, RHS is moving forward with finalizing this rule.

This final rule has been determined to be non-significant and; therefore, was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

The GRRHP is administered subject to appropriations by the United States Department of Agriculture (USDA) as authorized under the Housing Act of 1949 as amended, Section 538, Public Law 106-569, 42 U.S.C. 1490p-2.

This document has been reviewed in accordance with 7 CFR part 1970, subpart A, “Environmental Policies.” RHS determined that this action does not constitute a major Federal action significantly affecting the quality of the environment. In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, an Environmental Impact Statement is not required.

The rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature on this document that this rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government. This rule does not impose substantial direct compliance costs on State and local Governments; therefore, consultation with States is not required.

This rule has been reviewed under Executive Order 12988. In accordance with this rule: (1) Unless otherwise specifically provided, all State and local laws that conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division of USDA (7 CFR part 11) must be exhausted before bringing suit in court that challenges action taken under this rule.

Title II of the UMRA, Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal Governments and on the private sector. Under section 202 of the UMRA, Federal Agencies generally must prepare a written statement, including cost-benefit analysis, for proposed and Final Rules with “Federal mandates” that may result in expenditures to State, local, or tribal Governments, in the aggregate, or to the private sector, of $100 million or more in any one-year. When such a statement is needed for a rule, section 205 of the UMRA generally requires a Federal Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal Governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The information collection requirements contained in this regulation have been approved by OMB and have been assigned OMB control number 0575-0189. This final rule contains no new reporting and recordkeeping requirements that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

RHS is committed to complying with the E-Government Act by promoting the use of the internet and other Information Technologies in order to provide increased opportunities for citizen access to Government information, services, and other purposes.

The program affected by this regulation is listed in the Catalog of Federal Domestic Assistance under numbers 10.438—Rural Rental Housing Guaranteed Loans (Section 538).

This executive order imposes requirements on RHS in the development of regulatory policies that have tribal implications or preempt tribal laws. RHS has determined that the rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian tribes. Thus, this rule is not subject to the requirements of Executive Order 13175. If tribal leaders are interested in consulting with RHS on this rule, they are encouraged to contact USDA's Office of Tribal Relations or Rural Development's Native American Coordinator at: AIAN@wdc.usda.gov to request such a consultation.

These loans are subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. RHS conducts intergovernmental consultations for each loan in accordance with 2 CFR part 415, subpart C.

In accordance with Federal civil rights law and the United States Department of Agriculture civil rights regulations and policies, the USDA, its Agencies, offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, familial/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information ( e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992, submit your completed form or letter to USDA by:

(1) Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410;

(2) Fax: (202) 690-7442; or

(3) Email: program.intake@usda.gov.

USDA is an equal opportunity provider, employer, and lender.

For the reasons set forth in the preamble, RHS amends 7 CFR part 3565 as follows:

On June 22, 2020, the Bureau published and sought public comment on a proposal (Advisory Opinions Proposal) for a new Bureau policy on advisory opinions and simultaneously launched a pilot advisory opinion program (Pilot Advisory Opinions program). 1 This notice finalizes the Advisory Opinions Proposal as the Advisory Opinions Policy (Advisory Opinions Policy). Part I provides some background on the Bureau's guidance functions and related statutory authorities. Part II sets out the final text of the Advisory Opinions Policy. Part III reviews the comments received on the Advisory Opinions Proposal and describes the changes the Bureau has made in the final Advisory Opinions Policy. Parts IV through VI address additional regulatory matters.

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), 2 3 the Bureau's “primary functions” include issuing guidance implementing Federal consumer financial law. Providing clear and useful guidance to regulated entities is an important aspect of facilitating markets that serve consumers.

The Bureau currently issues several types of guidance regarding the statutes that it administers, as well as implementing regulations and Official Interpretations. For example, the Bureau issues “Compliance Aids” that present legal requirements in a manner that is useful for compliance professionals, other industry stakeholders, and the public, or that include practical suggestions for how entities might choose to comply with those requirements. 4 The Bureau also provides individualized “implementation support” to regulated entities through its Regulatory Inquiries Function (RIF). 5 Neither Compliance Aids nor the RIF are intended to interpret ambiguities in legal requirements. The Bureau also may issue interpretive rules, which provide guidance on the Bureau's regulations or governing statutes, and which in some situations may provide a safe harbor to regulated entities that are in compliance with the Bureau's interpretive rule. 6

The Bureau initiated its policy for issuing advisory opinions in response to feedback received from external stakeholders in the 2018 Guidance RFI, encouraging the Bureau to provide written guidance in cases of regulatory uncertainty. The final Advisory Opinions Policy supersedes the pilot Advisory Opinions Program. 7 Similar to the advisory opinion programs of many other federal agencies, the Advisory Opinions Policy is intended to facilitate timely guidance by the Bureau that enables compliance by resolving outstanding regulatory uncertainty. The Advisory Opinions Policy supports the Bureau's statutory purpose of ensuring consumers have access to markets for consumer financial products and services, and that markets for consumer financial products and services are fair, transparent, and competitive. 8

The primary purpose of this Advisory Opinions Policy is to establish procedures to facilitate the submission by interested parties of requests that the Bureau issue advisory opinions and the manner in which the Bureau will evaluate and respond to such requests. Advisory opinions will be interpretive rules issued to resolve regulatory uncertainty. 9

Requests for advisory opinions should be submitted via email to advisoryopinion@cfpb.gov or through other means designated by the Bureau. The Bureau will not consider a request for an advisory opinion to be complete unless the request includes all of the information specified in the following paragraphs.

1. Confidential information: The request must identify information the requestor believes should be treated as confidential. If the requestor would not normally make the information public, the Bureau intends to withhold that information from public disclosure to the extent permitted by the Freedom of Information Act, 5 U.S.C. 552(b), and treat the information as confidential in accordance with the Bureau's regulations on Disclosure of Records and Information. 10 Requests should not include sensitive personal information, such as account numbers or Social Security numbers, or names of individuals.

2. Identity of person or entity seeking the advisory opinion. The request must identify the person or entity seeking the advisory opinion, as well as the identity of any person or entity submitting the request on behalf of a third party ( i.e., one or more clients or members). Outside counsel, a trade association, or a consumer advocacy group, for example, may submit requests for advisory opinions on behalf of one or more clients or members, and those entities do not need to be identified.

3. Statement about the absence of investigation or litigation. The request must include a statement that the issue on which the advisory opinion is being requested is—or is not—the subject of any known or reasonably knowable active litigation or Federal or State agency investigation. Additionally, if the requestor is submitting a request on behalf of an unidentified third party, the requestor must provide a statement that the unidentified third party is—or is not—the subject of an ongoing public Bureau enforcement action or an ongoing Bureau enforcement investigation.

4. Specifics about the issue on which the advisory opinion is sought. The issue raised in the request must be within the Bureau's purview, 11 and the request must concern actual facts or a course of action that the requestor (or third party) is engaged in, or considering engaging in. The request must set forth as completely as possible, all material facts and circumstances, including detailed specification of the legal question(s) and supporting facts with respect to which the requestor seeks an advisory opinion. The request must also identify the regulatory or statutory provision at issue and the potential uncertainty or ambiguity that the proposed interpretation would address, provide a proposed interpretation of law or regulation, and explain why the proposed interpretation is an appropriate resolution of that uncertainty or ambiguity. 12 Requestors may also choose to offer additional information, including, as applicable, an explanation of the potential consumer benefits and risks associated with resolution of the interpretive question and the proposed interpretation; and an explanation of how the proposed interpretation relates to the Bureau's statutory objectives. 13

Alternatively, in some cases the Bureau may decide to issue an advisory opinion based on questions the Bureau receives from the public, through other channels, that are not requests for advisory opinions. 14

Advisory Opinions issued by the Bureau under the Advisory Opinions Policy will be interpretive rules under the Administrative Procedure Act (APA)  15 that respond to a specific need for clarity on a statutory or regulatory interpretive question. The Bureau will publish advisory opinions in the Federal Register and on consumerfinance.gov, including a summary of the material facts or covered products and the Bureau's legal analysis of the issue.

Unless otherwise stated, each advisory opinion will be applicable to the requestor and to similarly situated parties to the extent that their situations conform to the summary of material facts or coverage in the advisory opinion. The scope and terms of an advisory opinion will be set out in the advisory opinion itself, and may deviate from the interpretation proposed by the requestor in its submission. 16 Moreover, the Bureau will not normally investigate the underlying facts of the requestor's situation and, as a result, an advisory opinion may not be applicable to the requestor if the underlying facts of the requestor's situation do not conform to the summary of material facts.

If a statutory safe harbor is applicable to an advisory opinion, the advisory opinion will explain that fact. The Truth in Lending Act (TILA), Equal Credit Opportunity Act (ECOA), Electronic Fund Transfer Act (EFTA), and Real Estate Settlement Procedures Act (RESPA) provide certain protections from liability for acts or omissions done in good faith in conformity with an interpretation by the Bureau. 17 The Fair Debt Collection Practices Act (FDCPA) contains similar protections, specifically using the term “advisory opinion.”  18

The Bureau intends to consider the following factors as part of its consideration of whether to address requests for advisory opinions. 19 The Bureau will prioritize open questions if they are within the Bureau's purview that can legally be addressed through an interpretive rule and if an advisory opinion is an appropriate tool relative to other Bureau tools for answering the question. Initial factors weighing for the appropriateness of an advisory opinion include: (1) The interpretive issue has been noted during prior Bureau examinations as one that might benefit from additional regulatory clarity; (2) the issue is one of significant importance or one whose clarification would provide significant benefit; and/or (3) the issue concerns an ambiguity that the Bureau has not previously addressed through an interpretive rule or other authoritative source. Factors weighing strongly for presumption that an advisory opinion is not an appropriate tool include: (1) The interpretive issue is the subject of an ongoing Bureau investigation or enforcement action; (2) the interpretive issue is the subject of an ongoing or planned rulemaking; (3) the issue is better suited for notice-and-comment rulemaking; (4) the issue could be addressed more effectively through a Compliance Aid or the RIF function; or (5) there is clear existing Bureau or court precedent that is available to the public on the issue.

The Bureau intends to further evaluate requests for advisory opinions based on secondary factors, including: Alignment with the Bureau's statutory objectives; size of the benefit offered to consumers by resolution of the interpretive issue; known impact on the actions of other regulators; and impact on available Bureau resources. The Bureau will primarily focus on the following statutory objectives: (1) Consumers are provided with timely and understandable information to make responsible decisions about financial transactions; (2) outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens; (3) Federal consumer financial law is enforced consistently, without regard to the status of a person as a depository institution, in order to promote fair competition; and (4) markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation. 20

The Bureau will focus primarily on clarifying ambiguities in its regulations, although Advisory Opinions may clarify statutory ambiguities. The Bureau will not issue advisory opinions on issues that require, or are better addressed through, a legislative rulemaking under the APA. 21 For example, the Bureau does not intend to issue an advisory opinion that would change regulation text or commentary. Similarly, if a regulation or statute establishes a general standard that can only be applied through highly fact-intensive analysis, the Bureau does not intend to replace that analysis with a bright-line standard that eliminates all of the required analysis. Highly fact-intensive applications of general standards, such as the statutory prohibition on unfair, deceptive, or abusive acts or practices, pose particular challenges for issuing advisory opinions, although there may be times when the Bureau is able to offer advisory opinions that provide additional clarity on the meaning of such standards.

Advisory opinions will be issued and final upon publication in the Federal Register . However, interested persons may provide input on published advisory opinions at any time by sending an email to advisoryopinion@cfpb.gov or through other means designated by the Bureau. The Bureau is particularly interested in input that addresses whether an advisory opinion would benefit from clarification or reconsideration, with information about the factual or legal basis for clarification or reconsideration.

The Bureau solicited comments on the Advisory Opinions Proposal. The Bureau received 16 unique comments, 13 of which were submitted by industry trade associations. A consortium of 7 consumer advocacy groups submitted a joint comment letter. The remaining comments were provided by staff of the Administrative Conference of the United States (ACUS) and one anonymous submitter. The Bureau has made certain changes to the Advisory Opinions Policy based on the comments, as discussed below, as well as other changes to the Advisory Opinions Policy for clarity.

Industry commenters uniformly supported the Advisory Opinions Proposal, as did the anonymous commenter. These commenters generally stated that the issuance by the Bureau of advisory opinions could aid in compliance in situations where there are statutory and regulatory uncertainties. Conversely, the joint comment letter by certain consumer advocacy groups generally opposed the Advisory Opinions Proposal and argued that the Bureau should abandon it. The Bureau has carefully considered this comment letter, but contrary to the group's assertions, and as discussed below the Bureau concludes that issuing interpretive rules in the form of advisory opinions is consistent with the APA or with the Bureau's statutory authorities. The Bureau also does not agree that advisory opinions are not an appropriate use of Bureau resources. Advisory opinions represent a commitment of resources by the Bureau that will help entities better understand their obligations under Federal consumer financial law. If an advisory opinion makes clear the law applies, it will promote compliance with the law that will prevent consumer harm. If an advisory opinion makes clear the law does not apply, it will avoid regulated entities incurring unnecessary compliance costs.

The consumer advocacy group comments stated that issuing interpretive rules in the form of advisory opinions are inconsistent with the APA and with the Bureau's statutory authorities. The Bureau disagrees with this assertion. As proposed, the advisory opinions are interpretive rules under the APA. 22 Nevertheless, the Bureau revised the phrase in the proposed Advisory Opinions Policy that states that “substantive importance or impact” is one of a list of factors that the Bureau intends to consider in part II.D so that it reads “significant importance.” This change is intended to address the commenter's concern that the phrase might be read to suggest that the Bureau intends to issue advisory opinions that are substantive rules rather than interpretive rules under the APA.

The Bureau received a number of comments from stakeholders expressing interest in a mechanism for soliciting public input on advisory opinions, either before or after issuance. Some commenters advocated that the Bureau obtain such input from the public before issuing advisory opinions. The Bureau notes that there is nothing in the Advisory Opinions Policy that would prevent the Bureau from soliciting input on a draft advisory opinion before finalizing, if the Bureau believes it would be appropriate for a given advisory opinion. However, the Bureau declines to adopt this as a uniform requirement for advisory opinions. Such a process is not typical of peer financial regulators' advisory opinion policies. 23 It could unnecessarily delay the process of issuing advisory opinions, and thus inhibit the ability of the Bureau to promptly provide clarity about its own regulations and the statutes that it administers.

However, the Bureau does agree that providing a mechanism for the public to provide feedback after an advisory opinion is issued could be useful. Accordingly, the Bureau has added new part II.E to the Advisory Opinions Policy to provide that any person may comment on an advisory opinion via email to advisoryopinion@cfpb.gov or through other means designated by the Bureau. The Bureau encourages any stakeholders including, but not limited to, industry representatives and consumer advocates, to submit such feedback in an instance where stakeholders believe the Bureau should clarify or reconsider an advisory opinion.

Certain consumer advocacy group commenters expressed concern that the requestor's presentation of the issue might be inaccurate or misleading. However, the Bureau emphasizes that it expects requestors to provide truthful submissions to the Bureau. While it is possible that the submitting party may provide inaccurate or misleading facts, doing so would put at great risk the benefit the requester might obtain from an advisory opinion. The Advisory Opinions Policy specifically explains that “an advisory opinion may not be applicable to the requestor if the underlying facts of the requestor's situation do not conform to the Bureau's summary of material facts” in the advisory opinion. The Bureau concludes that this disincentive is sufficient to address the concern commenters have raised. For the same reason, the Bureau does not believe it is necessary to require requestors to include an affirmation that the information provided is accurate, as some commenters suggested.

Some commenters asked the Bureau to provide a mechanism for requestors to modify or rescind pending advisory opinion requests. The Bureau notes that it would be consistent with the Advisory Opinions Policy for a requestor to amend or withdraw a pending request.

If the Bureau informs a requestor that it has not chosen to issue an advisory opinion, some commenters advocated that the Bureau create a specific procedure for the requestor to appeal or request reconsideration of that decision. The Bureau does not believe adding a specific procedure to address that possibility is necessary, because the Advisory Opinions Policy would allow a requestor to renew its request a subsequent time if it wants to bring new facts, law, or other considerations to the Bureau's attention.

Part II.B of the Advisory Opinions Proposal stated that the Bureau would accept advisory opinion requests from trade associations, service providers, and other third parties; however, the Advisory Opinions Proposal noted that if the requestor is submitting a request on behalf of an unidentified third party, the requestor must provide a statement on whether the unidentified third party is the subject of an ongoing public Bureau enforcement action or an ongoing Bureau enforcement investigation conducted by the Bureau's Office of Enforcement. 24 This statement was in addition to the general requirement that any requestor provide a statement of whether the issue on which the advisory opinion is being requested is the subject of any known or reasonably knowable active litigation or Federal or State agency investigations. Trade association commenters generally supported the Bureau's proposal to allow third parties to request advisory opinions. These commenters stated that allowing third parties to facilitate requests would increase access to advisory opinions, in particular for smaller entities that might otherwise lack the resources to request an advisory opinion.

Certain consumer advocacy groups opposed the proposal to allow requests on behalf of third parties. These commenters argued that the Bureau would have insufficient details about the underlying facts of the third party's situation. The Bureau agrees that it is possible for requests on behalf of a third party, like any type of request, to include insufficient facts for the Bureau to reach a legal conclusion. However, that would be a potential reason for denying an individual request, not entirely closing off this potential source of requests for advisory opinions.

These commenters also asserted that the Bureau must know the identity of the third party in order to avoid interference with litigation or enforcement-related proceedings. However, the Bureau concludes that the categorical, express representations that the requestor would need to make under the Advisory Opinions Policy are sufficient to alert the Bureau to those proceedings of which the Bureau would not otherwise be aware that are likely to be relevant to a potential advisory opinion and about which further Bureau inquiry may be warranted. The Bureau is finalizing the required statements, with non-substantive wording changes in part II.B of the Advisory Opinions Policy. 25

It is, of course, possible that the Bureau may decide it is appropriate to rescind an advisory opinion. One commenter emphasized that, if an advisory opinion is rescinded, no action should be taken against those institutions who acted in good faith in accordance with the advisory opinion. The Bureau notes that several statutes provide protections from liability for acts or omissions done in good faith in conformity with an interpretation by the Bureau, as detailed in the text of the Advisory Opinions Policy. And of course, in addition to any applicable safe harbors, the Bureau would not expect to retroactively impose punishments on persons who conformed their conduct in good faith to an advisory opinion before the advisory opinion was rescinded. Doing so would raise serious concerns under the Due Process Clause, which restricts such retroactive relief.

Part II.B of the Advisory Opinions Proposal explained that where information submitted to the Bureau is information the requestor would not normally make public, the Bureau intends to treat it as confidential pursuant to its rule, Disclosure of Records and Information, to the extent applicable. 26

Industry commenters were broadly supportive of this approach. However, certain consumer advocacy groups asserted that this statement is in tension with the Freedom of Information Act (FOIA). To be clear, the Bureau will treat information that it receives in accordance with FOIA, including the FOIA exemption at 5 U.S.C. 552(b)(4) that applies to confidential business information. Information that is subject to a FOIA exemption also will be treated as confidential in accordance with the Bureau's rule on Disclosure of Records and Information, 12 CFR part 1070. The confidentiality assurance in the proposed policy reflects the standard for determining applicability of the exemption at 5 U.S.C. 552(b)(4), established by the United States Supreme Court in Food Marketing Institute v. Argus Leader Media dba Argus Leader, 139 S. Ct. 2356 (2019). To make this clearer, the Bureau revises the policy to state explicitly that the information will be treated in accordance with FOIA.

The Bureau received comments on a number of other subjects. These include comments on the structure of the Bureau's internal deliberative process for considering advisory opinion requests; timelines for deciding advisory opinion requests; details of how the Bureau should communicate with requestors after the Bureau receives their requests, such as what the Bureau should say in the letters that it sends denying requests; general outreach that commenters recommend that the Bureau conduct with outside bodies or groups; recommendations regarding the types of requests the Bureau should prioritize; and details of how the Bureau should post advisory opinions on its website.

The Bureau appreciates receiving commenters' views on all aspects of the program. However, the Bureau has decided not to expand the scope of the Advisory Opinions Policy, which is intended to establish the general procedures of the program, to cover these specific implementation issue. Instead, the Bureau will consider these comments as it proceeds with implementation of the Advisory Opinions Policy.

This Advisory Opinions Policy is a rule of agency organization, procedure, or practice, and it is therefore exempt from the notice-and-comment rulemaking requirements of the APA. 27 For the same reason, it is not subject to the 30-day delayed effective date for substantive rules under the APA. 28 Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 29

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ) requires that Federal agencies may not conduct or sponsor, and notwithstanding any other provision of law, a person is 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 as contained in this final Policy and identified below have been approved by OMB and assigned the OMB control number 3170-0072. OMB's approval will expire on November 30, 2023.

The Bureau's Advisory Opinions Proposal, published June 22, 2020, sought comment on these information collection requirements. While the Bureau received numerous comments on the Advisory Opinions Proposal, which are addressed above, the Bureau received no comments specifically regarding the burden estimates or the utility or appropriateness of these information collections. Additional details on comments received can be found in the Supporting Statement for the related 30-day notice published as required under the PRA. 30

A complete description of the information collection requirements, including the burden estimate methods, is provided in the information collection request (ICR) that the Bureau submitted to OMB under the requirements of the PRA. The ICR submitted to OMB requesting approval under the PRA for the information collection requirements contained herein is available at OMB's public-facing docket at https://www.reginfo.gov/public/.

The Director of the Bureau, Kathleen L. Kraninger, having reviewed and approved this document, is delegating the authority to electronically sign this document to Grace Feola, a Bureau Federal Register Liaison, for purposes of publication in the Federal Register .

The FAA has received reports indicating that the AFDS failed to transition to the instrument landing system LOC beam after the consistent localizer capture function in the flight control modules initiated a transition to capture LOC during approach. This condition, if not addressed, could result in localizer overshoot leading to glideslope descent on the wrong heading. Combined with a lack of flight deck effects for a consistent localizer capture mode failure, this condition could result in a controlled flight into terrain.

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

This AD requires revising the existing AFM to incorporate procedures for conducting an approach with a localizer-based navigation aid, monitoring localizer raw data, calling out any significant deviations, and performing an immediate go around if the airplane has not intercepted the final approach course as shown by the localizer deviation.

The FAA considers this AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, the FAA might consider additional rulemaking.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the failure of the AFDS to transition to the instrument LOC beam, after the consistent localizer capture function in the flight control modules initiated a transition to capture LOC during approach, could result in localizer overshoot leading to glideslope descent on the wrong heading. Combined with a lack of flight deck effects for a consistent localizer capture mode failure, this condition could result in a controlled flight into terrain. In addition, the compliance time for the required action is shorter than the time necessary for the public to comment and for publication of the final rule. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, the FAA invites you to send any written comments, data, or views about this AD. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one copy of the comments. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-1031; Project Identifier AD-2020-00846-T” at the beginning of your comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, as well as a report summarizing each substantive public contact with FAA personnel concerning this AD. The FAA will consider all comments received by the closing date for comments. The FAA may amend this AD because of those comments.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Frank Carreras, Aerospace Engineer, Systems and Equipment Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3539; email: frank.carreras@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 144 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The 63rd Street Bridge across Indian Creek, mile 4.0, at Miami Beach, Florida is a double-leaf bascule bridge with an 11 foot vertical clearance at mean high water in the closed position. The normal operating schedule for the bridge is set forth in 33 CFR 117.293. Navigation on the waterway is commercial and recreational.

A private citizen requested the Coast Guard consider placing the drawbridge on a weekend operating schedule to alleviate vehicle congestion due to on demand bridge openings. The Coast Guard contacted the bridge owner, Florida Department of Transportation (FDOT), and requested a copy of the bridge logs for the month of August 2020. After reviewing the logs, the Coast Guard determined placing the bridge on a schedule during the weekend may alleviate vehicle congestion while maintaining the reasonable needs of navigation. This test deviation provides for scheduled opening times on Saturdays and Sundays. There will be no change to the published weekday operating schedule.

Under this test deviation, from 7 a.m. to 7 p.m., the draw shall open on the hour and half-hour; except Federal Holidays and all other times, the draw shall operate on demand. From 7:10 a.m. to 9:55 a.m. and 4:05 p.m. to 6:59 p.m., Monday through Friday, except Federal Holidays, the draw need not open for the passage of vessels. In February of each year during the period seven days prior to the City of Miami Beach Yacht and Brokerage Show and the four days following the show, from 10 a.m. to 4 p.m., the bridge need not open except for 10 minutes at the top of the hour. At all other times the bridge shall operate on its normal schedule.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Documents mentioned in this notification as being available in this docket and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone by December 31, 2020, and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the date of the event and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is necessary to protect persons and property from the potential hazards associated with the fireworks display.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Lower Mississippi River (COTP) has determined that potential hazards associated with the fireworks display located at mile marker (MM) 365.0 on the Lower Mississippi River and scheduled for 4 p.m. on December 31, 2020, would be a safety concern for all persons and vessels on the Lower Mississippi River between MM 364.5 and MM 365.5 from 4 p.m. through 7 p.m. on December 31, 2020. Hazards associated with the firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. This rule is necessary to ensure the safety of persons, vessels, and the marine environment on these navigable waters before, during, and after the fireworks.

This rule establishes a temporary safety zone from 4 p.m. through 7 p.m. on December 31, 2020. The safety zone will cover all navigable waters of the Lower Mississippi River from MM 364.5 to MM 365.5. The duration of this safety zone is intended to ensure the safety of waterway users on these navigable waters before, during, and after the scheduled fireworks display.

Entry of persons or vessels into this safety zone is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Lower Mississippi River. Persons or vessels seeking to enter the safety zones must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 901-521-4822. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be prohibited from entering this safety zone, which will impact a one-mile stretch of Lower Mississippi River for three hours on one evening. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the safety zone, and the rule allows vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry on a one-mile stretch of the Lower Mississippi River for three hours on one evening. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of UDHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

Throughout this document, “we,” “us” and “our” refer to the EPA.

On August 10, 2020 (85 FR 48127), the EPA proposed to partially approve and partially disapprove the California Air Resources Board's April 12, 2017 submittal of the 2008 Eight-Hour Ozone Reasonably Available Control Technology Demonstration for San Diego County (“2016 RACT SIP”).

Our proposed action contains more information on the submittal and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received two comments. One comment was supportive, and the other was not germane.

No comments were submitted that change our assessment of the 2016 RACT SIP as described in our proposed action. Therefore, we are finalizing a partial approval and partial disapproval of the 2016 RACT SIP. As authorized in sections 110(k)(3) and 301(a) of the CAA, the EPA is finalizing a partial disapproval of the 2016 RACT SIP with respect to those portions addressing the following source categories: Design Criteria for Stage I Vapor Control Systems—Gasoline Service Stations (EPA-450/R-75-102); Tank Truck Gasoline Loading Terminals (EPA-450/2-77-026); Manufacture of Synthesized Pharmaceutical Products (EPA-450/2-78-029); Industrial Cleaning Solvents (EPA-453/R-06-001); Fiberglass Boat Manufacturing Materials (EPA-453/R-08-004); Non-CTG major sources of VOC; and Miscellaneous Metal and Plastic Parts Coatings (EPA-453/R-08-003) Table 3—Plastic Parts and Products, Table 4—Automotive/Transportation and Business Machine Plastic Parts, Table 5—Pleasure Craft Surface Coating, and Table 6—Motor Vehicle Materials. As a result of the final partial disapproval, offset sanctions will be imposed unless the EPA approves a subsequent SIP revision that corrects the identified deficiencies within 18 months of the effective date of this action. Highway sanctions will be imposed unless the EPA approves a subsequent SIP revision that corrects the rule deficiencies within 24 months of the effective date of this action. These sanctions will be imposed under section 179 of the CAA and 40 CFR 52.31. Additionally, section 110(c) requires the EPA to promulgate a Federal implementation plan within 24 months unless we approve subsequent SIP revisions that correct the rule deficiencies.

As authorized in sections 110(k)(3) and 301(a) of the CAA, the EPA is finalizing a partial approval of the 2016 RACT SIP with respect to all remaining source categories, as proposed. The EPA is also finalizing an approval of the District's negative declarations as proposed.

Additional information about these statutes and Executive orders can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

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

This action does not impose an information collection burden under the PRA, because this SIP partial approval and partial disapproval does not in-and-of itself create any new information collection burdens, but simply partially approves and partially disapproves certain State requirements for inclusion in the SIP.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This SIP partial approval and partial disapproval does not in-and-of itself create any new requirements but simply partially approves and partially disapproves certain pre-existing State requirements for inclusion in the SIP.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action partially approves and partially disapproves pre-existing requirements under State or local law and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

This action does not have federalism implications. 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.

This action does not have tribal implications, as specified in Executive Order 13175, because the SIP revision that the EPA is partially disapproving would not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because this SIP partial approval and partial disapproval does not in-and-of itself create any new regulations, but simply partially approves and partially disapproves certain pre-existing State requirements for inclusion in the SIP.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

For the reasons stated in the preamble, the Environmental Protection Agency amends part 52, chapter I, title 40 of the Code of Federal Regulations follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0461 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before February 1, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0461, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of October 3, 2019 (84 FR 52850) (FRL-9999-89), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 9E8769) by IR-4, IR-4 Project Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR 180.412 be amended by establishing tolerances for residues of the herbicide sethoxydim, including its metabolites and degradates, determined by measuring only the sum of sethoxydim, 2-[1-(ethoxyimino)butyl]-5-[2-(ethylthio)propyl]-3-hydroxy-2-cyclohexen-1-one (CAS Reg. No. 74051-80-2) and its metabolites containing the 2-cyclohexen-1-one moiety, calculated as the stoichiometric equivalent of sethoxydim, in or on basil, dried leaves at 20 parts per million (ppm) and basil, fresh leaves at 8 ppm. That document referenced a summary of the petition prepared by IR-4, the petitioner, which is available in the docket for this action, docket ID number EPA-HQ-OPP-2019-0461, at http://www.regulations.gov. No relevant comments were received in response to the notice of filing.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but it does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of sethoxydim and to make a determination on aggregate exposure for sethoxydim, including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with sethoxydim follows.

On June 15, 2015, EPA published in the Federal Register a final rule establishing tolerances for residues of sethoxydim in or on multiple commodities based on the Agency's conclusion that aggregate exposure to sethoxydim is safe for the general population, including infants and children. See 80 FR 34070 (FRL-9928-20) (Docket ID EPA-HQ-OPP-2014-0161). In an effort to streamline Federal Register publications, EPA is not reprinting here summaries of its analysis that have previously appeared in the Federal Register in tolerance rulemakings for the same pesticide. To that end, this rulemaking refers the reader to the following sections from the June 15, 2015 tolerance rulemaking for sethoxydim that remain unchanged for an understanding of the Agency's rationale in support of this rulemaking: Units III.A (Toxicological Profile); III.B. (Toxicological Points of Departure/Levels of Concern); III.C. (Exposure Assessment), except as explained in the next paragraphs; III.D. (Safety Factor for Infants and Children); and IV.A (Analytical Enforcement Method).

1. Updates to exposure assessment. EPA's dietary (food and drinking water) exposure assessments have been updated to include the additional exposure from the new use of sethoxydim on basil. In addition, the acute dietary exposure assessment was revised to: (1) Assume 100% crop treated, instead of using percent crop treated as described in the 2015 rule; and (2) incorporate empirical and/or EPA's 2018 default processing factors. The assumption of tolerance-level residues for both the acute and chronic dietary analyses has not changed. For the chronic dietary exposure assessment, EPA incorporated updated average crop treated estimates for select commodities and EPA's 2018 processing factors.

The new use on basil does not impact drinking water exposures; therefore, the Agency relied on the same values for drinking water exposures as expressed in the June 2015 rulemaking.

While EPA has updated the human equivalent doses for assessing inhalation risk to residential handlers, this revision does not impact the approach of the aggregate assessment. The scenario and life stage resulting in the highest residential exposures for use in the aggregate assessment and which is considered protective of other exposure scenarios continues to be the post-application incidental oral hand-to-mouth exposure of children (1 to less than 2 years old) on treated turf. The new use on basil does not result in any additional residential exposures.

2. Assessment of aggregate risks. EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute population adjusted dose and chronic population adjusted dose. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate points of departure to ensure that an adequate margin of exposure (MOE) exists. For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure.

Acute dietary (food and drinking water) risks are below the Agency's level of concern of 100% of the acute population adjusted dose (aPAD): They are less than 12% of the aPAD for children 1 to 2 years old, the population subgroup with the highest exposure estimate. Chronic dietary risks are below the Agency's level of concern of 100% of the chronic population adjusted dose (cPAD): They are 24% of the cPAD for children 1 to 2 years old, the population subgroup with the highest exposure estimate.

For the aggregate risk assessment, exposures to sethoxydim in food and drinking water are combined with residential exposures for the relevant exposure duration period. Aggregate acute and chronic risk are equivalent to the dietary risks, which are below EPA's level of concern, because neither acute nor long-term residential exposures are expected.

The short-term aggregate risk assessment considers only residential incidental oral exposures and combines chronic (background) exposures with the expected short-term post-application exposures to children 1 to 2 years old. This yields an MOE of 4,400, which is not of concern because it exceeds EPA's level of concern (MOEs less than or equal to 100). Intermediate-term residential exposures are not expected.

Finally, as stated in the June 2015 rulemaking, sethoxydim is not expected to pose a cancer risk to humans.

Therefore, based on the risk assessments and information described and referenced above, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to sethoxydim residues. More detailed information about the Agency's analysis can be found in “Sethoxydim: Human Health Risk Assessment to Support the Section 3 Use on Basil and a Label Amendment to Reduce the Pre-harvest Interval for Caneberry Subgroup 13-07A” dated October 21, 2020 in docket ID number EPA-HQ-OPP-2019-0461.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

The Codex has not established a MRL for sethoxydim.

Therefore, tolerances are established for residues of sethoxydim, including its metabolites and degradates, determined by measuring only the sum of the herbicide 2-[1-(ethoxyimino)butyl]-5-[2-(ethylthio)propyl]-3-hydroxy-2-cyclohexen-1-one (CAS Reg. No. 74051-80-2) and its metabolites containing the 2-cyclohexen-1-one moiety, calculated as the stoichiometric equivalent of sethoxydim, in or on basil, dried leaves at 20 ppm and basil, fresh leaves at 8 ppm.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

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

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0569 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before February 1, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0569, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of May 29, 2020 (85 FR 32338) (FRL-10009-84), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11317) by Ecolab, Inc., 655 Lone Oak Drive, Eagan, MN 55121. The petition requested that 40 CFR 180.940(a) be amended by establishing an exemption from the requirement of a tolerance for residues of adipic acid when used as an inert ingredient at an upper limit of 100 ppm in antimicrobial pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils. That document referenced a summary of the petition prepared by Ecolab, Inc., the petitioner, which is available in the docket, http://www.regulations.gov. One comment was received on the notice of filing. EPA's response to this comment is discussed in Unit V.B.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of the FFDCA defines “safe” to mean that EPA has determined that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but it does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue.”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no harm to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure to adipic acid, including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with adipic acid follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by adipic acid in these toxicity studies are discussed in this unit.

Available acute toxicity studies on adipic acid include various oral, dermal, and inhalation studies which showed low toxicity. Multiple dermal and eye irritation studies, and a dermal sensitization study, indicated that adipic acid is not a dermal irritant and does not cause skin sensitization. Adipic acid is an eye irritant. In available repeat dose studies, which were up to two years in duration, no adverse effects of treatment were seen below the limit dose of 1,000 mg/kg/day. In addition, there was no evidence of carcinogenicity or neuropathological changes or effects reported in any of the studies. Adipic acid was not found to be genotoxic in various in vitro and in vivo studies.

All studies showed low acute and repeat dose toxicity, and no reproductive/developmental toxicity was seen in any of the species tested. The primary systemic health effect associated with adipic acid is irritation of the intestinal mucosa and decreased body weight after exposures to concentrations >2,000 mg/kg/day.

No toxicological endpoint of concern for adipic acid has been identified in the database.

1. Dietary exposure from food, feed uses, and drinking water. In evaluating dietary exposure to adipic acid, EPA considered exposure under the current and proposed use patterns. Dietary exposure to adipic acid may occur from eating foods containing adipic acid (found naturally or as a food additive) or eating food that comes in contact with surfaces treated with pesticide formulations containing this inert ingredient. In addition, exposure through drinking water is also possible. However, no toxicological endpoint of concern was identified for adipic acid below the limit dose and therefore a quantitative assessment of dietary exposure is not necessary.

2. Non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, and tables). Residential exposure to adipic acid may occur based on its use as an inert ingredient in pesticide formulations registered for residential uses. Additional non-dietary exposure may occur from the use of adipic acid in pharmaceutical products and cosmetics. However, no toxicological endpoint of concern was identified below the limit dose for adipic acid and therefore a quantitative residential exposure assessment for adipic acid was not conducted.

3. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke an exemption, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found adipic acid to share a common mechanism of toxicity with any other substances, and adipic acid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has assumed that adipic acid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of the FFDCA requires EPA to apply an additional tenfold margin of safety in the case of threshold effects to ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. As noted in Unit IV.B., there is no indication of threshold effects being caused by adipic acid. Therefore, this requirement does not apply to the present analysis. Moreover, due to the lack of any toxicological endpoints of concern, EPA conducted a qualitative assessment of adipic acid, which does not use safety factors for assessing risk.

Taking into consideration all available information on adipic acid, EPA has determined that there is a reasonable certainty that no harm to the general population or any population subgroup, including infants and children, will result from aggregate exposure to adipic acid residues. Therefore, the establishment of an exemption from the requirement of a tolerance under 40 CFR 180.940(a) for residues of adipic acid when used as an inert ingredient in antimicrobial pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils at a maximum end-use concentration of 100 ppm, is safe under FFDCA section 408.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of adipic acid in or on any food commodities. EPA is establishing a limitation on the amount of adipic acid that may be used in antimicrobial pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils. This limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any antimicrobial pesticide formulation applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils pesticide formulation that exceeds an end-use concentration of adipic acid of 100 ppm.

One comment was received in response to the notice of filing associated with this action; however, the comment was unrelated to adipic acid and is not relevant to this action.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.940(a) for residues of adipic acid (CAS Reg. No. 124-04-9) when used as an inert ingredient in antimicrobial pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils at an end-use concentration not to exceed 100 ppm.

This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

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

Therefore, for the reasons stated in the preamble, EPA amends 40 CFR chapter I as follows:

This is a summary of the Commission's Report and Order in WT Docket No. 19-250, RM-11849; FCC 20-153, adopted on October 27, 2020, and released on November 3, 2020. The full text of this document is available for public inspection online at https://www.fcc.gov/edocs. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format, etc.), and reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) may be requested by sending an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

1. In this Report and Order, the Commission revises its rule to provide for streamlined state and local review of modifications that involve limited ground excavation or deployment while preserving the ability of state and local governments to manage and protect local land-use interests. To facilitate the collocation of antennas and associated ground equipment, while recognizing the role of state and local governments in land use decisions, the Commission revises section 6409(a) rules to provide that excavation or deployment in a limited area beyond site boundaries would not disqualify the modification of an existing tower from streamlined state and local review on that basis.

2. This change is consistent with the recent amendment to the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas (Collocation NPA), which now provides that, in certain circumstances, excavation or deployment within the same limited area beyond a site boundary does not warrant federal historic preservation review of a collocation. In addition, we revise the definition of “site” in section 6409(a) rules in a manner that will ensure that the site boundaries from which limited expansion is measured appropriately reflect prior state or local government review and approval. The Commission's actions in this document carefully balance the acceleration of the deployment of advanced wireless services, particularly through the use of existing infrastructure where efficient to do so, with the preservation of states' and localities' ability to manage and protect local land-use interests.

3. To advance “Congress's goal of facilitating rapid deployment [of wireless broadband service]” and to provide clarity to the industry, the Commission in 2014 adopted rules to implement section 6409(a) of the Spectrum Act of 2012 (80 FR 1237, January 8, 2015). Section 6409(a) provides, in relevant part, that “[n]otwithstanding [47 U.S.C. 332(c)(7)] or any other provision of law, a state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” Among other matters, the 2014 Infrastructure Order established a 60-day period in which a state or local government must approve an “eligible facilities request.” (80 FR 1267, January 8, 2015). The Commission's rules define “eligible facilities request” as “any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (i) Collocation of new transmission equipment; (ii) Removal of transmission equipment; or (iii) Replacement of transmission equipment.” (80 FR 1252).

4. The 2014 Infrastructure Order adopted objective standards for determining when a proposed modification would “substantially change the physical dimensions” of an existing tower or base station. Among other standards, the Commission determined “that a modification is a substantial change if it entails any excavation or deployment outside the current site of the tower or base station.” (80 FR 1254). The Commission defined “site” for towers not located in the public rights-of-way as “the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site,” (80 FR 1255) and it defined “site” for other eligible support structures as being “further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.” (Ibid).

5. In adopting the standard for excavation and deployment that would be considered a substantial change under section 6409(a), the Commission looked to analogous concerns about impacts on historic properties reflected in implementation of the National Historic Preservation Act and primarily relied on similar language in the Collocation NPA. At that time, the Commission considered, but declined to adopt, a proposal to exclude from the scope of “substantial change” any excavation or deployment of up to 30 feet in any direction of a site, a proposal that was consistent with an exclusion from section 106 review for replacement towers in the Wireless Facilities NPA. In reconciling different standards for potentially analogous deployments in the NPAs, the Commission reasoned that the activities covered under section 6409(a) “are more nearly analogous to those covered under the Collocation [NPA] than under the replacement towers exclusion in the [Wireless Facilities] NPA,” but the Commission did not explore the reasoning for the discrepancy between the NPAs, nor did it further explain why it chose to borrow from the older NPA instead of the more modern one. In addition, the Commission did not make a determination that it would be unreasonable to use 30 feet as a touchstone for defining what types of excavations would “substantially change the physical dimensions of [an existing] tower or base station.” Rather, the Commission established a reasonable, objective, and concrete set of criteria to eliminate the need for protracted local zoning review, in furtherance of the goals of the statute, by drawing guidance from the consensus represented by the approach taken in the Collocation NPA. That same Collocation NPA, however, was recently amended to reflect an updated consensus on what might be best regarded as a substantial increase in the size of an existing tower, as it excludes a collocation from section 106 review if it involves excavation within 30 feet outside the boundaries of the tower site.

6. On August 27, 2019, the Wireless Infrastructure Association (WIA) filed a Petition for Declaratory Ruling (84 FR 50810, September 26, 2019) requesting that the Commission clarify that, for towers other than towers in the public rights-of-way, the “current site” for purposes of § 1.6100(b)(7)(iv) is the property leased or owned by the applicant at the time it submits a section 6409(a) application and not the initial site boundaries. On the same day, WIA also filed a Petition for Rulemaking (Ibid) requesting that the Commission amend its rules to establish that a modification would not cause a “substantial change” if it entails excavation or deployments at locations of up to 30 feet in any direction outside the boundaries of a tower compound.

7. On June 10, 2020, the Commission adopted a Notice of Proposed Rulemaking (NPRM) that sought comment on two issues regarding the scope of the streamlined application process under section 6409(a): (i) The definition of “site” under § 1.6100(b)(6); and (ii) the scope of modifications under § 1.6100(b)(7)(iv). (85 FR 39859, July 2, 2020). The Commission proposed to revise the definition of site “to make clear that `site' refers to the boundary of the leased or owned property surrounding the tower and any access or utility easements currently related to the site as of the date that the facility was last reviewed and approved by a locality.” The Commission also proposed “to amend § 1.6100(b)(7)(iv) so that modification of an existing facility that entails ground excavation or deployment of up to 30 feet in any direction outside the facility's site will be eligible for streamlined processing under section 6409(a).” The NPRM asked, in the alternative, whether the Commission “should revise the definition of site in § 1.6100(b)(6), as proposed above, without making the proposed change to § 1.6100(b)(7)(iv) for excavation or deployment of up to 30 feet outside the site.” In addition, the NPRM asked “whether to define site in § 1.6100(b)(6) as the boundary of the leased or owned property surrounding the tower and any access or utility easements related to the site as of the date an applicant submits a modification request.” Finally, the NPRM asked about alternatives to the proposals, costs, and benefits.

8. After reviewing the record in this proceeding, the Commission makes targeted revisions to § 1.6100(b)(7)(iv) and (b)(6) of its rules to broaden the scope of wireless facility modifications that are eligible for streamlined review under section 6409(a). The Commission has considered collocation a tool for advancing wireless services' deployment for over three decades. As the Commission noted in the 2014 Infrastructure Order, collocation “is often the most efficient and economical solution for mobile wireless service providers that need new cell sites to expand their existing coverage area, increase their capacity, or deploy new advanced services.” The actions the Commission takes in this document will further streamline the approval process for using existing infrastructure to expedite wireless connectivity efforts nationwide while preserving localities' ability to manage local zoning.

9. First, the Commission amends § 1.6100(b)(7)(iv) to provide that, for towers not located in the public rights-of-way, a modification of an existing site that entails ground excavation or deployment of transmission equipment of up to 30 feet in any direction outside a tower's site will not be disqualified from streamlined processing under section 6409(a) on that basis. In general, § 1.6100(b)(7) describes when an eligible facilities request will “substantially change the physical dimensions” of a facility under section 6409(a). Because the statutory term “substantially change” is ambiguous, § 1.6100(b)(7) elaborates on the phrase by providing numerical and objective criteria for determining when a proposed expansion will “substantially change” the dimensions of a facility. For the reasons explained more fully below, the Commission concludes that proposed ground excavation or deployment of up to 30 feet in any direction outside a tower's site is sufficiently modest so as not to “substantially change the physical dimensions” of a tower or base station, and that this amendment to the Commission's rules thus represents a permissible construction of section 6409(a).

10. In promulgating the initial rules to implement section 6409(a), the Commission determined that “an objective definition” of what constitutes a substantial change “will provide an appropriate balance between municipal flexibility and the rapid deployment of covered facilities.” With respect to excavation and deployment in association with modifications to existing structures, the Commission found that the appropriate standard for what constitutes a substantial change was any excavation or deployment outside of the site boundaries. Here, the Commission concludes that a revision to this standard is warranted by certain changes since its initial determination: The recent recognition by the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers of 30 feet as an appropriate threshold in the context of federal historic preservation review of collocations; and the ongoing evolution of wireless networks that rely on an increasing number of collocations, where they are an efficient alternative to new tower construction, to meet the rising demand for advanced wireless services. In light of these changes, the Commission concludes that it is reasonable to adjust the line drawn by the Commission in 2014 for streamlined treatment of excavations or deployments associated with collocations, and in doing so the Commission continues to believe that it is appropriate to consider in this context the analogous line drawn in the federal historic preservation context as a relevant benchmark.

11. As an initial matter, the Commission recognizes that it relied on the Wireless Facilities NPA and Collocation NPA to inform its adoption of initial rules implementing section 6409(a). In particular, the Commission stated that “the objective test for `substantial increase in size' under the Collocation [NPA] should inform its consideration of the factors to consider when assessing a `substantial change in physical dimensions,'” and that this approach “reflects the Commission's general determination that definitions in the Collocation [NPA] and [Wireless Facilities] NPA should inform the Commission's interpretation of similar terms in [s]ection 6409(a).” With respect to excavation and deployment associated with a modification of an existing structure, the Commission relied on a provision in the Collocation NPA and determined that “a modification is a substantial change if it entails any excavation or deployment outside the current site of the tower or base station.” Further, the Commission considered, but declined to adopt, a proposal to exclude from the scope of “substantial change” any excavation or deployment of up to 30 feet in any direction from a site's boundaries, which would have been consistent with an exclusion from section 106 review for replacement towers in the Wireless Facilities NPA. Importantly, the Commission did not characterize the 30-foot standard in the Wireless Facilities NPA to be an unreasonable choice. The Commission elected to follow the language in the Collocation NPA given commonalities between the types of deployments referred to in section 6409 and the types of deployments covered under the Collocation NPA, as well as input from industry and localities.

12. The Collocation NPA was recently amended, however, to align with the Wireless Facilities NPA, reflecting a recognition that, in the context of federal historic preservation review, permitting a limited expansion beyond the site boundaries to proceed without substantial review encourages collocations without significantly affecting historic preservation interests. Specifically, on July 10, 2020, the Wireless Telecommunications Bureau Chief (on delegated authority from the Commission), the Advisory Council on Historic Preservation, and the National Conference of State Historic Preservation Officers executed the Amended Collocation NPA to eliminate an inconsistency between the Collocation NPA and the Wireless Facilities NPA (85 FR 51357, August 20, 2020).

13. The Amended Collocation NPA now provides that, for the purpose of determining whether a collocation may be excluded from section 106 review, a collocation is a substantial increase in the size of the tower if it “would expand the boundaries of the current tower site by more than 30 feet in any direction or involve excavation outside these expanded boundaries.” In adopting that change, the Amended Collocation NPA stated that, among other reasons, the parties “developed this second amendment to the Collocation Agreement to allow project proponents the same review efficiency [applicable to tower replacements in the Wireless Facilities NPA] in regard to limited excavation beyond the tower site boundaries for collocation, thereby encouraging project proponents to conduct more collocation activities instead of constructing new towers . . . .” The parties therefore recognized the limited effect that an up to 30-foot compound expansion would impose on the site, which is also consistent with the Commission's rationale in adopting the replacement tower exclusion in the Wireless Facilities NPA. Indeed, in the 2004 Report and Order (70 FR 556, January 4, 2005) implementing the Wireless Facilities NPA, the Commission concluded that a 30-foot standard was “reasonable and appropriate,” and reasoned that “construction and excavation to within 30 feet of the existing leased or owned property means that only a minimal amount of previously undisturbed ground, if any, would be turned, and that would be very close to the existing construction.” The Commission's decision to permit an eligible facilities request to include limited excavation and deployment of up to 30 feet in any direction harmonizes its rules under section 6409(a) with permitted compound expansions for exclusion from section 106 review for replacement towers under the Wireless Facilities NPA and collocations under the Collocation NPA.

14. In that regard, the Commission disagrees with the localities' argument that the Collocation NPA “has no bearing on [this] matter.” The definition of “substantial increase in size of the tower” in the Collocation NPA was a primary basis for the Commission's decision in the 2014 Infrastructure Order to define a substantial change as any excavation or deployment outside the boundaries of a tower site. Accordingly, the amendment to the Collocation NPA to provide that excavations of up to 30 feet of the boundaries of a site is not a substantial increase in size provides support for the Commission's decision in this Report and Order to once again make the section 6409(a) rules consistent with the Collocation NPA. Retaining the existing definition despite the amendment to the Collocation NPA could create confusion and invite uncertainty.

15. In addition, the Commission finds that the revised 30-foot standard is supported by the current trends toward collocations and technological changes that the record evidences while preserving localities' zoning authority. Collocations necessarily include installing transmission equipment that supports the tower antenna on a site. Industry commenters claim that “[t]he majority of existing towers were built many years ago and were intended to support the operations of a single carrier.” Following the 2014 Infrastructure Order's promotion of collocations, more towers now house several operators' antennas and other transmission equipment, and industry commenters assert that, in many cases, any space that was once available at those tower sites has been used. As a result, there is less space at tower sites for additional collocations without minor modifications to sites to accommodate the expansion of equipment serving existing operators at the sites and the addition of new equipment serving new operators at the sites. As NTCA states, “[l]ike other wireless providers, NTCA members often find that colocations on towers require the additional installation of . . . facilities necessary to support transmission equipment. This has become increasingly difficult as towers built to hold one carrier's facilities may be used to support those utilized by multiple wireless providers.” Further, additional space is generally necessary to add the latest technologies enabling 5G services, such as multi-access edge computing, which requires more space than other collocation infrastructure. Given the need for more space on the ground to accommodate a growing number of facility modifications, the Commission finds that streamlined treatment of limited compound expansions is essential to achieve the degree of accelerated advanced wireless network deployment that will best serve the public interest. Indeed, WIA states that the 30-foot standard “appropriately provides a reasonable and realistic degree of flexibility.” Further, in light of these developments and the recognition of a new compound expansion standard in the context of historic preservation review of collocations, the Commission finds it reasonable to adjust the line drawn by the Commission in 2014 for determining whether limited compound expansion is a substantial change that disqualifies a modification from eligibility for streamlined treatment.

16. The Commission also finds that streamlined treatment of limited compound expansions will promote public safety and network resiliency. For example, the Commission notes that Crown Castle states that more than 40 percent of its site expansions in the past 18 months were solely for “adding backup emergency generators to add resiliency to the network.” And WIA states that, “in many cases, the need for a limited expansion of the compound is being driven by public safety demands and the desire to improve network resiliency.” The Commission's rule change will also promote public safety in another context—industry commenters state that the proposed rule changes will ensure expeditious and effective deployment of FirstNet's network, which Congress directed to leverage collocation on existing infrastructure “to the maximum extent economically desirable.” AT&T, for example, states that “many collocations on existing towers being performed to build a public safety broadband network for [FirstNet] entail site expansions to add generators as well as Band 14 equipment.” The Commission therefore agrees with commenters that these changes will promote public safety.

17. The Commission concludes that 30 feet is an appropriate threshold. The objective standard the Commission adopts in this document is consistent with the current collocation marketplace and with the threshold adopted in the Wireless Facilities NPA and recently included in the Amended Collocation NPA. In affirming the 2014 Infrastructure Order, the Fourth Circuit stated that the order “provide[d] objective and numerical standards to establish when an eligible facilities request would `substantially change the physical dimensions' ” of a site. ( Montgomery County, Md. v. FCC, 811 F.3d at 130; see also id. at 131 n.8). Here, the Commission extends those objective and numerical standards in a manner that reflects the recent recognition of 30 feet as an appropriate standard in the federal historic preservation context and the changes in the collocation marketplace, which is lacking space for collocations.

18. The Commission believes that its actions in this document, which reflect the Amended Collocation NPA and collocation marketplace changes since the Commission's determination in 2014, “will provide an appropriate balance between municipal flexibility and the rapid deployment of covered facilities.” Indeed, the record reflects that the deployment of transmission equipment within the expanded 30-foot area will be limited, buttressing the Commission's view that 30 feet is a reasonable limit to expansion that does not constitute a substantial change and therefore should be subject to streamlined review under section 6409 and the Commission's implementing regulations. Crown Castle states that the 30-foot standard “will be sufficient to accommodate the types of minor equipment additions that Crown Castle must often make as part of a collocation or other site modification.” Crown Castle presents several representative examples of proposed minor site expansions, which include “additional equipment, equipment upgrades, new collocations, and back-up generator installations.” These examples demonstrate that compound expansions occur as close to the tower as possible, as “customers typically require their equipment to be in close proximity to the tower, their other equipment, power sources, available fiber, and any back-up power supply.” These examples also demonstrate that construction within a 30-foot perimeter of an existing site would not result in what could be considered substantial changes to the physical footprint of existing sites, especially when considered in conjunction with other limitations in the Commission's rules that it is not altering.

19. Localities generally oppose any revision to the Commission's existing “substantial change” definition that would enable streamlined treatment of modifications involving compound expansion outside of a site, 1 but request that, if such changes nonetheless are made, they should be limited in certain ways. First, the National Association of Telecommunication Officers and Advisors (NATOA) and Local Governments express concern that the rule change with respect to compound expansion could be interpreted to permit the deployment of new towers within the expanded area, and they request that the Commission limit the permissible deployment within the expanded area to transmission equipment. The Commission agrees that the deployments referenced in § 1.6100(b)(7)(iv) are deployments of transmission equipment. Under the Commission's current rules, any eligible facilities request—a request that is eligible for section 6409(a) treatment—must involve the collocation, replacement, or removal of transmission equipment. Accordingly, any deployment outside the site boundary that is eligible for section 6409(a) treatment under § 1.6100(b)(7)(iv), including deployments within 30 feet of the site boundary for a tower outside the public rights-of-way, would be limited to the deployment of transmission equipment, not new towers.

20. Second, NATOA and Local Governments propose that the site boundary from which a compound expansion will be measured should exclude easements related to that site. The Commission agrees. The definition of “site” in the Commission's current rules, for towers other than towers in the public rights-of-way, is “the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.” The Commission finds, though, that providing a 30-foot expansion for excavation or deployment along an easement related to the site is not necessary to meet the goal of facilitating wireless infrastructure deployment, because it is more likely that additional equipment will need to be placed in a limited area outside the leased or owned property rather than outside the easement related to the site. Further, excavation or deployment in an area 30 feet outside an easement, which could be miles in length, could result in a substantial change that would not be entitled to streamlined treatment under section 6409(a).

21. Third, NATOA and Local Governments request that the Commission restrict the size of transmission equipment deployed outside the site. The Commission finds that, given the limited types of transmission equipment deployed for collocations, such a restriction is not necessary to consider excavation or deployment within the 30-foot expansion area to be outside the scope of a substantial change. Additionally, size restrictions based on current equipment may unnecessarily restrict the deployment of future technology, which may include larger transmission equipment than currently deployed or available. Finally, the other substantial change limitations in § 1.6100(b)(7) continue to apply to modifications under section 6409(a).

22. Fourth, NATOA and Local Governments assert that setting a 30-foot limit on excavation or deployment outside site boundaries, without regard to the size of the existing tower site, could permit substantial changes to qualify for streamlined treatment. In particular, NATOA and Local Governments propose that, to the extent the Commission revises its “substantial change” definition, the compound expansion standard should be “the lesser of the following distance[s] from the current site (not including easements related to the site): a. 20% of the length or width of the current site measured as a longitudinal or latitudinal line from the current site to the excavation or deployment; or b. 30 feet.” The Commission declines to adopt this proposal because, on balance, the potential problems it could create outweigh the potential benefits it could achieve. A standard of “20% of the length or width of the current site” would be difficult to administer, given that a site boundary is not necessarily a symmetrical shape. In addition, while the record supports the determination that a 30-foot expansion would be sufficient to accommodate minor equipment additions, the record does not provide support for the determination that the “20%” standard would accomplish this goal. Moreover, adopting the “20%” proposal would provide limited additional benefit in addressing the concern raised by NATOA and Local Governments. Because a small tower site typically is associated with a small tower that has limited space for additional antennas, it is unlikely that operators would need to place a significant amount of additional qualifying transmission equipment in an area outside the site boundaries. In addition, any modification to an existing tower that involves excavation or deployment within the 30-foot expanded area will be subject to the other criteria in the Commission's rules for determining whether there is a substantial change that does not warrant streamlined treatment under section 6409(a). Those criteria, which the Commission does not alter in this document, provide further limitation on the size or scope of a modification that involves excavation or deployment within 30 feet of the site boundaries. For example, those criteria limit the modifications that would qualify for streamlined treatment by the number of additional equipment cabinets and by the increase in height and girth of the tower.

23. The Commission's limited adjustment to the definition of substantial change in the context of excavations or deployments is further supported by land-use laws in several states. In particular, the Commission observes that at least “eight states have passed laws that expressly permit compound expansion within certain limits . . . under an exempt or expedited review process.” Most of these laws allow expansion beyond 30 feet from the approved site. As Crown Castle states, “these state laws are a benefit to both the wireless industry and local officials. They permit the wireless industry to meet the burgeoning network demands while also providing certainty and clarity to all involved.”

24. The Commission finds that the standard it adopted in this document continues to be a reasonable line drawing exercise in defining “substantial change,” and it reflects a more appropriate balancing of the promotion of “rapid wireless facility deployment and preserving states' and localities' ability to manage and protect local land-use interests” than the Commission articulated in 2014. In that regard, the Commission finds that it is in the public interest to modify its prior decision on what constitutes substantial change within the context of excavation or deployment.

25. In addition to amending § 1.6100(b)(7)(iv), the Commission revises § 1.6100(b)(6) of the Commission's rules to define the current boundaries of the “site” of a tower outside of public rights-of-way in a manner relative to the prior approval required by the state or local government. In conjunction with § 1.6100(b)(7), § 1.6100(b)(6) informs when excavation or deployment associated with a modification will “substantially change the physical dimensions” of a facility under section 6409(a). While the word “site” does not itself appear in section 6409, § 1.6100(b)(7)(iv) uses the term in describing when excavation or deployment might be so distant from an existing structure that such modifications would “substantially change the physical dimensions” of the facility. In amending its current definition, the Commission supplies a temporal baseline against which to measure whether a proposed modification would “substantially” change the facility. For the reasons explained more fully below, the Commission thinks that this amendment represents a reasonable construction of the ambiguous statutory language; ascertaining whether a modification “substantially changes” an existing structure requires establishing a baseline against which to measure the proposed change. Here, because the statutory language involves streamlined approval of modifications to existing facilities, it is reasonable, based on the statutory language, to measure the boundaries of a site by reference to when a state or local government last had the opportunity to review or approve the structure that the applicant seeks to modify, if such approval occurred prior to section 6409 or otherwise outside of the section 6409(a) process. After all, the objective of the statute is to streamline approval of additions to structures that were already approved.

26. Because the Commission's actions in this document permit streamlined processing for modifications that entail ground excavation or deployment up to 30 feet outside a current site, it finds it necessary to clarify and provide greater certainty to applicants and localities about the appropriate temporal baseline for evaluating changes to a site. While the Commission did not have reason to elaborate on the meaning of a current site in the 2014 Infrastructure Order, because it defined any excavation or deployment outside a site as a substantial change, the Commission did establish other temporal reference points for evaluating other substantial change criteria, including height increases and concealment elements. The Commission therefore bases its revision to the definition of “site” on the terminology and reasoning articulated by the Commission in those related contexts, which have been upheld as a permissible construction of an ambiguous statutory provision.

27. Specifically, in the 2014 Infrastructure Order, the Commission found that, in the context of height increases, “whether a modification constitutes a substantial change must be determined by measuring the change in height from the dimensions of the `tower or base station' as originally approved or as of the most recent modification that received local zoning or similar regulatory approval prior to the passage of the Spectrum Act, whichever is greater.” In adopting that standard, the Commission noted that “since the Spectrum Act became law, approval of covered requests has been mandatory and therefore, approved changes after that time may not establish an appropriate baseline because they may not reflect a siting authority's judgment that the modified structure is consistent with local land use values.” Similarly, in the Commission's recent Declaratory Ruling (85 FR 45126, July 27, 2020), it clarified that “existing” concealment elements “must have been part of the facility that was considered by the locality at the original approval of the tower or at the modification to the original tower, if the approval of the modification occurred prior to the Spectrum Act or lawfully outside of the section 6409(a) process (for instance, an approval for a modification that did not qualify for streamlined section 6409(a) treatment).”

28. The Commission finds that it is in the public interest to use similar text and reasoning in adopting the revised definition of “site” in this Report and Order. Here, the Commission similarly defines what would constitute a substantial change to infrastructure that was previously approved by localities under applicable local law—in this case, in the context of excavation or deployment relative to the boundaries of a site. The Commission revises the definition of “site” to provide that the current boundaries of a site are the boundaries that existed as of the date that the original support structure or a modification to that structure was last reviewed and approved by a state or local government, if the approval of the modification occurred prior to the Spectrum Act or otherwise outside of the section 6409(a) process. Localities assert that the definition of “site” should ensure that the “facility was last reviewed and approved by a locality with full discretion” and not as an eligible facilities request. The Commission agrees with commenters that a site's boundaries should not be measured—for purposes of setting the 30-foot distance in a request for modification under section 6409(a)—from the expanded boundary points that were established by any approvals granted or deemed granted pursuant to an “eligible facilities request” under section 6409(a). The Commission does not agree, however, with localities' framing of the definition of “site” in terms of the broad concept of discretion. First, a standard that relies on whether the locality has “full discretion” to make a decision would create uncertainty in determining whether a particular approval meets that standard. Second, non-discretionary approvals could include instances where a locality's review is limited by state law rather than by section 6409(a), and the Commission does not find it appropriate for it to engage in line drawing under section 6409(a) based on potential interaction between state and local law.

29. The Commission declines to adopt the industry's “hybrid” definition of “site.” Specifically, Crown Castle claims that the industry has interpreted and relied on the definition of “site” to mean the boundaries of the leased or owned property as of the date an applicant files an application with the locality. The industry therefore proposes a hybrid approach, which urges us to define site as of “the later of (a) [the date that the Commission issues a new rule under the [ NPRM ]]; or (b) the date of the last review and approval related to said tower by a state or local government issued outside of the framework of 47 U.S.C. 1455(a) and these regulations promulgated thereunder.” Adopting that proposal would risk permitting a tower owner to file an eligible facilities request even if it may have substantially increased the size of a tower site prior to the adoption of this Report and Order and without any necessary approval from a locality. Indeed, several localities caution against the industry's proposal. They raise concerns that adopting the industry's proposed definition would create “unending accretion of [a] site by repeated applications for expansion.” The Commission shares those concerns, and finds that its revision addresses them by ensuring that a locality has reviewed and approved the eligible support structure that is the subject of the eligible facilities request outside of the section 6409(a) process, while recognizing that the boundaries may have changed since the locality initially approved the eligible support structure. Further, the Commission maintains the 2014 Infrastructure Order's approach that a locality “is not obligated to grant a collocation application under [s]ection 6409(a)” if “a tower or base station was constructed or deployed without proper review, was not required to undergo siting review, or does not support transmission equipment that received another form of affirmative State or local regulatory approval[.]”

30. Crown Castle also proposes that, to the extent that the Commission revises the definition of “site” as proposed in the NPRM, it should revise the language to provide that the site boundaries are determined as of the date a locality “last reviewed and issued a permit,” rather than as of the date the locality last reviewed and approved the site. Crown Castle claims that, contrary to an approval, a “permit . . . applies to a wide variety of processes, and represents a tangible and unambiguous event[.]” The Commission declines to adopt Crown Castle's proposal, as the mere issuance of a permit ( e.g., an electrical permit) does not necessarily involve a locality's review of the eligible support structure, and thus would not necessarily provide an opportunity for the locality to take into account an increase in the size of the site associated with that structure. 2

31. Accordingly, the Commission revises § 1.6100(b)(6) to read as set out in the regulatory text below.

32. The Commission emphasizes that its revisions to the compound expansion provision in § 1.6100(b)(7)(iv) and to the definition of “site” in § 1.6100(b)(6) do not apply to towers in the public rights-of-way. The 2014 Infrastructure Order provided for streamlined review in more narrowly targeted circumstances with respect to towers in the public rights-of-way, and the Commission leaves those distinctions unchanged. The Commission has recognized that activities in public rights-of-way “are more likely to raise aesthetic, safety, and other issues,” and that “towers in the public rights-of-way should be subject to the more restrictive . . . criteria applicable to non-tower structures rather than the criteria applicable to other towers.” The record reflects agreement by both industry and locality commenters that the Commission's rule change to provide for compound expansion should not apply to towers in the public rights-of-way. The Commission's revised compound expansion rule also does not apply to non-tower structures ( e.g., base stations), which “use very different support structures and equipment configurations” than towers.

33. The Commission also emphasizes that its actions here are not intended to affect any setback requirements that may apply to a site, and that it preserves localities' authority to impose requirements on local-government property. Further, the expansion of up to 30 feet in any direction is subject to any land-use requirements or permissions that a local authority may have imposed or granted within the allowed expansion ( e.g., storm drain easement) at the time of the last review by a locality. The Commission also clarifies that the revised definition of “site” does not restrict a locality from issuing building permits ( e.g., electrical) or approving easements within the expanded boundaries ( e.g., a sewer or storm drain easement; a road; or a bike path). The Commission further clarifies, however, that changes in zoning regulations since the last local government review would not disqualify from section 6409(a) treatment those compound expansions that otherwise would be permitted under its revisions.

34. While localities raise health and safety concerns with modifying the scope of substantial change, the Commission observes that the modifications it makes in this document do not affect localities' ability to address those concerns. The Commission previously has clarified that neither the statute nor its rules preempt localities' health and safety requirements or their procedures for reviewing and enforcing compliance with such requirements, and the Commission reaffirms this conclusion in this document. The Commission emphasizes that section 6409(a) “does not preclude States and localities from continuing to require compliance with generally applicable health and safety requirements on the placement and operation of backup power sources, including noise control ordinances if any.” The Commission finds that its revision strikes the appropriate balance between promoting rapid wireless facility deployment while preserving localities' local-use authority.

35. Finally, the Commission disagrees with the contentions of some localities that it lacks the legal authority to adopt some or all of the rule changes that it promulgates in this document, or that the Administrative Procedure Act otherwise precludes such action. Localities allege several infirmities. First, Virginia Localities argue that Congress limited the Commission's authority to changes to the dimensions of towers and base stations only, and not to the underlying site. The Commission disagrees with that artificial distinction. A tower cannot exist without a site. And “[t]here is no question that [certain] terms of the Spectrum Act . . . are ambiguous,” including what constitutes substantial change to a site. ( Montgomery County, Md. v. FCC, 811 F.3d at 129; id. at 130). The Fourth Circuit determined that the Commission can “establish[] objective criteria for determining when a proposed modification `substantially changes the physical dimensions' ” of an eligible support structure. ( Id. at 129 n.5). The Report and Order' s revisions to the terms “site” and “substantial change” ensure that wireless deployments will continue while preserving localities' site review and approval process.

36. Second, some localities argue that the Commission failed to provide the specific rule language in the NPRM and that the NPRM contains several ambiguities. Virginia Localities claim that it would be “very difficult to assess the potential practical effects of the proposed amendment to the EFR Rule without language to evaluate.” Local Governments claim that, among other issues, the NPRM is ambiguous on the operative date of the approval, the operative boundaries of the proposed expansion, and whether the definition of “site” will provide for other eligible support structures. Western Communities Coalition claims that the NPRM “appears to suggest that various rule changes might be limited to `macro tower compounds.' ”

37. These arguments lack merit. The APA requires that an agency's notice of proposed rulemaking must include “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” The D.C. Circuit has held that a notice of proposed rulemaking meets the requirements of administrative law if it “provide[s] sufficient factual detail and rationale for the rule to permit interested parties to comment meaningfully.” ( Honeywell International, Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004) (internal quotation marks omitted)). The NPRM in this proceeding did just that. Not only did the Commission include the substance of the proposed rule and describe the subjects and issues involved, it also clearly proposed specific language for the definition of “site” and the revision to “substantial change,” and it offered specific alternatives and sought comment on other possible options. The actions the Commission takes in this document reflect commenters' responses to the NPRM. For example, in response to the Commission's proposed definition of “site,” it establishes site boundaries as those that existed as of the date that the original support structure or a modification to that structure was last reviewed and approved by a state or local government, if the approval of the modification occurred prior to the Spectrum Act or otherwise outside of the section 6409(a) process. Furthermore, various changes the Commission is making to the proposed language are reasonably foreseeable modifications designed to prevent any confusion that the proposed language might have caused based on concerns that commenters raised. For example, in defining “site,” the Commission substitutes the term “eligible support structure,” a defined term, for the proposed use of the word “facility,” which is not defined in § 1.6100 of its rules. Further, the NPRM also proposed specific alternatives. All localities that allege ambiguities raised meaningful comments and opined on the specific rule changes that the Commission adopts in this document.

38. Third, Local Governments claim that any collocation policy modification should be achieved through 47 U.S.C. 332. The Commission disagrees. Congress has directed the Commission to “encourage the rapid deployment of telecommunications services,” including with section 6409(a), in which Congress specifically addressed modifications of an existing tower or base station “[n]otwithstanding” Section 332. And the Commission has relied on section 6409(a) to require a streamlined review process for modifications of existing towers or base stations. Similar to the Commission's actions in the 2014 Infrastructure Order, the rules it promulgates in this document “will serve the public interest by providing guidance to all stakeholders on their rights and responsibilities under the provision, reducing delays in the review process for wireless infrastructure modifications, and facilitating the rapid deployment of wireless infrastructure, thereby promoting advanced wireless broadband services.”

39. Finally, Western Communities Coalition argues that the comment cycle is unusually short. The Administrative Procedure Act and the Commission's rules require only that commenters be afforded reasonable notice of the proposed rulemaking. Western Communities Coalition provides no basis for its view that more than the 30-day time period following Federal Register publication (20 days for comments and 10 days for reply comments), was inadequate here, given that the NPRM raised a narrow set of issues that had been subject to prior public input in response to WIA's petition for declaratory ruling and petition for rulemaking. And no commenter argues that it was prejudiced by the comment cycle's length. Indeed, several commenters, including the Western Communities Coalition, have been considering these issues on the record since at least October 2019. Claims that the NPRM is vague or that commenters have had insufficient time to comment are therefore contradicted by the record.

40. Accordingly, the Commission revises the compound expansion provision in § 1.6100(b)(7)(iv) and the definition of “site” in § 1.6100(b)(6). The Commission finds that the revisions it adopts in this document will streamline the use of existing infrastructure for the deployment of 5G and other advanced wireless networks while preserving localities' ability to review and approve an eligible support structure.

41. Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 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. Pursuant to the RFA, a Final Regulatory Flexibility Analysis is set forth in the Report and Order.

42. Paperwork Reduction Act. This Report and Order does not contain information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

43. 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).

44. In the Report and Order, the Commission continues its efforts to reduce regulatory barriers to infrastructure deployment by further streamlining the state and local government review process for modifications to existing wireless towers or base stations under section 6409(a) of the Spectrum Act of 2012. The Commission's decision will encourage the use of existing infrastructure, where efficient, to accelerate deployment of 5G and other advanced networks, which will enable economic opportunities across the nation. More specifically, the Report and Order revises the Commission's rules to provide that the modification of an existing tower outside the public rights-of-way that entails ground excavation or deployment of transmission equipment up to 30 feet in any direction outside the site will be eligible for streamlined processing under section 6409(a) review. The Report and Order clarifies that the site boundary from which the 30 feet is measured excludes any access or utility easements currently related to the site. It also revises the Commission's rules to clarify that a site's current boundaries are the boundaries that existed as of the date that the original support structure or a modification to that structure was last reviewed and approved by a state or local government, if the approval of the modification occurred prior to the Spectrum Act or otherwise outside of the section 6409(a) process.

45. Our rule revisions reflect the recent recognition of 30 feet as an appropriate standard in the federal historic preservation context and the changes in the collocation marketplace, which is lacking space for collocations. This standard is consistent with the current collocation marketplace and with the threshold adopted in the Wireless Facilities NPA and recently included in the Amended Collocation NPA. Further, at least “eight states have passed laws that expressly permit compound expansion within certain limits . . . under an exempt or expedited review process.” Most of these laws allow expansion beyond 30 feet from the approved site.

46. There were no comments filed that specifically addressed the proposed rules and policies presented in the IRFA.

47. 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.

48. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

49. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the rules and 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.

50. 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 Small Business Administration's (SBA) 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.

51. 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.

52. 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.”

53. Wireless Telecommunications Carriers (except Satellite). This industry comprises 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 employed fewer than 1,000 employees and 12 firms employed of 1000 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.

54. The Commission's own data—available in its Universal Licensing System—indicate that, as of August 31, 2018 there are 265 Cellular licensees that will 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 (PCS), and Specialized Mobile Radio (SMR) 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.

55. 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.

56. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. They also include the Upper Microwave Flexible Use Service, Millimeter Wave Service, Local Multipoint Distribution Service (LMDS), the Digital Electronic Message Service (DEMS), and the 24 GHz Service, where licensees can choose between common carrier and non-common carrier status. There are approximately 66,680 common carrier fixed licensees, 69,360 private and public safety operational-fixed licensees, 20,150 broadcast auxiliary radio licensees, 411 LMDS licenses, 33 24 GHz DEMS licenses, 777 39 GHz licenses, and five 24 GHz licenses, and 467 Millimeter Wave licenses in the microwave services. The Commission has not yet defined a small business with respect to microwave services. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) and the appropriate size standard for this category 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 1000 employees or more. Thus under this SBA category and the associated size standard, the Commission estimates that a majority of fixed microwave service licensees can be considered small.

57. The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are up to 36,708 common carrier fixed licensees and up to 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies discussed herein. We note, however, that the microwave fixed licensee category includes some large entities.

58. FM Translator Stations and Low Power FM Stations. FM translators and Low Power FM Stations are classified in the category of Radio Stations and are assigned the same NAICs Code as licensees of radio stations. This U.S. industry, Radio Stations, comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has established a small business size standard which consists of all radio stations whose annual receipts are $41.5 million dollars or less. U.S. Census Bureau data for 2012 indicate that 2,849 radio station firms operated during that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million or more. Therefore, based on the SBA's size standard we conclude that the majority of FM Translator Stations and Low Power FM Stations are small.

59. Location and Monitoring Service (LMS). LMS systems use non-voice radio techniques to determine the location and status of mobile radio units. For purposes of auctioning LMS licenses, the Commission has defined a “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not to exceed $15 million. A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not to exceed $3 million. These definitions have been approved by the SBA. An auction for LMS licenses commenced on February 23, 1999 and closed on March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to four small businesses.

60. Multichannel Video Distribution and Data Service (MVDDS). MVDDS is a terrestrial fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. These definitions were approved by the SBA. On January 27, 2004, the Commission completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders won a total of 192 MVDDS licenses. Eight of the ten winning bidders claimed small business status and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed small business status.

61. Multiple Address Systems. Entities using Multiple Address Systems (MAS) spectrum, in general, fall into two categories: (1) Those using the spectrum for profit-based uses, and (2) those using the spectrum for private internal uses. With respect to the first category, Profit-based Spectrum use, the size standards established by the Commission define “small entity” for MAS licensees as an entity that has average annual gross revenues of less than $15 million over the three previous calendar years. A “Very small business” is defined as an entity that, together with its affiliates, has average annual gross revenues of not more than $3 million over the preceding three calendar years. The SBA has approved these definitions. The majority of MAS operators are licensed in bands where the Commission has implemented a geographic area licensing approach that requires the use of competitive bidding procedures to resolve mutually exclusive applications.

62. The Commission's licensing database indicates that, as of April 16, 2010, there were a total of 11,653 site-based MAS station authorizations. Of these, 58 authorizations were associated with common carrier service. In addition, the Commission's licensing database indicates that, as of April 16, 2010, there were a total of 3,330 Economic Area market area MAS authorizations. The Commission's licensing database also indicates that, as of April 16, 2010, of the 11,653 total MAS station authorizations, 10,773 authorizations were for private radio service. In 2001, an auction for 5,104 MAS licenses in 176 EAs was conducted. Seven winning bidders claimed status as small or very small businesses and won 611 licenses. In 2005, the Commission completed an auction (Auction 59) of 4,226 MAS licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed small business status and won 1,891 licenses.

63. With respect to the second category, Internal Private Spectrum use consists of entities that use, or seek to use, MAS spectrum to accommodate their own internal communications needs, MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the definition developed by the SBA would be more appropriate than the Commission's definition. The closest applicable definition of a small entity is the “Wireless Telecommunications Carriers (except Satellite)” definition under the SBA size standards. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this category, 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 1000 employees or more. Thus under this category and the associated small business size standard, the Commission estimates that the majority of firms that may be affected by our action can be considered small.

64. Non-Licensee Owners of Towers and Other Infrastructure. Although at one time most communications towers were owned by the licensee using the tower to provide communications service, many towers are now owned by third-party businesses that do not provide communications services themselves but lease space on their towers to other companies that provide communications services. The Commission's rules require that any entity, including a non-licensee, proposing to construct a tower over 200 feet in height or within the glide slope of an airport must register the tower with the Commission's Antenna Structure Registration (“ASR”) system and comply with applicable rules regarding review for impact on the environment and historic properties.

65. As of March 1, 2017, the ASR database includes approximately 122,157 registration records reflecting a “Constructed” status and 13,987 registration records reflecting a “Granted, Not Constructed” status. These figures include both towers registered to licensees and towers registered to non-licensee tower owners. The Commission does not keep information from which we can easily determine how many of these towers are registered to non-licensees or how many non-licensees have registered towers. Regarding towers that do not require ASR registration, we do not collect information as to the number of such towers in use and therefore cannot estimate the number of tower owners that would be subject to the rules on which we seek comment. Moreover, the SBA has not developed a size standard for small businesses in the category “Tower Owners.” Therefore, we are unable to determine the number of non-licensee tower owners that are small entities. We believe, however, that when all entities owning 10 or fewer towers and leasing space for collocation are included, non-licensee tower owners number in the thousands. In addition, there may be other non-licensee owners of other wireless infrastructure, including Distributed Antenna Systems (DAS) and small cells that might be affected by the measures on which we seek comment. We do not have any basis for estimating the number of such non-licensee owners that are small entities.

66. The closest applicable SBA category is All Other Telecommunications, and the appropriate size standard consists of all such firms with gross annual receipts of $38 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 these firms, a total of 1,400 had gross annual receipts of less than $25 million and 15 firms had annual receipts of $25 million to $49, 999,999. Thus, under this SBA size standard a majority of the firms potentially affected by our action can be considered small.

67. Personal Radio Services. Personal radio services provide short-range, low-power radio for personal communications, radio signaling, and business communications not provided for in other services. Personal radio services include services operating in spectrum licensed under Part 95 of our rules. These services include Citizen Band Radio Service, General Mobile Radio Service, Radio Control Radio Service, Family Radio Service, Wireless Medical Telemetry Service, Medical Implant Communications Service, Low Power Radio Service, and Multi-Use Radio Service. There are a variety of methods used to license the spectrum in these rule parts, from licensing by rule, to conditioning operation on successful completion of a required test, to site-based licensing, to geographic area licensing. All such entities in this category are wireless, therefore we apply the definition of Wireless Telecommunications Carriers (except Satellite), pursuant to which the SBA's small entity size standard is defined as those entities employing 1,500 or fewer persons. 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 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of firms can be considered small. We note however, that many of the licensees in this category are individuals and not small entities. In addition, due to the mostly unlicensed and shared nature of the spectrum utilized in many of these services, the Commission lacks direct information upon which to base an estimation of the number of small entities that may be affected by our actions in this proceeding.

68. Private Land Mobile Radio Licensees. Private land mobile radio (PLMR) systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. Companies of all sizes operating in all U.S. business categories use these radios. Because of the vast array of PLMR users, the Commission has not developed a small business size standard specifically applicable to PLMR users. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engag ed in radiotelephone communications. The appropriate size standard for this category 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 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of PLMR Licensees are small entities.

69. According to the Commission's records, a total of approximately 400,622 licenses comprise PLMR users. There are a total of approximately 3,577 PLMR licenses in the 4.9 GHz band; 19,359 PLMR licenses in the 800 MHz band; and 3,374 licenses in the frequencies range 173.225 MHz to 173.375 MHz. The Commission does not require PLMR licensees to disclose information about number of employees, and does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. The Commission however believes that a substantial number of PLMR licensees may be small entities despite the lack of specific information.

70. Public Safety Radio Licensees. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Because of the vast array of public safety licensees, the Commission has not developed a small business size standard specifically applicable to public safety licensees. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications. The appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census 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 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of firms can be considered small. With respect to local governments, in particular, since many governmental entities comprise the licensees for these services, we include under public safety services the number of government entities affected. According to Commission records, there are a total of approximately 133,870 licenses within these services. There are 3,577 licenses in the 4.9 GHz band, based on an FCC Universal Licensing System search of September 18, 2020. We estimate that fewer than 2,442 public safety radio licensees hold these licenses because certain entities may have multiple licenses.

71. Radio Stations. This Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.” The SBA has established a small business size standard for this category as firms having $41.5 million or less in annual receipts. U.S. Census Bureau data for 2012 show that 2,849 radio station firms operated during that year. Of that number, 2,806 firms operated with annual receipts of less than $25 million per year and 17 with annual receipts between $25 million and $49,999,999 million. Therefore, based on the SBA's size standard the majority of such entities are small entities.

72. According to Commission staff review of the BIA/Kelsey, LLC's Media Access Pro Radio Database as of January 2018, about 11,261 (or about 99.9 percent) of 11,383 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed commercial AM radio stations to be 4,580 stations and the number of commercial FM radio stations to be 6,726, for a total number of 11,306. We note the Commission has also estimated the number of licensed noncommercial (NCE) FM radio stations to be 4,172. Nevertheless, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

73. We also note, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. The Commission's estimate therefore likely overstates the number of small entities that might be affected by its action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, to be determined a “small business,” an entity may not be dominant in its field of operation. We further note, that it is difficult at times to assess these criteria in the context of media entities, and the estimate of small businesses to which these rules may apply does not exclude any radio station from the definition of a small business on these basis, thus our estimate of small businesses may therefore be over-inclusive. Also, as noted above, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.

74. Satellite Telecommunications. This category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The category has a small business size standard of $35 million or less in average annual receipts, under SBA rules. For this category, U.S. Census Bureau data for 2012 show that there were a total of 333 firms that operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, we estimate that the majority of satellite telecommunications providers are small entities.

75. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound.” These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: Those having $41.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of that number, 656 had annual receipts of $25,000,000 or less, and 25 had annual receipts between $25,000,000 and $49,999,999. Based on this data we therefore estimate that the majority of commercial television broadcasters are small entities under the applicable SBA size standard.

76. The Commission has estimated the number of licensed commercial television stations to be 1,377. Of this total, 1,258 stations (or about 91 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA/Kelsey Inc. Media Access Pro Television Database (BIA) on November 16, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed noncommercial educational television stations to be 384. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. There are also 2,300 low power television stations, including Class A stations (LPTV) and 3,681 TV translator stations. Given the nature of these services, we will presume that all of these entities qualify as small entities under the above SBA small business size standard.

77. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive. Also, as noted above, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and its estimates of small businesses to which they apply may be over-inclusive to this extent.

78. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)).

79. BRS —In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 86 incumbent BRS licensees that are considered small entities (18 incumbent BRS licensees do not meet the small business size standard). After adding the number of small business auction licensees to the number of incumbent licensees not already counted, there are currently approximately 133 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules.

80. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

81. EBS —Educational Broadband Service has been included within the broad economic census category and SBA size standard for Wired Telecommunications Carriers since 2007. Wired Telecommunications Carriers are comprised of 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 telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA's small business size standard for this category is all such firms 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. In addition to U.S. Census Bureau data, the Commission's Universal Licensing System indicates that as of October 2014, there are 2,206 active EBS licenses. The Commission estimates that of these 2,206 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.

82. The excavation or deployment boundaries of an eligible facilities request pose significant policy implications associated with the Commission's rules implementing section 6409(a) of the Spectrum Act of 2012. The Commission believes that the rule changes in the Report and Order provide certainty for providers, state and local governments (collectively, localities), and other entities interpreting these rules. We do not believe that our resolution of these matters will create any new reporting, recordkeeping, or other compliance requirements for small entities that will be impacted by our decision.

83. More specifically, the amendment of § 1.6100(b)(7)(iv) to allow a modification of an existing site that entails ground excavation or deployment of up to 30 feet in any direction outside a tower's site does not create any new reporting, recordkeeping, or other compliance requirements for small entities. Rather, it permits an entity submitting an eligible facilities request to undertake limited excavation and deployment of up to 30 feet in any direction. While the Commission cannot quantify the cost of compliance with the changes adopted in the Report and Order, small entities should not have to hire attorneys, engineers, consultants, or other professionals to in order to comply. Similarly, the revised definition of “site” adopted in the Report and Order addresses localities' concerns of “unending accretion of [a] site by repeated applications for expansion” by ensuring that a locality has reviewed and approved the site that is the subject of the eligible facilities request, and recognizes that the site may have changed since the locality initially approved it. This action does not create any new reporting, recordkeeping, or other compliance requirements for small entities. Instead, it prevents entities from having to file, and localities from having to receive and review, repeated applications for site excavation or deployments. Further, our actions providing clarity on the definitions of site and substantial change pursuant to the Commission's rules implementing section 6409(a) requirements should benefit all entities involved in the wireless facility modification process.

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

85. In the Report and Order, the Commission clarifies and amends its rules associated with wireless infrastructure deployment to provide more certainty to relevant parties and enable small entities and others to more effectively navigate state and local application processes for eligible facilities requests. These changes, which broaden the scope wireless facility modifications that are eligible for streamlined review by localities under the Commission's rules implementing section 6409(a), should reduce the economic impact on small entities that deploy wireless infrastructure by reducing the costs and delay associated with the deployment of such infrastructure. The Commission's efforts to reduce regulatory barriers to infrastructure deployment by further streamlining the review process by localities for modifications to existing wireless towers or base stations under section 6409(a) should also reduce the economic impact on small localities by reducing the administrative costs associated with the review process.

86. The Commission considered but declined to adopt the industry's “hybrid” definition of “site.” Adopting that proposal would risk permitting a tower owner to file an eligible facilities request even if it may have substantially increased the size of a tower site prior to the adoption of this Report and Order and without any necessary approval from a locality. It agreed with localities' concerns on the industry's proposed definition, and found that our revision addresses them by ensuring that a locality has reviewed and approved the eligible support structure that is the subject of the eligible facilities request outside of the section 6409(a) process, while recognizing that the boundaries may have changed since the locality initially approved the eligible support structure. It also considered and rejected a proposal that would risk creating a loophole whereby a tower owner could use the issuance of a permit—which does not necessarily involve a locality's review of the eligible support structure, and thus would not necessarily provide an opportunity for the locality to take into account an increase in the size of the site associated with that structure—to justify expansion of the site without proper local approval. On balance, the Commission believes the revisions adopted in the Report and Order best achieve the Commission's goals while at the same time minimize or further reduce the economic impact on small entities, including small state and local government jurisdictions.

87. The Commission also considered, but declined to adopt, NATOA and Local Governments proposal that, to the extent the Commission revises it “substantial change” definition, the compound expansion standard should be “the lesser of the following distance[s] from the current site (not including easements related to the site): a. 20% of the length or width of the current site measured as a longitudinal or latitudinal line from the current site to the excavation or deployment; or b. 30 feet.” The Commission declined to adopt this proposal because it concluded that, on balance, the potential problems it could create outweigh the potential benefits it could achieve. The Commission reasoned that the standard of “20% of the length or width of the current site” would be difficult to administer, given that a site boundary is not necessarily a symmetrical shape. In addition, while the record supports the determination that a 30-foot expansion would be sufficient to accommodate minor equipment additions, the record does not provide support for the determination that the “20%” standard would accomplish this goal. Moreover, adopting the “20%” proposal would provide limited additional benefit in addressing the concern raised by NATOA and Local Governments. Because a small tower site typically is associated with a small tower that has limited space for additional antennas, it is unlikely that operators would need to place a significant amount of additional equipment in an area outside the site boundaries. In addition, any modification to an existing tower that involves excavation or deployment within the 30-foot expanded area will be subject to the other criteria in the Commission's rules for determining whether there is a substantial change that does not warrant streamlined treatment under section 6409(a). Those criteria, which the Commission does not alter in this document, provide further limitation on the size or scope of a modification that involves excavation or deployment within 30 feet of the site boundaries.

88. Accordingly, it is ordered, pursuant to sections 1, 4(i)-(j), 7, 201, 253, 301, 303, 309, 319, and 332 of the Communications Act of 1934, as amended, and section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, as amended, 47 U.S.C. 151, 154(i)-(j), 157, 201, 253, 301, 303, 309, 319, 332, 1455, that this Report and Order is hereby adopted .

89. It is further ordered that this Report and Order shall be effective 30 days after publication in the Federal Register .

90. It is further ordered that the Commission's Consumer & 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.

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

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

This document announces that OMB approved the three information collection requirements in §§ 9.8(a); 9.10(q)(10)(v); 9.11(b)(2)(ii); 9.11(b)(2)(iv); 9.11(b)(4); 9.11(b)(5)(ii); (iii); and 9.16(b)(3)(i), (ii), and (iii).

The Commission publishes this document as an announcement of the compliance date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street, NE, Washington, DC 20554, regarding OMB Control Numbers 3060-1204, 3060-1085, or 3060-1280). Please include the relevant OMB Control Number in your correspondence. The Commission will also accept your comments via the internet if you send them to PRA@fcc.gov.

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

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on (1) September 17, 2020, for the text-to-911 information collection requirements contained in the Commission's rules at 47 CFR 9.10(q)(10)(v); (2) November 4, 2020, for the interconnected VoIP information collection requirements contained in the Commission's rules at 47 CFR 9.11(b)(2)(ii) and (iv), (b)(4), and (b)(5)(ii) and (iii); and (3) on November 10, 2020, for the fixed telephony and multi-line telephone system collection requirements contained in the Commission's rules at 47 CFR 9.8(a); and 9.16(b)(3)(i), (ii), and (iii).

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

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

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

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

OMB Control Number: 3060-1204.

OMB Approval Date: September 17, 2020.

OMB Expiration Date: September 30, 2023.

Title : Deployment of Text-to-911.

Form Number: N/A.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities; State, Local or Tribal Government.

Number of Respondents and Responses: 3,882 respondents; 52,963 responses.

Estimated Time per Response: 1-8 hours.

Frequency of Response: One-time; annual reporting requirements, and third-party disclosure requirements.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for these collections is contained in 47 U.S.C. 151, 152, 154(i), 154(j), 154(o), 251(e), 303(b), 303(g), 303(r), 316, and 403.

Total Annual Burden: 76,766 hours.

Total Annual Cost: No Cost.

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Privacy Act Impact Assessment: No impact(s).

Needs and Uses: This notice pertains to multiple information collections relating to the Commission's text-to-911 regulations. As described below, OMB previously approved the information collections associated with deployment of text-to-911. This notice announces that OMB has approved modifications of the text-to-911 information collections pursuant to the Kari's Law and RAY BAUM'S Act Report and Order. In addition, OMB has approved modification of the PSAP Text-to-911 Registration Form so that PSAPs can use the form to request RTT service pursuant to the RTT Report and Order.

Deployment of Text-to-911. In 2014, the Commission adopted Facilitating the Deployment of Text-to-911 and Other Next-Generation 911 Applications, Framework for Next Generation 911 Deployment, Second Report and Order and Third Further Notice of Proposed Rulemaking, FCC 14-118, released on August 13, 2014, in PS Docket Nos. 11-153 and 10-255 ( Text-to-911 Report and Order ). The Text-to-911 Report and Order was published at 79 FR 55367 (September 16, 2014). In that Order, the Commission adopted final rules—containing information collection requirements—to enable the Commission to implement text-to-911 service. The text-to-911 rules provide enhanced access to emergency services for people with disabilities and fulfill a crucial role as an alternative means of emergency communication for the general public in situations where sending a text message to 911 as opposed to placing a voice call could be vital to the caller's safety. The Text-to-911 Report and Order adopted rules to commence the implementation of text-to-911 service with an initial deadline of December 31, 2014 for all covered text providers to be capable of supporting text-to-911 service. The Text-to-911 Report and Order also provided that covered text providers would then have a six-month implementation period. They must begin routing all 911 text messages to a PSAP by June 30, 2015 or within six months of a valid PSAP request for text-to-911 service, whichever is later.

To implement these requirements, the Commission seeks to collect information primarily for a database in which PSAPs voluntarily register that they are technically ready to receive text messages to 911. As PSAPs become text-ready, they may either register in the PSAP database or provide other written notification reasonably acceptable to a covered text messaging provider. Either measure taken by the PSAP constitutes sufficient notification pursuant to the rules in the Text-to-911 Report and Order. PSAPs and covered text providers may also agree to an alternative implementation timeframe (other than six months). Covered text providers must notify the FCC of the dates and terms of any such alternate timeframe within 30 days of the parties' agreement. Additionally, the rules adopted by the Text-to-911 Report and Order include other information collections for third party notifications necessary for the implementation of text-to-911, including notifications to consumers, covered text providers, and the Commission. These notifications are essential to ensure that all affected parties are aware of the limitations, capabilities, and status of text-to-911 services. These information collections enable the Commission to meet the objectives for implementation of text-to-911 service and for compliance by covered text providers with the six-month implementation period in furtherance of the Commission's core mission to ensure the public's safety.

Real-Time Text. In the RTT Report and Order, the Commission amended its rules to facilitate a transition from text telephone (TTY) technology to RTT as a reliable and interoperable universal text solution over wireless internet Protocol (IP) enabled networks for people who are deaf, hard of hearing, deaf-blind, or have a speech disability. Section 9.10(c) of the rules requires Commercial Mobile Radio Service (CMRS) providers to be “capable of transmitting 911 calls from individuals with speech or hearing disabilities through means other than mobile radio handsets, e.g., through the use of [TTY devices].” Section 9.10(c) also states that “CMRS providers that provide voice communications over IP facilities are not required to support 911 access via TTYs if they provide 911 access via [RTT] communications, in accordance with 47 CFR part 67, except that RTT support is not required to the extent that it is not achievable for a particular manufacturer to support RTT on the provider's network.” The RTT Report and Order provides that once a PSAP is so capable, the requested service provider must begin delivering RTT communications in an RTT format within six months after a valid request is made, to the extent the provider has selected RTT as its accessible text communication method.

Dispatchable Location. Section 506 of RAY BAUM'S Act requires the Commission to “consider adopting rules to ensure that the dispatchable location is conveyed with a 9-1-1 call, regardless of the technological platform used.” Section 506, Pub. L. 115-127, 132 Stat. 326. In the Kari's Law and RAY BAUM'S Act Report and Order, the Commission implemented Section 506 of RAY BAUM'S Act by adopting dispatchable location rules for mobile text and other 911-capable services. For mobile text services, the Commission adopted 47 CFR 9.10(q)(10)(v), which provides that no later than January 6, 2022, covered text providers must provide the following location information with all 911 text messages routed to a PSAP:

Automated dispatchable location, if technically feasible; otherwise either end-user manual provision of location information, or enhanced location information, which may be coordinate-based, consisting of the best available location that can be obtained from any available technology or combination of technologies at reasonable cost.

OMB Control Number: 3060-1085.

OMB Approval Date: November 4, 2020.

OMB Expiration Date: November 30, 2023.

Title: Section 9.11, Interconnected Voice Over internet Protocol (VoIP) E911 Compliance; Section 9.12, Implementation of the NET 911 Improvement Act of 2008: Location Information from Owners and Controllers of 911 and E911 Capabilities.

Form Number: N/A.

Type of Review: Revision of a currently approved collection.

Respondents: Individuals or Households; Business or other for-profit entities; Not-for-profit institutions; State, Local or Tribal government.

Number of Respondents and Responses: 72 respondents; 16,200,496 responses.

Estimated Time per Response: 0.09 hours (five minutes).

Frequency of Response: One-time, on occasion, third party disclosure requirement, and recordkeeping requirement.

Obligation to Respond: Statutory authority for this information collection is contained in 47 U.S.C. 151, 151-154, 152(a), 155(c), 157, 160, 201, 202, 208, 210, 214, 218, 219, 222, 225, 251(e), 255, 301, 302, 303, 307, 308, 309, 310, 316, 319, 332, 403, 405, 605, 610, 615, 615 note, 615a, 615b, 615c, 615a-1, 616, 620, 621, 623, 623 note, 721, and 1471.

Total Annual Burden: 1,481,249 hours.

Total Annual Cost: $238,890,000.

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Privacy Impact Assessment : No impact(s).

Needs and Uses: This notice pertains to multiple information collections relating to the Commission's 911 regulations for interconnected VoIP. First, the FCC requested OMB approval to modify the current information collection in OMB Control No. 3060-1085 to implement congressional mandates arising from Section 506 of RAY BAUM'S Act, which requires the Commission to “consider adopting rules to ensure that the dispatchable location is conveyed with a 9-1-1 call, regardless of the technological platform used and including with calls from multi-line telephone system.”

Second, the Commission obtained OMB approval to merge the existing information collection in OMB Control No. 3060-1131, Implementation of the NET 911 Improvement Act of 2008: Location Information from Owners and Controllers of 911 and E911 Capabilities. The Commission previously stated that it planned to merge the information collection requirements contained in that information collection into OMB Control Number 3060-1085, Section 9.5, Interconnected Voice Over internet Protocol (VoIP) E911 Compliance, into a single collection. Therefore, upon OMB approval, the Commission will discontinue the information collection under OMB Control No. 3060-1131.

Interconnected Voice Over internet Protocol (VoIP) E911 Compliance. The Commission is obligated by statute to promote “safety of life and property” and to “encourage and facilitate the prompt deployment throughout the United States of a seamless, ubiquitous, and reliable end-to-end infrastructure” for public safety. Congress has established 911 as the national emergency number to enable all citizens to reach emergency services directly and efficiently, irrespective of whether a citizen uses wireline or wireless technology when calling for help by dialing 911. Efforts by federal, state, and local governments, along with the significant efforts of wireline and wireless service providers, have resulted in the nearly ubiquitous deployment of this life-saving service.

In 2005, the Commission adopted IP-Enabled Services, E911 Requirements for IP-Enabled Service Providers, First Report and Order and Notice of Proposed Rulemaking, FCC 05-116, released on June 3, 2015, in WC Docket Nos. 04-36 and 05-196 ( 2005 Report and Order ), which set forth rules requiring providers of VoIP services that interconnect with the nation's existing public switched telephone network (interconnected VoIP services) to supply E911 capabilities to their customers.

To ensure E911 functionality for customers of VoIP service providers, the Commission requires the following information collections:

A. Location Registration. Requires providers to interconnected VoIP services to obtain location information from their customers for use in the routing of 911 calls and the provision of location information to emergency answering points.

B. Provision of Automatic Location Information (ALI). Interconnected VoIP service providers will place the location information for their customers into, or make that information available through, specialized databases maintained by local exchange carriers (and, in at least one case, a state government) across the country.

C. Customer Notification. Requires that all providers of interconnected VoIP are aware of their interconnected VoIP service's actual E911 capabilities and that they specifically advise every subscriber, both new and existing, prominently and in plain language of the circumstances under which E911 service may not be available through the interconnected VoIP service or may be in some way limited by comparison to traditional E911 service.

D. Record of Customer Notification. Requires VoIP providers to obtain and keep a record of affirmative acknowledgement by every subscriber, both new and existing, of having received and understood this advisory.

E. User Notification. In addition, in order to ensure to the extent possible that the advisory is available to all potential users of an interconnected VoIP service, interconnected VoIP service providers must distribute to all subscribers, both new and existing, warning stickers or other appropriate labels warning subscribers if E911 service may be limited or not available and instructing the subscriber to place them on or near the customer premises equipment used in conjunction with the interconnected VoIP service.

Section 506 of RAY BAUM'S Act. Section 506 of RAY BAUM'S Act requires the Commission to “consider adopting rules to ensure that the dispatchable location is conveyed with a 9-1-1 call, regardless of the technological platform used.” Section 506, Pub. L. 115-127, 132 Stat. 326. In the Kari's Law and RAY BAUM'S Act Report and Order, the Commission implemented Section 506 of RAY BAUM'S Act by adopting dispatchable location rules for interconnected VoIP and other 911-capable services. For interconnected VoIP services, the Commission amended the 911 Registered Location and customer notification requirements applicable to interconnected VoIP service providers.

Specifically, the Commission in the Kari's Law and RAY BAUM'S Act Report and Order revised the Registered Location requirements at 47 CFR 9.11 to facilitate the provision of automated dispatchable location for fixed and non-fixed interconnected VoIP services. For fixed services, the rule requires provision of automated dispatchable location with each 911 call. For non-fixed services, the rule requires provision of automated dispatchable location with 911 calls if technically feasible. If providing automated dispatchable location is not technically feasible, non-fixed interconnected VoIP service providers may provide Registered Location or alternative location information for 911 calls as defined in the rules, or they may route the caller to a national emergency call center. For fixed services, compliance with these location requirements is required by January 6, 2021; for non-fixed services, compliance is required by January 6, 2022. Regarding customer notification requirements, the Commission afforded service providers flexibility to use any conspicuous means to notify end users of limitations in 911 service.

The requirements adopted in the Kari's Law and RAY BAUM'S Act Report and Order leverage technology advancements since the 2005 Report and Order, build upon the existing Registered Location requirements, and expand options for collecting and supplying end-user location information with 911 calls. Accordingly, they serve a vital public safety interest.

NET 911 Act. The New and Emerging Technologies 911 Improvement Act of 2008 (Pub. L. 110-283, 122 Stat. 2620) (NET 911 Act) explicitly imposes on each interconnected VoIP provider the obligation to provide 911 and E911 service in accordance with the Commission's existing requirements. In addition, the NET 911 Act directs the Commission to issue regulations by no later than October 21, 2008 that ensure that interconnected VoIP providers have access to any and all capabilities they need to satisfy that requirement.

In 2008, the Commission adopted Implementation of the NET 911 Improvement Act of 2008, Report and Order, FCC 08-249, released on October 21, 2008, in WC Docket No. 08-171 ( 2008 Report and Order ), which implements certain key provisions of the NET 911 Act. The information collection requirements adopted in the 2008 Report and Order arise out of the requirement for an owner or controller of a capability that can be used for 911 or E911 service to make that capability available to a requesting interconnected VoIP provider under certain circumstances. In particular, an owner or controller of such capability must make it available to a requesting interconnected VoIP provider if that owner or controller either offers that capability to any commercial mobile radio service (CMRS) provider or if that capability is necessary to enable the interconnected VoIP provider to provide 911 or E911 service in compliance with the Commission's rules. These information collection requirements help to ensure continued cooperation between interconnected VoIP service providers and Public Safety Answering Points (PSAPs) in complying with the Commission's E911 requirements.

OMB Control Number: 3060-1280.

OMB Approval Date: November 10, 2020.

OMB Expiration Date: November 30, 2023.

Title: E911 Compliance for Fixed Telephony and Multi-line Telephone Systems.

Form Number: N/A.

Type of Review: New information collection.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 1,275,636 respondents; 38,048,948 responses.

Estimated Time per Response: 0.016 hours (one minute).

Frequency of Response: One-time, on occasion, third party disclosure requirement, and recordkeeping requirement.

Obligation to Respond: Mandatory. Statutory authority for this information collection is contained in 47 U.S.C. 151-154, 152(a), 155(c), 157, 160, 201, 202, 208, 210, 214, 218, 219, 222, 225, 251(e), 255, 301, 302, 303, 307, 308, 309, 310, 316, 319, 332, 403, 405, 605, 610, 615, 615 note, 615a, 615b, 615c, 615a-1, 616, 620, 621, 623, 623 note, 721, and 1471.

Total Annual Burden: 634,610 hours.

Total Annual Cost: $1,911,540.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Needs and Uses: The Commission is obligated by statute to promote “safety of life and property” and to “encourage and facilitate the prompt deployment throughout the United States of a seamless, ubiquitous, and reliable end-to-end infrastructure” for public safety. Congress has established 911 as the national emergency number to enable all citizens to reach emergency services directly and efficiently, irrespective of whether a citizen uses wireline or wireless technology when calling for help by dialing 911. Efforts by federal, state and local government, along with the significant efforts of wireline and wireless service providers, have resulted in the nearly ubiquitous deployment of this life-saving service.

Section 506 of RAY BAUM'S Act requires the Commission to “consider adopting rules to ensure that the dispatchable location is conveyed with a 9-1-1 call, regardless of the technological platform used and including with calls from multi-line telephone system.” RAY BAUM'S Act also states that, “[i]n conducting the proceeding . . . the Commission may consider information and conclusions from other Commission proceedings regarding the accuracy of the dispatchable location for a 9-1-1 call . . . .” RAY BAUM'S Act defines a “9-1-1 call” as a voice call that is placed, or a message that is sent by other means of communication, to a Public Safety Answering Point (PSAP) for the purpose of requesting emergency services.

As part of implementing Section 506 of RAY BAUM'S Act, on August 1, 2019, the Commission adopted a Report and Order ( 2019 Order ), set forth rules requiring Fixed Telephony providers and MLTS providers to ensure that dispatchable location is conveyed with 911 calls.

The Commission's 2019 Order adopted 9.8(a) and 9.16(b)(3)(i), (ii), and (iii) to facilitate the provision of automated dispatchable location. For Fixed Telephony and in fixed Multi-line Telephone Systems (MLTS) environments, providers must provide automated dispatchable location with 911 calls. For on-premises, non-fixed devices associated with an MLTS, the MLTS operator or manager must provide automated dispatchable location to the appropriate PSAP when technically feasible; otherwise they must provide either dispatchable location based on end-user manual update, or alternative location information. For off-premises MLTS calls to 911, the MLTS operator or manager must provide dispatchable location, if technically feasible. Otherwise it must provide either (1) manually-updated dispatchable location, or (2) enhanced location information, which may be coordinate-based, consisting of the best available location that can be obtained from any available technology or combination of technologies at reasonable cost. The requirements adopted in the 2019 Order account for variance in the feasibility of providing dispatchable location for non-fixed MLTS 911 calls, and the means available to provide it. The information collection requirements associated with these rules will ensure that Fixed Telephony and MLTS providers have the means to provide 911 callers' locations to PSAPs, thus reducing response times for emergency services.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 9 as follows:

This is a summary of the Commission's Report and Order (R&O), MB Docket Nos. 19-311, 13-249; FCC 20-154, adopted on October 27, 2020, and released on October 28, 2020. The full text of the R&O will be available electronically via the FCC's Electronic Document Management System (EDOCS) website at http://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic Comment Filing System (ECFS) website at http://www.fcc.gov/ecfs. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The R&O contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, see 44 U.S.C. 3507. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document in a separate Federal Register Notice, as required by the PRA. These new or modified information collections will become effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date.

In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

The Commission will send a copy of the R&O to Congress and the Government Accountability Office (GAO) pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

1. Introduction. In this R&O, the Commission adopts rules regarding all-digital AM broadcasting that it proposed in a notice of proposed rulemaking, FCC 19-123, 34 FCC Rcd 11560 (2019), 85 FR 649 (Jan. 7, 2020) (NPRM). These rules allow AM stations, on a voluntary basis, to cease broadcasting an analog signal and broadcast using only an all-digital signal in the HD Radio MA3 mode. This measure will benefit AM stations and their listeners by improving reception quality and listenable coverage in stations' service areas and will advance the Commission's goal of improving and modernizing the AM radio service. Currently, the AM broadcasting service suffers from interference and reception issues caused in part by increased emissions from various consumer electronic devices as well as broadcast sources. As a result, many AM stations are constrained to low-fidelity voice formats such as talk radio. Under the current rules, AM and FM stations are permitted to broadcast using either an analog signal or the hybrid analog and digital system licensed by Xperi Corporation under the brand name HD Radio. In the United States, the only technology for digital broadcasting in the AM and FM bands approved by the Commission is the HD Radio IBOC system. Although many FM stations have converted to hybrid broadcasting, various technical and other issues have prevented the widespread adoption of hybrid broadcasting by AM stations.

2. Testing and experimental broadcasting indicate that all-digital AM transmission has the potential to improve signal “robustness”—or resistance to interference and other impairments—as well as the ability to transmit auxiliary information to accompany the main audio programming. This robustness will result in a clearer signal for listeners and a greater area of listenable coverage compared to an analog signal. All-digital broadcasting will increase the format choices that AM broadcasters can offer to their audiences, including the option of music programming. Digital operation also eliminates the tradeoff between receiver audio bandwidth and noise performance. In addition, digital broadcasting allows visual and other metadata, such as song and artist identification, station identification, and emergency information, to be transmitted along with the audio content. Such auxiliary information is increasingly expected by consumers and considered to be a vital component of modern broadcasting. Finally, all-digital broadcasting will result in energy and spectrum efficiencies, because it provides additional and/or improved services over the same allocated frequencies.

3. The Commission anticipates that potential loss of service to analog-only listeners will be mitigated by the gradual, voluntary nature of the transition, the financial interest of radio stations in reaching a wide audience, duplicate programming provided by co-owned AM stations, and analog broadcasts on FM translators affiliated with all-digital AM stations.

4. The Commission finds that a sufficient number of digital receivers are currently in use to support a voluntary option to convert to all-digital. Moreover, as the number of digital receivers increases, more markets will be able to support all-digital broadcasting. Similarly, the cost of conversion is not an impediment to providing a voluntary option to convert, because stations can make their own decisions whether to pursue all-digital operations based on their own financial and technical situation as well as the needs and interests of their audience and the number of digital receivers in their market. The Commission notes that at the time of adoption, Xperi has stated that it will waive licensing fees for AM stations that choose to go all-digital.

5. Operating and technical rules. In the R&O, the Commission establishes that the power limits for all-digital stations must be calculated using the average power of the all-digital signal, including the unmodulated analog carrier and all of the digital sidebands, to determine whether the station complies with the nominal power limits set out in § 73.21 of the Commission's rules. Using the average power to calculate compliance with the nominal power limit will enable more stations to use existing transmitters for all-digital operations, thus reducing the cost of upgrading to all-digital and allowing more stations to convert. In addition, this method of calculating nominal power will result in a lower operating power for all-digital stations, which will be less likely to cause interference with analog signals while still maintaining improved listenable coverage areas.

6. The Commission applies the emissions mask set out in § 73.44 of the Commission's rules to all-digital operations. This emissions mask attenuates—or limits—spectral emissions outside a bandwidth of 20 kHz to the point where they do not cause significant adjacent channel interference. The Commission concludes that these emissions limits will adequately protect stations on adjacent channels from all-digital interference. It declines to impose the stricter emissions limits set out in the HD Radio specifications, which may not be set at technically feasible levels and may need to be revisited in light of field data from all-digital experimental operation. Although testing indicates that the digital signals may cause some increased degradation to analog signals, in most cases this will be masked by the noise floor, and in any case there is no evidence that interference will occur within service areas that are currently protected under our rules.

7. Recognizing that digital power measurement is an evolving and highly technical area, the Commission provides all-digital licensees the flexibility to choose any reliable and reasonably accurate method to measure their compliance with the Commission' operating power and power spectral density rules, including measurement tools integrated into digital transmitters, thermocouple RF ammeters, or averaging the power spectral density in a 300-Hz bandwidth over a minimum time span of 30 seconds and a minimum of 100 sweeps.

8. Each all-digital station is obligated to provide at least one free over-the-air digital programming stream that is comparable to or better in audio quality than a standard analog broadcast. Beyond this requirement, an all-digital licensee can use its additional digital bitrate capacity for either broadcast or non-broadcast services consistent with the Commission's technical rules. The Commission permits each AM broadcaster to select either core-only or enhanced mode transmission as their situation dictates.

9. The Commission imposes the same carrier frequency tolerance applicable to analog and hybrid stations (±20 Hz) on all-digital AM stations. It declines to impose a ±1 Hz AM carrier frequency tolerance standard on all AM stations as proposed in the NPRM, on the basis that the benefit to audio reception of doing so would not outweigh the burden on already struggling AM stations. The Commission also declines to incorporate by reference the National Radio Systems Committee's NRSC-5-D standard governing all-digital transmission into the Commission's rules, as proposed in the NPRM, finding that there is no need to do so and that—as a voluntary industry standard—the standard can be more readily updated in response to technological developments or operational feedback from all-digital stations.

10. The Commission prohibits all-digital stations from causing interference as currently defined in the rules. Although testing indicates that the potential for co-channel interference is higher for all-digital than for analog, the Commission concludes that neither adjacent- or co-channel interference as defined in the rules is likely to occur. The potential for additional co-channel interference is mitigated in the presence of a high level of environmental noise, in which case the all-digital interference is likely to be subsumed by the overall noise floor, masking the interfering effect of the all-digital signal. However, if prohibited interference occurs, the Commission establishes a remediation procedure based on the procedures currently applicable to hybrid stations. Specifically, the Commission expects AM all-digital operators and complaining stations to work together to identify whether interference exists and to resolve it in a mutually acceptable fashion, including voluntary power reduction.

11. The new rules permit up to 6 dB power reduction, without prior approval, in the all-digital secondary or tertiary sidebands (but not the primary digital sidebands) to avoid or resolve prohibited interference. The Commission expects that the gradual nature of the transition will enable it to resolve any immediate issues using existing rules and the remediation procedure. Both daytime and nighttime all-digital AM operation are permitted, and any prohibited interference resulting from nighttime skywave transmissions must be promptly resolved. Finding that the record demonstrates the technical feasibility of all-digital broadcasting, the Commission concludes that it is not in the public interest to delay implementation by requiring additional tests or require that stations undertake potentially expensive digital conversions under experimental licenses.

12. All all-digital AM stations, like other broadcast stations, must participate in the nationwide Emergency Alert System (EAS). This obligation extends to ensuring that any “downstream” EAS participant stations are capable of receiving and decoding EAS alerts from the all-digital station or can adjust their monitoring assignments to receive EAS alerts from another nearby station. The Commission concludes that listeners will have sufficient access to EAS alerts without mandating that EAS alerts be transmitted using analog signals. In addition, all-digital stations can transmit useful emergency information to listeners other than on the main audio stream, including, for example, text in multiple languages or images such as missing persons or evacuation routes.

13. The Commission adopts a modified version of the current digital notification procedure for all-digital stations by adding a 30-day waiting period for certain operational changes. Specifically, it requires licensees to electronically file a digital notification, using the existing FCC Form 335-AM Digital Notification (or any successor notification), to notify the Commission of the following changes: (1) The commencement of new all-digital operation; (2) an increase in nominal power of an all-digital AM station; or (3) a transition from core-only to enhanced operating mode. All-digital AM notifications will be placed on a Commission public notice, and new operation may begin no sooner than 30 calendar days from the date of this public notice. This will minimize the paperwork required for all-digital AM conversions while giving local co-channel and adjacent channel stations time to gather baseline data on their existing coverage before the new all-digital operation begins. Digital notification must be submitted within ten days of implementing all other changes, namely: (1) Any reduction in nominal power of an all-digital AM station; (2) a transition from enhanced to core-only operating mode; or (3) a reversion from all-digital to hybrid or analog operation.

14. Although the Commission directs broadcasters to use the current Form 335-AM for all-digital notifications, additional information is required for notification of all-digital operations specifically. Therefore, until the Form 335-AM is updated to display all-digital operation requirements, the Commission directs filers to select “N/A” as appropriate within the form and submit an attachment with the Form 335-AM containing the following information: (1) The type of notification (all-digital notification, increase in nominal power, reduction in nominal power, transition from core-only to enhanced, transition from enhanced to core-only, reversion from all-digital to hybrid or analog operation); (2) the date that new or modified all-digital operation will commence or has ceased; (3) a certification that the all-digital operations will conform to the relevant nominal power and spectral emissions limits; (4) the nominal power of the all-digital station; (5) a certification that the all-digital station complies with all EAS requirements; and (6) if a notification of commencement of new all-digital service or a nominal power change, whether the station is operating in core-only or enhanced mode.

15. During the 30-day period established above, the Commission requires that an AM broadcaster commencing new all-digital operation must provide reasonable notice to its listeners that the station will be converting to all-digital operation and will no longer be available on analog receivers. Because broadcasters have a strong incentive to promote such a change to their listeners, the Commission gives them flexibility to use reasonable methods intended to reach their audience, including on-air and website announcements. However, in the event that the reasonableness of notice of conversion to all-digital operation is challenged, the Commission would consider it presumptively sufficient if the broadcaster provided at least the same amount of notice as that set out in § 73.3580, the local public notice rule, with which broadcasters are already familiar.

16. The Commission declined to consider alternative technologies to HD Radio, such as Digital Radio Mondiale, finding that in the absence of any data regarding DRM performance in the U.S. AM band, it cannot evaluate its merits. Because it is in the public interest to provide an immediate path forward for AM stations to broadcast in all-digital as their circumstances allow, the Commission approves the HD Radio MA3 mode as the only currently feasible technology option before it, but does not foreclose the future consideration of alternative transmission technologies.

17. Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the NPRM in this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. Because the Commission amended the rules in this Report and Order (R&O), it included this Final Regulatory Flexibility Analysis (FRFA), which conforms to the RFA.

18. Need for, and Objectives of, the R&O. The R&O adopts several rule changes to allow AM stations to voluntarily broadcast an all-digital signal using the digital broadcasting technology known as HD Radio MA3. This action will improve the AM radio service by providing enhanced audio quality, increasing listenable reception areas, and allowing additional metadata textual information, such as song and artist identification, traffic services, and digital emergency alerts, to be transmitted along with the main audio programming. All-digital operation will increase the format choices that AM broadcasters can offer to their audiences, including the option of music programming. These greater capabilities will level the playing field between AM and FM signals from the listener's perspective, and help AM stations recapture audiences lost to FM radio, satellite radio, or online streaming services because of their higher sound fidelity and broader programming array. All-digital AM operation will also provide the full technological benefits of digital broadcasting while avoiding the shortcomings of the current analog or hybrid modes of transmission, which are more susceptible to noise and interference, more likely to cause interference to other stations, and place more demands on an AM station's transmission and antenna system.

19. All-digital operation provides greater usable signal coverage, is energy- and spectrum-efficient, and will be supported by an ever-increasing number of digital receivers. Since all-digital operation is completely voluntary, and the cost of conversion will vary from station to station, AM broadcasters will be able to decide whether conversion to all-digital meets their own needs and market demand. In the R&O, the Commission concludes that the public interest in the long-term viability of AM stations and the valuable services they provide, outweighs a possible loss of service to some current analog listeners as broadcasters and the listening public transition to an all-digital environment. All-digital service represents a significant and singular opportunity to preserve the AM service for future listeners. Any disruption to analog listeners will take place gradually, as AM stations individually decide their audience is ready to convert to all-digital, with full notice to consumers and ample opportunity to adjust to the new technology.

20. In the R&O, the Commission authorizes all-digital operations subject to the requirement that all-digital operations not cause prohibited interference to existing broadcast stations. In the unlikely event that such interference would occur, the Commission will apply current remediation procedures that encourage cooperation between the parties to resolve complaints and include an option to voluntarily reduce power. The Commission adopts the proposal in the NPRM that each all-digital station is obligated to provide at least one free over-the-air digital programming stream that is comparable to or better in audio quality than a standard analog broadcast. It also mandates that all-digital AM stations participate in the national Emergency Alert System (EAS).

21. Although all-digital conversion is a purely voluntary process for individual AM stations, the Commission strongly supports an all-digital future and affirms that the objective of the proceeding is a viable all-digital AM service. Supporting all-digital removes any regulatory uncertainty about the future of the AM HD Radio system and should give car companies and receiver manufacturers reassurance to invest in AM digital receivers. Thus, an all-digital environment will reduce the likelihood of interference while maximizing digital benefits such as an improved high-quality listener experience, signal robustness, reliable and listenable coverage, and superior audio quality.

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

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

24. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will 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 government 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 Small Business Administration (SBA).

25. Radio Stations. Radio stations are an Economic Census category that “comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.” The SBA has established a small business size standard for this category as firms having $41.5 million or less in annual receipts. Economic Census data for 2012 shows that 2,849 radio station firms operated during that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, and 43 firms had annual receipts of $25 million or more. Because the Census has no additional classifications that could serve as a basis for determining the number of stations whose receipts exceeded $41.5 million in that year, the Commission concludes that the majority of radio broadcast stations were small entities under the applicable SBA size standard.

26. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial AM stations to be 4,570 and the number of commercial FM stations to be 6,706 for a total of 11,276, along with 8,303 FM translator and booster stations. According to BIA/Kelsey Publications, Inc.'s Media Access Pro Database, as of March 2020, 4,389 AM stations and 6,767 FM stations had revenues of $41.5 million or less. In addition, the Commission has estimated the number of noncommercial educational FM radio stations to be 4,197. NCE stations are non-profit, and therefore considered to be small entities. Accordingly, the Commission estimates that the majority of radio broadcast stations are small entities. The Commission notes, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.

27. Moreover, as noted above, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any radio station from the definition of a small business on this basis and therefore may be over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.

28. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. The rules changes adopted in the R&O establish a straightforward procedure for stations to notify the Commission of a change to all-digital operations. The notification requirement for all-digital operations, is as follows: AM licensees must electronically file a digital notification, using the existing FCC Form 335-AM Digital Notification (or any successor notification form), to notify the Commission of the following proposed changes: (1) The commencement of new all-digital operation; (2) an increase in nominal power of an all-digital AM station; or (3) a transition from core-only to enhanced operating mode. All-digital AM notifications will be placed on an FCC public notice, and new operation may begin no sooner than 30 calendar days from the date of this public notice. This notification process will minimize the paperwork required for all-digital AM conversions, while giving local co-channel and adjacent channel stations time to gather baseline data on their existing coverage before the new all-digital operation begins. Digital notification must be submitted within ten days of implementing all other changes, namely: (1) Any reduction in nominal power of an all-digital AM station; (2) a transition from enhanced to core-only operating mode; or (3) a reversion from all-digital to hybrid or analog operation. There is no fee for filing a digital notification.

29. The R&O does not adopt recordkeeping requirements. However, it does require licensees converting AM stations to all-digital operation to provide reasonable notice to its listeners that their station will be converting to all-digital operations and will no longer be available on analog receivers.

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

31. Conversion to all-digital AM transmission (and then, consequent compliance with the rules governing all-digital operation) is completely voluntary and therefore flexible, based on an AM broadcaster's assessment of its individual financial and technical circumstances, including size. AM broadcasters overwhelmingly support the proposal to allow all-digital AM broadcasting, as do broadcast engineers, technology companies, and individual listeners. Of the technical requirements contemplated in the NPRM, the Commission evaluated several alternative options. The Commission originally considered imposing a (non-voluntary) stricter frequency tolerance standard of 1 Hz on all AM broadcasters, but decided that the benefits of doing so would not outweigh the associated burden of upgrading transmission equipment, particularly for smaller AM broadcasters, and declined to adopt the requirement. In addition, the Commission considered incorporating the NRSC-5-D Standard governing the technical implementation of HD Radio all-digital radio into the rules, but upon careful consideration of the record, decided that doing so would be unnecessary and could stifle industry innovation regarding the all-digital HD Radio technology. Therefore, in reaching the approach taken in the R&O, the Commission considered various alternatives and their effects on AM broadcasters, including small entities.

32. Report to Congress. The Commission will send a copy of the R&O to Congress and the Government Accountability Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the document, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the document and FRFA (or summaries thereof) will also be published in the Federal Register .

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

34. 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 these rules are “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this R&O to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

35. It is ordered that, pursuant to the authority contained in Sections 1, 4(i), 4(j), 301, 303, 307, 308, 309, 316, and 319 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 307, 308, 309, 316, and 319, this Report and Order is adopted and will become effective 30 days after publication in the Federal Register .

36. It is further ordered that part 73 of the Commission's Rules is amended as set forth in the Final Rules and such rule amendments will become effective 30 days after publication in the Federal Register , except for new § 73.406, which contains new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act and will become effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date.

37. 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 Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

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

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

This is a summary of the Commission's Order on Reconsideration (Reconsideration Order) in the NCE comparative standards proceeding, MB Docket No. 19-3, FCC 19-127, released March 20, 2020, published at 85 FR 7880 on February 12, 2020. The full text of the Reconsideration Order is available electronically via the FCC's Electronic Document Management System (EDOCS) website at http://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic Comment Filing System (ECFS) website at http://www.fcc.gov/ecfs. (Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) Alternative formats are available for people with disabilities (braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. Introduction. In this Reconsideration Order, the Commission addresses the Petition for Reconsideration filed by Discount Legal seeking reconsideration of the 2019 NCE Report and Order. The Petition asks the Commission to authorize “secondary grants” in mutually exclusive (MX) FM radio noncommercial educational (NCE) groups, after the initial resolution of the MX applications. The Commission dismisses the Petition as procedurally defective, and alternatively and independently, denies the Petition.

2. Background. Conflicting NCE FM applications, which cannot all be granted consistent with the Commission's technical rules, are considered mutually exclusive. The Commission places conflicting applications into MX groups, resolves the MX groups by applying the NCE comparative procedures, and tentatively selects an application for grant from each separate MX group. Specifically, the Commission compares NCE MX groups under the point system and awards each application a maximum of seven merit points based on public-interest criteria. The application with the most points in an MX group is designated the tentative selectee. The Bureau staff then accepts the tentatively-selected applications for filing, which triggers a 30-day period for the filing of petitions to deny. Petitions based on claims that the exclusion, or inclusion, of challenged or claimed points could alter the outcome in the particular MX group are referred to the Commission for a new points analysis.

3. When the Commission adopted the point system, it considered and rejected proposals to engage in secondary application analyses, whereby it would reevaluate the unsuccessful applications in an MX group that did not directly conflict with the ultimate tentative selectee of the group. The Commission explained that its primary goal was to select the best qualified applicants in an administratively efficient way.

4. The Commission opened a filing window for new NCE stations in 2007, and in 2010, the Commission issued the first of its comparative points orders resolving MX groups from the 2007 window. In the order, the Commission reiterated its policy “that only one application should be granted out of each mutually exclusive group, while providing the competing applicants the opportunity to file again in the next filing window.”

5. Several dismissed applicants subsequently challenged their dismissals and argued that their applications should also be granted because they were not mutually exclusive with the tentative selectees in their respective MX groups. The Commission again reaffirmed its one-grant policy in three 2015 Memorandum Opinions and Orders, rejecting petitioners' requests for secondary grants. The Commission explained that its policy basis not to engage in secondary grants was supported by the dual reasons of not granting inferior applications and promoting administrative efficiency.

6. Finally, in the 2019 NCE Report and Order, the Commission considered and rejected Discount Legal's suggestion that it adopt a secondary grant practice. The Commission reaffirmed its longstanding one-grant policy. In the Petition, Discount Legal renews the arguments in favor of a secondary grant policy made in its comments.

7. Discussion. The Commission dismisses the Petition as repetitive and procedurally defective. On alternative and independent grounds, the Commission denies the Petition as meritless and affirms its longstanding one-grant policy, which is supported by the dual rationales of expeditiously granting high-quality applications and limiting administrative burdens.

8. High Quality Applications. The Commission rejects Discount Legal's assertion that the potential disparities between the quality of unsuccessful applicants in an MX group is “irrelevant.” The Commission's one-grant policy is designed to encourage the best possible application submissions in every filing window. The current policy creates competitive pressure toward this end because applicants know that only the best application in an MX group will win.

9. The Commission also rejects Discount Legal's argument that “the idea than an applicant must be dismissed because it is comparatively inferior to an unqualified applicant being dismissed” violates the Supreme Court's holding in Ashbacker Radio Corp. v. FCC. The Commission previously considered and rejected this argument in a prior decision affirming the one-grant policy and explained that Ashbacker “[does not] require the Commission to engage in secondary analyses of inferior applications simply because they do not conflict with the tentative selectee.”

10. Administrative Burdens. The Commission rejects Discount Legal's contention that the concern about administrative burdens “does not hold up.” Discount Legal does not consider the extensive work required following the issuance of tentative selectee orders. The Commission explains that a tentative selection is not final until the entire administrative process of resolving petitions to deny, and any subsequent pleadings, is complete. Commission review of any petitions and associated point audits is a weighty and oftentimes lengthy process, requiring extensive analysis to determine the status of every tentative selectee's application and the merits of every petition to deny. If a petition to deny is granted, a new tentative selectee must be chosen, and petitions to deny must again be entertained.

11. The one-grant policy incentivizes applicants to resolve mutual exclusivities through the more expeditious settlement process, thereby accelerating new NCE service to the public. The Commission rejects Discount Legal's argument that it is irrational to allow multiple grants in an MX group in the settlement context but not engage in secondary analysis through the point system. This argument does not account for the fundamentally different nature of the two conflict-resolution methods and the time each process entails.

12. The Commission also rejects the argument that secondary grants would better accomplish the section 152 and 303(g) statutory objectives of efficient and effective radio use. The Commission explains that simply granting as many applications as possible in any given window will not result in greater long-term efficiency and effectiveness. Rather, the one-grant policy better serves the policy goals of sections 152 and 303(g) by incentivizing better applications as well as cooperative settlements that encourage more intensive and higher quality use of spectrum.

13. Established One-Grant Policy. Finally, the Commission's rejects Discount Legal's argument that the one-grant policy was not endorsed by the Commission, but rather, originated with the Bureau staff. The Commission explains that Discount Legal's characterization is directly at odds with the Commission's explicit mandate in the 2001 NCE Comparative MO& O, the subsequent Commission decisions stating that the Bureau correctly applied the NCE Comparative MO& O, and the Commission's recent reaffirmation of the one-grant policy in the 2019 Report and Order. These decisions reflect that it has been, and remains, the resolve of the Commission—not the staff—that the Bureau process applications based on a “one-grant” policy.

14. It is ordered that the Petition for Reconsideration filed on March 12, 2020, by Discount Legal is dismissed , and alternatively and independently, is denied.

15. It is further ordered that should no further petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 19-3 shall be terminated , and its docket closed .

Under section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq. ), we are required to make a finding whether or not a petitioned action is warranted within 12 months after receiving any petition for which we have determined contains substantial scientific or commercial information indicating that the petitioned action may be warranted (“12-month finding”). We must make a finding that the petitioned action is: (1) Not warranted; (2) warranted; or (3) warranted but precluded. We must publish a notice of these 12-month findings in the Federal Register .

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations at part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Lists of Endangered and Threatened Wildlife and Plants (Lists). The Act defines “species” as any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered species or a threatened species because of any of the following five factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

In conducting our evaluation of the five factors provided in section 4(a)(1) of the Act to determine whether the Doll's daisy ( Boltonia montana ), Puget Oregonian ( Cryptomastix devia ), Rocky Mountain monkeyflower ( Mimulus gemmiparus ), southern white-tailed ptarmigan ( Lagopus leucura altipetens ), tidewater amphipod ( Stygobromus indentatus ), tufted puffin ( Fratercula cirrhata ), Hamlin Valley pyrg ( Pyrgulopsis hamlinensis ), longitudinal gland pyrg ( Pyrgulopsis anguina ), sub-globose snake pyrg ( Pyrgulopsis saxatilis ), and Clear Lake hitch ( Lavinia exilicauda chi ) meet the definition of “endangered species” or “threatened species,” we considered and thoroughly evaluated the best scientific and commercial information available regarding the past, present, and future stressors and threats. We reviewed the petitions, information available in our files, and other available published and unpublished information. Our evaluation may include information from recognized experts; Federal, State, and tribal governments; academic institutions; foreign governments; private entities; and other members of the public.

The species assessment forms for the Doll's daisy, Puget Oregonian, Rocky Mountain monkeyflower, southern white-tailed ptarmigan, tidewater amphipod, tufted puffin, Hamlin Valley pyrg, longitudinal gland pyrg, sub-globose snake pyrg, the Johnson Springs Wetland Complex population of relict dace, and Clear Lake hitch contain more detailed biological information, a thorough analysis of the listing factors, and an explanation of why we determined that these species do not meet the definition of an endangered species or a threatened species. This supporting information can be found on the internet at http://www.regulations.gov under the appropriate docket number (see ADDRESSES , above). The following are informational summaries for the findings in this document.

On April 20, 2010, we received a petition from the Center for Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands to list 404 aquatic, riparian, and wetland species, including Boltonia montana (referred to by the common names “Doll's-daisy” and “doll's daisy” in the petition; referred to hereafter as Doll's daisy), as endangered or threatened species under the Act. On September 27, 2011, we published in the Federal Register (76 FR 59836) a 90-day finding in which we announced that the petition contained substantial information indicating listing may be warranted for the species. This document constitutes our 12-month finding on the April 20, 2010, petition to list Doll's daisy under the Act.

Doll's daisy is a perennial plant in the Asteraceae family that is known from Augusta County, Virginia; Sussex and Warren Counties, New Jersey; and Dauphin County, Pennsylvania, the latter regarded as a historical occurrence. The species occurs in certain isolated sinkhole ponds that have widely fluctuating water levels, and its life history is adapted to these variable habitat conditions. The species currently occurs in 21 population sites in New Jersey (5 are on land owned or managed by the State, 6 are on private property owned or managed by a conservation organization, and the remaining 10 populations are privately owned) and 22 population sites in Virginia (7 are on U.S. Forest Service land, and the remaining 15 are on private property).

Soil, water, sunlight, pollinator services, and a suitable annual temperature regime are interrelated resource needs required by Dolly's daisy individuals and populations. At the metapopulation scale, the species likely requires some degree of habitat connectivity to maintain viability; however, there is significant uncertainty regarding the degree of connectivity that may be necessary between population sites. We assume there is no natural connectivity between the two extant metapopulations in New Jersey and Virginia.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Doll's daisy, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the Doll's daisy's biological status include habitat modification (as a result of development, agriculture, off-road vehicle use, altered surface hydrology, and groundwater withdrawals) and climate change. There are conservation measures in place that benefit the species. Our species status assessment report for the Doll's daisy evaluates three plausible future scenarios for the species. In our future condition analysis, scenarios 1 and 3 predict between 3 and 11 populations would have lower resiliencies than the current condition, with the potential under one scenario that changes may result in the extirpation of several low resiliency populations, perhaps causing a loss of redundancy. Under scenario 2, we predict feasible conservation efforts would improve the condition of 22 populations. Under all scenarios, the species would maintain multiple moderate or high resiliency populations in the New Jersey and Virginia metapopulations; therefore, the species' representation is not predicted to change from the current condition (although we note that the historical extirpation of the Pennsylvania metapopulation may have reduced the species' representation).

Despite impacts from the primary stressors, Doll's daisy has maintained resilient populations throughout its range. Although we predict some continued impacts from these stressors in the future, we anticipate the species will continue to maintain resilient populations throughout the foreseeable future. Therefore, we find that listing the Doll's daisy as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Doll's daisy species assessment and other supporting documents (see ADDRESSES , above).

On March 17, 2008, we received a petition (dated March 13, 2008) from CBD, Conservation Northwest, the Environmental Protection Information Center, the Klamath-Siskiyou Wildlands Center, and Oregon Wild to list 32 species and subspecies of snails and slugs (mollusks), including Puget Oregonian ( Cryptomastix devia ), in the Pacific Northwest as endangered or threatened species under the Act. On October 5, 2011, we published in the Federal Register (76 FR 61826) a 90-day finding that the petition presented substantial information indicating that listing the Puget Oregonian under the Act may be warranted. This document constitutes our 12-month finding on the March 13, 2008, petition to list the Puget Oregonian under the Act.

The Puget Oregonian is a snail that inhabits moist, conifer-forest habitats that include some level of deciduous tree community composition. The species is most commonly located in stands with bigleaf maple ( Acer macrophyllum ) that occur along stream and river terraces or other habitats with a flat or gentle slope. Within that landscape, the species' habitat niche is near or under bigleaf maple crowns and in, or under, hardwood logs and other woody material, leaf litter, moist talus, and the lowest fronds of western swordfern ( Polystichum munitum ). The Puget Oregonian is found in the Cascade Range and Puget Trough in Washington, and south into the foothills of the Coast Range and Willamette Valley, in Oregon; the species is recognized as extirpated from British Columbia, Canada.

Most occurrence records for this species come from the Cispus River in Washington on the Gifford Pinchot National Forest, resulting from surveys conducted under the Northwest Forest Plan in areas where U.S. Forest Service projects were being considered. As a result, much of the potential suitable habitat for the Puget Oregonian remains unsurveyed.

The primary stressors affecting the Puget Oregonian include the effects of past, current, and future habitat loss, modification, and fragmentation from forest management, land conversion to agriculture and development, big leaf maple dieback disease, and wildfire. However, the species has been found in areas that had been previously impacted by some of these stressors (forest practices, bigleaf maple dieback disease and wildfire). The best available data provide no information on whether there is a declining or increasing population trend and limited information on whether the range of the species has contracted or expanded in the last century. Ten of the 15 habitat units assessed appear to have high resilience, containing multiple contemporary validated records of this species as well as a high percentage of suitable habitat within the unit and in the immediate and surrounding area. Although the species does not appear to be particularly abundant across its range, and much uncertainty regarding presence of the species in suitable but unsurveyed portions of the range, the snail's distribution across a large area (redundancy), with ten highly resilient populations in four different sub-basins (representation), indicates the species is likely to withstand catastrophic events in one or more sub-basin.

The resources that the Puget Oregonian needs are likely to diminish in quantity and quality over time with future increases in environmental stressors including the effects of climate change, human population growth in the Pacific Northwest, forest management, and bigleaf maple dieback disease. If suitable habitat diminishes as expected, we would anticipate a corresponding decline in the resiliency, redundancy, and representation of the species. However, the Puget Oregonian's current distribution in at least 15 sites across at least four different sub-basins will support its ability to maintain resiliency into the mid-21st century. Furthermore, the species' ability to take refuge in small areas (microhabitat) could add to the future resiliency of populations.

We know that features of the species' habitat may change in the future, and we can project the scope and magnitude of some of those environmental changes. However, our incomplete understanding of how the species may respond to changes in its environment over time creates a wide range of possibilities for the future condition of the 15 analytic units we assessed. The best available information does not indicate that the future magnitude and scope of potential environmental stressors would be at a level that would cause the species to be in danger of extinction in the foreseeable future.

Therefore, we find that listing the Puget Oregonian as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Puget Oregonian species status assessment and other supporting documents (see ADDRESSES , above).

On October 4, 2011, we received a petition from WildEarth Guardians requesting, in part, that we list the Rocky Mountain monkeyflower as an endangered or threatened species under the Act. On August 29, 2012, we published in the Federal Register (77 FR 52293) a 90-day finding that the petition presented substantial information indicating that listing the Rocky Mountain monkeyflower under the Act may be warranted. This document constitutes our 12-month finding on the September 30, 2011, petition to list the Rocky Mountain monkeyflower under the Act.

The Rocky Mountain monkeyflower, also known as the budding monkeyflower, is a small, narrow endemic plant found in north-central Colorado. Uniquely, this plant exhibits an asexual reproduction strategy not seen within the Mimulus genus or in any other Holarctic species; the plant produces propagules which contain “bulbils,” which have all of the components needed to develop into a new plant, including a shoot axis and rudimentary leaves and roots. The Rocky Mountain monkeyflower occupies approximately 60 acres (24.28 hectares) on State or Federal lands managed by the U.S. Forest Service, the National Park Service, and Colorado Parks and Wildlife in Boulder, Clear Creek, Grand, Jefferson, and Larimer Counties in Colorado. Currently, we know of 24 occurrences of the Rocky Mountain monkeyflower that constitute 19 populations; surveyors have observed over 14 million ramets (ramets are individuals that result from asexual reproduction and thus may be genetically identical).

The Rocky Mountain monkeyflower inhabits montane to subalpine habitats at elevations of 2,400 to 3,400 meters (7,874 to 11,154 feet) and is found under overhangs of south-facing cliffs or boulders. Little information exists about the ecological factors that affect growth and establishment of the Rocky Mountain monkeyflower in the wild. The survival of propagules is strongly influenced by moisture, temperature, and substrate type. A number of patterns are apparent in the few available studies on habitat parameters; all of the previous studies and species descriptions suggest that periods of very moist or saturated soil are important, but it appears that too much water can be problematic for this species. The optimal hydrological conditions are sites that are periodically saturated or, at most, consistently moist with no long periods of standing water. Similarly, successful sites have very shallow soil, typically fewer than two centimeters deep.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Rocky Mountain monkeyflower, and we evaluated all relevant stressors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. We identified climate change as the primary stressor affecting the Rocky Mountain monkeyflower's biological status. Currently, the Rocky Mountain monkeyflower has multiple, resilient populations distributed across its range, encompassing various ecological conditions and some genetic variation. While the Rocky Mountain monkeyflower is a narrow endemic plant with low population sizes and a limited range, this limitation does not seem to be currently compromising the species' resiliency, redundancy, and representation, given the relatively large numbers of ramets in multiple populations, the low risk of inbreeding depression due to the plant's asexual reproduction, good or moderate hydrological conditions in most populations, and relatively high levels of genetic diversity for an asexual species. The species is only known to occur on Federal and State public lands, which minimizes many threats such that there are no stressors currently providing species-level impacts. In the future, while we may lose some small Rocky Mountain monkeyflower populations, we project that each analysis unit will likely remain occupied. Moreover, in all projected future scenarios, the three populations containing over 90 percent of monkeyflower ramets will be in good or moderate condition. Furthermore, the plant's asexual reproduction strategy confers, and likely would continue to confer, additional resiliency because this less energy-intensive method of reproduction allows the species to reproduce in relatively harsh conditions. Thus, based on our analysis, we anticipate that the Rocky Mountain monkeyflower will continue to have multiple, resilient populations distributed across its narrow range, providing for limited but sufficient redundancy and representation necessary to withstand catastrophic events and adapt to environmental change into the future.

Therefore, we find that listing the Rocky Mountain monkeyflower as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Rocky Mountain monkeyflower species assessment and other supporting documents (see ADDRESSES , above).

On August 24, 2010, we received a petition from CBD requesting that we list either the U.S. population or the Rocky Mountain population of the white-tailed ptarmigan as threatened or endangered distinct population segments (DPSs) and that we designate critical habitat. Following our correspondence with the petitioner regarding the accepted taxonomy of the white-tailed ptarmigan and our DPS policy, the petitioner revised the petition on September 1, 2011. The revised petition requested that we list the southern white-tailed ptarmigan ( L. l. altipetens ) and the Mt. Rainier white-tailed ptarmigan ( L. l. rainierensis ) as threatened subspecies. On June 5, 2012, we published in the Federal Register (77 FR 33143) a 90-day finding that the petition presented substantial information that listing may be warranted for the southern white-tailed ptarmigan and the Mt. Rainier white-tailed ptarmigan. This document constitutes the 12-month finding on the September 1, 2011, petition to list the southern white-tailed ptarmigan under the Act. We will address our finding for the Mt. Rainier white-tailed ptarmigan in a future determination.

The southern white-tailed ptarmigan is a small bird that lives in high-elevation, alpine ecosystems in Colorado, northern New Mexico, and historically in the Snowy Range of southern Wyoming. Alpine ecosystems are characterized by high winds, cold temperatures, short growing seasons, low atmospheric oxygen concentrations, and intense solar radiation. The southern white-tailed ptarmigan is one of five subspecies of white-tailed ptarmigan in the Phasianidae family, subfamily Tetraoninae, which includes the grouse, or ground-feeding game birds. So named for its perpetually white tail feathers, the southern white-tailed ptarmigan changes its plumage seasonally to match the coloration and patterns of its alpine habitats, from white in winter to brown in the summer, effectively camouflaging the birds against snow and alpine rocks and vegetation. In addition to cryptic coloration, the southern white-tailed ptarmigan displays other adaptations to the temperature, precipitation, wind, and snow cover extremes of its alpine habitats. For example, heavily feathered feet support the southern white-tailed ptarmigan like snowshoes as they walk across the snow, and the subspecies feeds almost exclusively on willow buds during the winter when other food sources are scarce.

Nearly all suitable habitat for the southern-white tailed ptarmigan occurs on lands managed by Federal land management agencies, with over 85 percent managed by the U.S. Forest Service, over 5 percent managed by the National Park Service, and 4.5 percent managed by the Bureau of Land Management. Approximately 6 percent of suitable habitat is located on privately owned land. The distribution of southern white-tailed ptarmigan is largely unchanged from historical levels in Colorado and New Mexico, but a lack of recent observations indicates that the subspecies is presumed extirpated from the Snowy Range in southern Wyoming.

We determined that individual southern white-tailed ptarmigan have specific habitat needs to breed, feed, and shelter, including suitable winter snow conditions, available late-lying snowfields, summer precipitation and monsoonal moisture, brood-rearing habitat, and willows. We also determined that populations of southern white-tailed ptarmigan need external recruitment of immigrants, breeding dispersal, adult female survival, and population growth in order to be resilient. Demographic connectivity between populations is critical for resiliency, as it allows for genetic exchange, dispersal, and external recruitment. The subspecies needs a sufficient number and distribution of resilient populations to withstand the annual variation in its environment, catastrophes, and novel biological and physical changes in its environment.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the southern white-tailed ptarmigan, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. Potential stressors to the southern white-tailed ptarmigan include predation, mining and related poisoning due to toxic concentrations of trace metals, hunting, recreation, livestock and native ungulate grazing, and the effects of global climate change. Through our analysis, we found that only climate change may affect southern white-tailed ptarmigan populations due to increases in minimum and maximum temperatures; changes in snow quantity, quality, extent, and duration; shifts in plant phenology; advancement of treeline, and expansion of willow into alpine areas; and changes in the amount and timing of seasonal precipitation. Although the other stressors may affect individuals or local areas, they do not affect resiliency, redundancy, or representation, alone or cumulatively, currently or into the future for the southern white-tailed ptarmigan.

Currently, 14 out of 19 analytical units (a scale of analysis similar to populations) have high resiliency, 3 have medium resiliency, 1 in New Mexico has very low resiliency, and the Snowy Range analytical unit in Wyoming is presumed extirpated. Other than local declines in New Mexico and the presumed extirpation in the Snowy Range, the southern white-tailed ptarmigan currently occupies nearly all of its historical range, and the subspecies has sufficient resiliency, redundancy, and representation to withstand stochastic and catastrophic events and to adapt to environmental changes. Therefore, given the current levels of resiliency distributed across Colorado, the lack of significant stressors, and the life-history characteristics of the subspecies that make it uniquely adapted to the environmental extremes of its alpine habitats, we conclude that the current risk of extinction is low. In the future, we project reductions in resiliency, due to changes in climate, with a minor reduction in redundancy and representation if the analytical unit in New Mexico declines from very low resiliency to an extirpated condition. However, at least 17 resilient analytical units are projected to remain distributed across Colorado in the future, so the subspecies maintains enough resiliency, redundancy, and representation to withstand stochastic and catastrophic events and to adapt to changing conditions. Therefore, we consider the future risk of extinction to also be low.

We find that listing the southern white-tailed ptarmigan as an endangered subspecies or a threatened subspecies under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the southern white-tailed ptarmigan species assessment and other supporting documents (see ADDRESSES , above).

We identified the tidewater amphipod as a Category 2 candidate species for listing in a May 22, 1984, notice of review (49 FR 21664). Category 2 candidate species were taxa for which the Service had information indicating that proposing to list the species as endangered or threatened was possibly appropriate, but for which conclusive data on biological vulnerability and threats were not at that time available to support proposed rules. The tidewater amphipod remained designated as a Category 2 candidate species in subsequent candidate notices of review (54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 1996, notice (61 FR 7596), we discontinued the designation of Category 2 species as candidates, which removed the tidewater amphipod from our candidate list.

On April 20, 2010, we received a petition from CBD, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands to list 404 aquatic, riparian, and wetland species, including the tidewater amphipod, as endangered or threatened species under the Act. On September 27, 2011, we published in the Federal Register (76 FR 59836) a 90-day finding in which we announced that the petition contained substantial information indicating listing may be warranted for the species. This document constitutes our 12-month finding on the April 20, 2010, petition to list the tidewater amphipod under the Act.

The tidewater amphipod is a small, subterranean, shallow groundwater crustacean. Compared to similar amphipods, the tidewater amphipod is relatively large, with males reaching lengths of 9.7 millimeters (mm) (0.38 inches (in)) and females 8.2 mm (0.32 in). The species' entire known current distribution occurs within five counties in Maryland and seven counties in Virginia spanning a distance of 180 miles (289 kilometers) of the Coastal Plain physiographic region. Contemporary collections of tidewater amphipods have typically been made during the winter and spring months when individuals can be found in seepage springs, tile drains, and shallow wells.

Specific diet, water quality and quantity tolerances, and behavioral and reproductive traits of tidewater amphipod are unknown. However, based on the general principles of conservation biology, information about other groundwater amphipod species, and local information from the areas where tidewater amphipods have been observed, we infer that individuals need shallow water habitats with sufficient space to breed and shelter; sufficient water quality for breeding and sheltering; forest cover, which provides a buffer for water quality and quantity, and provides food; and a clay or confining layer or pore space to help support feeding and sheltering when water quantities are low.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the tidewater amphipod, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the tidewater amphipod's biological status include reduced groundwater quality and quantity, and we identified development ( i.e., impervious surfaces) as a primary source of changes to both. In response to degraded water quality, we conclude there could be decreased fitness and declines in the tidewater amphipod's resiliency caused by changes in biodiversity within its habitats. In response to the greater threat of reduced water quantity, there is evidence that the tidewater amphipod can burrow deeper underground for periods of time and reemerge when sufficient water levels return. While representation is assumed to have decreased when compared to historical conditions, it appears the species has sustained multiple populations across much of its historical range and through multiple stochastic events such as drought. Considering the future scenarios, the majority of populations do not appear to be at high risk of development, and the impact to the species caused by impervious surfaces is not projected to increase substantially. Thus, the primary threats appear to have low imminence and magnitude such that they are not providing species-level impacts to the tidewater amphipod. We evaluated numerous other factors ( e.g., climate change, effects of small population size, collection, predation, disease, recreation, forest management, and other conservation efforts) and determined that they had little to no measurable impact on the species. The species status assessment report describes many uncertainties in the species' occurrence, populations, and response to threats, but, considering the available data, the risk of extinction is low.

Therefore, we find that listing the tidewater amphipod as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the tidewater amphipod species assessment and other supporting documents (see ADDRESSES , above).

On February 14, 2014, we received a petition from the Natural Resources Defense Council (NRDC) to list the contiguous U.S. DPS of tufted puffin as an endangered or threatened species under the Act. Alternatively, the NRDC stated that we should list the tufted puffin species ( i.e., the entire population(s) across its known range) and apply this alternative if we found the contiguous U.S. population of the species did not meet our DPS policy. On September 18, 2015, we published in the Federal Register (80 FR 56423) a 90-day finding in which we announced that the petition contained substantial information indicating listing may be warranted for the contiguous U.S. DPS of tufted puffin in the States of Washington, Oregon, and California. The 90-day finding neglected to make a determination specific to the NRDC's alternative listing request. This document constitutes our 12-month finding on the February 14, 2014, petition to list the tufted puffin (addressing both petitioned entities) under the Act.

The tufted puffin is a widely distributed pelagic seabird found in the North Pacific Ocean. The tufted puffin is a burrow-nester that commonly nests colonially on offshore islands. Tufted puffins nest along the coasts of California, Oregon, Washington, and Alaska in the United States, and in Canada (British Columbia), Russia, and Japan. The majority of tufted puffins (82 percent) nest in North America, primarily Alaska; Russia has the second largest concentration of nesting tufted puffins (18 percent). Colony size is variable, ranging from just a few birds to large colonies of greater than 100,000 tufted puffins.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the tufted puffin, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. We determined that the most significant threats impacting the tufted puffin and its habitat are changing climate conditions, oil spills, fisheries bycatch, mammalian and avian predators, nonnative plants and animals, and human disturbance. The most significant of these threats to potentially impact the resource needs of tufted puffins are climate change and oil spills. Currently, the best available information for tufted puffins indicates adequate redundancy and representation across the species' range, including robust populations across the majority of its range. The species continues to occur throughout its historical range. While the tufted puffin's range will likely continue to contract in the south due to climate change, models predict the species will continue to remain widely distributed throughout most of its historical range. The tufted puffin is expected to maintain resilient colonies throughout a large proportion of its range, including likely continued representation across most of its range.

Therefore, we find that listing the contiguous U.S. DPS of tufted puffin or the tufted puffin species as endangered or threatened is not warranted. A detailed discussion of the basis for this finding can be found in the tufted puffin species assessment and other supporting documents (see ADDRESSES , above).

On July 30, 2007, we received a petition (dated July 24, 2007) from Forest Guardians (now WildEarth Guardians) requesting that the Service: (1) Consider all full species in our Mountain Prairie Region ranked as G1 or G1G2 by the organization NatureServe, except those that are currently listed, proposed for listing, or candidates for listing; and (2) list each species as either endangered or threatened. This petition included the Hamlin Valley pyrg, longitudinal gland pyrg, and sub-globose snake pyrg. On February 27, 2009, we received another petition dated February 17, 2009, from the CBD, Tierra Curry, Noah Greenwald, Dr. James Deacon, Don Duff, and the Freshwater Mollusk Conservation Society, requesting that we list 42 species of Great Basin springsnails in Nevada, Utah, and California, including the Hamlin Valley pyrg, longitudinal gland pyrg, and sub-globose snake pyrg, as endangered or threatened, and designating critical habitat under the Act. On August 18, 2009, we published in the Federal Register (74 FR 41649) a 90-day finding in which we announced that the petitions contained substantial information indicating listing these three species may be warranted. This document constitutes the 12-month finding on the July 30, 2007, and February 17, 2009, petitions to list the Hamlin Valley pyrg, longitudinal gland pyrg, and sub-globose snake pyrg under the Act.

The three springsnail species are in the genus Pyrgulopsis of the Hydrobiidae family. In general, the three species are morphologically similar with hardened shells and soft anatomy, and they are differentiated based on subtle morphological characteristics. The Hamlin Valley pyrg occurs only in the White Rock Cabin Springs province in Hamlin Valley, straddling the Utah and Nevada State line. The Utah portion of the spring province is all on private land, while the Nevada portion is entirely within the White Rock Range Wilderness Area managed by the Bureau of Land Management (BLM). The longitudinal gland pyrg occurs on private land at three springs or spring provinces (Big Springs province, Stateline Springs province, and Clay Spring) in the Snake Valley area of White Pine County, Nevada, and Millard County, Utah. The sub-globose snake pyrg occurs only in Utah at Gandy Warm Springs in Snake Valley, contained entirely within the Gandy Mountain Caves Area of Critical Environmental Concern managed by the BLM.

All three springsnails are very small in size, only a few millimeters in length and width, and have limited ability or tendency to move. These species are herbivores or detritivores that primarily graze on the periphyton (freshwater organisms attached or clinging to plants) of exposed surfaces of aquatic plants and substrates in the small springs they inhabit. We determined the following spring conditions are most critical in influencing the physical and biological needs of springsnails: Sufficient water quality, adequate substrate and vegetation, free-flowing water, and adequate spring discharge. When each of these physical and biological needs is present and functioning within a spring, stable populations of springsnails are expected.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the springsnails, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. Historically and through the present, the three springsnail species and their habitats were impacted to varying degrees by predation and competition, vegetation and soil disturbance, water pollution, spring modification, and groundwater pumping. However, we determined the most important stressors likely to impact future conditions of the three species include groundwater pumping and withdrawals, altered precipitation and temperature, and, in the case of the sub-globose snake pyrg, nonnative fish competition.

The Hamlin Valley pyrg occurs in one population with 10 of 11 occupied springbrooks in high overall resiliency condition and one springbrook in moderate condition; resiliency is high in all but one springbrook due to high abundance despite some environmental stressors. Redundancy and representation are limited due to the species' narrow range and its single population; however, this is likely similar to historical conditions. Therefore, we conclude that the current risk of extinction is low. In the future, we project the Hamlin Valley pyrg population to have high resiliency due to predicted high abundance and protection of the water source from pumping due to wilderness designation of groundwater areas upslope of the spring province. Redundancy and representation are projected to continue to be limited due to the species' narrow range and only one population, but this is likely similar to historical conditions for this narrow endemic species. In the future, we expect the species' habitat to continue to provide for the needs of sufficient water quality, adequate substrate and vegetation, free-flowing water, and adequate spring discharge. Additionally, we consider the future risk of catastrophic or stochastic events affecting this species or its habitat to be low.

The longitudinal gland pyrg currently occurs in three locations with 13 occupied springbrooks in high overall resiliency condition, 5 springbrooks in moderate condition, and only 1 springbrook in low condition. Resiliency is high in most springbrooks due to high abundance despite some environmental stressors. Competition and predation, spring modification, and vegetation and soil disturbance from grazing and roads are the only historical and current stressors. Because most populations exhibit high resilience despite the co-occurrence of stressors, we concluded that the stressors have a low to moderate effect on the longitudinal gland pyrg. Current abundance, range, and effects of stressors make it unlikely there would be a loss in redundancy or representation, and we expect the redundancy and representation to be adequate. Therefore, we conclude that the current risk of extinction is low. In the future, we project that the longitudinal gland pyrg will continue to have populations with high resiliency due to predicted high abundance despite the future effects of environmental stressors and because groundwater pumping is unlikely to occur in the foreseeable future. Redundancy and representation are projected to continue to be adequate in the future with three occupied spring systems with multiple occupied springbrooks. In the future, we expect the species' habitat to continue to provide for the needs of sufficient water quality, adequate substrate and vegetation, free-flowing water, and adequate spring discharge. Additionally, we consider the future risk of catastrophic or stochastic events affecting this species or its habitat to be low.

The sub-globose snake pyrg currently occurs in one spring system with multiple springbrooks in the upper reaches of the spring system in moderate resiliency condition. The spring system is a warm water system with temperatures greater than 25 degrees Celsius (77 degrees Fahrenheit). The population appears to be resilient to environmental stressors; however, numbers of snails are down overall due to the recent invasion of armored catfish into the lower reaches of the system, which is the only current threat to the species. The upper reaches of the system still have high numbers of snails and a low probability of armored catfish invasion. The BLM, Utah Division of Wildlife Resources, and the Service entered into the Conservation Agreement and Strategy for the Sub-globose Snake Pyrg (Agreement) in 2020. We evaluated the certainty that the conservation measures in the Agreement will be implemented and effective in our Policy for the Evaluation of Conservation Efforts (PECE) analysis. Using the criteria specified in PECE (68 FR 15100, March 28. 2003), we have determined that all of the PECE criteria have been satisfied. We find that the 2020 CAS has a high level of certainty for future implementation and certainty of the effectiveness. Nonnative fish removal efforts under the strategy have already begun to reduce armored catfish numbers in Gandy Warm Springs. Current redundancy and representation are limited due to the narrow range of the species and its single population, but this is likely similar to historical conditions. Therefore, we conclude that the current risk of extinction is low. Our assessment of the future status of this species takes into consideration the Agreement, which includes the continuation of conservation actions to eliminate nonnative fish from Gandy Warm Springs and prevent future invasion, thereby addressing this threat to the species. Future resiliency is expected to increase due to the removal of nonnative fish in accordance with the Agreement, the fact that groundwater pumping is unlikely, and the species' past ability to sustain itself despite other environmental stressors. Redundancy and representation are projected to continue to be limited in the future due to the species' narrow range and its single population, but this is likely similar to historical conditions. In the future, we expect the species' habitat to continue to provide for the needs of sufficient water quality, adequate substrate and vegetation, free-flowing water, and adequate spring discharge. Additionally, we consider the future risk of catastrophic or stochastic events affecting the sub-globose snake pyrg or its habitat to be low.

Therefore, we find that listing the Hamlin Valley pyrg, longitudinal gland pyrg, and sub-globose snake pyrg as endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Hamlin Valley pyrg, longitudinal gland pyrg, and sub-globose snake pyrg species assessment and other supporting documents (see ADDRESSES , above).

On June 27, 2014, we received a petition from Forest Service Employees for Environmental Ethics, requesting that the Johnson Springs Wetland Complex Population (JSWC) population of relict dace be listed as an endangered DPS under the Act. On April 10, 2015, we published a 90-day finding (80 FR 19259) that the petition presented substantial information indicating that listing the JSWC population of relict dace may be warranted and that we were initiating a status review. This document constitutes our 12-month finding on the June 27, 2014 petition to list the JSWC population of relict dace under the Act.

The relict dace is a small fish in the Cyprinidae family that was first described in 1972 (Hubbs and Miller 1972, pp. 101-102). It is found in spring systems in five isolated valleys in the northeastern corner of Nevada; these valleys are estimated to have been separated for hundreds of thousands of years. Four of these valleys contain native populations, including the JSWC, and one includes only introduced populations.

Waterbodies occupied by the species include springs, spring pools, and spring outflows; wetlands; natural and human-modified channels; ditches; ephemeral reservoirs; and creeks. The relict dace feeds on aquatic invertebrates, including mayfly and damselfly nymphs; they consume relatively little plant material (Carmichael 1983, p. 88). Little is known about relict dace breeding or behavior; however, the species is considered secretive (NDOW 2007, p. 4).

We have carefully assessed the best scientific and commercial information available regarding whether the JSWC population of relict dace qualifies as a DPS. Based on our thorough review, we find that the JSWC population of relict dace meets our criteria for discreteness under our February 7, 1996 DPS policy (61 FR 4722); however, it does not meet the criteria for significance based on the four criteria outlined in the DPS policy. The JSWC population of relict dace does not occur in a unique or unusual setting for relict dace, does not show evidence that loss of the discrete population segment would result in a significant gap in the range of relict dace, and does not represent the only surviving native occurrence of relict dace. While genetic discontinuity demonstrates the JSWC population segment is markedly separate from other relict dace populations, we find no evidence that these measures of genetic divergence result in marked differences in the JSWC population segment's genetic characteristics. Therefore, the JSWC relict dace population is not a listable entity under the Act. Because the JSWC population of relict dace is not a listable entity, we did not perform a status assessment under the five factors as required under section 4(a) of the Act. This finding constitutes our completion of our review of the petitioned action.

A detailed discussion of the basis for this finding can be found in the JSWC population of relict dace species assessment and other supporting documents (see ADDRESSES , above).

We received a petition from the Center for Biological Diversity on September 25, 2012 (CBD 2012, entire), to list the Clear Lake hitch as threatened or endangered under the Act. The Service issued a 90-day finding on April 10, 2015 (80 FR 19259), stating the petition presented substantial information that listing the Clear Lake hitch may be warranted and that we were initiating a status review. This document constitutes the 12-month finding on the September 25, 2012, petition to list the Clear Lake hitch.

The Clear Lake hitch (hitch) ( Lavinia exilicauda chi ) is a large cyprinid (freshwater minnow) that is endemic to the Clear Lake watershed in Lake County, California. Historically, the Clear Lake hitch occurred in several lakes and ponds found throughout the Clear Lake watershed, including: Clear Lake, Thurston Lake, Upper Blue Lake, Lower Blue Lake, and Lampson Pond. During the spring, Clear Lake hitch were also found in the numerous tributaries to these larger water bodies, including: Kelsey, Scott, Middle, Adobe, Seigler Canyon, Manning, Cole, Morrison, and Schindler Creeks. All of the waterbodies, listed above, with the exception of Thurston Lake, were hydrologically connected to each other in the past, and it appears that Thurston Lake and its tributary, Thurston Creek, have always been isolated from the other waterways. Local opinion is that hitch were introduced into Thurston Lake by a local resident less than 50 years ago. The Clear Lake hitch is restricted to the Clear Lake watershed in Lake County, California, in the central Coast Range Mountains. Currently, the hitch is thought to be extirpated from the Blue Lakes, but still occurs in Clear and Thurston Lakes throughout the year. In the spring, reproductive adults migrate into tributary streams to spawn and then migrate back to the lakes after spawning. It is unclear whether Lampson Pond still exists; therefore, the status of the Clear Lake hitch in Lampson Pond is unknown.

For most of the year, Clear Lake hitch are only found within their lacustrine (lake) environment. However, between February and May, a portion of the overall reproductive population begins to migrate into the surrounding tributaries to spawn. Spawning activities include one to five males pursuing a gravid female to fertilize her freshly extruded eggs, which are deposited on fine to medium sized gravel within the tributary stream. Fertilized eggs develop and hatch within 7 to 10 days, fry are free-swimming after another 7 to 10 days, and young migrate to the lake at about a month old before the streams dry up. Juvenile hitch are found within the nearshore habitat of the lake where they depend on submerged aquatic vegetation for cover and prey. Juvenile hitch move from the nearshore portion of the lake into open water in early-to late-fall. There is evidence that Clear Lake hitch do not require tributary streams with gravel to spawn, but can also spawn successfully in different portions of the lake ( i.e., along the shore, the mouths of tributaries, and Rodman Slough) that lack a gravel substrate.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Clear Lake hitch, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the Clear Lake hitch's biological status include habitat degradation, predation and competition, drought and climate change. Based on our examination of the best available scientific information, we have determined that habitat degradation, predation and competition, drought and climate change are not likely to adversely affect the overall viability of the Clear Lake hitch in a biologically meaningful way to such an extent that the species is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range for the following reasons: (1) The Clear Lake hitch has a long life span, (2) the Clear Lake hitch are highly fecund, and (3) the Clear Lake hitch has shown the ability to use different spawning strategies, which demonstrates its behavioral flexibility to variable environmental conditions. Additionally, regulatory mechanisms such as the California Endangered Species Act (CESA) and local ordinances are currently acting to ameliorate the severity of some existing threats, such as the take of individuals, degradation of tributary streams, and loss of wetland habitat surrounding Clear Lake. Furthermore, the SSA presented three plausible future scenarios, which included various states of potential future conditions for the species. Our analysis of these scenarios indicates that the Clear Lake hitch will maintain its current resiliency, representation, or redundancy, or undergo only a slight decrease in condition into the foreseeable future. Even under a projection of a slight decrease in future condition, the Clear Lake hitch was not projected to be in danger of extinction in the next 50 years.

Therefore, we find that listing the Clear Lake hitch as an endangered or threatened species under the Act is not warranted at this time. A detailed discussion of the basis for this finding can be found in the Clear Lake hitch species assessment form and other supporting documents (see ADDRESSES , above).

We request that you submit any new information concerning the taxonomy of, biology of, ecology of, status of, or stressors to the Doll's daisy, Puget Oregonian, Rocky Mountain monkeyflower, southern white-tailed ptarmigan, tidewater amphipod, tufted puffin, Hamlin Valley pyrg, longitudinal gland pyrg, sub-globose snake pyrg, the Johnson Springs Wetland Complex population of relict dace, or Clear Lake hitch to the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT , whenever it becomes available. New information will help us monitor these species and make appropriate decisions about their conservation and status. We encourage local agencies and stakeholders to continue cooperative monitoring and conservation efforts.

A list of the references cited in this petition finding is available on the internet at http://www.regulations.gov in the appropriate docket provided above in ADDRESSES and upon request from the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT .

The primary authors of this document are the staff members of the Species Assessment Team, Ecological Services Program.

The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

NMFS manages the groundfish fisheries in the U.S. exclusive economic zone (EEZ) of the Bering Sea and Aleutian Islands (BSAI) under the Fishery Management Plan for Groundfish of the BSAI Management Area (FMP). The Council prepared, and NMFS approved, the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.

NMFS published the proposed rule for these regulatory amendments in the Federal Register on September 18, 2020 (85 FR 58322). A summary of comments on the proposed rule and NMFS' responses are provided in the Comments and Responses section of this preamble.

In this rule, NMFS modifies Federal permit conditions and imposes participation requirements for certain federally permitted vessels when fishing for Pacific cod in State of Alaska waters (state waters) adjacent to the Exclusive Economic Zone (EEZ) of the Bering Sea and Aleutian Islands (BSAI). The state waters portion of the Pacific cod fishery that runs concurrent with the Federal Pacific cod fishery is commonly known as the State's parallel fishery.

Throughout this preamble, “state waters” refers to the maritime waters from 0 to 3 nautical miles off Alaska, and “EEZ” and “Federal waters” are used interchangeably and refer to the maritime waters from 3 to 200 nautical miles off Alaska. In addition, “parallel fisheries” in this preamble refers to the state waters Pacific cod parallel fisheries in the State of Alaska Bering Sea-Aleutian Islands Area, which presently is in the Dutch Harbor Subdistrict of the Bering Sea and within the Aleutian Islands Subdistrict of the Aleutian Islands, respectively.

This rule prohibits (1) a hook-and-line, pot, or trawl gear vessel named on a Federal Fisheries Permit (FFP) or License Limitation Program (LLP) license from being used to catch and retain BSAI Pacific cod in State of Alaska (State) waters adjacent to the BSAI during the State's parallel Pacific cod fishery unless the vessel is named on an FFP and LLP license that have the required endorsements; (2) a hook-and- line, pot, or trawl gear vessel named on an FFP or LLP license from catching and retaining Pacific cod in state waters adjacent to the BSAI EEZ during the State's parallel fishery when NMFS has closed the EEZ to directed fishing for Pacific cod by the sector to which the vessel belongs; (3) the holder of an FFP with certain endorsements from modifying those endorsements during the effective period of the FFP; and (4) the reissuance of a surrendered FFP with certain endorsements for the remainder of the three-year term, or cycle, of FFPs.

This section briefly describes the Federal BSAI Pacific cod fishery, including the Pacific cod fisheries that occur in BSAI state waters. More detailed descriptions, including a review of this rule and the rationale for the regulations, are provided in the preamble to the proposed rule (85 FR 58322, September 18, 2020) and in the Analysis (see ADDRESSES ).

Vessels that harvest Pacific cod in the BSAI use both trawl and non-trawl gear. Non-trawl gear includes hook-and-line, jig, and pot gear. Additionally, BSAI Pacific cod vessels operate as catcher vessels that harvest and deliver the fish for processing, or as catcher processors that harvest and process the catch on board. The amount of BSAI Pacific cod available for commercial harvest is determined through an annual harvest specifications process ( e.g., 83 FR 13553, March 9, 2020). This process accounts for Pacific cod harvested in guideline harvest level (GHL) fisheries that occur only within state waters and are managed by the State of Alaska. After deducting for harvests in the GHL fisheries, Pacific cod Total Allowable Catches (TACs) are set for the Federal fisheries in the Bering Sea and Aleutian Islands subareas.

Once the Bering Sea and Aleutian Islands TACs are established, regulations at § 679.20(a)(7)(i) allocate 10.7 percent of the Bering Sea Pacific cod TAC and 10.7 percent of the Aleutian Islands Pacific cod TAC to the Community Development Quota (CDQ) Program for exclusive harvest by Western Alaska CDQ groups. Section 305(i) of the MSA specifies the methods for allocating these harvest privileges. Once allocated, CDQ groups must ensure that they do not exceed their allocations.

The portion that remains after subtraction of the CDQ allocation from each TAC is the initial TAC (ITAC) for the Bering Sea and Aleutian Islands. NMFS combines the Bering Sea ITAC and the Aleutian Islands ITAC into one, BSAI non-CDQ Pacific cod TAC. This combined BSAI non-CDQ Pacific cod TAC is then allocated among, and available for harvest by, nine non-CDQ fishery sectors. Regulations at § 679.20(a)(7)(ii)(A) define the nine non-CDQ fishery sectors and specify the percentage of the BSAI non-CDQ Pacific cod TAC allocated to each. The non-CDQ fishery sectors are defined by a combination of gear type ( e.g., trawl, hook-and-line), operation type ( i.e., catcher vessel or catcher/processor), and vessel size categories ( e.g., vessels greater than or equal to 60 feet (ft) in length overall or less than 60 ft in length overall). Through the annual harvest specifications process, NMFS allocates an amount of the BSAI non-CDQ Pacific cod TAC to each of the nine non-CDQ fishery sectors. The nine non-CDQ fishery sectors and the percentage of the BSAI non-CDQ Pacific cod TAC allocated to each sector are shown in Table 1 below.

NMFS manages each of the fishery sectors to ensure harvest of Pacific cod does not exceed the sector's annual allocation. NMFS monitors harvests that occur by vessels being used to conduct directed fishing for Pacific cod (that is, participants who are specifically targeting and retaining Pacific cod above specific threshold levels) and harvests that occur by vessels being used to conduct directed fishing for other species and incidentally catching Pacific cod ( e.g., the incidental catch of Pacific cod in the directed pollock fishery). Section 679.2 provides the regulatory definition of “directed fishing.” For the non-AFA trawl catcher/processor sector, also known as the Amendment 80 sector, NMFS allocates exclusive harvest privileges to participants within that sector that cannot be exceeded. For the other non-CDQ fishery sectors, NMFS carefully tracks both directed and incidental catch of Pacific cod. An allocation to a non-CDQ fishery sector may be harvested in either the Bering Sea or the Aleutian Islands, subject to the Pacific cod ITAC specified for the Bering Sea or the Aleutian Islands. NMFS takes appropriate management measures, such as closing directed fishing for a fishery sector, to ensure that total directed fishing and incidental fishing harvests do not exceed that sector's allocation. Section 2.7 of the Analysis describes NMFS' management of the non-CDQ fishery sectors.

Allocations of Pacific cod to the CDQ Program and to the non-CDQ fishery sectors are further apportioned by season dates established at § 679.23(e)(5). In general, regulations apportion CDQ and non-CDQ fishery sector allocations among three seasons that correspond to the early (A-season), middle (B-season), and late (C-season) portions of the year. The specific season dates established for the CDQ Program and each of the non-CDQ fishery sectors were provided in the final 2020 and 2021 harvest specifications for groundfish of the BSAI (83 FR 13553, March 9, 2020). Depending on the specific CDQ Program or non-CDQ fishery sector allocation, between 40 percent and 70 percent of the Pacific cod allocations are apportioned to the A-season, historically the most lucrative fishing season due to the presence of valuable roe in the fish and the good quality of the flesh during that time of year.

The allocation of Pacific cod among the CDQ Program and the nine non-CDQ fishery sectors, as well as the seasonal apportionment of those allocations, create a large number of distinct sector and season allocations. The regulations allow NMFS to reallocate (rollover) any unused portion of a seasonal apportionment from any non-CDQ fishery sector (except the jig sector) to that sector's next season during the current fishing year, unless the Regional Administrator determines a non-CDQ fishery sector will not be able to harvest its allocation (see § 679.20(a)(7)(iv)(B)).

To monitor compliance with harvest catch limits, prohibited species (non-retained) catch limits, and sideboard regulations that limit participation in other fisheries, NMFS requires various permits that authorize or restrict access to the groundfish fisheries in the Federal waters of the BSAI. The two most relevant permits associated with this final rule are FFPs and LLP licenses.

All vessels that retain BSAI Pacific cod in the EEZ are required to have an FFP on board the vessel at all times (§ 679.4(b)(1)). An FFP authorizes a vessel owner to deploy a vessel to conduct fishing operations in the EEZ of the BSAI in accordance with the endorsements on the FFP. An FFP includes many endorsements, such as type of gear ( e.g., pot, hook-and-line, and trawl), vessel operation category (catcher vessel, catcher/processor, mothership, tender vessel, or support vessel), and regulatory area of operation ( e.g., BSAI) in which a permitted vessel is eligible to fish. In some fisheries, a species endorsement is also required. For example, the owners and operators of harvesting vessels that participate in the directed BSAI Pacific cod fisheries, except vessels using jig gear, are required to have an FFP endorsement for Pacific cod, along with endorsements for the gear type used to fish for Pacific cod, the vessel operation type, and the regulatory area(s) in which the fishery is prosecuted. All CDQ vessels and all non-jig vessels listed in Table 1 are required to have an FFP onboard that is endorsed for Pacific cod. A vessel may not be operated in a category other than what is specified on the FFP.

The operators of harvesting vessels that possess an FFP are required to comply with NMFS observer coverage requirements (§ 679.50(a)). In addition, FFP holders participating in a pollock, Atka mackerel, or Pacific cod fishery in the BSAI are required to have on board the vessel a transmitting vessel monitoring system (VMS) (§ 679.28(f)(6)). A VMS consists of a NMFS-approved transmitter that automatically determines a vessel's position and transmits that information to NMFS. While Pacific cod directed fisheries are open, all harvesting vessels with an FFP endorsed with a hook-and-line, pot, or trawl Pacific cod endorsement are required to have an operational VMS, regardless of where the vessel is fishing at the time or what the vessel is targeting. Thus, a VMS is required of all vessels with an FFP endorsed for Pacific cod hook-and-line, pot, or trawl gear while fishing in state waters (0 to 3 nm) adjacent to the BSAI. However, because these Federal requirements apply as a condition of being issued an FFP, operators of vessels that have not been issued an FFP and that fish exclusively in state waters are not required to possess an FFP or have an FFP on board the vessel, and such vessels are not subject to Federal observer, VMS, or recordkeeping and reporting requirements unless specified by the State.

FFPs are valid for three years and, unless revoked, suspended, or surrendered, are in effect from the date of issuance through the end of the three-year cycle. The current cycle of FFPs issued for vessels that operate in Alaska waters is January 1, 2018, through December 31, 2020. A vessel operator with an FFP can surrender the permit at any time and have NMFS reissue the FFP any number of times within the three-year cycle.

While any vessel owner can apply for an FFP with any combination of vessel operation, area, gear, or species endorsements, an FFP, by itself, does not necessarily authorize the FFP holder or the vessel named on the FFP to participate in the Federal Pacific cod fisheries. Most of the vessels that are used to participate in the Federal Pacific cod fisheries in the BSAI are also are required to have a groundfish LLP license.

A groundfish LLP license authorizes a vessel to be used in a directed fishery for groundfish in the BSAI in accordance with the specific area and species endorsements, the vessel and gear designations, the maximum length overall (MLOA) specified on the license, and any exemption from the MLOA specified on the license. Most vessel operators fishing for groundfish in the BSAI must have an LLP license on board at all times when the vessel is engaged in fishing activities (§ 679.4(k)). LLP licenses are issued by NMFS to qualified persons. Exemptions to the LLP license requirement in the BSAI are listed at § 679.4(k)(2), including an exemption for any vessel that does not exceed 32 ft (9.8 m) length overall (LOA), and an exemption for jig vessels less than or equal to 60 ft (18.3 m) LOA that use a maximum of 5 jig machines, one line per jig machine, and a maximum of 15 hooks per line.

In order to participate in the BSAI Pacific cod fisheries, several endorsements are required to be specified on an LLP license, such as vessel operation type, area, gear designation, and maximum length overall (MLOA). The endorsements for operation type on LLP licenses are either catcher vessel or catcher/processor. A catcher vessel endorsement allows a vessel to harvest but not process fish on board. A catcher/processor endorsement allows both harvesting and onboard processing, and also allows a vessel to deliver the catch to a separate processor. Area endorsements on BSAI groundfish LLP licenses authorize a vessel to fish in either the Bering Sea, the Aleutian Islands, or both areas. Gear endorsements for BSAI groundfish LLP licenses are either for trawl, non-trawl, or both gear types. For groundfish vessels with non-trawl endorsed licenses, NMFS implemented regulations in 2002 that require a Pacific cod endorsement for hook-and-line and pot gear LLP licenses on catcher/processor vessels and catcher vessels that are 60 ft (18.3 m) LOA or greater and that are used to participate in the BSAI Pacific cod fisheries (67 FR 18130, April 15, 2002). Catcher vessels less than 60 ft (18.3 m) are exempt from the required Pacific cod endorsement on their LLP license.

Groundfish LLP licenses also identify whether the license is associated with the Amendment 80, American Fisheries Act, or Gulf of Alaska Rockfish license limitation programs. BSAI groundfish LLP licenses further specify whether the license is restricted by regulatory sideboards from being used in other fisheries.

In general, a vessel is authorized to use only the gear that is designated on the LLP license. Unlike the FFP, the endorsements on an LLP license are not generally severable and an LLP license, with its associated endorsements, can be reassigned to a different vessel only once per year. Like FFPs, operators of vessels that have not been issued an LLP license and that fish exclusively in state waters fisheries are not required to comply with Federal requirements for LLP licenses.

As mentioned above, catch limits for the Federal Pacific cod fisheries include the sum of harvests that come from BSAI Federal waters and from the concurrent state parallel Pacific cod fisheries. Under the authority of Alaska statutes and regulations, the Alaska Department of Fish and Game (ADF&G) manages two parallel Pacific cod fisheries and three GHL fisheries in the state waters adjacent to the BSAI EEZ. Two of the GHL fisheries are held in the State's Dutch Harbor Subdistrict of the Bering Sea; the third is within the Aleutian Islands Subdistrict of the Aleutian Islands.

During the Federal BSAI Pacific cod fisheries in the EEZ, the State creates concurrent, or parallel, Pacific cod fisheries in state waters by generally adopting NMFS management actions for state waters. The initial Federal BSAI Pacific cod season (“A-Season”) opens January 1 for vessels using hook-and-line, pot, and jig gear, and January 20 for vessels using trawl gear. Unless specifically prohibited by State regulation, ( e.g., nonpelagic trawl gear is prohibited in state waters by 5 AAC 39.164 (4)), the State authorizes the same gear types, seasons, and bycatch limits that apply in the adjacent Federal BSAI Pacific cod season during a parallel fishery. In addition, during these State parallel Pacific cod fisheries, vessels using longline gear may not exceed 58 feet in overall length (OAL) (5 AAC 28.690(c)). Except for vessels using mechanical jigging machines, State regulations require all vessels that participate in a parallel Pacific cod fishery to have an activated VMS (5 AAC 28.087(c)).

Although the State adopts many of the management measures applicable to vessels participating in the Federal BSAI Pacific cod fisheries in the EEZ, the State does not require vessels that participate in the State's parallel Pacific cod fisheries to possess an FFP or an LLP license. Effective January 1, 2012, NMFS implemented regulations at § 679.7 that prohibit federally permitted catcher/processor pot and catcher/processor hook-and-line vessels from being used to catch and retain Pacific cod in state waters during the State's parallel fisheries unless the vessel is designated on an FFP and an LLP license that have the required endorsements (76 FR 73513, November 29, 2011). Additionally, regulations at § 679.7 require Federal permit holders who operate vessels in these two catcher/processor sectors to adhere to the Federal BSAI Pacific cod opening and closing periods when they participate in the State's parallel fisheries. At this time, vessels in other non-CDQ fishery sectors may participate in the State's Pacific cod parallel fisheries without having an FFP, an LLP license, and endorsements necessary to participate in the Federal fishery.

As mentioned above, Pacific cod harvested during the State's parallel fisheries accrue toward the Federal Pacific cod TAC. The State closes a parallel Pacific cod fishery by gear sector when NMFS determines the TAC for a Federal fishery sector using that gear type has been reached or when incidental species allowances are met.

Section 2.7 of the Analysis and the preamble to the proposed rule provide specific details on the number of vessels that have participated in the State's BSAI Pacific cod parallel fisheries, by vessel sector, over the 2010-2019 period. For all sectors combined, the total number of participating vessels in the BSAI Pacific cod parallel fisheries has ranged from 13 to 39 vessels per year. The proportion of Pacific cod that those vessels have caught in state waters during the concurrent BSAI Federal waters and State parallel fisheries varies by sector, but for all sectors combined has ranged from 2 percent to 5 percent of their total BSAI Pacific cod catch over the 2010-2019 period.

State GHL fisheries for Pacific cod are also prosecuted in state waters, but occur when fishing by specific Pacific cod sectors in the Federal and parallel fisheries is closed. The State currently manages GHL fisheries adjacent to both the BSAI subareas. The GHL fisheries may re-open and close as needed to coordinate with Federal fishery openings.

The Alaska Board of Fisheries (BOF) established the Dutch Harbor Subdistrict (DHS) state waters Pacific cod GHL fishery in 2013 (5 AAC 28.648). Pot and jig gear are the only legal gear types. In the Aleutian Islands Subdistrict GHL fishery (5 AAC 28.647), state regulations allow trawl, longline, pot, and jig gear vessels. More information on the GHL fisheries in the Dutch Harbor and Aleutian Islands Subdistricts can be found in section 2.6 of the Analysis and in the preamble to the proposed rule.

This final rule prohibits some federally permitted vessels from fishing for Pacific cod in the State of Alaska's parallel fisheries in the BSAI. Under current regulations, Federal FFPs and LLP licenses are only required for fishing activity in the EEZ. As a result, some vessels without an FFP or LLP license, and other vessels that have an FFP but with an LLP license that is not endorsed for Pacific cod fishing in the adjacent BSAI Federal waters, have participated in the State's parallel fisheries. Additionally, the State is legally constrained from allocating resources within a single fishery, and as a result does not recognize sector allocations based on operation types, such as catcher vessel versus catcher/processor designations. This circumstance has inadvertently allowed fishing in the State parallel fisheries by catcher vessels even when the Federal fishery sector for those vessels has fully achieved its Federal Pacific cod allocation. This has been most common among hook-and-line vessels. The Council determined, and NMFS agrees, that this fishing activity has negative effects on the Federal management regime for BSAI Pacific cod and must be curtailed to maintain the conservation and management benefits intended by the Council and implemented by NMFS.

For example, the Federal Pacific cod seasons for the hook-and-line catcher/processor sector typically remain open to directed fishing for much of the year, whereas the seasons for hook-and-line catcher vessel sectors, which fish under much smaller allocations, normally close earlier in the year. Because the State does not recognize sector allocations based on operation types, the State parallel Pacific cod fishery remains open for much of the year, so long as the Federal catcher/processor hook-and-line season is open. Therefore, when the catcher vessel hook-and-line allocation has been achieved, and NMFS closes that sector's season in Federal waters, some of those vessels have continued to fish for Pacific cod in state waters. When this has occurred, NMFS has been obligated to reallocate Pacific cod from other sectors to prevent overharvest of the area TAC. The Council determined that this complicates Federal conservation and management measures that are intended to hold sectors to their allocations and it also undermines the intent of previous Council decisions regarding license limitation, sector allocations, and catch reporting.

When evaluating these issues, the Council also considered the terms under which FFPs are issued. Under current regulations, an FFP is issued in a three-year cycle, but within that period, a vessel operator can surrender the FFP at any time, then reapply for a reissuance of the permit any number of times within the three-year cycle. This would provide an opportunity for vessel operators to avoid the prohibitions in this rule. Lengthening the amount of time that must pass between the period when a person surrenders an FFP and later reapplies for a new FFP will create a disincentive for vessel owners to circumvent Federal regulations by temporarily surrendering the FFP. Similar concerns apply to FFP amendments.

This final rule addresses these issues. The regulations in this final rule are similar to regulations implemented by NMFS in 2011 as part of Amendment 83 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (76 FR 74670, December 1, 2011), and are also similar to regulations that apply to pot and hook-and-line catcher/processors in the BSAI (76 FR 73513, November 29, 2011).

This rule prohibits a trawl, hook-and-line, or pot gear vessel that is named on an FFP or LLP license to catch and retain BSAI Pacific cod in state waters during the State's parallel Pacific cod fisheries unless the vessel is named on an FFP and LLP license that have the required endorsements. In addition, this rule prohibits a federally permitted hook-and-line, pot, or trawl gear vessel from catching and retaining BSAI Pacific cod in state waters during the State's parallel fisheries when NMFS has closed the corresponding sector to directed Pacific cod fishing in the EEZ. Through this permit condition, federally permitted vessels will be required to adhere to Federal seasonal Pacific cod closures and other management measures for their fishery sector when participating in the State's parallel fisheries.

Additionally, the regulations implemented by this final rule limit the number of times in which a vessel owner may relinquish an FFP and then reapply for a new FFP. Specifically, if an FFP is issued to a pot or hook-and-line catcher vessel with a Bering Sea or Aleutian Islands Pacific cod endorsement, or to a trawl vessel with a Bering Sea or Aleutian Islands endorsement, and if the FFP for the vessel is surrendered, then the vessel will not be eligible to receive a new FFP until after the expiration date of the surrendered FFP.

As noted above, the Council's intent for the regulatory amendments in this rule is to expand upon rules already in place for BSAI catcher/processor vessels that fish for Pacific cod with pot or hook-and-line gear. Federal regulations currently require these two catcher/processor sectors to have an FFP and LLP license with correct Federal Pacific cod endorsements in order to fish in the parallel fisheries (76 FR 73513, November 29, 2011). The two Pacific cod catcher/processor sectors are also subject to the FFP relinquish and reapply rules mentioned above.

The regulations in this final rule reflect the Council's intent and do not modify the regulatory requirements for vessels using jig gear in the BSAI. Additionally, this rule does not limit participation in the state waters GHL fisheries.

Section 2.7.6 of the Analysis and the Final Regulatory Flexibility Analysis (FRFA) below provide details on the number and type of vessels that may potentially be affected by the regulations in this rule.

The regulations established in this rule also prohibit amendment of an FFP during its effective period and create a disincentive for a vessel operator to surrender, or relinquish, their FFP during its effective period. Under current regulations, an FFP holder could avoid vessel observer coverage, catch reporting, and FFP and LLP requirements by amending or surrendering their FFP to fish in the State's Pacific cod parallel fishery, and then requesting that NMFS amend or reissue the FFP so that the vessel can be used to resume fishing in the EEZ. Amending or surrendering an FFP in this fashion may degrade the quality of information available to NMFS to manage the Pacific cod fishery and provide an opportunity to undermine the intent of this rule. As noted above, FFPs are currently issued on a three-year cycle; however, a vessel operator with an FFP can amend or surrender the permit at any time and have the FFP reissued any number of times within the three-year cycle. Prohibiting an amendment of an issued FFP during the three-year cycle and lengthening the amount of time that must pass before a person can reapply for a surrendered FFP makes it more difficult for FFP holders to circumvent the regulations by temporarily amending or surrendering the FFP. The regulatory provisions in this final rule for FFPs will address situations where a vessel owner could choose to amend or surrender the FFP before fishing in the State parallel or GHL fisheries to avoid NMFS observer coverage or recordkeeping and reporting requirements, and then seek to amend or reissue the FFP for the opening of the Federal waters fishery.

This final rule amends paragraphs (b)(3)(ii)(B) and (b)(3)(iii)(B) in 50 CFR 679.4 by expanding the scope of the applicable FFP vessel operation types to include both catcher/processors and catcher vessels. The revisions also specify that the applicable FFP gear types include trawl, pot, and hook-and-line gears. Note this final rule explicitly excludes vessels using jig gear from these regulatory actions.

This final rule amends paragraphs (c)(3) and (4) in 50 CFR 679.7 to expand the scope of vessels that are prohibited from participating in the BSAI parallel fisheries without properly endorsed LLP licenses. The former regulations that restrict fishing in the Pacific cod parallel fisheries applied only to catcher/processor vessels fishing pot or hook-and-line gear in the parallel waters of the BSAI. This action changes the regulations to identify both catcher/processor and catcher vessel operation types, and to include vessels using trawl, pot, and hook-and-line gear types in the regulations.

Modifying the regulations currently at § 679.7(c)(4)(i) to include trawl, pot, and hook-and-line gear types provides an opportunity to simplify the regulations by deleting paragraph (c)(4)(ii) in § 679.7.

Lastly, this final rule amends paragraph (b)(3)(i) in 50 CFR 679.4 to specifically reference the three-year cycle NMFS uses for issuing FFPs. Regulations at § 679.4(b) govern issuance of FFPs, and for many years specifically referenced the three-year cycle followed by NMFS for issuing FFPs. NMFS proposed to maintain the three-year cycle when it published a proposed rule to modify recordkeeping and reporting regulations in 2007 (72 FR 35747; June 29, 2007). However, the specific reference to the three-year cycle was inadvertently omitted in the supplemental proposed rule (73 FR 55368; September 24, 2008) and not included in the final rule for that action (73 FR 76136; December 15, 2008). NMFS has continued to use a three-year cycle for issuing FFPs and this final rule will reinsert the specific reference to this cycle.

NMFS did not make any substantive changes to the regulatory text in this final rule from the regulatory text in the proposed rule.

NMFS received and considered four unique, relevant comment letters on the proposed rule. All public comment letters submitted during the comment period may be obtained from www.regulations.gov. Three of the letters expressed support for the proposed regulations, and one letter did not support the proposed rule. None of the individual commenters identified themselves as direct participants in the BSAI Pacific cod fisheries. All three letters that supported the proposed rule were submitted anonymously, and NMFS cannot determine whether they were submitted by separate individuals. The letters and comments are grouped, summarized, and responded to below.

Comment 1: The three comment letters that supported the proposed regulations each expressed the importance of avoiding overfishing. The letters mentioned the conservation and management benefits of enhancing proper catch accounting in the fisheries. Two of the comment letters recognized that Pacific cod in the BSAI are not overfished.

Response: NMFS acknowledges these comments, and reiterates the benefits of this rule, which are to enhance the management of the Pacific cod fisheries and to reflect the intent of the Council regarding license limitation, vessel sector allocations of Pacific cod, and proper catch reporting. NMFS agrees that Pacific cod in the BSAI are currently not overfished.

Comment 2: Two of the three supporting letters suggested the new regulations would assist NMFS by making it easier to discipline or punish persons who exceed the Pacific cod TAC.

Response: NMFS agrees that keeping harvests within TAC limits is an essential element of effective management; however, the record that supports this final rule does not reflect concerns with the agency's current enforcement of overharvest limits or deterrence of regulatory violations.

Comment 3: One comment did not support the proposed rule, and briefly expressed it would not be beneficial to American citizens or to the fish.

Response: NMFS has determined that the final rule is consistent with the BSAI FMP, the MSA, and other applicable law and disagrees with the premise of the comment. Regulations similar to those adopted under this final rule have been in place since 2011 for the parallel Pacific cod fisheries in the Gulf of Alaska and for catcher/processor vessels that harvest Pacific cod in the BSAI. In each of these cases, the regulations have proven to be effective by enhancing the management of the fisheries. The regulations in this rule reflect the Council's and NMFS's intent to adopt similar regulations for Pacific cod catcher vessel operations in the BSAI.

Pursuant to Section 304(b)(3) of the MSA, the NMFS Assistant Administrator has determined that this final rule is consistent with the BSAI FMP, other provisions of the MSA, and other applicable law.

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

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

An RIR was prepared to assess the costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see ADDRESSES ). NMFS has adopted the action alternative over the former status quo, and makes regulatory revisions in this final rule based on those measures that maximized net benefits to the Nation. Specific aspects of the economic analysis are discussed below in the Final Regulatory Flexibility Analysis (FRFA) section. More information is provided in the Analysis, as well as in the preamble to this rule and in the preamble to the proposed rule.

A final regulatory flexibility analysis (FRFA) was prepared in this final rule. This FRFA incorporates the initial regulatory flexibility analysis (IRFA).

Section 604 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 604) requires that, when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency shall prepare a FRFA. Section 604 describes the required contents of a FRFA: (1) A statement of the need for and objectives of the rule; (2) a statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made to the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in this final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

A description of this rule, along with the need for and objectives of the rule, are contained in the preamble herein and in the preamble to the proposed rule (85 FR 58322, September 18, 2020), and are not repeated here.

NMFS published the proposed rule on September 18, 2020 (85 FR 58322). An IRFA was prepared and included in the Classification section of the preamble to the proposed rule. The comment period on the proposed rule ended on October 19, 2020. None of the comments from the public directly or indirectly referenced the IRFA. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule.

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

This final rule directly regulates individuals and entities that participate, or would seek to participate, in the BSAI Pacific cod parallel fisheries with federally permitted vessels using trawl, hook-and-line, or pot gear. The Analysis indicates that 192 vessels have a history of participation in the BSAI targeted Pacific cod fisheries over the 2010-2019 period. Based upon the estimated ex-vessel earnings of these vessels, the Analysis also indicates that 71 of these vessels are considered small entities. Of the 30 vessels that are expected to be directly impacted by the regulations in this rule, 29 are considered small entities, based on SBA criteria.

This rule, which prohibits certain federally permitted vessels from catching and retaining Pacific cod in the State's parallel fishery unless the vessel has the required permits, licenses, and endorsements, is intended to reflect the intent of previous recommendations by the Council regarding license limitation, vessel sector allocations of Pacific cod, and catch reporting. Additionally, this rule is expected to enhance the conservation and management of the fisheries by holding vessel sectors to their allocations and to promote the goals and objectives of the BSAI FMP for the Federal Pacific cod fishery. In 2011, NMFS implemented provisions similar to this final rule as part of Amendment 83 to the Fishery Management Plan for Groundfish of the Gulf of Alaska. Regulations established by this final rule are also very similar to current regulations that control the participation of catcher/processor hook-and-line and pot gear vessels in the BSAI; the regulations in this rule effectively add BSAI hook-and-line catcher vessels, pot catcher vessels, and trawl gear vessels to the existing body of BSAI fishing regulations.

The majority of the 30 vessel owners who are directly impacted by this rule currently have LLP licenses that allow them to participate in the parallel fisheries. Five of the 30 vessels currently do not have FFPs, which prevents them from fishing in Federal waters. Under this final rule, these vessels could continue to fish as they do now, solely in state waters. However, if the vessel owners choose to obtain an FFP, their vessels would have the flexibility to fish in both state and Federal waters during the directed Federal Pacific cod fishery for their sector. Also among the 30 directly impacted vessels, 15 other vessels are currently associated with FFPs and are linked to LLP licenses that allow them to continue to fish for Pacific cod in both Federal and state waters during the concurrent Federal and parallel fisheries; however, in previous years, an incremental portion of their participation has occurred in the parallel fishery when their sector was closed to fishing in Federal waters. Under this final rule, these vessels will no longer be able to circumvent seasonal closures for their sector by participating in the parallel fishery after their Federal sector has been closed. This ensures that their Pacific cod harvests will be attributed to the appropriate sector, as designated on their LLP license.

Vessel owners most likely to be impacted by this final rule are those whose vessels have an FFP and participate in the parallel fishery, but who do not have the appropriate LLP license to fish for Pacific cod in the BSAI Federal waters. These vessels could either exit the parallel fishery and therefore the BSAI Pacific cod fishery entirely, or they could forfeit their FFP (and therefore fish solely in state waters, but also forfeit Federal fishing opportunities associated with their FFP), or they could obtain a valid LLP license that would allow them the flexibility to participate in both the Federal and parallel Pacific cod fisheries. Because LLP licenses are a transferable and marketable asset, the owners' decisions will likely be influenced by the cost and availability of an LLP license.

Under this final rule, recordkeeping and reporting will not change for federally permitted catcher vessels that participate in the directed BSAI non-CDQ Pacific cod fisheries. The scope of this final rule modifies the conditions of Federal permits and imposes participation requirements for certain federally permitted vessels when fishing for Pacific cod in the parallel fisheries. This action also modifies the conditions under which existing permits may be used. Those specific requirements and the permit conditions are described in the preambles to this rule and to the proposed rule, and are not repeated here.

No duplication, overlap, or conflict between this final rule and existing Federal rules has been identified.

Description of Significant Alternatives Considered to the Final Action That Minimize Adverse Impacts on Small Entities

The Council and NMFS considered two alternatives. Among the two alternatives, Alternative 2 (the preferred, action alternative) promotes conservation, management, and catch accounting measures that were previously adopted by the North Pacific Fishery Management Council (Council) regarding license limitation, sector allocations, and catch reporting. As noted in the preamble to this rule, the Council's intent for the regulatory amendments of Alternative 2 is to expand upon rules already in place for BSAI catcher/processor vessels that fish for Pacific cod with pot or hook-and-line gear. Federal regulations currently require these two catcher/processor sectors to have an FFP and LLP license with correct Federal Pacific cod endorsements in order to fish in the parallel fisheries (76 FR 73513, November 29, 2011). These two Pacific cod catcher/processor sectors are also subject to the FFP relinquish and reapply rules implemented by this rule.

Alternative 1 was the no action alternative. Under the status quo, the regulations inadvertently allow fishing in the State parallel fisheries by catcher vessels even when the Federal fishery sector for those vessels has fully achieved its Federal Pacific cod allocation, which is contrary to the Council's intent.

The regulations in this final rule do not modify the regulatory requirements for vessels using jig gear in the BSAI. Additionally, this rule does not limit participation in the state waters GHL fisheries.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. NMFS will publish on its website a summary of this rulemaking including compliance requirements that will serve as the small entity compliance guide. Copies of the proposed rule and this final rule are available from the NMFS website at https://fisheries.noaa.gov/region/alaska.

This final rule does not contain a change to a collection of information requirement for purposes of the Paperwork Reduction Act of 1995. The existing collection of information requirements would continue to apply under the following OMB Control Numbers: 0648-0206, Alaska Region Permit Family of Forms (FFP), and 0648-0334, Alaska License Limitation Program for Groundfish, Crab, and Scallops.

For the reasons set out in the preamble, NMFS amends 50 CFR part 679 as follows: