This final rule affecting 7 CFR part 1217 (herein the “Order”) is authorized under the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

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

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject to an order may file a written petition with USDA stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, must be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

This rule amends the Order by increasing the assessment rate from $0.35 to $0.41 per mbf of softwood lumber shipped within or imported into the United States. The Order is administered by the Board with oversight by the USDA. Under the program, assessments are collected from domestic manufacturers and importers and used for research and promotion projects designed to strengthen the position of softwood lumber in the marketplace. The additional funds will enable the Board to maintain its existing programs, while supporting new programs that will help maintain and expand markets for softwood lumber. This rule will also add the conversion factor for square meters to board feet and make one conforming change.

The Order specifies that the funds to cover the Board's expenses shall be paid by assessments on manufacturers for the U.S. market, other income of the Board, and other funds available to the Board. Domestic manufacturers pay assessments based on the volume of softwood lumber shipped within the United States and importers pay assessments based on the volume of softwood lumber imported to the United States. Assessments are collected per mbf of softwood lumber, except that no entity shall pay an assessment on the first 15 million board feet (mmbf) of softwood lumber otherwise subject to assessments in a fiscal year. Domestic manufacturers are required to remit to the Board assessments owed no later than 30 calendar days of the month following the end of the quarter in which the softwood lumber was shipped. Importers are responsible for paying assessments to the Board on softwood lumber imported into the United States through the U.S. Customs and Border Protection (CBP). If CBP does not collect an assessment from the importer, the importer is responsible for paying the assessment to the Board no later than 30 calendar days of the month following the end of the quarter in which the softwood lumber was imported. Domestic manufacturers and importers must also remit to the Board required reports.

The Order also provides for exemptions from assessments. Section 1217.53 specifies that U.S. manufacturers and importers that domestically ship and/or import less than 15 mmbf annually, exports of softwood lumber from the United States, and shipments and imports of organic softwood lumber are exempt from the Order's assessment requirements.

Pursuant to § 1217.52, and subject to the exemptions specified in § 1217.53, each domestic manufacturer and importer shall pay an assessment rate of $0.35 per mbf of softwood lumber, except that no entity shall pay an assessment on the first 15 mmbf of softwood lumber otherwise subject to assessment in a fiscal year. The assessment rate may not be less than $0.35 per mbf nor more than $0.50 per mbf. Section 1217.44(c) prescribes that the Board may recommend to the Secretary a change in the assessment rate as it deems appropriate by at least a majority of Board members plus two (exclusive of vacant seats).

The $0.35 per mbf assessment rate has been in effect since the program's inception in 2011. The Board's fiscal year runs from January 1 through December 31. Board expenditures for the five-year period from 2014-2018 have ranged from a low of $12.35 million in 2014 to a high of $15.32 million in 2016; expenditures in 2018 were $14.23 million. Program expenditures averaged $12.96 million during those five years, with annual expenditures averaging $3.29 million (24 percent) for research conducted on wood standards; $4.06 million (29 percent) on a communications program, which includes continuing education courses for architects and engineers; and $3.94 million (28 percent) on a construction and design program that provides technical support to architects and structural engineers about using wood. Pursuant to § 1217.50(h), administrative expenditures have been under 8 percent of the assessments collected and other income received by and available to the Board for the fiscal year.

Board assessment income has ranged from $12.55 million in 2014 to $13.74 million in 2018. About 70 percent of the assessment income is from domestic manufacturers and 30 percent is from importers. Additionally, pursuant to § 1217.50(i), the Board maintains a monetary reserve with funds that do not exceed one fiscal period's budget. This rule will also amend § 1217.52(h) to add the conversion factor for square meters to board feet. Currently, the Order provides a factor used to convert cubic meters of imported softwood lumber into the equivalent volume of thousands of board feet, thus enabling the Board to calculate appropriate assessments. Softwood lumber is also being imported in square meters. Adding a conversion factor for square meters will better reflect current industry practices and facilitate the administration of the program.

Finally, this rule will make a conforming change to § 1217.52(c) to reflect previously revised voting requirements in § 1217.44. In a final rule published in the Federal Register on September 25, 2019 (84 FR 50294), voting requirements prescribed in § 1217.44 were revised to specify that recommendations to change the assessment rate require affirmation by at least a majority of Board members plus two (exclusive of vacant seats). Currently, corresponding language in § 1217.52(c) specifies that an affirmative vote of at least two-thirds of Board members is required for assessment rate recommendations. A conforming change in this rule will revise § 1217.52(c) to require affirmation of assessment rate recommendations by a Board majority plus two, thus harmonizing the language in the two sections related to assessment recommendations.

The Board met on November 20, 2019, and recommended increasing its assessment rate from $0.35 to $0.41 per mbf. The additional funds will enable the Board to maintain its existing programs, while supporting new programs that will help maintain and expand markets for softwood lumber. For the 2016-2018 fiscal years, the Board has used reserve funds to bridge the deficit between income and expenses. In 2019, the Board kept expenditures in line with income and had to make cuts to its programs, primarily its communications program. The Board discussed the deficit spending that occurred from 2016-2018 and the funding cuts in 2019, along with the impacts of inflation, and determined that without the increase it would not be able to maintain its current programs nor be able to address gaps that limit the Board's ability to expand the market for softwood lumber. Continuing at the current funding level would limit its ability to capitalize on new opportunities or address challenges and maintain the impact the Board has achieved for the softwood lumber industry in prior years. Additionally, the current funding level restricts the ability to accelerate softwood lumber's increase in market share and lumber usage in the non-residential sector.

The Board's funding of research on wood standards has facilitated interest in using wood-based building systems in non-traditional markets, such as tall wood building. The 2021 International Code Council building standards will recognize the construction of mass timber buildings up to 18 stories in height. These new opportunities require a more comprehensive approach, particularly in outreach and education initiatives. The Board recognized that its funded programs must go beyond inspiring professionals to think about building with wood. These individuals need resources and technical assistance.

The Board estimated the increased assessment rate of $0.41 per mbf would generate additional revenues as shown in Table 1. The consumption forecast and assessable board feet figures are shown in billion board feet (bbf).

The additional funds will support programs targeting contractors and developers to address installer training and skills development; establish an education program that will target architecture and engineering students, as well as professionals; and restore the Board's communications program budget so that by 2025 it will be equivalent to 2018 expenditures. Therefore, the Board recommended increasing the assessment rate in the Order from $0.35 to $0.41 per mbf.

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) is required to examine the impact of the action on small entities. Accordingly, AMS has considered the economic impact of this action on such entities.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the actions so that small businesses will not be disproportionately burdened. The Small Business Administration (SBA) defines, in 13 CFR part 121, small agricultural service firms (domestic manufacturers and importers) as those having annual receipts of no more than $8 million. 1

The Random Lengths Publications, Inc.'s yearly average framing lumber composite price was $356 per mbf in 2019. Dividing the $8 million threshold that defines an agricultural service firm as small by this price results in a maximum threshold of 22.5 million board feet (mmbf) of softwood lumber per year that a domestic manufacturer or importer may ship to be considered a small entity for purposes of the RFA. Table 2 shows the number of entities and the amount of volume they represent that may be categorized as small or large based on the SBA definition.

As shown in Table 2, there are a total of 1,396 domestic manufacturers and importers of softwood lumber based on 2019 data. Of these, 1,000 entities, or 72 percent, shipped or imported less than 22.5 mmbf and would be considered small under the SBA definition. These 1,000 entities domestically manufactured or imported 3.25 billion board feet (bbf) in 2019, less than 5 percent of total volume.

While this action increases the assessment obligation on domestic manufacturers and importers from $0.35 per mbf to $0.41 per mbf, the impact on these entities will be minimal and uniform. The current assessment rate of $0.35 per mbf represents 0.1 percent of the Random Lengths 2019 average framing lumber composite price of $356 per mbf. The assessment rate of $0.41 per mbf is 0.12 percent of this price. The increase in assessment rate represents an increase in cost to domestic manufacturers and importers of two-thousandth of one percentage point relative to their average received price. This cost, though minimal, will also be offset by the benefits derived from the program.

The 1996 Farm Bill requires that Research and Promotion programs be evaluated every five years with the specific goal of measuring the economic impact of commodity promotion on demand for the commodity. The Board completed its first five-year evaluation of program effectiveness in 2016. The five-year evaluation, conducted by Prime Consulting, found that softwood lumber use per square foot increased nearly 23 percent among architects and structural engineers from the program's inception in 2011 to 2015. The evaluation also found a cumulative return on investment (ROI) of more than $15 in increased sales of softwood lumber per $1 spent on promotion by the program between 2012 and 2015. The cumulative ROI was updated in 2019 to reflect the time period of 2012 to 2018. The result was a return of more than $23 in increased sales per $1 spent on promotion.

This rule amends § 1217.52(b) to increase the assessment rate from $0.35 to $0.41 per mbf. The Order is administered by the Board with oversight by the USDA. Under the program, assessments are collected from domestic manufacturers and importers and used for research and promotion projects designed to strengthen the position of softwood lumber in the marketplace. The additional funds collected at the increased rate will enable the Board to maintain its existing programs, while supporting new programs that will help maintain and expand markets for softwood lumber. This rule also amends § 1217.52(h) to add the conversion factor for square meters to board feet and make one conforming change to section 1217.52(c) regarding voting requirements.

Regarding alternatives, the Board considered maintaining the current assessment rate. However, a majority of Board members determined that an increase was needed to adequately support existing programs and fund new initiatives. The Board discussed increasing the assessment at its meeting in November 2018, but after much consideration it determined it was not the right time for the industry to make such a recommendation. In 2019, with the reduction of assessment revenue and the program cuts that were made, the Board again considered the merits of increasing the assessment rate. This was discussed at several Board committee meetings, including meetings of the Executive Committee on September 17, 2019, and November 19, 2019, and the Finance Committee on November 19, 2019. The Board also considered rates of $0.39 and $0.50 per mbf. After much discussion at committee meetings and with the full Board, the Board recommended increasing the rate from $0.35 to $0.41 per mbf.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are imposed by the Order have been approved previously under OMB control number 0581-0093. This rule will not result in a change to the information collection and recordkeeping requirements previously approved and will impose no additional reporting and recordkeeping burden on domestic manufacturers and importers of softwood lumber.

As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

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

A proposed rule concerning this action was published in the Federal Register on August 13, 2020 (85 FR 49281). A 60-day comment period ending October 13, 2020, was provided to allow interested persons to submit comments.

Twenty-nine comments were received in response to the proposed rule. Of those 29 comments, 22 supported the proposed assessment increase, six opposed the action, and one was outside the scope of the rulemaking.

Overall, commenters in support of the proposal expressed that increasing market share by developing new markets and uses for softwood lumber products while addressing the continued pressures from competitors is paramount to the continued success of the softwood lumber industry. They contend this may only be accomplished by the increased investment in the softwood lumber program. One commenter, who identified as a small sawmill, argued that the proposed increase was not enough, and an assessment rate of $0.50 per mfb or more was warranted to continue promoting and developing new markets and uses for softwood lumber products. Commenters expressed the need for continued work on wood standards and the adoption of using wood-based products in non-traditional markets. They emphasized the importance of educational programs and continued technical assistance for builders, designers, developers, architects and engineers. Several commenters discussed the benefit of being able to work collaboratively as an industry to drive demand for softwood lumber, noting that the efforts of the program are critical to the long-term success of the softwood lumber industry. Commenters noted the return on investment and incremental demand results from the most recent program evaluation as evidence of the success of the program thus far. And two commenters mentioned the results of the 2018 continuance referendum (78 percent of manufacturers and importers voting, who represented 94 percent of the volume of softwood lumber, were in favor of continuing the program) to demonstrate the continued support of the industry for the program.

Out of the six comments in opposition, three commenters noted that the industry is currently seeing record demand and historically high prices, and that the need for an increase in the assessment to fund programming geared towards creating additional demand is not necessary. Two commenters noted that the Board should be able to create demand at the current funding levels. One commenter simply opposed the increase, but did not provide further detail. In its discussion of the proposed increase, the Board determined that continuing at the current funding level would limit its ability to maintain the impact it has achieved for the softwood lumber industry in prior years. It reviewed its revenues and expenditures for the past several fiscal periods and agreed that without the increase it would not be able to maintain its current programs nor be able to address gaps that limit the Board's ability to expand the market for softwood lumber. Additionally, it believed current funding levels restricts its ability to accelerate softwood lumber's increase in market share and lumber usage in the non-traditional markets. In formulating the proposed increase, the Board reviewed several different rate options, including not increasing the rate, but ultimately decided that additional funds generated by the increase are needed to maintain and expand markets for softwood lumber. None of the commenters provided comments on the addition of the conversion factor and the conforming change. Accordingly, no changes will be made to the rule as proposed, based on the comments received.

After consideration of all relevant material presented, including the information and recommendations submitted by the Board, the comments received, and other available information, it is hereby found that this rule, as hereinafter set forth, is consistent with and will effectuate the purposes of the 1996 Act.

For the reasons set forth in the preamble, 7 CFR part 1217 is amended as follows:

The Federal Deposit Insurance Act (FDI Act) requires that the FDIC establish a risk-based deposit insurance assessment system for insured depository institutions (IDIs). 1 Consistent with this statutory requirement, the FDIC's objective in finalizing this rule is to ensure that IDIs are assessed in a manner that is fair and accurate. In particular, the primary objective of this final rule is to remove a double counting issue in several financial measures used to determine deposit insurance assessment rates for large or highly complex banks, which could result in a deposit insurance assessment rate for a large or highly complex bank that does not accurately reflect the bank's risk to the deposit insurance fund (DIF), all else equal. 2

The final rule amends the assessment regulations to remove the double counting of a portion of the CECL transitional amounts, in certain financial measures used to determine deposit insurance assessment rates for large or highly complex banks. In particular, certain financial measures are calculated by summing Tier 1 capital, which includes the CECL transitional amounts, and reserves, which already reflects the implementation of CECL. As a result, a portion of the CECL transitional amounts is being double counted in these measures, which in turn affects assessment rates for large or highly complex banks. The final rule also adjusts the calculation of the loss severity measure to remove the double counting of a portion of the CECL transitional amounts for large or highly complex banks.

This final rule amends the deposit insurance system applicable to large banks and highly complex banks only, and it does not affect regulatory capital or the regulatory capital relief provided in the form of transition provisions that allow banking organizations to phase in the effects of CECL on their regulatory capital ratios. 3 Specifically, in calculating another measure used to determine assessment rates for all IDIs, the Tier 1 leverage ratio, the FDIC will continue to apply the CECL regulatory capital transition provisions, consistent with the regulatory capital relief provided to address concerns that despite adequate capital planning, unexpected economic conditions at the time of CECL adoption could result in higher-than-anticipated increases in allowances. 4

The FDIC did not receive any comment letters in response to the proposal and is adopting the proposed rule as final without change. Under this final rule, amendments to the deposit insurance assessment system and changes to regulatory reporting requirements will be applicable only while the regulatory capital relief described above, or any potential future amendment that may affect the calculation of CECL transitional amounts and the double counting of these amounts for deposit insurance assessment purposes, is reflected in the regulatory reports of banks.

Pursuant to Section 7 of the FDI Act, the FDIC has established a risk-based assessment system in Part 327 of its Rules and Regulations. 5 In 2006, the FDIC adopted a final rule that created different risk-based assessment systems for large IDIs and small IDIs that combined supervisory ratings with other risk measures to differentiate risk and determine assessment rates. 6 In 2011, the FDIC amended the risk-based assessment system applicable to large IDIs to, among other things, better capture risk at the time the institution assumes the risk, to better differentiate risk among large IDIs during periods of good economic and banking conditions based on how they would fare during periods of stress or economic downturns, and to better take into account the losses that the FDIC may incur if a large IDI fails. 7

The FDIC charges all IDIs an assessment amount for deposit insurance equal to the IDI's deposit insurance assessment base multiplied by its risk-based assessment rate. 8 An IDI's assessment base and assessment rate are determined each quarter based on supervisory ratings and information collected in the Consolidated Reports of Condition and Income (Call Report) or the Report of Assets and Liabilities of U.S. Branches and Agencies of Foreign Banks (FFIEC 002), as appropriate. Generally, an IDI's assessment base equals its average consolidated total assets minus its average tangible equity. 9

An IDI's assessment rate is calculated using different methods based on whether the IDI is a small, large, or highly complex bank. 10 A large or highly complex bank is assessed using a scorecard approach that combines CAMELS ratings and certain forward-looking financial measures to assess the risk that the bank poses to the DIF. 11 The score that each large or highly complex bank receives is used to determine its deposit insurance assessment rate. One scorecard applies to most large IDIs and another applies to highly complex banks. Both scorecards use quantitative financial measures that are useful in predicting a large or highly complex bank's long-term performance. 12

As described in more detail below, the FDIC is finalizing amendments to the assessment regulations to remove the double counting of a specified portion of the CECL transitional amounts in the calculation of the loss severity measure and certain other financial measures that are calculated by summing Tier 1 capital and reserves, which are used to determine assessment rates for large or highly complex banks.

In 2016, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) No. 2016-13, Financial Instruments—Credit Losses, Topic 326, Measurement of Credit Losses on Financial Instruments. 13 The ASU resulted in significant changes to credit loss accounting under U.S. generally accepted accounting principles (GAAP). The revisions to credit loss accounting under GAAP included the introduction of CECL, which replaces the incurred loss methodology for financial assets measured at amortized cost. For these assets, CECL requires banking organizations to recognize lifetime expected credit losses and to incorporate reasonable and supportable forecasts in developing the estimate of lifetime expected credit losses, while also maintaining the current requirement that banking organizations consider past events and current conditions.

CECL allowances cover a broader range of financial assets than the allowance for loan and lease losses (ALLL) under the incurred loss methodology. Under the incurred loss methodology, the ALLL generally covers credit losses on loans held for investment and lease financing receivables, with additional allowances for certain other extensions of credit and allowances for credit losses on certain off-balance sheet credit exposures (with the latter allowances presented as liabilities). 14 These exposures will be within the scope of CECL. In addition, CECL applies to credit losses on held-to-maturity (HTM) debt securities. ASU 2016-13 also introduces new requirements for available-for-sale (AFS) debt securities. The new accounting standard requires that a banking organization recognize credit losses on individual AFS debt securities through credit loss allowances, rather than through direct write-downs, as is currently required under U.S. GAAP. The credit loss allowances attributable to debt securities are separate from the credit loss allowances attributable to loans and leases.

Upon adoption of CECL, a banking organization will record a one-time adjustment to its credit loss allowances as of the beginning of its fiscal year of adoption equal to the difference, if any, between the amount of credit loss allowances required under the incurred loss methodology and the amount of credit loss allowances required under CECL. A banking organization's implementation of CECL will affect its retained earnings, deferred tax assets (DTAs), allowances, and, as a result, its regulatory capital ratios.

In recognition of the potential for the implementation of CECL to affect regulatory capital ratios, on February 14, 2019, the FDIC, the Office of the Comptroller of the Currency (OCC), and the Board of Governors of the Federal Reserve System (Board) (collectively, the agencies) issued a final rule that revised certain regulations, including the agencies' regulatory capital regulations (capital rule), 15 to account for the aforementioned changes to credit loss accounting under GAAP, including CECL (2019 CECL rule). 16 The 2019 CECL rule includes a transition provision that allows banking organizations to phase in over a three-year period the day-one adverse effects of CECL on their regulatory capital ratios.

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Leonardo Model AW189 helicopters with MR damper part number (P/N) 4F6220V00251 installed. The NPRM published in the Federal Register on May 20, 2020 (85 FR 30664). The NPRM proposed to require reducing the installation torque of the nuts on the bolts attaching the MR damper to the MR hub. The NPRM also proposed to require, at specified intervals, replacing the affected MR damper; dye penetrant or eddy current inspecting the rod end and body end of each MR damper for a crack, visually inspecting the rod end and body end of each MR damper for a crack, and replacing any cracked MR damper. For certain helicopters, the NPRM also proposed to require inspecting each rod end and body end bearing for rotation, and replacing the rod end or MR damper as applicable if there is any rotation; inspecting the lag damper broached ring nut for damage, correct engagement, and alignment and removing the rod end and broached ring nut from service if any of those conditions exist. For all helicopters, the NPRM proposed to require, at specified intervals, inspecting the bearing friction torque of each MR damper body end and rod end, and replacing the MR damper if the torque value exceeds 30.0 Nm (265.5 lb in); inspecting the MR damper anti-rotation block for wear and replacing the anti-rotation block if there is wear beyond acceptable limits; and replacing each special washer P/N 3G6220A05051 with special washer P/N 3G6220A05052. For certain MR dampers, the NPRM proposed to require inspecting the broached ring for damage and alignment, removing the broached ring from service if there is damage, and replacing the broached ring if the rod end and broached ring cannot be aligned. Finally, the NPRM proposed to require inspecting certain serial-numbered MR dampers for correct torque of the broached ring prior to installation on any helicopter. The proposed requirements were intended to detect a crack in an MR damper, which if not detected and corrected, could lead to loss of the lead-lag damping function of the MR blade, resulting in damage of the MR damper, detachment of the MR damper in-flight, and subsequent loss of control of the helicopter.

The NRPM was prompted by EASA AD No. 2016-0145R1, dated January 17, 2018 (EASA AD 2016-0145R1), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Leonardo Model AW189 helicopters with MR damper P/N 4F6220V00251 installed. EASA advises that a MR damper failed, which resulted in complete seizure of the body end lug and an in-flight disconnection of the damper. EASA states that a combination of factors may have contributed to the MR damper disconnection, and that this condition could result in loss of the lead-lag damping function of the MR blade, damage to adjacent critical rotor components, and subsequent reduced control of the helicopter. The contributing factors include cracks, slippage marks, damaged broach ring teeth, and loss of torque.

According to EASA, the AW189 MR damper is a similar design to the MR dampers installed on Model AW139 helicopters, where multiple MR damper failures have been reported involving the body end lug, the eye end lug, and the rod end. To correct this condition, EASA issued a series of superseded and revised ADs to require repetitive inspections of certain MR dampers, and similar corrective actions as those for Model AW139 helicopters. EASA AD 2016-0145R1 requires various one-time and repetitive inspections of the MR damper, a torque check of the body end, and replacing any MR damper with a crack or that fails the torque check. EASA AD 2016-0145R1 also allows installation of a new MR damper, P/N 8G6220V00151, as an optional terminating action for the repetitive inspections.

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

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

The EASA AD requires contacting the manufacturer under certain conditions, while this AD does not.

The FAA reviewed Finmeccanica Bollettino Tecnico No. 189-080, Revision A, dated July 15, 2016, which contains procedures for visual and dye penetrant inspections of the MR damper for cracks and for verifying the torque of the damper body ends.

The FAA also reviewed Leonardo Helicopters Alert Service Bulletin No. 189-102, Revision A, dated December 21, 2017, which contains procedures for installing an MR damper with reduced torque values and specifies replacing MR damper P/N 4F6220V00251 with new MR damper P/N 8G6220V00151.

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

The FAA reviewed Finmeccanica Bollettino Tecnico No. 189-069, dated February 12, 2016, which contains procedures for installing a special washer on the MR damper rod end, modifying the installation torque of the MR damper, and inspecting the rod end bearings.

The FAA estimates that this AD affects 3 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Adjusting the tightening torque takes about 10 work-hours, for an estimated cost of $850 per helicopter and $2,550 for the U.S. fleet.

Replacing an MR damper takes about 2 work-hours, and parts cost about $18,000, for an estimated cost of $18,170 per MR damper.

Performing a dye penetrant or eddy current inspection of the MR damper takes about 8 work-hours, for an estimated cost of $680 per helicopter and $2,040 for the U.S fleet.

Visually inspecting the rod ends and body ends takes about 0.5 hour, for an estimated cost of $43 per helicopter and $129 for the U.S. fleet, per inspection cycle.

Inspecting the rod ends and body ends for bearing rotation takes about 0.5 hour, for an estimated cost of $43 per helicopter and $129 for the U.S. fleet, per inspection cycle.

Inspecting the broached ring nut takes about 0.5 hour, for an estimated cost of $43 per helicopter and $129 for the U.S. fleet, per inspection cycle.

Inspecting for bearing friction takes about 2 hours, for an estimated cost of $170 per helicopter and $510 for the U.S fleet, per inspection cycle.

Inspecting the broached ring teeth for proper alignment and applying torque takes about 8 work-hours, for an estimated cost of $680 per helicopter and $2,040 for the U.S fleet.

Replacing a rod end takes about 3 work-hours and parts cost about $500, for an estimated cost of $755 per rod end.

Replacing a broached ring takes about 3 work-hours and parts cost about $100, for an estimated cost of $355 per broached ring.

Replacing a broached ring nut takes about 3 work-hours and parts cost about $125, for an estimated cost of $380 per broached ring nut.

Replacing an anti-rotation block takes about 3 work-hours and parts cost about $50, for an estimated cost of $305 per anti-rotation block.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska, and

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to remove AD 2020-13-02, Amendment 39-21147 (85 FR 37551, June 23, 2020) (AD 2020-13-02), and add a new AD. AD 2020-13-02 applied to Leonardo Model A119 and AW119 MKII helicopters with a T/R duplex bearing part number (P/N) 129-0160-11-103 installed. The NPRM published in the Federal Register on November 18, 2020 (85 FR 73432). The NPRM proposed to retain all of the inspection requirements and the installation prohibition of AD 2020-13-02. The NPRM also proposed to require repeating the inspection for presence of the P/N and serial number (S/N) markings of the outboard and inboard faces of T/R duplex bearing every 200 hours time-in-service (TIS). The NPRM also proposed to remove the reporting requirements required by AD 2020-13-02.

The NPRM was prompted by EASA AD No. 2020-0128, dated June 4, 2020 (EASA AD 2020-0128), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Leonardo Model A119 and AW119MKII helicopters, S/N up to 14972 inclusive, except S/Ns 14950, 14957, 14961, 14962, 14964, 14965, 14967, and 14970. EASA AD 2020-0128 supersedes EASA Emergency AD No. 2019-0194-E, dated August 9, 2019 (EASA AD 2019-0194-E), which prompted AD 2020-13-02. EASA advises that after EASA AD 2019-0194-E was issued, Leonardo determined that additional serial-numbered helicopters are affected by the unsafe condition. EASA also advises that Leonardo canceled Emergency Alert Service Bulletin (EASB) No. 119-100, dated August 7, 2019 (EASB 119-100) and instead included the repetitive inspections in the maintenance manual (MM).

FAA AD 2020-13-02 did not require repeating the inspection of the T/R duplex bearing installation every 200 hours TIS, as there was sufficient time to allow for notice and comment prior to this long-term action going into effect. The FAA has determined that repeating the inspection is needed to address this unsafe condition. Although Leonardo has added this action to the MM, the FAA must mandate it through an AD in order to require it for all operators. Accordingly, the FAA included this long-term requirement in the NPRM.

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

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

The EASA AD is applicable to certain serial-numbered Model A119 and AW119MKII helicopters, whereas this AD applies to Model A119 and AW119 MKII helicopters with a T/R duplex bearing P/N 129-0160-11-103 installed instead. The EASA AD requires inspecting the tightening torque of the T/R plug in the range of 30.5-33.9 Nm, whereas this AD requires inspecting the tightening torque of the T/R plug to a minimum of 30.5 Nm instead. This AD requires repeating the inspections for the presence of the P/N and S/N markings, for rough rotation, brinelling, spalling, chipping, flaking, evidence of overheated bearing balls, and damage to the races, and for damaged threads of the T/R plug and nut, at intervals not to exceed 200 hours TIS, whereas the EASA AD does not require repeating these inspections. The EASA AD requires inspecting the threads of nut P/N MS17825-7 for damage, but does not state what to do if the threads have damage. This AD requires inspecting for damage to the threads of the nut indicated by uneven threads, missing threads, or cross-threading, and if the nut has any damaged threads, removing the nut from service.

The FAA reviewed Leonardo EASB No. 119-105, Revision A, dated June 3. 2020 (EASB 119-105 Rev A), which specifies a one-time inspection of the tightening torque of T/R plug P/N 129-0160-45-103, and a one-time inspection for correct installation of the inboard and outboard faces of T/R duplex bearing P/N 129-0160-11-103, for damage to the threads of the T/R plug and nut P/N MS17825-7, and of the T/R duplex bearing for roughness, ease of rotation, and presence of brinelling, spalling, chipping, and flaking or traces of overheating of bearing balls, and general damage to races.

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

The FAA also reviewed EASB 119-100, which specifies the same procedures as EASB 119-105 Rev A, except EASB 119-100 also specifies repeating the inspection for correct installation of the inboard and outboard faces of T/R duplex bearing P/N 129-0160-11-103, for damage to the threads of the T/R plug and nut P/N MS17825-7, and of the T/R duplex bearing for roughness, ease of rotation, and presence of brinelling, spalling, chipping, and flaking or traces of overheating of bearing balls, and general damage to races in conjunction every 200 hours TIS or at any removal, installation, or disassembly of the T/R duplex bearing.

The FAA also reviewed Leonardo Helicopters EASB No. 119-105, dated May 18, 2020, which contains the same procedures as EASB 119-105 Rev A, except EASB 119-105 Rev A applies to additional serial-numbered helicopters.

The FAA estimates that this AD affects 89 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this AD.

Inspecting the tightening torque of the T/R plug takes about 0.5 work-hour for an estimated cost of $43 per helicopter and $3,827 for the U.S. fleet.

Inspecting for correct installation of the outboard and inboard faces of the T/R duplex bearing and the condition of the T/R duplex bearing, T/R plug threads, and nut threads takes about 2 work-hours for an estimated cost of $170 per helicopter and $15,130 for the U.S. fleet, per inspection cycle.

Assembling and installing the T/R duplex bearing assembly takes about 2 work-hours for an estimated cost of $170 per helicopter and $15,130 for the U.S. fleet, per inspection cycle.

If required, the parts for replacing the T/R duplex bearing, internal spacer, external spacer, bearing liner assembly, and T/R control rod cost about $4,200, and parts for replacing the T/R plug cost about $171.

The FAA has included all known costs in this cost estimate. However, according to Leonardo, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska, and

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Leonardo Model AB139 and AW139 helicopters with certain serial-numbered engine mounting rods part number (P/N) 3G7120V00132. The NPRM published in the Federal Register on July 9, 2020 (85 FR 41219). The NPRM proposed to require removing the affected engine mounting rods from service and proposed to prohibit installing an affected engine mounting rod on any helicopter. The proposed requirements were intended to prevent failure of an affected engine mounting rod, which could possibly result in loss of control of the helicopter.

The NPRM was prompted by EASA AD No. 2019-0149, dated June 24, 2019, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Leonardo S.p.a. (formerly Finmeccanica S.p.A., AgustaWestland S.p.A., Agusta S.p.A.; and AgustaWestland Philadelphia Corporation, formerly Agusta Aerospace Corporation) Model AB139 and AW139 helicopters with certain serial numbered engine mounting rods P/N 3G7120V00132 installed. EASA advises of reports of a production non-conformity on a specific batch of these engine mounting rods. EASA further advises that this non-conformity degrades the material strength of the engine mounting rods.

EASA states this condition, if not corrected, could lead to failure of an affected engine mounting rod, possibly resulting in loss of control of the helicopter. Accordingly, the EASA AD requires removing from service each affected engine mounting rod, emailing a completed “Scrap Report” to Leonardo Helicopters Division, and installing a serviceable engine mounting rod. The EASA AD also prohibits installing an affected engine mounting rod on any helicopter.

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

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

The EASA AD requires emailing a completed “Scrap Report” to Leonardo Helicopters Division at the same compliance time as the engine mounting rod removal, whereas this AD does not.

The FAA reviewed Leonardo Helicopters Alert Service Bulletin (ASB) No. 139-593, Revision A, dated June 14, 2019 (ASB 139-593, Revision A), which specifies procedures to replace the engine outboard and inboard mounting rods from the Number 1 and Number 2 engines.

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

The FAA reviewed Leonardo Helicopters ASB No. 139-593, dated June 11, 2019. This service information contains the same procedures as ASB 139-593, Revision A. However, ASB 139-593, Revision A expands the applicability from certain serial-numbered Model AB139 and AW139 helicopters to all Model AB139 and AW139 helicopters with affected engine mounting rods installed.

The FAA also reviewed Leonardo Helicopters AMP DM 39-A-71-21-05-00A-520A-B, AMP DM 39-A-71-21-05-00A-720A-B, AMP DM 39-A-71-21-06-00A-520A-B, AMP DM 39-A-71-21-06-00A-720A-B, AMP DM 39-A-71-21-07-00A-520A-B, AMP DM 39-A-71-21-07-00A-720A-B, AMP DM 39-A-71-21-08-00A-520A-B, and AMP DM 39-A-71-21-08-00A-720A-B, all dated October 4, 2019. This service information specifies instructions for removing and installing the outboard and inboard engine mounting rods.

The FAA estimates that this AD affects up to 126 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Replacing an engine mounting rod requires about 8 work-hours and parts cost about $1,000 for an estimated cost of $1,680 per engine mounting rod.

According to Leonardo Helicopter's service information, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage by Leonardo Helicopters. Accordingly, all costs are included in this cost estimate.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska, and

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

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0086, dated April 14, 2020 (EASA AD 2020-0086) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus Helicopters Model AS332C, AS332C1, AS332L, AS332L1, and SA330J helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-05-09, Amendment 39-19218 (83 FR 10360, March 9, 2018) (AD 2018-05-09). AD 2018-05-09 applied to all Airbus Helicopters Model AS332C, AS332C1, AS332L, and AS332L1 helicopters. The NPRM published in the Federal Register on November 4, 2020 (85 FR 70087). The NPRM was prompted by report of a damaged flapping hinge on a T/R blade. The NPRM proposed to require repetitive inspections of the spindle bolts and the inner ring and needle bearings of each flapping hinge, corrective actions if necessary, and repetitive replacements of affected flapping hinge components, as specified in an EASA AD. Replacement of all affected flapping hinge components on each flapping hinge is terminating action for the repetitive inspections. The NPRM also proposed to expand the applicability.

The FAA is issuing this AD to address failure of a T/R flapping hinge. This condition could result in unbalance of the T/R, detachment of the T/R gearbox and hub, and subsequent loss of control of the helicopter. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.

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

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

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

EASA AD 2020-0086 describes procedures for repetitive replacement of the flapping hinge components and repetitive inspections of the spindle bolts, inner ring, and needle bearings of each flapping hinge, and corrective action. The inspection procedures include repetitive inspections of the spindle bolts for cracking; repetitive inspections of the inner ring for spalling, brinelling, and cracking; and repetitive inspections of the needle bearings for spalling. The corrective actions include replacement of any affected component with a serviceable part. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Although the service information referenced in EASA AD 2020-0086 specifies to return affected parts and submit a form to the manufacturer, this AD does not include those requirements.

Where paragraph (1) of EASA AD 2020-0086 refers to a compliance time of “within 25 flight hours or during the next scheduled 50 FH inspection, whichever occurs later . . . ,” for the initial replacement, this AD requires completion within 25 hours time-in-service after the effective date of this AD.

The FAA estimates that this AD affects 26 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska, and

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

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

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, issued Transport Canada AD CF-2019-03, dated January 31, 2019 (referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Bell Helicopter Textron Canada Limited (now Bell Textron Canada Limited) Model 429 helicopters. TCCA advises that an airworthiness limitations schedule document introduces a new life limit for CFB part number (P/N) 429-310-003-103, a component that was not previously included. Failure to observe the CFB life limit could result in excessive vibration and loss of control of the helicopter. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0860.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bell Helicopter Textron Canada Limited (now Bell Textron Canada Limited) Model 429 helicopters. The NPRM published in the Federal Register on October 1, 2020 (85 FR 61879). The NPRM was prompted by the introduction of a new life limit for the CFB. The NPRM proposed to require determining the accumulated RIN and removing each affected CFB from service before it accumulates 8,000 total RIN. The FAA is issuing this AD to address a CFB remaining in service beyond its fatigue life. Failure to observe the CFB life limit could result in excessive vibration and loss of control of the helicopter. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.

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

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

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

Bell Helicopter has issued Bell Model 429 Maintenance Planning Information BHT-429-MPI, Chapter 4, Airworthiness Limitations Schedule, DMC-429-A-04-00-00-00A-288A-A, Issue 1, dated January 10, 2019. This service information describes new maintenance requirements and airworthiness limitations.

The FAA estimates that this AD affects 85 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska, and

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

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0176, dated August 21, 2018 (EASA AD 2018-0176) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Airbus Helicopters Model SA-365N, SA-365N1, AS-365N2, AS 365 N3, EC 155B, and EC155B1 helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Helicopters Model SA-365N, SA-365N1, AS-365N2, AS 365 N3, EC 155B, and EC155B1 helicopters. The NPRM published in the Federal Register on November 30, 2020 (85 FR 76495). The NPRM was prompted by the FAA's determination that to improve the process and performance in collecting metal particles in the MGB certain existing magnetic plugs (electrical and non-electrical) installed in the MGB pump intake must be replaced with improved non-electrical magnetic plugs. The NPRM proposed to require replacing the existing magnetic plug with an improved non-electrical magnetic plug, as specified in an EASA AD.

The FAA is issuing this AD to address metal particles causing seizure of the MGB, loss of power to the main rotor, and subsequent loss of control of the helicopter. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.

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

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

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

EASA AD 2018-0176 describes procedures for replacing the existing magnetic plug (electrical and non-electrical) installed in the MGB pump intake with an improved non-electrical magnetic plug. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

The FAA estimates that this AD affects 52 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska, and

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

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

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model AS350B3 helicopters with a Turbomeca ARRIEL 2B engine installed. The NPRM published in the Federal Register on October 15, 2020 (85 FR 65285). The NPRM proposed to require, based on helicopter configuration, modifying the electrical system of the throttle twist grip. The proposed AD also proposed to require inspecting the routing of a microswitch electrical harness, and depending on the routing of that electrical harness, correcting the routing. The proposed requirements were intended to prevent failure of the electrical operation of the throttle twist grip, which can prevent switching from “IDLE” mode to “FLIGHT” mode. During autorotation training or during governor failure training (when the throttle grip is turned in the low flow direction), this condition prohibits recovery from a practice autorotation and compels the pilot to continue the autorotation to the ground. This condition could result in unintended touchdown to the ground at a flight-idle power setting, damage to the helicopter, and injury to occupants.

The NPRM was prompted by EASA AD No. 2017-0035, dated February 20, 2017 (EASA AD 2017-0035), to correct an unsafe condition for Airbus Helicopters (formerly Eurocopter) Model AS 350 B3 helicopters with ARRIEL 2B engines installed. EASA advises of an initial report of the microswitch pin jammed in the pushed-in position resulting in the engine remaining in idle when the twist grip had been turned back to the “flight” position during an autorotation training exercise. This condition could also occur during governor failure training when the twist grip is turned in the low flow rate direction. EASA also advises of two later reports of this condition, with one of those reports related to an incorrectly routed electrical harness. EASA advises that this condition, if not detected and corrected, could lead to reduced control of the helicopter.

EASA initially issued AD No. 2006-0094, dated April 21, 2006, which required repetitive testing of the microswitch and established a life limit for the microswitch. Subsequent EASA AD action required reducing that life limit, inspecting the travel of the collective lever, performing an additional check of the collective lever for free travel, and installing a terminating action modification that was available for certain helicopter configurations. That modification gave priority to the HydroMechanical Unit (HMU) flight position when the microswitch failed to operate correctly at forced idle. EASA most recently issued AD 2017-0035, which prompted this AD action, to include all of the previous AD requirements and expand the terminating action modification to other helicopter configurations.

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

This helicopter has been approved by EASA and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all of the information provided by EASA and determining the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design and that air safety and the public interest require adopting the AD requirements as proposed, except for a minor editorial change. The FAA has determined that this minor editorial change is consistent with the intent that was proposed in the NPRM for addressing the unsafe condition and does not add any additional burden upon the public than was already proposed in the NPRM.

The EASA AD specifies a repetitive test of the microswitch, a life limit for the microswitch, and inspecting the travel of the collective lever, until the terminating action of modifying the electrical system of the throttle twist grip and inspecting the routing of a microswitch electrical harness are completed. This AD only requires modifying the electrical system of the throttle twist grip and inspecting the routing of a microswitch electrical harness. The EASA AD specifies performing that terminating action in a compliance time of calendar months. This AD requires performing the required actions before the next practice autorotation, before the next simulated governor failure, or within 330 hours time-in service, whichever occurs first.

The FAA reviewed Airbus Helicopters Alert Service Bulletin (ASB) No. AS350-67.00.43, Revision 3, dated June 16, 2016, which specifies procedures, based on different configurations, to modify the electrical operation to give priority to the HMU flight position when the microswitch does not operate correctly at forced idle (corresponds to Airbus Helicopters Modification (MOD) 073357). This service information also specifies instructions to inspect the routing of microswitch electrical harness number “53K”.

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

The FAA also reviewed Eurocopter ASB No. 05.00.49, Revision 3, dated March 8, 2012. This service information specifies procedures, for helicopters without MOD 073357 installed, for repetitive testing of the microswitch, a life limit for the microswitch, inspecting the travel of the collective lever, and verifying correct wiring harness installation.

The FAA estimates that this AD affects 517 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour. Modifying the electrical system and inspecting the electrical harness routing takes about 30 work-hours and parts will cost about $9,692 for an estimated cost of $12,242 per helicopter and $6,329,114 for the U.S. fleet.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska, and

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends restricted areas R-3008A, R-3008B, R-3008C, and R-3008D; Grand Bay Weapons Range, GA, by expanding the timeframe during which the areas may be activated reducing the need for the using agency to issue NOTAMs when necessary to activate the restricted areas outside the published “core hours.”

The published time of designation for restricted areas R-3008A, R-3008B, R-3008C, and R-3008D is “0700-2200 local time, Monday-Friday; other times by NOTAM 6 hours in advance.” For many years, the using agency has routinely extended use of the restricted areas past the designated 2200 local time (as authorized by the NOTAM provision). To exercise this provision, the using agency must issue NOTAMs daily in order to activate the airspace beyond the published “core hours” ( i.e., 0700-2200 local time). Amending the time of designation to match the routine, actual usage of the airspace reduces NOTAM System workload and better informs the flying public of expected times the restricted areas will be active.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2013-1063 in the Federal Register (79 FR 6504; February 4, 2014), amending the time of designation for restricted areas R-3008A, R-3008B, R-3008C, and R-3008D; Grand Bay Weapons Range, GA.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. Two comments were received. Both commenters expressed support for the proposal.

The NPRM proposed to change the time of designation of restricted areas R-3008A, R-3008B, R-3008C, and R-3008D from “0700-2200 local time, Monday-Friday; other times by NOTAM 6 hours in advance,” to “0800-0130 local time, Monday-Thursday; 0700-2200 local time Friday; other times by NOTAM 6 hours in advance.” This rule amends the time of designation for Friday to read “0800-2200 local time; other times by NOTAM 6 hours in advance.”

This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 by changing the time of designation for restricted areas R-3008A, R-3008B, R-3008C, and R-3008D from “0700-2200 local time, Monday-Friday; other times by NOTAM 6 hours in advance,” to “0800-0130 local time, Monday-Thursday; 0800-2200 Friday; other times by NOTAM 6 hours in advance.” The change captures the vast majority of the routine operations currently occurring in the restricted areas. The amendment provides more accurate notice to the flying public of when to expect that the restricted areas will be in use. Additionally, it reduces the using agency's workload by eliminating the need to issue daily NOTAMs for routine operations.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of amending the time of designation for restricted areas R-3008A, R-3008B, R-3008C, and R-3008D; Grand Bay Weapons Range, GA, to match the times that the areas are routinely activated outside the “core hours” through the issuance of a NOTAM qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5c, actions to return all or part of special use airspace (SUA) to the National Airspace System (NAS), such as revocation of airspace, a decrease in dimensions, or a reduction in times of use ( e.g., from continuous to intermittent, or use by a Notice to Airmen (NOTAM)). As such, this action is not expected to cause any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the using agency for Restricted Area R-4305, Lake Superior, MN.

The U.S. Air Force requested that the Federal Aviation Administration amend the Restricted Area R-4305, Lake Superior, MN, description by changing the using agency from the “USAF, 55th Wing, Offutt AFB, NE”, to the “U.S. Air Force, 148th Fighter Wing, Duluth International Airport, MN”. Both military organizations use the restricted area and support the using agency change. Since 2011, the 148th Fighter Wing has fulfilled the scheduling and utilization reporting responsibilities for R-4305, even though the 55th Wing was the using agency of record in the R-4305 description.

As such, changing the R-4305 using agency from the 55th Wing, Offutt AFB, NE, to the 148th Fighter Wing, Duluth International Airport, MN, reflects the existing responsibilities of the 148th Fighter Wing for accomplishing the scheduling and utilization reporting for the restricted area. Additionally, this change supports the U.S. Air Force's efforts to align the using agency for R-4305 and the surrounding Military Operations Areas under the same using agency to ensure efficient use of the special use airspace complex.

There are no changes to the boundaries, designated altitudes, time of designation, or activities conducted within the affected restricted area as a result of changing the R-4305 using agency.

This action amends title 14 Code of Federal Regulations (14 CFR) part 73 by changing the using agency name listed for restricted area R-4305 over Lake Superior, MN, from “USAF, 55th Wing, Offutt AFB, NE” to “U.S. Air Force, 148th Fighter Wing, Duluth International Airport, MN”. This action is necessary in order to reflect the current military organization tasked with using agency responsibilities for the restricted area.

This is an administrative change that does not affect the overall R-4305 restricted area boundaries, designated altitudes, time of designation, or activities conducted within the restricted area; therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

The FAA has determined that this action only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of updating the using agency information for R-4305, Lake Superior, MN, qualifies for categorical exclusion under the National Environmental Policy Act, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5.d. This airspace action is an administrative change to the description of restricted area R-4305, Lake Superior, MN, to update the using agency name. It does not alter the restricted area dimensions, designated altitudes, time of designation, or use of the airspace. Therefore, this airspace action is not expected to result in any significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

Document Availability: In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through FERC's Home Page ( http://www.ferc.gov ). At this time, the Commission has suspended access to the Commission's Public Reference Room, due to the proclamation declaring a National Emergency concerning the Novel Coronavirus Disease (COVID-19), issued by the President on March 13, 2020.

From FERC's website on the internet, this information is available in the eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field and follow other directions on the search page.

User assistance is available for eLibrary and other aspects of FERC's website during normal business hours. For assistance, contact FERC Online Support at FERCOnlineSupport@ferc.gov or toll free at (866) 208-3676, or for TTY, contact (202) 502-8659.

The Federal Energy Regulatory Commission (Commission) is issuing this document to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2020 costs. The adjusted fees announced in this document are effective March 29, 2021. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this final rule is not a major rule within the meaning of section 251 of Subtitle E of Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). The Commission is submitting this final rule to both houses of the United States Congress and to the Comptroller General of the United States.

The new fee schedule is as follows:

In consideration of the foregoing, the Commission amends part 381, chapter I, title 18, Code of Federal Regulations, as set forth below.

In the DFR, the Department stated that if a significant adverse comment was submitted by February 10, 2021, the Department would publish a timely withdrawal in the Federal Register informing the public that the DFR will not take effect. The Department also issued an identical notice of proposed rulemaking (NPRM) on the same day (86 FR 1857). The Department received significant adverse comment prior to the close of the comment period on the conforming Office of Administrative Law Judges (OALJ) rulemaking (86 FR 1862) in which commenters noted that they also practice before the Benefits Review Board (BRB). Therefore, out of an abundance of caution, the Department is withdrawing the DFR. The Department also received a request to extend the comment period of the OALJ rule and will reopen the comment period for the BRB NPRM for 15 days in a future document. In issuing a final action, the Department will consider comments received on the DFR and NPRM during the initial comment period as well as comments received during the subsequent comment period. The Department will also provide at least 30 days' notice between promulgating a final rule that requires e-filing and the date on which e-filing will become mandatory under such a rule. Furthermore, the Department notes that several comments raised concerns with the Department's electronic filing system and not the requirements of the proposed or direct final rules. To better understand and address these concerns, the Department plans to hold listening sessions during the coming weeks for users to provide feedback on the system. Information about those sessions will be announced at https://efile.dol.gov.

In the DFR, the Department stated that if a significant adverse comment was submitted by February 10, 2021, the Department would publish a timely withdrawal in the Federal Register informing the public that the DFR will not take effect. The Department also issued an identical notice of proposed rulemaking (NPRM) on the same day (86 FR 1862). The Department received significant adverse comment prior to the close of the comment period and is therefore withdrawing the DFR. The Department also received a request to extend the comment period and will reopen the comment period for the NPRM for 15 days in a future document. In issuing a final action, the Department will consider comments received on the DFR and NPRM during the initial comment period as well as comments received during the subsequent comment period. The Department will also provide at least 30 days' notice between promulgating a final rule that requires e-filing and the date on which e-filing will become mandatory under such a rule. Furthermore, the Department notes that several comments raised concerns with the Department's electronic filing system and not the requirements of the proposed or direct final rules. To better understand and address these concerns, the Department plans to hold listening sessions during the coming weeks for users to provide feedback on the system. Information about those sessions will be announced at https://efile.dol.gov.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. On February 15, 2021, the Coast Guard was notified of a demolition event that will take place on the Ohio River, between Mile Marker (MM) 452.0 to MM 454.0 near New Richmond, OH from 9:30 a.m. through 10:30 a.m. on February 26, 2021 or if inclement weather is present the demotion event will take place on February 27, 2021 or February 28, 2021, from 9:30 a.m. through 10:30 a.m. Notice of the demolition event did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before the demolition work is set to begin. It would be impracticable and contrary to the public interest to delay promulgating this rule as it is necessary to establish this safety zone on February 26, 2021 to protect the safety of anyone within a two mile radius of the area associated with the demolition. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is necessary to respond to the potential safety hazards associated with the demolition.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Ohio Valley (COTP) has determined that potential hazards associated with the demolition occuring on February 26, 2021, will be a safety concern for anyone near the demolition site. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

This rule establishes a safety zone from 9:30 a.m. through 10:30 a.m. on February 26, 2021. The back up dates will be February 27, 2021 or February 28, 2021, from 9:30 a.m. through 10:30 a.m. The temporary safety zone would cover all navigable waters on the Ohio River extending from MM 452.0 to MM 454.0 near New Richmond, OH. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9:30 a.m. through 10:30 a.m. demolition. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, and duration of the temporary safety zone. The temporary safety zone would only be in effect for 1 hour and limit access to a two-mile stretch of the Ohio River near New Richmond, OH. The Coast Guard expects minimum adverse impact to mariners. Also, mariners would be permitted to request authorization from the COTP or a designated representative to transit the temporary safety zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 1 hour, which would prohibit entry within a 2-mile stretch of the Ohio River near New Richmond, OH. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

In FR Doc. 2020-26819 of December 29, 2020 (85 FR 85866), there were a number of technical and typographical errors that are identified and corrected in the Correction of Errors section below. The corrections in this correction document are applicable as if they had been included in the document that was issued on December 4, 2020, and published December 29, 2020. Accordingly, each correction is applicable on January 1, 2021.

On page 85987 of the “OPPS APC-Specific Policies” section, we inadvertently omitted a summary of a public comment and response related to existing CPT codes 0607T and 0608T. Therefore, we are adding a new subsection titled “31. Other Procedures/Services” that includes a summary of this public comment and our response.

On page 86033, we are correcting an inadvertent reference to the quarter for which ASP data will be used to calculate payment rates for HCPCS codes for separately payable drugs and biologicals included in Addenda A and B: It is the second quarter of CY 2020, not the third quarter of CY 2020.

On Page 86035, we inadvertently referred to CY 2018, rather than CY 2021, as the year in which the proposed packaging status of each drug and biological with HCPCS codes that describe different dosages of the same drug or biological would apply.

On Page 86063, in Table 42: Skin Substitute Assignments to High Cost and Low Cost Groups for CY 2021, we inadvertently stated in the column titled “Final CY 2021 High/Low Cost Assignment” that HCPCS code Q4222 is assigned to the “Low” cost group rather than “High” cost group.

On Page 86273, we inadvertently described the increase in total OPPS payments in CY 2021 as a result of the update to the conversion factor, the CY 2021 frontier wage index adjustment, and other adjustments (not including the effects of outlier payments or the pass-through payment estimates) as 0.2 percent, rather than 2.6 percent.

On pages 86154 and 86165, in Tables 59 and 60, we incorrectly listed the final CY 2021 ASC payment indicator for CPT code 0404T (Transcervical uterine fibroid(s) ablation with ultrasound guidance, radiofrequency) as “G2” instead of “J8”. As stated on page 86016, we assigned device-intensive status to CPT code 0404T and finalized a default device offset percentage of 31 percent to reflect the device costs associated with that code for CY 2021. However, we inadvertently did not assign device-intensive status to CPT code 0404T or utilize the default device offset percentage under the ASC payment system for CPT code 0404T when calculating ASC payment rates for CY 2021.

On page 86175, we inadvertently did not refer to the revised modifications to the labor market areas contained in OMB Bulletins 18-03 and 18-04. While we used these updated delineations to calculate the ASC wage index for CY 2021, which we used to calculate the ASC payment system rates, we unintentionally did not include conforming language in the ASC wage index section of the preamble to refer to these bulletins. Therefore, we are correcting the ASC wage index section by including language referring to the revised labor market areas issued in the OMB Bulletins 18-03 and 18-04.

On pages 86176 and 86282, we are correcting references to the weight scalar used in ASC payment rate calculations from “0.8591” to “0.8547” to include the effect of our policy to unpackage HCPCS code J1097 (phenylephrine 10.16 mg/ml and ketorolac 2.88 mg/ml ophthalmic irrigation solution, 1 ml) for CY 2021 (85 FR 86172). We also inadvertently omitted prospective expenditures related to HCPCS code J1097 for CY 2021 in our calculation of the ASC budget neutrality adjustment. We note that the ASC weight scalar of 0.8547 includes this correction, the correction noted above for CPT code 0404T, and accounts for the increase in CY 2021 Medicare Physician Fee Schedule payment amounts of 3.75 percent, which is required by section 101(a) of Division N, Title I of the Consolidated Appropriations Act (CAA), 2021 (Pub. L. 116-260). For office-based covered surgical procedures and certain covered ancillary radiology services and diagnostic tests under the ASC payment system, the payment rate is the lower of the final CY 2021 MPFS nonfacility PE RVU-based amount multiplied by the MPFS conversion factor or the OPPS-relative weight-based CY 2021 ASC payment amount, and accordingly, it was necessary to update the MPFS-based ASC rates for CY 2021.

On page 86182, in footnote 107, the url in the following reference is corrected: “The data reviewed are maintained in the CMS Integrated Data Repository (IDR). The IDR is a high volume data warehouse integrating Medicare Parts A, B, C, and D, and DME claims, beneficiary and provider data sources, along with ancillary data such as contract information and risk scores. Additional information is available at https://www.cms.gov/Research-Statistics-DataandSystems/Computer-Data-and-Systems/IDR/index.html. ” The url is corrected to read: https://www.cms.gov/Research-Statistics-Data-and-Systems/Computer-Data-and-Systems/IDR.

On page 86192, in footnote 110, the url in the following reference is not correct: “For more information on the ECE policy, we refer stakeholders to the QualityNet website at https://www.qualitynet.org/asc/datasubmission#tab2. ” The url is corrected to read: https://www.qualitynet.org/asc/ascqr/participation#tab2.

In Addendum A of the CY 2021 OPPS/ASC final rule with comment period, APC 9370 had an incorrect payment rate of $0.752. We corrected the following:

• For APC 9370 (Fluoroestradiol f 18), we included an incorrect payment rate. Specifically, we are correcting the payment rate from $0.752 to $626.583.

In Addendum B of the CY 2021 OPPS/ASC final rule with comment period, HCPCS codes G2061, G2062, and G2063 are incorrectly shown as active codes with status indicator “A” to indicate that they should be paid under a fee schedule or payment system other than the OPPS. These codes have been deleted effective December 31, 2020, and therefore should be assigned status indicator “D” to indicate that they are discontinued codes. These codes have been replaced with CPT codes 98970, 98971, and 98972, respectively. CPT codes 98970, 98971, and 98972 were incorrectly assigned to status indicator “B” to indicate that another more appropriate code should be reported. But because these codes are replacing HCPCS codes G2061, G2062, and G2063, they should be assigned status indicator “A”. Therefore, in the Addendum B (Final OPPS Payment by HCPCS code for CY 2021), we corrected the following:

• HCPCS code G2061 (Qual nonmd est pt 5-10m): We made a typographical error in the status indicator assignment. Specifically, we are correcting the status indicator from “A” to “D”.

• HCPCS code G2062 (Qual nonmd est pt 11-20m): We made a typographical error in the status indicator assignment. Specifically, we are correcting the status indicator from “A” to “D”.

• HCPCS code G2063 (Qual nonmd est pt 21>min): We made a typographical error in the status indicator assignment. Specifically, we are correcting the status indicator from “A” to “D”.

• CPT code 98970 (Qnhp ol dig assmt&mgmt 5-10): We made a typographical error in the status indicator assignment. Specifically, we are correcting the status indicator from “B” to “A”. We are also assigning 98970 to comment indicator “CH” to indicate that its status indicator has changed.

• CPT code 98971 (Qnhp ol dig assmt&mgmt 11-20): We made a typographical error in the status indicator assignment. Specifically, we are correcting the status indicator from “B” to “A”. We are also assigning 98971 to comment indicator “CH” to indicate that its status indicator has changed.

• CPT code 98972 (Qnhp ol dig assmt&mgmt 21+): We made a typographical error in the status indicator assignment. Specifically, we are correcting the status indicator from “B” to “A”. We are also assigning 98972 to comment indicator “CH” to indicate that its status indicator has changed.

In Addendum B of the CY 2021 OPPS/ASC final rule with comment period, HCPCS codes G2010 and G2012 were incorrectly assigned to status indicator “A” to indicate that they should be paid under a fee schedule or payment system other than the OPPS. However, because these codes were replaced with HCPCS codes G2250 and G2251 for certain non-physician practitioners, including rehabilitation therapists, effective January 1, 2021, we assigned them to status indicator “B” under the OPPS to indicate that other more appropriate codes should be reported. Therefore, in the Addendum B (Final OPPS Payment by HCPCS code for CY 2021), we corrected the following:

• HCPCS code G2010 (Remote evaluation of recorded video and/or images submitted by an established patient ( e.g., store and forward), including interpretation with follow-up with the patient within 24 business hours, not originating from a related e/m service provided within the previous 7 days nor leading to an e/m service or procedure within the next 24 hours or soonest available appointment). We made a typographical error in the status indicator assignment. Specifically, we are correcting the status indicator from “A” to “B”.

• HCPCS code G2012 (Brief communication technology-based service, e.g., virtual check-in, by a physician or other qualified health care professional who can report evaluation and management services, provided to an established patient, not originating from a related e/m service provided within the previous 7 days nor leading to an e/m service or procedure within the next 24 hours or soonest available appointment; 5-10 minutes of medical discussion). We made a typographical error in the status indicator assignment. Specifically, we are correcting the status indicator from “A” to “B”.

In Addendum B of the CY 2021 OPPS/ASC final rule with comment period, HCPCS code G2211 was incorrectly assigned to status indicator “N” to indicate that it should be packaged under the OPPS. We intended to assign this code to status indicator “B” to indicate that it should not be payable under the OPPS because this code is an add-on code to existing Evaluation and Management code(s) that are assigned to status indicator “B”. Therefore, in the Addendum B (Final OPPS Payment by HCPCS code for CY 2021), we corrected the following:

• HCPCS code G2211 (Visit complexity inherent to evaluation and management associated with medical care services that serve as the continuing focal point for all needed health care services and/or with medical care services that are part of ongoing care related to a patient's single, serious condition or a complex condition. (add-on code, list separately in addition to office/outpatient evaluation and management visit, new or established)). We made a typographical error in the status indicator assignment. Specifically, we are correcting the status indicator from “N” to “B”.

In Addendum B of the CY 2021 OPPS/ASC final rule with comment period, HCPCS code A9591 had an incorrect payment rate of $0.752. We corrected the following:

• For HCPCS A9591 (Fluoroestradiol f 18, diagnostic, 1 millicurie), we included an incorrect payment rate. Specifically, we are correcting the payment rate from $0.752 to $626.583.

In Addendum C of the CY 2021 OPPS/ASC final rule with comment period, APC 9370, HCPCS code A9591 had an incorrect payment rate of $0.752. We corrected the following:

• For APC 9370 (Fluoroestradiol f 18), HCPCS code A9591 (Fluoroestradiol f 18, diagnostic, 1 millicurie), we included an incorrect payment rate. Specifically, we are correcting the payment rate from $0.752 to $626.583.

In Addendum P, in the tab titled “2021 FR Device Intensive List”, we inadvertently omitted CPT code 0404T from this list. CPT code 0404T was finalized as a device-intensive procedure for CY 2021 with a device offset percentage of 31 percent. We have added this procedure to the list of device-intensive procedures on this tab in Addendum P.

To view the corrected CY 2021 OPPS status indicators, comment indicators, APC assignments, relative weights, payment rates, copayment rates, device-intensive status, and short descriptors in Addenda A, B, C, and P, we refer readers to the Addenda and supporting files that are posted on the CMS website at: http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index.html. Select “CMS-1736-CN” from the list of regulations. All corrected Addenda for this correcting document are contained in the zipped folder titled “2021 OPPS Final Rule Addenda” at the bottom of the page for CMS-1736-CN.

In Addenda AA and BB, we inadvertently applied an incorrect ASC weight scalar to calculate payment rates under the ASC payment system. In our CY 2021 OPPS/ASC final rule with comment period, we finalized a policy to unpackage HCPCS code J1097 (phenylephrine 10.16 mg/ml and ketorolac 2.88 mg/ml ophthalmic irrigation solution, 1 ml) for CY 2021 (85 FR 86172). However, in our budget neutrality adjustment calculation, we inadvertently omitted prospective expenditures related to J1097 for CY 2021. This error impacted the calculation of the ASC weight scalar and ASC payment rates. Accordingly, we have updated Addenda AA and BB to accurately reflect the ASC payment rates based on the revised ASC weight scalar, as corrected in this notice and updated to include the increased MPFS rates required by section 101(a) of Division N, Title I of the Consolidated Appropriations Act, 2021.

In Addendum BB of the CY 2021 OPPS/ASC final rule with comment period, HCPCS code A9591 had an incorrect payment rate of $0.75. We corrected the following:

• For HCPCS A9591 (Fluoroestradiol f 18, diagnostic, 1 millicurie), we included an incorrect payment rate. Specifically, we are correcting the payment rate from $0.75 to $626.58.

To view the corrected final CY 2021 ASC payment indicators, payment weights, payment rates, and multiple procedure discounting indicator in Addenda AA and BB, we refer readers to the Addenda and supporting files on the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ASCPayment/ASC-Regulations-and-Notices.html. Select “CMS-1736-CN” from the list of regulations. All corrected ASC addenda for this correcting document are contained in the zipped folder titled “Addendum AA, BB, DD1, DD2, and EE” at the bottom of the page for CMS-1736-CN.

Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of proposed rulemaking in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide notice of the proposed rulemaking in the Federal Register and a period of not less than 60 days for public comment. In addition, section 553(d) of the APA and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the notice and comment and delay in effective date APA requirements; in cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 60-day comment period and delay in effective date requirements of the Act as well. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal rulemaking requirements for good cause if the agency makes a finding that the notice and comment process are impracticable, unnecessary, or contrary to the public interest. In addition, both sections 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and an agency includes a statement of support.

We believe that this correcting document does not constitute a rule that would be subject to the notice and comment or delayed effective date requirements. This document corrects technical and typographic errors in the preamble, addenda, payment rates, tables, and appendices included or referenced in the CY 2021 OPPS/ASC final rule with comment period, but does not make substantive changes to the policies or payment methodologies that were adopted in the final rule with comment period. As a result, this correcting document is intended to ensure that the information in the CY 2021 OPPS/ASC final rule with comment period accurately reflects the policies adopted in that document.

In addition, even if this were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the CY 2021 OPPS/ASC final rule accurately reflects our policies as of the date they take effect and are applicable.

Furthermore, such procedures would be unnecessary, as we are not altering our payment methodologies or policies, but rather, we are simply correctly implementing the policies that we previously proposed, received comment on, and subsequently finalized. This correcting document is intended solely to ensure that the CY 2021 OPPS/ASC final rule with comment period accurately reflects these payment methodologies and policies. For these reasons, we believe we have good cause to waive the notice and comment and effective date requirements. Moreover, even if these corrections were considered to be retroactive rulemaking, they would be authorized under section 1871(e)(1)(A)(ii) of the Act, which permits the Secretary to issue a rule for the Medicare program with retroactive effect if the failure to do so would be contrary to the public interest. As we have explained previously, we believe it would be contrary to the public interest not to implement the corrections in this correcting document because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the CY 2021 OPPS/ASC final rule with comment period accurately reflects our policies.

In FR Doc. 2020-26819 of December 29, 2020 (85 FR 85866), make the following corrections:

1. On page 85987, third column, after the second full paragraph ending with “Addendum B is available via the internet on the CMS website.” and before the section titled “IV. OPPS Payment for Devices,” the following section and text are added:

For CY 2021, we proposed to continue to assign CPT code 0607T to APC 5012 (Clinic Visits and Related Services) with status indicator “V” (Clinic or Emergency Department Visit. Paid under OPPS; separate APC payment) and a proposed payment rate of $120.88. In addition, we proposed to continue to assign CPT code 0608T to APC 5741 (Level 1 Electronic Analysis of Devices) with status indicator “S” (Procedure or Service, Not Discounted When Multiple. Paid under OPPS; separate APC payment) and a proposed payment rate of $37.76. Below are the long descriptors for CPT codes 0607T and 0608T:

• 0607T: Remote monitoring of an external continuous pulmonary fluid monitoring system, including measurement of radiofrequency-derived pulmonary fluid levels, heart rate, respiration rate, activity, posture, and cardiovascular rhythm ( e.g., ECG data), transmitted to a remote 24-hour attended surveillance center; set-up and patient education on use of equipment; and

• 0608T: Remote monitoring of an external continuous pulmonary fluid monitoring system, including measurement of radiofrequency-derived pulmonary fluid levels, heart rate, respiration rate, activity, posture, and cardiovascular rhythm ( e.g., ECG data), transmitted to a remote 24-hour attended surveillance center; analysis of data received and transmission of reports to the physician or other qualified health care professional.

Comment: A commenter requested that we reassign CPT codes 0607T and 0608T to non-payable OPPS status indicators because the commenter contended that the service associated with the codes is not provided to hospital outpatients during a hospital outpatient encounter. The commenter specifically requested that both codes be reassigned to either status indicator “B” (Codes that are not recognized by OPPS. Not paid under OPPS) or “M” (Items and Services Not Billable to the MAC. Not paid under OPPS) for both codes. The commenter reported that the services are prescribed by individual physicians, and are not currently provided to either hospital inpatients or outpatients, or in conjunction with any hospital service. According to the commenter, there is no hospital in the U.S. that possesses the technology to provide a remote pulmonary fluid monitoring system and further stated that ambulatory fluid monitoring system is only available through a single Independent Diagnostic Testing Facility (IDTF) in Pittsburgh, Pennsylvania. The commenter explained that an individual physician will prescribe the ambulatory fluid monitoring device for their patient and submit the medical order to the IDTF. Thereafter, the IDTF is ultimately responsible for the transmission, analysis, and creation of reports to the prescribing physician.

Response: Based on our review of the codes and input from our medical advisors, the services described by CPT codes 0607T and 0608T may be provided in an HOPD setting. While the commenter has indicated that the services described by the codes are currently performed by one IDTF, we believe that the services can be performed by HOPDs. Consequently, for CY 2021, we believe that we should continue to assign these codes to APCs 5012 and 5741 so that HOPDs can be paid separately if they provide these services in the HOPD setting. Therefore, we are finalizing our proposal, without modification, to assign CPT codes 0607T and 0608T to APCs 5012 and 5741, respectively. The final CY 2021 payment rate for the codes can be found in Addendum B to this final rule with comment period (which is available via the internet on the CMS website).

2. On page 86033, first column, first full paragraph, in line 5 and 6, “third quarter of CY 2020” is corrected to read “second quarter of CY 2020”.

3. On page 86035, third column, first partial paragraph, in line 4, the year “CY 2018” is corrected to read “CY 2021”.

4. On Page 86063, Table 42, in the entry for HCPCS code Q4222, under the column for “Final CY 2021 High/Low Cost Assignment,” “Low” is corrected to read “High”.

5. On page 86154, Table 59, in the entry for CPT code 0404T, under the column “Final CY 2021 ASC Payment Indicator,” “G2” is corrected to read “J8”.

6. On page 86165, Table 60, in the entry for CPT code 0404T, under the column “Final CY 2021 ASC Payment Indicator,” “G2” is corrected to read “J8”.

7. On page 86175, third column, after the first partial paragraph, add the following text:

On April 10, 2018, OMB issued OMB Bulletin No. 18-03 which superseded the August 15, 2017 OMB Bulletin No. 17-01. On September 14, 2018, OMB issued OMB Bulletin 18-04 which superseded the April 10, 2018 OMB Bulletin No. 18-03. A copy of OMB Bulletin No. 18-04 may be obtained at https://www.whitehouse.gov/wpcontent/uploads/2018/90/Bulletin-18-04.pdf. We are utilizing the revised delineations as set forth in the April 10, 2018 OMB Bulletin No. 18-03 and the September 14, 2018 OMB Bulletin No. 18-04 to calculate the CY 2021 ASC wage index effective beginning January 1, 2021.”

8. On page 86176, third column, first full paragraph, in line 10, the figure “0.8591” is corrected to read “0.8547.”

9. On page 86182, in footnote 107, the url “ https://www.cms.gov/Research-Statistics-DataandSystems/Computer-Data-and-Systems/IDR/index.html ” is corrected to read “ https://www.cms.gov/Research-Statistics-Data-and-Systems/Computer-Data-and-Systems/IDR ”.

10. On page 86192, in footnote 110, the url “ https://www.qualitynet.org/asc/data-submission#tab2 ” is corrected to read: “ https://www.qualitynet.org/asc/ascqr/participation#tab2 ”.

11. On page 86273, second column, third full paragraph, in lines 7 and 8, the figure “0.2 percent” is corrected to read “2.6 percent”.

12. On page 86282, second column, in the first paragraph under “2. Estimated Effects of CY 2021 ASC Payment System Changes,” in line 10, the figure “0.8591” is corrected to read “0.8547.”

This is a summary of the Commission's Report and Order in WT Docket No. 19-71, FCC 21-10, adopted on January 7, 2021 and released on January 7, 2021. The full text of this document is available for public inspection online at https://docs.fcc.gov/public/attachments/FCC-21-10A1.pdf. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format, etc.), and reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) may be requested by sending an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

1. The Commission in this document updates its rule for over-the-air reception devices (OTARD) to expand its coverage to include hub and relay antennas that are used for the distribution of broadband-only fixed wireless services to multiple customer locations, regardless of whether they are primarily used for this purpose, provided the antennas satisfy other conditions of the rule. 1 By making this modest adjustment to the Commission's rule while maintaining the other existing OTARD restrictions, it places fixed wireless broadband-only service providers on similar competitive footing with other service providers. This rule change should allow fixed wireless service providers to bring faster internet speeds, lower latency, and advanced applications—like the Internet of Things, telehealth, and remote learning—to all areas of the country, and to rural and underserved communities in particular.

2. The Commission's OTARD rule prohibits laws, regulations, or restrictions imposed by State or local governments or private entities that impair the ability of antenna users to install, maintain, or use over-the-air reception devices. The Commission adopted the rule as directed by section 207 of the Telecommunications Act of 1996, pursuant to the Commission's authority under section 303 of the Communications Act of 1934. The rule prohibits restrictions that unreasonably delay or prevent installation, maintenance, or use of an antenna; unreasonably increase the cost of installation, maintenance, or use of an antenna; or preclude reception of an acceptable quality signal. For the OTARD rule to apply, the antenna must be installed “on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property” upon which the antenna is located.

3. The original OTARD rule applied only to antennas used to receive video programming signals, but in the 2000 Competitive Networks First Report and Order the Commission expanded the rule to apply to “customer-end antennas used for transmitting or receiving fixed wireless signals.” The Commission found that unreasonable restrictions on the placement of customer premises antennas disadvantage providers of fixed wireless services as compared to their wireline competitors and unreasonably discriminated among providers of functionally equivalent services. The Commission defined fixed wireless signals as “any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location.” The Commission stated that the extension of the OTARD rule would apply “only to antennas at the customer end of the wireless transmission, i.e., to antennas placed at the customer location for the purpose of providing fixed wireless service . . . to one or more customers at that location.” The Commission reasoned that these antennas were customer premises equipment and that section 332 of the Communications Act did not act as a bar to OTARD protection because the antennas were not used to provide personal wireless services. The Commission concluded that it did “not intend the rules to cover hub or relay antennas used to transmit signals to and/or receive signals from multiple customer locations.”

4. In its 2004 Competitive Networks Reconsideration Order, the Commission revised its previous finding and determined that the OTARD rule applies to hub and relay antennas that are “installed in order to serve the customer on such premises,” but that it does not apply to hub and relay antennas designed “ primarily” for use as hubs for distribution of service to multiple customer locations. The Commission's reconsideration responded to a petition from a licensee that “deploy[ed] its networks using a `point-to-point-to-point' architecture in which each customer device also serv[ed] as a relay device.” The Commission, noting that it had not considered “those network configurations and technologies in which customer-end equipment performs both functions” and offered “advanced services,” found that, “[f]or the purposes of the OTARD protections, the equipment deployed in such networks shares the same physical characteristics of other customer-end equipment, distinguished only by the additional functionality of routing service to additional users.” The Commission “[did] not believe that [the Commission's] rules should serve to disadvantage more efficient technologies.” The Commission consequently found that “the OTARD protections would apply to installations serving the premises customer that also relays signals to other customers, such as is typical in mesh networks, but would not apply to installations that are designed primarily for use as hubs for distribution of service.”

5. In 2018, the Wireless Internet Service Providers Association (WISPA) asked the Commission to update the OTARD rule to apply to “all fixed wireless transmitters and receivers, regardless of whether the equipment is used for reception, transmission, or both, so long as the equipment meets the existing size restrictions for customer-end equipment.” WISPA argues that extending the OTARD rule to all fixed wireless equipment “would be consistent with the original intent of OTARD, will accelerate the deployment of competitive broadband services in markets across the country, and will empower consumers to help bring competitive wireless broadband to their communities by hosting hub sites.”

6. WISPA asserts that updating the OTARD rule is necessary to accommodate changes in fixed wireless architecture. While fixed wireless systems historically relied on relatively large coverage areas with fewer hub sites per customer, “over time, as both the cost of technology fell and subscriber data increased, fixed wireless providers began to reduce the size of the area covered per base station.” Because of these changes in technology and network design, WISPA contends, “fixed wireless providers have much less choice in where they can locate hub sites.” WISPA further contends that, “in the absence of Commission action to modernize the OTARD rules, fixed wireless operators will continue to face significant hurdles to siting, perpetuating barriers to new investment and employment.” WISPA further argues that the Commission originally declined to extend OTARD protections to hub sites based on “its opinion at the time that fixed wireless hubs were covered under section 332” of the Communications Act—an opinion that WISPA says does not apply to modern networks because hub sites used for fixed wireless broadband do not necessarily include an offering of telecommunications service.

7. In response to WISPA's letter, the Commission issued a Notice of Proposed Rulemaking ( Notice ) seeking comment on extending the OTARD protections to fixed wireless facilities that operate primarily as hub and relay antennas, but do not qualify as personal wireless service facilities under section 332(c)(7) because they are not used to provide telecommunications services. In this Report and Order, the Commission updates the OTARD rule to reflect the current technological landscape by eliminating the restriction that excludes some hub and relay antennas from the scope of the OTARD protections if they are used primarily for the distribution of service to multiple customer locations. In the 2004 Competitive Networks Reconsideration Order, the Commission determined that customer-end equipment possessing “the additional functionality of routing service to additional users” (such as a node in a mesh network) would not lose OTARD protection, so long as the equipment was “installed in order to serve the customer on [its] premises,” but that it “would not apply to installations that are designed primarily for use as hubs for distribution of service.”

8. The revised OTARD rule applies to all hub and relay antennas that are used for the distribution of fixed wireless services to multiple customer locations, regardless of whether they are “primarily” used for this purpose, as long as: (1) The antenna serves a customer on whose premises it is located, and (2) the service provided over the antenna is broadband-only. 2 The Commission's order here does not modify any other aspects of the current OTARD rule. Thus, the rule's requirements that antennas must be less than one meter in diameter or diagonal measurement, that they apply to property “where the user has a direct or indirect ownership or leasehold interest,” and that restrictions necessary for safety and historic preservation are excepted, remain in place.

9. Policy Considerations. The Commission finds that this limited expansion of the OTARD rule to fixed wireless hub and relay antennas will align the Commission's rules with the current fixed wireless technological landscape and accelerate the deployment of competitive fixed wireless services to consumers. The record supports the conclusion that the fixed wireless technologies have shifted from using larger antennas that transmit over greater distances—that were in use at the time the Commission adopted the hub and relay antenna restriction—to the use of smaller antennas that are located much closer to each other. As numerous commenters emphasize, today's fixed wireless networks rely on smaller antennas located in close proximity to each other. Even in rural areas, these networks are deployed in this way so as to increase broadband capacity. These smaller antennas meet the OTARD size restriction, but some are excluded from OTARD protection due to their “primary” function as fixed wireless hub and relay antennas. If these antennas continue to be excluded from OTARD protection, this could prevent fixed wireless service providers from maintaining or expanding service, particularly broadband-only service, as changes in technology require more dense deployments.

10. The Commission's updated rule will help spur the rapid deployment of fixed wireless networks needed for 5G and other fixed wireless high-speed internet services. This will benefit consumers by offering faster access to advanced communications services and greater competition among service providers. These fixed wireless networks rely on the installation of hub and relay antennas to transmit and receive signals from multiple customer locations to overcome propagation distance limitations and signal obstructions in delivering fixed wireless high-speed internet services. Further, modern fixed wireless antennas are multi-purpose, and can function as receivers, repeaters, and transmitters, thereby eliminating the distinction between fixed wireless hub and relay antennas that the Commission previously relied on in deciding to exclude some of these antennas from OTARD protection. As long as the antennas meet the other requirements of the Commission's rule, its revised rule applies equally to all fixed wireless antennas, no matter whether they operate primarily as receivers, hubs, or relays, or whether they operate on licensed or unlicensed spectrum. There is no longer any reason to maintain the definitional distinction in the Commission's rule between these types of antennas and, accordingly, the Commission eliminates it. 3

11. The Commission's revision will increase competitive parity among fixed wireless service providers and other service providers. Specifically, broadband-only fixed wireless service providers that use this equipment will now be on similar footing as service providers whose services and facilities (specifically those offering telecommunications services and commingled services) qualify for protections under sections 253 and 332. And it will facilitate the offering of advanced services to consumers by expanding deployment options and reducing costs for fixed wireless service providers. Without this change, broadband-only fixed wireless service providers will continue to face significant hurdles to siting, perpetuating barriers to new investment and deployment. In taking this action, the Commission embraces its longstanding policy objective of promoting competition among broadband and video providers and giving consumers, including those in rural and remote areas, more choices among wireless providers, products, and services.

12. The record illustrates that fixed wireless service providers face unreasonable barriers to deployment. The Commission is not persuaded by the claim of Local Governments and Municipal Organizations that there is no evidence that zoning or private restrictive covenants have hindered the deployment of fixed wireless hub and relay antennas, nor by their argument that WISPA has offered only anecdotal examples of zoning restrictions and private restrictive covenants that have impacted the installation of hub and relay antennas. Rather, based on the totality of the record, the Commission finds that local zoning laws and reviews have discouraged the deployment of modern hub and relay antennas and that extending OTARD to cover this equipment will significantly advance deployment.

13. The Commission's expanded application of the OTARD rule to additional fixed wireless hub and relay antennas protects against restrictions that result in unreasonable delays or prevent the installation, maintenance or use of this equipment. Starry, a fixed wireless broadband-only provider, estimates that, if its base stations are covered by OTARD, it can activate 25% to 30% more sites in the coming year, which should enable it to pass more than one million additional homes. Starry asserts that across all its markets it takes on average 100 days to complete the permitting process for a single base station, which accounts for about 80% of the time that it spends in activating a site. Another fixed wireless internet service provider, Wisp.net, initially provided service only to tenants in the building where its antenna was located. It subsequently was denied a permit to operate a wireless hub and relay facility to provide fixed wireless service to customers outside the range of Wisp.net's original footprint. Many consumers filed comments with the Commission claiming that Wisp.net was their only option for receiving service and urging the Commission to grant Wisp.net's petition to expand the OTARD rule for hub and relay antennas. Similarly, WISPA provides several examples of where zoning or private homeowner restrictive covenants have hindered the deployment of fixed wireless hub and relay antennas. By updating OTARD, the Commission provides fixed wireless broadband providers protection from unreasonable delays in the installation of fixed wireless hub and relay antennas or the unreasonable prevention of such installations or deployments.

14. The record also shows that restrictions in the application of the current rule to hub and relay antennas have raised costs for fixed wireless providers, which incur excessive permitting costs. Az Airnet, a wireless internet service provider in Arizona, asserts that in some jurisdictions the same permit fee applies to both a major cellular tower and a small internet relay site. New Wave, a wireless internet service provider operating in rural Illinois, claims that unreasonably high permit fees prohibit it from expanding its service. Az Airnet, New Wave, and other fixed wireless service providers will now be protected from unreasonable fees. Section 1.4000(a)(3)(ii) provides that a law, regulation, or restriction impairs installation, maintenance, or use of fixed wireless hub and relay antennas if it unreasonably increases the cost of installation, maintenance, or use of the equipment. Further, section 1.4000(a)(4) provides that “[a]ny fee or cost imposed on a user by a rule, law, regulation, or restriction must be reasonable in light of the cost of the equipment or services and the rule, law, regulation or restriction's treatment of comparable devices.” The Commission's expanded application of the OTARD rule extends these protections against unreasonable fees to the installation of all covered customer premises equipment, even equipment whose primary purpose is to serve as hub and relay antennas. The expanded application of this rule will allow fixed wireless service providers to install such equipment more quickly, efficiently, and at reduced cost, which should reduce construction timelines.

15. The revised OTARD rule provides fixed wireless service providers with greater certainty and predictability because it prohibits restrictions that impair the installation, maintenance, or use of covered antennas. Google states that municipal zoning laws and community association rules not only have the potential to delay or impede antenna installation, but also have the potential to discourage service expansion due to a lack of certainty and predictability. Likewise, OUTFRONT asserts that fixed wireless service providers face uncertain delays and costs due to local regulations that impact their ability to deploy networks efficiently by using all available sites. The protections the Commission adopts in this document provide broadband-only service providers with the certainty and predictability they need to build out and deploy fixed wireless networks.

16. The Commission's revised rule also enhances the ability of fixed wireless service providers to deliver reliable high speed internet access to a greater number of unserved or underserved customers. WISPA cites a number of examples where the limits of the existing OTARD rule have precluded the provision of fixed wireless broadband service to areas where access is limited or non-existent. Common, a wireless internet service provider offering service in the San Francisco Bay Area, maintains that expanding the OTARD rule will enable it to deploy more quickly on residential rooftops to serve more people in suburban neighborhoods that do not otherwise have service. Wav Speed, a wireless internet service provider, claims that extending the OTARD rule to cover all fixed wireless hub and relay antennas will allow it to serve customers in areas where reliable high speed internet is unavailable or inconsistent, providing customers with the educational, vocational, and entertainment benefits that a modern internet connection permits. Az Airnet asserts that there “is a vast public need, especially in rural areas, for the use of small rooftops, or towers to bring internet service to those that cannot currently get it, or can only get substandard service.” Ionia, a wireless internet service provider serving rural Ionia County, Michigan, and surrounding areas, observes that “[z]oning and landlord restrictions prevent the installation of equipment that would allow the relay of fixed wireless signals to nearby residents.” Ionia indicates that modifying the OTARD rule to allow the placement of antennas at a customer's property “would allow WISPs to provide high speed broadband services to customers that currently cannot be reached by other means due to terrain or vegetation.” MJM Telecom states that it is hampered by current state and local regulations and has “turned down thousands of potential customers due to the fact that [it] cannot put up a small relay hub site allowing them to receive these services.” By extending the protections of the OTARD rule to fixed wireless hub and relay antennas, the Commission promotes rural prosperity by enabling efficient, modern communications among rural households, businesses, schools, libraries, healthcare centers, and other important community institutions.

17. The record also indicates that updating the OTARD rule will enable consumers to access competing video programming providers. Consumers increasingly stream video services over the internet, instead of consuming such programming through traditional video programming services such as cable or broadcast. As WISPA indicates, the primary benefit of fixed wireless antennas is to secure viewers' access to broadband service, which is the world's largest distributor of video programming services, including those of traditional television stations and networks. INCOMPAS agrees that updating OTARD to take into account the need for hub and relay antennas for broadband via fixed wireless networks will benefit consumers with better online video distribution. CTIA provides additional evidence that consumers are increasingly relying on wireless services for video streaming, citing an NTIA internet Use Survey indicating that the proportion of internet users watching video online has grown from 45% in 2013 to 70% in 2017. CTIA explains that video streaming across wireless networks requires multiple antennas to receive programming, including antennas that connect to other antennas or serve other customer locations. Reducing restrictions on the use of fixed wireless hub and relay equipment is therefore consistent with the OTARD rule's original goal of increasing consumer access to video programing services.

18. The Commission emphasizes that its revision is narrow in scope and that it maintains the other existing OTARD restrictions. 4 For the OTARD rule to apply, the antenna must be installed “on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property” upon which the antenna is located. The OTARD provisions also apply only to those antennas measuring one meter or less in diameter or diagonal measurement. In addition, the OTARD rule is subject to an exception for State, local, or private restrictions that are necessary to accomplish a clearly defined, legitimate safety objective, or to preserve prehistoric or historic places that are eligible for inclusion on the National Register of Historic Places, provided such restrictions impose as little burden as necessary to achieve the foregoing objectives, and apply in a nondiscriminatory manner throughout the regulated area. Given that the OTARD rule only applies to antennas meeting the rule's size restriction and only to antennas placed in areas where the antennas' user has exclusive use or control, the Commission's rule revisions will minimize any potential visual impact on properties, which some commenters raise.

19. The Commission finds the opponents' arguments unpersuasive. First, the Commission continues to recognize property owners' rights under the OTARD rule. Because the Commission maintains the “exclusive use or control” and “direct or indirect ownership or leasehold interest” restrictions, fixed wireless service providers will still need to negotiate agreements with appropriate parties for the placement of their antennas in areas where the property owner or lessee has exclusive use or control. Contrary to the assertion of MBC and Real Estate Associations, this change does not undermine access negotiations. Rather, the revision expands OTARD protections to a larger class of agreements negotiated by property owners and lessees, in that the rule will cover more fixed wireless equipment than was previously allowed. For example, the new rule would not apply to the placement of hub and relay antennas on a building rooftop unless the building owner is a customer of the provider, or unless a customer other than the building owner already has a leasehold right to rooftop space and the placement is within that customer's exclusive use and control. In the former circumstance, to the extent that the concern is that application of the rule would prevent a building owner from charging a market-based rate for placement of a hub antenna on the rooftop, the Commission notes that will not be the case. 5 The revised rule will not treat service providers as “antenna users,” and their agreements with building owners therefore would be subject to OTARD protection only if the building owner is itself a customer. Further, in that case, OTARD would serve to protect the antenna placement from third-party restrictions and would not limit the right of a provider and building owner customer to freely negotiate the terms of antenna placement in an area within the building owner's exclusive use or control. If the provider wishes to place a device within the leasehold premises of a rooftop tenant, the placement would not intrude on the building owner's property rights since the placement would be located within an area the building owner has already provided the tenant with a contractual right to occupy. In addition, fixed wireless hub and relay antenna manufacturers and service providers that use this equipment must continue to comply with other applicable Commission regulations, such as RF emissions requirements. 6

20. The Commission finds that potential economic costs of its rule change raised by commenters are both speculative and negligible. LMC claims that the installation of the new antennas contemplated in the Notice “would dramatically change the aesthetic of a neighborhood and be in contrast with their established character.” First, although there is no “aesthetics exception” under the OTARD rule, commenters have not provided factual support explaining how the Commission's update to the rule would cause these harms. Further, the Commission maintains the existing restrictions in the OTARD rule that impose limits on the dimensions and location of equipment, so the visual appearance of the hub and relay equipment and antennas are the same as those deployments already covered under the OTARD rule. Relatedly, NATOA claims that, “[f]reed from the current obligation that the antenna be used for the owner or tenant to receive services, a property owner or tenant could affix an unlimited number of antennas anywhere on its property.” That claim is misplaced, as the Commission's rule revision requires that an antenna must be deployed in a location where the customer has exclusive use or control. Moreover, the customer fixed wireless devices, including the antennas, are small, and a provider may only need a few additional units to relay the signals in different directions, if and where applicable. In addition, the Commission's revision leaves unchanged the OTARD rule's exemption and waiver frameworks, which permit limiting antenna installations for specific reasons. Finally, the Commission maintains the historical preservation exception in the OTARD rule, which limits installations of fixed wireless hubs and relays antennas under certain circumstances. In these circumstances, the Commission determines that the limited adjustment adopted here is appropriate.

21. The Commission also finds that other arguments raised by commenters are unfounded. MBC argues that any revision to the OTARD rule would cast uncertainty on “tens of thousands” of existing rooftop antenna leases. The Commission's revision is narrowly focused on hub and relay antennas that presently are not covered by OTARD and, therefore, rather than disrupting commercial and residential lease transactions, it should encourage parties to negotiate more lease transactions in the future. The rule will not affect existing rooftop leases unless the antenna placement is located in an area within the exclusive use and control of a customer, in which case the parties to the placement agreement would be the provider and the customer. The OTARD rule does not affect the provider-customer relationship; rather, it prohibits certain public and third-party restrictions on placements located at the customer's premises. If a property owner is the customer, then the terms of the placement will be freely negotiable without limitation by the OTARD rule. Similarly, contrary to Oklahoma Cities' claims, it is implausible that the Commission's changes will spur such a large increase in exploitative contracts between service providers and homeowners and renters that new consumer protections are necessary, especially because providers might be enticed to offer consumers discounts to meet the new wording of the OTARD rule. Local jurisdictions, however, can rely on the provisions of sections 1.4000(a)(3) and (4) and the safety provisions of subsection (b)(1) to protect the public as long as their rules meet the standards of these sections. Taking into consideration all of the above, the Commission finds that the clear economic benefits of the rule change outweigh the negligible, and in some cases unfounded, economic costs.

22. Legal Authority. In the Notice, the Commission proposed to rely on the legal authority the Commission originally relied on in the 2000 Competitive Networks First Report and Order in extending the application of the OTARD rule to antennas used in connection with fixed wireless services. The Commission noted that it in 2000 assumed all hub sites were “personal wireless service facilities” covered by section 332(c)(7) of the Act—defined by the Act to include only facilities that provide “telecommunications services”—and therefore beyond the scope of the Commission's OTARD provisions. The Commission indicated that this assumption no longer appeared accurate. The Commission therefore sought comment on extending relief to those relay antennas and hub sites that are not “telecommunications services” and/or “personal wireless service facilities”— i.e., those that fall into the gap between the Commission's current OTARD provisions and the protections of sections 253 and/or 332(c)(7) of the Act, and those that WISPA claims are needed for modern high-speed broadband wireless networks.

23. The Commission finds that modifying the OTARD rule is necessary for the effective exercise of its spectrum management authority under Title III of the Communications Act. Specifically, the Commission finds that section 303 of the Act provides authority for the Commission to modify the OTARD rule as it applies to fixed wireless devices.

24. Congress has specifically recognized that section 303 provides authority to the Commission to adopt OTARD rules. While the directive in section 207 of the 1996 Act mandated the exercise of the Commission's Title III authority only to certain kinds of video programming, section 207 directed the Commission to address such video programming using its existing authority under section 303. Specifically, section 207 states that “[w]ithin 180 days after the date of enactment of this Act, the Commission shall, pursuant to section 303 of the Communications Act of 1934, promulgate regulations to prohibit restrictions that impair a viewer's ability to receive video programming services through devices designed for over-the-air reception. . . .” As the Commission recognized in extending the OTARD rule to fixed wireless services in the 2000 Competitive Networks First Report and Order, “this statutory language reflects Congress' recognition that, pursuant to section 303, the Commission has always possessed authority to promulgate rules addressing OTARDs.” The Commission has used its section 303 authority to limit State and local regulation of the placement of antennas both before and after section 207 was enacted.

25. Courts have held that the Commission's statutory authority pursuant to Title III is broad. The Commission's authority under section 303 allows it, when necessary to serve the public interest, to allocate spectrum for specific uses, adopt rules governing services that use spectrum as well as rules applicable to antennas and other apparatus, and take action to encourage the larger and more effective use of spectrum. More generally, the Commission may “[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of” the Act. Fixed wireless service providers offer services using spectrum and are subject to the Commission's rules governing the use of spectrum. 7 Evidence in the record shows that fixed wireless service providers seek to broaden their offerings of competitive broadband internet access services but are subject to State, local and private restrictions that increase the costs associated with deploying service and dampen investment. The record shows that modifying the OTARD rule to allow wireless internet service providers to deploy necessary infrastructure more readily will serve the public interest and promote larger and more efficient use of spectrum by increasing siting opportunities for wireless internet service providers, decreasing costs associated with deploying needed infrastructure, and encouraging wireless internet service providers to deploy broadband internet access services in additional areas across the country. 8

26. Several commenters argue that the Commission cannot rely on the authority it relied on previously to modify the OTARD rule because the Commission's determinations regarding its authority in the 2000 Competitive Networks First Report and Order were based on an “outdated ancillary jurisdiction analysis.” The Commission acknowledges that the Commission's Competitive Networks Order was issued prior to the D.C. Circuit's decision in Comcast v. FCC, 600 F.3d 642 (D.C. Cir. 2010), which rejected the Commission's reliance on ancillary authority in the absence of any express delegation of authority. Nevertheless, the Commission's action here is based on its well recognized broad authority under Title III (most specifically section 303). 9

27. The Commission's action also is consistent with the requirements imposed upon the Commission in RAY BAUM'S Act. RAY BAUM'S Act requires the Commission, in the Communications Marketplace Report, to assess the state of competition in the communications marketplace, assess the state of deployment of communications capabilities, and to assess whether laws, regulations, regulatory practices or demonstrated marketplace practices pose a barrier to competitive entry into the communications marketplace or to the competitive expansion of existing providers of communications services. It also requires the Commission to describe how it will address “the challenges and opportunities in the communications marketplace that were identified through the assessments.”

28. The Commission also disagrees with commenters who argue that the Commission lacks authority to modify the OTARD rule because hub and relay antennas are already governed by section 332 of the Act. Commenters such as the Municipal Organizations and Local Governments point out that, in the 2000 Competitive Networks First Report and Order, the Commission found that hub and relay antennas were outside the scope of customer-end equipment covered by the OTARD rule. The Municipal Organizations argue that because hub and relay antennas are covered under section 332(c)(7), no other provision of the Act may “support an action that `limit[s] or affect[s] the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of' these facilities.” To the contrary, the Commission finds that section 332(c)(7) does not bar it from modifying the OTARD rule because it does not apply to antennas used in connection with the broadband-only services many fixed wireless providers offer.

29. Evidence in the record shows that wireless internet service providers use hub and relay antennas to provide services that do not fall within the scope of services covered under section 332(c)(7). With certain exceptions, section 332(c)(7) provides for limited federal preemption of State and local zoning restrictions “that prohibit or have the effect of prohibiting” “the provision of `personal wireless service.' ” “Personal wireless service” is defined under section 332(c)(7) to mean “commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.” “Unlicensed wireless service” in turn, is defined under section 332(c)(7) to mean “the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services . . . .” Section 253 similarly provides for limited federal preemption of state and local statute or regulations that “prohibit or have the effect of prohibiting” “the ability of any entity to provide any interstate or intrastate telecommunications service.”

30. Many fixed wireless providers offer broadband-only services that are outside the scope of these provisions. In this Report and Order, the Commission takes action to address those hub and relay antennas that are used in connection with the provision of broadband-only services that fall into the gap between its current OTARD provisions and the protections of sections 332(c)(7) and 253 of the Act. In response to the request from WISPA for clarification about whether the Commission's prior sections 253 and 332 interpretations cover their offering of commingled services, the Commission reiterates what it already decided and the Ninth Circuit Court of Appeals affirmed: The scope of Commission preemption over commingled services is covered by sections 253 and 332 of the Act and its implementing regulations. Expansion of the OTARD rule to cover commingled services thus is unnecessary. Accordingly, this Report and Order does not address hub or relay antennas that are used for such commingled services, other than to point out that they are covered for preemption purposes under sections 253 and 332 of the Act.

31. The Commission also rejects arguments that revising the OTARD rule as described herein would constitute a taking. The Community Associations Institute (CAI) argues that “a rule allowing commercial communications equipment to be sited on common property without the association's explicit consent is a compelled physical occupation of such property” and that such a rule “would constitute a taking for which compensation must be made.” The Real Estate Associations contend that while the revised rule would not say so on its face, its practical effect would be to “give fixed wireless providers the ability to install and operate equipment without the consent of the owner of the property.” They contend that, even though the hub or relay antenna might serve the needs of the end-user customer, it would “also have other features that meet only the needs of the third-party service provider” and argue that requiring property owners to accept the installation of such equipment would potentially equate to forced acquiescence to subleasing to fixed wireless service providers and would therefore violate the Fifth Amendment's prohibition on takings. The Commission disagrees that the revision to the OTARD rule that it adopts in this Report and Order would cause such results. The OTARD rule does not permit service providers to install hub and relay antennas on common property without a property owner's consent. The modification the Commission adopts is narrow and eliminates only the restriction that currently excludes some hub and relay antennas from the scope of the existing OTARD provisions. It does not change any other aspect of the current OTARD rule, including the requirement that, for the OTARD rule to apply, the antenna must be installed “on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property.” A tenant may allow a wireless service provider to place a hub or relay antenna on property that is within the tenant's exclusive use or control where the tenant has a direct or indirect ownership or leasehold interest in the property.

32. In originally extending the OTARD rule to fixed wireless services, the Commission considered and rejected similar arguments that the OTARD rule would constitute a taking and concluded that, “there is no constitutional impediment to the Commission forbidding restrictions on the placement of antennas on property within the tenant user's exclusive use, where that user has an interest in the property.” The Commission reiterated its explanation from the OTARD Second Report and Order that the OTARD rule “did not effect a taking of the premises owner's property within the meaning of the Fifth Amendment because by leasing his or her property to a tenant, the property owner voluntarily and temporarily relinquishes the rights to possess and use the property and retains the right to dispose of the property.” In Building Owners and Managers Ass'n Inter. v. FCC, 254 F.3d 89 (D.C. Cir. 2001), the D.C. Circuit upheld the Commission's extension of OTARD protection to the placement of antennas on leased premises, rejecting the claim that the action effected a per se taking “because it enlarges the tenant's rights beyond the contractual provisions of the lease, thereby stripping landowners of property rights that they rightfully reserved. . . .” The court held that “the landlord affected by the amended OTARD rule will have voluntarily ceded control of an interest in his or her property to a tenant” and having done so “thereby submits to the Commission's rightful regulation of a term of that occupation.” ( Ibid ) The Commission is not convinced that its decision creates a Fifth Amendment takings issue, or that the broad categories of covered activities cited in BOMA should be restricted, simply because installation of the hub and relay equipment might result in the end user receiving money or other compensation in exchange for installation of the equipment on the premises. Consistent with and for the reasons outlined in the Commission's previous determinations, it concludes that revising the OTARD rule as described herein does not constitute a taking. A taking does not occur in such cases because, by leasing property to the tenant, the property owner has voluntarily and temporarily relinquished the right to possess and use the property and has instead given those rights to the tenant.

33. The Commission also rejects arguments premised on the generalized concerns about the Commission's RF safety limits and that incrementally revising the OTARD rule would somehow violate people's right to bodily autonomy or their property-based right to “exclude” wireless radiation emitted by third parties from their home or would violate the Americans with Disabilities Act or the Fair Housing Act by imposing radiation on individuals in their homes. Revising the OTARD rule does not change the applicability of the Commission's radio frequency exposure requirements, and fixed wireless providers must ensure that their equipment remains within the applicable exposure limits. What is more, in 2019, the Commission declined to initiate a rulemaking to revise its RF emission exposure limits. The Commission therefore rejects certain commenters' concerns that the OTARD rule revisions will generally lead to unsafe RF exposure levels.

34. Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in this Report and Order on small entities.

35. Paperwork Reduction Act. This document does not contain an information collection subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198.

36. Congressional Review Act. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, that this rule is non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

37. 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).

38. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (Notice) released in April 2019. The Commission sought written public comment on the proposals in the Notice, including comment on the IRFA. No comments were filed addressing the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

39. In the Report and Order, the Commission updates its rule for over-the-air reception devices (OTARD) to include hub and relay antennas that are used for the distribution of fixed wireless services to multiple customer locations, regardless of whether they are primarily used for this purpose, so long as the antennas serve a customer on whose premises they are located. This change is necessitated by the shift away from larger antennas spread over greater distances to 5G wireless networks with dense deployment requirements. Today's fixed wireless networks rely on smaller antennas located in close proximately to each other. These smaller antennas meet the OTARD size restriction but are excluded from OTARD protection due to their function. By updating the OTARD rule to include these antennas, the Commission recognizes the shift in the fixed wireless infrastructure landscape.

40. The shift in the types of service provided by fixed wireless service providers also prompts the need for this rule change. Specifically, these service providers' offerings are no longer commingled with telecommunications services and therefore would not otherwise receive protection from one of the Commission's preemption schemes. In this regard, the Commission's actions level the playing field for fixed wireless broadband service providers so that they are better able to compete with other service providers that already receive protection from the Commission's OTARD rule or other preemption scheme. By making this modification, the Commission places fixed wireless broadband providers on similar footing with other service providers and expands siting options for fixed wireless hub and relay antennas. These changes will reduce costs and construction timelines for new fixed wireless sites. They will also provide for alternative locations for fixed wireless hub and relay antennas to be installed and remove market barriers for fixed wireless services that otherwise would exist. Additionally, the changes adopted in the Report and Order will enhance the development of broadband services and further the Commission's efforts to address the digital divide by helping to bring faster internet speeds, lower latency, and advanced applications like the Internet of Things (IoT), telehealth, and remote learning to rural and underserved areas, as well as throughout the United States.

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

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

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

44. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the rules and adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

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

46. 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.

47. 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, the Commission estimates that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

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

49. 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 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of Wireless Telecommunications Carriers (except Satellite) are small entities.

50. 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 its 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, the Commission estimates that the majority of wireless firms can be considered small.

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

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

53. The closest applicable SBA category is All Other Telecommunications, and the appropriate size standard consists of all such firms with gross annual receipts of $3 million or less. For this category, U.S. Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million and 15 firms had annual receipts of $25 million to $49,999,999. Thus, under this SBA size standard a majority of the firms potentially affected by the Commission's action can be considered small.

54. Lessors of Residential Buildings and Dwellings. This industry comprises establishments primarily engaged in acting as lessors of buildings used as residences or dwellings, such as single-family homes, apartment buildings, and town homes. Included in this industry are owner-lessors and establishments renting real estate and then acting as lessors in subleasing it to others. The establishments in this industry may manage the property themselves or have another establishment manage it for them. The appropriate SBA size standard for this industry classifies a business as small if it has $27.5 million or less in annual receipts. U.S. Census Bureau 2012 data for Lessors of Residential Buildings and Dwellings show that there were 42,911 firms that operated for the entire year. Of that number, 42,618 firms operated with annual receipts of less than $25 million per year, while 142 firms operated with annual receipts between $25 million and $49,999,999 million. Therefore, based on the SBA's size standard the majority of Lessors of Residential Buildings and Dwellings are small entities.

55. Property Owners' Associations. This industry comprises establishments formed on the behalf of individual property owners, to make collective decisions based on the wishes of a majority of owners. This includes associations formed on behalf of individual residential condominium owners or homeowners. These associations may provide overall management, publish a telephone directory of the owners, sponsor seasonal events for the owners, establish and collect funds to operate the project, enforce rules and regulations, settle differences of opinion among residents, and make other decisions that are vital to the owners. Associations formed on behalf of individual real estate owners or tenants that provide no property management, but which arrange and organize civic and social functions are included here as well. This industry falls within the category of, “ Other Similar Organizations (except Business, Professional, Labor, and Political Organizations)” under the U.S. Census Bureaus' NAICS classification system. The SBA small business size standard for this industry classifies a business as small if it has $8 million or less in annual receipts. U.S. Census Bureau 2012 data for this industry show that there were 18,347 firms that operated for the entire year. Of that number, 17,818 firms operated with annual receipts of less than $5 million per year, while 382 firms operated with annual receipts between $5 million and $9,999,999 million. Therefore, based on the SBA's size standard the majority of Property Owners' Associations are small firms in this industry.

56. The revisions to the OTARD rule do not impose any new or additional reporting, recordkeeping, or other compliance obligations. However, the number of entities subject to the rule's protections may expand because of the Commission's actions. The revisions also will not require small entities to hire attorneys, engineers, consultants, or other professionals to comply with the rule changes. Instead, the Commission expect the changes adopted in the Report and Order will have a beneficial impact on small entities. More specifically, the revisions will allow small fixed wireless providers to install fixed wireless hub and relay antennas more quickly and efficiently and at lower cost by expanding the class of providers whose antennas are subject to regulatory protections, although the Commission cannot quantify the magnitude of these cost savings. Further, the OTARD rule revisions will reduce construction timelines for new fixed wireless sites and reduce barriers to entry, which may result in more small entities utilizing the OTARD rule's protections and installing fixed wireless equipment.

57. By ensuring that State, local, and private restrictions do not delay or impede the installation of fixed wireless hub or relay antennas, the Commission's actions will benefit small as well as other fixed wireless providers by creating more siting opportunities and spurring investment in and deployment of wireless infrastructure. Communications services will become more readily available in unserved, underserved, and rural areas furthering the Commission's efforts to address the digital divide.

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

59. In the Report and Order , the Commission revises its OTARD rule to expand its coverage to include hub and relay antennas that are used for the distribution of fixed wireless services to multiple customer locations, regardless of whether they are primarily used for this purpose, so long as the antennas serve a customer on whose premises they are located. By revising the OTARD rule to reflect the current technological landscape, the Commission's actions should reduce the economic impact for small entities that deploy fixed hub and relay antennas by reducing the costs and time associated with the deployment of such infrastructure.

60. Comments filed by the Wireless internet Service Providers Association (WISPA) which represents fixed wireless providers—including small providers serving rural and underserved areas, supports the Commission's revision of the OTARD rule stating that, “[e]xtending the OTARD rules to fixed wireless hub and relay antennas would spur infrastructure deployment, including deployment of networks that involve local relaying in rural and other underserved areas and deployment by small providers.” MJM Telecom a small internet service provider and WISPA member indicated that under the current OTARD rules, “[w]e have had to turn down thousands of potential customers due to the fact that we cannot put up a small relay hub site[,]” and requested that the Commission adopted the revision to the OTARD rules proposed in the Notice and adopted in the Report and Order. With the OTARD rule change, the Commission has removed hurdles to siting which imposed barriers to entry, investment and deployment for fixed wireless providers which is a major step to level the playing field for these providers. Reduced costs and removal of barriers to entry coupled with the opportunity for expansion into unserved and underserved service areas and increased customer revenues for fixed wireless providers hold the promise of a beneficial economic impact for small entities.

61. Some commenters have concerns about an increase in certain costs—such as aesthetics ( e.g., too many antennas on a property) and disruption of existing contracts between wireless providers and property owners. These commenters argued that the current OTARD rule should be maintained. In considering these arguments, the Commission determined that the demonstrable economic benefits of the rule outweigh the economic costs, which are negligible to the extent such costs can be substantiated. First, the revision will enhance the ability of small and other fixed wireless service providers to deliver reliable high speed internet access to a greater number of unserved or underserved customers. And there will be fewer restrictions on the antennas that customers nationwide will be able to place on a property they control. The OTARD rule revision will also protect small and other fixed wireless broadband providers from unreasonable delays in the installation of fixed wireless hub and relay antennas or the unreasonable prevention of such installations or deployments. It will also provide small and other fixed wireless service providers with protections against unreasonable fees for the installation of hub and relay antennas. Further, the prohibition against restrictions that impair the installation, maintenance or use of covered antennas will provide small and other fixed wireless providers certainty and predictability. In addition, the Commission determined that the revision will promote competition by allowing more small and other fixed wireless providers to deploy in areas where it would not otherwise be economically feasible and to serve underserved communities such as rural areas, which is consistent with Commission policy and in the public interest.

62. The National Association of Telecommunications Officers and Advisors (“NATOA”), the National League of Cities (“NLC”), and the National Association of Regional Councils (“NARC”), jointly (the “Municipal Organizations”) who members include small local governments, cities, and towns, opposed the OTARD rule change and provided some alternative suggestions, which they claim will “help achieve [the Commission's] goal of improved broadband availability.” However, these alternatives—which the Municipal Organizations provide in the context of arguing that the Commission lacks authority to promulgate its revisions—are beyond the scope of this proceeding. In addition, these alternatives are not mutually exclusive with the actions that the Commission takes in the Report and Order.

63. Moreover, with regard to some of the concerns raised by the Municipal Organizations, the Commission emphasizes that, while the Report and Order removes the primary use restriction on fixed wireless hub and relay antennas, it maintains the other existing OTARD restrictions. For the OTARD rule to apply, the antenna must be installed “on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property” upon which the antenna is located. Further, the OTARD provisions apply only to those antennas measuring one meter or less in diameter or diagonal measurement. In addition, the OTARD rule is subject to an exception for State, local, or private restrictions that are necessary to accomplish a clearly defined, legitimate safety objective, or to preserve prehistoric or historic places that are eligible for inclusion on the National Register of Historic Places, provided such restrictions impose as little burden as necessary to achieve the foregoing objectives, and apply in a nondiscriminatory manner throughout the regulated area. Given that the Report and Order preserves the restrictions on the physical dimensions and location of equipment, the rule revisions will minimize any potential visual impact on properties, which some commenters raise. The hub and relay equipment installed will resemble the equipment already covered under the OTARD rule.

64. Finally, the Report and Order continues to recognize property owners' rights under the OTARD rule. Because it maintains the “exclusive use or control” and “direct or indirect ownership or leasehold interest” restrictions, fixed wireless service providers will still need to negotiate agreements with appropriate parties for the placement of their antennas. In addition, fixed wireless hub and relay antenna manufacturers and service providers that use this equipment must continue to comply with other applicable Commission regulations, such as mast and RF emissions requirements. This places hub and relay antennas under the same kinds of restrictions as other equipment subject to OTARD protections. Localities and property owners can continue to rely on these provisions for their protection. Accordingly, the Commission's actions in the Report and Order removing the restriction on fixed wireless hub and relay antennas while retaining the other existing OTARD restrictions, strikes the appropriate balance to minimize the economic impact for fixed wireless providers, localities and property owners who are small entities.

65. Accordingly, it is ordered, pursuant to sections 1, 4(i), 201(b), 202(a), 205, 251, 253, 303, 316, 332, and 1302 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 201(b), 202(a), 205(a), 251, 253, 303, 316, 332, and 1302 and section 207 of the Telecommunications Act of 1996, Public Law 104-104, 207, 110 Stat. 56, 114 that this Report and Order is adopted .

66. It is further ordered that section 1.4000 of the Commission's rules is amended as specified in the Final Rules, and such rule amendments shall be effective 30 days after the date of publication of the text thereof in the Federal Register .

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

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

This is a summary of the Commission's Report and Order, document FCC 20-186, adopted on December 29, 2020, released on December 30, 2020. The full text of document FCC 20-186 is available online at https://docs.fcc.gov/public/attachments/FCC-20-186A1.pdf. To request this document in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice). The amendments to § 64.1200(a)(3)(ii) through (v), (b)(2) and (b)(3), and (d) are delayed indefinitely as they contain information collection requirements under the Paperwork Reduction Act (PRA) which must first be approved by the Office of Management and Budget (OMB).

The Commission sent a copy of document FCC 20-186 to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

The Report and Order contains modified information collection requirements which are not effective until approval is obtained from OMB. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in the Report and Order as required by the PRA of 1995, Public Law 104-13. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

1. In the Report and Order, the Commission adopts measures to implement section 8 of the TRACED Act to ensure that any exemption adopted under sections 227(b)(2)(B) or (C) of the TCPA includes requirements for: (1) The classes of parties that may make such calls; (2) the classes of parties that may be called; and (3) the number of such calls that may be made to a particular called party.

2. First, the Commission codifies all existing exemptions under section 227(b)(2)(C) of the TCPA for calls to wireless numbers in the Commission's rules to make the requirements more clear and easy to understand for both callers and called parties.

3. Callers. The Commission has exempted calls “not made for a commercial purpose” from the prohibition on artificial or prerecorded voice messages to residential telephone lines. The Commission concludes that this exemption satisfies the TRACED Act's requirements with respect to “the classes of parties that may make such calls.” The class of parties that may make such calls is limited to callers that are not calling for a commercial purpose. The Commission has indicated, for example, that this exemption includes calls conducting research, market surveys, political polling, or similar noncommercial activities. The purpose of such calls is not to advertise or market a commercial product or service.

4. Called parties. The exemption for calls “not made for a commercial purpose” satisfies the TRACED Act's requirement with respect to the “classes of parties that may be called” because this exemption applies only to calls made to residential telephone lines. Thus, only residential telephone users may be called under this exemption.

5. Number of calls. The TRACED Act requires the Commission to limit “the number of such calls that a calling party may make to a particular called party.” The Commission therefore amends its rules to limit the number of calls that can be made to a particular residential line pursuant to the exemption for calls “not made for a commercial purpose” to three artificial or prerecorded voice calls within any consecutive 30-day period. These limits give non-commercial callers several opportunities over a month-long period to convey their message and to obtain consent for future calls. The Commission selected this limit as an appropriate balance in the context of federal debt collection calls, based on support in the record, while recognizing that there was no consensus what the exact number should be. These limits strike the appropriate balance between these callers reaching consumers with information and reducing the number of unexpected and unwanted calls consumers currently receive. The Commission intends to monitor these limits to determine whether they may require adjustment in the future.

6. The Commission emphasizes that callers can simply get consumer consent to make more than three non-commercial calls using an artificial or prerecorded voice within any consecutive 30-day period. As the numerical limitations only apply to artificial or prerecorded calls to residential numbers, and not live agent calls, the impact on callers is limited.

7. Opt-out Requirement. The Commission's rules require that residential telephone subscribers be permitted to opt out of artificial and prerecorded voice calls that contain telemarketing messages. Under these rules, a consumer who wants to avoid further artificial or prerecorded telemarketing calls can “opt out” by dialing a telephone number (required to be provided in the artificial or prerecorded voice message) to register his or her do-not-call request in response to that call. The rules also require that, in every case where an artificial or prerecorded voice telephone message includes or introduces an advertisement or constitutes telemarketing and is delivered to a residential telephone line, the caller must provide an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request.

8. To effectuate an opt-out mechanism, noncommercial callers must comply with the requirements of §§ 64.1200(b) and (d) of the Commission's rules, which govern the process for handling do-not-call requests.

9. Callers. The Commission has exempted calls “made for a commercial purpose but [that] do[ ] not include or introduce an advertisement or constitute telemarketing” from the prohibition on using an artificial or prerecorded voice message to call residential telephone lines. If these calls do not contain advertising or solicit the purchase of goods or services and otherwise conform to the requirements of the TRACED Act, the Commission concludes they should remain exempt from the TCPA prohibitions as the record shows consumers generally want and expect them.

10. Called parties. The Commission further concludes that the exemption for commercial calls already satisfies the TRACED Act's requirement with respect to the “classes of parties that may be called” because this exemption applies only to calls made to residential telephone lines.

11. Number of calls. The Commission limits the number of calls that can be made pursuant to the exemption for commercial calls to three artificial or prerecorded voice calls within any consecutive 30-day period. The Commission incorporates by reference the discussion relating to the number of calls that can be made pursuant to the exemption for calls not made for a commercial purpose, as well as the discussion on the timeframe and effective date for implementation mechanisms to comply with these requirements.

12. Opt-Out Requirement. The Commission also requires callers to allow recipients of artificial and prerecorded voice message calls made pursuant to the exemption for commercial calls to opt out of such calls using either of the mechanisms described in the Commission's rules. The Commission incorporates by reference the analysis relating to the adoption of an opt-out mechanism for non-commercial calls to residential telephone numbers.

13. Callers. The Commission has exempted calls made by or on behalf of a tax-exempt nonprofit organization from the prohibition on using an artificial or prerecorded voice to deliver a message to a residential telephone line. The Commission agrees that this exemption remains in the public interest and should be retained subject to conformance with the requirements of the TRACED Act.

14. Called parties. The Commission concludes that the exemption for tax-exempt nonprofit organizations already satisfies the TRACED Act's requirements with respect to the “classes of parties that may be called” because this exemption applies only to calls made to residential telephone lines.

15. Number of calls. The Commission limits the number of calls that can be made pursuant to the exemption for calls by tax-exempt nonprofit organizations to three artificial or prerecorded voice calls within any consecutive 30-day period. The Commission incorporates by reference the discussion relating to the number of calls that can be made pursuant to the exemption for calls not made for a commercial purpose, as well as the discussion on the timeframe and effective date for implementing mechanisms to comply with these requirements.

16. Opt-Out Requirement. The Commission also requires callers to allow recipients of artificial and prerecorded voice message calls made pursuant to the exemption for tax-exempt nonprofit organizations to opt out of such calls using either of the mechanisms described in the Commission's rules. The Commission incorporates by reference the analysis relating to the adoption of an opt-out mechanism for non-commercial calls to residential telephone numbers.

17. Callers. The Commission has exempted HIPAA-related calls that deliver a healthcare message from the prohibition on using an artificial or prerecorded voice to deliver a message to residential telephone lines. The Commission concluded that such calls serve a public interest purpose: To ensure continued consumer access to healthcare-related information. The Commission finds that the record shows that the exemption continues to benefit consumers and should be retained subject to compliance with the requirements of the TRACED Act. The exemption satisfies the TRACED Act's requirements with respect to the “classes of parties that may make” such calls (calls “made by, or on behalf of, a `covered entity' or its `business associate' as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103”).

18. Called parties. The Commission also concludes that the exemption for HIPAA-related calls satisfies the TRACED Act's requirements with respect to the “classes of parties that may be called” because this exemption applies only to calls made to residential telephone lines.

19. Number of calls. The Commission amends its rules to limit the number of calls that can be made pursuant to the exemption for HIPAA-related calls to one artificial or prerecorded voice call per day up to a maximum of three artificial or prerecorded voice calls per week. The Commission notes that this limitation is identical to the condition imposed on healthcare calls to wireless numbers that are exempted under section 227(b)(2)(C) of the TCPA.

20. The Commission imposed this same limit on exempted HIPAA calls to wireless telephone numbers five years ago and has no credible evidence it has unduly restricted healthcare providers' ability to communicate with their patients. The Commission incorporates by reference the discussion relating to the number of calls that can be made pursuant to the exemption for calls not made for a commercial purpose, as well as the discussion on the timeframe and effective date for implementing mechanisms to comply with these requirements.

21. Opt-Out Requirement. The Commission also requires callers to allow recipients of artificial and prerecorded voice message calls made pursuant to the HIPAA exemption to opt out of such calls using either of the opt-out mechanisms described in the Commission's rules. The Commission incorporates by reference the analysis relating to the adoption of an opt-out mechanism for non-commercial calls to residential telephone numbers.

22. The Commission recognizes that implementation of the numerical limits and opt-out requirements may present some burdens to callers and therefore establishes a six-month period to do so before the new requirements take effect.

23. The technology needed for compliance with the Commission's opt-out requirements is commonplace and easily accessible; the Commission's rules have required certain callers to utilize the available tools and equipment since 2012. Therefore, based on a review of the record and these considerations, the appropriate time for implementation of these amended rules is six months. The requirements that callers comply with a three-call limit within any consecutive 30-day period, and the HIPAA exemption restriction of one call per day up to three calls per week, and opt-out requests from consumers implicate the PRA. Thus, the six-month period before compliance is required will commence upon publication in the Federal Register of OMB approval of the rules.

24. The Commission has exempted package delivery calls to wireless consumers subject to several conditions. See Cargo Airline Association Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, Order, published at 80 FR 15688, March 25, 2015. The record shows that the exemption continues to serve the public interest and that the conditions on such calls satisfy section 8 of the TRACED Act. As a result, the Commission concludes that no further action is required to bring this exemption into compliance with section 8 of the TRACED Act.

25. The Commission has exempted calls made by financial institutions to wireless consumers subject to several conditions. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, WC Docket No. 07-135, Declaratory Ruling and Order, published at 80 FR 61129, October 9, 2015. The Commission noted that calls by financial institutions regarding fraudulent transactions, security data breaches, and identity theft are “intended to address exigent circumstances in which a quick, timely communication with a consumer could prevent considerable consumer harms.” This exemption has been in place for five years, and the Commission finds that it remains in the public interest and that the conditions on such calls satisfy section 8 of the TRACED Act. As a result, the Commission concludes that no further action is required to bring this exemption into compliance with section 8 of the TRACED Act.

26. The Commission has exempted certain healthcare provider calls to wireless consumers subject to several conditions. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, WC Docket No. 07-135, Declaratory Ruling and Order, published at 80 FR 61129, October 9, 2015. The Commission found that calls for which there is an exigency and that have a healthcare treatment purpose such as appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, lab results, prescription notifications, and home healthcare instructions provide vital, time-sensitive information patients welcome, expect, and often rely on to make informed decisions. This exemption has been in place for five years, and the Commission finds that it remains in the public interest and that the conditions on such calls satisfy section 8 of the TRACED Act. The Commission concludes that no further action is required to bring this exemption into compliance with section 8 of the TRACED Act.

27. The Commission has exempted calls from inmate phone service providers subject to several conditions. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, WC Docket No. 07-135, Declaratory Ruling and Order, published at 80 FR 61129, October 9, 2015. The Commission found such calls to be beneficial, provided they do not include any telemarketing and are solely intended to arrange for the billing of a specific collect call that an inmate caller has already attempted to initiate. This exemption has been in place for five years, and the Commission finds that it remains in the public interest and that the conditions on such calls satisfy section 8 of the TRACED Act. As a result, the Commission concludes that no further action is required to bring this exemption into compliance with section 8 of the TRACED Act.

28. Several commenters request amendments to various TCPA exemptions for reasons that extend beyond the scope of section 8. To the extent that there are open proceedings on related subject matters, the Commission encourages these parties to direct their comments to those proceedings.

29. As required by the Regulatory Flexibility Act of 1980, as amended, RFA, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the notice of proposed rulemaking (NPRM) in this docket, published at 85 FR 64091, October 9, 2020. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Final Regulatory Flexibility Analysis FRFA conforms to the RFA.

30. In the Report and Order, the Commission takes action to implement section 8 of the TRACED Act, to ensure that any exemption adopted pursuant to sections 227(b)(2)(B) and (C) of the TCPA contains requirements for: (1) The classes of parties that may make such calls; (2) the classes of parties that may be called; and (3) the number of such calls that may be made to a particular called party.

31. The TRACED Act requires the Commission, no later than December 30, 2020, to “prescribe such regulations or amend such existing regulations, as necessary to ensure that [any] such exemption [issued under sections 227(b)(2)(B) or (C) of the TCPA] contains each requirement [listed in section 8(a) of the TRACED Act].” Section 8(b) of the TRACED Act provides that “[t]o the extent such an exemption contains such a requirement before such date of enactment, nothing in this section or the amendments made by this section shall be construed to require the Commission to prescribe or amend regulations relating to such requirement.”

32. The Report and Order confirms that the conditions imposed by the Commission by order for exemptions under section 227(b)(2)(C) of the TCPA for calls to wireless numbers satisfy the TRACED Act's section 8 requirements, and the only action necessary is to codify those exemptions in the rules. The Commission does not adopt additional rules or reporting and recordkeeping requirements in that context.

33. With respect to the exemptions for artificial and prerecorded voice message calls to residential numbers, the Report and Order retains all existing exemptions and adopts certain conditions on such calls. Specifically, to satisfy the TRACED Act's requirement regarding “the number of such calls that a calling party may make to a particular called party,” the Report and Order amends the Commission's rules to generally limit the number of exempted calls that can be made to a particular residential line to three calls within any consecutive 30-day period. For HIPAA-related calls to a residence, however, the Commission amends the rules to limit the number of calls that can be made pursuant to this exemption to one artificial or prerecorded voice call per day up to a maximum of three artificial or prerecorded voice calls per week. The adopted rules also allow recipients of artificial and prerecorded voice message calls to residential numbers to opt out of future calls. Such residential subscribers may do so by dialing a telephone number (required to be provided in the prerecorded message) to register his or her do-not-call request in response to that call or by using an automated, interactive voice- and/or key press-activated opt-out mechanism to make a do-not-call request. Thus, the amended rules will bring these exemptions into line with the Commission's treatment of exempted calls to wireless numbers. To effectuate an opt-out mechanism, callers must comply with the requirements of § 64.1200(b) and (d) of the Commission's existing rules, which govern the process for handling do-not-call requests.

34. In so doing, the Report and Order implements the requirements of the TRACED Act and, at the same time, minimizes any compliance burdens for both small and large entities that make calls pursuant to one of the exemptions in the law.

35. In the NPRM, the Commission solicited comments on how to minimize the economic impact of the new rules on small businesses. There were no comments filed that specifically addressed the rules and policies proposed in the IRFA. Three commenters, however, focused on the challenges certain entities would face in complying with the opt-out requirements given their small staffs and limited resources. The Credit Union National Association (CUNA) argues that the opt-out proposals would impose significant burdens for many credit unions that do not engage in telemarketing, and thus would have had no reason to create and maintain do-not-call lists. CUNA states that nearly 40 percent of all credit unions employ five or fewer full-time employees, approximately 25 percent have less than $10 million in assets, and over two-thirds have less than $100 million in assets. The Illinois Credit Union states that an opt-out requirement would be burdensome for smaller institutions which have limited staff and resources, and the Professional Association for Customer Engagement similarly states that many healthcare providers are smaller entities that do not have the financial resources to implement an automated do-not-call system with a toll-free number.

36. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration, and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

37. The Report and Order does not adopt any additional conditions on calls made to wireless numbers pursuant to the exemptions adopted under section 227(b)(2)(C) of the TCPA, but instead concludes that the exemptions already meet the requirements of the TRACED Act. With respect to the exemptions for calls to residential numbers, the Report and Order adopts a numerical limit of three calls within a consecutive 30-day period that an entity may make pursuant to three of the four exemptions. The one exception is for HIPAA-related calls to a residence where the Commission amends the rules to limit the number of calls that can be made pursuant to this exemption to one artificial or prerecorded voice call per day up to a maximum of three artificial or prerecorded voice calls per week. The Commission explained that this limitation is identical to the condition imposed on healthcare calls to wireless numbers that are exempted under section 227(b)(2)(C) of the TCPA.

38. The Commission's ruling therefore satisfies the requirements of the TRACED Act while bringing the exemptions for calls made to residential telephone numbers in line with the treatment of exempted calls to wireless numbers. The adopted limitation will reduce the number of intrusive or unwanted robocalls consumers receive at their homes while still allowing legitimate businesses to provide services and information consumers want. The Report and Order also requires entities making artificial or prerecorded voice calls to residential numbers pursuant to any of the exemptions to honor opt-out requests from consumers who wish to avoid future calls. In such cases, a caller will need to have opt-out mechanisms in place to accept do-not-call requests and to record and track such opt-out requests in order to avoid making any additional calls to those consumers. If the caller makes a call using an artificial or prerecorded voice message, they must provide a telephone number in the message to allow a consumer to register his or her do-not-call request in response to that call. The Commission's existing rules also require that, in every case where an artificial or prerecorded voice telephone message includes or introduces an advertisement or constitutes telemarketing and is delivered to a residential telephone line, the caller must provide an automated, interactive voice and/or key press-activated opt-out mechanism for the called person to make a do-not-call request. Entities will have up to 30 days to honor a residential subscriber's do-not-call request and ensure that they no longer call such residential subscriber's telephone number. While these rules will necessitate that entities keep records associated with the number of calls they make to a particular called party and to track opt-out requests from consumers, entities are not required to routinely report these records to the Commission. These requirements will apply to both large and small entities alike that make calls to residential consumers pursuant to one of the exemptions carved out from the Commission's rules.

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

40. The Commission considered feedback in response to the NPRM in crafting the final order. The Commission evaluated the comments with the goal of removing regulatory roadblocks and giving industry the flexibility to continue to make calls pursuant to any exemption previously carved out by the Commission while still protecting the interests of consumers who do not want to receive unlimited calls from such entities and allowing consumers to opt out of future calls from such entities. For example, the Commission retained all existing exemptions for calls to residential numbers, concluding that such exemptions satisfy the TRACED Act's requirements regarding the classes of parties that may make such calls and the classes of parties that may be called. The Commission also considered the benefits to consumers of adopting a numerical limit on the number of calls made to them and weighed those benefits against the costs to entities to ensure they make no more than three calls per 30-day period to each residential number and allow consumers to opt out of future calls. The Commission concluded that such conditions fulfilled the TRACED Act's directive that any exemption contain requirements with respect to the number of calls that may be made to any particular number. While entities that are exempted under the rules will need to keep internal records to ensure they do not call residential consumers more than three times within any consecutive 30-day period and avoid calling those consumers who have made a do-not-call request altogether, the Commission did not require that any records of compliance with these requirements be routinely reported to the Commission.

41. In response to comments on the timing necessary for entities that currently take advantage of exemptions from the TCPA to implement any new limitations on such exemptions, the Report and Order delays implementation of the new three-call-per-30-day period (or three calls per week for HIPAA calls) and opt-out requirements for six months. Thus, the rules will not become effective until six months from the date of publication in the Federal Register of OMB approval of the information collection requirements associated with the new rules. This delay considers the potential compliance costs for small businesses that several commenters argued would result from the need to implement new procedures to comply with the do-not-call requirements. Small businesses may avoid any additional compliance costs entirely by declining to make such calls unless they first obtain prior express consent from consumers.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 part 64 as follows:

Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the BSAI. The Council prepared the FMP, and NMFS approved it, under the Magnuson-Stevens Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species category. The sum of all TAC for all groundfish species in the BSAI must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)(A)). This final rule specifies the sum of the TAC at 2.0 million mt for both 2021 and 2022. NMFS also must specify apportionments of TAC; prohibited species catch (PSC) allowances and prohibited species quota (PSQ) reserves established by § 679.21; seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC; American Fisheries Act allocations; Amendment 80 allocations; Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii); and acceptable biological catch (ABC) surpluses and reserves for CDQ groups and the Amendment 80 cooperative for flathead sole, rock sole, and yellowfin sole. The final harvest specifications set forth in Tables 1 through 22 of this action satisfy these requirements.

Section 679.20(c)(3)(i) further requires that NMFS consider public comment on the proposed harvest specifications and, after consultation with the Council, publish final harvest specifications in the Federal Register . The proposed 2021 and 2022 harvest specifications for the groundfish fishery of the BSAI were published in the Federal Register on December 3, 2020 (85 FR 78096). Comments were invited and accepted through January 4, 2021. As discussed in the Response to Comments section below, NMFS received no comments during the public comment period for the proposed BSAI groundfish harvest specifications.

NMFS consulted with the Council on the final 2021 and 2022 harvest specifications during the December 2020 Council meeting. After considering public comments, as well as biological and socioeconomic data that were available at the Council's December meeting, NMFS implements in this final rule the final 2021 and 2022 harvest specifications as recommended by the Council.

The final ABC amounts for Alaska groundfish are based on the best available biological information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations. The FMP specifies a series of six tiers to define OFL and ABC amounts based on the level of reliable information available to fishery scientists. Tier 1 represents the highest level of information quality available, while Tier 6 represents the lowest.

In December 2020, the Council, its Scientific and Statistical Committee (SSC), and its Advisory Panel (AP) reviewed current biological and harvest information about the condition of the BSAI groundfish stocks. The Council's BSAI Groundfish Plan Team (Plan Team) compiled and presented this information in the 2020 SAFE report for the BSAI groundfish fisheries, dated November 2020 (see ADDRESSES ). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. NMFS notified the public of the comment period for these harvest specifications—and of the publication of the 2020 SAFE report—in the notice of proposed harvest specifications. From the data and analyses in the SAFE report, the Plan Team recommended an OFL and ABC for each species or species group at the November 2020 Plan Team meeting.

In December 2020, the SSC, AP, and Council reviewed the Plan Team's recommendations. The final TAC recommendations were based on the ABCs, and were adjusted for other biological and socioeconomic considerations, including maintaining the sum of all the TACs within the required OY range of 1.4 million to 2.0 million mt. As required by annual catch limit rules for all fisheries (74 FR 3178, January 16, 2009), none of the Council's recommended 2021 or 2022 TACs exceed the final 2021 or 2022 ABCs for any species or species group. NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the preferred harvest strategy outlined in the FMP and the biological condition of groundfish stocks as described in the 2020 SAFE report that was approved by the Council. Therefore, this final rule provides notice that the Secretary of Commerce approves the final 2021 and 2022 harvest specifications as recommended by the Council.

The 2021 harvest specifications set in this final action will supersede the 2021 harvest specifications previously set in the final 2020 and 2021 harvest specifications (85 FR 13553, March 9, 2020). The 2022 harvest specifications herein will be superseded in early 2022 when the final 2022 and 2023 harvest specifications are published. Pursuant to this final action, the 2021 harvest specifications therefore will apply for the remainder of the current year (2021), while the 2022 harvest specifications are projected only for the following year (2022) and will be superseded in early 2022 by the final 2022 and 2023 harvest specifications. Because this final action (published in early 2021) will be superseded in early 2022 by the publication of the final 2022 and 2023 harvest specifications, it is projected that this final action will implement the harvest specifications for the BSAI for approximately one year.

For 2021 and 2022, the Board of Fisheries (BOF) for the State of Alaska (State) established the guideline harvest level (GHL) for vessels using pot gear in State waters in the Bering Sea subarea (BS) equal to 10 percent of the Pacific cod ABC in the BS. The State's pot gear BS GHL will increase one percent annually up to 15 percent of the BS ABC, if 90 percent of the GHL is harvested by November 15 of the preceding year. If 90 percent of the 2021 BS GHL is not harvested by November 15, 2021, then the 2022 BS GHL will remain at the same percent as the 2021 BS GHL (10 percent). If 90 percent of the 2021 BS GHL is harvested by November 15, 2021, then the 2022 BS GHL will increase by one percent and the 2022 BS TAC will be set to account for the increased BS GHL. Also, for 2021 and 2022, the BOF established an additional GHL for vessels using jig gear in State waters in the BS equal to 45 mt of Pacific cod in the BS. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal water Pacific cod removals from the BS not exceed the ABC recommendations for Pacific cod in the BS. Accordingly, the Council recommended, and NMFS approves, that the 2021 and 2022 Pacific cod TACs in the BS account for the State's GHLs for Pacific cod caught in State waters in the BS.

For 2021 and 2022, the BOF for the State established the GHL in State waters in the Aleutian Islands subarea (AI) equal to 39 percent of the AI ABC. The AI GHL will increase annually by 4 percent of the AI ABC, if 90 percent of the GHL is harvested by November 15 of the preceding year, but may not exceed 39 percent of the AI ABC or 15 million pounds (6,804 mt). For 2021, 39 percent of the AI ABC is 8,034 mt, which exceeds the AI GHL limit of 6,804 mt. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal water Pacific cod removals from the AI not exceed the ABC recommendations for Pacific cod in the AI. Accordingly, the Council recommended, and NMFS approves, that the 2021 and 2022 Pacific cod TACs in the AI account for the State's GHL of 6,804 mt for Pacific cod caught in State waters in the AI.

On July 10, 2020, NMFS published the final rule to implement Amendment 121 to the FMP (85 FR 41427). The final rule reclassified sculpins in the FMP as an “Ecosystem Component” species, which is a category of non-target species that are not in need of conservation and management. Accordingly, NMFS will no longer set an OFL, ABC, and TAC for sculpins in the BSAI groundfish harvest specifications, beginning with the 2021 and 2022 harvest specifications.

The Council's recommendations for the proposed 2021 and 2022 harvest specifications (85 FR 78096, December 3, 2020) were based largely on information contained in the 2019 SAFE report for the BSAI groundfish fisheries. Through the proposed harvest specifications, NMFS notified the public that these harvest specifications could change, as the Council would consider information contained in the 2020 SAFE report; recommendations from the Plan Team, SSC, and AP; and public comments when making its recommendations for final harvest specifications at the December 2020 Council meeting. NMFS further notified the public that, as required by the FMP and its implementing regulations, the sum of the TACs must be within the OY range of 1.4 million and 2.0 million mt.

Information contained in the 2020 SAFE report indicates biomass changes from the 2019 SAFE report for several groundfish species. The 2020 report was made available for public review during the public comment period for the proposed harvest specifications. At the December 2020 Council meeting, the SSC recommended the 2021 and 2022 OFLs and ABCs based on the best and most recent information contained in the 2020 SAFE report. The SSC recommended slight model adjustments for Eastern BS pollock, but accepted Plan Team recommendations for all other species, except for BS Pacific cod and sablefish. The SSC's recommendation resulted in an ABC sum total for all BSAI groundfish species in excess of 2.0 million mt for both 2021 and 2022.

The Alaska-wide sablefish ABC is apportioned between six areas within the BSAI and Gulf of Alaska (BS, AI, Western Gulf, Central Gulf, West Yakutat, and East Yakutat/Southeast areas). Since 2013, a fixed apportionment methodology has been used to apportion the ABC between those six areas. However, a new apportionment methodology will be used for 2021 and 2022 that affects the apportionment of sablefish ABC and the area TACs that are allocated between the trawl and fixed gear sectors. The Joint BSAI and GOA Groundfish Plan Team, SSC, and Council reviewed a range of apportionment approaches for the sablefish ABC for the harvest specifications, including a range from the status quo (fixed apportionment) and the sablefish assessment authors' recommended non-exponential 5-year survey moving average. The Joint Plan Team recommended that, to the extent practical, moving away from the fixed apportionment to the true distribution of the stock would be preferred from a biological perspective. The SSC recommended a 25 percent stair step from the current (fixed) apportionment percentages toward the non-exponential 5-year survey moving average proposed by the assessment authors. The Council and NMFS have adopted the SSC's recommendation for the 2021 and 2022 ABC apportionments. For 2021 this increases the ABC apportionments in all areas (for example, up to 60 percent in the AI subarea), with smaller increases in areas that have recently been apportioned a greater percentage under the fixed apportionment methodology than suggested by recent survey observations (for example, only a 17 percent increase in the East Yakutat/Southeast area). In addition, the final 2021 TACs for the BS and AI areas both increased relative to the proposed 2021 TACs, in part due to the change in apportionment methodology.

Based on decreased fishing effort in 2020, the Council recommends final BS pollock TACs decrease by 75,000 mt in 2021 and 50,000 mt in 2022 compared to the proposed 2021 and 2022 BS pollock TACs. In terms of weight, the largest increases in final 2021 TACs relative to the proposed 2021 TACs include BS Pacific cod and BSAI yellowfin sole. For Pacific cod, the 2021 TAC increase is in response to the increase in the 2021 ABC and the Council's recommendation of the highest TAC after accounting for the State's GHL. For yellowfin sole, the increase is in response to the anticipated larger directed fisheries based on anticipated market demand. Other increases in the final 2021 TACs relative to the proposed 2021 TACs include Bogoslof pollock, AI Greenland turbot, AI “other rockfish,” AI sablefish, BS sablefish, BSAI arrowtooth flounder, BSAI Kamchatka flounder, BSAI rock sole, BSAI flathead sole, BSAI Alaska plaice, BSAI “other flatfish,” Western Aleutian Islands (WAI) Pacific ocean perch, BSAI northern rockfish, Bering Sea and Eastern Aleutian Islands (BS/EAI) blackspotted/rougheye rockfish, BSAI shortraker rockfish, Eastern Aleutian Islands and Bering Sea (EAI/BS) Atka mackerel, WAI Atka mackerel, Central Aleutian Islands (CAI) Atka mackerel, and BSAI skates. The 2021 increases account for higher interest in directed fishing or higher anticipated incidental catch needs.

Decreases in final 2021 TACs compared to the proposed 2021 TACs include BS pollock, BS Pacific ocean perch, CAI Pacific ocean perch, EAI Pacific ocean perch, Central Aleutian Islands/Western Aleutian Islands (CAI/WAI) blackspotted and rougheye rockfish, and BS “other rockfish.” The decreases are for anticipated lower incidental catch needs of these species and lower ABCs relative to 2020. The changes to TACs between the proposed and final harvest specifications are based on the most recent scientific and socioeconomic information and are consistent with the FMP, regulatory obligations, and harvest strategy as described in the proposed and final harvest specifications, including the upper limit for OY of 2.0 million mt. These changes are compared in Table 1A.

Table 1 lists the Council's recommended final 2021 OFL, ABC, TAC, initial TAC (ITAC), CDQ reserve allocations, and non-specified reserves of the BSAI groundfish species or species groups; and Table 2 lists the Council's recommended final 2022 OFL, ABC, TAC, ITAC, CDQ reserve allocations, and non-specified reserves of the BSAI groundfish species or species groups. NMFS concurs in these recommendations. These final 2021 and 2022 TAC amounts for the BSAI are within the OY range established for the BSAI and do not exceed the ABC for any species or species group. The apportionment of TAC amounts among fisheries and seasons is discussed below.

Section 679.20(b)(1)(i) requires that NMFS reserve 15 percent of the TAC for each target species (except for pollock, hook-and-line and pot gear allocation of sablefish, and Amendment 80 species) in a non-specified reserve. Section 679.20(b)(1)(ii)(B) requires that NMFS allocate 20 percent of the hook-and-line or pot gear allocation of sablefish to the fixed-gear sablefish CDQ reserve for each subarea. Section 679.20(b)(1)(ii)(D) requires that NMFS allocate 7.5 percent of the trawl gear allocations of sablefish in the BS and AI and 10.7 percent of the BS Greenland turbot and arrowtooth flounder TACs to the respective CDQ reserves. Section 679.20(b)(1)(ii)(C) requires that NMFS allocate 10.7 percent of the TACs for Atka mackerel, AI Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod to the respective CDQ reserves. Sections 679.20(a)(5)(i)(A) and 679.31(a) also require that 10 percent of the BS pollock TAC be allocated to the pollock CDQ directed fishing allowance (DFA). Sections 679.20(a)(5)(iii)(B)( 2 )( i ) and 679.31(a) require that 10 percent of the AI pollock TAC be allocated to the pollock CDQ DFA. The entire Bogoslof District pollock TAC is allocated as an ICA pursuant to § 679.20(a)(5)(ii) because the Bogoslof District is closed to directed fishing for pollock by regulation (§ 679.22(a)(7)(B)). With the exception of the hook-and-line or pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ allocations by gear.

Pursuant to § 679.20(a)(5)(i)(A)( 1 ), NMFS allocates a pollock ICA of 4 percent of the BS pollock TAC after subtracting the 10 percent CDQ DFA. This allowance is based on NMFS's examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2000 through 2020. During this 21-year period, the pollock incidental catch ranged from a low of 2.2 percent in 2006 to a high of 4.6 percent in 2014, with a 21-year average of 3 percent. Pursuant to § 679.20(a)(5)(iii)(B)( 2 )( i ) and ( ii ), NMFS establishes a pollock ICA of 2,500 mt of the AI pollock TAC after subtracting the 10 percent CDQ DFA. This allowance is based on NMFS's examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2003 through 2020. During this 18-year period, the incidental catch of pollock ranged from a low of 5 percent in 2006 to a high of 17 percent in 2014, with an 18-year average of 9 percent.

Pursuant to § 679.20(a)(8) and (10), NMFS allocates ICAs of 3,000 mt of flathead sole, 6,000 mt of rock sole, 4,000 mt of yellowfin sole, 10 mt of WAI Pacific ocean perch, 60 mt of CAI Pacific ocean perch, 100 mt of EAI Pacific ocean perch, 20 mt of WAI Atka mackerel, 75 mt of CAI Atka mackerel, and 800 mt of EAI and BS Atka mackerel TAC after subtracting the 10.7 percent CDQ reserve. These ICA allowances are based on NMFS's examination of the incidental catch in other target fisheries from 2003 through 2020.

The regulations do not designate the remainder of the non-specified reserve by species or species group. Any amount of the reserve may be apportioned to a target species that contributed to the non-specified reserves during the year, provided that such apportionments are consistent with § 679.20(a)(3) and do not result in overfishing (see § 679.20(b)(1)(i)). The Regional Administrator has determined that the ITACs specified for certain species listed in Tables 1 and 2 need to be supplemented from the non-specified reserve because U.S. fishing vessels have demonstrated the capacity to catch the full TAC allocations. Therefore, in accordance with § 679.20(b), NMFS is apportioning the amounts shown in Table 3 from the non-specified reserve to increase the ITAC for AI “other rockfish” by 15 percent of the “other rockfish” TAC in 2021 and 2022.

Section 679.20(a)(5)(i)(A) requires that the BS pollock TAC be apportioned as a DFA, after subtracting 10 percent for the CDQ program and 4 percent for the ICA, as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor (CP) sector, and 10 percent to the mothership sector. In the BS, 45 percent of the DFA is allocated to the A season (January 20-June 10), and 55 percent of the DFA is allocated to the B season (June 10-November 1) (§§ 679.20(a)(5)(i)(B)( 1 ) and 679.23(e)(2)). The AI directed pollock fishery allocation to the Aleut Corporation is the amount of pollock TAC remaining in the AI after subtracting 1,900 mt for the CDQ DFA (10 percent) and 2,500 mt for the ICA (§ 679.20(a)(5)(iii)(B)( 2 )). In the AI, the total A season apportionment of the TAC (including the AI directed fishery allocation, the CDQ DFA, and the ICA) may equal up to 40 percent of the ABC for AI pollock, and the remainder of the TAC is allocated to the B season (§ 679.20(a)(5)(iii)(B)( 3 )). Tables 4 and 5 list these 2021 and 2022 amounts.

Section 679.20(a)(5)(iii)(B)( 6 ) sets harvest limits for pollock in the A season (January 20 to June 10) in Areas 543, 542, and 541. In Area 543, the A season pollock harvest limit is no more than 5 percent of the AI pollock ABC. In Area 542, the A season pollock harvest limit is no more than 15 percent of the AI pollock ABC. In Area 541, the A season pollock harvest limit is no more than 30 percent of the AI pollock ABC.

Section 679.20(a)(5)(i)(A)( 4 ) also includes several specific requirements regarding BS pollock allocations. First, it requires that 8.5 percent of the pollock allocated to the CP sector be available for harvest by AFA catcher vessels (CVs) with CP sector endorsements, unless the Regional Administrator receives a cooperative contract that allows for the distribution of harvest among AFA CPs and AFA CVs in a manner agreed to by all members. Second, AFA CPs not listed in the AFA are limited to harvesting not more than 0.5 percent of the pollock allocated to the CP sector. Tables 4 and 5 list the 2021 and 2022 allocations of pollock TAC. Table 20 lists the AFA CP prohibited species sideboard limits, and Tables 21 and 22 list the AFA CV groundfish and prohibited species sideboard limits. The tables for the pollock allocations to the BS inshore pollock cooperatives and open access sector will be posted on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/alaska-groundfish-fisheries-management.

Tables 4 and 5 also list seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest of pollock within the SCA, as defined at § 679.22(a)(7)(vii), is limited to no more than 28 percent of the annual pollock DFA before 12:00 noon, April 1, as provided in § 679.20(a)(5)(i)(C). The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA.

Section 679.20(a)(8) allocates the Atka mackerel TACs to the Amendment 80 and BSAI trawl limited access sectors, after subtracting the CDQ reserves, ICAs for the BSAI trawl limited access sector and non-trawl gear sector, and the jig gear allocation (Tables 6 and 7). The percentage of the ITAC for Atka mackerel allocated to the Amendment 80 and BSAI trawl limited access sectors is listed in Table 33 to 50 CFR part 679 and in § 679.91. Pursuant to § 679.20(a)(8)(i), up to 2 percent of the EAI and the BS Atka mackerel TAC may be allocated to vessels using jig gear. The percent of this allocation is recommended annually by the Council based on several criteria, including, among other criteria, the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS approves, a 0.5 percent allocation of the Atka mackerel ITAC in the EAI and BS to the jig gear sector in 2021 and 2022.

Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel TAC into two equal seasonal allowances. Section 679.23(e)(3) sets the first seasonal allowance for directed fishing with trawl gear from January 20 through June 10 (A season), and the second seasonal allowance from June 10 through December 31 (B season). Section 679.23(e)(4)(iii) applies Atka mackerel seasons to CDQ Atka mackerel trawl fishing. The ICAs and jig gear allocations are not apportioned by season.

Sections 679.20(a)(8)(ii)(C)( 1 )( i ) and ( ii ) limits Atka mackerel catch within waters 0 nmi to 20 nmi of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located west of 178° W longitude to no more than 60 percent of the annual TACs in Areas 542 and 543, and equally divides the annual TACs between the A and B seasons as defined at § 679.23(e)(3). Section 679.20(a)(8)(ii)(C)( 2 ) requires that the annual TAC in Area 543 will be no more than 65 percent of the ABC in Area 543. Section 679.20(a)(8)(ii)(D) requires that any unharvested Atka mackerel A season allowance that is added to the B season be prohibited from being harvested within waters 0 nmi to 20 nmi of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located in Areas 541, 542, and 543.

Tables 6 and 7 list these 2021 and 2022 Atka mackerel seasonal and area allowances, and the sector allocations. One Amendment 80 cooperative has formed for the 2021 fishing year. Because all Amendment 80 vessels are part of the sole Amendment 80 cooperative, no allocation to the Amendment 80 limited access sector is required for 2021. The 2022 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2021.

The Council separated BSAI subarea OFLs, ABCs, and TACs for Pacific cod in 2014 (79 FR 12108, March 4, 2014). Section 679.20(b)(1)(ii)(C) allocates 10.7 percent of the BS TAC and the AI TAC to the CDQ program. After CDQ allocations have been deducted from the respective BS and AI Pacific cod TACs, the remaining BSAI Pacific cod TACs are combined for calculating further BSAI Pacific cod sector allocations. If the non-CDQ Pacific cod TAC is or will be reached in either the BS or the AI subareas, NMFS will prohibit non-CDQ directed fishing for Pacific cod in that subarea as provided in § 679.20(d)(1)(iii).

Sections 679.20(a)(7)(i) and (ii) allocate to the non-CDQ sectors the Pacific cod TAC in the combined BSAI, after subtracting 10.7 percent for the CDQ program, as follows: 1.4 percent to vessels using jig gear; 2.0 percent to hook-and-line or pot CVs less than 60 ft (18.3 m) length overall (LOA); 0.2 percent to hook-and-line CVs greater than or equal to 60 ft (18.3 m) LOA; 48.7 percent to hook-and-line CPs; 8.4 percent to pot CVs greater than or equal to 60 ft (18.3 m) LOA; 1.5 percent to pot CPs; 2.3 percent to AFA trawl CPs; 13.4 percent to Amendment 80 sector; and 22.1 percent to trawl CVs. The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. For 2021 and 2022, the Regional Administrator establishes an ICA of 400 mt based on anticipated incidental catch by these sectors in other fisheries.

The ITAC allocation of Pacific cod to the Amendment 80 sector is established in Table 33 to 50 CFR part 679 and § 679.91. One Amendment 80 cooperative has formed for the 2021 fishing year. Because all Amendment 80 vessels are part of the sole Amendment 80 cooperative, no allocation to the Amendment 80 limited access sector is required for 2021. The 2022 allocations for Pacific cod between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2021.

The sector allocations of Pacific cod are apportioned into seasonal allowances to disperse the Pacific cod fisheries over the fishing year (see §§ 679.20(a)(7)(i)(B), 679.20(a)(7)(iv)(A), and 679.23(e)(5)). In accordance with § 679.20(a)(7)(iv)(B) and (C), any unused portion of a seasonal Pacific cod allowance for any sector, except the jig sector, will become available at the beginning of that sector's next seasonal allowance.

Section 679.20(a)(7)(vii) requires that the Regional Administrator establish an Area 543 Pacific cod harvest limit based on Pacific cod abundance in Area 543 as determined by the annual stock assessment process. Based on the 2020 stock assessment, the Regional Administrator determined for 2021 and 2022 the estimated amount of Pacific cod abundance in Area 543 is 15.7 percent of the total AI abundance. To calculate the Area 543 Pacific cod harvest limit, NMFS first subtracts the State GHL Pacific cod amount from the AI Pacific cod ABC. Then NMFS determines the harvest limit in Area 543 by multiplying the percentage of Pacific cod estimated in Area 543 (15.7 percent) by the remaining ABC for AI Pacific cod. Based on these calculations, the Area 543 harvest limit is 2,166 mt for 2021 and 2022.

On March 21, 2019, the final rule adopting Amendment 113 to the FMP (81 FR 84434, November 23, 2016) was vacated by the U.S. District Court for the District of Columbia ( Groundfish Forum v. Ross , No. 16-2495 (D.D.C. March 21, 2019)), and the corresponding regulations implementing Amendment 113 are no longer in effect. Therefore, this final rule is not specifying amounts for the AI Pacific Cod Catcher Vessel Harvest Set-Aside Program (see § 679.20(a)(7)(viii)).

Table 8 and Table 9 list the CDQ and non-CDQ seasonal allowances by gear, as well as the non-CDQ sector allocations, based on the final 2021 and 2022 Pacific cod TACs.