Every Federal agency, including the NCUA, is required by law to adjust its maximum CMP amounts each year to account for inflation. Prior to this being an annual requirement, agencies were required to adjust their CMPs at least once every four years. The previous four-year requirement stemmed from the Debt Collection Improvement Act of 1996, 1 which amended the Federal Civil Penalties Inflation Adjustment Act of 1990. 2

The current annual requirement stems from the Bipartisan Budget Act of 2015, 3 which contains the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 amendments). 4 This legislation provided for an initial “catch-up” adjustment of CMPs in 2016, followed by annual adjustments. The catch-up adjustment reset CMP maximum amounts by setting aside the inflation adjustments that agencies made in prior years and instead calculated inflation with reference to the year when each CMP was enacted or last modified by Congress. Agencies were required to publish their catch-up adjustments in an interim final rule by July 1, 2016 and make them effective by August 1, 2016. 5 The NCUA complied with these requirements in a June 2016 interim final rule, followed by a November 2016 final rule to confirm the adjustments as final. 6

The 2015 amendments also specified how agencies must conduct annual inflation adjustments after the 2016 catch-up adjustment. Following the catch-up adjustment, agencies must make the required adjustments and publish them in the Federal Register by January 15 each year. 7 For 2017, the NCUA issued an interim final rule on January 6, 2017, 8 followed by a final rule issued on June 23, 2017. 9 For 2018, 2019, and 2020, the NCUA issued a final rule in each year to satisfy the agency's annual requirements. 10 This final rule satisfies the agency's requirement for the 2021 annual adjustment.

The law provides that the adjustments shall be made notwithstanding the section of the Administrative Procedure Act (APA) that requires prior notice and public comment for agency rulemaking. 11 The 2015 amendments also specify that each CMP maximum must be increased by the percentage by which the consumer price index for urban consumers (CPI-U)  12 for October of the year immediately preceding the year the adjustment is made exceeds the CPI-U for October of the prior year. 13 Thus, for the adjustment to be made in 2021, an agency must compare the October 2019 and October 2020 CPI-U figures.

An annual adjustment under the 2015 amendments is not required if a CMP has been amended in the preceding 12 months pursuant to other authority. Specifically, the statute provides that an agency is not required to make an annual adjustment to a CMP if in the preceding 12 months it has been increased by an amount greater than the annual adjustment required by the 2015 amendments. 14 The NCUA did not make any adjustments in the preceding 12 months pursuant to other authority. Therefore, this rulemaking adjusts the NCUA's CMPs pursuant to the 2015 amendments.

This section applies the statutory requirements and the Office of Management and Budget's (OMB) guidance to the NCUA's CMPs and sets forth the Board's calculation of the 2021 adjustments.

The 2015 amendments directed OMB to issue guidance to agencies on implementing the inflation adjustments. 15 OMB is required to issue its guidance each December and, with respect to the 2021 annual adjustment, did so on December 23, 2020. 16 For 2021, Federal agencies must adjust the maximum amounts of their CMPs by the percentage by which the October 2020 CPI-U (260.388) exceeds the October 2019 CPI-U (257.346). The resulting increase can be expressed as an inflation multiplier (1.01182) to apply to each current CMP maximum amount to determine the adjusted maximum. The OMB guidance also addresses rulemaking procedures and agency reporting and oversight requirements for CMPs. 17

The table below presents the adjustment calculations. The current maximums are found at 12 CFR 747.1001, as adjusted by the final rule that the Board approved in January 2020. This amount is multiplied by the inflation multiplier to calculate the new maximum in the far-right column. Only these adjusted maximum amounts, and not the calculations, will be codified at 12 CFR 747.1001 under this final rule. The adjusted amounts will be effective upon publication in the Federal Register and can be applied to violations that occurred on or after November 2, 2015, the date the 2015 amendments were enacted. 18

In the 2015 amendments, Congress provided that agencies shall make the required inflation adjustments in 2017 and subsequent years notwithstanding 5 U.S.C. 553, 20 which generally requires agencies to follow notice-and-comment procedures in rulemaking and to make rules effective no sooner than 30 days after publication in the Federal Register . The 2015 amendments provide a clear exception to these requirements. 21 In addition, as an independent basis, the Board finds that notice-and-comment procedures would be impracticable and unnecessary under the APA because of the largely ministerial and technical nature of the rule, which affords agencies limited discretion in promulgating the rule, and the statutory deadline for making the adjustments. 22 In these circumstances, the Board finds good cause to issue a final rule without issuing a notice of proposed rulemaking or soliciting public comments. The Board also finds good cause to make the final rule effective upon publication because of the statutory deadline. Accordingly, this final rule is issued without prior notice and comment and will become effective immediately upon publication.

The Regulatory Flexibility Act (RFA) generally requires that when an agency issues a proposed rule or a final rule pursuant to the APA  23 or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the Federal Register . 24 Specifically, the RFA normally requires agencies to describe the impact of a rulemaking on small entities by providing a regulatory impact analysis. For purposes of the RFA, the Board considers FICUs with assets less than $100 million to be small entities. 25

As discussed previously, consistent with the APA, 26 the Board has determined for good cause that general notice and opportunity for public comment is unnecessary, and therefore the Board is not issuing a notice of proposed rulemaking. Rules that are exempt from notice and comment procedures are also exempt from the RFA requirements, including conducting a regulatory flexibility analysis, when among other things the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. Accordingly, the Board has concluded that the RFA's requirements relating to initial and final regulatory flexibility analysis do not apply.

Nevertheless, the Board notes that this final rule will not have a significant economic impact on a substantial number of small credit unions because it affects only the maximum amounts of CMPs that may be assessed in individual cases, which are not numerous and generally do not involve assessments at the maximum level. In addition, several of the CMPs are limited to a percentage of a credit union's assets. Finally, in assessing CMPs, the Board generally must consider a party's financial resources. 27 Because this final rule will affect few, if any, small credit unions, the Board certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency creates a new paperwork burden on regulated entities or modifies an existing burden. 28 For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. This final rule adjusts the maximum amounts of certain CMPs that the Board may assess against individuals, entities, or credit unions but does not require any reporting or recordkeeping. Therefore, this final rule will not create new paperwork burdens or modify any existing paperwork burdens.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, the NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the Executive order. This final rule adjusts the maximum amounts of certain CMPs that the Board may assess against individuals, entities, and federally insured credit unions, including state-chartered credit unions. However, the final rule does not create any new authority or alter the underlying statutory authorities that enable the Board to assess CMPs. Accordingly, this final rule will not have a substantial direct effect on the States, on the connection between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. The Board has determined that this final rule does not constitute a policy that has federalism implications for purposes of the Executive order.

The Board has determined that this final rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999. 29

For purposes of the Congressional Review Act, 30 the OMB makes a determination as to whether a final rule constitutes a “major” rule. If OMB deems a rule to be a “major rule,” the Congressional Review Act generally provides that the rule may not take effect until at least 60 days following its publication.

The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. 31

For the same reasons set forth above, the Board is adopting the final rule without the delayed effective date generally prescribed under the Congressional Review Act. The delayed effective date required by the Congressional Review Act does not apply to any rule for which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 32

The Board believes this final rule is not a major rule. As required by the Congressional Review Act, the Board will submit the final rule and other appropriate reports to OMB, Congress, and the Government Accountability Office for review.

For the reasons stated in the preamble, the Board amends 12 CFR part 747 as follows:

The Chemical Weapons Convention (hereinafter, “CWC” or “Convention”), which entered into force on April 29, 1997, is an international arms control treaty whose object and purpose is to eliminate an entire category of weapons of mass destruction by prohibiting the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons by States Parties. The CWC States Parties have agreed to destroy any stockpiles of chemical weapons they may hold and any facilities that produced them, as well as any chemical weapons they have abandoned on the territory of other States Parties. The CWC States Parties also have agreed to implement a comprehensive data declaration, notification, and inspection regime for those toxic chemicals and their precursors listed in Schedule 1, 2 or 3 in the CWC Annex on Chemicals to provide transparency and to verify that their public and private sectors are not engaged in activities prohibited under the CWC.

In addition, each State Party has agreed to adopt domestic legislation to implement its obligations under the Convention and to designate or establish a National Authority to serve as the national focal point for effective liaison with the Organization for the Prohibition of Chemical Weapons (OPCW) and other States Parties. The designated U.S. National Authority is the Bureau of Arms Control, Verification and Compliance, U.S. Department of State. The OPCW was established by the States Parties to achieve the object and purpose of the Convention, to ensure the implementation of its provisions (including those pertaining to international verification of compliance), and to provide a forum for consultation and cooperation among the States Parties. All CWC States Parties are members of the OPCW, which includes the Conference of the States Parties, the Executive Council, and the Technical Secretariat.

The provisions of the CWC that affect commercial activities involving scheduled chemicals (including “Schedule 1” chemicals) are implemented, pursuant to the Chemical Weapons Convention Implementation Act of 1998 (CWCIA) (22 U.S.C. 6701 et seq. ) and Executive Order 13128 (64 FR 34703, June 28, 1999), by the Chemical Weapons Convention Regulations (CWCR) (see 15 CFR parts 710-722) and the Export Administration Regulations (EAR) (see 15 CFR 742.18 and 15 CFR part 745), both of which are administered by the Bureau of Industry and Security (BIS). Specifically, BIS maintains the list of “Schedule 1” chemicals identified in the CWC Annex on Chemicals in Supplement No. 1 to part 712 of the CWCR and as part of Supplement No. 1 to part 745 of the EAR. BIS also administers the CWC “Schedule 1” chemical declaration, reporting, notification, and verification requirements that are described in part 712 of the CWCR. In addition, § 745.1 of the EAR describes the advance notification and annual report requirements that apply to exports of “Schedule 1” chemicals.

The CWC identifies the toxic chemicals and immediate precursors listed under “Schedule 1” in the CWC Annex on Chemicals as posing a high risk to the object and purpose of the Convention. Consistent with Part VI of the CWC Verification Annex, the CWCR restrict commercial production of “Schedule 1” chemicals to research, medical, or pharmaceutical purposes only. See 15 CFR 710.1, at definition of Purposes not prohibited by the CWC, and 15 CFR 710.2(b), Activities subject to the CWCR. The CWCR prohibit commercial production of “Schedule 1” chemicals for “protective purposes” (see 15 CFR 712.2(a)) consistent with Presidential Decision Directive (PDD) 70 (December 17, 1999), which effectively limits production for such purposes to facilities operated by the Department of Defense. These CWCR restrictions and prohibitions apply to all persons and facilities located in the United States, except certain U.S. Government facilities—see 15 CFR 710.2(a). In addition to these general requirements and prohibitions pertaining to “Schedule 1” chemicals, the CWCR:

(1) Prohibit the import of “Schedule 1” chemicals from States not Party to the CWC (15 CFR 712.2(b));

(2) Require annual declarations by facilities engaged in the production of “Schedule 1” chemicals in excess of 100 grams aggregate per calendar year ( i.e., declared “Schedule 1” facilities) for purposes not prohibited by the CWC (15 CFR 712.5(a)(1) and (a)(2));

(3) Provide for government approval of declared “Schedule 1” facilities (15 CFR 712.5(f));

(4) Provide that declared “Schedule 1” facilities are subject to initial and routine inspection by the OPCW (15 CFR 712.5(e) and 716.1(b)(1));

(5) Require 200 days advance notification of establishment of new “Schedule 1” production facilities producing greater than 100 grams aggregate of “Schedule 1” chemicals per calendar year (15 CFR 712.4);

(6) Require advance notification and annual reporting to the Technical Secretariat of the OPCW of all imports and exports of “Schedule 1” chemicals to, or from, other States Parties to the CWC (15 CFR 712.6, 742.18(a)(1) and 745.1); and

(7) Prohibit the export of “Schedule 1” chemicals to States not Party to the CWC (15 CFR 742.18(a)(1) and (b)(1)(ii)).

This final rule amends part 712 of the CWCR and part 745 of the EAR to reflect recent additions to Schedule 1(A) of the CWC Annex on Chemicals, as described below. In addition, this rule amends the definition of “production” in part 710 of the CWCR to clarify the scope of this term as it applies to declarations regarding the production of “Schedule 1,” “Schedule 2,” or “Schedule 3” chemicals.

This rule amends part 712 of the CWCR and part 745 of the EAR to add three “Schedule 1” chemical families and one individual “Schedule 1” chemical to both sets of regulations, consistent with two decisions adopted by the States Parties to the CWC during the OPCW's 24th Conference of the States Parties, held in The Hague, the Netherlands, from November 25-29, 2019. Based on two separate proposals submitted to the Director-General of the OPCW, one by the United States, Canada and the Netherlands, and the other by the Russian Federation, these decisions added three chemical families and one individual chemical to “Schedule 1” in the CWC Annex on Chemicals. The OPCW agreements are documented in OPCW Decisions C-24/DEC.4 and C-24/DEC.5 and may be obtained from the OPCW website ( http://www.opcw.org ). On December 10, 2019, the Director-General notified all States Parties and the Depositary of the CWC ( i.e., the Secretary-General of the United Nations) of the adoption of these decisions by the Conference of the States Parties. Pursuant to subparagraph 5(g) of Article XV of the CWC, these changes to the Annex on Chemicals entered into force for all States Parties 180 days after the date of this notification, that is, on June 7, 2020.

The additions to “Schedule 1” of the CWC Annex on Chemicals are as follows:

A. Toxic chemicals:

(1) Р-alkyl (H or ≤C 10 , incl. cycloalkyl) N-(1-(dialkyl(≤C 10 , incl. cycloalkyl)amino))alkylidene(H or ≤C 10 , incl. cycloalkyl) phosphonamidic fluorides and corresponding alkylated or protonated salts

(2) O-alkyl (H or ≤C 10 , incl. cycloalkyl) N-(1-(dialkyl(≤C 10 , incl. cycloalkyl)amino))alkylidene(H or ≤C 10 , incl. cycloalkyl) phosphoramidofluoridates and corresponding alkylated or protonated salts

(3) Methyl-(bis(diethylamino)methylene)phosphonamidofluoridate (CAS No. 2387496-14-0)

(4) Carbamates (quaternaries and bisquaternaries of dimethylcarbamoyloxypyridines) Quaternaries of dimethylcarbamoyloxypyridines:

Bisquaternaries of dimethylcarbamoyloxypyridines:

Pursuant to Condition 23 to Senate Resolution 75 (S. Res. 75, April 24, 1997), and as delegated from the President, the Secretary of State, in coordination with other U.S. Government departments and agencies, including the Department of Commerce, must submit a report to the Senate Committee on Foreign Relations detailing, inter alia, the likely impact on United States industry of the proposed addition of a chemical or biological substance to a schedule in the CWC Annex on Chemicals. Consistent with Condition 23, on August 14, 2019, BIS published a notice of inquiry (84 FR 40389) that requested public comments as to whether the legitimate commercial activities and interests of chemical, biotechnology, and pharmaceutical firms in the United States would be significantly harmed by the limitations that would be imposed on access to, and production of, the compounds included in certain chemical families that had been proposed for addition to “Schedule 1” in the CWC Annex on Chemicals.

BIS did not receive any public comments in response to this notice of inquiry. Of the chemical families at issue, three families of chemicals and one individual chemical from a fourth family, as described above, were added to “Schedule 1” by the decisions adopted at the Conference of the States Parties in November 2019. These additions to “Schedule 1” are reflected in the amendments to the CWCR and the EAR described below.

Supplement No. 1 to part 712 of the CWCR identifies “Schedule 1” chemicals listed in the CWC Annex on Chemicals. This rule amends Supplement No. 1 to: (1) Include the three chemical families and one individual chemical that were added to “Schedule 1;” and (2) add a Note 3 following the list of chemicals to explain that the numerical sequence of the “Schedule 1” Toxic Chemicals and Precursors specified therein is not consecutive so as to align with the December 23, 2019, consolidated textual changes to the Annex on Chemicals, which reflect the decisions adopted by the CWC Conference of the States Parties in November 2019. Specifically, the chemicals listed in “Schedule 1(A),” Toxic Chemicals, are numbered 1-8 and 13-16 (the latter includes 16.1 and 16.2), while the chemicals listed in “Schedule 1(B),” Precursors, are numbered 9-12.

This rule does not amend any of the declaration, advance notification, reporting or verification requirements in part 712 of the CWCR that apply to “Schedule 1” chemicals or facilities involved in the production of such chemicals. Although the newly added “Schedule 1” chemicals are now subject to these requirements, BIS estimates that the amendments made by this rule will not significantly affect the public burden imposed by these requirements because very few (if any) commercial facilities in the United States produce these chemicals. Consistent with this estimate, BIS did not receive any responses to its August 2019 notice of inquiry requesting public comments on the impact on U.S. industry of the proposed addition of the families of chemicals at issue to “Schedule 1” of the CWC Annex on Chemicals. As further evidence of the limited scope of any potential commercial applications, these chemicals are defense articles subject to the export licensing jurisdiction of the U.S. Department of State (as described below).

Supplement No. 1 to part 745 of the EAR includes the three schedules of Chemicals (Schedules 1, 2 and 3) contained in the CWC Annex on Chemicals. This rule amends “Schedule 1” in Supplement No. 1 to reflect the decisions adopted at the November 2019 CWC Conference of the States Parties to add three chemical families and one individual chemical to “Schedule 1” in the CWC Annex on Chemicals. In addition, this rule revises the formats of “Schedule 2 and “Schedule 3” for consistency with the format of “Schedule 1,” as amended by this rule. This rule also adds a Note following the list of chemicals in Supplement No. 1 to explain that the numerical sequence of the “Schedule 1” Toxic Chemicals and Precursors specified therein is not consecutive so as to align with the December 23, 2019, consolidated textual changes to the Annex on Chemicals, which reflect the decisions adopted by the CWC Conference of the States Parties in November 2019. Specifically, the chemicals listed in “Schedule 1(A),” Toxic Chemicals, are numbered 1-8 and 13-16 (the latter includes 16.1 and 16.2), while the chemicals listed in “Schedule 1(B),” Precursors, are numbered 9-12.

This rule does not amend the advance notification and reporting requirements for exports of “Schedule 1” chemicals described in § 745.1 of the EAR, which are, for all practical purposes, a cross-reference to (or general restatement of) the requirements in § 712.6 of the CWCR (except that the CWCR requirements also apply to imports of “Schedule 1” chemicals). Furthermore, these newly added “Schedule 1” chemicals are not subject to the export licensing jurisdiction of BIS under the EAR. All “Schedule 1” chemicals, except ricin and saxitoxin (which are controlled under Export Control Classification Number 1C351 on the Commerce Control List in Supplement No. 1 to part 774 of the EAR), are subject to the export licensing jurisdiction of the Directorate of Defense Trade Controls, Department of State, under the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). Consequently, the conforming amendments made by this rule will not affect the burden imposed on the public by the “Schedule 1” chemical advance notification and reporting requirements described in § 745.1 of the EAR.

This final rule amends the definition of “ production” in § 710.1 of the CWCR to clarify its application to the CWCR's declaration requirements concerning the production of “Schedule 1,” “Schedule 2,” or “Schedule 3” chemicals. Specifically, this rule clarifies the definition consistent with §§ 712.5(d), 713.2(a)(2)(ii) and 714.1(a)(2)(ii) of the CWCR (as amended by the April 27, 2006, CWCR final rule (81 FR 24918)), whereby “Schedule 1,” “Schedule 2,” or “Schedule 3” chemicals that are intermediates, but not transient intermediates, must be considered when determining if a chemical is subject to the declaration requirements in the CWCR. (See the OPCW Conference of the States Parties Decisions that form the basis of this treatment of such intermediates: C-10/DEC.12, November 10, 2005, “Understanding Relating to the Concept of `Captive Use' in Connection with Declarations of Production and Consumption Under Part VI of the Verification Annex to the Convention;” and C-9/DEC.6, November 30, 2004, “Understanding of the Concept of `Captive Use' in Connection with Declarations of Production and Consumption Under Parts VII and VIII of the Verification Annex to the Chemical Weapons Convention.”)

As amended by this rule, the definition of “production” in § 710.1 of the CWCR is understood (for purposes of the “Schedule 1,” “Schedule 2,” and “Schedule 3” chemical declaration requirements in the CWCR) to include intermediates, by-products, or waste products that are produced and consumed within a defined chemical manufacturing sequence, where such intermediates, by-products, or waste products are chemically stable and therefore exist for a sufficient time to make isolation from the manufacturing stream possible, but where, under normal or design operating conditions, isolation does not occur.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including: Potential economic, environmental, public health and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits and of reducing costs, harmonizing rules, and promoting flexibility. This final rule has been determined to be not significant for purposes of Executive Order 12866. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule contains the following collections of information subject to the requirements of the PRA. These collections have been approved by OMB under control numbers 0694-0091 (Chemical Weapons Convention Declaration and Report Handbook and Forms & Chemical Weapons Convention Regulations (CWCR)) and 0694-0117 (Chemical Weapons Convention Provisions of the Export Administration Regulations (EAR)). The approved information collection under OMB control number 0694-0091 includes CWCR declarations, reports, notifications, and on-site inspections of chemical facilities and carries a total burden estimate of 14,813 hours. The approved information collection under OMB control number 0694-0117 includes Schedule 1 chemical advance notifications and annual reports, Schedule 3 chemical End-Use Certificates, and exports of “technology” to produce certain Schedule 2 and Schedule 3 chemicals and carries a total burden estimate of 42 burden hours.

BIS estimates that the overall increase in costs and burdens due to the implementation of the changes made by this final rule will be minimal, based on the fact that there are very few, if any, commercial applications for the “Schedule 1” chemicals added by this rule to Supplement No. 1 to part 712 of the CWCR and Supplement No. 1 to part 745 of the EAR. Consistent with this estimate, BIS did not receive any responses to its August 2019 notice of inquiry described herein. Additional evidence of the limited scope of potential commercial applications is that the chemicals at issue are defense articles subject to the export licensing jurisdiction of the Department of State. Also, pursuant to § 710.2(a) of the CWCR, certain U.S. Government facilities ( e.g., Department of Defense and Department of Energy facilities) are not subject to the CWCR and, consequently, the costs and burdens of the requirements described therein do not apply to such facilities.

In addition, although the newly added “Schedule 1” chemicals are subject to the declaration, advance notification, reporting or verification requirements in part 712 of the CWCR, the fact that these chemicals have few potential commercial applications will, as a practical matter, limit the impact of these requirements. Consequently, the amendments made by this rule will not significantly alter the costs and burdens imposed on the public by such CWCR requirements. Furthermore, because these newly added “Schedule 1” chemicals are defense articles subject to the export licensing jurisdiction of the Department of State under the ITAR, the conforming amendments made by this rule do not add to, or otherwise affect, any export licensing requirements in the EAR; nor, as a practical matter, will they significantly alter the costs and burdens imposed on the public by the reporting and advance notification requirements described in § 745.1 of the EAR.

Written comments and recommendations for the information collections referenced above should be sent within 30 days of the publication of this final rule to: www.reginfo.gov/public/do/PRAMain. The public may locate these particular information collections by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). Immediate implementation of these amendments is non-discretionary and fulfills the United States' international obligations under the CWC. The CWC is an international arms control treaty prohibiting the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons by States Parties in order to eliminate an entire category of weapons of mass destruction. The 193 CWC States Parties have agreed to, among other things, implement a comprehensive data declaration, notification, and inspection regime for those toxic chemicals and their precursors listed in Schedules 1, 2 or 3 in the CWC Annex on Chemicals (the Annex). The amendments set forth in this rule implement two decisions adopted by the States Parties during the OPCW's 24th Conference of the States Parties, held in The Hague, the Netherlands, from November 25-29, 2019, and clarify a definition in the CWCR to ensure consistency with the CWCR's declaration requirements regarding the production of “Schedule 1,” “Schedule 2,” or “Schedule 3” chemicals.

These provisions of the Administrative Procedure Act also are waived for good cause, as unnecessary and contrary to the public interest (see 5 U.S.C. 553(b)(B)). This rule brings the CWCR and the EAR into conformity with recent updates to “Schedule 1” in the Annex by amending Supplement No. 1 to part 712 of the CWCR and Supplement No. 1 to part 745 of the EAR. These changes to the Annex entered into force, with respect to all States Parties to the CWC, on June 7, 2020. As a State Party, the United States became obligated to apply the declaration, advance notification, reporting and verification requirements in part 712 of the CWCR to these newly added “Schedule 1” chemicals as of that date.

Because these obligations will have already come into effect by the time this rule is published, a delay of this rulemaking to allow for notice and opportunity for public comment would be unnecessary. As indicated above, the U.S. has no discretion in this matter—it must implement these changes as a State Party.

Even if these changes were discretionary, a delay of this rulemaking to allow for notice and opportunity for public comment would be unnecessary. Based on the lack of any responses to BIS's August 14, 2019, notice of inquiry requesting public comments on the impact of the addition of these chemicals (together with others) to the Annex, it does not appear that there any many (if any) chemical, biotechnology, or pharmaceutical firms in the U.S. that would be adversely affected by the substance of this rule. Moreover, these chemicals are defense articles subject to the export licensing jurisdiction of the Department of State under the ITAR and, consequently, have few potential commercial applications.

Similarly, a delay of this rulemaking to provide notice and opportunity for public comment would be contrary to the public interest, as would a 30-day delay in effective date, given the fact that the restrictions associated with the addition of these chemicals to the Annex have already come into force for CWC States Parties as of June 7, 2020. Providing notice and opportunity for public comment and a 30-day delay in effectiveness would not only impair the ability of the United States to fulfill its obligations as a State Party in a timely manner, it also might lead the public to mistakenly assume that these changes are discretionary. Such measures might also have a significant adverse impact upon the ability of U.S. companies to comply in a timely fashion with the declaration, advance notification, reporting, and other requirements that apply to these newly added “Schedule 1” chemicals, as they would have to wait until the amendments adding these chemicals to the CWCR and the EAR have taken effect. Consequently, any further delay in implementation would adversely impact the ability of the United States to meet its “Schedule 1” chemical declaration, notification, and reporting obligations to the OPCW with respect to these newly added “Schedule 1” chemicals. Conversely, timely publication of these regulatory changes, with immediate effectiveness, would provide U.S. companies with adequate time to adjust their recordkeeping and other activities in advance of any deadlines that would apply to the submission of declarations, advance notifications, or reports associated with the newly added “Schedule 1” chemicals, thereby making it possible for the U.S. to meet its CWC obligations in this regard.

For similar reasons, application of the APA's notice and comment and 30-day delay in effectiveness requirements to the clarification to the definition of “production” set forth in § 710.1 of the CWCIA made as part of this rule would be unnecessary and contrary to the public interest. The clarification merely conforms the definition to language already set forth in the CWCIA's declaration requirements that apply to “Schedule 1,” “Schedule 2,” and “Schedule 3” chemicals.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by the APA or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

For the reasons stated in the preamble, parts 710 and 712 of the Chemical Weapons Convention Regulations (15 CFR parts 710-722) and part 745 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to clarify the scope of the export controls that apply to certain vaccines, consistent with the vaccine release ( i.e., exclusion) note contained in the Australia Group (AG) “List of Human and Animal Pathogens and Toxins for Export Control” common control list, as updated by a decision made at the AG Plenary meeting held in Paris, France, in June 2019. The AG is a multilateral forum consisting of 42 participating countries and the European Union that maintain export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.

The AG specifically excludes certain vaccines from control under its “List of Human and Animal Pathogens and Toxins for Export Control” and the associated Warning List. However, prior to the June 2019 Plenary changes to this AG common control list, it was not clear if the release note therein applied not only to vaccines containing those human and animal pathogens and toxins identified on the list, but also to vaccines containing the genetic elements and genetically modified organisms identified therein. Recent changes to this AG common control list, based in part on a decision made at the June 2019 Plenary meeting, clarify that this release note applies to vaccines containing the genetic elements and genetically modified organisms identified on this list, as well as vaccines containing the viruses, bacteria, and toxins identified on this list.

Specifically, this rule amends Export Control Classification Number (ECCN) 1C991 on the Commerce Control List (CCL) to indicate that it includes vaccines containing, or designed for use against, any of the items identified in ECCN 1C351, 1C353 or 1C354. Prior to the effective date of this final rule, ECCN 1C991 indicated that it controlled vaccines “against” such items, but was not specific about whether all vaccines “containing” such items were controlled, irrespective of whether the vaccines were designed for use “against” such items.

This rule also expands the scope of medical products controlled under ECCN 1C991 to include those containing genetically modified organisms and genetic elements described in ECCN 1C353.a.3. In addition, this rule clarifies the definition of `immunotoxin' that appears in ECCN 1C351 and ECCN 1C991 and removes the definition of `subunit' from ECCN 1C351.

Finally, this rule renumbers ECCN 1C991.c and .d by listing medical products that are subject to chemical/biological (CB) controls, as well as anti-terrorism (AT) controls, under ECCN 1C991.c and listing medical products that are subject only to AT controls under ECCN 1C991.d. A conforming amendment is made to § 742.2(a)(3) of the EAR to reflect this change in paragraph sequencing.

This final rule amends ECCN 1C991 on the Commerce Control List (CCL) (Supplement No. 1 to part 774 of the EAR) to make the description of the vaccines controlled by this ECCN more closely reflect the scope of the vaccine release note contained in the AG “List of Human and Animal Pathogens and Toxins for Export Control.” ECCN 1C991 does not control any of the human and animal pathogens and toxins or genetic elements and genetically modified organisms identified on this AG list; however, it does control vaccines, immunotoxins, medical products, and diagnostic and food testing kits that contain certain of these AG-listed items.

The amendments contained in this final rule are intended to clarify the scope of the vaccine controls described in ECCN 1C991. Prior to the effective date of this final rule, the control text for vaccines described in ECCN 1C991.a indicated that this ECCN controlled “vaccines against items controlled by ECCN 1C351, 1C353 or 1C354.” The use of the term “against” in the control text created some uncertainty concerning the extent to which ECCN 1C991.a applied to vaccines that “contain” items controlled by ECCN 1C351, 1C353 or 1C354, but that act against agents (or other disease causing organisms) that are not identified in any of these ECCNs. This uncertainty caused some concern among manufacturers and exporters about the correct classification and licensing policies for such vaccines.

The clarifications in this rule to the scope of the vaccine controls in ECCN 1C991.a are also in response to recent scientific and medical developments. For example, viruses controlled under ECCN 1C351 ( e.g., vesicular stomatitis virus, yellow fever virus, and Newcastle disease virus) are being modified to express surface proteins of other target organisms or cells for stimulating immune response to the surface protein, thus acting as vaccines against those targets. These medical products can be designed for the following purposes: (1) Vaccination against agents controlled by ECCN 1C351 ( e.g., Ebolavirus or Chikungunya virus); (2) to protect against uncontrolled agents; or (3) as oncolytic medical products for treating specific cancers (oncolytic virotherapy is an emerging treatment that uses replication competent viruses to destroy cancers).

This final rule addresses industry's concerns and the recent scientific and medical developments described above by revising ECCN 1C991.a to read as follows: “Vaccines containing, or designed for use against, items controlled by ECCN 1C351, 1C353 or 1C354.” As a result of this change, ECCN 1C991.a now clearly indicates that it controls all vaccines that “contain” items controlled by ECCN 1C351, 1C353 or 1C354, as well as those vaccines that are designed for use “against” these items.

This rule also amends ECCN 1C991 by expanding the scope of medical products controlled under this ECCN, consistent with the release ( i.e., exclusion) note for such products in the “List of Human and Animal Pathogens and Toxins for Export Control,” to include medical products containing genetically modified organisms or genetic elements controlled under ECCN 1C353.a.3. In addition, the control text for medical products in ECCN 1C991 is renumbered by listing medical products that are subject to chemical/biological (CB) controls, as well as anti-terrorism (AT) controls, under ECCN 1C991.c and listing medical products that are subject only to AT controls, under ECCN 1C991.d. Prior to the effective date of this final rule, the former were listed under ECCN 1C991.d, while the latter were listed under ECCN 1C991.c. This change is intended to emphasize the more stringent controls that apply to the medical products now described in ECCN 1C991.c ( i.e., CB controls, in addition to AT controls) and to clearly indicate that the CB controls that apply to most of the medical products controlled under this ECCN do not apply to the medical products now controlled under ECCN 1C991.d, which are subject only to AT controls (the controls that apply to items in ECCN 1C991 are described in more detail, below). A conforming amendment is made to § 742.2(a)(3) of the EAR to reflect this change in paragraph sequencing.

This rule also makes a technical correction to the definition of `medical products' in the “Related Definitions” paragraph under the List of Items Controlled for ECCN 1C991 by adding the parenthetical phrase “(or veterinary)” to the criterion describing pharmaceutical formulations. The criterion, as corrected, reads as follows: “(1) pharmaceutical formulations designed for testing and human (or veterinary) administration in the treatment of medical conditions.” In addition, the definition of `immunotoxins' in the “Related Definitions” paragraph of ECCN 1C351 and ECCN 1C991 is clarified to read as follows: “immunotoxins are monoclonal antibodies linked to a toxin with the intention of destroying a specific target cell while leaving adjacent cells intact.”

This rule also adds a Technical Note at the beginning of the “ Items” paragraph in the List of Items Controlled under ECCN 1C991 to clarify that, for purposes of the controls described in this ECCN, `toxins' means those toxins, or their subunits, controlled under ECCN 1C351.d.

Note that all items controlled by ECCN 1C991, including the vaccines described in ECCN 1C991.a, require a license for AT reasons to the destinations indicated under AT Column 1 on the Commerce Country Chart in Supplement No. 1 to part 738 of the EAR (also see the AT license requirements described in part 742 of the EAR that apply to Iran, North Korea, Sudan and Syria). In addition, the medical products now controlled by ECCN 1C991.c (as renumbered by this rule) require a license for CB reasons, as well as AT reasons, to the destinations indicated under CB Column 3 and AT Column 1, respectively, on the Commerce Country Chart. A license also is required to certain destinations in accordance with the embargoes and other special controls described in part 746 of the EAR.

Prior to the publication of this final rule, paragraph (a) of ECCN 1C991 included only those vaccines designed to protect against biological agents controlled under ECCN 1C351, 1C353 or 1C354 on the CCL. For example, the vaccine for protection against Ebola was previously (and continues to be) classified for control under ECCN 1C991, because Ebola, itself, is a controlled biological agent. The Ebola vaccine also contains genetic elements for recombinant vesicular stomatitis virus (VSV), a controlled virus, and a common vector for vaccine development.

However, ECCN 1C991 did not previously include vaccines containing controlled biological agents that were not also designed to protect against a controlled agent. Other VSV-based vaccines against EAR99 agents ( i.e., agents not controlled on the CCL), such as SARS-CoV-2, were controlled to all destinations under ECCN 1C353, because they did not act against a controlled agent as previously required by the ECCN 1C991 vaccine control text.

This rule amends the vaccine controls in paragraph (a) of ECCN 1C991 to more accurately reflect the scope of the AG release note for vaccines, which exempts vaccines from control under the AG List of Human and Animal Pathogens and Toxins. Specifically, the AG release note exempts from control all vaccines containing one or more of the biological agents identified on this AG common control list.

Although certain COVID vaccines are not affected by this rule, the development of an unknown number of other vaccines, COVID and otherwise, is expected to be greatly facilitated as a result of these amendments to the vaccine controls in ECCN 1C991.

Effective with the publication of this rule, COVID vaccines containing genetic elements of items controlled by ECCN 1C353 (such as VSV) are now controlled under ECCN 1C991, instead of ECCN 1C353. Consequently, instead of requiring a license for export or reexport to all destinations, a license is required only to a much more limited number of destinations ( i.e., countries of concern for anti-terrorism (AT) reasons).

A specific example of the impact of this rule is a VSV-SARS-CoV-2 vaccine, which is a vesicular stomatitis virus modified by adding the gene for the coronavirus spike protein. Because this vaccine acts against SARS-CoV-2, which is not controlled under ECCN 1C351, it was not classified as an ECCN 1C991 vaccine, prior to the publication of this rule. Instead, it was controlled under ECCN 1C353, in spite of having received FDA approval and being packaged for patient use, because it contains genetic elements from VSV (a controlled virus). Consequently, this vaccine previously required a license to all destinations. Effective with the publication of this final rule, this vaccine is now controlled under ECCN 1C991 and requires a license only to designated countries of concern for AT reasons.

Shipments of items removed from eligibility for export, reexport or transfer (in-country) under a license exception or without a license ( i.e., under the designator “NLR”) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on January 7, 2021, pursuant to actual orders for export, reexport or transfer (in-country) to a foreign destination, may proceed to that destination under the previously applicable license exception or without a license (NLR) so long as they are exported, reexported or transferred (in-country) before March 8, 2021. Any such items not actually exported, reexported or transferred (in-country) before midnight, on March 8, 2021, require a license in accordance with this regulation.

“Deemed” exports of “technology” and “source code” removed from eligibility for export under a license exception or without a license (under the designator “NLR”) as a result of this regulatory action may continue to be made under the previously available license exception or without a license (NLR) before March 8, 2021. Beginning at midnight on March 8, 2021, such “technology” and “source code” may no longer be released, without a license, to a foreign national subject to the “deemed” export controls in the EAR when a license would be required to the home country of the foreign national in accordance with this regulation.

The Export Control Reform Act of 2018 (ECRA), as amended, codified at 50 U.S.C. 4801-4852, serves as the authority under which BIS issues this rule.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including: Potential economic, environmental, public health and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits and of reducing costs, harmonizing rules, and promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

The cost-benefit analysis required pursuant to Executive Orders 13563 and 12866, as described below, indicates that this rule is intended to improve national security as its primary direct benefit and that this benefit significantly outweighs the costs of this rule. Specifically, implementation, in a timely manner, of the Australia Group (AG) agreements described herein will enhance the national security of the United States by reducing the risk that international trade involving dual-use chemical and biological items would contribute to the proliferation of chemical and biological weapons of mass destruction. The principal objective of AG participating countries is to use licensing measures to ensure that exports of certain chemicals, biological agents, and dual-use chemical and biological manufacturing facilities and equipment, do not contribute to the proliferation of chemical and biological weapons of mass destruction, which has been identified as a threat to domestic and international peace and security. The AG achieves this objective by harmonizing participating countries' national export licensing measures. These controls are essential, given that the international chemical and biotechnology industries are a target for proliferators as a source of materials for chemical and biological weapons programs.

In calculating what costs (if any) will be imposed by this rule, BIS estimates that 10 fewer license applications will need to be submitted to BIS, annually, as a result of the implementation of the amendments described in this rule (see Rulemaking Requirements #2, below). By applying the cost-benefit analysis required under Executive Orders 13563 and 12866 to this rule, as described herein, BIS has determined that the benefits of this rule ( i.e., the enhancement of our national security through the fulfillment our multilateral obligations as an AG participating country, together with the anticipated reduction in the number of license applications that would have to be submitted to export certain items affected by this rule) significantly outweigh any potential costs ( i.e., the incidental costs to exporters of adjusting their export control procedures for certain items affected by this rule). Furthermore, consistent with the stated purpose of the amendments to ECCN 1C991 ( i.e., to enhance the national security of the United States), this rule meets the requirements set forth in the April 5, 2017, Office of Management and Budget (OMB) guidance implementing Executive Order 13771 (82 FR 9339, February 3, 2017), regarding what constitutes a regulation issued “with respect to a national security function of the United States,” and it is, therefore, exempt from the requirements of E.O. 13771.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid OMB Control Number. This rule contains the following collections of information subject to the requirements of the PRA. These collections have been approved by OMB under control numbers 0694-0088 (Simplified Network Application Processing System) and 0694-0096 (Five Year Records Retention Period). The approved information collection under OMB control number 0694-0088 includes license applications, among other things, and carries a burden estimate of 29.6 minutes per manual or electronic submission for a total burden estimate of 31,833 hours. The approved information collection under OMB control number 0694-0096 includes recordkeeping requirements and carries a burden estimate of less than 1 minute per response for a total burden estimate of 248 hours.

This rule contains minor clarifications to the EAR for certain vaccines controlled by ECCN 1C991.a for anti-terrorism (AT) reasons. Specifically, BIS expects the burden hours associated with these collections will decrease by 5 hours and 6 minutes ( i.e., 10 applications × 30.6 minutes per response) for a total estimated decrease in cost of $153 ( i.e., 5 hours and 6 minutes × $30 per hour). The $30 per hour cost estimate for OMB control numbers 0694-0088 and 0694-0096 is consistent with the salary data for export compliance specialists currently available through glassdoor.com ( glassdoor.com estimates that an export compliance specialist makes $55,280 annually, which computes to roughly $26.58 per hour). Consequently, the burden hours associated with exports of the items affected by this rule will remain within the range of the existing estimates currently associated with OMB control numbers 0694-0088 and 0694-0096.

Written comments and recommendations for the information collections referenced above should be sent within 30 days of the publication of this final rule to: www.reginfo.gov/public/do/PRAMain. Find these particular information collections by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018 (50 U.S.C. Sec. 4821), this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation and delay in effective date.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by the APA or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

For the reasons stated in the preamble, parts 742 and 774 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

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

On September 18, 2020 (85 FR 58310), the EPA proposed a partial approval and partial disapproval of the Arizona Department of Environmental Quality's (ADEQ) June 22, 2017 submittal of MCAQD's Analysis of Reasonably Available Control Technology for The 2008 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) State Implementation Plan (RACT SIP) and the associated negative declarations. On January 28, 2020 (85 FR 4928), the EPA proposed to conditionally approve MCAQD Rule 336 Surface Coating Operations and associated portions of the RACT Demonstration.

MCAQD's RACT SIP provides the County's demonstration that the applicable SIP for the MCAQD satisfies CAA section 182 RACT requirements for the 2008 8-hour ozone NAAQS. This conclusion is based on the County's analysis of SIP-approved requirements that apply to the following: (1) Source categories for which the EPA has issued a Control Techniques Guidelines (CTG) document, and (2) major non-CTG stationary sources of Volatile Organic Compounds (VOCs) or oxides of nitrogen (NO X ).

With respect to CTG source categories, MCAQD determined that it had sources subject to the CTGs covering solvent metal cleaning, industrial cleaning solvents, miscellaneous metal and plastic parts coating, can coating, fabric coating, film and foil coating, rotogravure and flexography, lithographic printing and letter press printing, wood furniture manufacturing operations, storage of petroleum liquids, tank truck gasoline loading terminals, bulk gasoline plants, gasoline tank trucks and vapor collection systems, and gasoline service stations. MCAQD submitted for SIP approval six rules to implement RACT for these CTG categories: Rules 336, 342, 350, 351, 352, and 353.

On February 26, 2020 (85 FR 10986), the EPA conditionally approved Rules 350, 351, 352, and 353 into the SIP, and also conditionally approved the associated CTG source categories for the MCAQD 2016 RACT SIP: “Control of Volatile Organic Emissions from Storage of Petroleum Liquids in Fixed-Roof Tanks” (EPA-450/2-77-036), “Control of Volatile Organic Emissions from Petroleum Liquid Storage in External Floating Roof Tanks” (EPA-450/2-78-047), “Control of Hydrocarbons from Tank Truck Gasoline Loading Terminals” (EPA-450/2-77-026), “Control of Volatile Organic Emissions from Bulk Gasoline Plants” (EPA-450/2-77-035), “Control of Volatile Organic Compound Leaks from Gasoline Tank Trucks and Vapor Collection Systems” (EPA-450/2-78-051), and “Design Criteria for Stage I Vapor Control Systems—Gasoline Service Stations” (EPA-450/R-75-102). MCAQD has committed to correct the EPA's identified deficiencies, and ADEQ has committed to submit the updated rules within one year of the EPA's final conditional approval. If MCAQD corrects the identified deficiencies and the EPA approves the updated rules, MCAQD will have met its RACT obligation for these rules, and the associated CTGs. We are not acting on rules 350, 351, 352, and 353, or the associated CTG categories in the MCAQD's 2016 RACT SIP in this action.

On August 27, 2019 (84 FR 44701), the EPA approved Rule 342 into the SIP, finding that the rule met current RACT. This rulemaking also approved Rule 337, which had been submitted earlier and was not part of the 2016 RACT SIP submittal. Although we approved Rules 337 and 342, and found that they established RACT level controls, we did not in that action approve the 2016 RACT SIP for the associated CTG source categories. On September 18, 2020 (85 FR 58310), the EPA proposed to find that Rules 331, 337, and 342 establish RACT-level controls for the sources within the following CTG source categories: “Control of Volatile Organic Emissions from Solvent Metal Cleaning” (EPA-450/2-77-022), “Control Techniques Guidelines: Industrial Cleaning Solvents” (EPA-453/R-06-001), “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VIII: Graphic Arts—Rotogravure and Flexography” (EPA-430/2-78-033) and “Offset Lithographic Printing and Letterpress Printing” (EPA-453/R06-002), and “Control of Volatile Organic Compound Emissions from Wood Furniture Manufacturing Operations” (EPA-453/R-96-007).

On January 28, 2020 (85 FR 4928), the EPA proposed conditional approval of Rule 336 into the SIP, as well as conditional approval of the associated eight CTG source categories for the County's 2016 RACT SIP: “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks” (EPA-450/2-77-008), “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume III: Surface Coating of Metal Furniture” (EPA-450/2-77-032), “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume V: Surface Coating of Large Appliances” (EPA-450/2-77-034), “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VI: Surface Coating of Miscellaneous Metal Parts and Products” (EPA-450/2-78-15), “Control Techniques Guidelines for Metal Furniture Coatings” (EPA- 453/R-07-005), “Control Techniques Guidelines for Large Appliance Coatings” (EPA-453/R07-004), “Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings” (EPA-453/R-08-003), and “Control Techniques Guidelines For Paper, Film, and Foil Coatings” (EPA-453/R-07-003). MCAQD has committed to correct the EPA's identified deficiencies, and ADEQ has committed to submit the updated rule within one year of the EPA's final conditional approval. If MCAQD corrects the identified deficiencies and the EPA approves the updated rule, the County will have met its RACT obligation for this rule, and the associated CTGs.

On September 18, 2020 (85 FR 58310), we proposed to approve negative declarations, including negative declarations for some of the source categories covered by Rule 336. Specifically, of eight CTG source categories addressed by Rule 336 (as listed in the prior paragraph), our September proposal proposed to approve negative declarations for five of them: “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume III: Surface Coating of Metal Furniture” (EPA-450/2-77-032), “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume V: Surface Coating of Large Appliances” (EPA-450/2-77-034), “Control Techniques Guidelines for Metal Furniture Coatings” (EPA-453/R-07-005), “Control Techniques Guidelines for Large Appliance Coatings” (EPA-453/R07-004), and “Control Techniques Guidelines For Paper, Film, and Foil Coatings” (EPA-453/R-07-003). In addition, it proposed approval of negative declarations for the coils, paper, automobile and light-duty truck portions of the CTG “Control of Volatile Organic Emissions from Existing Stationary Sources— Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks” (EPA-450/2-77-008). In the same notice, the EPA also proposed to disapprove negative declarations for the Aerospace Coating and Industrial Adhesives source categories, because there are applicable sources in the Maricopa County portion of the Phoenix-Mesa ozone nonattainment area.

With respect to major non-CTG stationary sources of Volatile Organic Compounds (VOCs) or oxides of nitrogen (NO X ), MCAQD determined it had RACT rules covering these sources. On September 18, 2020 (85 FR 58310), the EPA proposed to approve the County's RACT determination that it has RACT rules covering major non-CTG sources of VOC and proposed to disapprove the RACT determination that it has RACT rules covering major sources of NO X .

The proposed actions and associated technical support documents contain more information on the basis for this rulemaking and on our evaluation of the submittal.

The EPA's proposed actions provided 30-day public comment periods. During the comment periods for the two proposed actions, we received no comments. Therefore, as authorized in section 110(k)(4) of the Act, the EPA is conditionally approving into the Arizona SIP, Rule 336 and MCAQD's RACT Demonstration for the 2008 8-hr ozone NAAQS with respect to the following Control Techniques Guidelines (CTGs), as described in our proposal:

1. “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks” EPA-450/2-77-008, May 1977, cans and fabrics portions only. 1

2. “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VI: Surface Coating of Miscellaneous Metal Parts and Products,” EPA-450/2-78-15, June 1978.

3. “Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings,” EPA-453/R-08-003, September 2008. 2

If the MCAQD and the ADEQ submit the required rule revisions to Rule 336 by the specified deadline, and the EPA approves the submission, then the identified deficiencies will be cured. However, if MCAQD, through the ADEQ, fails to submit these revisions to Rule 336 within the required timeframe, the conditional approval will be treated as a disapproval for Rule 336 and the RACT demonstration for the three CTG categories listed above.

Also, as authorized in sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a partial approval and partial disapproval of the remainder of the RACT SIP and associated negative declarations, as proposed.

We are finalizing a partial disapproval with respect to the portions of the RACT SIP addressing RACT for major sources of NO X , and CTG source categories for Aerospace Coating and Industrial Adhesives (“National Emission Standards for Hazardous Air Pollutants for Source Categories: Aerospace Manufacturing and Rework” (59 FR 29216), “Control of Volatile Organic Compound Emissions from Coating Operations at Aerospace Manufacturing and Rework Operations” (EPA-453/R-97-004), and “Control Techniques Guidelines for Miscellaneous Industrial Adhesives” (EPA-453/R-08-005)). 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 deficiencies.

The EPA is finalizing a partial approval of the RACT SIP with respect to all remaining source categories, as proposed. This includes approval of the County's negative declarations, with the exception of the three disapproved negative declarations, and the County's RACT certifications for the following CTG source categories: “Control of Volatile Organic Emissions from Solvent Metal Cleaning” (EPA-450/2-77-022), “Control Techniques Guidelines: Industrial Cleaning Solvents” (EPA-453/R-06-001), “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VIII: Graphic Arts—Rotogravure and Flexography” (EPA-430/2-78-033) and “Offset Lithographic Printing and Letterpress Printing” (EPA-453/R06-002), and “Control of Volatile Organic Compound Emissions from Wood Furniture Manufacturing Operations” (EPA-453/R-96-007).

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the MCAQD rule described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's conditional approval, and will be incorporated by reference in the next update to the SIP compilation. 3 The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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, partial disapproval, and partial conditional approval does not in-and-of itself create any new information collection burdens, but simply partially approves, partially disapproves, and partially conditionally approves 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 partial disapproval, and partial conditional approval does not in-and-of itself create any new requirements but simply partially approves, partially disapproves, and partially conditionally approves 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, partially disapproves, and partially conditionally approves 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 approving, partially disapproving, and partially conditionally approving 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, partial disapproval, and partial conditional approval does not in-and-of itself create any new regulations, but simply partially approves, partially disapproves, and partially conditionally approves 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 March 8, 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)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

You may be potentially affected by this action if you conduct Lead-Based Paint (LBP) activities in accordance with 40 CFR 745.227; if you operate a training program required to be accredited under 40 CFR 745.225; if you are a firm or individual who must be certified to conduct LBP activities in accordance with 40 CFR 745.226; or if you conduct rehabilitations or maintenance activities in most pre-1978 housing that is covered by a Federal housing assistance program in accordance with 24 CFR part 35. You may also be affected by this action if you operate a laboratory that is recognized by EPA's National Lead Laboratory Accreditation Program (NLLAP) in accordance with 40 CFR 745.90, 745.223, 745.227, 745.327. You may also be affected by this action, in accordance with 40 CFR 745.107 and 24 CFR 35.88, as the seller or lessor of target housing, which is most pre-1978 housing. See 40 CFR 745.103 and 24 CFR 35.86. 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:

Real estate (NAICS code 531), e.g., lessors of residential buildings and dwellings, residential property managers.

Other technical and trade schools (NAICS code 611519), e.g., training providers.

Engineering services (NAICS code 541330) and building inspection services (NAICS code 541350), e.g., dust sampling technicians.

Lead abatement professionals (NAICS code 562910), e.g., firms and supervisors engaged in LBP activities.

Testing laboratories (NAICS code 541380) that analyze dust wipe samples for lead.

Federal agencies that own residential property (NAICS code 92511, 92811).

Property owners, and property owners that receive assistance through Federal housing programs (NAICS code 531110, 531311).

EPA is finalizing this rule under sections 401 and 402 of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601 et seq., as created by Title X of the Housing and Community Development Act of 1992 (also known as the “Residential Lead-Based Paint Hazard Reduction Act of 1992” or “Title X”) (Pub. L. 102-550) (Ref. 1).

TSCA section 402 (15 U.S.C. 2682) directs EPA to regulate LBP activities, which include risk assessments, inspections, and abatements. TSCA section 401 (15 U.S.C. 2681) defines abatements as “measures designed to permanently eliminate lead-based paint hazards” and the term includes “all . . . cleanup . . . and post[-]abatement clearance testing activities” (15 U.S.C. 2681(1)). EPA is further directed, in promulgating the regulations, to “tak[e] into account reliability, effectiveness, and safety” (15 U.S.C. 2682(a)(1)).

Clearance levels are defined as values that indicate the amount of lead in dust on a surface following completion of an abatement activity (40 CFR 745.223). Surface dust is collected via dust wipe samples that are sent to a laboratory for analysis. The post-abatement dust-lead levels must be below the clearance levels, which are the standards used to evaluate the effectiveness of post-abatement cleanings. If the levels are not below the clearance levels, the components ( i.e. floors, window sills, etc.) represented by the failed sample(s) shall be recleaned and retested. In 2001, EPA originally established DLCL of 40 μg/ft 2 for floors, 250 μg/ft 2 for window sills and 400 μg/ft 2 for window troughs in a final rule entitled, “Identification of Dangerous Levels of Lead.” See 66 FR 1206, January 5, 2001 (FRL-6763-5), also known as the 2001 LBP Hazards Rule (Ref. 2).

On June 24, 2020, EPA proposed to revise the DLCL for window sills and floors. EPA is now finalizing its proposal to lower the DLCL set by the 2001 LBP Hazards Rule, from 40 μg/ft 2 to 10 μg/ft 2 for floor dust and from 250 μg/ft 2 to 100 μg/ft 2 for window sill dust. As explained elsewhere in this preamble, EPA is not revising the DLCL for window troughs at this time. The revised DLCL of 10 μg/ft 2 on floors and 100 μg/ft 2 on window sills will not apply retroactively; that is, this final rule will not impose retroactive requirements on regulated entities that have previously performed post-abatement clearance testing using the original DLCL of 40 μg/ft 2 on floors or 250 μg/ft 2 on window sills. While EPA's dust-lead hazard standards (DLHS) do not compel property owners to evaluate their property for hazards or take control actions (40 CFR 745.61(c)), if someone opts to perform a lead-based paint activity such as an abatement, then EPA's regulations set requirements for doing so (40 CFR 745.220(d)). This final rule requires individuals and firms who perform an abatement to achieve values below the DLCL of 10 μg/ft 2 on floors and 100 μg/ft 2 on window sills at the end of the abatement, which the 2019 rule updating the DLHS (“Review of the Dust-Lead Hazard Standards and the Definition of Lead-Based Paint,” (84 FR 32632, July 9, 2019) (FRL-9995-49), also known as the 2019 DLHS Rule) did not require under EPA's regulations (Ref. 3).

Reducing childhood lead exposure is an EPA priority. EPA continues to collaborate with its federal partners to reduce lead exposures and, in so doing, to explore ways to strengthen its relationships and partnerships with states, tribes, and localities. In December 2018, the President's Task Force on Environmental Health Risks and Safety Risks to Children released the Federal Action Plan to Reduce Childhood Lead Exposures and Associated Health Impacts (Lead Action Plan) (Ref. 4) to enhance the Federal Government's efforts to identify and reduce lead exposure while ensuring children impacted by such exposure are getting the support and care they need to prevent or mitigate any associated health effects. The Lead Action Plan is helping Federal agencies to work strategically and collaboratively to reduce exposure to lead and improve children's health. This final rule, which revises the DLCL, is an action that EPA committed to undertake in the Lead Action Plan (Ref. 5).

In the 2001 LBP Hazards Rule, EPA first established the DLHS that identify dust-lead hazards and the DLCL used to evaluate the effectiveness of cleaning following an abatement. Abatements are designed to permanently eliminate LBP hazards including dust-lead hazards.

In 2019, EPA reevaluated the DLHS (Ref. 3). Based on that revaluation, the final rule revised the DLHS from 40 μg/ft 2 and 250 μg/ft 2 to 10 μg/ft 2 and 100 μg/ft 2 on floors and window sills, respectively. EPA based that decision on the best available science, the Agency's review of public comments received on the proposal for that rule, and consideration of the potential for risk reduction, including whether such actions were achievable. At that time, EPA focused its rulemaking on the DLHS and the definition of LBP, which were the two actions that EPA had agreed to undertake in response to a 2009 citizen petition (Ref. 6). In that rulemaking, EPA did not propose to change DLCL in 40 CFR part 745, subpart L.

However, EPA recognizes the important relationship between the DLHS and DLCL: The DLHS are used to identify dust-lead hazards and the DLCL are used to demonstrate that specific abatement activities have effectively abated those hazards. The purpose of this final rule is to update the DLCL so that attaining these levels demonstrates elimination of dust-lead hazards under the revised 2019 DLHS. Based on the Agency's careful review of the public comments received on the proposal, EPA is finalizing its proposal to revise the DLCL to 10 μg/ft 2 for floors and to 100 μg/ft 2 for window sills. EPA finds that attaining these DLCL abates the dust-lead hazards identified under the 2019 standards, taking into account reliability, effectiveness, and safety. EPA has not been persuaded that elimination of the dust-lead hazards (15 U.S.C. 2681(1)) while accounting for reliability, effectiveness, and safety (15 U.S.C. 2682(a)(1)) justifies selecting different clearance levels. Although EPA is not persuaded to deviate from 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills for the DLCL, the Agency did consider whether potential reliability, effectiveness, or safety factors supported different clearance levels. In particular, EPA considered the achievability of 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills in relation to their application in lead risk reduction programs, how the lower dust-lead loadings can be reliably detected by laboratories, the effectiveness of these levels at eliminating dust-lead hazards, and consistency with the revised 2019 standards and across the Federal Government.

EPA did not propose to change the post-abatement clearance level in 40 CFR 745, subpart L for window troughs, and is not modifying the level at this time. Because the revised 2019 standards updated the DLHS for floors and window sills and because EPA wanted to act as expeditiously as possible to update the DLCL in recognition of the updated DLHS for floors and window sills, EPA believes it has reasonably focused this rulemaking to update the DLCL so that attaining these levels demonstrates elimination of dust-lead hazards under the revised 2019 standards. As a result, and after careful review of the public comments, EPA is finalizing its proposal to only revise the DLCL for floors and window sills at this time.

EPA has prepared an Economic Analysis of the potential incremental impacts associated with this rulemaking (Ref. 7). The analysis is focused on a subset of the target housing ( i.e., most pre-1978 housing) and child-occupied facilities where abatement activities are subject to this rule. The analysis, which is available in the docket, estimates incremental costs and benefits for abatements where a dust-lead level is between the original DLCL (40 μg/ft 2 for floors and 250 μg/ft 2 for window sills) and alternate levels, including the revised DLCL of 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills. Based on data from the U.S. Department of Housing and Urban Development (HUD), EPA estimates that the vast majority of floors and window sills are already clearing at levels below the revised DLCL of 10 μg/ft 2 and 100 μg/ft 2 after the completion of an abatement.

EPA identified in the proposal that there was uncertainty about whether some state and local regulations already use the same levels in EPA's DLHS as DLCL, and about whether some abatement contractors voluntarily conduct additional cleaning to ensure that the dust-lead levels fall below the DLHS following an abatement. To the extent that these situations occur, then the costs and benefits of meeting the DLCL estimated in the Economic Analysis would be attributable to the 2019 DLHS Rule and not to this regulation. For the final rule Economic Analysis, EPA contacted states with authorized lead programs and found that several have already revised or are in the process of revising their regulations to adopt clearance levels of 10 μg/ft 2 on floors and 100 μg/ft 2 on window sills. In addition, one locality has adopted clearance levels below the original federal levels of 40 μg/ft 2 on floors and 250 μg/ft 2 on window sills. Abatements in these jurisdictions will clear below the levels of 10 μg/ft 2 on floors and 100 μg/ft 2 on window sills even without revisions to the federal clearance levels. As a result, EPA has narrowed the range of estimated benefits and costs in the Economic Analysis of the final rule by including abatements in these jurisdictions in the baseline. EPA estimates that 57% to 61% of the abatements otherwise affected by the clearance levels in this rule will take place in these jurisdictions. As a result, the Economic Analysis does not account for the benefits and costs of these events. The information on state regulations and its use in the final rule analysis is described in sections 2.3 and 3.1.3(C) of the Economic Analysis. EPA did not obtain any information indicating the extent to which abatement contractors in other states and localities (where the clearance levels are still 40 μg/ft 2 on floors and 250 μg/ft 2 on window sills) are voluntarily using 10 μg/ft 2 on floors and 100 μg/ft 2 on window sills as clearance levels. Instead, section 8.3 of the Economic Analysis presents sensitivity analyses reflecting different assumptions about abatement contractor actions in the baseline. In order to expand the range of possible estimates, EPA's final estimates of the incremental impacts of this action include a lower bound assumption that half of abatement contractors are voluntarily applying the hazard standards as clearance levels.

As in the Economic Analysis for the 2019 DLHS Rule, there is also uncertainty about the blood lead levels at which investigative actions and lead hazard reduction activities might be taken and the exact nature of these activities. Most states set a blood lead level at which an environmental investigation is recommended or required. Based on guidance posted on environmental and public health department websites for each state, these blood lead action levels range from 5 micrograms per deciliter (μg/dL) to 25 μg/dL. In eight states (AK, IN, MD, ME, MI, NE, OR, and PA) the action level for an environmental investigation is a blood lead level of 5 μg/dL. Fourteen states (CA, GA, IL, KS, LA, NC, NH, NJ, NV, OH, TX, VT, WA, and WV) and the District of Columbia use an action level of 10 μg/dL. Nineteen states (AL, AZ, CO, DE, FL, HI, IA, ID, KY, MN, MO, MS, NM, NY, RI, SC, UT, VA, and WI) use an action level of 15 μg/dL. Four states (CT, MA, OK, and TN) use an action level of 20 μg/dL or above. Five states (AR, MT, ND, SD, and WY) have no policy recommendation or requirement for the blood lead level at which an environmental investigation should be conducted. The differences between states may reflect the prevalence of lead hazards in each state and their relative prioritization of lead hazards and other funding needs.

EPA's analysis includes two scenarios for the number of instances where clearance testing is performed that will be affected by the rule: (1) Where dust-lead loadings are tested because a child's blood lead level equals or exceeds 5 μg/dL (the current Centers for Disease Control and Prevention (CDC) blood lead reference value) (Ref. 8), and a loading is at or above the DLHS; and (2) where dust-lead loadings are tested because a child's blood lead level equals or exceeds the action level set by the state the child lives in, and a loading is at or above the DLHS.

Consequently, the Economic Analysis includes a range for the number of abatement events affected by this rule revising the clearance levels. The upper end of the range is approximately 11,000 events, which assumes that when a child's blood lead level equals or exceeds 5 μg/dL an environmental investigation occurs that includes testing the dust-lead loadings in their home. The low end of the range is approximately 1,200 events, which assumes that dust-lead loading testing occurs when a child's blood lead level equals or exceeds the state blood lead level action level. The benefit and cost estimates are highly sensitive to this range. The following is a brief outline of the estimated incremental impacts of this rulemaking.

Incremental actions to meet the revised DLCL of 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills after abatements where a baseline post-intervention loading is between the original DLCL of 40 μg/ft 2 for floors and 250 μg/ft 2 for window sills and the revised DLCL would reduce exposure to lead, resulting in benefits from avoided adverse health effects. In the Economic Analysis of this rule, EPA quantified the benefits of reduced lead exposure to children from avoided Intelligence Quotient (IQ) loss as an indicator of improved cognitive function and, hence, lifetime earnings. For the subset of adverse health effects where these effects were quantified, the estimated annualized benefits are ≤$13 million to ≥$202 million per year using a 3% discount rate, and ≤$3 million to ≥$44 million per year using a 7% discount rate, with the range representing the uncertainties about the blood lead levels at which an environmental investigation will be triggered and about the relationship between changes in blood lead levels and IQ. The “≤” and “≥” symbols are intended to convey uncertainty in the results. They do not mean that the results are unbounded ( i.e., that the true values could be zero on the lower end or infinity on the higher end). There are additional unquantified benefits due to other avoided adverse health or behavioral effects in children, including attention-related behavioral problems, greater incidence of problem behaviors, decreased cognitive performance, reduced post-natal growth, delayed puberty, decreased hearing, and decreased kidney function (Ref. 9).

This rule is estimated to result in costs of ≤$2 million to ≥$14 million per year using either a 3% or a 7% discount rate. The “≤” and “≥” symbols are intended to convey uncertainty in the results. They do not mean that the results are unbounded ( i.e., that the true values could be zero on the lower end or infinity on the higher end). In the events affected by this rule, incremental costs are incurred for specialized cleaning used to reduce dust-lead loadings to below the clearance levels and for retesting lead levels. In some instances, floors will also be sealed, overlaid or replaced, or window sills will be sealed or repainted.

EPA estimates that this rule may impact ≤1,240 to ≥10,215 small abatement firms; ≤1,025 to ≥8,977 may have cost impacts estimated at less than 1% of revenues, ≤113 to ≥990 may have impacts estimated between 1% and 3%, and ≤28 to ≥240 may have impacts estimated at greater than 3% of revenues. The “≤” and “≥” symbols are intended to convey uncertainty in the results. They do not mean that the results are unbounded ( i.e., that the true values could be zero on the lower end or infinity on the higher end). EPA's analysis assumes that in all cases the costs are borne entirely by the lead paint abatement firm (as opposed to being passed through to the property owner). However, it is more likely that some, or perhaps even most, of these costs will be passed on to the property owners.

This rule would increase the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population.

The rule would not have any significant or unique effects on small governments, or federalism or tribal implications.

Lead exposure has the potential to impact individuals of all ages, but it is especially harmful to young children because the developing brain can be particularly sensitive to environmental contaminants (Refs. 10, 11). Exposure to lead is associated with increased risk of a number of adverse health or behavioral effects in children, including decreased cognitive performance, greater incidence of problem behaviors, and increased diagnoses of attention-related behavioral problems (Ref. 9). Furthermore, floor dust in homes and child-care facilities is a significant route of exposure for young children given their mouthing and crawling behavior and proximity to the floor. Therefore, the environmental health or safety risk addressed by this action may have a disproportionate effect on children (Ref. 12).

Consistent with the Agency's Policy on Evaluating Health Risks to Children (Ref. 13), EPA has evaluated the health effects in children of decreased lead exposure from the lowering of the DLCL. EPA prepared a Technical Support Document for this rulemaking, which models dust-lead exposures and estimates both blood lead levels and associated impacts on IQ at the revised DLCL of 10 μg/ft 2 and 100 μg/ft 2 versus the original DLCL of 40 μg/ft 2 and 250 μg/ft 2 on floors and window sills, respectively (Ref. 12). While no safe level of lead in blood has been identified (Ref. 4), the reductions in children's blood-lead levels resulting from this rule are expected to reduce the risk of adverse cognitive and developmental effects in children. The Technical Support Document shows that health risks to young children decrease with decreasing dust-lead levels.

Lead exposure has the potential to impact individuals of all ages, but it is especially harmful to young children because the developing brain can be particularly sensitive to environmental contaminants (Ref. 10, 11). Ingestion of lead-contaminated dust is a major contributor to blood lead levels in children, particularly those who reside in homes built prior to 1978 (Ref. 14, 15). Infants and young children can be more highly exposed to lead through floor dust at home and in child-care facilities because they often put their hands and other objects that can have lead from dust on them into their mouths (Ref. 11).

The best available science informs EPA's understanding of the relationships between exposures to dust-lead loadings, blood lead levels, and adverse human health effects. These relationships are summarized in the Integrated Science Assessment for Lead (“Lead ISA”) (Ref. 16), which EPA released in June 2013, and the National Toxicology Program (NTP) Monograph on the Health Effects of Low-Level Lead, which was released by the Department of Health and Human Services in June 2012 (“NTP Monograph”) (Ref. 9).The Lead ISA is a synthesis and evaluation of scientific information on the health and environmental effects of lead, including cognitive function decrements in children (Ref. 16).

The NTP, in 2012, completed an evaluation of existing scientific literature to summarize the scientific evidence regarding potential health effects associated with low-level lead exposure as indicated by blood lead levels less than 10 μg/dL. The evaluation specifically focused on the life stage (prenatal, childhood, adulthood) associated with these potential health effects, and on epidemiological evidence at blood lead levels less than 10 μg/dL, because health effects at higher blood lead levels are well-established. The NTP concluded that there is sufficient evidence for adverse health effects in children and adults at blood lead levels less than 10 μg/dL, and less than 5 μg/dL as well. The NTP concluded that there is sufficient evidence that blood lead levels less than 10 μg/dL are associated with delayed puberty, decreased hearing, and reduced post-natal growth. In children, there is sufficient evidence that blood lead levels less than 5 μg/dL are associated with increased diagnoses of attention-related behavioral problems, greater incidence of problem behaviors, and decreased cognitive performance. There is limited evidence that blood lead levels less than 5 μg/dL are associated with delayed puberty and decreased kidney function in children 12 years of age and older (Ref. 9).

For further information regarding lead and its health effects, and federal actions taken to eliminate LBP hazards in housing, see the Lead Action Plan, the Technical Support Document for this rulemaking and the background section of the Lead Renovation, Repair and Painting Rule, issued on April 22, 2008 (also referred to as the “RRP Rule,” (73 FR 21692, April 22, 2008) (FRL-8355-7), codified at 40 CFR part 745, subpart E) (Ref. 4, 12, 17).

In 1992, Congress enacted Title X of the Housing and Community Development Act (also known as the Residential Lead-Based Paint Hazard Reduction Act of 1992 or “Title X”) (Ref. 1) in an effort to eliminate LBP hazards. Section 1018 of Title X required EPA and HUD to promulgate regulations for disclosure of any known LBP or any known LBP hazards in target housing offered for sale or lease (known as the “Disclosure Rule”) (Ref. 18). (“Target housing” is defined in section 401(17) of TSCA, 15 U.S.C. 2681(17).) On March 6, 1996, the Disclosure Rule was codified at 40 CFR part 745, subpart F, for EPA, and 24 CFR part 35, subpart A, for HUD. It requires information disclosure activities before a purchaser or lessee is obligated under a contract to purchase or lease target housing.

TSCA section 402(a) directs EPA to promulgate regulations covering LBP activities to ensure persons performing these activities are properly trained, that training programs are accredited, and that contractors performing these activities are certified. On August 29, 1996, EPA published final regulations under TSCA section 402(a) that govern LBP inspections, risk assessments, and abatements in target housing and child occupied facilities (COFs) (also referred to as the “LBP Activities Rule,” codified at 40 CFR part 745, subpart L) (Ref. 19). The definition of “child-occupied facility” is codified at 40 CFR 745.223 for purposes of LBP activities. Regulations promulgated under TSCA section 402(a) contain standards for performing LBP activities, while taking into account reliability, effectiveness, and safety.

TSCA section 402(c)(3) directs EPA to promulgate regulations covering renovation or remodeling activities in target housing, public buildings constructed before 1978, and commercial buildings that create LBP hazards. EPA issued the final RRP Rule under TSCA section 402(c)(3) on April 22, 2008 (Ref. 17).

TSCA section 403, 15 U.S.C. 2683, gives EPA a related authority to carry out responsibilities for addressing LBP hazards under the Disclosure and LBP Activities Rules. TSCA section 403 requires EPA to promulgate regulations that “identify . . . lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil” for purposes of TSCA Title IV and the Residential Lead-Based Paint Hazard Reduction Act of 1992. LBP hazards, under TSCA section 401, are defined as conditions of LBP and lead-contaminated dust and soil that “would result” in adverse human health effects (15 U.S.C. 2681(10)). TSCA section 401 defines lead-contaminated dust as “surface dust in residential dwellings” that contains lead in excess of levels determined “to pose a threat of adverse health effects” (15 U.S.C. 2681(11)). The 2001 LBP Hazards Rule established the DLHS to identify conditions of lead-contaminated dust that would result in adverse human health effects. These DLHS were revised in the 2019 DLHS Rule and are used to identify dust-lead hazards.

The 2001 LBP Hazards Rule also established the DLCL (also referred to as “clearance levels” and sometimes referred to elsewhere as “clearance standards”) under TSCA section 402(a). These clearance levels are used to evaluate the effectiveness of cleaning following an abatement. As defined in TSCA section 401 abatements are designed to permanently eliminate LBP hazards, including dust-lead hazards. For purposes of the DLCL, post-clearance dust-lead loadings below the DLHS indicate permanent elimination of dust-lead hazards.

Pursuant to TSCA section 404, 15 U.S.C. 2684, and EPA's regulations at 40 CFR part 745, subpart Q, interested states, territories, and federally recognized tribes may apply for and receive authorization to administer their own LBP Activities and RRP programs. EPA's regulations are intended to reduce exposures, and the LBP Activities regulations in particular are intended to identify and mitigate hazardous levels of lead. Authorized programs must be “at least as protective of human health and the environment as the corresponding federal program,” and must provide for “adequate enforcement.” See 40 CFR 745.324(e)(2). The 2019 DLHS Rule revised the regulation to improve the process for states, federally recognized tribes, and territories with authorized LBP Activities programs to demonstrate that their programs meet the requirements of 40 CFR 745.325 (by submitting a report pursuant to 40 CFR 745.324(h) with such demonstration within two years of the effective date of a revision).

HUD's Lead Safe Housing Rule (LSHR) is codified in 24 CFR part 35, subparts B through R. The LSHR implements sections 1012 and 1013 of Title X. Under Title X, HUD has specific authority to control LBP and LBP hazards in federally-assisted target housing (including COFs that are part of an assisted target housing property covered by the LSHR, because they are part of the common area of the property). The LSHR aims in part to ensure that federally-owned or federally-assisted target housing is free of LBP hazards (Ref. 20). Under the LSHR, when a child under age six with an elevated blood lead level residing in certain categories of assisted target housing is identified, the “designated party” and/or the housing owner shall undertake certain actions.

The DLCL finalized in this regulation support the LBP Activities program, and apply to target housing ( i.e., most pre-1978 housing) and COFs ( i.e., pre-1978 non-residential properties where children six years of age or under spend a significant amount of time, such as child care centers and kindergartens). Apart from COFs, no other public and commercial buildings are covered by this rule. For further background on the types of buildings to which the LBP Activities program apply, refer to the proposed and final 2001 LBP Hazards Rule (Ref. 2, 21).

The DLCL are incorporated into the post-abatement work practices outlined in the LBP Activities Rule (40 CFR 745.227). LBP Activities regulations apply to inspections, risk assessments, project design, and abatement activities. Pre-abatement dust-lead testing occurs during a risk assessment, often initiated to comply with HUD's LSHR or in response to discovery of a child with a blood lead level that equals or exceeds the current CDC blood lead reference value (Ref. 9), or the action level set by the state the child lives in. The objective of a risk assessment is to determine, and then report, the existence, nature, severity, and location of LBP hazards in residential dwellings and COFs through an on-site investigation. During a risk assessment, a risk assessor collects environmental samples that include dust wipe samples from floors and window sills that are sent to an NLLAP-recognized laboratory for analysis. NLLAP is an EPA program that defines the minimum requirements and abilities that a paint chips, dust, or soil testing laboratory must meet to attain EPA recognition as an accredited lead testing laboratory. Once the samples are analyzed by an NLLAP-recognized laboratory, the risk assessor compares the results of the dust wipe samples against the DLHS. If the dust-lead loadings from the samples are at or above the applicable DLHS, indicating LBP hazards are present, the risk assessor will identify acceptable options for controlling the hazards in the respective property, which may include abatements and/or interim controls. TSCA section 401 defines abatements as, “measures designed to permanently eliminate lead-based paint hazards,” (15 U.S.C. 2681(1)), while interim controls are “designed to temporarily reduce human exposure or likely exposure to lead-based paint hazards,” (40 CFR 745.83 and 745.223). These options should allow the property owner to make an informed decision about what actions should be taken to protect the health of current and future residents. Risk assessments can be performed only by certified risk assessors.

The DLCL are used to evaluate the effectiveness of a cleaning following an abatement. After an abatement is complete, a risk assessor or inspector determines whether there are any “visible amounts of dust, debris or residue,” which will need to be removed before clearance sampling takes place (40 CFR 745.227(e)(8)). Once the area is free of visible dust, debris and residue, and one hour or more after final post-abatement cleaning ceases, clearance sampling for dust-lead (via dust wipe samples) can take place and will be conducted “using documented methodologies that incorporate adequate quality control procedures” (40 CFR 745.227(e)(8)). Only a properly trained and certified risk assessor or inspector can conduct clearance sampling. A NLLAP-recognized laboratory must analyze the dust wipe samples and a risk assessor or inspector must compare the results from window sills and floors (and window troughs) to the appropriate DLCL. Every sample must test below the corresponding DLCL, and if a single sample is equal to or greater than the corresponding DLCL, then the abatement fails clearance and the components represented by the sample must be recleaned and retested (40 CFR 745.227(e)(8)). After the dust wipe samples show dust-lead loadings below the DLCL, an abatement report is prepared, copies of any reports required under the LBP Activities Rule are provided to the building owner (and to potential lessees and purchasers under the LBP Disclosure Rule by those building owners or their agents), and all required records are retained by the abatement firm or by the individuals who developed each report.

Achieving the DLCL after an abatement does not mean that the home is free from all exposure to lead, since exposures are dependent on many factors. For instance, the physical condition of a property may change over time, resulting in an increased exposure. EPA will continue coordinating with other Federal agencies to encourage best practices for occupants of post-abatement properties to conduct ongoing maintenance that will help prevent dust-lead from being reintroduced on previously cleared surfaces.

The proposed rule provided a 60-day public comment period, ending on August 24, 2020. EPA received public comments from 28 commenters during the comment period. Comments were received from private citizens, state/local governments (including state health departments), potentially affected lead-based paint businesses, non-governmental organizations, environmental and public health advocacy groups and an individual from an academic institution. Several commenters, including individuals, non-governmental organizations, and state/local governments supported the DLCL as proposed at 10 ug/ft 2 for floors and 100 ug/ft 2 for window sills. A number of commenters requested that EPA promulgate DLCL lower than the proposed levels of 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills. Some commenters specifically suggested that EPA should revise the DLCL for window sills to 40 μg/ft 2 or lower and/or 5 μg/ft 2 for floors. One commenter explained that within the considered options for the proposal, EPA should have analyzed a floor level lower than 10 µg/ft 2 and that the Agency must consider a lower level for floors before finalizing the rule. Other commenters expressed concern over lower DLCL and that contractors may not be able to meet lower clearance requirements without additional work in some cases, which may make it difficult to attract qualified contractors. A few commenters discussed the discrepancy between the revised 2019 DLHS and the original DLCL from 2001 and noted that due to the inconsistency an abatement could be cleared at levels higher than the DLHS, which is confusing and less protective. In this preamble, EPA has responded to the major comments relevant to this final rule. In addition, the more comprehensive version of EPA's response to comments related to this final action can be found in the Response to Comments document (Ref. 22).

To the extent that commenters discussed issues with the DLHS in their public comments, EPA has previously promulgated the DLHS in the recent 2019 rulemaking and notes that within this DLCL rule, EPA is not re-opening or reconsidering the recently revised DLHS.

The purpose of this rulemaking is to update the DLCL so that attaining these clearance levels demonstrates elimination of dust-lead hazards under the revised 2019 standards. EPA carefully considered all the public comments related to the proposed rule and is finalizing its proposal to lower the DLCL for floors from 40 μg/ft 2 to 10 μg/ft 2 and to lower the DLCL for window sills from 250 μg/ft 2 to 100 μg/ft 2 . As previously mentioned, because there is no DLHS for window troughs, EPA is not revising the DLCL for window troughs at this time.

As EPA explained in the LBP Activities Rule (Ref. 19) (61 FR 45778, 45779), the work practice standards covered by those regulations are intended to ensure that abatements are conducted reliably, effectively, and safely. While considering those three criteria, the 2001 LBP Hazards Rule modified the work practice standards to include dust-lead clearance levels, which “are used to evaluate the effectiveness of cleaning following an abatement.” (Ref. 2) (66 FR 1206, 1211). Abatements are designed to permanently eliminate LBP hazards including dust-lead hazards and the definition of an abatement includes cleanup and post-abatement clearance testing activities (40 CFR 745.223). A dust-lead hazard is identified by the DLHS and the DLCL are used to demonstrate that abatement activities effectively and permanently eliminate those hazards. Therefore, in choosing which DLCL to finalize in this rulemaking, EPA considered how the DLCL will support the reliability, effectiveness, and safety of abatements to permanently eliminate LBP hazards.

The 2001 LBP Hazards Rule adopted the rationale outlined in EPA's 1998 proposed rule (“Identification of Dangerous Levels of Lead,” 63 FR 30302, 30341, June 3, 1998) (Ref. 21). See also 66 FR 1206, 1222-1223 (Ref. 2). EPA chose DLCL that were “achievable using products and methods known to be reliable and effective” (Ref. 21). In the 2018 proposal for the 2019 DLHS Rule (“Review of the Dust-Lead Hazard Standards and the Definition of Lead-Based Paint,” 83 CFR 30889, July 2, 2018), EPA acknowledged that if the DLHS were set too low, the effectiveness of the LBP Activities program may be harmed if the abatement projects became overly expensive and time consuming due to issues of achievability (Ref. 23). That same concern for achievability applies to EPA's decision on which DLCL to set in this rulemaking.

EPA received several comments during the public comment period suggesting that EPA promulgate DLCL lower than the proposed levels at 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills, while a subset of commenters specifically requested lowering the DLCL to 5 μg/ft 2 for floors and/or to 40 μg/ft 2 for window sills. A few commenters also noted that lower levels for DLCL have been shown to be feasible by the survey of lead hazard control grantees conducted by HUD's Office of Lead Hazard Control and Healthy Homes (OLHCHH) (also known as the HUD Clearance Survey) (Ref. 24).

As noted in the final 2019 DLHS Rule and the DLCL proposal, according to the HUD Clearance Survey “reduction in the federal clearance standard for floors from 40 µg/ft 2 to 10 µg/ft 2 , a reduction in the federal clearance standard for windowsills from 250 µg/ft 2 to 100 µg/ft 2 . . . are all technically feasible using the methods currently employed by OLHCHH LHC grantees to prepare for clearance” even though, at the time the survey took place, the levels that projects had to be cleared to were the original DLCL of 40 µg/ft 2 and 250 µg/ft 2 , respectively (Ref. 24). Additionally, according to public comments, a state department of health and a non-governmental organization believe that most NLLAP-recognized laboratories or those within their state are capable of testing the clearance levels as proposed. Therefore, the final DLCL of 10 μg/ft 2 on floors and 100 μg/ft 2 on window sills are shown to be achievable using available products and methods that are effective and reliable in permanently eliminating LBP hazards. To the extent commenters argue that lower options, particularly for sills, are also achievable, such an argument does not necessitate selecting the lower options because the primary design of the DLCL is to demonstrate permanent elimination of the dust-lead hazards, which EPA finds is achieved by clearance levels of 10 μg/ft 2 on floors and 100 μg/ft 2 for window sills. For further information on the HUD Clearance Survey, see the preamble to the 2019 DLHS Rule (Ref. 3).

In addition to the specific criteria of reliability, effectiveness, and safety, the 2001 LBP Hazards rulemaking considered the DLCL in the broader context of Title X, and selected DLCL that are compatible with a “workable framework for lead-based paint hazard evaluation and reduction” (Ref. 21). To this end, EPA chose DLCL that were consistent with the DLHS in part to ensure they were “as easy as possible to understand and implement” (Ref. 21).

EPA maintains the concern for consistency between the DLCL and DLHS for this rulemaking. During the public comment period several commenters expressed concern over the discrepancy between the 2019 DLHS and the 2001 DLCL (Ref. 22). The commenters explained that this inconsistency in the levels created confusion and leads to ethical concerns of clearing a home with post-abatement levels higher than the 2019 revised DLHS. A few commenters urged EPA to quickly finalize as proposed to, in part, fix the mismatch between the DLHS and the DLCL. Compounding the potential for such confusion is the fact that, as indicated in the 2019 DLHS Rule and described in greater detail elsewhere in this preamble, HUD cross-references EPA's DLHS for clearance work practices under HUD's LSHR. This means that if EPA chose a different DLCL than the DLHS, a segment of the regulated community would have had two sets of clearance levels to consider. The selected DLCL of 10 μg/ft 2 on floors and 100 μg/ft 2 on window sills will mitigate this confusion within the regulated community.

As stated previously in this preamble, EPA wanted to act as expeditiously as possible to update the DLCL in recognition of the updated DLHS for floors and window sills. EPA believes it has reasonably focused this rulemaking to revise the DLCL so that attaining these levels demonstrates elimination of dust-lead hazards under the revised 2019 standards. When finalizing DLCL of 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills, as discussed above, the EPA considered the achievability of these levels, how the lower dust-lead loadings can be reliably detected by laboratories, the effectiveness of these levels, and consistency with the revised 2019 standards and across the Federal Government. For further information on the public comments received and a more comprehensive version of EPA's response to comments related to this final action can be found in the Response to Comments document (Ref. 22).

The Technical Support Document that accompanies this final rule evaluated the 2001 DLCL, the background dust-lead level, and the five DLCL options (15 μg/ft 2 for floors and 100 μg/ft 2 for window sills; and 10 μg/ft 2 for floors, and 40 μg/ft 2 , 60 μg/ft 2 , 80 μg/ft 2 and 100 μg/ft 2 for window sills) with values between background (lowest) and the 2001 DLCL (highest). The methods for estimating exposure and health impacts utilized for the 2019 DLHS rulemaking are reflected in the Technical Support Document for this rule to analyze the DLCL options. The various components of the model and input parameters used in the Technical Support Document for the DLHS and this rulemaking have been the subject of multiple Science Advisory Board Reviews, workshops and publications in the peer review literature (Ref. 12, 26). The analysis outlined in the 2019 DLHS Rule was used in that rulemaking to identify conditions that would result in adverse health effects. Where the DLHS are used to identify conditions that would result in adverse health effects, the DLCL must demonstrate that those conditions identified by the DLHS have been eliminated. Therefore, the health impact analysis for the DLCL is less central to the decision-making for this rule than it was to the 2019 DLHS Rule. Regardless, EPA must understand the impact on public health when selecting the DLCL in order to inform the Economic Analysis.

The analyses that EPA developed and presented in both the Technical Support Document for the 2019 DLHS Rule and the Technical Support Document accompanying this final rule, were specifically designed to model potential health effects that might accrue to the subpopulation, i.e., children living in pre-1940 and pre-1978 housing. EPA notes that its different program offices estimate exposures for different populations, different media, and under different statutory requirements and thus different models or parameters may be a better fit for their purpose. As such, the approach and modeling parameters chosen for this rulemaking should not necessarily be construed as appropriate for or consistent with the goals of other EPA programs (Ref. 12).

In its evaluation, EPA estimated blood lead levels and IQ changes as a proxy for changes in cognitive function in children, six and under, exposed long-term to these analyzed dust-lead loading levels. As also reflected in the 2019 DLHS Rule, EPA generated two different modeling approaches to estimate the quantitative relationships between dust-lead and blood lead level data. The first approach used mechanistic modeling data that include consideration of age-specific ingestion rates, activity patterns, and background exposures. The second approach used empirical data that includes co-reported dust-lead and blood lead level measurements in the homes of children. The dust-lead and blood lead level data are used to develop an empirical relationship to estimate blood lead level for each candidate DLCL. Both approaches (mechanistic and empirical) are compared to provide independent confirmation of the relationship between dust-lead loadings and blood lead level. For additional information summarizing the methodologies employed in the Technical Support Document, see the 2018 preamble to the proposed DLHS rule (Ref. 23).

Abatements are any measures or set of measures designed to permanently eliminate lead-based paint hazards and include activities such as the removal of paint and dust, the permanent enclosure or encapsulation of lead-based paint, the replacement of painted surfaces or fixtures, and all preparation, cleanup, disposal, and post-abatement clearance testing activities associated with such measures. Abatements must be conducted by certified abatement workers and supervisors. After LBP abatements are conducted, EPA's regulations require a certified inspector or risk assessor to conduct post-abatement clearance testing (via dust wipe samples) of the abated area. If the dust wipe sample results show dust-lead loadings equal to or exceeding the applicable clearance level, “the components represented by the failed sample shall be recleaned and retested.” See 40 CFR 745.227(e)(8)(vii). In other words, the abatement is not cleared until the dust wipe samples in the work area are below the clearance levels. Under this final rule, inspectors and risk assessors would compare dust wipe sampling results for floors and window sills to the revised DLCL of 10 μg/ft 2 and 100 μg/ft 2 , respectively, and the results for window troughs to the DLCL of 400 μg/ft 2 . Dust wipe sampling results at or above the DLCL would indicate that the components represented by the sample must be recleaned and retested. This final rule does not change any other risk assessment requirements.

The revised DLCL will not trigger new requirements under the existing RRP Rule (40 CFR part 745, subpart E). The RRP Rule requires post-renovation cleaning verification under 40 CFR 745.85(b), but the rule does not require dust wipe sampling and analysis using the DLCL. However, although optional under the RRP Rule, dust wipe sampling for clearance using the DLCL in accordance with the LBP Activities Rule (40 CFR 745.227(e)(8)) may be required by contract or by another Federal, state, territorial, tribal, or local law or regulation. At this time, other than HUD's Lead Safe Housing Rule, EPA is not familiar with other laws and regulations that require clearance testing using EPA's DLCL.

Under the Disclosure Rule, prospective sellers and lessors of target housing must provide purchasers and renters with a federally approved lead hazard information pamphlet and disclose known LBP and/or LBP hazards, and any available records, reports, and additional information pertaining to LBP and/or LBP hazards. The information disclosure activities are required before a purchaser or renter is obligated under a contract to purchase or lease target housing. Records or reports pertaining to LBP and/or LBP hazards must be disclosed, including results from post-abatement clearance testing, regardless of whether the level of dust-lead is below the clearance levels.

The revised DLCL of 10 μg/ft 2 on floors and 100 μg/ft 2 on window sills will not result in additional disclosures because there are no new information collection requirements to consider under this rule. Property owners would already be disclosing results, records, reports, and any additional information that show dust-lead below the original DLCL of 40 μg/ft 2 on floors or below 250 μg/ft 2 on window sills, and any results, records, and reports of additional cleaning due to the lower DLCL would be reflected in this same record.

The DLCL in this final rule will not change the clearance levels that apply to hazard reduction activities under HUD's LSHR because the LSHR currently requires clearance at the DLHS level, which is reflected by the lower DLCL. The LSHR requires certain hazard reduction activities to be performed in certain federally-owned and assisted target housing including abatements, interim controls, paint stabilization, and ongoing LBP maintenance. Hazard reduction activities are required in this housing when LBP hazards are identified or when maintenance or rehabilitation activities disturb paint known or presumed to be LBP. The LSHR's clearance regulations, 24 CFR 35.1340, specify requirements for clearance of these projects (when they disturb more than de minimis amounts of known or presumed lead-based painted surfaces, as defined in 24 CFR 35.1350(d)), including a visual assessment, dust sampling, submission of samples for analysis for lead in dust, interpretation of sampling results, and preparation of a report. As explained in the preamble to the 2019 DLHS Rule (Ref. 3), the LSHR clearance regulations cross-reference EPA's DLHS. As a result, the LSHR clearance levels were lowered to 10 μg/ft 2 and 100 μg/ft 2 for floors and window sills, respectively, when the 2019 DLHS Rule became effective on January 6, 2020. Accordingly, activities under the LSHR are currently required to be cleared using EPA's DLHS.

On February 16, 2017, HUD's OLHCHH issued policy guidance to establish new and more protective requirements for dust-lead action levels for its Lead-Based Paint Hazard Control (LBPHC) and Lead Hazard Reduction Demonstration (LHRD) grantees (the requirements also apply to related HUD grants authorized by Title X, section 1011 (42 U.S.C. 4852), under similar names, including Lead Hazard Reduction (LHR) grants and their High Impact Neighborhoods and Highest Lead-Based Paint Abatement Needs grant categories) (Ref. 27). In particular, the guidance adopted clearance levels of 10 μg/ft 2 and 100 μg/ft 2 for floors and window sills, respectively, for lead hazard control activities performed under these grant programs. The change in requirements was supported by scientific evidence on the adverse effects of lead exposure at low blood-lead levels in children, (<10 μg/dL) as well as the achievability of lower clearance levels based on the HUD Clearance Survey (Ref. 24). The guidance clearance levels for floors and window sills are equal to the final DLCL. Consequently, the changes to the DLCL that EPA is promulgating with this final rule, will not affect the clearance levels used by the LBPHC and LHRD grantees.

The HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing were developed in 1995 under section 1017 of Title X. They provide detailed, comprehensive, technical information on how to identify LBP hazards in residential housing and COFs, and how to control such hazards safely and efficiently. The Guidelines were revised in 2012 to incorporate new information, technological advances, and new Federal regulations, including EPA's LBP hazard standards. Based on EPA's changes to the DLHS in 2019 and the changes to DLCL from this final rule, HUD plans to revise Chapter 5 of the Guidelines on risk assessment and reevaluation and Chapter 15 on clearance, and make conforming changes elsewhere as needed.

The DLCL are used to evaluate the effectiveness of a cleaning following an abatement. After the dust wipe samples show dust-lead loadings below the DLCL, an abatement report is prepared, copies of any reports required under the LBP Activities Rule are provided to the building owner (and to potential lessees and purchasers under the LBP Disclosure Rule by those building owners or their agents), and all required records are also retained by the abatement firm or by the individuals who developed each report. The revised DLCL of 10 μg/ft 2 on floors and 100 μg/ft 2 on window sills will not impose retroactive requirements on regulated entities that have previously performed post-abatement clearance testing using the original DLCL of 40 μg/ft 2 on floors or 250 μg/ft 2 on window sills. These new requirements would only apply to post-abatement clearance sampling and analysis conducted after the effective date of this final rule.

EPA is finalizing as proposed, clarifying language that defines the achievement of post-abatement clearance, which explains what dust-lead levels are permitted on a surface following an abatement that would achieve clearance. The post-abatement clearance procedures set forth in 40 CFR 745.227 state that clearance is not achieved when post-abatement dust-lead levels (which are a measure of the mass of lead per area, commonly expressed in micrograms per square foot (μg/ft 2 )) equal or exceed the clearance levels (40 CFR 745.227(e)(8)(vii)). However, prior to this rule's amended language, 40 CFR 745.223 defined clearance levels as “the maximum amount of lead permitted in dust on a surface following completion of an abatement activity” (40 CFR 745.223) (emphasis added). EPA also notes that HUD's clearance standards rule for interim controls of lead-based paint hazards in HUD-assisted target housing is consistent with the procedures set forth in 40 CFR 745.227 rather than 40 CFR 745.223. To resolve this post-abatement discrepancy, EPA is conforming the definition of clearance levels found in 40 CFR 745.223 to the post-abatement clearance procedures in 40 CFR 745.227, in order to clarify in the definition that the post-abatement dust-lead levels must be below the clearance levels.

Three commenters (including state health departments and an environmental non-governmental organization) submitted public comments that supported EPA's decision to clarify in the DLCL definition that the post-abatement dust-lead levels need to be below the DLCL in order to achieve clearance. EPA agrees with the support from the public commenters and is conforming the definition in 40 CFR 745.223 as proposed.

Pursuant to TSCA section 404 and EPA's regulations at 40 CFR part 745, subpart Q, interested states, territories and federally recognized tribes may apply for and receive authorization to administer their own LBP Activities programs, as long as their programs are at least as protective of human health and the environment as the EPA's program and provide adequate enforcement. As part of the authorization process, states, territories and federally recognized tribes must demonstrate to EPA that they meet the requirements of the LBP Activities Rule. A state, territory or federally recognized tribe must demonstrate that it meets the revised DLCL in its application for authorization or, if already authorized, in a report submitted under 40 CFR 745.324(h) no later than two years after the effective date of the new requirements. If an application for authorization has been submitted but not yet approved, the state, territory or federally recognized tribe must demonstrate that it meets the new requirements either by amending its application, or in a report it submits under 40 CFR 745.324(h) no later than two years after the effective date of the new requirements.

The following is a list of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

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

This action is an economically significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Any changes made in response to OMB recommendations have been documented in the docket. The Agency prepared an analysis of the potential costs and benefits associated with this action, which is available in the docket (Ref. 7).

This action is considered an Executive Order 13771 regulatory action (82 FR 9339, February 3, 2017). Details on the estimated costs of this final rule can be found in EPA's analysis of the potential costs and benefits associated with this action (Ref. 7).

This action does not directly impose an information collection burden under the PRA, 44 U.S.C. 3501 et seq. Under 24 CFR part 35, subpart A, and 40 CFR 745, subpart F, and approved under OMB Control Number 2070-0151, sellers and lessors must already provide purchasers or lessees any available records or reports “pertaining to” LBP, LBP hazards and/or any lead hazard evaluative reports available to the seller or lessor. Accordingly, a seller or lessor must disclose any reports showing dust-lead levels, regardless of the value. Thus, this action would not result in additional disclosures. Because there are no new information collection requirements to consider under this rule, or any changes to the existing requirements to consider under this rule, an ICR is not necessary.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. The small businesses subject to the requirements of this action are abatement firms that may incur costs associated with additional cleaning and sealing in houses where a post-abatement loading is between the original DLCL of 40 μg/ft 2 for floors and 250 μg/ft 2 for window sills, and the revised DLCL of 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills.

EPA's Economic Analysis (Ref. 7) presents low and high scenarios for the number of housing units where a child with a blood lead level that equals or exceeds a Federal or state trigger value lives. For the low scenario, environmental investigations are assumed to be conducted when a child's blood lead level equals or exceeds the trigger value set by that child's state. These values vary from 5 μg/dL to 25 μg/dL, depending on the state. For the high scenario, environmental investigations are assumed to be conducted when a child's blood lead level equals or exceeds the CDC's reference level of 5 μg/dL. The two scenarios function as bounding estimates, and a more realistic assessment of the number of environmental investigations is that they are between the high and low scenarios. The low and high scenarios for the number of environmental investigations affect the estimated number of small business that might incur costs for cleaning and additional dust wipe testing if EPA promulgates the clearance levels in this final rule.

The Agency has determined that this rule may impact ≤1,240 to ≥10,215 small abatement firms. Of these, about ≤1,025 to ≥8,977 may have cost impacts less than 1% of revenues, ≤113 to ≥990 may have impacts between 1% and 3%, and ≤28 to ≥240 may have impacts greater than 3% of revenues. The “≤” and “≥” symbols are intended to convey uncertainty in the results. They do not mean that the results are unbounded ( i.e., that the true values could be zero on the lower end or infinity on the higher end). Details of the analysis are presented in the EA, which is available in the docket (Ref. 7).

In addition to the use of the high scenario (which is likely to overestimate the number of small entities with significant impacts), the analysis makes a series of other assumptions that are likely to lead to an overestimate of small entity impacts. In order to estimate the potential impacts of the rule, EPA assumed that an environmental investigation occurs whenever a child's blood lead level is found to equal or exceed a Federal or state trigger value; that the environmental investigation always includes dust wipe testing of the child's home; and that a clean-up occurs whenever the environmental investigation indicates that dust-lead loadings exceed a hazard standard. Neither the DLCL nor the other provisions of EPA's LBP activities regulations require property owners to evaluate their properties for the presence of dust-lead hazards, nor to take action to address the hazards if dust-lead hazards are identified. These assumptions may overestimate the number of abatements affected, and thus the number of small abatement firms with significant impacts.

The analysis also assumes that in all cases where a dust-lead hazard is identified, the property owner performs at least one baseline abatement activity. This likely overestimates costs because some events may only involve interim controls, and EPA does not require clearance testing for such events. Again, this assumption may overestimate the number of abatements affected, and thus the number of small abatement firms with significant impacts.

Finally, the analysis assumes that in all cases the costs are borne entirely by the lead paint abatement firm (as opposed to being passed through to the property owner). However, it is more likely that some, or perhaps even most, of these costs will be passed on to the property owners. In some circumstances the demand for abatements is likely to be relatively inelastic. Furthermore, the costs of this rule for an affected job are a fraction of the costs of a typical abatement, and only a fraction of jobs are estimated to require re-clearance (meaning that the additional costs for a few jobs can be spread over the up-front prices of a much larger pool of abatements). EPA believes it is likely that abatement contractors will be able to raise up-front prices to some degree to account for the potential costs of additional cleaning and associated activities. Such pass-through of costs would decrease the magnitude of the cost impacts on individual abatement firms.

In light of these conservative assumptions, the small entity impacts analysis likely overstates the number of small businesses with large impacts, both in terms of the magnitude of the impacts and the number of businesses affected.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The total estimated annual cost of the rule is $3 million to $14 million per year (Ref. 7), which does not exceed the inflation-adjusted unfunded mandate threshold of $156 million.

This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 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. States that have authorized LBP Activities programs must demonstrate that they have DLCL at least as protective as the levels at 40 CFR 745.227. However, authorized states are under no obligation to continue to administer the LBP Activities program, and if they do not wish to adopt the new DLCL they can relinquish their authorization. In the absence of a state authorization, EPA will administer these requirements. Thus, Executive Order 13132 does not apply to this action.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). Federally recognized tribes that have authorized LBP Activities programs must demonstrate that they have DLCL at least as protective as the clearance level at 40 CFR 745.227. However, these authorized tribes are under no obligation to continue to administer the LBP Activities program, and if they do not wish to adopt the new DLCL they can relinquish their authorization. In the absence of a tribal authorization, EPA will administer these requirements. Thus, Executive Order 13175 does not apply to this action.

This action is subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is economically significant as defined in Executive Order 12866, and EPA believes that the environmental health or safety risk addressed by this action may have a disproportionate effect on children. Accordingly, we have evaluated the environmental health or safety effects of dust-lead exposure in children. The results of this evaluation are contained in Unit I.F. of the preamble titled “Children's Environmental Health,” Unit II.A. of the preamble titled “Health Effects,” the Economic Analysis and the Technical Support Document, where the health impacts of lead exposure and children is discussed more fully (Ref. 7, 12). The documents referenced above are available in the public docket for this action.

The primary purpose of this rule is to clear abatements to a level that can reliably, effectively and safely eliminate LBP hazards in target housing, including target housing where children reside, and COFs. EPA's analysis indicates that there will be approximately 2,300 to 22,000 children per year affected by the rule (Ref. 7).

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and the Administrator of the Office of Information and Regulatory Affairs has not otherwise determined that the action is a significant energy action.

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

EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this decision is contained in the Economic Analysis, which is available in the docket (Ref. 7).

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons set forth in the preamble, 40 CFR chapter I, subchapter R, is amended as follows:

This is a summary of the Commission's Order on Remand in WC Docket Nos. 11-42, 17-108, and 17-287, adopted October 27, 2020, and released on October 29, 2020. The document is available for download at https://www.fcc.gov/document/fcc-responds-narrow-remand-restoring-internet-freedom-order-0 . 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 & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

1. In the Restoring Internet Freedom Order (83 FR 7852, Feb. 22, 2018), we reversed the Commission's misguided and short-lived utility-style regulation of the internet and returned to the light-touch regulatory framework for broadband internet access service that facilitated rapid and unprecedented growth for almost two decades. In this Order on Remand, we maintain this well-established approach after further considering three discrete issues raised by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit).

2. In Mozilla Corp. v. FCC, the D.C. Circuit upheld the vast majority of our decision in the Restoring Internet Freedom Order, remanding three discrete issues for further consideration—namely, the effect of that Order on: (1) Public safety; (2) the regulation of pole attachments; and (3) universal service support for low-income consumers through the Lifeline program. Because the court concluded that “the Commission may well be able to address on remand” these three issues, it declined to vacate the Restoring Internet Freedom Order, pending our further analysis. After considering the three issues identified by the court in light of the record developed thereafter, we see no grounds to depart from our determinations in the Restoring Internet Freedom Order .

3. Building on decades of precedent, the Commission adopted the Restoring Internet Freedom Order to return to the successful light-touch bipartisan framework that promoted a free and open internet and, for almost twenty years, saw it flourish. The Restoring Internet Freedom Order took effect on June 11, 2018. The Restoring Internet Freedom Order reversed the Title II Order (80 FR 19738, April 13, 2015), adopted in March 2015, which reclassified broadband internet access service from an information service to a telecommunications service and reclassified mobile broadband internet access services as a commercial mobile service and adopted three bright-line rules—blocking, throttling, and paid prioritization—as well as a general internet conduct standard and “enhancements” to the transparency rule. The Restoring Internet Freedom Order, adopted in December 2017, ended the agency's brief foray into utility-style regulation of the internet and restored the light-touch framework under which a free and open internet underwent rapid and unprecedented growth for almost two decades. The Restoring Internet Freedom Order ended Title II regulation of the internet and returned broadband internet access service to its long-standing classification as an information service under Title I, consistent with Supreme Court's holding in Brand X . Having determined that broadband internet access service—regardless of whether offered using fixed or mobile technologies—is an information service under the Communications Act of 1934, as amended (the Act), we also concluded that as an information service, mobile broadband internet access service should not be classified as a commercial mobile service or its functional equivalent.

4. Mozilla Corp. v. FCC . In Mozilla Corp. v. FCC, the D.C. Circuit largely affirmed the Commission's classification decision in the Restoring Internet Freedom Order . On February 6, 2020, the D.C. Circuit denied all pending petitions for rehearing, and the Court issued its mandate on February 18, 2020. Although largely affirming the Commission's decision, the Mozilla court “remand[ed] for further proceedings on three discrete points.” The first is the effect of the “changed regulatory posture” in the Restoring Internet Freedom Order on public safety. The D.C. Circuit observed that “Congress created the Commission for the purpose of, among other things, `promoting safety of life and property through the use of wire and radio communications' ” in section 1 of the Act, and concluded that public safety is “an important aspect of the problem” that the agency must consider and address. The Mozilla court also noted that “[a] number of commenters voiced concerns about the threat to public safety that would arise under the proposed (and ultimately adopted)” Restoring Internet Freedom Order, including “how allowing broadband providers to prioritize internet traffic as they see fit, or to demand payment for top-rate speed, could imperil the ability of first responders, providers of critical infrastructure, and members of the public to communicate during a crisis.” The court declined to consider petitioners' arguments based on “an incident involving the (apparently accidental) decision by Verizon to throttle the broadband internet of Santa Clara firefighters while they were battling a devastating California wildfire,” which occurred after the Restoring Internet Freedom Order . Likewise, the court declined to consider the responses to those arguments in the Commission's brief because they had not been set forth in the Restoring Internet Freedom Order .

5. The second discrete issue that the D.C. Circuit remanded is how the reclassification of broadband internet access service affects the regulation of pole attachments. The D.C. Circuit noted petitioners' “substantial concern that, in reclassifying broadband internet as an information service, the Commission, without reasoned consideration, took broadband outside the current statutory scheme governing pole attachments.” Our authority over pole attachments pursuant to section 224 of the Act extends to attachments made by a cable television system or provider of telecommunications service. States may “reverse preempt” our pole attachment rules and adopt their own rules governing pole attachments in place of ours. The Mozilla court acknowledged our observation that facilities remain subject to pole attachment regulation when deployed by entities commingling broadband internet access service with a service covered by section 224 of the Act. The D.C. Circuit found that our conclusion was sound with respect to “providers who `commingl[e]' telecommunication and broadband services” but incomplete given the court's view that post-reclassification, “the statute textually forecloses any pole-attachment protection for standalone broadband providers.” The Mozilla court concluded that “[t]he Commission was required to grapple with” the matter of pole-attachment regulation for broadband-only providers and remanded the issue for further consideration.

6. The third discrete issue that the court remanded is the statutory basis for broadband internet access service's inclusion in the Lifeline program. The Lifeline program helps low-income Americans gain access to affordable communications services, and is part of the Commission's universal service efforts to close the digital divide. First created by the Commission in 1985, Congress codified this commitment to low-income consumers in the 1996 Telecommunications Act. Currently, the Lifeline program offers qualifying low-income consumers a discount of up to $9.25 per month on voice, broadband internet access service, or bundled services that meet the program's minimum service standards. Consumers who reside on Tribal lands can receive a discount of up to $34.25 on Lifeline service that satisfies the minimum service standards. The D.C. Circuit described petitioners' concern “that reclassification would eliminate the statutory basis for broadband's inclusion in the [Lifeline] Program” and pointed out that “Congress [ ] tethered Lifeline eligibility to common-carrier status,” citing statutory language limiting the designation of eligible telecommunications carriers (ETCs) and receipt of universal service support to common carriers. Similarly, citing the U.S. Court of Appeals for the Tenth Circuit's “observ[ation], before broadband was classified as a telecommunications service, that `broadband-only providers . . . cannot be designated as `eligible telecommunications carriers' ' because `under the existing statutory framework, only `common carriers' . . . are eligible to be designated as `eligible telecommunications carriers,' ” the D.C. Circuit concluded that the Restoring Internet Freedom Order' s reclassification of broadband internet access service would appear to preclude broadband's inclusion in the Lifeline Program. Consequently, the Mozilla court “remand[ed] this portion of the [ Restoring Internet Freedom Order ] for the Commission to address.”

7. We address in turn each of the three issues the Mozilla court remanded and conclude that, in each case, there is no basis to alter our conclusions in the Restoring Internet Freedom Order . Specifically, we examine the effects that the Restoring Internet Freedom Order might have on public safety communications, pole attachment rights for broadband-only providers, and the universal service Lifeline program, as well as how such possible effects bear on the Commission's underlying decisions to classify broadband internet access service as an information service and eliminate the internet rules. Our analysis below shows that the Restoring Internet Freedom Order promotes public safety, facilitates broadband infrastructure deployment for ISPs, and allows us to continue to provide Lifeline support for broadband internet access service. Further, we conclude that any potential negative effects that the reclassification may have on public safety, pole attachment rights for broadband-only providers, and the Lifeline program are limited and would not change our classification decision in the Restoring Internet Freedom Order even if such negative effects were substantiated. Rather, we find that that overwhelming benefits of Title I classification and restoration of light-touch regulation outweigh any adverse effects.

8. The Mozilla court directed us to address the effect on public safety of the “changed regulatory posture” in the Restoring Internet Freedom Order . The Mozilla court focused in particular on claims in the record concerning dangers that might arise from “allowing broadband providers to prioritize internet traffic as they see fit, or to demand payment for top-rate speed,” and how such actions “could imperil the ability of first responders, providers of critical infrastructure, and members of the public to communicate during a crisis.” Among other things, the D.C. Circuit rejected our argument that “the public safety issues . . . were redundant of the arguments made by edge providers,” finding instead that “unlike most harms to edge providers incurred because of discriminatory practices by broadband providers, the harms from blocking and throttling during a public safety emergency are irreparable.”

9. We find that neither our decision to return broadband internet access service to its long-standing classification as an information service, nor our subsequent decision to eliminate the internet conduct rules, is likely to adversely impact public safety. To the contrary, our analysis reinforces our determinations made in the Restoring Internet Freedom Order, and we find that on balance, the light-touch approach we adopted and the regulatory certainty provided by the Restoring Internet Freedom Order benefit public safety and further our charge of promoting “safety of life and property” and the national defense though the use of wire and radio communications. We also find that even if there were some adverse impacts on public safety applications in particular cases—which we do not anticipate—the overwhelming benefits of Title I classification would still outweigh any potential harms.

10. Advancing public safety is one of our fundamental obligations. The Title I approach spurs investment in a robust network and innovative services, which enhances the effectiveness of our work to promote public safety consistent with our statutory responsibilities. Indeed, this has been the case over the almost 20 years during which broadband internet access service (and, as appropriate, mobile broadband internet access service) was classified as a Title I service.

11. As the D.C. Circuit explained, when “ `Congress has given an agency the responsibility to regulate a market such as the telecommunications industry that it has repeatedly deemed important to protecting public safety,' then the agency's decisions `must take into account its duty to protect the public.' ” We take seriously our public safety responsibilities, as demonstrated by a number of our recent actions. In 2019, for example, pursuant to Kari's Law Act of 2017 the Commission required newly manufactured, imported, sold, or leased multi-line telephone systems—such as those used by hotels and campuses—to allow users to dial 911 directly, without having to dial a prefix such as a “9” to reach an outside line. We also adopted rules pursuant to section 506 of the RAY BAUM'S ACT to ensure that “dispatchable location” information, such as the street address, floor level, and room number of a 911 caller, is conveyed with 911 calls so that first responders can more quickly locate the caller. More recently, we proposed taking action to modernize the Commission's rules to facilitate the priority treatment of voice, data, and video services for public safety personnel and first responders, including removing outdated requirements that may impede the use of IP-based technologies. The Commission has taken important measures to increase the effectiveness of Wireless Emergency Alerts (WEAs) by requiring Participating Commercial Mobile Service Providers to support longer WEA messages; support Spanish-language messages; create a new message category (“State/Local WEA Tests”); and further implement enhanced geotargeting capabilities. We have also urged wireless service providers and electric power providers to coordinate their response and restoration efforts more closely following disasters, resulting in the establishment of the Cross Sector Resiliency Forum in February 2020. Further, to safeguard America's critical communications infrastructure from potential security threats, we prohibited the use of public funds from the Commission's Universal Service Fund (USF) to purchase or obtain any equipment or services produced or provided by companies posing a national security threat to the integrity of communications networks or the communications supply chain, and proposed to require certain USF recipients to remove and replace such equipment and services from their networks and reimburse them for doing so. We also initially designated Huawei Technologies Company (Huawei) and ZTE Corporation (ZTE) as covered companies for purposes of this rule, and we established a process for designating additional covered companies in the future. Additionally, the Commission's Public Safety and Homeland Security Bureau issued final designations of Huawei and ZTE as covered companies, thereby prohibiting the use of USF funds on equipment or services produced or provided by these two suppliers. We also recently proposed, pursuant to the Secure and Trusted Communications Networks Act, to (1) create a list of covered communications equipment and services that pose an unacceptable risk to the national security of the United States or the security and safety of United States persons; (2) ban the use of federal subsidies for any equipment or services on the list of covered communications equipment and services; (3) require that all providers of advanced communications service report whether they use any covered communications equipment and services; and (4) establish regulations to prevent waste, fraud, and abuse in the proposed reimbursement program to remove, replace, and dispose of insecure equipment. In furtherance of our duties to protect life, we also recently designated 988 as the 3-digit number to reach the National Suicide Prevention Lifeline and required all service providers to complete the transition by July 16, 2022.

12. Public safety communications fall into two broad categories: (1) Communications within and between public safety entities, and (2) communications between public safety entities and the public. We review each in turn.

13. Communications Among Public Safety Entities. The record reflects that many public safety entities have access to and make use of dedicated public safety-specific and/or prioritized, specialized enterprise-level broadband services for data communications between public safety officials. Perhaps the most important example of a dedicated network is the Congressionally-created First Responder Network Authority (FirstNet). In 2012, Congress passed the Middle Class Tax Relief and Job Creation Act, which in part directed “the establishment of a nationwide, interoperable public safety network” to “ensure the deployment and operation of a nationwide, broadband network for public safety communications”—a resilient network capable of supporting both data and voice communications. The law granted 20 megahertz of spectrum to be used for the network and allocated $7 billion of funding. FirstNet is “explicitly designed for fast, prioritized public safety communications.” FirstNet offers service priority and preemption, which allow first responders to communicate over an “always-on” network. Public safety entities using FirstNet can boost their priority levels during emergency situations “to ensure first responder teams stay connected” even when networks are congested. AT&T describes preemption as an “enhanced” form of priority service because it “shifts non-emergency traffic to another line,” which ensures national security and emergency preparedness users' communications are successfully completed. According to AT&T, priority and preemption support voice calls, “text messages, images, videos, location information, [and] data from apps . . . in real time.” In the first half of 2019, the monthly numbers of device connections to FirstNet “outperformed expectations at approximately 196% of projected targets.” In May 2019, “a majority of agencies and nearly 50% of FirstNet's total connections were new subscribers (not AT&T migrations).” As of August 2019, FirstNet was deployed in all 50 states, and nearly 9,000 public safety agencies and organizations were subscribers of the network. The number of public safety agencies subscribing to FirstNet services continues to increase. Recent data suggests that more than 12,000 public safety agencies and organizations—accounting for over 1.3 million connections nationwide—subscribe to FirstNet services. These trends suggest that first responders recognize the benefits of prioritization, preemption, and other innovative features that enhance public safety communications. The record reflects that “[m]ore and more, public safety is relying on the FirstNet core and public safety's own dedicated network for critical public safety communications—one that offers faster performance than commercial networks.” The Spectrum Act requires FirstNet to apply for renewal of its license after 10 years ( i.e., in 2022). The Act states that to obtain renewal, FirstNet must demonstrate that “during the preceding license term, the First Responder Network Authority has met the duties and obligations set forth under [the Spectrum] Act.”

14. As we observed previously, other service providers have recently begun offering or enhanced their public safety services to compete with FirstNet. For example, Verizon offers services designed for first responders and public safety entities through its public safety private core that include the ability to prioritize public safety communications to ensure that they stay connected during emergencies. Such services also provide an extra layer of assurance that public safety communications will continue to operate during peak times. In addition, public safety users “have access to several . . . enhanced services” from Verizon, including Mobile Broadband Priority Service and data preemption. These services “provide public safety users priority service for data transmissions” by giving users priority over commercial users during periods of heavy network congestion and “reallocat[ing] network resources from commercial data/internet users to first responders” if networks reach full capacity.

15. Similarly, U.S. Cellular offers “enhanced data priority services for first responders and other emergency response teams.” The company uses a “dedicated broadband LTE network that separates mission-critical data from commercial and consumer traffic,” ensuring that national security and emergency preparedness personnel “have access to vital services” during emergency situations. In addition to prioritizing network access, U.S. Cellular uses preemption “to automatically and temporarily reallocate lower priority network resources to emergency responders so they can stay connected during emergencies or other high-traffic events.” T-Mobile also launched a specialized set of rate plans for first responder organizations in early 2019, aimed at addressing these organizations' needs that their high- speed data allowance not run out or be slowed during emergencies. These dedicated or specialized types of service plans allow first responder organizations to receive unlimited smartphone or hotspot data that receives high priority on the network at all times. T-Mobile is also expanding these efforts by offering Connecting Heroes, a program launching later this year to provide a version of this service for free to U.S. state and local public and non-profit law enforcement, fire, and emergency medical services (EMS) agencies.

16. Though many communications between public safety entities increasingly take advantage of these enterprise-level dedicated public safety broadband services, the record reflects that public safety entities employ broadband internet access services for their communications between public safety officials as well. As the Association of Public-Safety Communications Officials-International, Inc. (APCO) explains, public safety agencies rely on retail broadband services for a variety of public safety applications, including for example, accessing various databases, sharing data with emergency responders, translating communications with 911 callers and patients in the field, streaming video into 911 and emergency operations centers, and accessing critical information about a 911 caller that is not delivered through the traditional 911 network.

17. While this proceeding focuses on a specific data service—broadband internet access service—we note that the universe of public safety to public safety communications extends beyond this particular service. The enterprise services described above often provide a viable alternative for states and localities to purchase dedicated broadband connections to use for public safety communications. In addition, voice services continue to play an important role. The Commission has historically supported these efforts through the establishment of three priority services programs that support prioritized voice services for public safety users. The Telecommunications Services Priority System (TSP) authorizes the “assignment and approval of priorities for provisioning and restoration of common-carrier provided telecommunication services” and “services which are provided by government and/or non-common carriers and are interconnected to common carrier services.” The Government Emergency Telecommunications Service (GETS) “provides government officials, first responders, and NSEP personnel with `priority access and prioritized processing in the local and long distance segments of the landline networks, greatly increasing the probability of call completion.' ” And, the Wireless Priority Service program (WPS) provides “prioritized voice calling for subscribers using Commercial Mobile Radio Service . . . networks.” As noted above, we recently proposed modernizing these rules to broaden the scope of information covered to address data and video and to remove outdated requirements that may impede the use of IP-based technologies.

18. Communications Between Public Safety Entities and the Public. Communications between public safety entities and the public occur using a wide array of communications technologies. With respect to broadband services, the record reflects broad consensus that not only do public safety entities and first responders need to be able to communicate rapidly and reliably with each other during crisis situations, but members of the public using mass-market services must also be able to easily and efficiently communicate with first responders and access public safety resources and information. As the County of Santa Clara states, “[T]he fundamental work of government, including public safety personnel, is outward facing: To protect our residents, we must be able to communicate with them, and they with us.” The record suggests that most data communications between public safety entities and individuals likely take place over broadband internet access services, and not enterprise or dedicated services. As CTIA explains, consumers regularly use their mobile devices and broadband connections “to access broadly available information regarding threatening weather, shelter-in-place mandates, ongoing active-shooter scenarios, and other matters essential to public safety.” Members of the public often rely on broadband services during emergencies to enable them to find and receive potentially life-saving information, and to allow public safety officials to build on-the-ground situational awareness with information they gather from residential broadband service users. First responders can also gain valuable information from members of the public through mass-market broadband access, such as when “citizens used hashtags to flag rescuers and to compile helpful databases” in the wake of Hurricane Harvey in 2017.

19. Further, “public safety” communications may encompass more than just communications during emergencies, as the COVID-19 pandemic has demonstrated, with many Americans relying on telemedicine over mass-market broadband services for “routine health care, triage, and basic health advice” as well as for updates on public health information and stay-at-home and quarantine orders. 5G networks' ability to transmit massive amounts of data in real time will also help enable new applications that will allow more advanced communications between the public and health care officials, such as allowing health care professionals, through ubiquitous wireless sensors, to remotely monitor patients' health and transmit data to their doctors before problems become emergencies, and to develop connected ambulance services for faster patient transport.

20. Non-data and one-way broadcast communications services, notably including members of the public making use of voice services to call 911, continue to play a central role in public safety communications between Americans and public safety entities. Consistent with Congressional direction, the Commission has “designate[d] 9-1-1 as the universal emergency telephone number within the United States for reporting an emergency to appropriate authorities and requesting assistance,” and has adopted regulations designed to improve its performance and effectiveness. Audio and video communications also are important for public safety communications to the public, including for communicating emergency alerts. The Emergency Alert System is a national public warning system through which broadcasters, cable systems, and other service providers deliver audio alerts that include modulated data that can be converted into a visual message to the public to warn them of impending emergencies and dangers to life and property in accordance with Commission regulations. In addition, communications via text message also have taken on an important public safety role, including through Commission-mandated text-to-911 capabilities and Wireless Emergency Alerts. Consistent with its statutory duties, the Commission has played a major role in establishing and facilitating these means of communication between public safety entities and the public.

21. In the Restoring Internet Freedom Order, the Commission “eliminat[ed] burdensome regulation that stifles innovation and deters investment” and predicted that “this light-touch information service framework will promote investment and innovation.” The Mozilla court affirmed this finding, concluding that our position as to the economic benefits of reclassification away from public-utility style regulations was “supported by substantial evidence.” The record reflects that our finding applies just as much, if not more so, to public safety communications. Consistent with our findings in the Restoring Internet Freedom Order, a number of commenters assert that the Commission's reclassification of broadband internet access services has “restored a regulatory environment that encourages robust investment in broadband networks and facilities that can be used for many purposes, including public safety purposes,” and that this light-touch regulatory environment has improved and expanded the resources available to public safety entities and consumers alike. Though many factors affect ISPs' investment decisions, these comments lend support to our findings in the Restoring Internet Freedom Order that “reclassification of broadband internet access service from Title II to Title I is likely to increase ISP investment and output” and that the “ever-present threat of regulatory creep is substantially likely to affect the risk calculus taken by ISPs when deciding how to invest their shareholders' capital, potentially deterring them from investment in broadband.” Given the variety of factors and the limited nature of the scope of the remand and subsequent record, described below, we do not reopen or expand on these predictions at this time. We reject the argument that AT&T's plan to grandfather legacy DSL services (with speeds ranging from 788 kbps to 6 Mbps) undermines our reliance on the likelihood of increased investment as a result of the Restoring Internet Freedom Order . The Mozilla court has already affirmed the Commission's finding that the Restoring Internet Freedom Order is likely to promote investment and deployment. In any event, AT&T's filing demonstrates that its customers in the service areas referenced by Public Knowledge et al. have plenty of options for broadband internet access service (at speeds of 10 Mbps and higher). Finally, we observe that the reclassification of broadband internet access service as an information service had no effect on the Commission's authority over ISPs' discontinuance of broadband services, as the Commission explicitly forbore from section 214 with respect to broadband internet access services in the Title II Order .

22. As described above, an increasing number of public safety entities subscribe to enterprise-level quality-of-service dedicated public safety data services. While the Greenlining Institute raises concerns that the record does not specify the number of public safety entities that purchase enterprise-grade services, or the affordability and competitiveness of the fees for such services, we observe several commenters explained the widespread nature of such services. For example, NCTA explains that one of its members provides data connectivity solutions “for thousands of public safety entities, including police and fire departments, hospitals, ambulance services, public safety dispatchers, medical dispatch centers, and 911 providers throughout the country.” Further, as noted above, as of August 2019, FirstNet was deployed in all 50 states, and nearly 9,000 public safety agencies and organizations were subscribers of the network. As Verizon explains, public safety entities generally purchase enterprise service contracts that are “similar to other large agreements that government entities use to buy most goods and services on favorable terms for a fair price,” explaining that some states use master agreements negotiated by nationwide purchases organizations such as the National Association of State Procurement Offices, for example. We also note that because such services were excluded from regulation under the Title II Order, that Order did not reduce the costs of such services in any case. These types of plans were not subject to the requirements of the Title II Order or the Open Internet Order (76 FR 59192, Sept. 23, 2011). However, even these non-mass-market offerings benefit from the Restoring Internet Freedom Order' s light-touch approach, regulatory certainty, and likely investment incentives because they often make use of infrastructure that also is used to facilitate broadband internet access services ( e.g., middle mile connections). As CTIA states, “[r]obust and expansive broadband infrastructure benefits both consumers and public safety personnel, whether they rely on mass-market connectivity or enterprise offerings, because even infrastructure built principally to serve mass-market broadband consumers (such as middle-mile networking) increases overall network capacity, improving the experience of enterprise and government users and those utilizing non-[broadband internet access service] data services.” Further, as broadband speeds and other performance characteristics continue to improve, the range of public safety services and applications that could potentially be offered over these networks expands.

23. The record reflects that the regulatory certainty and light-touch approach the Restoring Internet Freedom Order affords also likely gives ISPs stronger incentives to upgrade networks to 5G, paving the way for new and innovative applications and services that can benefit public safety. 5G networks' ability to transmit massive amounts of data in real time will help enable new applications that provide immediate situational awareness to enable public safety professionals and first responders to “provide more informed support and make better decisions during an emergency.” For example, 5G capabilities will enable search and rescue drones and other unmanned vehicles to reach areas that would otherwise be inaccessible, and will also help enable products “like augmented reality headsets that can help firefighters see through smoke, and create augmented disaster mapping that helps rescue teams get a clearer picture of the situation on the ground.” The deployment and growth of 5G and the innovative applications it will enable will have clear public safety benefits, and we believe that our light-touch, market driven approach likely has, and likely will continue, to encourage ISPs' investments in these networks.

24. The record reflects that improved, more robust broadband networks and services also have obvious and significant benefits for communications between public safety entities and the public. According to one commenter, “[t]hree in ten Americans describe themselves as `constantly' online,” and that “the best way to reach them will be for public safety communication to also take place online.” As the Edward Davis Company explains, “better, faster, and more widespread broadband connections make it easier for the public to contact public safety in times of need and help public safety respond more quickly.” Indeed, the Public Safety Broadband Technology Association asserts that light-touch regulation “promotes extensive deployment and quick adoption of fast broadband, which enables citizens to reach public safety more easily in times of need.” Similarly, USTelecom observes that increased investment has “given rise to robust, reliable, and resilient networks that improve consumers' access to public safety information, providing first responders and other government agencies with new and innovative ways to communicate and share, analyze, and act on information during emergencies.”

25. The COVID-19 pandemic has brought that point into stark relief. The robustness and reliability of ISPs' networks have helped make possible the large-scale changes to daily life, including reliance on telework, digital learning, telehealth, and online communications with local and state officials. The record demonstrates that, even with unprecedented increases in traffic during the COVID-19 pandemic, broadband networks have been able to handle the increase in traffic and shift in usage patterns. The ability of these networks to absorb major increases in traffic has allowed Americans to maintain social distancing, which experts have found to yield tremendous public health and safety benefits by “flattening the curve” of viral transmissions. USTelecom observes that one study showed that out of the ten countries with the highest populations in the world, the United States was the only country to not experience any download speed degradation in April 2020. Further, unlike the European Union, which takes a utility-style approach to broadband regulation and has had to request that bandwidth intensive services such as Netflix reduce video quality in order to ease stress on its network infrastructure, the United States has not had to take similar steps, despite similar surges in internet traffic. This country's robust and resilient broadband networks are, in significant part, the result of over two decades of almost continuous light-touch regulation, which has promoted substantial infrastructure investment and deployment. For the foregoing reasons, we conclude that our decision to return broadband internet access service to its historical information service classification benefits public safety communications by encouraging the deployment of more robust, resilient broadband services networks and infrastructure over which public safety communications to, from, and among the public ride.

26. We find that our reclassification and rule determinations in the Restoring Internet Freedom Order are not likely to adversely affect public safety communications over broadband internet access service. First, we explain why the same protections we identify in the Restoring Internet Freedom Order as sufficient to protect openness generally—transparency, antitrust, and consumer protection law—equally protect the openness of public safety communications. Next, we find an absence of evidence of harms to public safety communications arising from the Restoring Internet Freedom Order or from the two-decade history of light-touch regulation of the internet. We then review assertions regarding specific forms of possible harm to public safety communications—blocking, throttling, loss or delay due to paid prioritization, barriers to communications by individuals with disabilities, and damage to the safety and reliability of critical infrastructure—and conclude that the record reflects insufficient evidence of such harms as a result of the Restoring Internet Freedom Order or that such harms are likely to arise. Finally, we conclude that even if a harm to public safety communication were to somehow arise from the Restoring Internet Freedom Order, its impact would be limited because broadband internet access service, while important, is only a part of the broader public safety communications ecosystem. As such, we reject assertions by Public Knowledge et al. that “[i]n making its finding that reclassification and elimination of the rules will not harm public safety, the Commission focuses strictly on the question of prioritization of service.”

27. Transparency, Antitrust, and Consumer Protection Laws Prevent Harms . The protections highlighted in the Restoring Internet Freedom Order are important factors in preserving the openness of public safety communications over broadband internet access service. Among these protections are the transparency rules we adopted, which “require ISPs to disclose any blocking, throttling, affiliated prioritization, or paid prioritization in which they engage.” As we explained in the Restoring Internet Freedom Order —in analysis that the Mozilla court upheld as reasonable—“[h]istory demonstrates that public attention, not heavy-handed Commission regulation, has been most effective in deterring ISP threats to openness and bringing about resolution of the rare incidents that arise. The Commission has had transparency requirements in place since 2010, and there have been very few incidents in the United States that plausibly raise openness concerns.” “Transparency thereby `increases the likelihood that harmful practices will not occur in the first place and that, if they do, they will be quickly remedied.' ”

28. Indeed, many ISPs, including all major ISPs, have gone further than disclosing their policies by making “enforceable commitments to maintain internet openness.” As NCTA explains, “[a]ll major broadband providers have now publicly made enforceable commitments not to engage in conduct that violates consensus open internet principles.” ISPs have made these commitments despite the lack of Title II regulation, and the record reflects that ISPs recognize the importance of these commitments with respect to public safety communications—for example, Comcast explains that its incentives to adhere to public commitments to open internet protections “are rightly even stronger . . . when it comes to serving the public safety community, particularly first responders during an emergency.” We disagree with Free Press's assertions that the “notion that transparency and shaming will discipline carriers is a vain hope.” We observe that the Mozilla court has already upheld the Commission's findings regarding reliance on the transparency rule. These commitments are not merely empty promises with no binding effect; instead, as a direct result of the Restoring Internet Freedom Order, the terms of such commitments are now enforceable by the Federal Trade Commission (FTC), the nation's premier consumer protection agency. Indeed, a Memorandum of Understanding between the Commission and the FTC states that the FTC will “investigate and take enforcement action as appropriate against internet service providers for unfair, deceptive, or otherwise unlawful acts or practices, including . . . actions pertaining to the accuracy of the disclosures such providers make pursuant to the Internet Freedom Order 's requirements, as well as their marketing, advertising, and promotional activities.”

29. Commitments to transparency carry particular force in the context of public safety communications because of the strong incentive for ISPs to maintain or improve their reputations by protecting such communications. As NCTA explains, “broadband providers recognize the vital importance of ensuring robust and reliable networks for public safety communications, and know that they would need to answer to customers and policymakers if their practices were to threaten to hamper public safety in any way.” In addition, there are strong business incentives for broadband providers to ensure that public safety communications remain unharmed. ISPs have more than business incentives to ensure that broadband communications remain unhampered by harmful network management practices. As ACA Connects explains, the community-based providers that it represents also “have a personal stake in ensuring the safety of their neighbors, family and friends.” As we previously found in the Restoring Internet Freedom Order, even when public safety is not at stake, it is likely that “any attempt by ISPs to undermine the openness of the internet would be resisted by consumers and edge providers.”

30. Likewise, consistent with our findings in the Restoring Internet Freedom Order, we find that antitrust law can also protect consumers from practices that may hinder their ability to access public safety resources and similarly helps protect public safety communications over broadband internet access service from blocking, throttling, alleged degradation due to paid prioritization, and other harms to openness. The antitrust laws, particularly sections 1 and 2 of the Sherman Act, as well as section 5 of the FTC Act, protect competition in all sectors of the economy, including broadband internet access. Consequently, if an ISP attempts to block or degrade traffic in a manner that is anticompetitive, relief may be available under the antitrust laws. Moreover, to the extent an ISP has market power, antitrust laws could be used to address any anticompetitive paid prioritization practices by an ISP. As we explained in the Restoring internet Freedom Order, “[o]ne of the benefits of antitrust law is its strong focus on protecting competition and consumers.” If the types of conduct and practices that had been prohibited under the Title II Order were challenged as anticompetitive under the antitrust laws, such conduct would likely be evaluated under the “rule of reason,” which amounts to a consumer welfare test. A welfare approach was established in Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979). The transparency rule the Commission adopted amplifies the power of antitrust law and the FTC Act to deter and, where needed, remedy behavior that harms consumers, including for public safety purposes.

31. Further, consistent with our conclusion in the Restoring Internet Freedom Order, we believe that consumer protection laws also help protect public safety communications from practices that could harm openness. The FTC has broad authority to protect consumers from “unfair and deceptive acts or practices.” The FTC's unfair-and-deceptive-practices authority “prohibits companies from selling consumers one product or service but then providing them something different,” which makes voluntary commitments not to engage in blocking, throttling, or paid prioritization enforceable. The FTC also requires the “disclos[ur]e [of] material information if not disclosing it would mislead the consumer,” so if an ISP “failed to disclose blocking, throttling, or other practices that would matter to a reasonable consumer, the FTC's deception authority would apply.” Reclassification restored the FTC's authority to enforce those consumer protection requirements in the case of broadband internet access service. Indeed, the FTC has already successfully used its authority to pursue a complaint against AT&T for allegedly deceptively marketing one of its own mobile broadband subscription plans. And all states have laws proscribing deceptive trade practices.

32. The D.C. Circuit found that the Commission's reliance on antitrust and consumer protection laws to limit anticompetitive behavior was reasonable, especially as part of the broader regulatory and economic framework, and we do not revisit those prior Commission findings here. Nor do we find that reasoning substantially diminished when public safety concerns are at issue. For one, that reasoning retains its full force with respect to protections that flow from the ISPs' own public statements. ISPs know that their public statements regarding network management—whether made to comply with our transparency rule or otherwise—are subject to enforcement by the FTC. Thus, ISPs' public statements, in effect, create ex ante requirements to which they are bound. The record does not reveal that enforcement of those statements, such as through the FTC's consumer protection authority, would be any less effective at preventing contrary ISP conduct than would enforcement of Commission rules prohibiting the same network management practices.

33. Consumer protection and antitrust laws help guard against risks from conduct not foreclosed by providers' public statements, as well. The record here does not reveal credible claims that ISPs would somehow target their conduct to harm public safety in a manner that would require ex ante public safety-focused legal protections. Instead, commenters' concerns here reflect the view that the ISP conduct that could lead to public safety harms is the same conduct about which concerns have been expressed more generally, even if the consequences of such conduct could be particularly dire in the public safety context. Because consumer protection and antitrust laws help safeguard users of broadband internet access service from conduct that could undermine internet openness—and because that same conduct underlies the public safety concerns expressed by commenters here—those laws help address any public safety concerns notwithstanding their lack of an express public safety focus. Although some commenters observe that antitrust and consumer protection laws are not framed with a focus on public safety concerns, neither the Title II regulatory framework nor the restrictions on ISP conduct in the bright line and general conduct rules adopted in the Title II Order specified particular restrictions on ISPs in connection with public safety, either. Although “traffic prioritization . . . practices that serve a public safety purpose, may be acceptable under our rules as reasonable network management” under the Title II Order, the restrictions on ISP conduct under the bright line rules were not framed in terms of public safety, nor did the factors identified by the Commission to guide the application of its general conduct rule focus on public safety concerns. This conclusion is not diminished by the fact that the Commission did adopt a public safety-focused carve-out from those conduct rules because that carve-out rule did not restrict ISP conduct in any way. In sum, even the Title II Order itself thus adopted rules restricting ISP conduct that it anticipated ultimately could benefit public safety, notwithstanding the lack of a public safety focus. Consequently, although we do not presume that consumer protection and antitrust laws themselves provide perfect protections against all possible public safety concerns, we conclude that they do still provide significant protections notwithstanding their lack of an express public safety focus, and rely on them in conjunction with the broader range of considerations that collectively persuade us that public safety harms are unlikely under our regulatory framework in the Restoring Internet Freedom Order . Even ex post FTC enforcement of such conduct as “unfair” or anticompetitive practices would have a significant effect by causing providers to avoid conduct in the first instance if it has the potential to result in liability under those legal regimes. We anticipate a similar deterrent effect from consumer protection laws. Although the Mozilla court noted that the record reflected concern about adequacy of ex post enforcement in the public safety context to the extent that such potential for enforcement did not fully deter harmful ISP conduct from occurring, we find that to be a far more limited concern than some commenters claim. As a threshold matter, while the court focused on commenters' concerns about “dire, irreversible” public safety consequences from ISP conduct such as loss of life, commenters here raise a wide array of situations with a claimed nexus to safety of life and property where it is doubtful that ISP conduct—even assuming arguendo that it occurred and had momentary effects on the relevant applications—would result in meaningful harm, let alone loss of life. More fundamentally, we rely on transparency, consumer protection laws, and antitrust laws only as one part of a broader set of considerations that collectively persuade us that public safety harms are unlikely to result from the regulatory approach in the Restoring Internet Freedom Order . For example, ISPs' conduct in the first instance is likely to be informed by the highly probable reputational effects. In addition, as we explain below, even if ISP conduct like paid prioritization were to occur, the record does not reveal likely practical harm to applications used for public safety communications over mass market broadband internet access service. We note that such public safety communications often occur over specialized networks which generally include quality-of-service guarantees—unlike best efforts broadband internet access service—which further limits the scope of communications potentially affected.

34. Absence of Proven Harms . The internet has been subject to light-touch regulation for the entirety of the time since enactment of the 1996 Act, apart from the short period in which the Title II Order controlled. Further, during most of the past two decades, the Commission did not have in place potentially enforceable attempts at conduct regulation. The Commission adopted the Comcast-BitTorrent Order, which attempted to directly enforce Federal internet policy that it drew from various statutory provisions, in August 2008. On April 6, 2010, the U.S. Court of Appeals for the D.C. Circuit rejected the Commission's action, holding that the Commission had not justified its action as a valid exercise of ancillary authority. The Commission adopted the Open Internet Order in December 2010, but it was not effective until some months later. The Verizon court decision was decided on January 14, 2014, and the Title II Order was not adopted until over a year later, on February 26, 2015, and became effective several months later. Yet for all this time from which to draw, commenters claiming that the Restoring Internet Freedom Order harms public safety communications are only able to point to a few heavily-contested public-safety-related incidents. Notably, none of the claims arises from the time period prior to the existence of rules governing ISPs. Even if these claims were valid—and we find below that they are not—they do not establish a compelling basis to reconsider the Restoring Internet Freedom Order 's determinations and impose preemptive, industry-wide, utility-style regulations. The dearth of evidence of practices harmful to public safety is unsurprising, as ISPs lack an economic incentive to engage in practices such as blocking or throttling, especially when these practices may harm public safety.

35. Commenters opposing the Restoring Internet Freedom Order repeatedly cite as support a 2018 incident involving the decrease in the Santa Clara, California fire department's broadband service speed during an emergency. However, as explained below, the changed regulatory posture in the Restoring Internet Freedom Order had no bearing on how this incident played out, both because the broadband service at issue was not subject to either regulatory regime and because the provider's conduct would not have been prohibited under the Title II Order even if it did apply. Notably, no commenter contested in their reply comments other commenters' claims that the incident would not have been prevented under the Title II Order . The County of Santa Clara asserts that while the County's firefighters were “in the midst of fighting the Mendocino Complex Fire in the summer of 2018, Verizon severely throttled the broadband internet” of the fire department, which prevented the department's equipment “from tracking, organizing, and prioritizing resources from around the state and country to where they are most urgently needed.” The County of Santa Clara concedes that Verizon reduced the speed of the fire department's broadband service because the fire department's account had exceeded its monthly data cap. Although Verizon's established practice was to not enforce data speed restrictions on public safety users' plans during emergency situations, a customer service error led to the speed of the fire department's service being reduced despite this policy. Verizon contends that once its management learned of the customer's complaint, Verizon “immediately and publicly addressed the situation, including by updating training for call center representatives to ensure that they are aware that they must promptly remove any data throughput limitations for first responders in an emergency. That same week, Verizon introduced a new plan for public safety customers that eliminated any data speed restrictions for first responders, at no additional cost, and that gave other public safety customers two month' leeway before any throughput limitation would be enforced.

36. As an initial matter, the Santa Clara incident is not relevant to an analysis of the effect of the Restoring Internet Freedom Order on public safety. Because the fire department's service plan from Verizon was an enterprise plan rather than a mass-market service, it is not a broadband internet access service under either the Title II Order or the Restoring Internet Freedom Order . Even if the service plan had been a mass-market service, however, the record does not demonstrate that it would have run afoul of the Title II Order . Neither the classification of broadband internet access service as a telecommunications service nor the Title II Order' s bright line rules prohibited data use caps such as the one in the fire department's service plan. In fact, the Title II Order specifically explained that “[a] broadband provider may offer a data plan in which a subscriber receives a set amount of data at one speed tier and any remaining data at a lower tier.” Neither does the record demonstrate that the possibility of case-by-case review of data caps under the general conduct rule—with its uncertain outcomes—would have prohibited such plans. Following the incident, to avoid another such error, Verizon took a number of steps, such as “updating training for call center representatives to ensure that they are aware that they must promptly remove any data throughput limitations for first responders in an emergency” and “introducing a new plan for public safety customers that eliminated any data speed restrictions for first responders, at no additional cost.” Thus, the issue was quickly addressed due to public awareness and market-based pressure on Verizon to take swift corrective action—precisely the mechanisms that we anticipated would be most effective under the Restoring Internet Freedom Order' s light-touch approach. Further, the record does not provide demonstrable evidence that the Title II Order regime would have resulted in any incremental benefit. We disagree with Free Press' assertion that “Title II allowed the Commission to do more than just enforce those Net Neutrality rules. It also empowered the Commission to assess and prevent other forms of unjust or unreasonable behavior—which may well have included Verizon's decision to cap and throttle firefighters during an emergency. . . .” It is undisputed that Verizon's plan with respect to Santa Clara County was not a broadband internet access service offering; therefore, as discussed above, it would not have been subject to the internet conduct rules under the Title II Order, including the no unreasonable interference/disadvantage standard.

37. We also disagree with ADT that two incidents from 2015 and 2016 warrant Commission rules prohibiting blocking and throttling of public safety-related services. ADT alleges an incident occurred in 2015, in which a number of its customers in Puerto Rico using a specific broadband provider suddenly lost the ability to use features of its home automation service that enables customers to control their alarm systems remotely or to access their video surveillance cameras, and another, similar incident occurred on the mainland in 2016. We considered and rejected such concerns as a basis for conduct rules in the Restoring Internet Freedom Order, however, explaining that “it is unclear if the blocking was intentional and the blocking was resolved informally.” ADT does not provide any new information here that justifies revisiting those observations. Further, we observe that ADT has not pointed to any such issues since the adoption of the Restoring Internet Freedom Order, consistent with our expectation that ISPs are unlikely to risk the reputational damage of engaging in such practices. In addition, our transparency rule requires ISPs to disclose such practices, which would enable alarm services companies like ADT to address such issues in a timely manner. Indeed, ADT itself recognizes that the currently mandated disclosures “provide a framework for ensuring that public safety and alarm company communications using broadband services are afforded protections against unintentional blocking or throttling, that they are informed of mechanisms to promptly restore services, including any repair or restoration performance metrics, and that they are provided contact information necessary to trigger ISP corrective actions.” ADT urges us to “remind ISPs that they must prominently display contact information and sufficiently disclose the[ ] mechanisms to have service promptly restored in the event of inadvertent blocking or throttling of broadband services.” We restrict this Order on Remand to addressing the issues specifically remanded by the D.C. Circuit and decline to comment upon or interpret other aspects of the Restoring Internet Freedom Order such as the transparency requirements. We do note, however, that ISPs remain obligated to fulfill all transparency obligations set forth in the Restoring Internet Freedom Order, including disclosure of redress options. Relevant to its concerns about discrimination by ISPs with competing alarm monitoring services, ADT notes that ISPs have “stated commitments to refrain from engaging in unreasonable discrimination” and recognizes that “[f]ailure to comply with disclosed practices exposes ISPs to liability.” Thus, we conclude that the incidents cited by ADT do not justify revisiting the regulatory approach we adopted in the Restoring Internet Freedom Order .

38. Speculation Regarding Specific Forms of Harm . We next review speculative claims in the record regarding various specific types of harm to public safety communications that allegedly could arise from the Restoring Freedom Order . In each case, we find no evidence that the form of harm at issue has occurred and conclude that such harm is unlikely to arise as a result of the Restoring Internet Freedom Order .

39. Speculative Harm—Blocking and Throttling . We disagree with commenters who assert that the Restoring Internet Freedom Order will lead to ISPs engaging in blocking and throttling practices that harm public safety. As an initial matter, all major ISPs have made written commitments not to engage in practices considered to violate open internet principles, including blocking and throttling. Even in the absence of such commitments, as we previously found in the Restoring Internet Freedom Order, it is likely that “any attempt by ISPs to undermine the openness of the internet would be resisted by consumers and edge providers.” Consequently, ISPs lack an economic incentive to engage in practices such as blocking or throttling, especially when these practices may harm public safety. As the D.C. Circuit explained, “the harms from blocking and throttling during a public safety emergency are irreparable.” We agree, and as such note ISPs' enforceable commitments against blocking and throttling, and again note that such emergency communication often occur over specialized, non-mass market data services to maintain quality-of-service. Even if, as the County of Santa Clara et al. claims, “[i]t is difficult, if not impossible for governments to identify harm caused by violations of net neutrality principles,” we observe that it would be as difficult to detect violations of binding net neutrality rules as it is voluntary commitments. We observe that the record lacks evidence of blocked or throttled public safety as a result of the reclassification of broadband internet access service as an information service and the elimination of the internet conduct rules. Thus, we find no basis on this record to conclude that ISPs have engaged or are likely to engage in blocking or throttling that cause harm to public safety in a manner that would have been prohibited under Title II.

40. Importantly, although proponents of Title II regulation express concern that a light-touch framework will lead to practices such as throttling and blocking, the record does not contain even one recent example of such conduct harmful to public safety that would have been prohibited under Title II. If unleashing ISPs from Title II regulation truly endangered public safety, then one would expect that this threat would have materialized in the more than two years that have passed since the Restoring Internet Freedom Order took effect. Instead, there has been no evidence that the anticipated harms have occurred, or that ISPs plan to engage in blocking or throttling of public safety traffic.

41. Likewise, we find unpersuasive commenters' concerns regarding the effect of service plans that limit data or speeds on members of the public who rely on mass market broadband internet access services to access public safety information. We observe that broadband service plans that limit data or speeds were not prohibited even under the Title II Order ; as such, we find the return of broadband internet access service to its information services classification and elimination of the conduct rules irrelevant to the impact on the permissibility of throttling under a data plan when the data cap is exceeded. We also observe that the record provides no evidence of any actual incidences of throttling or usage-based plan allowances that have harmed consumers' mass market broadband internet access service communications in the public safety context.

42. We are similarly unpersuaded by commenters' concerns that public safety communications may be harmed if ISPs theoretically engaged in blocking or throttling practices because “transmissions from public safety officials” cannot “reliably be isolated and identified as governmental communications.” Because ISPs understand that broadband internet access service is used for public safety communications, they have strong incentives to act in accordance with their commitments to abide by open internet principles for all communications, lest they risk reputational damage they might suffer if they were found to be hampering communications that have public safety implications. ISPs' successful response to the exponential network demands during the COVID-19 pandemic demonstrate their willingness and ability to act under a light-touch regulatory framework to protect and facilitate public safety communications during crises.

43. Taken together, these considerations persuade us that commenters' concerns that the regulatory approach of the Restoring Internet Freedom Order would lead to ISP blocking or throttling that causes harm to public safety are speculative and unlikely to occur. The dearth of real-world examples of public safety harms from blocking or throttling mass market broadband internet access service bolsters our views discussed above that the transparency rule, coupled with consumer protection and antitrust laws—especially when further coupled with the particular reputational harms likely to arise were ISPs to block or throttle traffic in a way that harmed public safety—substantially reduce the likelihood of such conduct occurring in the first instance. And scenarios of concern to commenters involving service plans with data caps or speed limits would not have been addressed differently under the Title II regime in any event. As a result, these speculative concerns do not justify altering our regulatory approach in the Restoring Internet Freedom Order .

44. Speculative Harm—Paid Prioritization . We are unpersuaded by commenters who assert that the Restoring Internet Freedom Order will result in ISPs engaging in harmful paid prioritization practices that will have an adverse effect on public safety. The Commission has long recognized and permitted prioritization of public safety communications. For decades, National Security and Emergency Preparedness (NSEP) personnel have had access to priority services programs that leverage access to commercial voice communications infrastructure to support national command, control, and communications by providing prioritized connectivity during national emergencies. (“NSEP personnel” generally refers to individuals who are responsible for maintaining a state of readiness or responding to and managing any event or crisis (local, national, or international), which causes or could cause injury or harm to the population, damage to or loss of property, or degrades or threatens the NSEP posture of the United States.) This prioritized connectivity may consist of prioritized provisioning and restoration of wired communications circuits or prioritized communications for wireline or wireless calls. The current priority services programs were established pursuant to Executive Order 12472, issued in 1984, which called for development of priority services programs to facilitate communications among top national leaders, policy makers, military forces, disaster response/public health officials, public utility services, and first responders. The Commission's rules for the current priority services programs date back to the establishment of the Telecommunications Service Priority (TSP) System in 1988 and the creation of the Priority Access Service (PAS), more commonly referred to as Wireless Priority Service (WPS), in 2000. As the Commission explained when it classified wireline broadband internet access service as an information service, for example, the “classification of wireline broadband internet access service as an information service, . . . will not affect the Commission's existing rules implementing the National Security Emergency Preparedness (NSEP) Telecommunications Service Priority (TSP) System.” In any case, even assuming arguendo that classification of broadband internet access service as a telecommunications service otherwise might have affected the application of these rules—such that obligations under those rules newly would have applied as a result of that classification—that outcome did not actually result from the Title II Order given the forbearance granted there. We recently sought comment on updating and revising our rules governing the priority services programs. The Commission recently proposed to update its rules to expand the scope of the priority services programs to include data, video, and IP-based voice services. As the variety and volume of dedicated services for prioritization of public safety traffic demonstrate, prioritization of public safety communications is critically important to protecting life and property, and nothing in our rules currently prevents service providers from prioritizing public safety communications. Even the Title II Order acknowledged that public safety could benefit from traffic prioritization without running afoul of the bright-line rules in effect at the time, noting that “traffic prioritization, including practices that serve a public safety purpose, may be acceptable under our rules as reasonable network management.” Moreover, the Commission's proposals, should they be adopted, could provide an additional avenue to ensure that public safety communications are appropriately prioritized. As Free State Foundation explains, “[s]haring commercial cores and network traffic on an undifferentiated basis with non-public safety users can pose serious risk to the integrity of public safety communications in times of emergency and other peak congestion situations. When networks are congested or at risk of becoming so, providing network preferences for public safety-related data traffic can prevent disruptions of calls and other timely information being sent to and from first responders and other responsible agencies.”

45. The Commission explained in the Restoring Internet Freedom Order that “we expect that eliminating the ban on paid prioritization will help spur innovation and experimentation, encourage network investment, and better allocate the costs of infrastructure, likely benefiting consumers and competition.” We see no basis for departing from this reasoning in the public safety context. Concerns expressed by commenters regarding potential adverse effects to public safety as a result of paid prioritization of non-public safety communications appear to be purely hypothetical at this point. Indeed, even as the country faces an unprecedented crisis, the harms predicted by such commenters have not materialized. We note that paid prioritization arrangements are ubiquitous throughout our economy. As Free State Foundation explains, “[b]oth market participants and economists have recognized that such arrangements can benefit customers who choose to pay more for enhanced services while making other customers no worse off. In the broadband communications context, paid priority arrangements between broadband ISPs and edge providers can benefit consumers by offering them novel services supported by Quality-of-Service guarantees. Edge service providers, including new entrants, potentially can improve their competitiveness by obtaining fast and extra-reliable broadband connections. Prioritized access may be necessary for some future internet-based innovative services to function and attract customers. And public safety agencies already stand to benefit from these pro-innovation and pro-investment effects of paid prioritization arrangements and to thereby better fulfill their duties to the public.” Moreover, ISPs have made clear, enforceable written commitments to their customers not to engage in paid prioritization. We also observe that our theories in the Restoring Internet Freedom Order for when paid prioritization might be used contemplated fairly narrow scenarios that are unlikely to be the kind of pervasive practices feared in the Title II Order, and the record here does not undercut that assessment. In particular, we rejected assertions that allowing paid prioritization would lead ISPs to create artificial scarcity on their networks by neglecting or downgrading non-paid traffic or public safety communications, creating a widespread need for, and purchase of, paid prioritization arrangements. Instead, we anticipated paid prioritization being used to address innovative, but ultimately targeted, scenarios. In addition, a number of ISPs question the likelihood and prevalence of paid prioritization arrangements actually occurring in practice. Given those considerations, neither scarcity of network resources nor instances of paid prioritization are likely to be anywhere as pervasive as feared by proponents of the Title II Order, particularly to the point of adversely impacting public safety communications. Further, as AT&T points out, the Title II Order did not ban all prioritization. That Order expressly permitted direct interconnection between ISPs and content delivery networks, which act as agents for paying content providers. The Title II Order also made clear that certain categories of service, such as “enterprise” services and those services considered “non-BIAS services,” were not subject to the Order's restrictions. Finally, under the Title II Order, the Commission was authorized to grant waivers of the paid priority ban where the petitioner could demonstrate that “the practice would provide some significant public interest benefit and would not harm the open nature of the internet.” We thus conclude that the scenarios of potential concern for public safety communications are much narrower than commenters fear. As a result, such concerns do not alter our decision to retain the regulatory framework of the Restoring Internet Freedom Order .

46. We are unpersuaded by assertions that permitting paid prioritization practices that were impermissible under the Title II Order will necessarily lead to degradation of public safety communications. Such commenters “mistakenly believe that QoS is a zero-sum game, one in which it is impossible to tailor the management of network resources to the needs of specific organizations and applications without impairing those not so managed.” As we already concluded in the Restoring Internet Freedom Order, “ `prioritizing the packets for latency-sensitive applications will not typically degrade other applications sharing the same infrastructure,' such as email, software updates, or cached video.” The record here supports a similar conclusion for a wider array of applications, as well. As Rysavy Research explains, for example, “prioritizing one application over another does not necessarily mean a poorer experience for the lower-priority applications. A video streaming application can tolerate considerable delay because the player buffers information, so a user watching a video will never notice some slightly-delayed data. . . . Because different applications have different needs, traffic management is not a zero-sum game.” As such, we find that commenters' concerns that the Restoring Internet Freedom Order will lead to reduced speed for customers that do not pay extra for paid prioritization, resulting in harms to public safety, are not well-founded.

47. Speculative Harm—Communications by Individuals with Disabilities . We are not persuaded by the claims of some commenters that the regulatory approach adopted in the Restoring Internet Freedom Order would detrimentally effect the safety of life and property for persons with disabilities. We consider these arguments insofar as they relate to the public safety remand in Mozilla . To the extent that these comments raise other issues related to the effect of the Restoring Internet Freedom Order 's regulatory approach on persons with disabilities, we do not reopen those issues from the Restoring Internet Freedom Order here and thus reject the arguments as outside the scope of this proceeding. Consistent with the Commission's commitment to communications services for individuals with disabilities, we conclude that the regulatory approach established in the Restoring Internet Freedom Order ultimately benefits public safety communications by individuals with disabilities in the same manner as public safety communications more generally—by encouraging competition and deployment. Further, as held in the Restoring Internet Freedom Order, the regulatory approach adopted there does not significantly alter the regulatory landscape of statutory protections for communications by persons with disabilities.

48. In substantial part, the concerns raised about potential public safety harm to persons with disabilities are the same harms commenters raise with respect to the public more generally from potential blocking, throttling, or paid prioritization—that users' broadband internet access service-based communications services needed for public safety reasons might be hindered by such ISP conduct and/or that users might pay more for broadband internet access services with capabilities that avoid such harms. To the extent that commenters simply raise the same concerns that we have considered and found unpersuasive in the case of the public more generally, we likewise reject them in the specific context of persons with disabilities for the same reasons.

49. Nor does the record persuade us that there are likely public safety harms in connection with services used specifically by persons with disabilities as a result of the regulatory approach adopted in the Restoring Internet Freedom Order . The California Public Utilities Commission (California PUC) contends that persons with disabilities “increasingly rely upon internet-based video communications, both to communicate directly (point-to-point) with other persons who are deaf or hard of hearing who use sign language, and through video relay service,” and that “[t]hese applications often require significant bandwidth, making their use particularly sensitive to data caps and network management practices.” As to data caps, however, neither the classification of broadband internet access service as a telecommunications service nor the Title II Order 's bright line rules prevented such caps. Nor does the record demonstrate that the possibility of case-by-case review of data caps—with its uncertain outcomes—would meaningfully address commenters' hypothetical public safety concerns that data caps would hinder the functionality of services relied upon by persons with disabilities for public safety-related communications. Commenters do not explain why they think the application of that case-by-case review would have addressed any theoretical concerns about public safety communications involving persons with disabilities. We do recognize that the use of broadband internet access service to facilitate video communications by persons with disabilities is distinct from the specific types of applications “such as email, software updates, or cached video” that the Restoring Internet Freedom Order identified as typically unlikely to be degraded by prioritization of latency-sensitive applications on the same facilities. In addition to the video communications services cited by the California PUC, BBIC cites educational tools for persons with disabilities: “Remote Real-time Captioning for classes, E-Text through Bookshare.org (Accessing and Downloading Accessible Text Books) and the ability to access and download software including dictation software, screen readers, and Text To Speech Softwares.” As a threshold matter, the nexus to public safety is unclear, particularly as it relates to the use of broadband internet access service by persons with disabilities to download books and software. We also find that downloading books and software are likely akin to the non-latency-sensitive uses of broadband internet access service that the Commission already held unlikely typically to be affected by prioritization of other traffic, and the record here does not demonstrate otherwise. With respect to “Remote Real-time Captioning for classes,” we are not persuaded that any public safety implications are materially different for that use of broadband internet access service than for others, like video communications, discussed in the text. To the extent that BBIC's concern is about blocking or throttling of traffic, the Commission already rejected the likelihood of that in the Restoring Internet Freedom Order, and we do not revisit that conclusion here. Nor are we persuaded that there are public safety implications for these specific uses of broadband internet access service cited by BBIC that cannot adequately be addressed, if needed, through the marketplace or other laws given that their nature and context does not appear to involve the need for immediate communications to address imminent threats to life or property. But we do not find the likely effects on these services meaningfully different than our public safety analysis of the other video communications applications potentially used by the public more generally as raised by commenters in the record here. Indeed, there is no evidence of such harm occurring since the Restoring Internet Freedom Order took effect. Consequently, we reject public safety concerns about video applications used by persons with disabilities for the same reasons we reject public safety concerns raised in connection with other latency-sensitive over-the-top services used by the public more generally for public safety purposes. Although the record does not persuade us of likely public safety harms to communications involving persons with disabilities using video communications over broadband internet access service, should such evidence emerge we have authority to act consistent with the regulatory approach to broadband internet access service adopted in the Restoring Internet Freedom Order . As we held in the Restoring Internet Freedom Order, the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) “directed the Commission to enact regulations to prescribe, among other things, that networks used to provide” advanced communications services (ACS), which includes electronic messaging and interoperable video conferencing services, “ `may not impair or impede the accessibility of information content when accessibility has been incorporated into that content for transmission through . . . networks used to provide [ACS].' ”

50. We also are not persuaded by commenters' claims that ISP conduct will lead to violations of laws establishing protections for persons with disabilities. As a threshold matter, the nexus between those concerns and public safety issues (or any other remanded issue) is far from clear—and to the extent commenters raise issues lacking a nexus to the remanded issues, we reject them as beyond the scope of this proceeding. Independently, the record does not demonstrate that the regulatory approach adopted in the Restoring Internet Freedom Order will lead to the violation of the laws cited by commenters. Commenters express vague concerns about the potential violation of section 225 of the Act, which calls for the Commission to establish Telecommunications Relay Services (TRS) to provide certain persons with disabilities communications services that are functionally equivalent to voice telephone service. The Commission's rules define the standards that providers subject to section 225 must meet. Although some TRS services are carried via broadband internet access service, commenters do not explain how the regulatory approach in the Restoring Internet Freedom Order will preclude providers subject to section 225 from complying with the Commission's rules implementing section 225. We also see no basis in this record to conclude that our policy discretion under section 225 of the Act to revise our TRS rules to reflect evolving standards over time would be materially affected under the regulatory approach adopted in the Restoring Internet Freedom Order .

51. Commenters' arguments are also flawed insofar as they focus not on violations of laws by the ISPs themselves but on the theory that ISPs' conduct might make it harder for third parties to comply with their obligations under laws protecting individuals with disabilities. For one, the record does not demonstrate that such effects on third party compliance are likely. Independently, we are not persuaded that such speculative concerns would provide a sound basis upon which to revisit the regulatory approach of the Restoring Internet Freedom Order . Even assuming arguendo that certain regulation of ISPs could make it easier for third parties to comply with those third parties' statutory obligations, the net result would be to shift compliance burdens away from the parties actually subject to the statutory duties and onto the ISPs. In effect, such regulation would require ISPs to implicitly subsidize the compliance costs of the entities actually subject to the statutory duties. We are not persuaded that would be an appropriate basis for regulation.

52. Finally, we are unpersuaded by BBIC's assertion that provider conduct no longer prohibited by the regulatory approach in the Restoring Internet Freedom Order might violate the Americans with Disabilities Act's (ADA) “prohibit[on on] interference with rights granted under the ADA statute” or “raise state law tort issues such as claims for prospective interference with business advantage.” BBIC does not explain why the theoretical potential for a provider's conduct to violate any such requirements is, in itself, a reason to return to the regulatory approach of the Title II Order . Not only is the potential for violations theoretical, but BBIC has not sufficiently articulated a potential legal violation. We thus reject BBIC's assertion that “[t]he FCC must explain its analysis of whether the ADA interference statute is violated by ISP demands for payment for fast internet access for additional payments or at risk of slowdown of the data or vital services including telemedicine for persons with disabilities.” In other words, even assuming arguendo that certain provider conduct already is prohibited by a law like the ADA's prohibition on interference, the record does not reveal any public safety benefit from the Commission separately and independently regulating broadband internet access service providers simply to ensure they comply with obligations they already otherwise are subject to by law. Finally, the record does not reveal any additional public safety concerns that would arise from the speculative claimed violation of these laws, independent of the concerns about the public safety effects of ISPs' pricing and network management practices that we already considered and rejected above. Indeed, one concern raised by the California PUC appears even further removed, insofar as it expresses concern about the loss of “copper wires which carry 911, closed captioning and TTY services.” Neither the definition nor classification of broadband internet access service is tied to the physical medium—copper vs. fiber—over which it is provided, however, nor does the California PUC give any indication of how the Title II Order would have addressed its concerns about the loss of copper network facilities better (or at all).

53. Speculative Harm—Critical Infrastructure . We disagree that the elimination of the internet conduct rules will impact the safety and reliability of “critical infrastructure sectors,” including electric, gas, water, and communications utilities, “which in turn negatively impacts public safety,” as claimed by some commenters. Commenters cite various federal laws or statements of policy regarding critical infrastructure in general or the use of the internet and other communications technologies as part of those sectors. In some cases, the cited materials appear to adopt principles or requirements specific only to the implementation of those statutes or involve communications services generally in a way that extends far beyond the scope of this proceeding. Nor is our analysis altered by references to “state laws making the interference with administration of government an offense ranging from a civil to a criminal misdemeanor—or felony.” The record is not sufficiently developed on these legal standards and their potential application to any provider conduct that theoretically could raise public safety concerns for us to formally opine on them here, and in any case BBIC does not explain why the theoretical potential for a provider's conduct to violate any such requirements is, in itself, a reason to return to the regulatory approach of the Title II Order . The California PUC also cites its efforts to “adopt[ ] a number of emergency customer protection measures to support residential and small business customers of utilities affected by disasters,” stating that these come in the aftermath of a disaster and involve what it asserts without elaboration are “vital communications services.” The actual nexus between the California PUC's customer protection measures and protection of critical infrastructure or public safety more generally is unclear on this record. And the California PUC's concern in this regard appears to center on arguments certain providers made objecting to its regulations, among many other grounds, on the basis of the preemption portion of the Restoring Internet Freedom Order . These arguments appear to have been made prior to the Mozilla court vacating that portion of the Restoring Internet Freedom Order —a fact the California PUC does not address—and otherwise remain unresolved. We thus are not persuaded that these arguments demonstrate a public safety harm arising from the Restoring Internet Freedom Order' s regulatory approach. Commenters' concerns about critical infrastructure-related risks are premised on the same ISP conduct that underlie commenters' public safety concerns more generally—blocking, throttling, and paid prioritization—which we find unlikely to occur for the reasons already discussed above. As we found, the effects of ISP conduct involving paid prioritization, should they occur, are unlikely to detrimentally affect applications used for public safety purposes generally, and the record does not justify a different conclusion in the case of the applications cited by commenters in connection with critical infrastructure. Late in the proceeding BBIC filed an ex parte attaching in full a number of law journal articles and a brief from the Mozilla litigation from 2018 and 2019 without directing the Commission's attention to particular elements or aspects of those attachments beyond the specific quotes or arguments from those materials that it referenced in earlier filings, instead stating simply that “the attached material [is] responsive to issues raised in these proceedings.” Reviewing that filing in a manner consistent with the circumstances, each of the attachments appear, at least in part, to discuss public safety concerns in general, including critical infrastructure issues in particular. To the extent that the attachments appear to bear on the remanded public safety issue, these attachments do not appear to raise facts, arguments, or concerns that differ in material ways from those we otherwise address and find unpersuasive in this section. For example, we do not readily identify in these attachments—and BBIC's accompanying ex parte letter does not highlight—circumstances where ISPs are likely to behave differently than otherwise reflected in our public safety analysis; nor applications or services with technical characteristics materially different than those otherwise considered in our analysis; nor legal responsibilities imposed on the Commission that we have not met here; nor other reasons for the Commission to reject its regulatory approach from the Restoring Internet Freedom Order that are materially different from the arguments the Commission otherwise finds unpersuasive in its analysis here. Nor is there evidence of such harm occurring since the Restoring Internet Freedom Order took effect.

54. Although commenters discuss various applications that arguably have at least some nexus to critical infrastructure protection, the record does not reveal technical details regarding the operation of any of those applications that demonstrates that they would be significantly affected by ISP network management, let alone in a way that would have been prohibited by the rules adopted in the Title II Order . Nor is it even clear that all of the cited applications rely on mass market broadband internet access service, rather than enterprise services, specialized services, or other services that fell outside the scope of the Open Internet Order and Title II Order . For example, it is not clear from the record that “ `Smart Grid communication to the internet-enabled backbone,' ” necessarily relies on mass market broadband internet access service. Nor is it clear whether the operation of certain devices that facilitate the applications cited by commenters, such as “internet-connected thermostats, solar panels, and energy storage units,” would rely on mass market broadband internet access service or instead on some other “non-BIAS data services” and as such, by default would not have been regulated by the Title II Order in any event. Commenters' various high-level claims about the general importance of communications to critical infrastructure also appear to extend beyond mass market broadband internet access services. Indeed, it is the increasingly robust broadband made available since the Restoring Internet Freedom Order that has made possible the “fast, instantaneous communications” needed for many of the beneficial critical infrastructure-related programs to be effective.

55. Limited Scope of Any Hypothetical Harm . We emphatically agree with the Mozilla court that “whenever public safety is involved, lives are at stake.” Our analysis above demonstrates that harms to public safety, and thus American lives, have not arisen and are unlikely to arise as a result of the Restoring Internet Freedom Order . To be thorough, we must further observe that if some harm were nonetheless to arise, its impact would necessarily be limited by the important but bounded role that broadband internet access service plays in the broader public safety communications marketplace. Public safety entities often rely on enterprise-level broadband data services for communications between public safety officials, which were never subject to the Title II Order . And while mass market broadband services are a critical element of public safety communications for members of the public, such services are not the only means of disseminating, accessing, and conveying important public health and safety communications, as consumers rely on voice services (most notably 911 capabilities), the emergency alert system, and wireless emergency alerts for accessing important public safety information as well.

56. Our analysis leads us to conclude that the likely benefits of the Restoring Internet Freedom Order for public safety clearly outweigh any harms. Getting broadband to more Americans sooner and at lower prices can and will likely save lives. This public safety benefit extends beyond broadband internet access service to all commingled services that rely on the same facilities, and even to other services that ISPs may invest in with money that they would otherwise have spent on regulatory compliance. Weighed against our conclusion that harms to public safety have not arisen and are unlikely to arise as a result of the Restoring Internet Freedom Order, it is clear that the benefits of the underlying order outweigh the costs as to public safety. Moreover, we must take into account that the likely benefits of the Restoring Internet Freedom Order extend far beyond public safety, and into every realm of American life touched by the internet. As we explained in the Restoring Internet Freedom Order, reinstating the information service classification for broadband internet access service “is more likely to encourage broadband investment and innovation, further our goal of making broadband available to all Americans and benefitting the entire internet ecosystem. ISP investment does not simply take the form of greater deployment, but can also be directed toward new and more advanced services for consumers. Enabling ISPs to freely experiment with services and business arrangements that can best serve their customers, without excessive regulatory and compliance burdens, “is an important factor in connecting underserved and hard-to-reach populations,” and we agree with the Chamber of Commerce that the positive effects of the Restoring Internet Freedom Order likely will help “enable the deployment of rural broadband and 5G technologies that benefit the entire economy and will help close the digital divide.” We thus conclude that the overall benefits of the Restoring Internet Freedom Order (including to public safety) clearly outweigh any harms to public safety.

57. The Mozilla court directed us to “grapple with the lapse in legal safeguards” that results from reclassification eliminating section 224 pole attachment rights of ISPs that lack a commingled telecommunications service or cable television system ( i.e., broadband-only providers). For the reasons below, we find that the benefits of returning to the light-touch information service classification adopted in the Restoring Internet Freedom Order far outweigh any limited potential negative effects resulting from the loss of section 224 rights for broadband-only ISPs.

58. The Commission has broad authority under section 224 of the Act to regulate attachments to utility-owned-and-controlled poles, ducts, conduits, and rights-of-way. Section 224 defines pole attachments as “any attachment by a cable television system or provider of telecommunications service to a pole, duct conduit, or right-of-way owned or controlled by a utility.” It authorizes us to prescribe rules to ensure that the rates, terms, and conditions of pole attachments are just and reasonable; require utilities to provide nondiscriminatory access to their poles, ducts, conduits, and rights-of-way to telecommunications carriers and cable television systems (collectively, attachers); provides procedures for resolving pole attachment complaints; governs pole attachment rates for attachers; and allocates make-ready costs among attachers and utilities. The Act defines a utility as a “local exchange carrier or an electric, gas, water, steam, or other public utility, . . . who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications.” However, for purposes of pole attachments, a utility does not include any railroad, any cooperatively-organized entity, or any entity owned by a federal or state government. Section 224 excludes incumbent local exchange carriers from the meaning of the term “telecommunications carrier,” therefore these entities do not have a mandatory access right under section 224(f)(1). The Commission has held that when incumbent local exchange carriers obtain access to poles, section 224 governs the rates, terms, and conditions of those attachments. The Act allows utilities that provide electric service to deny access to their poles, ducts, conduits, or rights-of-way because of “insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes.”

59. The Act nonetheless only gives the Commission limited authority. It exempts from our jurisdiction those pole attachments in states that have elected to regulate pole attachments themselves, referred to as reverse preemption states. Twenty-four states and the District of Columbia have elected this reverse preemption, leaving our rules to govern pole attachments in 26 states and the U.S. Territories. Section 224 also does not cover poles owned by municipalities, electric cooperatives, railroads, or the Federal or state governments.

60. Based on the record, we find that the benefits of returning broadband internet access service to its historical information service classification outweigh any potential adverse effects resulting from the loss of pole attachment rights under section 224 for broadband-only ISPs. First, we find that any drawbacks of reclassification are limited because in the areas where federal pole attachment regulation applies, almost all ISPs' pole attachments remain subject to section 224, as they commingle cable or telecommunications services with their broadband services. Second, we conclude that the benefits of reclassification for broadband-only providers outweigh any limited pole attachment-related drawbacks they face—and the overall benefits of reclassification outweigh the drawbacks of broadband-only ISPs' attachments no longer being subject to section 224.

61. Drawbacks of Reclassification Are Limited . Section 224 applies to attachments of cable television systems and providers of telecommunications services, but not to providers of only information services. As the Commission has previously clarified, however, “where the same infrastructure would provide `both telecommunications and wireless broadband internet access service,' the provisions of section 224 governing pole attachments would continue to apply to such infrastructure used to provide both types of service.” This determination is consistent with the U.S. Supreme Court's decision in NCTA v. Gulf Power Co., in which the Court held that the protections afforded by section 224 to cable attachments remain in place when a service provider uses the same facilities to offer broadband internet access service to its subscribers. Thus, in non-reverse preemption states, “the protections afforded by section 224 to cable television systems and providers of telecommunications service remain in place when a service provider uses the same facilities to offer broadband internet access service to its subscribers.” Only the few ISPs that do not offer cable or telecommunications services over the same network would not be able to avail themselves of the protections Congress established in section 224 and the Commission's implementing rules.

62. We find that the vast majority of subscribers are served by ISPs that provide either cable or telecommunications services over their networks and therefore remain able to take advantage of the rights guaranteed by section 224 after the reclassification of broadband internet access service as an information service. Public Knowledge et al. claim that AT&T may soon cease to provide a telecommunications service or a cable television service, and as a result, “the entire AT&T network will no longer be eligible for pole attachment rates” and AT&T may no longer “qualify as a LEC.” Speculation regarding a single provider is insufficient to justify changing our course. Further, in the attachment on which Public Knowledge et al. rely, AT&T merely sets forth a plan to grandfather DSL (a legacy information service). The document specifically states that customers that wish to retain plain old telephone service (a telecommunications service) may do so, and Public Knowledge et al. do not provide any evidence that AT&T plans to discontinue any telecommunications services offered over any of its facilities. Carriers must obtain Commission approval prior to discontinuing telecommunications services, and interested parties would have an opportunity to object to any proposed continuance. The record overwhelmingly confirms our conclusion. According to ACA Connects, all of its members “ `commingle' broadband with either or both a cable or telecommunications service over the same network.” Likewise, the Edison Electric Institute's members “report that at this time very few ISPs seek to attach to electric company poles to provide broadband-only service.” USTelecom cites a November 2019 report stating that at least 96% of the broadband market was served by companies that either provided telecommunications services or operated a cable system.” Further, we agree with ACA Connects that ISPs will continue to offer commingled services for the foreseeable future because “ISPs have an incentive to offer as many services as possible over their networks to achieve efficiencies and maximize revenues, and thus very few providers only offer over their networks standalone broadband service.” In fact, NCTA argues that a reason broadband-only providers are particularly rare is “precisely because triple-play services are both popular with subscribers and beneficial to providers.” Notably, multiple commenters agree that the majority of existing ISPs offer commingled services. Further, ISPs may gain the status of telecommunications providers, and thus become eligible for section 224 pole attachment rights. Our experience with the substantial participation in the Connect America Fund (CAF) Phase II universal service support auction and, more recently, our Rural Digital Opportunity Fund Phase I auction demonstrates that providers are willing or able to become telecommunications carriers when they find it beneficial. 220 applicants qualified to bid in the CAF Phase II auction, and as of September 2020, 192 of 194 winning bidders had been designated as ETCs in 45 states and been authorized to begin receiving support. The Rural Digital Opportunity Fund auction imposed similar ETC designation requirements on applicants. Bidding in the Rural Digital Opportunity Fund Phase I auction is scheduled to begin on October 29, 2020, and the Commission received 505 applications to participate. As another option, a broadband-only provider may also partner with an existing cable or telecommunications provider to invoke section 224 protections.

63. Although we agree that timely “access to utility poles is a competitive bottleneck,” based on the record, we are convinced that reclassification does not significantly limit new entrants to the marketplace or the effectiveness of the Commission's recent one-touch-make-ready rules. Broadband-only providers now have the regulatory flexibility to enter into innovative and solution-oriented pole attachment agreements with pole owners. Indeed, Southern Company notes that its operating companies—Georgia Power, Alabama Power, and Mississippi Power—“routinely enter into pole license agreements with entities that are neither cable television systems nor telecommunications carriers” and “[t]he negotiation of these pole license agreements is often more efficient than negotiation of pole license agreements with cable television systems or telecommunications carriers because the prospective licensee appears to be more interested in a deal that works than they are interested in ensuring that any perceived regulatory rights are reflected in the agreement.” Further, since the adoption of the Restoring Internet Freedom Order, there is only limited evidence in the record that a small number of broadband-only providers have experienced increased costs to obtain access to poles, and there is also evidence that such costs or other barriers have not increased. For instance, Southern Company explains that “its operating companies have not increased pole attachment rates or prohibited a broadband provider from attaching equipment following the Order” and that it must “answer to a state public service commission when it comes to the lease of property capitalized within the rate base.” Only WISPA provides some isolated and anecdotal examples of higher pole attachment rates, but fails to demonstrate the existence of a widespread problem. Indeed, WISPA emphasizes that these few incidents do not outweigh the overall positive impact of Title I reclassification for its members. Although some commenters contend that the reclassification has adversely impacted broadband-only providers, they largely fail to provide data or specific examples that connect the Restoring Internet Freedom Order to a rise in pole attachment rates or denials of pole access. For instance, while Google Fiber states that, prior to the Title II Order, negotiations over pole attachment agreements with pole owners “were difficult and time consuming,” and it “had to be willing to pay higher rent than cable operators and telecommunications providers,” as commenters note, Google does not provide examples of similar negotiation and rate difficulties since the adoption of the Restoring Internet Freedom Order . Notably, Google merely speculates that it “may find itself with no right to use [“one-touch make-ready”] OTMR procedures in a given market.” Google Fiber advocacy at the time suggests that it anticipated accruing benefits from our adoption of OTMR. Google Fiber strongly supported OTMR adoption in the 2018 Wireline Infrastructure (83 FR 46812, Sept. 14, 2018) proceeding, despite the fact this proceeding occurred after we reclassified broadband as an information service in the Restoring Internet Freedom Order . Google Fiber also had a representative on the Broadband Deployment Advisory Committee who voted in favor of its report recommending that the Commission adopt OTMR. We find this speculation unconvincing and, to the contrary, agree with ACA Connects members that over time, new and existing attachers, as well as pole owners, will “find it to their advantage to use [the OTMR] process, making it an industry standard—regardless of whether an attacher has section 224 rights.”

64. Further, despite its concerns that pole owners will use the reclassification of broadband internet access service as an information service to delay and even block new deployments by broadband-only providers, Google acknowledges that before broadband internet access service was classified as a telecommunications service, it was able to enter into such agreements with utilities. Southern Company confirms that in February 2014, “Google Fiber first approached Georgia Power about a pole license agreement” and “[b]y December 15, 2014, the parties had fully executed their agreement.” Notably, although Google Fiber repeatedly emphasizes the unfairness of its inability to take advantage of pole access rights for cable operators under section 224, NCTA contends that Google Fiber could, in fact, be classified as a Title VI cable service due to its video offering, but has taken the position that its video offering is not a cable service in order to avoid regulatory burdens under Title VI.

65. The limited impact of the loss of section 224 rights for broadband-only providers is further diminished by the fact that states have the ability to reverse-preempt the Commission's rules under section 224(c)—and a substantial minority have in fact done so. As multiple commenters note, our Title I classification does not impact the 24 states and the District of Columbia that have chosen to reverse-preempt our rules. Therefore, if a state prefers to adopt a different regulatory approach, that state has the opportunity to exercise its authority to expand the reach of government oversight of pole attachments, and several states that have reverse preempted currently regulate pole attachments by information service providers. The Restoring Internet Freedom Order does not disturb the authority of states that have reverse preempted to assert such jurisdiction or prevent states that have not reverse preempted from doing so in order to assert such jurisdiction. The California Public Utilities Commission expresses concern that “ISPs may attempt to invoke the information services classification as a shield against a State's jurisdiction to regulate pole attachment safety.” It claims that “overloaded poles and/or insufficiently maintained attachments” have presented public safety issues. However, California currently regulates pole attachments at the state level so it is free to assert its authority over pole attachments by broadband-only providers under California law as it wishes without federal restriction under the Act.

66. We note further that section 224 has several gaps, such that the exclusion of broadband-only providers is not aberrant. Section 224 applies to specific categories of poles and, as noted above, only in applicable states. As noted above, poles owned by municipalities, electric cooperatives, railroads, and Federal and state governments are not covered under section 224, and so the adoption of the Restoring Internet Freedom Order does not affect the access of any ISP to such poles.

67. The Benefits of Reclassification Outweigh Any Pole Attachment-Related Drawbacks . Ultimately, the record supports our determination that the reclassification of broadband internet access service as an information service has facilitated rather than inhibited new technologies and business models, despite the rare potential for pole attachment access challenges. To this end, given the overall benefits of Title I reclassification, we find that it would be counterproductive to upend our light-touch regulatory framework for broadband internet access service because of speculative concerns that at most would impact a small minority of ISPs and consumers.

68. First, there is no question that the overall benefits of reclassification outweigh the limited drawbacks that stem from broadband-only ISPs losing their section 224 pole attachment rights. As we have discussed, numerous commenters—including broadband-only ISPs—assert that Title I reclassification has promoted robust infrastructure investment and deployment in broadband networks and facilities. Indeed, the Mozilla Court upheld our cost-benefit analysis in the Restoring Internet Freedom Order, stating that we made a “reasonable case that [our] `light-touch' approach is more conducive to innovation and openness than the Title II Order.”

69. Second, the regulatory certainty provided by the Commission's actions in the Restoring Internet Freedom Order create incentives that likely help foster substantial investment in new broadband infrastructure, including poles, and increased broadband deployment. For instance, “[a] WISPA member in Minnesota has invested $1.5 million dollars to expand its network by adding 12 new towers since January 2018” and “[t]his expansion has allowed the company to fully cover two additional counties in Minnesota.” We agree with the majority of commenters that these benefits outweigh the loss of section 224 protections for the very limited number of broadband-only providers that do not offer a cable or telecommunications service over the same network as they provide broadband internet access service. Indeed, despite a membership including broadband-only providers, WISPA emphatically confirms our position that “[t]here is no doubt that the Restoring Internet Freedom Order 's abandonment of burdensome Title II regulations for broadband internet access service providers is of paramount importance in promoting deployment of new service and enhancing competitive offerings. If it were actually a choice between the world of Title II regulation and the lighter touch of Title I regulation, with no pole attachment protections for broadband-only providers, WISPA would choose the latter paradigm.”

70. We decline at this time to address requests in the record to reinterpret section 224 or rely on other sources of authority to extend the availability of access rights under section 224 to broadband-only providers. A number of commenters propose sources of Commission authority to extend section 224 to cover broadband-only ISPs. For instance, WISPA proposes to directly apply section 224 or rely on ancillary authority. Specifically, WISPA contends that the plain text and objective of section 224, as well as provisions such as sections 157 and 257 of the Act, and section 706 of the 1996 Act, is “to level the playing field, promote competition, expand the public's access to advanced services or ensure that customers have access to service at `just and reasonable rates.' ” According to WISPA, we could also exercise our ancillary jurisdiction under section 154 or rely on section 706 as our statutory authority to extend pole access and rate rights to broadband-only providers. Other commenters offer general support for us to extend section 224 to cover broadband-only providers. Alternatively, Southern Company proposes “to unwind many of the incumbent-friendly pole attachment regulations adopted by the Commission during the past decade, in order to allow broadband-only providers to compete on a more level regulatory playing field.” For the purposes of this Order on Remand, we find that even assuming we lack authority to extend section 224 to cover broadband-only providers, the overall benefits of reclassification outweigh the limited drawbacks. Parties arguing in favor of extending pole attachment rights to broadband-only ISPs are free to file a petition for rulemaking or petition for declaratory ruling, which we then may consider with the benefit of a full and focused record on the topic.

71. The D.C. Circuit in Mozilla directed us to consider on remand the statutory basis for broadband internet access service's inclusion in the Lifeline program. After such consideration, we further explain our finding that we have legal authority under section 254(e) of the Act to distribute Lifeline support for broadband service provided by ETCs. That authority is undergirded by the clear intent of Congress that universal service efforts should increase access to advanced services, and the record in this proceeding offers broad support for our conclusion.

72. In the 2011 USF/ICC Transformation Order (76 FR 73830, Nov. 29, 2011), the Commission adopted comprehensive reforms to modernize the Universal Service Fund (USF or Fund) to “implement Congress's goal of promoting ubiquitous deployment of, and consumer access to, both traditional voice calling capabilities and modern broadband services over fixed and mobile networks.” As part of this modernization effort, the Commission leveraged the funding disbursed through the Fund's high-cost mechanism to encourage the deployment of broadband-capable networks, even though broadband internet access service was at the time classified as an information service. The Commission stated that by “referring to `facilities' and `services' as distinct items [in section 254(e)] for which federal universal service funds may be used . . . Congress granted the Commission the flexibility not only to designate the types of telecommunications service for which support would be provided but also to encourage the deployment of the types of facilities that will best achieve the principles set forth in section 254(b) and any other universal service principle that the Commission may adopt under section 254(b)(7).” The Commission further concluded that section 254 allowed it to condition the receipt of universal service support on ETCs offering broadband capabilities to their customers. The Tenth Circuit affirmed this approach as a reasonable interpretation of the statute and upheld the Commission's authority to structure universal service support to ensure that the universal service policies set out in section 254(b) of the Act are achieved.

73. The Commission first funded broadband internet access service offerings in the Lifeline program when it launched the Lifeline Broadband Pilot Program as part of the reforms adopted in the 2012 Lifeline Order (77 FR 12952, March 2, 2012). In doing so, the Commission relied upon the same theory of legal authority it applied to the high-cost mechanism in the USF/ICC Transformation Order . At the time that the Commission initiated the Lifeline Broadband Pilot Program, broadband internet access service was classified as an information service under Title I. After a successful pilot program, in the 2016 Lifeline Order (81 FR 33026, May 24, 2016), the Commission expanded the Lifeline program to include support for broadband internet access service funding. However, since broadband internet access service had been reclassified as a telecommunications service subject to Title II regulatory requirements before the 2016 Lifeline Order, the Commission relied on that reclassification when expanding the Lifeline program to include support for broadband but did not disavow the legal authority theory used in the USF/ICC Transformation Order or the 2012 Lifeline Order .

74. In the 2017 Lifeline Notice of Proposed Rulemaking (NPRM) (83 FR 2104, Jan. 16, 2018), to ensure that the Commission was administering the Lifeline program on sound legal footing, the Commission proposed to apply the same theory of legal authority it used in the USF/ICC Transformation Order and the 2012 Lifeline Order to continue funding broadband internet access service in the Lifeline program. In that NPRM, the Commission asserted that it had the proper authority “under Section 254(e) of the Act to provide Lifeline support to ETCs that provide broadband service over facilities-based broadband-capable networks that support voice service.” The Commission concluded that this “legal authority does not depend on the regulatory classification of broadband internet access service, and thus, ensures the Lifeline program has a role in closing the digital divide regardless of the regulatory classification of broadband service.” Indeed, the Commission further concluded that it had a “ `mandatory duty' to adopt universal service policies that advance the principles outlined in section 254(b) and we have the authority to `create some inducement' to ensure that those principles are achieved.” In the same NPRM, the Commission sought comment on eliminating the Lifeline Broadband Provider category of ETC, a broadband-only ETC designation that had been newly created in the 2016 Lifeline Order when broadband internet access service had been classified as a Title II service.

75. Finally, in the 2019 Lifeline Order (84 FR 71308, Dec. 27, 2019), the Commission re-evaluated the legal structure of the Lifeline Broadband Provider ETC category. With no obligation to offer the supported voice service under section 254(c), the Commission found that the Lifeline Broadband Provider category was in conflict with section 214. As such, the Commission eliminated this ETC category. Free Press argues that the Commission's decision to reclassify broadband internet access service as an information service “locks [ ] out” broadband-only providers from the Lifeline program. Thus, all ETCs currently are required to be common carriers and to offer voice service. The Commission has held that the section 214 requirement that an ETC offer the supported services through “its own facilities or a combination of its own facilities and resale of another carrier's service” would be satisfied when service is provided by any affiliate within the holding company structure.

76. Upon further review and having considered the record in both the Restoring Internet Freedom proceeding and in response to the 2017 Lifeline NPRM, we determine that we have authority under section 254 of the Act to provide support for broadband internet access service from the Lifeline program in addition to a qualifying voice service. First, we elaborate on our application of the theory of legal authority adopted in the USF/ICC Transformation Order to the Lifeline program. Second, we address how this authority is not dependent on the regulatory classification of broadband internet access service and is consistent with the section 214(e) requirement that ETCs be common carriers. Third, we make necessary adjustments to the Commission's rules to implement this approach. Finally, we address how this legal authority will still allow the Lifeline program to reimburse broadband-only service offerings.

77. We conclude, as the Commission found in the context of the high-cost mechanism, that we have authority under section 254 to continue funding broadband internet access service offerings in the Lifeline program and that this position is strongly supported by the text of the Communications Act and the record. Under section 254(e), carriers receiving support “shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended.” Under this statutory provision, the Commission has flexibility to design its support mechanisms to fund both the service itself—here, voice telephony—and the underlying facilities used to offer the supported service—here, broadband-capable networks. Modern communications networks are multi-use networks used to provide an array of services. Providing Lifeline support when ETCs provide broadband internet access service thus has the effect of supporting the underlying broadband-capable network also used to offer voice telephony. As in the high-cost program, the Commission's support mechanisms can and should incentivize ETCs to offer access to the services that advance the principles of section 254(b). The Leadership Conference Ex Parte also raises a number of suggestions for further Commission action to respond to the COVID-19 pandemic, which we do not address here as they are beyond the scope of this remand proceeding. Other commenters argue that the Commission lacks authority to fund broadband internet access services through the Lifeline program under section 254. We believe this is incorrect, and we address those arguments below. All ETCs participating in the Lifeline program are and will remain common carriers and must offer voice services by themselves or through an affiliate, but the Commission can also continue to support broadband internet access service in the Lifeline program, and the universal service support will flow to the facilities of ETCs that are by definition common carrier providers of voice services.

78. Section 254(e) states that ETCs “shall be eligible to receive specific Federal universal service support” and that an ETC receiving universal service support “shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended.” Section 254(c) does not impose an impediment to this conclusion. While section 254(c)(1) refers to universal service as “an evolving level of telecommunications services,” this does not prohibit the Commission from using the program to more broadly advance the principles set forth in section 254(b) and indicates that Congress disfavored a static approach focused on legacy technologies. Additionally, section 254(b) establishes the principles on which the Commission shall base its policies for the preservation and advancement of universal service. Such principles include ensuring that quality services are available at “affordable rates” and that “access to advanced telecommunications and information services should be provided in all regions of the Nation.”

79. As the Commission concluded in the USF/ICC Transformation Order, by requiring in section 254(e) that ETCs use high-cost support for both facilities and services, Congress granted the Commission flexibility to not only designate the types of services for which support would be provided, but also to encourage the deployment of the types of facilities that will best achieve the principles set forth in section 254(b). In addition, the Commission has a “mandatory duty” to implement universal service policies that advance the principles outlined in section 254(b), and to accomplish that duty we have the authority to “create some inducement” to ensure that those principles are achieved. Our authority under section 254 therefore permits us to direct universal service support through the Lifeline program to both voice services and broadband internet access service in accordance with our long-standing principle “that universal service support should be directed where possible to networks that provide advanced services, as well as voice services.” In upholding the Commission's reliance on this approach when it instituted the modernized high-cost programs, the Tenth Circuit approvingly noted that by “interpreting the second sentence of § 254(e) as an implicit grant of authority that allows it to decide how USF funds shall be used by recipients, the FCC also acts in a manner consistent with the directive in § 254(b) and allows itself to make funding directives that are consistent with the principles outlined in § 254(b)(1) through (7).” The National Lifeline Association (NaLA) and AT&T propose that the Commission may be able to rely on its ancillary authority under section 4(i) of the Act to continue to support broadband internet access service in the Lifeline program. The National Consumer Law Center (NCLC) and the United Church of Christ (UCC), as well as AT&T, pointed to section 254(j) as another potential source of authority for supporting broadband internet access service in the Lifeline program. Additionally, the Lifeline Connects Coalition urged us to explore using Title I's general jurisdictional grant as an option to support broadband internet access service in the Lifeline program or ancillary authority options for the principles outlined in section 254(b). Because we find that section 254(e) provides a clear source of authority for the Commission to support ETCs providing broadband internet access service in the Lifeline program, we do not find it necessary to rely on the other sources of legal authority proposed in the record.

80. The D.C. Circuit in Mozilla, in remanding this issue back to the Commission, stated that we “fail[ ] to explain” how our authority under section 254(e) could extend to broadband internet access service “now that broadband is no longer considered to be a common carrier[service].” We clarify that while broadband internet access service itself is not a common carrier service, many broadband providers are ETCs—and thus, by definition, are common carriers. Section 254(e) permits us to direct universal service support to both the voice service and broadband internet access service provided by such ETCs. This support flows regardless of the type of service provided, as long as it goes to support the facilities of a designated ETC. Thus, it is the “common-carrier status” of the provider, not the service, that governs whether the provider is eligible to receive Lifeline support for services provided over its network. If a service provider is not a common carrier and thus cannot become an ETC, the Lifeline program cannot support its provision of broadband internet access service. For this reason we also reject NARUC's contention that the Commission's continued use of “voice telephony service” to define the supported service creates a risk that a provider that is not a common carrier will obtain designation as an ETC. There is no basis for NARUC's claim that the 10th Circuit's decision in In re FCC 11-161 rejected the Commission's use of voice telephony service as the supported service, and nothing in our Order today changes that result. As the court noted in that decision, only common carriers are eligible to obtain designation as an ETC and the court “agree[d] with the FCC that the petitioners' argument `will not be ripe for judicial review unless and until a state commission (or the FCC) designates . . . an entity' that is not a telecommunications carrier as `an `eligible telecommunications carrier' '; under § 214(e).” Since NARUC provides no evidence that a non-common carrier has been designated by the FCC or a state commission, much less as the result of the Restoring Internet Freedom proceeding, and the legal authority we identify today continues to require ETCs to be common carriers, we see no risk that a non-common carrier will receive an ETC designation.

81. We thus reject arguments that we cannot support broadband internet access service in the Lifeline program if it is not classified as a telecommunications service. Our approach outlined today does not impact the ETC designation process or the requirement that support recipients be ETCs and, consistent with the statute ETCs will still offer voice telephony service and be required to be common carriers. While the Commission has not classified VoIP service as a telecommunications service, it has consistently recognized that a provider may offer VoIP on a Title II basis if it voluntarily “holds itself out as a telecommunications carrier and complies with appropriate federal and state requirements.” Thus, the Commission is continuing to support telecommunications services pursuant to its authority under section 254 of the Act. This approach simply enables low-income consumers to receive discounts for broadband internet access service provided by ETCs, allowing us to work towards fulfilling our principles of ensuring affordable rates and access to advanced telecommunications and information services across all regions of the Nation.

82. We disagree with commenters that argue that the Restoring Internet Freedom Order renders the Commission unable to ensure the availability of Lifeline-supported options for low-income consumers. The Commission retains the authority, if warranted, to condition Lifeline support on the provision of broadband internet access service, as it has in the context of the high-cost mechanism. The limited example put forward in the context of AT&T's grandfathering of legacy DSL does not persuade us otherwise—as the commenters who raise the point admit, “the loss of these DSL connections does not necessarily mean a loss to existing Lifeline subscribers.” We also note that the Restoring Internet Freedom Order does nothing to change the procedures by which carriers may seek to relinquish their status as ETCs, which will continue to be governed by section 214(e)(4) of the Act to ensure that geographic areas are not left without a Lifeline provider.

83. We further reject arguments that the Commission cannot apply the legal authority articulated in the USF/ICC Transformation Order because of the differences between the high-cost program and the Lifeline program. However, as articulated in this section, we do not believe that the program differences are material with respect to the Commission's authority under section 254(e) to provide funding for broadband service in the Lifeline program, as funding will ultimately flow to supported facilities. Every ETC, whether they participate in the high-cost program, Lifeline program, or both programs, necessarily incurs network costs associated with the provision of the supported voice service and advanced services, such as broadband internet access service. In the case of facilities-based Lifeline providers, these costs arise in deploying and maintaining their own broadband-capable networks used to offer the voice telephony supported service. Resellers participating in the Lifeline program likewise incur costs associated with the network used to offer the supported voice service by directly compensating the underlying facilities-based providers for the wholesale voice services. Some commenters also raised concerns that our actions to reclassify broadband internet access service as an information service would bar resellers from the Lifeline program. In the 2017 Lifeline NPRM the Commission sought comment on the continued role of resellers in the Lifeline program more generally, as well as on other possible rule changes that might be warranted should resellers remain in the Lifeline program. Although we do not adopt changes in that regard in this Order, those issues remain pending. Both programs ultimately offset those network costs. The main difference is that the high-cost program provides supplemental support for areas that are especially expensive to serve, while the Lifeline program compensates providers for some of their costs so they can offer discounted service to low-income Americans, thus incentivizing ETCs to provision, maintain, and upgrade facilities and services where low-income consumers live. Contrary to some commenters' suggestion, this statutory authority is entirely consistent with the Lifeline program's goals of promoting affordability and availability of voice and broadband services. Indeed, the Commission first established the Lifeline program goal of ensuring the availability of broadband service in the 2012 Lifeline Order —well before the Commission decided to impose Title II regulation on broadband internet access service. The Commission's authority to disburse Lifeline funds for broadband service is in part due to the fact that such funding ultimately flows to support the provision, maintenance, and upgrading of the voice-capable networks, but the Commission can and does still direct Lifeline funds in a way to best promote affordable voice and broadband services for low-income consumers.

84. We also reject arguments by some commenters that we cannot justify supporting broadband internet access service through the Lifeline program if the supported voice service is scheduled to eventually receive no Lifeline reimbursement in certain parts of the country. In the 2016 Lifeline Order, the Commission adopted a phasing out of support for voice-only service in the Lifeline program in most areas after December 1, 2021. In doing so, the Commission concluded that “Lifeline should transition to focus more on [broadband internet access service] given the increasingly important role that broadband service plays in the marketplace. . . .” The Commission also created a carve-out of the support phasedown, allowing continued support to voice services at a rate of $5.25 per month after December 1, 2021 to eligible subscribers served by a provider that is the only Lifeline provider in a Census block. First, support for voice-only services is not ending entirely, as the Lifeline program will continue to offer support to eligible subscribers in a Census block with only one ETC. Nothing in the text of section 254 requires an ETC to receive universal service funds everywhere it offers the section 254(c)(1) supported service. Section 254(c)(1) refers to the services included in the definition of universal service as being “supported by Federal universal service support mechanisms,” but does not specify the details of those mechanism or under what range of circumstances universal service funds must actually flow. Likewise, although section 254(e) requires ETCs to use support “only for the provision, maintenance, and upgrading of facilities and services for which the support is intended,” it does not specify how the Commission must direct those funds to be allocated as between support for “the provision . . . of services” vs. “the provision, maintenance, and upgrading of facilities” used to offer the section 254(c)(1) supported service. Second, voice services will continue to be a component of many Lifeline offerings, as nearly 90% of Lifeline subscribers currently choose to apply their discount to a bundled offering that includes voice service along with broadband internet access service that meets the program's minimum service standards. As such, even as the voice phasedown continues, the Commission will continue to support the provision of voice services and voice-capable networks by ETCs. We therefore disagree with commenters asserting that it is unreasonable to claim that Lifeline support would benefit voice facilities while continuing to phase out support for voice-only service. As to comments urging the Commission to pause the voice phasedown at this time, we decline to decide here and the issue remains open from the 2017 Lifeline NPRM . This Order is limited to addressing the three discrete issues remanded to the Commission by the D.C. Circuit. Nevertheless, we believe that a continued voice phasedown does not impede the Commission from relying on the legal authority we have explained herein.

85. We also disagree with commenters who argue that the best approach to supporting broadband internet access service through Lifeline is to simply reclassify broadband internet access service as a Title II service. We find our approach today instead allows for the Lifeline program to fund broadband internet access service offerings, while also allowing the Commission to continue to apply a light-touch regulatory approach to broadband internet access service, and will promote investment and innovation without grafting costly and restrictive requirements onto a program that is focused on making vital services affordable. Free Press also raises the possibility that as providers transition away from offering switched telephone service they may not be eligible to participate in the Lifeline program with broadband internet access service classified as a Title I service. While Free Press casually raises this concern, it does not offer any evidence of it impacting the Lifeline marketplace today, or anytime in the near future. As such, we decline to address this concern at this time and believe that voice telephony as a supported service will not present any near-term challenges for providers.

86. We next make necessary adjustments to the Commission's rules. In the 2016 Lifeline Order, the Commission amended § 54.101 of its rules to include broadband internet access service as a supported service. As we discuss above, the classification of broadband internet access service as an information service does not bar us from providing support for the provision of broadband by ETCs who are providing voice telephony, but broadband internet access service cannot be an independent supported telecommunications service under section 254(c). Although section 254(e) directs that “[a] carrier that receives [universal service] support shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended,” section 254 is silent about the mechanics by which the Commission may determine the magnitude of high-cost or Lifeline support an ETC will receive, including the conditions that trigger the flow of support. By contrast, where Congress wished to specify in greater detail the mechanics of how support amounts would be calculated and triggered, it did so. Consequently, so long as the Lifeline funds ultimately are used consistent with the requirements of section 254(e), there is no statutory bar to conditioning the receipt of support on the provision of an information service offered over the network that provides the section 254(c)(1) supported service, and calculating support amounts in a way that accounts for the fulfillment of that condition. The California PUC previously argued that if broadband internet access service were reclassified as an information service, the Commission may not have the ability to impose its Lifeline minimum service standards on broadband services offered in the Lifeline program because of the limitations of section 254(c). As stated here, however, section 254(c) does not impose a bar on how the Commission might trigger universal support to a properly designated ETC. In the high-cost program, the Commission long has provided support without relying on a trigger based solely on the provision of the section 254(c)(1) supported service. For example, the Commission calculated the amount of high-cost support for rate-of-return carriers based on the number of voice or broadband internet access services lines they provided, even though only voice telephony was the section 254(c)(1) supported service. Thus, because broadband internet access service is not a section 254(c) telecommunications service, we remove broadband internet access service from the list of supported services in § 54.101, while preserving our authority to fund broadband internet access service through the Lifeline program.

87. We note that, while we did not propose this specific rule change in the 2017 Lifeline NPRM, the Commission did specifically seek comment on relying on section 254(e) as the legal authority to support broadband internet access service in the Lifeline program without relying on the regulatory classification of broadband internet access service as a telecommunications service. Since this rule change is a direct result of our reliance on this legal theory, we find that removing broadband internet access service as a supported service in these rule sections is supported by the text of the NPRM itself and, in addition, is in any event a “logical outgrowth” of the proposal in the NPRM . We also note that this rule change will have little practical effect on ETCs as the authority outlined today allows the Lifeline program to continue funding broadband internet access service offerings.

88. Continued Support for Plans that Only Satisfy the Broadband Minimum Service Standards . We next clarify that the Lifeline program can continue to provide support for broadband-only offerings by ETCs to qualifying low-income households. In order to receive reimbursement for providing a Lifeline service, ETCs must identify if the service meets the mandatory minimum standards for voice or broadband to determine the amount of support they can claim from the Lifeline program. With the phasedown of voice support proceeding in accordance with the Commission's current rules, we expect to see some subscribers who receive a Lifeline service that only qualifies for Lifeline support because the service meets the program's minimum service standards for broadband internet access service. Even though these offerings do not rely on a qualifying voice service—although they could very well include some level of bundled non-qualifying voice service, as many Lifeline subscribers receive today—we can continue to provide reimbursement under the statutory authority we outline today. As the Mozilla court notes, section 214(e) requires that entities designated as ETCs must be common carriers. The common carrier requirement of section 214(e) creates a limitation on the type of entities that may be designated as an ETC, but it does not prohibit an ETC from providing a broadband only-service to a qualifying low-income household and also receiving Lifeline support for that service to that household. The statute does not mandate that ETCs only offer service on a common carrier basis, nor does it prevent the Commission from reimbursing broadband internet access service offerings as a way to accomplish the principles on which the Commission is required to base its universal service policies pursuant to section 254(b).

89. Using universal support to promote advanced services by ETCs that are, by definition, common carriers is consistent with past Commission efforts in the high-cost mechanism. In 2016, for example, the Commission allowed high-cost support for broadband-only loops for rate-of-return carriers. In doing so, the Commission stated that it was applying the principle first outlined in the USF/ICC Transformation Order “that universal service support should be directed where possible to networks that provide advanced services, as well as voice services.” NaLA echoed this approach when it stated that, even if the Commission continues its phase-down in Lifeline voice support, “as long as voice telephony service remains a supported service and ETCs are offering voice service, the Commission can continue to provide universal service funding only for the provision of broadband service. . . .” Under the approach we adopt today, ETCs, operating as common carriers, would still be required to offer voice service, including through bundled service offerings, but the Lifeline program would target its resources to induce ETCs to provide broadband internet access service offerings, both bundled and standalone, to Lifeline subscribers.

90. A number of commenters expressed concern that the Commission would be unable to support broadband-only providers as a result of broadband internet access service's status as an information service. The Commission has already decided this issue and it is no longer before us now. As we explained in the 2019 Lifeline Order, broadband-only providers that do not offer any voice service cannot participate in the program because they are not common carriers offering the supported voice service and thus do not satisfy the requirement in section 214(e)(1) that ETCs “offer the services that are supported by the Federal universal support mechanisms” under section 254(c). AARP encourages us to use section 706 of the 1996 Act as a source of authority to support stand-alone broadband. However, we have determined that section 706 is not a grant of regulatory authority and merely a hortatory congressional statement.

91. The California PUC raises a concern that classifying broadband internet access service as a Title I service will impact states' ability to support broadband-only services in state universal service programs. We disagree. Congress specifically delineated the states' authority to “advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunication service, and safeguard the rights of consumers.” This authority is broad enough for the states to accomplish their universal service goals without forcing a burdensome federal regulatory regime ( i.e., Title II) on broadband internet access service offerings. It is true that the text specifically references telecommunications services, but that reference is part of a larger list of areas where states can act as long as the state action is not inconsistent with section 254. Section 254 not only permits a state to work with telecommunications carriers in the state to support its own universal service programs, but it also allows states to “adopt regulations to provide for additional definitions and standards to preserve and advance universal service within the state. . . .” As long as those state actions do not rely on or burden Federal universal support mechanisms, then a state is permitted to structure its programs in a way that it deems best to promote universal service.

92. Finally, while we are confident that our analysis of the statutory authority allows for the continued support of broadband internet access service through the Lifeline program, we would still reach the same conclusion on the classification of broadband internet access service that we did in the Restoring Internet Freedom Order even if a court were to conclude that the Lifeline program could not support broadband internet access service. As the Commission previously stated, a return to Title I classification better facilitates critical broadband investment through the removal of regulatory uncertainty and lower compliance burdens. Further, Title I classification allows for greater freedom to operate and serve customers in rural or underserved areas of the country. Additionally, by reclassifying broadband internet access service as a Title I service the Commission sought to bring greater regulatory certainty to the market, removing a fog that stifled innovation. As such, we believe that the benefits of reclassification would outweigh the removal of broadband internet access service from the Lifeline program, were the sound statutory authority relied on today be found insufficient.

93. We conclude that we have satisfied the notice and comment requirements of the Administrative Procedure Act (APA) in this proceeding. We therefore reject arguments to the contrary. The Restoring Internet Freedom NPRM (82 FR 25568, June 2, 2017) sought comment on returning to the long-standing information service classification of broadband internet access service, and we did just that in the Restoring Internet Freedom Order . The D.C. Circuit's decision in Mozilla left the regulatory approach adopted in the Restoring Internet Freedom Order in place while remanding to us for further analysis the effect on certain public safety, pole attachment, and Lifeline universal service support issues. The Commission sought comment in the 2017 Lifeline NPRM on, among other things, the treatment of broadband internet access service under the Lifeline program irrespective of the regulatory classification of that service.

94. Agencies generally have broad discretion to choose the appropriate procedural response to a court remand, including whether and to what extent to conduct a new rulemaking proceeding. In this Order on Remand, we do not reconsider or alter any aspect of the regulatory approach adopted in the Restoring Internet Freedom Order . To the extent that commenters contend that additional notice would be required to adopt an approach different than the one we take in this Order on Remand, those arguments are not applicable here. Instead, we simply act in response to the Mozilla remand to explain our decision not to revisit that approach in light of the three discrete issues remanded by the D.C. Circuit. Thus, as a threshold matter, we conclude that the APA does not compel additional notice beyond that already provided. Indeed, except to the extent that we remove broadband internet access service from the list of supported services in our universal service rules, our Order on Remand procedurally could be analogized to a decision declining to initiate a rulemaking to revise the regulatory approach adopted in the Restoring Internet Freedom Order in light of the three remanded issues—which need not be preceded by its own notice and comment procedures under the APA. Alternatively—and again, except to the extent that we modify our universal service rules to remove broadband internet access service from the list of supported services—our response to the three remanded issues could be seen as, at most, an interpretive rule or policy statement.

95. Independently, we conclude that even if some form of additional notice and comment procedures were required here in light of Mozilla, our procedures on remand have been sufficient. The Bureau elected to refresh the record on issues implicated by the Mozilla remand to supplement the original Restoring Internet Freedom rulemaking record and the record of the 2017 Lifeline NPRM, consistent with similar actions taken by the Commission's Bureaus in many instances in the past. Nothing in the D.C. Circuit's remand displaced the Commission's authority to “conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice,” nor to rely on Bureaus' actions on delegated authority for “the prompt and orderly conduct of its business.” The Bureau's request for comment on the Mozilla remand was published in the Federal Register (85 FR 12555, March 3, 2020), hereinafter referred to as “Restoring Internet Freedom Remand Public Notice (PN)”). We also agree with numerous commenters that the issues to be addressed on remand were apparent, including from the Mozilla decision itself. Before turning to specific questions upon which the Bureau sought to develop the record further, the Restoring Internet Freedom Remand PN began with requests for comment framed in terms that mirrored the scope of the D.C. Circuit's remand in Mozilla . Commenters criticizing the scope of the Restoring Internet Freedom Remand PN 's request for comments on the remanded issues neglect that fact. Nothing about the Restoring Internet Freedom Remand PN hindered commenters from understanding the supplemental information that the Commission would be considering or from raising the arguments they wished to raise in response to the remand. To the extent that some court precedent contemplates notice and comment in certain circumstances where an agency engages in new fact-gathering on remand, the objective is to ensure that parties have an opportunity to comment on any new factual information critical to the agency's decision whether to modify a rule on remand. While we consider the additionally-gathered information instead to supplement information in the original rulemaking record, even if it were critical information, we find that the objectives of that precedent have been satisfied here.

96. We also find that there was adequate time for participation by commenters. Commenters expressing concern about the timing of the comment period focus specifically on the development of the record related to public safety issues. Commenters do not identify any inadequacy in the comment period provided in the Restoring Internet Freedom Remand PN, which provided a full opportunity for commenters to raise public safety concerns and which the Commission is considering in responding to the Mozilla remand. With respect to the Restoring Internet Freedom Remand PN requesting comment to supplement the record in response to the remand, the process was appropriate, as well. As USTelecom observes, “the Commission published the Notice on March 3, 2020, more than a month and a half before comments were due.” This comment cycle included an extension of time “to enable state, county, and municipal governments to be able to respond adequately to the issues raised in the Public Notice relating to how the Commission's action affects public safety.” This provided ample opportunity to submit information in response to the Restoring Internet Freedom Remand PN . To the extent that certain parties belatedly sought a further extension, we agree with the Bureau that the request was neither timely nor provided evidence that further extension of time was warranted.

97. The record also does not persuade us that there are additional arguments or information that interested parties in fact would have raised under a different comment process that they were unable to raise in the record for consideration in this proceeding. We reject arguments in response to the Restoring Internet Freedom Remand PN that reiterate concerns that certain commenters' efforts to address the COVID-19 pandemic limit their ability to fully participate even under the extended comment cycle. Those arguments are not materially different from the arguments the Bureau considered and appropriately rejected in the Further Extension Denial Order . Further, in addition to the formal comment process, parties were able to make ex parte filings, as well. Insofar as certain parties sought a further 60-day extension of the already once-extended comment period, we note that substantially more than 60 days have passed since that comment deadline, during which time they have been free to raise their arguments in ex parte filings, which are considered by the Commission as part of the record in this proceeding.

98. We reject the claims of some commenters that the U.S. Supreme Court's recent decision in DHS v. Regents of the Univ. of Cal. support their prior contentions that “the Commission must have a formal Notice of Proposed Rulemaking (NPRM) as a prelude to issuing any response to the remand by the Mozilla Court.” Contrary to those claims, DHS v. Regents of the Univ. of Cal. does not specify that a new, Commission-level Notice of Proposed Rulemaking would be required here. To the extent that DHS v. Regents of the Univ. of Cal. speaks to the procedures to be followed when an agency takes new action to provide additional explanation on remand, it does not adopt any one-size-fits-all approach, but merely observes that the procedures followed must be whatever otherwise is required for the relevant action. In contrast to the posture in that case—where DHS's prior decision was vacated—the D.C. Circuit in Mozilla remanded without vacatur, leaving the Restoring Internet Freedom Order in place, and in this Order on Remand we do not modify or alter the regulatory approach adopted there. Consequently, whatever procedures theoretically might be required for DHS in response to DHS v. Regents of the Univ. of Cal., it does not follow that a new, Commission-level rulemaking would be required here. Independently, as discussed above, we also find that even assuming arguendo that some manner of additional notice and comment were required, our procedures here have been adequate.

99. In the substantive sections of this Order we thoroughly analyze the effects of the Restoring Internet Freedom Order on public safety, pole attachments, and Lifeline consistent with the D.C. Circuit's remand, and explain why those considerations do not persuade us to depart from the regulatory approach we adopted in that Order . This included addressing the thousands of public comments by identifying which ones were responsive to the three specific issues subject to the remand and analyzing those responsive arguments here. Our action satisfies both the Mozilla remand and the APA's reasoned decision-making requirements. We therefore reject arguments that the Commission's analysis of the remanded issues has failed, or will fail, the reasoned decision-making requirements of the APA.

100. Our analysis in the Order on Remand also demonstrates that we remained open-minded regarding the issues remanded in Mozilla . In Little Sisters of the Poor, the Supreme Court recently “decline[d] to evaluate the final rules [at issue there] under the open-mindedness test” that had been used by the Third Circuit given that “the text of the APA provides the “maximum procedural requirements” that an agency must follow in order to promulgate a rule.” The Court concluded that “the open-mindedness test violates the `general proposition that courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA.' ” To the extent that commenters seek to advance the same basic “open-mindedness” test here, the Supreme Court's decision provides an additional reason why it is unavailing. But in any case, we independently conclude that we did, in fact, remain open-minded for the reasons discussed in the text. For one, the cases cited by commenters expressing concern in this regard involved scenarios where the court was evaluating the adequacy of the original notice or opportunity for comment rather than where, as here, the agency is responding to a court's remand to consider certain specific issues in evaluating whether they warrant a change in its prior decision. Indeed, rather than evidence that the Commission had a closed mind on the remanded issues as some commenters contend, the solicitation of comments in the Restoring Internet Freedom Remand PN reveals our willingness to give full consideration to those issues. In contrast to the Bureau's requests for comment in the Restoring Internet Freedom Remand PN, the district court in Int'l Snowmobile Mfrs. Ass'n v. Norton, confronted a situation where agency decisionmakers made “definitive statements” about the outcome “before the [environmental review] process was complete.” A Bureau-level Public Notice requesting comment does not similarly represent “definitive statements” about the outcome the full Commission will reach in this proceeding. Our analysis likewise demonstrates that we remained open-minded in that regard, but were not persuaded to depart from our regulatory approach in the Restoring Internet Freedom Order on the basis of those considerations.

101. We also have no obligation in this proceeding to re-open issues from the Restoring Internet Freedom Order that were not remanded by Mozilla . Some commenters quote language from DHS v. Regents of the Univ. of Cal., that an agency supplementing its original reasoning must “ `deal with the problem afresh.' ” To the extent that these commenters suggest that we therefore must reopen the issues in the Restoring Internet Freedom Order more broadly, we reject that claim. The DHS action at issue in DHS v. Regents of the Univ. of Cal. had been both vacated and remanded in full. The relevant “problem” that DHS was dealing with there thus was the entirety of its action. Here, by contrast, the D.C. Circuit declined to vacate the Restoring Internet Freedom Order, leaving it in place while directing the Commission to address “three discrete points.” In this context, it is most reasonable to define the “problem” that we consider afresh here to be the effect of the regulatory approach in the Restoring Internet Freedom Order on the public safety, pole attachment, and Lifeline universal service support issues identified by the Mozilla court. Insofar as commenters raise issues beyond the scope of the remanded issues, we reject them as outside the scope of this proceeding. While in some cases commenters raise issues with no clear nexus to the remanded issues at all, in other cases commenters raise arguments that potentially encompass, but extend beyond, the remanded issues. We reject arguments only insofar as they fall outside or extend beyond the remanded issues, and otherwise consider them in our analyses of public safety, pole attachments, and Lifeline support, respectively, insofar as they do in fact bear on any of those issues. Taking up those broader issues here would unsettle reasoning and decisions not rejected by the court, giving us—and parties supportive of the Restoring Internet Freedom Order' s regulatory approach—a task on remand that not only was not required but that could not reasonably have been anticipated by Mozilla 's remand of “three discrete points.” For example, commenters relitigate the question whether the Commission was correct in predicting that Title I classification would promote competition, investment, and innovation—a finding that was affirmed by the D.C. Circuit and is outside the scope of the remand. While many commenters argue that experience following the Restoring Internet Freedom Order has borne out the Commission's prediction, some argue that Title I classification has had no effect in investment, and others still claim that it has decreased investment. We need not and cannot settle this dispute here: Because such issues lie outside the scope of the remand, commenters did not have a full and fair opportunity to address these issues in the same comprehensive way that they did prior to the Restoring Internet Freedom Order . Perhaps for that reason, the evidence offered in this proceeding fails to grapple with the effect of Title I classification on competition, investment, and innovation with nearly the same depth of analysis as the studies submitted in the Restoring Internet Freedom record, and therefore nothing in the comments in this remand proceeding provides firm ground to revisit the predictive judgment that we have already made. Should parties wish to raise issues beyond those subject to the D.C. Circuit's remand in support of a request for new rules, they may do so in a petition for rulemaking supporting their request for such broader action.

102. Our Order on Remand also is consistent with the First Amendment of the U.S. Constitution. Contrary to the suggestion of some commenters, neither the classification of broadband internet access service as an information service nor the Restoring Internet Freedom Remand PN seeking comment on the Mozilla remand represents a government restriction on speech that requires scrutiny under the First Amendment. In particular, we are not persuaded that actions taken by broadband internet access service providers to manage traffic on their networks constitutes governmental action. Nor does the record support the view that the request for comments in the Restoring Internet Freedom Remand PN somehow compelled, restricted, or otherwise chilled private parties' speech.

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

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

105. People with Disabilities: 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 & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

106. For further information about this rulemaking proceeding, please contact Annick Banoun, Competition Policy Division, Wireline Competition Bureau, at (202) 418-1521 or annick.banoun@fcc.gov.

107. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), this Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) supplements the Final Regulatory Flexibility Analysis (FRFA) included in the 2019 Lifeline Order in WC Docket Nos. 17-287, 11-42, and 09-197, to the extent required by the adoption of this Order on Remand. The Commission sought written public comment on the proposals in the 2017 Lifeline NPRM, including comment on the initial Regulatory Flexibility Analysis. This Supplemental FRFA conforms to the RFA.

108. The Commission is required by section 254 of the Communications Act of 1934, as amended, to promulgate rules to implement the universal service provisions of section 254. The Lifeline program was implemented in 1985 in the wake of the 1984 divestiture of AT&T. On May 8, 1997, the Commission adopted rules to reform its system of universal service support mechanisms so that universal service is preserved and advanced as markets move toward competition. Since the 2012 Lifeline Order, the Commission has acted to address waste, fraud, and abuse in the Lifeline program and improved program administration and accountability.

109. In this Order on Remand, the Commission addresses several items remanded to it by the D.C. Circuit Court of Appeals in Mozilla v. FCC. As part of addressing those issues, the Commission clarifies its legal authority for reimbursing broadband internet access service through the Lifeline program. This clarification requires minor revisions to the Commission's Lifeline rules. With this action, we fulfill the Commission's role as the steward of the Universal Service Fund (USF or Fund) and ensure that the Lifeline program can continue to allocate its limited resources to reimbursing increasingly important broadband internet access service for low-income Americans.

110. The Commission received no comments in direct response to the IRFA contained in the 2017 Lifeline NPRM or the FRFA in the 2019 Lifeline Order.

111. 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 of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rule(s) as a result of those comments.

112. The Chief Counsel did not file any comments in response to the proposed rule(s) in this proceeding.

113. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (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).

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

115. 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.

116. 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.”

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

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

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

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

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

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

2. Wireless Carriers and Service Providers

123. 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. 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.

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

125. Satellite Telecommunications Providers. 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.

126. Common Carrier Paging. As noted, since 2007 the Census Bureau has placed paging providers within the broad economic census category of Wireless Telecommunications Carriers (except Satellite).

127. In addition, in the Paging Second Report and Order (83 FR 19440, May 3, 2018), the Commission adopted a size standard for “small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. The SBA has approved this definition. An initial auction of Metropolitan Economic Area (“MEA”) licenses was conducted in the year 2000. Of the 2,499 licenses auctioned, 985 were sold. Fifty-seven companies claiming small business status won 440 licenses. A subsequent auction of MEA and Economic Area (“EA”) licenses was held in the year 2001. Of the 15,514 licenses auctioned, 5,323 were sold. One hundred thirty-two companies claiming small business status purchased 3,724 licenses. A third auction, consisting of 8,874 licenses in each of 175 EAs and 1,328 licenses in all but three of the 51 MEAs, was held in 2003. Seventy-seven bidders claiming small or very small business status won 2,093 licenses.

128. Currently, there are approximately 74,000 Common Carrier Paging licenses. According to the most recent Trends in Telephone Service, 291 carriers reported that they were engaged in the provision of “paging and messaging” services. Of these, an estimated 289 have 1,500 or fewer employees and two have more than 1,500 employees. We estimate that the majority of common carrier paging providers would qualify as small entities under the SBA definition.

129. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite). Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees and 12 firms had 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that a majority of these entities can be considered small. According to Commission data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Therefore, more than half of these entities can be considered small.

130. 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.

131. Internet Service Providers (Broadband). Broadband internet service providers include wired ( e.g., cable, DSL) and VoIP service providers using their own operated wired telecommunications infrastructure fall in the category of Wired Telecommunication Carriers. 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 size standard for this category classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, under this size standard the majority of firms in this industry can be considered small.

132. As the changes enacted today are primarily clarifications of existing Commission rules or statutory authorities, we do not anticipate that the changes will result in significant additional compliance requirements for small entities. However, some small entities may have an additional burden. For those changes, we have determined that the clarity the rule changes will bring to the Lifeline program outweighs the burden of any increased compliance concerns. We have noted the applicable rule changes below impacting small entities.

133. Compliance burdens. The rules we implement impose some compliance burdens on small entities by requiring them to become familiar with the new rules to comply with them. In most instances, the burden of becoming familiar with the new rule in order to comply with it is the only additional burden the rule imposes.

134. Adjusting systems to account for potential changes in Lifeline reimbursement rates. The rules we implement may require small entities to change their billing systems, customer service plans, and other business operations to account for modifications in the Lifeline supported services. We believe these changes will not be significant.

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

136. This rulemaking could impose minimal additional burdens on small entities. These impacted small entities should already be familiar with the Commission's supported services rules, but the removal of broadband internet access service as a defined supported service may cause some small entities to adjust their business practices.

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

138. Accordingly, It is ordered that, pursuant to sections 1-4, 201, 230, 231, 254, 257, 303, 332, 403, 501, and 503 of the Communications Act of 1934, as amended, 47 U.S.C.151-154, 201, 230, 231, 254, 257, 303, 332, 403, 501, and 503, and § 1.2 of the Commission's rules, 47 CFR 1.2, this Order is Adopted .

139. It is further ordered that, pursuant to §§ 1.4(b)(1) and 1.103(a) of the Commission's rules, 47 CFR 1.4(b)(1), 1.103(a), this Order on Remand shall be effective 30 days after publication in the Federal Register .

140. It is further ordered that part 54 of the Commission's rules Is Amended as set forth in Appendix A of the Order on Remand.

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

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

The Federal Communications Commission amends part 54 of title 47 of the Code of Federal Regulations as follows: