Mortgage servicers play a vital role in assisting borrowers when they face challenges in paying their mortgages. The Bureau is committed to using its authorities, including its authority under Regulation X mortgage servicing requirements and under the Consumer Financial Protection Act (CFPA), to ensure that homeowners facing the ongoing economic impact of the Coronavirus Disease (COVID-19) national emergency receive the benefits of critical legal protections and that avoidable foreclosures are avoided.

On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was signed into law. 1 Among other things, the CARES Act provides borrowers with “Federally backed mortgage loans” with access to forbearance options regardless of whether they are delinquent. 2 The Bureau understands from its market monitoring that many private investors have also provided forbearances on similar terms to those provided by servicers of federally backed loans.

Since the CARES Act was enacted, 6.9 million borrowers have entered a forbearance program. As of January 2021, more than 2.1 million borrowers in forbearance programs were more than 90 days behind on their mortgage payments (including borrowers who have forborne three or more payments), and they could still be experiencing severe hardships when their payments are to resume. 3 Black and Hispanic homeowners were more than two times as likely to be behind on housing payments as of December 2020. 4

Of the borrowers not in forbearance programs, as of January 2021, around 242,000 were 90 days or more delinquent. Both populations of delinquent borrowers are at heightened risk of referral to foreclosure soon after the foreclosure moratoria end if they do not resolve their delinquency or reach a loss mitigation agreement with their servicer. If borrowers who are currently in an eligible forbearance program request an extension to the maximum time offered by the government agencies, those loans that were placed in a forbearance program early in the pandemic (March and April 2020) will reach the end of their forbearance period in September and October of 2021. Black Knight data suggests there could be just under 1.7 million borrowers still in forbearance in September 2021, with roughly 800,000 borrowers exiting their forbearance programs after 18 months of forborne payments in September and October of 2021. 5

Borrowers facing more permanent hardships will likely need to apply for loss mitigation options as the end of the forbearances periods approach. 6 Therefore, as consumers approach the end of forbearance periods in the coming months, the Bureau expects an extraordinarily high volume of loans needing loss mitigation assistance at relatively the same time. During this period in which there may be large increases in requests for loss mitigation assistance, the Bureau is specifically concerned that some borrowers may not be receiving effective communication from servicers and that some borrowers may be at risk of not having their loss mitigation applications adequately processed.

In the wake of the COVID-19 pandemic, the Bureau has taken numerous steps to protect and assist mortgage borrowers. The Bureau has created and disseminated extensive consumer education resources in coordination with Federal agencies and State regulators. The Bureau plans to use all of its tools, including consumer and industry outreach and regulatory initiatives, to protect homeowners and assist those mortgage servicers who are also working to reduce avoidable foreclosures. The Bureau recognizes that mortgage servicers have also experienced challenges as a result of the pandemic and intends to support servicers in their efforts to provide timely assistance to mortgage borrowers.

The Bureau plans to monitor servicers' engagement with borrowers at all stages in the process in the coming months and prioritize mortgage servicing oversight work in deploying its enforcement and supervision resources in the coming year. The Bureau expects servicers to plan for the expected increase in loans exiting forbearance programs and related loss mitigation applications, as well as applications by borrowers who are delinquent but not in forbearance. The Bureau expects servicers to resource those activities appropriately and urges servicers to dedicate sufficient resources and staff to ensure they can communicate clearly with borrowers, effectively manage borrower requests for assistance, and thereby reduce foreclosures. Accordingly, the Bureau intends to look at a servicer's overall effectiveness at helping consumers manage loss mitigation, along with other relevant factors, when using its discretion to address violations of Federal consumer financial law in supervisory and enforcement matters. On the other hand, consistent with the flexibilities announced in the April 3, 2020 joint statement, companies that are unable to adequately manage loss mitigation can expect the Bureau to take enforcement or supervisory action to address violations under its Regulation X, CFPA, or other authorities. 7

In its oversight work, the Bureau plans to pay particular attention to:

1. Whether servicers are providing clear and readily understandable information to borrowers about their options for payment assistance;

2. Whether servicers are complying with the outreach requirements in Regulation X to ensure that borrowers are getting needed information about loss mitigation options, including:

• For borrowers who request further assistance, whether servicers are promptly resuming reasonable diligence in obtaining documents and information to complete loss mitigation applications;  7

• For borrowers in forbearance, whether servicers are contacting borrowers before the end of the forbearance period to determine if the borrower wishes to complete the loss mitigation application and proceed with a full loss mitigation application;  8

3. Whether servicers are complying with the Equal Credit Opportunity Act's (ECOA's) prohibition against discriminating against any applicant, with respect to any aspect of a credit transaction, including:  9

• Whether servicers are managing communications with limited English proficiency borrowers while maintaining compliance with applicable laws;  10

• For applicants who are recipients of income derived from part-time employment, alimony, child support, separate maintenance payments, retirement benefits, or public assistance, whether servicers evaluate such income in accordance with the ECOA and Regulation B when determining eligibility for loss mitigation options, to the extent the servicer is otherwise required to use income in determining eligibility for loss mitigation options;  11

4. Whether servicers promptly handle loss mitigation inquiries and avoid unreasonably long hold times on phone lines; for example, the Bureau plans to scrutinize servicer conduct where hold times are significantly longer than industry averages;

5. Whether servicers maintain policies and procedures that are reasonably designed to achieve the continuity of contact objectives to ensure that delinquent borrowers receive accurate information about their loss mitigation options;  12

6. For borrowers who submit complete loss mitigation applications, whether servicers evaluate the applications consistent with the Regulation X requirements to promote timely and consistent evaluations;  13

7. Whether servicers comply with foreclosure restrictions in Regulation X and other Federal or State foreclosure restrictions;  14 and

8. Whether servicers are complying with the Fair Credit Reporting Act's requirements to report the credit obligation or account appropriately. 15

The Bureau issues this policy statement to highlight supervisory and enforcement priorities with respect to mortgage servicing and to confirm that the Bureau will hold servicers accountable if they are unable to manage an expected increase in borrowers needing loss mitigation assistance.

The Bulletin constitutes a general statement of policy exempt from the notice and comment rulemaking requirements of the Administrative Procedure Act (APA). It is intended to provide information regarding the Bureau's general plans to exercise its supervisory and enforcement discretion for institutions under its jurisdiction and does not impose any legal requirements on external parties, nor does it create or confer any substantive rights on external parties that could be enforceable in any administrative or civil proceeding. Because no notice of proposed rulemaking is required in issuing the Bulletin, the Regulatory Flexibility Act also does not require an initial or final regulatory flexibility analysis. The Bureau has also determined that the issuance of the Bulletin does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act.

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2007-07-03, Amendment 39-15003 (72 FR 14395, March 28, 2007) (AD 2007-07-03). AD 2007-07-03 applied to certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. The NPRM published in the Federal Register on September 22, 2020 (85 FR 59451). The NPRM was prompted by reports of sealant deteriorating on the outside of the center wing fuel tank and analysis showing that sealant may deteriorate inside the tank due to excess heat from TADDs. The NPRM was also prompted by reports indicating that the high temperature composite material TADDs installed as specified in AD 2007-07-03 have also failed. The NPRM proposed to require repetitive inspections of all TADD material for damage and applicable on-condition actions. The FAA is issuing this AD to address potential hot air leakage from original fiberglass fabric material or high temperature composite material TADDs that can cause damage to the center wing fuel tank secondary fuel barrier coating and primary sealant, which can cause fuel leakage into an ignition zone, possibly resulting in a fire or explosion.

The FAA gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

Air Line Pilots Association, International (ALPA), Boeing, and Jesse Addo expressed support for the NPRM.

Cathay Pacific Airways Limited (CPA), Lufthansa German Airlines (Lufthansa), and SFN requested that the compliance time for the initial and repetitive inspection be extended. Lufthansa suggested that an interval of 11,000 flight hour (FH) would still provide a sufficient level of safety based on its fleet reliability data. Lufthansa stated that the proposed interval is not comprehensible based on its data and would result in an extension of each A-check by 200 percent of normal and generate a very high economic impact. SFN agreed with Lufthansa's analysis and requested an interval of 10,000 FH to coincide with the C-check, because doing the inspection at the 1,200 FH interval would require the inspection be done at each A-check (1,000 FH). SFN comments that this would be problematic for two reasons: It would generate a very high economic impact, and it would result in a higher frequency of floor panel removal/installation that would increase the risk of wire damage over the center fuel tank. CPA requested that the compliance time for the initial inspection be extended. CPA asserted that the replacement of the TADDs at the initial inspection, to extend the next inspection to 16,000 FH, would not be possible due to availability of spare TADDs and base maintenance scheduling. CPA also noted that the 1,200 FH repetitive inspection interval will impose a huge burden on essential cargo operations. The commenters noted that the inspections were not suitable for the line maintenance environment due to the extensive access portion of the inspection.

The FAA disagrees with the requests. In developing an appropriate compliance time, the FAA considered the safety implications, parts availability, normal maintenance schedules, and the manufacturer's recommendations, and determined that the 1,200 FH compliance time would allow for an adequate level of safety. After initial installation of high temperature TADDs, operators may avoid repeat inspections at 1,200 FH intervals by installing new high temperature TADDs at each 16,000 FH interval, without an alternative method of compliance (AMOC) or additional rulemaking, as long as required actions are completed at that interval. However, under the provisions of paragraph (h) of this AD, the FAA will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the extension would provide an acceptable level of safety. Additionally, as noted in the NPRM, the FAA considers this AD interim action. The manufacturer is currently developing a modification. Once the modification is developed, approved, and available, the FAA might consider additional rulemaking. We have not changed this AD with regard to this request.

KLM Royal Dutch Airlines (KLM) requested that the NPRM be revised to allow an AMOC to use holes at certain locations in the floor for access and a borescope for the inspection. KLM outlined a method for accessing the inspection area more quickly and with less disruption using borescopes and examination holes in the floor panels, if Boeing modified the panels. KLM noted that currently more than 38 work hours are required to remove and replace floor panels—a huge effort for a 5-hour inspection that is repeated frequently. KLM recalled that a similar inspection using access holes and borescopes was used in the 1980s to inspect the floors under toilets.

The FAA disagrees with the need for an alternate inspection method. Note that this AD does not mandate how to access the inspection site, it only mandates a detailed inspection of the affected parts. However, the FAA is not aware of Boeing developing any new design for the floor panels that includes pluggable holes. As noted, this AD is considered interim action and if any new design is developed, the FAA might consider further rulemaking. This AD has not been changed with regard to this request.

One commenter requested that the NPRM be written in language more understandable to the average person to help clarify the unsafe condition. The commenter stated that the SUMMARY section may be unclear and confusing and argued that it is the FAA's duty to present the issues pertaining to TADDs in a more comprehensible way in order to emphasize the importance and urgency of the identified unsafe condition. The commenter asserted that the FAA does not clearly explain why hot air leakage from the TADDs as a result of hot trim air causing the material properties to degrade is potentially dangerous or creates an unsafe condition. Therefore, the commenter stated that the FAA should describe in more detail the dangers and unsafe conditions the TADDs, especially the high temperature composite material TADDs, present. The commenter further argued that the FAA should better break down the focal component of the proposed and former rules, which is the TADD, and do it while making the terms and concepts understandable to the layperson.

The FAA disagrees with changing the nature of the language in this final rule. The FAA strives to follow guidelines as outlined in FAA Order 1000.36, FAA Writing Standards, 1 as well as using plain language principles  2 to draft regulations, but a certain level of subject matter knowledge is assumed on the part of the reader. As noted by the commenter, ADs are written for the owners and operators of the affected airplanes, for the purpose of increasing aviation safety. Therefore, it is important that the content of an AD is written for the understanding of those individuals required to comply with the requirements of the AD.

It is also important to note that information that is appropriate for inclusion in the SUMMARY section of a rule is driven by the Office of the Federal Register (OFR). 3 Additional detail may not be added to the SUMMARY . Additional detail in the Discussion is also unnecessary. The unsafe condition was clearly stated in the proposed AD to be damage to the center wing fuel tank secondary fuel barrier coating and primary sealant, which can cause fuel leakage into an ignition zone, possibly resulting in a fire or explosion—caused by potential hot air leakage from original fiberglass fabric material or high temperature composite material TADDs.

We have not changed this AD in this regard.

A commenter also requested that the NPRM be revised to clearly state why it is necessary to supersede AD 2007-07-03, given the high labor costs of performing the newly required actions.

The FAA agrees to clarify the need to supersede AD 2007-07-03. The FAA issues ADs, including any necessary supersedures, whenever there is an unsafe condition that must be addressed. As described under the section, “Actions Since AD 2007-07-03 Was Issued,” operators reported that high temperature composite material TADDs installed as specified in AD 2007-07-03 have also failed. Further inspection showed that the high temperature composite material TADDs were ruptured, with damaged insulation in poor condition. Analysis showed that hot trim air was causing material properties degradation of both the original fiberglass fabric material and high temperature composite material TADDs, which potentially causes hot air leakage from the TADD(s). Since the unsafe condition has been reported even with AD 2007-07-03 in effect, the FAA has determined that it is necessary to issue this AD, which supersedes AD 2007-07-03, to adequately address possible hot air leaks that can damage the secondary fuel barrier of the center wing fuel tank. As noted in this final rule, a damaged fuel barrier could allow fuel to leak into an area where it may cause a fire or explosion. The FAA has not changed this AD with regard to this request.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD 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.

The FAA reviewed Boeing Alert Requirements Bulletin 747-21A2577 RB, dated February 18, 2020. The service information describes procedures for repetitive detailed inspections of TADDs made of original fiberglass fabric material and high temperature composite material for damage and applicable on-condition actions. On-condition actions include TADD replacement, detailed inspection of the center wing tank secondary fuel barrier and the center wing tank primary sealant for damage, a measurement of the electrical conductivity change of the upper skin of the center wing tank for indications of damage, other replacement as applicable, and repair. 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 considers this AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, the FAA might consider additional rulemaking.

The FAA estimates that this AD affects 188 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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 Rockwell Collins GPS-4000S GPS installed on airplanes. The NPRM published in the Federal Register on October 29, 2020 (85 FR 68501). The NPRM was prompted by the FAA being notified of a software error in GPS P/N 822-2189-100 that can result in an un-annunciated inaccurate GPS position in the region within approximately 1,000 miles (+/−20 degrees) of 180 degrees west longitude. The software improperly applies the wide area augmentation system ionospheric delay corrections to the GPS signal from satellites located across the 180th meridian. Due to this anomaly, the position accuracy may be diminished such that the GPS-4000S P/N 822-2189-100 will not support LPV approaches in the affected region. In the NPRM, the FAA proposed to require removing P/N 822-2189-100 GPS-4000S GPS from the airplane and installing P/N 811-2189-101 GPS-4000S GPS. The FAA is issuing this AD to prevent a misleading glidepath on an affected LPV approach, resulting in CFIT.

The FAA received comments from five commenters. The commenters were the Air Line Pilots Association, International (ALPA), Bombardier Aviation (Bombardier), Delta Air Lines, Inc. (Delta), Airbus Canada, and Transport Canada Civil Aviation (Transport Canada). The following presents the comments received on the NPRM and the FAA's response to each comment.

ALPA supported the AD without change.

Bombardier requested the FAA clarify paragraph (e) because it does not describe the unsafe condition accurately. Bombardier stated that the reference to a GPS vertical error is misleading and recommended rewording it to state that a GPS software anomaly causes an undetectable and inaccurate horizontal position from the Global Navigation Satellite System (GNSS).

The FAA disagrees. The software error in the GPS-4000 produces both horizontal and vertical position inaccuracies in the affected region. The FAA determined the vertical error results in an unsafe condition as it could cause the airplane to follow a glidepath below the obstacle clearance surface of the LPV approach.

Delta requested the FAA change the proposed requirement in paragraph (g)(1) to replace GPS-4000S P/N 822-2189-100 so that the AD does not prevent installation of a GPS P/N that is unaffected by the unsafe condition. Delta stated GPS-4000S P/N 822-2189-011 is two-way interchangeable with P/N 822-2189-100 as a set and is not affected by the unsafe condition. Delta also stated that Rockwell Collins could develop new GPS P/Ns that are not subject to the unsafe condition, which operators could not install without obtaining approval for an alternative method of compliance (AMOC), based on the proposed paragraph (g)(1). Delta requested the FAA change paragraph (g)(1) to require replacing GPS-4000S GPS P/N 822-2189-100 with “an improved part number.”

The FAA agrees. It is not necessary for the AD to require installing P/N 822-2189-101 because requiring the removal of P/N 822-2189-100 will resolve the unsafe condition. Operators may replace GPS P/N 822-2189-100 with any other system approved for installation in their aircraft, although the FAA expects installation of P/N 822-2189-101 will be the most common method.

The FAA has revised the AD to only require removing GPS-4000S GPS P/N 822-2189-100 from service without requiring replacement with a specific P/N GPS.

Airbus Canada and Transport Canada commented on the FAA's proposal to prohibit the installation of the GPS-4000S GPS P/N 822-2189-100 as of the effective date of the AD instead of once P/N 822-2189-101 has been installed. The commenters stated that this may create dispatch issues for operators depending on the number of available parts.

The FAA agrees and has changed the prohibition of installation to take effect 24 months after the effective date of the AD. Operators may install a GPS-4000S GPS P/N 822-2189-100 to address maintenance/repair issues prior to complying with the AD. Once an operator has removed GPS-4000S GPS P/N 822-2189-100 to comply with the AD, the operator must maintain that configuration and may not change it to install a GPS-4000S GPS P/N 822-2189-100 without an approved AMOC.

Delta requested the FAA change the applicability to specify only those aircraft types with the affected software installed. Delta stated that as proposed, the AD would require all operators to review records to verify whether the affected GPS P/N is installed on all of their airplane fleets, regardless of whether it is type certificated or supplemental type certificated.

The FAA disagrees. The FAA issues an AD against an appliance when, as in this case, the unsafe condition exists in the appliance. If known, the FAA will list the aircraft models that the appliance might be installed on. However, this would not be an all-inclusive list and would still require all operators to check their airplanes for the affected appliance, regardless of whether the model of their airplane is listed.

The FAA did not change this AD based on this comment.

Airbus Canada stated that the NPRM does not mention that Rockwell Collins removed the LPV approaches from the impacted airports. Airbus Canada requested that the AD provide credit for this. Transport Canada asked whether Rockwell Collins and the FAA will return the affected Alaska LPV procedures to the Navigation database for customers who have updated their entire fleet with the P/N 822-2189-101 version of the GPS-4000S.

The FAA disagrees with this comment. The FAA infers that the commenters are referencing Rockwell Collins' removal of the affected LPV approaches from the Rockwell Collins Navigation database beginning in February 2020. This LPV approach removal was initiated by Rockwell Collins as a temporary mitigation, but it affects all versions of the GPS-4000S that use the database, including those (such as the -101 version) that do not have the unsafe condition. Accordingly, the FAA did not base its determination and the corrective actions of this AD on the removal of affected LPV approaches.

The FAA did not change this AD based on this comment.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for the changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Rockwell Collins Service Information Letter GPS-4X00( )-19-3, Revision No. 2, dated March 25, 2020. The service letter describes the unsafe condition and provides operating limitations for approaches to airports in the affected region until the software is upgraded.

The FAA also reviewed Rockwell Collins Service Bulletin GPS-4X00( )-34-510, Revision No. 1, dated March 6, 2020. The service bulletin specifies procedures for upgrading the GPS-4000S software, which removes P/N 822-2189-100 and installs P/N 822-2189-101.

The FAA estimates that this AD affects 3,500 airplanes of U.S. registry. The FAA estimates that 2,000 airplanes have two GPS-4000S units installed and 1,500 airplanes have one GPS-4000S unit installed.

The FAA estimates the following costs to comply with this AD:

The FAA has included all known costs in this cost estimate. According to the manufacturer, however, 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.

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, has issued TCCA AD CF-2020-23, dated June 24, 2020 (TCCA AD CF-2020-23) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain MHI RJ Aviation ULC Model CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), and CL-600-2D24 (Regional Jet Series 900) airplanes. 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-2020-1137.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain MHI RJ Aviation ULC Model CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), and CL-600-2D24 (Regional Jet Series 900) airplanes. The NPRM published in the Federal Register on December 21, 2020 (85 FR 82975). The NPRM was prompted by a report that some piccolo ducts for the wing anti-ice system have bleed holes that do not conform to requirements (such as being undersized, un-burred, or in the wrong location). The NPRM proposed to require, depending on airplane configuration, inspection for the presence of affected wing anti-ice system piccolo ducts and corrective actions, or replacement of affected piccolo ducts with new piccolo ducts. The FAA is issuing this AD to address non-conforming piccolo duct bleed holes, which could lead to degradation of the wing anti-ice protection of the leading edge of certain slats, and possibly result in airplane handling issues during critical phases of flight. 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.

Bombardier Service Bulletin 670BA-30-025, dated December 17, 2019, includes a requirement to report the pre- and post-modification part and serial number of each replaced piccolo duct to Bombardier. The FAA has added paragraph (h) of this AD to clarify the appropriate compliance time for this reporting and redesignated subsequent paragraphs accordingly. The FAA has also revised the Cost of Compliance portion of this AD to include the estimated costs for this reporting requirement.

The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this final rule with the changes described previously and 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.

Bombardier has issued Service Bulletin 670BA-30-025, dated December 17, 2019. This service information describes, for certain airplanes, procedures for replacement of affected piccolo ducts with new piccolo ducts. This service information also describes, for certain other airplanes, procedures for inspection for the presence of affected wing anti-icing system piccolo ducts, and depending on inspection results, replacement of affected piccolo ducts with new piccolo ducts or contacting the manufacturer for further instruction. 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 estimates that this AD affects 21 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates that it would take about 1 work-hour per product to comply with the reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, the FAA estimates the cost of reporting on U.S. operators to be $1,785, or $85 per product.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0526 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before June 7, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0526, by one of the following methods:

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

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

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

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

In the Federal Register of February 11, 2020 (85 FR 7708) (FRL-10005-02), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 9E8778) by IR-4, IR-4 Project Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the insecticide spinetoram, including its metabolites and degradates in or on the raw agricultural commodities dragon fruit at 1.5 ppm; vegetable, Brassica, head and stem, group 5-16 at 2.0 ppm; kohlrabi at 2.0 ppm; Brassica, leafy greens, subgroup 4-16B at 10 ppm; leafy greens subgroup 4-16A at 8.0 ppm; leaf petiole vegetable subgroup 22B at 8.0 ppm; celtuce at 8.0 ppm; fennel, Florence, fresh leaves and stalk at 8.0 ppm; and berry, low growing, except strawberry, subgroup 13-07H at 0.04 ppm. The petition also requested to amend 40 CFR 180.635 by removing the following spinetoram tolerances: Brassica, head and stem, subgroup 5A at 2.0 ppm; Brassica, leafy greens, subgroup 5B at 10 ppm; vegetable, leafy, except Brassica, group 4 at 8 ppm; and cranberry at 0.04 ppm. That document referenced a summary of the petition prepared by Dow AgroSciences, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA is establishing several tolerances at different levels than requested. The reasons for these changes are explained in Unit IV.C.

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

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

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemakings of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings, and republishing the same sections is unnecessary. EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published tolerance rulemakings for spinetoram, in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to spinetoram and established tolerances for residues of that chemical. EPA is incorporating previously published sections that remain unchanged from those rulemakings as described further in this rulemaking.

Toxicological Profile. For a discussion of the Toxicological Profile of spinetoram, see Unit III.A. of the August 8, 2018 rulemaking (83 FR 38976) (FRL-9978-83).

Toxicological Points of Departure/Levels of Concern. For a summary of the Toxicological Points of Departure/Levels of Concern used for the safety assessment, see Unit III.B. of the August 8, 2018 rulemaking.

Exposure Assessment. Much of the exposure assessment remains unchanged from the previous rulemaking, although the new exposure assessment incorporates the additional dietary exposure from the petitioned-for tolerances. The residue levels, percent crop treated, and estimated drinking water concentrations used in the exposure assessment remain the same and are discussed in Unit III.C. of the August 8, 2018 rulemaking. Moreover, there have been no changes to residential exposures, so the Agency's approach for assessing residential (non-occupational, non-dietary exposures) is also discussed in that same Unit. Finally, the Agency's conclusions about cumulative effects remain the same as in that Unit.

Safety Factor for Infants and Children. EPA continues to conclude that there is reliable data showing that the safety of infants and children would be adequately protected if the FQPA SF were reduced from to 1X. The reasons for that decision are articulated in Unit III.D. of the August 8, 2018 rulemaking.

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

An acute analysis was not conducted as toxicological effects attributable to a single dose were not identified. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD: Children 1 to 2 years old are the population subgroup with the highest exposure estimate at 72% of the cPAD. The short-term aggregate MOE (food, water, and residential) is 200 for children 1 to less than 2 years old and 780 for adults. These MOEs do not exceed the target level of concern of 100. The short-term aggregate risk assessment is protective of intermediate-term exposure as the short-term and intermediate-term PODs are identical. EPA has also concluded that spinetoram is not expected to pose a cancer risk to humans based on the lack of evidence of carcinogenicity in the database.

Determination of Safety. Based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to spinetoram residues. More detailed information about the Agency's analysis can be found at http://www.regulations.gov in the document titled “Spinosad/Spinetoram. Human Health Risk Assessment in Support of Proposed Spinetoram Tolerance for Residues in/on Imported Tea” dated January 16, 2018 in docket ID EPA-HQ-OPP-2017-0352 and the document titled “Spinosad and Spinetoram. Human Health Risk Assessment for Proposed Use on Dragon Fruit (Pitaya); Crop Group Expansion for Berry, Low Growing, Except Strawberry, Subgroup 13-07H; and Crop Group Conversions for Vegetable, Brassica, Head and Stem, Group 5-16; Brassica, Leafy Greens, Subgroup 4-16B; Leaf Petiole Vegetable Subgroup 22B; Leafy Greens Subgroup 4-16A; Celtuce; Fennel, Florence, Fresh Leaves and Stalk; and Kohlrabi.” dated February 12, 2021 in docket ID number EPA-HQ-OPP-2019-0526.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the August 8, 2018 rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

There are no Codex MRLs established for dragon fruit; berry, low growing, except strawberry, subgroup 13-07H; Brassica, leafy greens, subgroup 4-16B; celtuce; and fennel, Florence, fresh leaves and stalk.

The U.S. tolerances for kohlrabi and leafy greens subgroup 4-16A are harmonized with the Codex MRLs.

For two crop groups, the Codex MRL is lower than the U.S. tolerance: Leaf petiole vegetable subgroup 22B at 6 ppm instead of 8 ppm and for vegetable, Brassica, head and stem, group 5-16 at 0.3 ppm rather than 2 ppm. Harmonization of these tolerances is not possible because decreasing the U.S. tolerances to harmonize with the Codex MRL would put U.S. growers at risk of having violative residues despite legal use of the pesticide according to the label.

Based upon review of the data supporting the petition, EPA is establishing tolerance levels consistent with Organization for Economic Cooperation and Development (OECD) Rounding Class Practice.

The petitioner requested separate subgroup tolerances for the Brassica, leafy greens, subgroup 4-16B at 10 ppm and leafy greens subgroup 4-16A at 8.0 ppm. EPA has decided to establish a single group tolerance for the vegetable, leafy, group 4-16 at 10 ppm to harmonize with Codex.

Therefore, tolerances are established for residues of spinetoram in or on berry, low growing, except strawberry, subgroup 13-07H at 0.04 ppm; celtuce at 8 ppm; dragon fruit at 1.5 ppm; fennel, Florence, fresh leaves and stalk at 8 ppm; kohlrabi at 2 ppm; leaf petiole vegetable subgroup 22B at 8 ppm; vegetable, Brassica, head and stem, group 5-16 at 2 ppm; and vegetable, leafy, group 4-16 at 10 ppm.

Additionally, the following tolerances are removed as unnecessary due to the establishment of the above tolerances: Brassica, head and stem, subgroup 5A; Brassica, leafy greens, subgroup 5B; cranberry; and vegetable, leafy, except Brassica, group 4.

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

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

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

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

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0525 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before June 7, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0525, by one of the following methods:

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

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

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

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

In the Federal Register of February 11, 2020 (85 FR 7708) (FRL-10005-02), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 9E8779) by IR-4, IR-4 Project Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the insecticide spinosad, including its metabolites and degradates in or on the raw agricultural commodities dragon fruit at 1.5 ppm; vegetable, Brassica , head and stem, group 5-16 at 2.0 ppm; kohlrabi at 2.0 ppm; vegetable, leafy, group 4-16 at 10.0 ppm; celtuce at 10.0 ppm; fennel, Florence, fresh leaves and stalk at 10.0 ppm; leaf petiole vegetable subgroup 22B at 10.0 ppm; and berry, low growing, except strawberry, subgroup 13-07H at 0.01 ppm. The petition also requested to amend 40 CFR 180.495 by removing the following spinosad tolerances: Brassica , head and stem, subgroup 5A at 2.0 ppm; Brassica , leafy greens, subgroup 5B at 10 ppm; vegetable, leafy, except Brassica , group 4 at 8 ppm; and cranberry at 0.01 ppm. That document referenced a summary of the petition prepared by Dow AgroSciences, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA is establishing several tolerances at different levels than requested. The reasons for these changes are explained in Unit IV.C.

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

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

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemakings of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings, and republishing the same sections is unnecessary. EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published tolerance rulemakings for spinosad, in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to spinosad and established tolerances for residues of that chemical. EPA is incorporating previously published sections that remain unchanged from those rulemakings as described further in this rulemaking.

Toxicological Profile. For a discussion of the Toxicological Profile of spinosad, see Unit III.A. of the September 19, 2019 rulemaking (84 FR 49195) (FRL-9995-90).

Toxicological Points of Departure/Levels of Concern. For a summary of the Toxicological Points of Departure/Levels of Concern used for the safety assessment, see Unit III.B. of the September 29, 2019 rulemaking.

Exposure Assessment. Much of the exposure assessment remains unchanged from the previous rulemaking, although the new exposure assessment incorporates the additional dietary exposure from the petitioned-for tolerances. The residue levels, percent crop treated, and estimated drinking water concentrations used in the exposure assessment remain the same and are discussed in Unit III.C. of the September 29, 2019 rulemaking. Moreover, there have been no changes to residential exposures, so the Agency's approach for assessing residential (non-occupational, non-dietary exposures) is also discussed in that same Unit. Finally, the Agency's conclusions about cumulative effects remain the same as in that Unit.

Safety Factor for Infants and Children. EPA continues to conclude that there is reliable data showing that the safety of infants and children would be adequately protected if the FQPA SF were reduced from to 1X. The reasons for that decision are articulated in Unit III.D. of the August 8, 2018 rulemaking.

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

An acute analysis was not conducted as toxicological effects attributable to a single dose were not identified. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD: Children 1 to 2 years old are the population subgroup with the highest exposure estimate at 72% of the cPAD. The short-term aggregate MOE (food, water, and residential) is 200 for children 1 to less than 2 years old and 780 for adults. These MOEs do not exceed the target level of concern of 100. The short-term aggregate risk assessment is protective of intermediate-term exposure as the short-term and intermediate-term PODs are identical. EPA has also concluded that spinosad is not expected to pose a cancer risk to humans based on the lack of evidence of carcinogenicity in the database.

Determination of Safety. Based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to spinosad residues. More detailed information about the Agency's analysis can be found at http://www.regulations.gov in the document titled “Spinosad. Summary of Residue Chemistry Data and Human Health Risk Assessment for the Establishment of a Tolerance Without U.S. Registration on Tea.” dated March 6, 2019 in docket ID EPA-HQ-OPP-2018-0525 and the document titled “Spinosad and Spinetoram. Human Health Risk Assessment for Proposed Use on Dragon Fruit (Pitaya); Crop Group Expansion for Berry, Low Growing, Except Strawberry, Subgroup 13-07H; and Crop Group Conversions for Vegetable, Brassica, Head and Stem, Group 5-16; Brassica, Leafy Greens, Subgroup 4-16B; Leaf Petiole Vegetable Subgroup 22B; Leafy Greens Subgroup 4-16A; Celtuce; Fennel, Florence, Fresh Leaves and Stalk; and Kohlrabi.” dated February 12, 2021 in docket ID number EPA-HQ-OPP-2019-0525.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the September 29, 2019 rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

There are no Codex MRLs established for dragon fruit, celtuce, and fennel, Florence, fresh leaves and stalk.

The U.S. tolerances for kohlrabi; vegetable, Brassica, head and stem, group 5-16; and vegetable, leafy, group 4-16 are harmonized with the Codex MRLs.

The Codex MRL for the leaf petiole vegetable subgroup 22B is 2 ppm while the U.S. tolerance is 8 ppm. Harmonization is not possible because decreasing the U.S. tolerance to harmonize with the Codex MRL would put U.S. growers at risk of having violative residues despite legal use of the pesticide according to the label.

The U.S. tolerance on the berry, low growing, except strawberry, subgroup 13-07H is 0.04 ppm, and the Codex MRL is 0.02 ppm. EPA is not harmonizing this tolerance with Codex because EPA's spinosad tolerance is based on available residue data for the toxicologically equivalent spinetoram, which supports the higher tolerance.

Based upon review of the data supporting the petition, EPA is establishing tolerance levels consistent with Organization for Economic Cooperation and Development (OECD) Rounding Class Practice.

The tolerance for berry, low growing, except strawberry, subgroup 13-07H is being established at 0.04 instead of 0.01 as proposed. Due to the toxicological equivalence and similar use patterns of spinosad and spinetoram, EPA allows for the bridging of field trial residue data between the two chemicals when consistent with the application rates. The available data supports establishing the higher tolerance for this subgroup.

The tolerances for the leaf petiole vegetable subgroup 22B, celtuce, and fennel, Florence, fresh leaves and stalk are being established at 8 ppm rather than 10 ppm as proposed. This is so the tolerance stays harmonized with Canada, which is a major export market for these commodities.

Therefore, tolerances are established for residues of spinosad in or on berry, low growing, except strawberry, subgroup 13-07H at 0.04 ppm; celtuce at 8 ppm; dragon fruit at 1.5 ppm; fennel, Florence, fresh leaves and stalk at 8 ppm; kohlrabi at 2 ppm; leaf petiole vegetable subgroup 22B at 8 ppm; vegetable, Brassica, head and stem, group 5-16 at 2 ppm; and vegetable, leafy, group 4-16 at 10 ppm.

Additionally, the following tolerances are removed as unnecessary due to the establishment of the above tolerances: Brassica, head and stem, subgroup 5A; Brassica, leafy greens, subgroup 5B; cranberry; and vegetable, leafy, except Brassica, group 4.

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

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

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

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

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0103 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before June 7, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0103, by one of the following methods:

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

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

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

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

In the Federal Register of June 8, 2017 (82 FR 26642) (FRL-9961-14), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11024) by SciReg. Inc., 12733, Director's Loop, Woodbridge, VA 22192, on behalf of Solvay USA, 504 Carnegie Center, Princeton, NJ 08540. The petition requested that 40 CFR 180.910 and 180.940 be amended by establishing an exemption from the requirement of a tolerance for residues of 2,2-dimethyl-1,3-dioxolane-4-methanol (CAS Reg. No.100-79-8) when used as an inert ingredient (solvent/cosolvent) in pesticide formulations applied to growing crops or raw agricultural commodities after harvest and in antimicrobial pesticide formulations (food-contact surface sanitizing solutions). That document referenced a summary of the petition prepared by SciReg, Inc., on behalf of Solvay USA Inc., the petitioner, which is available in the docket, http://www.regulations.gov. One comment was received on the notice of filing. EPA's response to this comment is discussed in Unit V.C.

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

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

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

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for 2,2-dimethyl-1,3-dioxolane-4-methanol including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with 2,2-dimethyl-1,3-dioxolane-4-methanol follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by 2,2-dimethyl-1,3-dioxolane-4-methanol as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies 2,2-Dimethyl-1,3-dioxolane-4-methanol exhibits low levels of acute toxicity via the oral, dermal, and inhalation routes of exposure. It is not irritating to the rabbit skin, the rabbit eye, and is not a dermal sensitizer. 2,2-Dimethyl-1,3-dioxolane-4-methanol is negative for genotoxic effects in a battery of genotoxicity assays. Based on a cancer expert prediction system (DEREK analysis), 2,2-dimethyl-1,3-dioxolane-4-methanol is unlikely to pose a carcinogenic risk to humans. 2,2-Dimethyl-1,3-dioxolane-4-methanol exhibits no adverse toxicological effects in a combined repeat dose oral toxicity study with the reproduction/developmental toxicity screening test in rats at doses equal to or exceeding the limit dose of 1,000 mg/kg/day.

Due to the lack of hazard associated with 2,2-dimethyl-1,3-dioxolane-4-methanol based on the available data, no points of departure were identified for assessing risk; therefore, a quantitative risk assessment was not conducted.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to 2,2-dimethyl-1,3-dioxolane-4-methanol, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from 2,2-dimethyl-1,3-dioxolane-4-methanol in food as follows:

Acute and chronic dietary assessments take into account exposure estimates from dietary consumption of food and drinking water. Because no adverse effects attributable to a single or repeat exposures to 2,2-dimethyl-1,3-dioxolane-4-methanol were seen in the toxicity databases, quantitative dietary risk assessments are not appropriate. Due to the expected use of 2,2-dimethyl-1,3-dioxolane-4-methanol in pesticide formulations applied to growing crops and raw agricultural commodities post-harvest, and in antimicrobial products, it is reasonable to expect that there will be some exposure residues of 2,2-dimethyl-1,3-dioxolane-4-methanol in or on food from its use in pesticide products.

2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

It is possible that 2,2-dimethyl-1,3-dioxolane-4-methanol may be used as an inert ingredient in pesticide products that may result in residential exposures, although no residential uses are currently proposed. A residential exposure assessment was not conducted because no endpoint of concern following a single or repeat dose exposure was identified in the available studies.

Because there are no threshold effects associated with 2,2-dimethyl-1,3-dioxolane-4-methanol, EPA conducted a qualitative assessment. As part of that assessment, the Agency did not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children. Based on an assessment of 2,2-dimethyl-1,3-dioxolane-4-methanol, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children.

Taking into consideration all available information on 2,2-dimethyl-1,3-dioxolane-4-methanol, EPA has determined that there is a reasonable certainty that no harm to any population subgroup, including infants and children, will result from aggregate exposure to 2,2-dimethyl-1,3-dioxolane-4-methanol under reasonable foreseeable circumstances. Therefore, the establishment of an exemption from tolerance under 40 CFR 180.910 and 180.940 for residues of 2,2-dimethyl-1,3-dioxolane-4-methanol when used as an inert ingredient in pesticide formulations is safe under FFDCA.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limit.

One commenter opposed a tolerance for residues of pesticides in or on food, although the commenter did not present any information that the Agency could take into account when making a determination about the safety of this pesticide. Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by section 408 of the FFDCA authorizes EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that these exemptions from the requirement of a tolerance are safe. The commenters have provided no information to indicate that 2,2-dimethyl-1,3-dioxolane-4-methanol is not safe.

Therefore, exemptions from the requirement of a tolerance are established under 40 CFR 180.910 and 180.940 for 2,2-dimethyl-1,3-dioxolane-4-methanol (CAS Reg. No 100-79-8) when used as an inert ingredient as solvent/cosolvent in pesticide formulations applied to growing crops and raw agricultural commodities after harvest and in antimicrobial pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils.

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

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

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

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

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0531 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before June 7, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0531, by one of the following methods:

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

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

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

Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit https://www.epa.gov/dockets.

In the Federal Register of June 24, 2020 (85 FR 37806) (FRL-10010-82), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 9E8773) by Mitsui Chemicals Agro, Inc. c/o Landis International, Inc., 3185 Madison Highway, P.O. Box 5126, Valdosta, GA 31603-5126. The petition requested that 40 CFR 180.658 be amended by establishing a tolerance for residues of the fungicide, Penthiopyrad ( N -[2-(1,3-dimethylbutyl)-3-thienyl]-1-methyl-3-(trifluoromethyl)-1 H -pyrazole-4-carboxamide) in or on persimmon, at 3.0 parts per million (ppm). That document referenced a summary of the petition prepared by Mitsui Chemicals Agro, Inc. c/o Landis International, Inc., the registrant, which is available in the docket for this action, docket ID number EPA-HQ-OPP-2019-0531, at http://www.regulations.gov. There were no comments received in response to the notice of filing. EPA is setting a tolerance of 3 ppm in persimmon, instead of the petitioner-proposed tolerance value of 3.0 ppm. This change is explained in Unit IV.C.

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

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

In an effort to streamline Federal Register publications, EPA is directing readers to certain sections of Federal Register notifications for previous tolerance rulemakings for the same pesticide that contain information that has not changed in the current risk assessment. To that end, on June 6, 2019, EPA published in the Federal Register a final rule establishing a tolerance for residues of penthiopyrad in or on multiple commodities based on the Agency's conclusion that aggregate exposure to penthiopyrad is safe for the general population, including infants and children. See 84 FR 26352 (FRL-9994-08). Please refer to the following sections of the previous tolerance rulemaking that contain information that has remained the same under the current risk assessment for this rulemaking: Units III.A (Toxicological Profile); III.B (Toxicological Points of Departure/Levels of Concern); III.C (Exposure Assessment), except as explained in the next paragraph; and III.D (Safety Factor for Infants and Children).

Updates to exposure assessment. The Agency conducted an updated risk assessment to evaluate exposure to residues of penthiopyrad on persimmon. EPA's acute and chronic dietary (food and drinking water) exposure assessments have been updated to include the additional exposure from use of penthiopyrad on persimmon. As to residue levels in food, the dietary exposure assessments are based on tolerance-level residues and assumed 100 percent crop treated (PCT). There will be no U.S. registrations for use of penthiopyrad on persimmon, and there is no proposed new residential use. Therefore, EPA's assessments of dietary exposure from drinking water and non-dietary ( i.e., residential) exposure, as well as cancer classification and cumulative effects from substances with a common mechanism of toxicity, have not changed and are described in the previous tolerance rulemaking.

Assessment of aggregate risks. Acute aggregate risk estimates are equal to acute dietary (food and drinking water) risk estimates, which are below the Agency's level of concern of 100% of the acute population adjusted dose (aPAD): The exposure estimate is 20% of the aPAD at the 95th percentile of exposure for infants less than 1 year old, which is the population subgroup with the highest exposure estimate. Chronic aggregate risk estimates are equal to chronic dietary (food and drinking water) risk estimates, which are below the Agency's level of concern of 100% of the chronic population adjusted does (cPAD): The exposure estimate is 28% of the cPAD for infants less than 1 year old, which is the population subgroup with the highest exposure estimate. Short-term aggregate risk estimates are equal to the most conservative residential exposure estimates plus chronic dietary exposure estimates (considered to be background dietary exposure). For adults, the most conservative residential exposure estimate is dermal exposure through high contact lawn activity, with a margin of exposure (MOE) above the Agency's level of concern of 100 (MOE = 560). For children, the most conservative residential exposure estimate is combined dermal and incidental oral exposure through high contact lawn activity, with an MOE above the Agency's level of concern of 100 (MOE = 270). Moreover, the children 1 to less than 2 years old population subgroup was chosen for the short-term aggregate risk estimate for children, since the exposure estimate for this subgroup is protective for all other children subpopulations. Considering both the chronic dietary (food and drinking water) exposures and the high contact lawn activity residential exposures for both adults and children, EPA has concluded the short-term aggregate MOEs are 440 and 220 for adults and children, respectively, which are above the level of concern of 100 and therefore are not of concern.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to penthiopyrad residues. More detailed information on the subject action to establish a tolerance in or on persimmon can be found in the document entitled, “Penthiopyrad. Human Health Risk Assessment for the Proposed Tolerance Without a U.S. Registration on Persimmon.” dated 12/14/2020 at www.regulations.gov, under docket ID number EPA-HQ-OPP-2019-0531.

Adequate enforcement methodology (a liquid chromatography-tandem mass spectrometry (LC/MS/MS) method known as Method CEM 3399-001) is available to enforce penthiopyrad tolerances. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). Codex is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The established Codex MRL for penthiopyrad in persimmons is 0.4 mg/kg. The 3 ppm tolerance being established is harmonized with the existing Japanese MRL of 3 ppm instead, which is consistent with the tolerance value requested by the petitioner. According to the registrant, the locations of the field trials for residue data reflect the primary importation of persimmon from Japan. The registrant cited USDA Economic Research Service data indicating that Spain, Israel, and Chile are the only countries with >5% imports of persimmons into the United States. The registrant indicated that penthiopyrad is registered in Spain and Israel but not on persimmon and that penthiopyrad is not registered in Chile. Therefore, the registrant posits that the only importing country on which penthiopyrad would be registered for use on persimmon would be Japan.

The Agency is setting a tolerance in or on persimmon of 3 ppm rather than the petitioned-for tolerance value of 3.0 ppm. This value is in accordance with the Organization for Economic Cooperation and Development (OECD) MRL calculation procedure's rounding class practices.

Therefore, tolerances are established for residues of penthiopyrad ( N -[2-(1,3-dimethylbutyl)-3-thienyl]-1-methyl-3-(trifluoromethyl)-1 H -pyrazole-4-carboxamide) in or on persimmon at 3 ppm.

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

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

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has

This is a summary of the Commission's Second Report and Order, Order on Reconsideration, and Order of Proposed Modification in WT Docket No. 19-348, FCC 21-32, adopted on March 17, 2021, and released on March 18, 2021. The full text of this document including all Appendices, is available for public inspection at the following internet address: https://docs.fcc.gov/public/attachments/FCC-21-32A1.pdf. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to FCC504@fcc.gov or calling the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (TTY).

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 the Second Report and Order on small entities. As required by the Regulatory Flexibility Act, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Further Notice of Proposed Rulemaking ( FNPRM ) released in October 2020 in this proceeding (85 FR 66888, October 21, 2020). The Commission sought written public comment on the proposals in the FNPRM , including comments on the IRFA. No comments were filed addressing the IRFA. This FRFA conforms to the RFA. The Commission will send a copy of the Second Report and Order, Order on Reconsideration, and Order of Proposed Modification, and Orders , including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

This document contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, it contains new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

The Commission will send a copy of the Second Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

In the Second Report and Order the Commission takes steps to advance Congressional and Commission objectives to make more mid-band spectrum available for fifth generation wireless services, or 5G. Specifically, the Commission begins implementation of the Beat China by Harnessing Important, National Airwaves for 5G Act of 2020 (Beat CHINA for 5G Act of 2020), Consolidated Appropriations Act, 2021, Public Law 116-260, Division FF, Title IX, Sec. 905, which requires the Commission to start an auction to grant new initial licenses subject to flexible use in the 3450-3550 MHz (3.45 GHz) band by December 31, 2021. Together with its Federal partners in the Executive Branch, including the White House Office of Science and Technology Policy and National Economic Council, the National Telecommunications and Information Administration (NTIA), and the Department of Defense (DoD), the Commission has worked with unprecedented speed and collaboration to make 100 megahertz of mid-band spectrum in the 3.45 GHz band available for flexible use. The Commission's framework will enable full-power commercial use ( i.e., non-Federal, primary, flexible use, including for private mobile radio services) of this band and require that future licensees deploy their networks quickly, so that that this spectrum is in put in service of the American people. The Commission also takes steps to balance the needs of Federal incumbents where and when they require continued access to the band and relocates important non-Federal weather forecasting services so that they are not adversely impacted by the Commission's actions. Collectively, the 3.45 GHz band and the neighboring 3.5 GHz and 3.7 GHz bands will offer 530 megahertz of contiguous mid-band spectrum for 5G services.

The lower 3 GHz band—and the 3450 MHz to 3550 MHz portion of the band (3.45-3.55 GHz band) in particular—has been targeted as spectrum to support 5G both here and abroad, and assessed within the Federal Government, across the legislative and executive branches, as well as within the Commission. The National Telecommunications and Information Administration (NTIA) identified the 3450-3550 MHz spectrum band as a potential candidate for shared use between Federal incumbents and commercial services two years ago. In 2018, Congress passed the Fiscal Year 2018 omnibus spending bill, which directed NTIA to work with the Commission on identifying sharing opportunities in the 3.1-3.55 GHz band.

Congress addressed the pressing need for spectrum to support broadband, including mid-band spectrum, in the Fiscal Year 2018 omnibus spending bill, which included the Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act (MOBILE NOW Act) under Title VI of RAY BAUM'S Act. See Consolidated Appropriations Act, 2018, Public Law 115-141, Division P, the Repack Airwaves Yielding Better Access for Users of Modern Services (RAY BAUM'S) Act, Title VI (the Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act or MOBILE NOW Act). The MOBILE NOW Act mandated that the Secretary of Commerce, working through NTIA: (1) Submit, in consultation with the Commission, a report by March 23, 2020, on the feasibility of “allowing commercial wireless service, licensed or unlicensed, to share use of the frequencies between 3100 megahertz and 3550 megahertz, and (2) identify with the Commission “at least 255 megahertz of Federal and non-Federal spectrum for mobile and fixed wireless broadband use” by December 31, 2022. MOBILE NOW Act section 605(a). Shortly before Congress signed the 2018 omnibus spending bill, NTIA announced that it had identified the 3.45-3.55 GHz band for study for potential repurposing to spur commercial wireless innovation. In 2020, the White House and the DoD formed America's Mid-Band Initiative Team (AMBIT) with the goal of making 100 megahertz of contiguous mid-band spectrum available in the 3.45-3.55 GHz band for full commercial use.

In December 2020, Congress adopted the Beat CHINA for 5G Act of 2020. The Act requires NTIA, no later than June 25, 2021, to “begin the process of withdrawing or modifying the assignments to Federal Government stations of the [3.45 GHz band] as necessary” for the Commission to reallocate and auction the band for flexible commercial use. Beat CHINA for 5G Act of 2020 section 905(c)(1). The Act further requires the Commission to begin a system of competitive bidding to grant new initial licenses for the use of a portion or all of the 3.45 GHz band, subject to flexible-use service rules, no later than December 31, 2021. Beat CHINA for 5G Act of 2020 section 905(d)(1)(B). Finally, the Act provides an exemption to the 18-month FCC auction notification requirement in the Commercial Spectrum Enhancement Act (CSEA). Id. section 905(d)(2); 47 U.S.C. 923(g)(4)(A)

In September 2020, the Commission released a Report and Order (85 FR 64062, October 9, 2020) and the FNPRM. The Report and Order adopted the Commission's 2019 proposal (85 FR 3579, January 22, 2020) to remove the secondary, non-Federal allocations from the 3.3-3.55 GHz band. The FNPRM proposed: (1) Allocation changes to the 3.3-3.55 GHz band to enable future commercial use; (2) coordination between future flexible-use licensees and Federal incumbents that remain in the band; (3) relocation logistics for non-Federal secondary users; and (4) the technical, licensing, and operating rules that would create a successful coordination regime both within the band and with Federal and non-Federal operations in adjacent bands.

Consistent with the Beat CHINA for 5G Act of 2020, the Commission adopts its proposal to add a primary non-Federal fixed and mobile, except aeronautical mobile, allocation to the 3.45 GHz band nationwide. As the Commission noted in the FNPRM, section 303(y) provides the Commission with authority to allocate spectrum for flexible use if: “(1) such use is consistent with international agreements to which the United States is a party; and (2) the Commission finds, after notice and opportunity for public comment, that (A) such an allocation would be in the public interest; (B) such use would not deter investment in communications services and systems, or technology development; and (C) such use would not result in harmful interference among users.” 47 U.S.C. 303(y)

The Commission's proposed non-Federal allocation is consistent with and furthers these goals for several reasons. First, the allocation is consistent with international agreements. Indeed, it will harmonize the Commission's allocation for the 3.45 GHz band with international allocations. As 5G Americas notes, there is now a critical mass of countries that have auctioned or otherwise made spectrum available in the 3.3-4.2 GHz range (band n77). Second, the proposed allocation will make more critical mid-band spectrum available for 5G and other advanced wireless services (AWS). The allocation will foster more intensive 5G use of mid-band spectrum to facilitate and incentivize investment in next-generation wireless services. Third, the Commission expects that the allocation will promote investments in the band by flexible-use licensees. Mid-band spectrum is particularly well-suited for 5G buildouts due to its desirable mix of coverage, capacity, and propagation characteristics, and the Commission anticipates that this spectrum will attract significant investment from 5G network operators. Finally, the Commission's actions in the Second Report and Order will promote effective coordination between new flexible-use licensees and remaining incumbent Federal operations. No commenter disagrees with the Commission's proposed flexible-use allocation under section 303(y). Accordingly, the Commission adopts the proposal to add a primary non-Federal fixed and mobile, except aeronautical mobile, allocation to the 3.45 GHz band nationwide.

Although the Commission allocates the 3.45 GHz band for non-Federal fixed and mobile (except aeronautical mobile) operations nationwide, at this time, as discussed below, it will only license this band for non-Federal operations in the contiguous United States because the AMBIT efforts limited their focus to the contiguous United States.

The 3.45 GHz band currently is used by the DoD for high- and low-powered radar systems on a variety of platforms in the 3 GHz band, including fixed, mobile, shipborne, and airborne operations. Both NTIA and the AMBIT efforts identified the 3.45 GHz band for cooperative sharing between incumbent DoD operations and new commercial operators, under which commercial providers will be able to use the band on an unrestricted basis, except under a few limited circumstances (described below). Consistent with the conclusions of the Commission's Federal partners, the Commission adopts a cooperative sharing regime for the 3.45 GHz band.

Under this framework, non-Federal systems generally will have unencumbered, full-power use of the entire band across the contiguous United States and, with limited exceptions, Federal systems operating in the band may not cause harmful interference to non-Federal operations in the band. In limited circumstances and in locations where current incumbent Federal systems will remain in the band, however, non-Federal systems will not be entitled to protection against harmful interference from Federal operations (and limited restrictions will be placed on non-Federal operations). These exceptions will occur only in geographic areas specifically identified as Cooperative Planning Areas and Periodic Use Areas. NTIA describes these areas as key military training facilities, important test sites, and strategically significant Navy home ports and shipyards. NTIA stresses that these areas are not exclusion zones. The Commission emphasizes that commercial operations are not precluded within Cooperative Planning Areas and Periodic Use Areas. Rather, incumbent Federal operations and new flexible-use operations must coordinate with each other to facilitate shared use of the band in these specified areas and during specified time periods. The coordination regime the Commission adopts is intended to minimize the impacts from incumbent Federal operations on future commercial operations while still enabling effective Federal operations where and when necessary, given the need to preserve military readiness and capabilities and support real-world operations when required.

This coordination regime builds upon the AWS-3 framework and incorporates lessons learned from AWS-3 and other shared services, such as the Citizens Broadband Radio Service. As with those services, and with AWS-3 in particular, new flexible-use 3.45 GHz Service licensees must coordinate with DoD incumbents to facilitate shared use of the band, here within Cooperative Planning Areas and Periodic Use Areas. But beyond simply coordinating within those areas, Federal and non-Federal operators are encouraged to enter into mutually acceptable operator-to-operator agreements to permit more extensive flexible use within Cooperative Planning and Periodic Use Areas by agreeing to a technical approach that mitigates the interference risk to Federal operations. The current parameters of Cooperative Planning and Periodic Use areas, as discussed further below, are the default, but in practice should be a starting point for negotiations between flexible-use licensees and Federal incumbents; more expansive use by the flexible-use licensee can be agreed to in areas and under circumstances or parameters acceptable to the Federal incumbent. The Commission adopts this progression in coordination regimes to unleash mid-band spectrum for next-generation wireless services. Further, this approach is consistent with the AMBIT's goal of providing immediate, full power, commercial access to 100 megahertz of contiguous spectrum between 3.45-3.55 GHz, to the maximum extent possible. The coordination framework will benefit consumers as well as Federal agencies and the military, as they can also take advantage of these additional commercial broadband and 5G networks and the economies of scale they create.

Definitions. —During the AMBIT efforts, the DoD identified a list of “Cooperative Planning Areas,” within which it anticipates that Federal operations will continue after the assignment of flexible-use licenses in the band. These areas are limited in size and scope and include military training facilities, test sites, Navy home ports, and shipyards. The Commission defines Cooperative Planning Areas as geographic locations in which non-Federal operations shall coordinate with Federal systems in the band to deploy non-Federal operations in a manner that shall not cause harmful interference to Federal systems operating in the band. In these areas, operators of non-Federal stations may be required to modify their operations ( e.g., reduce power, add filters adjust antenna pointing angles, install shielding, etc.) to protect Federal operations against harmful interference and to avoid, where possible, interference and potential damage to the non-Federal operators' systems. Further, in these areas, non-Federal operations may not claim interference protection from Federal systems. However, Federal and non-Federal operators may reach mutually acceptable operator-to-operator agreements to permit more extensive non-Federal use by identifying and mutually agreeing upon a technical approach that mitigates the interference risk to Federal operations. To the extent that high-powered Federal operations will remain that may cause harmful interference to commercial operations, NTIA has recommended that Federal operators should share information about these risks with the commercial operators in the context of coordination agreements. NTIA states that, “[t]o the extent possible, Federal use in Cooperative Planning Areas will be chosen to minimize operational impact on non-Federal users.” Letter from Charles Cooper, Associate Administrator, NTIA, to Ronald T. Repasi, Acting Chief, OET, FCC and Donald Stockdale, Chief, WTB, FCC, WT Docket No. 19-348, at Enclosure 1 (filed Sept. 8, 2020) (NTIA 2020 Ex Parte Letter).

The Commission includes in part 2 of its rules a more detailed list of parameters for such areas that NTIA has provided. For each Cooperative Planning Area, the Commission provides either a point and radius or a series of geographic coordinates (which create a polygon) to define the boundary of the area. Using this information, potential bidders will be able to determine precisely which areas will require coordination with the DoD. NTIA states that the DoD will create a workbook, similar to the one that it created in the AWS-3 transition, to provide potential bidders with additional information about these areas before bidding commences in the Commission's auction.

In addition, the DoD has identified several “Periodic Use Areas” that overlap with certain Cooperative Planning Areas. In these Periodic Use Areas, the DoD will need episodic access to all or a portion of the band in specific, limited geographic areas, in which it will coordinate with affected licensees for specific times and bandwidths. Accordingly, the Commission defines Periodic Use Areas as geographic locations in which non-Federal operations in the band shall not cause harmful interference to Federal systems operating in the band for episodic periods. Moreover, during these times and in these areas, Federal users will require interference protection from non-Federal operations. As with Cooperative Planning Areas, within Periodic Use Area, operators of non-Federal stations may be required to temporarily modify their operations ( e.g., reduce power, filtering, adjust antenna pointing angles, shielding, etc.) to protect Federal operations from harmful interference, which may include restrictions on non-Federal stations' ability to radiate at certain locations during specific periods of time. During such episodic use, non-Federal users in Periodic Use Areas must alter their operations to avoid harmful interference to Federal systems' temporary use of the band, and during such times, non-Federal operations may not claim interference protection from Federal systems. However, Federal and non-Federal operators may reach mutually acceptable operator-to-operator agreements such that a Federal operator may not need to activate a Periodic Use Area if a mutually agreeable technical approach mitigates the interference risk to Federal operations. NTIA notes that, “[t]o the extent possible, Federal use in Periodic Use Areas will be chosen to minimize operational impact on non-Federal users.” NTIA 2020 Ex Parte Letter at Enclosure 1. The Commission notes that “[r]estrictions and authorizations for the Cooperative Planning Areas remain in effect during periodic use unless specifically relieved in the coordination process.”

The Commission includes a list of Periodic Use Areas in part 2 of its rules. As with Cooperative Planning Areas, the Commission provides either a point and radius or a series of coordinates (which create a polygon) to define the boundaries of the area within which future licensees must coordinate with the DoD. In both Cooperative Planning and Periodic Use Areas, the coordination procedures the Commission adopts in the Second Report and Order will ensure maximum possible use of flexible-use licenses while allowing the DoD to continue to operate in these areas with protection against harmful interference adequate to preserve military readiness, capabilities, and national security.

Parameters. —NTIA and the DoD identified 33 Cooperative Planning Areas, 23 of which overlap with Periodic Use Areas. In defining each area, the DoD's analysis employed certain assumptions and parameters, including: (1) 5G networks operating at a maximum power of 1640 watts/MHz in urban environments and 3280 watts/MHz in non-urban environments; (2) an EMI threshold of −35dBm/m2 peak power density from the nearby radar; and (3) damage to 5G networks calculated at a threshold of +35dBm/m2 peak power density from the nearby radar. In the event that the DoD modifies its use in any existing Cooperative Planning or Periodic Use Area so as to decrease the size of such area, the Commission delegates authority to the Wireless Telecommunications Bureau and the Office of Engineering and Technology, in coordination with NTIA, to reflect such smaller areas in its rules. In this regard, the Commission notes that the existing Cooperative Planning and Periodic Use Areas identified by the rules adopted in the Second Report and Order cannot be increased in size, and no Cooperative Planning Area or Periodic Use Area not so identified can be added in the contiguous United States.

In general, 3.45 GHz Service licensees will be able to operate within each Cooperative Planning Area, but may need to plan their network layout, choose power levels and antennas, and install filters and shielding, to maximize flexible use of the band, consistent with operator-to-operator agreements they enter into with DoD operators. In certain locations, the DoD operates high-powered radars. Flexible-use licensees must accept interference from these high-powered DoD radars within the Cooperative Planning and Periodic Use Areas, unless the operators are able to reach an agreement that provides additional assurances or protections to each operator. NTIA recommends that “to the extent that higher power DoD radars located at the CPAs [Cooperative Planning Areas] labeled in [part 2, appendix A of the Commission's rules] may cause harmful interference to commercial operations within these zones, . . . DoD and licensees [should] include in coordination agreements language that acknowledges the risks of harmful interference inside of these zones (along the lines set forth in the AWS-3 coordination agreement template).” Letter from Charles Cooper, Associate Administrator, NTIA, to Ronald T. Repasi, Acting Chief, OET, FCC and Joel Taubenblatt, Acting Chief, WTB, FCC, WT Docket No. 19-348, at 4 (filed Feb. 19, 2021) (NTIA 2021 Ex Parte Letter). In other areas where the DoD operates low-power radars, the Commission expects that the DoD will coordinate with flexible-use licensees for an agreeable path forward. An operator-to-operator agreement could include network deployment plans that minimize impacts on DoD operations, while enabling the widest flexible-use deployments possible. The Commission notes that, unless the entire 3.45 GHz Service licensed area falls within a Cooperative Planning Area or Periodic Use Area, cooperative sharing will only take place in those portions of a licensee's geographic licensed area that fall within the defined boundaries of a Cooperative Planning Area or Periodic Use Area, and not across the entire licensed area. In other words, outside of the defined boundaries of the Cooperative Planning Area or Periodic Use area, the 3.45 GHz Service licensee will have unencumbered use of the band.

The Commission reiterates that the Cooperative Planning and Periodic Use Areas are not exclusion zones, because licensees will be permitted to operate in these areas subject to the coordination requirements, and these zones were developed based on the Commission's proposed power limits and assuming relatively high antenna heights. In practice, the Commission expects that the areas in which flexible-use licensees may need to adjust their networks will be smaller than the areas encompassed by the Cooperative Planning and Periodic Use Area boundaries the Commission is adopting. First, actual flexible-use operations are likely to use lower towers and lower power than the maximum tower heights and power levels permitted under the Commission's rules, which NTIA and the DoD used in their analyses to generate the Cooperative Planning Areas and Periodic Use Areas. NTIA expects that this “should result in greater industry access to the spectrum in and around the CPAs and PUAs [Periodic Use Areas].” NTIA 2021 Ex Parte Letter at 3. Second, non-Federal licensees can coordinate with Federal users and enter into operator-to-operator agreements so that new commercial operations would not interfere with protected incumbent Federal systems, or so that any risk of harmful interference to non-Federal operations is mitigated so long as the non-Federal users are operating pursuant to the agreement. For example, as NTIA notes, the DoD could agree to not activate a PUA if a mutually agreeable technical interference mitigation approach is identified. Absent an operator-to-operator agreement permitting more extensive use within a Cooperative Planning or Periodic Use Area, a 3.45 GHz Service licensee must protect Federal incumbents against harmful interference within the area parameters denoted in the table in footnote US431B of § 2.106 of the Commission's rules.

Fort Bragg and Little Rock. —In all but two of the Cooperative Planning and Periodic Use Areas, 3.45 GHz Service licensees must coordinate with the DoD across all 100 megahertz of the spectrum within the areas. In the Fort Bragg, North Carolina, Cooperative Planning Area and Periodic Use Area, in contrast, licensees will only need to coordinate in the lower 40 megahertz of the band, i.e., between 3450-3490 MHz. NTIA indicates that the DoD will only use the lower 40 megahertz of the band in this area, leaving the upper 60 megahertz unencumbered and available for full-power, flexible-use operations in accordance with the rules adopted herein. Thus, licensees in the upper portion of the band, i.e., between 3490-3550 MHz, need not coordinate with the DoD in these areas.

In the Little Rock, Arkansas Cooperative Planning Area, for approximately the first 12 months following the close of the auction for this band, licensees will have to coordinate with the DoD across all 100 megahertz of the spectrum within those areas. After this time period, however, licensees will only need to coordinate in the lower 40 megahertz of the band, as the DoD states that it will vacate the upper 60 megahertz, i.e., between 3490-3550 MHz, by that time.

Federally Authorized Contractor Test Facilities. —Consistent with the FNPRM and with NTIA authorizations, Federally Authorized Contractor Test (FACT) facilities that operate within a Cooperative Planning Area or Periodic Use Area pursuant to a NTIA authorization will be treated the same as other Federal facilities within such areas. NTIA authorizes radio stations belonging to and operated by the United States. To the extent that NTIA has authorized such stations to operate within a FACT, those operations should be entitled to the same protections as other Federal operations within Cooperative Planning Areas or Periodic Use Areas, consistent with their NTIA authorizations.

In this context, the Aerospace Industries Association asks the Commission to refine its coordination requirements to include protection for future non-Federal experimental operations at facilities located within Cooperative Planning Areas, as well as experimental operations at the small number of non-Federal facilities that are located outside of Cooperative Planning Areas. The Aerospace Industries Association also asks that the Commission impose coordination obligations for non-Federal test facilities wholly located within Cooperative Planning Areas. Further, the Aerospace Industries Association asks that a coordination process be created either by the National Defense Industrial Association Spectrum Working Group or the Commission to coordinate operations at testing facilities not wholly located within Cooperative Planning Areas. NTIA notes that several radar manufacturing and integration facilities require access to the 3.45 GHz band to perform experimentation and testing for radionavigation and other systems contracted for by Federal agencies. According to NTIA, these facilities typically operate outdoors to accommodate physically large operational systems and NTIA states that these facilities must retain access to the spectrum for testing and experimentation to ensure that agencies' contracting requirements can be fulfilled. NTIA requests that the Commission continue to work with NTIA, the DoD, and other concerned stakeholders to develop a coordination framework to ensure that these non-Federal experimental licensees in the 3.45 GHz band are able to continue to access spectrum to support their critical functions in support of the DoD, in a way that minimizes potential impacts to the 3.45 GHz Service.

The Commission recognizes that the DoD has expended significant time and resources to craft limited Cooperative Planning Areas or Periodic Use Areas that maximize new commercial operations while still allowing effective mission-critical DoD uses. While the DoD's calculations and assessments do not consider future operations by non-Federal radiolocation experimental licensees within or outside these areas, the Commission agrees that these contractor facilities have needs to access the spectrum for testing and experimentation as the Commission has recognized in authorizing various part 5 experimental authorizations. Protection of such operations by rule is outside the scope of the AMBIT efforts. Further, expanding protection to future non-Federal operations at FACT facilities would create uncertainty for potential bidders considering commercial deployments in the band. The Commission notes, however, that non-Federal entities will continue to be able to obtain experimental licenses for such testing under its part 5 rules, which limit experimental use to operations on a non-interference basis and generally require licensees to notify or coordinate with incumbent spectrum users to avoid causing harmful interference. Accordingly, the Commission does not extend coordination obligations on commercial licensees for existing or future non-Federal radiolocation operations authorized under part 5 of the rules regardless of whether they are located either inside or outside of Cooperative Planning Areas or Periodic Use Areas. The Commission expects all future commercial licensees to cooperate with part 5 licensees when presented with requests for experimentation and testing in the 3.45 GHz band to enable continued development and upgrades of essential DoD systems. Moreover, the Commission encourages all stakeholders to work with the National Defense Industrial Association Spectrum Working Group to develop mutually agreeable practices regarding experimental use of the band for defense radar testing and development. The Commission will monitor the results of this approach and may revisit it as necessary based on the experience of experimental and 3.45 GHz Service licensees. To that end, the Commission encourages parties to provide the Commission with information on this approach if needed.

In light of NTIA's February 2021 letter stating that no specific provision in US431B is needed for Federal use during time of national emergency, the Commission does not adopt such a provision. The Commission agrees with NTIA that section 706(c) of the Communications Act and other relevant authorities provide sufficient ability for the DoD to access the band in the extraordinary circumstances under which a national emergency might necessitate access to the 3.45 GHz band. Accordingly, the Commission need not modify the existing regulatory framework that applies generally to all bands in this regard.

In the FNPRM, the Commission, noting that the DoD may require access to the band during times of national emergency to fulfill military operational needs, proposed that Federal users should be authorized to operate within the band pursuant to existing radiolocation authorizations as required to meet operational mission requirements during national emergencies. Numerous commenters ask that the Commission clearly delineate the boundaries of this use and any related coordination procedures.

In response to these comments and upon further review of this issue, NTIA and the DoD now agree that a specific national emergency provision in footnote US431B is not necessary. The Commission agrees with this assessment. Instead of imposing a specific provision for national emergencies, in the extremely rare circumstances under which such operational needs may arise, NTIA states that such operational needs can be accommodated in the 3.45 GHz band (as well as other bands) under and consistent with section 706(c) of the Communications Act and other relevant authorities. Under section 706(c), a national emergency would be triggered by a “proclamation by the President that there exists a war or threat of war or a state of public peril or disaster or other national emergency.” 47 U.S.C. 606(c). While similar language was proposed by NTIA for footnote US431B to the Table of Allocations, NTIA now states that this band-specific provision in an allocation footnote is not required in light of existing statutory authorities.

The Commission agrees with commenters and NTIA that a band-specific national emergency provision in US431B is not required and accordingly, it will not adopt the prior proposal in this regard. The Commission reminds future 3.45 GHz Service licensees, however, that pursuant to section 309(h) of the Communications Act, every FCC license shall be subject in terms to the right to use or control conferred by section 706 of this Act. Similarly, nothing under the Commission's auction authority or in the use of competitive bidding shall limit or otherwise affect the requirements of section 309(h), section 706, or any other relevant provisions of the Communications Act. Although NTIA recognizes prospective bidders' need for adequate information to assess risks and prepare business plans for the band, it acknowledges that it would be difficult to provide absolute certainty and predictability regarding the situations under which section 706 (or other authorities) might be invoked. Nonetheless, NTIA notes that additional information may be provided through upcoming workshops or other appropriate venues.

Before a commercial licensee commences operations in a Cooperative Planning Area or Periodic Use Area, it must first successfully coordinate with the Federal incumbent. The purpose of coordination is to facilitate shared use of the band in these specified areas and during specified time periods. The coordination procedures outlined here will apply to all 3.45 GHz Service licensees seeking to operate in a Cooperative Planning Area or Periodic Use Area, unless the 3.45 GHz Service licensee and the DoD have reached a mutually agreeable coordination arrangement that provides otherwise. Such arrangements could, for example, document specific notification and activation procedures. While the Commission provides a general description of these procedures here, additional coordination requirements, procedures, and scenarios may be developed, consistent with any Administrative Procedure Act or other legal requirement that may apply, in future public notices, specific operator-to-operator agreements, or other mechanisms. The Commission expects 3.45 GHz Service licensees and Federal incumbents to negotiate in good faith throughout the coordination process ( e.g., sharing information about their respective systems and communicating results to facilitate commercial use of the band).

Contact. —The DoD will create an online portal through which a 3.45 GHz Service licensee must initiate formal coordination requests for its relevant systems within associated Cooperative Planning Areas and/or Periodic Use Areas. In addition, according to NTIA, an Incumbent Informing Capability (IIC) also could be developed to facilitate coordination within the Periodic Use Areas. The DoD would use the IIC to schedule the time and frequency span for each episodic use.

Informal Discussions. —Before a 3.45 GHz Service licensee submits a formal coordination request, it may share draft proposals or request that Federal incumbent coordination staff discuss draft coordination proposals. These discussions are voluntary, informal, and non-binding and can begin at any time. 3.45 GHz Service licensees may discuss their proposed deployments and seek guidance on appropriate measures to ensure that electromagnetic compatibility (EMC) analyses produce positive results. 3.45 GHz Service licensees and Federal representatives also may develop an analysis methodology that reflects the characteristics of licensees' proposed deployments and the Federal incumbents' operation. These discussions also can involve developing a process for identification and resolution of interference.

Informal discussions are intended to allow the Federal incumbent and 3.45 GHz Service licensee to share information about their respective system designs and to identify potential issues before a formal coordination request is submitted through the DoD online portal. The Federal incumbents involved, unless they specify otherwise in writing, would not be committing to any final determination regarding the outcome of the formal coordination. The Commission strongly encourages parties to use informal, non-binding discussions to minimize or resolve basic methodological issues upfront, before having the 3.45 GHz Service licensees submit formal coordination requests. Federal incumbents' transition plans will identify a point of contact that a licensee may contact to initiate informal discussions.

Formal Coordination. —Coordination shall be initiated by the 3.45 GHz Service licensee by formally requesting access to operate within a Cooperative Planning Area and/or Periodic Use Area. This request should be made directly through the DoD online portal. The 3.45 GHz Service licensee must set up its portal account and, once established, the 3.45 GHz Service licensee will receive a user guide and training on the use of the portal and, if applicable, the IIC.

Initiation, Timing, and Affirmative Concurrence. —Unless otherwise agreed between a 3.45 GHz Service licensee and the relevant Federal incumbent, no formal coordination requests may be submitted until nine (9) months after the date of the auction closing Public Notice. 3.45 GHz Service licensees may request informal discussions during this nine-month time period, however, using the point of contact identified in the applicable Transition Plan.

After the first nine (9) months following the close of the auction, the Commission expects that NTIA will require Federal incumbents to review and respond to formal coordination requests made through the portal in a timely manner. The Commission encourages licensees and incumbents, through informal discussions, to prioritize formal coordination requests as appropriate to avoid an overwhelming influx of coordination requests at the conclusion of the nine (9) month quiet period. This will help maximize the quick and efficient review of coordination requests.

Unless otherwise agreed to in writing, the requirement to reach a coordination arrangement is satisfied only by obtaining the affirmative concurrence of the relevant Federal incumbent(s) via the portal. This requirement is not satisfied by omission. The Commission expects that contact information and further details on Federal notification and coordination requirements will be included in a future public notice jointly issued by the Commission and NTIA.

Submission Information. —To submit a formal coordination request, the 3.45 GHz Service licensee must include information about the technical characteristics for its base stations and associated mobile units relevant to operation within the Cooperative Planning Area and/or Periodic Use Area. This information should be provided in accordance with the instructions provided in the DoD's online portal user's guide. The Commission expects that the data fields in the portal will include basic technical operating parameters ( e.g., system technology, mobile EIRP, frequency block, channel bandwidth, site name, latitude, and longitude). The Commission also anticipates that the portal will accept attachments that include narratives that explain area-wide deployments.

3.45 GHz Service licensees must prioritize their deployments in the Cooperative Planning Area and/or Periodic Use Area for each Federal incumbent when submitting a formal coordination request. If a licensee is seeking to coordinate with multiple systems or multiple locations of operation controlled by one Federal incumbent, it must specify the order in which it prefers the Federal incumbent process the request ( i.e., the order of systems or geographic locations).

Coordination Analysis. —If a 3.45 GHz Service licensee has questions about the result of a coordination request, it may contact the Federal incumbent to propose network design modifications to help address EMC issues raised by the Federal incumbent. The Federal incumbent, where feasible, may review revised technical proposals from the 3.45 GHz Service licensee. Once the 3.45 GHz Service licensee has revised its network design, it must resubmit a formal coordination request, and the 3.45 GHz Service formal coordination process begins again.

The Commission stresses the benefits of informal discussions among 3.45 GHz Service licensees and Federal incumbents, including during the formal coordination process. While in many cases, Federal incumbent staff may be unable to provide specific information about the protected Federal operations and are not responsible for designing the 3.45 GHz Service system, they may offer some suggestions on how to address or mitigate the issue, given the limited information that can be made available on some Federal systems.

Dispute Resolution. —If disputes arise during the coordination process, the Commission strongly encourages parties to negotiate in good faith to resolve them. If a 3.45 GHz Service licensee believes that a Federal incumbent is not negotiating in good faith, the licensee may seek the assistance of NTIA or it can inform the Commission. If a Federal incumbent believes that a 3.45 GHz Service licensee is not negotiating in good faith, it could nonetheless timely respond to a formal request and would have the option to seek assistance from NTIA and/or the Commission. The Commission encourages parties to enter into operator-to-operator agreements that have dispute resolution provisions for any or all possible disputes. If a dispute arises between an incumbent Federal entity and a 3.45 GHz Service licensee over an operator-to-operator agreement, provisions calling for informal negotiation, mediation, or non-binding arbitration efforts between the parties will help to clearly define and narrow the issues for formal agency resolution by NTIA, the Commission, or both agencies acting jointly, as applicable.

Sharing of Sensitive and Classified Information. —Given the classified and sensitive nature of some of the information to be shared by the DoD for effective coordination in the band, the Commission expects that NTIA and the DoD will develop procedures, methods, and means for sharing such information ( e.g., through the “Trusted Agent” process).

Notification Procedures for Periodic Use Areas. —The Commission anticipates that NTIA will establish notification procedures to govern the DoD's required episodic access to the 3.45 GHz band in Periodic Use Areas. Specifically, the Commission expects that the 3.45 GHz Service licensee(s) and the Federal incumbent will establish operator-to-operator agreements that detail notification processes and timelines prior to the initiation of commercial operations within the Periodic Use Area. The operator-to-operator agreement could, for example, specify the notification process, content, and timelines ( i.e., the starting and ending dates and times of such use). The agreements also may specify that the 3.45 GHz Service licensee(s) and the Federal incumbent may use a scheduling tool to complete the notification process or agree to technical limitations to commercial operations ( e.g., reduced power levels and antenna pointing angles in lieu of a notification process). The Commission believes that this approach will provide maximum flexibility for the 3.45 GHz Service licensee and the Federal incumbent to develop tailored solutions.

Interference Resolution Process. —The introduction of non-Federal, flexible-use licenses increases the possibility that interference will occur between the new entrants and incumbent Federal users. As reflected in the new footnote US431B to the Table of Allocations, flexible-use licensees in both types of coordination areas (Cooperative Planning Areas and Periodic Use Areas) must not cause harmful interference to Federal users, and Federal users should minimize the operational impact on non-Federal users. Furthermore, 3.45 GHz Service licensees cannot claim interference protection within the coordination areas, absent an operator-to-operator agreement that specifies otherwise. In instances of identified harmful interference occurring between a Federal and non-Federal operator not addressed by the coordination procedures or operator agreements, the 3.45 GHz Service licensee shall first attempt to resolve the interference directly. If that effort is unsuccessful, the 3.45 GHz Service licensee, if adversely affected, may escalate the matter to the Commission.

Future Workshops and Workbooks. —Commenters widely support the use of workshops to collaborate and coordinate between industry stakeholders and the DoD. NTIA states that it will work with the DoD will make additional information available via a variety of means, including the posting of approved transition plans and a workbook similar to the DoD's AWS-3 Workbook, as well as through upcoming workshops. According to NTIA, such supplemental information will likely include updates on the coordination portal and IIC developments and procedures, as well as guidance on anticipated received power levels from the DoD's high-powered operations, methods and means for sharing proprietary and classified information ( e.g., through “Trusted Agents”), and descriptions of potential national emergency scenarios.

Federal use of the radio spectrum is generally governed by NTIA while non-Federal use is governed by the Commission. Accordingly, NTIA and the Commission may decide that jointly issued further guidance or details concerning Federal/non-Federal coordination, particularly Federal aspects of such coordination is warranted. Such guidance could consist of additional coordination procedures, coordination timelines, notice of complete or incomplete submissions, coordination analysis, and streamlined coordination options. In this regard, to the extent needed, the Commission delegates authority to the Wireless Telecommunications Bureau to work with NTIA staff, in collaboration with affected Federal agencies, to develop a joint FCC and NTIA public notice with additional information on notification and coordination procedures in the 3.45 GHz band as proposed in prior Notices in this proceeding and outlined in the Second Report and Order.

In the FNPRM, the Commission proposed to license the 3.45 GHz band in 20 megahertz blocks to promote efficient and robust use of the band for next-generation wireless technologies, including 5G. The Commission remains committed to that goal, but believes that 10 megahertz blocks will promote wider participation in the 3.45 GHz auction, and will encourage competition in the 3.45 GHz Service while still enabling the deployment of these next-generation wireless services. The Commission also believes this band plan, combined with its decision to license the 3.45 GHz band by partial economic areas (PEAs), strikes the appropriate balance between the 3.7 GHz band, licensed by PEAs in 20 megahertz blocks, and the Citizens Broadband Radio Service, where Priority Access Licenses are licensed by counties in 10 megahertz blocks. The Commission therefore adopts 10 megahertz as the channel size for the 3.45 GHz band in lieu of its proposal of 20 megahertz channels. The Commission will designate these 10 megahertz blocks as A through J, and they will be licensed according to the following channel plan:

The Commission finds that, for this band, 10-megahertz blocks will best serve its dual goals of making 3.45 GHz spectrum accessible to a diverse array of entities while also enabling licensees to obtain sufficient spectrum rights for deploying wideband networks. Carriers will be free to aggregate up to four channels in the 3.45 GHz band to achieve wider blocks as needed to enable their deployments, while others may choose to use only 10 megahertz channels. The Commission finds that 10 megahertz blocks strike the appropriate balance among minimizing coordination issues, maximizing wide-band services, and increasing competition in the band.

Unpaired Channels. —The Commission adopts its proposal to allocate the 3.45 GHz band on an unpaired basis to promote a consistent spectral environment with the adjacent 3.5 GHz and 3.7 GHz bands, which are also unpaired in the United States. In contrast to a paired channel configuration that assumes frequency division duplex operations, an unpaired spectrum configuration is technology neutral—it thus enables Time Division Duplex (TDD) operations, which has become increasingly prevalent in deployments of digital broadband networks. In light of this, the Commission in recent years has licensed spectrum used for mobile broadband services on an unpaired basis. This more recent approach is consistent with industry standards and supported by the record. The Commission therefore adopts unpaired channels for this band.

TDD Synchronization. —The Commission recognizes the benefits to all operators that come from TDD synchronization both within and across bands. To minimize the potential for causing or receiving harmful interference while maintaining deployment flexibility and efficiency, the Commission encourages intra-band synchronization where possible and it requires that 3.45 GHz Service licensees negotiate in good faith with requesting Citizens Broadband Radio Service operators to enable TDD synchronization across these services.

Specifically, a Citizens Broadband Radio Service operator may request information from a 3.45 GHz Service licensee to enable cross-service TDD synchronization if the Citizens Broadband Radio Service operator provides service, or intends to provide service, in the same or adjacent geographic area as that of the 3.45 GHz Service licensee. A request by a Citizens Broadband Radio Service operator for TDD synchronization will obligate the 3.45 GHz Service licensee to provide sufficient technical information to allow the Citizens Broadband Radio Service operator to synchronize its system with the 3.45 GHz band system and to keep such information current if its network operations change. Negotiations over the information to be provided must be conducted in good faith, with the goal of enabling synchronization between the relevant systems; but there is no obligation on the 3.45 GHz Service licensee to make any changes to its operations or proposed operations. Parties are free to negotiate changes to either or both networks as part of their efforts. Commission staff will be available to assist with negotiations as needed to resolve disputes and ensure good faith cooperation. The Commission similarly encourages industry to keep the Commission apprised of the effectiveness of the good faith requirement adopted, and it may revise further this rule or the rules governing the Citizens Broadband Radio Service in a future proceeding if necessary to encourage further TDD synchronization efforts among the various services in its mid-band allocations.

In order to streamline these negotiations and reduce the administrative burdens on 3.45 GHz Service operators, the Commission encourages industry to develop collaborative means of sharing necessary information among licensees and operators. For example, Spectrum Access System administrators may be well-positioned to assist in this effort because they will be collecting extensive data on Citizens Broadband Radio Service operations in order to fulfill their duties. These administrators may be able to act as a clearinghouse for information necessary to effect synchronization. The Commission similarly expects industry to determine the information necessary for such synchronization efforts in order to protect proprietary information of all parties and to facilitate maximum flexibility on the part of licensees, while still ensuring that the interference mitigation objectives of synchronization are achieved. The Commission also encourages industry to identify for the Commission any challenges they face in negotiations.

The Commission declines at this time to take the additional step of requiring TDD synchronization between networks operating in this band and those in the adjacent Citizens Broadband Radio Service, as some commenters suggest. Mandated synchronization could undermine operator flexibility in determining the best use of this spectrum, especially as use-cases and technologies change over time. While the Commission takes seriously the need to protect operations in the adjacent Citizens Broadband Radio Service from new high-powered uses, it believes the framework it adopts will accomplish that goal while preserving operator flexibility. However, the Commission will monitor the results of this approach, and may revisit it as necessary based on the experience of operators. To that end, the Commission encourages parties to continue to provide the Commission with information on this approach.

Guard Bands. —The 3.45 GHz band will be situated between two active bands. At the upper edge of the band, the Citizens Broadband Radio Service operates in the 3.55-3.7 GHz band, and Federal incumbents use the 3.55-3.65 GHz band. At the lower edge of the band, the primary allocation for Federal radiolocation operations will continue below 3.45 GHz. As discussed below, the Commission finds that adoption of the technical rules the Commission proposed in the FNPRM as modified herein will sufficiently protect adjacent operations at both edges of the band. No commenters support the use of guard bands in this band and the Commission declines to create guard bands here.

Base Station Power. —To support robust deployment of next-generation mobile broadband services, the Commission in the FNPRM proposed to allow base stations in non-rural areas to operate at an effective isotropic radiated power (EIRP) of up to 1640 watts per megahertz. In addition, consistent with other broadband mobile services in nearby bands ( e.g., AWS-1, AWS-3, and AWS-4, personal communications services (PCS), and 3.7 GHz), the Commission proposed to permit base stations in rural areas to operate with double the non-rural EIRP limit, with a maximum of 3280 watts per megahertz. Further, the Commission proposed, consistent with the rules adopted in the 3.7 GHz Service, that the adopted power spectral density limit would apply to emissions of all bandwidths, including those of less than one megahertz, to facilitate uniform power distribution across a licensee's authorized band regardless of whether it deploys wideband or narrowband technologies. In the Second Report and Order, the Commission adopts these proposals. Because advanced antenna systems often have multiple radiating elements in the same sector, these power limits will apply to the aggregate power of all antenna elements in any given sector of a base station, as proposed in the FNPRM. The Commission finds that these power levels will provide licensees with the flexibility to optimize their network designs for wide-area coverage while still enabling successful coexistence with incumbent and adjacent band operations.

While the Commission agrees that the asymmetry in power levels between the 3.45 GHz Service and the Citizens Broadband Radio Service creates the potential for harmful interference, it finds that the protection mechanisms it adopts, including the out-of-band emissions limits adopted below, will minimize such interference. In particular, the Commission believes that harmful interference can be avoided through careful network planning and coordination among spectrum users, including through the requirement it adopts that 3.45 GHz Service licensees negotiate in good faith regarding requests from Citizens Broadband Radio Service users for technical information necessary to enable TDD synchronization among radio systems. The Commission expects operations in both bands to be diverse and complex, stemming from the use of unpaired blocks resulting in downlink and uplink occurring on the same frequencies, as well as dynamic access in the Citizens Broadband Radio Service. This means that base station power reductions to prevent intra- and inter-service interference will be commonplace, regardless of overall power limits imposed by the Commission. As a result, coordination between users within and across bands will be required for successful coexistence and efficient operation of systems in both bands. Such coordination will also facilitate continued effective environmental sensing capability (ESC) operation in and near a 3.45 GHz Service licensee's license area.

The Commission expects 3.45 GHz Service licensees and Citizens Broadband Radio Service licensees, Spectrum Access Systems, and ESCs to work together to ensure coexistence among systems at the edge of the band. Because the reliable operation of ESCs is essential to enabling spectrum access for licensees of the Citizens Broadband Radio Service, ESCs are subject to protection from harmful interference from adjacent-channel operations as licensee operations. Harmful interference caused to ESC operations will be considered harmful interference to a primary service under the Commission's rules and dealt with accordingly.

Mirroring the approach adopted for the 3.7 GHz Service, the Commission also proposed to extend the same power spectral density limit to emissions with a bandwidth less than one megahertz to facilitate uniform power distribution across a licensee's authorized band regardless of whether wideband or narrowband technologies are deployed. The Commission finds that this EIRP limit allows for flexibility in measurement, permitting testers to measure conducted power and apply the relevant antenna gain adjustment, as well as direct over-the-air EIRP measurement. This is consistent with how equipment certification testing is performed in other bands.

Mobile Power. —The Commission adopts a 1 Watt (30 dBm) EIRP power limit for mobile devices, as proposed in the FNPRM and as adopted for the 3.7 GHz Service. The record is largely unanimous in supporting the proposal to align the mobile power limit for the 3.45 GHz Service with those of the 3.7 GHz Service. For the same reasons that the Commission adopts its proposed higher power levels in the case of base station power, it does so for mobile devices as well.

The Commission finds that this mobile power limit will provide an adequate range for operation of different mobile and fixed broadband deployments across a wide variety of use cases. Additionally, this limit will permit operation of mobile power classes as outlined in the 3GPP standards. The Commission also believes a 1 Watt limit is more appropriate for the 3.45 GHz Service than the lower limits imposed in the Citizens Broadband Radio Service due to the expected wider channels and the increased use of advanced antenna systems. As with base station power limits, the Commission believes that providing consistency between mobile 5G deployments in the 3.45 GHz Service and other bands that will be used for these operations is crucial for the band to reach its full potential. Given that mobile stations typically have low duty cycles and are power controlled by their base stations, the effect of mobile operations in the 3.45 GHz Service on operations in the Citizens Broadband Radio Service should be not be significant.

Base Station Out-of-Band Emissions. —The Commission adopts base station out-of-band emission (OOBE) requirements based on the proposed limits from the FNPRM, which are similar to those in the AWS services and the 3.7 GHz Service. Specifically, base stations will be required to suppress their emissions beyond the edge of their authorization to a conducted power level of −13 dBm/MHz. Commenters support this proposal.

Further, the FNPRM proposed a requirement that 3.45 GHz Service base stations meet an additional two-step limit of −25dBm/MHz and −40dBm/MHz at the upper and lower band edges. These limits are consistent with the OOBE limits specified for the Citizens Broadband Radio Service (as implemented for 3GPP band n48). As the Commission noted in the FNPRM, these OOBE limits are intended to ensure effective coexistence with mission-critical Federal and other non-Federal services operating in the adjacent bands. The Commission adopts a two-step limit, but modify it slightly from the original proposal.

Specifically, in addition to the OOBE limits within the 3.45 GHz band, the following limits will apply:

• Equal or less than −13 dBm/MHz limit from edge of the band to 10 megahertz down (3440 MHz) and up (3560 MHz);

• Equal to or less than −25 dBm/MHz beyond the 10 megahertz offset from the band edge between 3440 and 3430 megahertz and between 3560 and 3570 megahertz;

• Equal to or less than −40 dBm/MHz below 3430 megahertz and above 3570 megahertz.

We summarize the Commission's final approach in Figure 2 below.

The Commission will continue to engage with NTIA and other Federal partners, as well as other stakeholders, on whether there are opportunities to relax this approach while still providing sufficient protection to incumbent users. Moreover, the Commission's decision is specific to the 3.45 GHz band and it takes no position on whether the two-step limit adopted here will be required to protect incumbent users in any future proceedings.

Further, while the Commission acknowledges the concerns raised by some commenters about the impact of OOBE on ESCs in the Citizens Broadband Radio Service, it believes the lower emissions limits adopted will sufficiently protect ESC operations.

Mobile Out-of-Band Emissions. —As with base station OOBE limits, the Commission adopts mobile emission limits similar to its standard emission limits that apply to mobile services. Specifically, mobile units must suppress the conducted emissions to no more than −13 dBm/MHz outside their authorized frequency band. Most commenters agree with the proposed OOBE limits for mobile stations. The Commission finds that stricter limits, such as those used in Citizens Broadband Radio Service to protect the FSS incumbents, are not warranted here because the impact of mobile stations on both commercial and Federal systems in adjacent bands should be insignificant.

Emission Measurement. —For determining OOBE, the Commission applies the part 27 measurement procedures and resolution bandwidth that are used for AWS devices outlined in § 27.53(h), with a slight refinement. Specifically, a resolution bandwidth of 1 megahertz or greater will be used, except in the 1 megahertz bands immediately outside and adjacent to the licensee's frequency block where a resolution bandwidth of at least 1% of the emission bandwidth may be employed. The Commission refines the measurement procedure to specify the use of a resolution bandwidth such that, at the 1 megahertz bands immediately outside and adjacent to the licensee's frequency block, a resolution bandwidth of at least 1% of the emission bandwidth—but limited to a maximum of 200 kilohertz—may be employed.

Protection of Ongoing Federal Operations in the 3.55-3.65 GHz Band. —As the Commission noted in the FNPRM, the new 3.45 GHz Service will be adjacent to Federal inland and shipborne radar operations in the 3.55-3.65 GHz portion of the 3.5 GHz band. Because these Federal systems often operate in a mobile manner, the Cooperative Planning Area and Periodic Use Area model the Commission adopts for in-band interference mitigation will not be effective at providing protection to ongoing Federal operations in the adjacent 3.5 GHz band.

The Commission believes that the OOBE limits it adopts above will provide significant protection from harmful interference for these operations, but that additional measures may be necessary to ensure that flexible-use operations at the upper edge of the 3.45 GHz band do not cause harmful interference to these critical Federal operations, particularly in the form of aggregate interference. For that reason, the Commission sought comment in the FNPRM on whether additional protection measures are necessary.

Given the uncertainty and need for licensee cooperation with Federal users, the Commission believes that the best way to address this issue will be through the workshops between the DoD and industry, as well as through the ongoing coordination efforts that will arise from those workshops. The Commission anticipates that these flexible, collaborative discussions will lead to the development of the most innovative and least burdensome methods for preventing harmful interference to adjacent Federal operations, balancing deployment flexibility and reliability.

Protection of Ongoing Federal Operations below 3.45 GHz. —The Commission expects that dynamic spectrum use by Federal users will continue below 3.45 GHz in the form of airborne, shipborne, and ground-based radars. As with protection of radar systems in the 3.55-3.65 GHz band, the Commission believes interference mitigation for DoD systems below 3.45 GHz is best handled as part of future workshops and active coordination efforts between industry and the DoD, rather than through proscriptive rules adopted at this stage.

Field Strength Limit and Market Boundaries. —As proposed in the FNPRM, the Commission adopts the −76 dBm/m2/MHz power flux density (PFD) limit—at a height of 1.5 meters above ground—at the border of the licensees' service area boundaries, and it also permits licensees operating in adjacent geographic areas to voluntarily agree to higher levels at their common boundaries.

Antenna Height Limits. —Consistent with the proposal in the FNPRM, the Commission will not restrict antenna heights for 3.45 GHz band operations beyond the requirements necessary to ensure physical obstructions do not impact air navigation safety. This approach is consistent with part 27 AWS rules, which generally do not impose antenna height limits on antenna structures, and is supported by the record.

Rather than using antenna height limits to reduce interference between mobile service licensees, as has been done in the past, the Commission more recently has used field strength limits at service boundaries to provide licensees more flexibility to design their systems while still ensuring harmful interference protection between systems. As this has proven successful in other services, the Commission adopts that same approach in the 3.45 GHz Service. Further, the Commission believes that such limits would have limited practical effect because it expect that licensees generally will deploy systems predicated on lower tower heights and increased cell density, in order to achieve maximum 5G data throughput to as many consumers as possible. In rural areas where higher antennas may be used to provide longer range to serve sparse populations, the field strength limit at service area boundaries the Commission adopts here will ensure that adjacent area licensees are protected from harmful interference; licensees wishing to use higher antennas must ensure that they do not exceed these limits and cause harmful interference to other licensees. The Commission notes, however, that antenna heights may need to be reduced as part of coordination within Cooperative Planning Areas and Periodic Use Areas in order to protect Federal operations.

Canadian and Mexican Coordination. —The Commissions adopt the proposal from the FNPRM to apply § 27.57(c) of the Commission's rules to this band, which requires all part 27 operations to comply with international agreements for operations near the Mexican and Canadian borders. This requirement is consistent with all other part 27 services. Under this provision, licensed operations must not cause harmful interference across the border, consistent with the terms of the international agreements currently in force. The Commission notes that modification of the existing rules might be necessary in order to comply with any future agreements with Canada and Mexico regarding the use of these bands.

General Part 27 Rules. —As proposed in the FNPRM, the Commission applies all general part 27 rules to all 3.45 GHz Service licenses, including those acquired through partitioning or disaggregation. Specifically, the Commission applies to the 3.45 GHz Service §§ 27.51 (equipment authorization), 27.52 (RF safety), 27.53(i) (protection of adjacent channels), 27.54 (frequency stability), 27.56 (antennas structures; air navigation safety), and 27.63 (disturbance of AM broadcast station antenna patterns). The record supports this decision, and the application of these general wireless service rules will further the standardization of the 3.45 GHz Service with other commercial wireless services and promote cross-band operability in order to ensure a robust equipment market for licensees and streamline regulatory compliance.

As the Commission has done for other bands governed by part 27 services since 2014, the Commission also requires client devices to be capable of operating across the entire 3.45 GHz band. Specifically, the Commission adds the 3.45 GHz band to § 27.75 of its rules, which requires mobile and portable stations operating in the other flexible-use wireless bands to be capable of operating across the entire relevant band using the same air interfaces that the equipment uses on any frequency in the band. This requirement does not require licensees to use any particular industry standard.

As required by the Beat CHINA for 5G Act of 2020, and as part of the Commission's broader comprehensive mid-band strategy to advance 5G networks, the Commission generally aligns the licensing and operating rules for the 3.45 GHz Service with other flexible-use services under the part 27 rules. If and when areas outside the contiguous United States are made available by the DoD, and if PEAs were subsequently licensed by the Commission, these same licensing rules adopted below would apply.

As the Commission proposed in the FNPRM, it adopts an open eligibility standard for licenses in the 3.45 GHz Service, consistent with established Commission practice. This open eligibility standard does not affect required qualifications, such as citizenship, character, alien ownership, or other generally applicable qualifications that may apply under the Commission's rules. The only commenter to address this issue, T-Mobile, supports the Commission's proposal. This standard will encourage the development of new technologies, products, and services, while helping to ensure efficient use of this spectrum. The Commission will apply the ineligibility provision of the part 27 rules, however, under which a person who, for reasons of national security, has been barred by any agency of the Federal Government from bidding on a contract, participating in an auction, or receiving a grant is ineligible to hold a license that is required by the Spectrum Act to be assigned by a system of competitive bidding under section 309(j) of the Communications Act.

After careful consideration of the record, and in the Commission's expert judgment, the Commission finds that it is appropriate to adopt a bright-line, pre-auction limit of 40 megahertz in the 3.45 GHz band, in line with what a diverse group of commenters have proposed. The Commission agrees that adopting an in-band spectrum aggregation limit will effectively balance the statutory objectives informing the Commission's design and implementation of competitive bidding systems because this limit will, for example, help to promote spectrum access and encourage competition in the provision of 5G services, while still supporting the efficient and intensive use of spectrum. Specifically, the Communications Act requires the Commission to examine closely the impact of spectrum aggregation on competition, innovation, and the efficient use of spectrum to ensure that spectrum is assigned in a manner that serves the public interest, convenience, and necessity. Section 309(j)(3) of the Act provides that, in designing systems of competitive bidding, the Commission must “include safeguards to protect the public interest in the use of the spectrum,” and must seek to promote various objectives, including “promoting economic opportunity and competition and ensuring that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants,” and promoting the “efficient and intensive use” of spectrum. 47 U.S.C. 309(j)(3). Furthermore, for auctions like this one that are subject to the CSEA, the Commission must promote the objective of the recovery of 110 percent of estimated relocation or sharing costs as provided to the Commission by NTIA and Federal users; without meeting the reserve price, the Commission cannot conclude the auction. The Commission finds that this pre-auction spectrum limit it adopts will meet the Commission's objectives for this band more effectively than the proposed case-by-case review of post-auction long-form applications.

The Commission acknowledges that it has come to somewhat different conclusions about the application of pre-auction, in-band spectrum aggregation limits to different bands at different times. The Commission's balancing of the various section 309(j) factors in determining whether and what limits to apply in this band reflects, in part, the importance Congress assigned to rapid deployment of this particular band and the timetable set forth in the Beat CHINA for 5G Act. By replacing case-by-case review with a bright-line ex ante limit, the Commission will be able to expedite the licensing of, and deployment by, winning bidders. This approach also reflects the Commission's increased emphasis on the statutory factor of promoting dissemination of licenses among a wider variety of applicants, particularly in the rollout of the next generation of wireless broadband service that is expected to play a much greater role in the nation's economy. In this situation, a pre-auction limit of 40 megahertz effectively balances these statutory factors.

More specifically, while the Commission did not adopt pre-auction limits in the AWS-3 band, the 3.7 GHz band, or in the Spectrum Frontiers proceedings, for the various reasons discussed therein, it did establish such limits in other proceedings, based on the assessment that, under the operative circumstances there, such limits would serve the public interest. For example, it established a spectrum reserve of up to 30 megahertz in the 600 MHz Broadcast Incentive Auction to ensure against excessive concentration of below-1-GHz spectrum. In the CBRS 3.5 GHz band auction, the Commission set a 40 megahertz limit on the aggregation of PALs in order to ensure against excessive concentration within that band, particularly given the unique dynamic sharing scheme in that band, which included Federal and non-Federal sharing. The 3.45 GHz band also will involve a mechanism for sharing by Federal and non-Federal users in specific areas. The Commission finds that, on balance, the public interest is best served by adopting such a pre-auction spectrum aggregation limit in the 3.45 GHz band. The Commission concludes that a limit of 40 megahertz out of the total of 100 megahertz in the context of the 3.45 GHz band will facilitate competitive access, promote innovation, and lead to a greater diversity of bidders, while at the same time ensuring that the reserve price is met.

In addition, in order to prevent any post-auction undermining of in-band limits, and the balancing of statutory factors that they further, the Commission retains the 40 megahertz cap for four years following the auction. The Commission acknowledges that its public interest goals in adopting a bright-line limit for this band could be undermined if entities that win 40 megahertz of spectrum at auction could then acquire more 3.45-3.55 GHz spectrum post-auction in the secondary market. While the Commission has a general policy of promoting flexibility in secondary market transactions, the Commission finds that adopting a holding period of four years, which correlates to the first performance benchmark for 3.45 GHz Service licensees, appropriately balances its public interest goals in setting the pre-auction limit while still retaining flexibility in the secondary market over the medium term. Accordingly, the Commission concludes that no entity can hold more than 40 megahertz of 3.45-3.55 GHz spectrum for a period of four years after conclusion of the auction.

In the mobile wireless marketplace, the Commission has consistently defined the product market as a combined “mobile telephony/broadband services” market that is comprised of mobile voice and data services, including mobile voice and data services provided over advanced broadband wireless networks. In this item, the Commission adopts flexible-use rules to enable just that—terrestrial mobile use of this spectrum for the deployment of 5G and other upcoming advanced wireless services.

Spectrum is an essential input into that provision of wireless services, and for that reason, the Commission has applied a spectrum screen in evaluating proposed secondary market transactions involving spectrum in order to help identify those transactions that raise competitive concerns due to excessive concentration of spectrum. As such, given that the 3.45 GHz band will become suitable and available in the near term for the provision of mobile telephony/broadband services, the Commission finds that including this 100 megahertz of spectrum in the 3.45 GHz band in the input market for spectrum best supports the public interest. The Commission finds that the 3.45 GHz spectrum is suitable and available for the provision of mobile wireless services in the same manner as other spectrum bands that currently are included in the Commission's spectrum screen as applied to secondary market transactions. Accordingly, the Commission will add these 100 megahertz to the spectrum screen once the auction closes. Most commenters support this approach.

The Commission notes the main purpose of the spectrum screen is to act as an analytical tool in helping to identify those markets in which: (1) There could be an increased likelihood that rival service providers or potential new entrants would be foreclosed from expanding capacity, deploying mobile broadband technologies, or entering the market; and (2) rivals' costs could be increased to the extent that they would be less likely to compete robustly. As such, what is critical is whether the spectrum is suitable and available in the near term, and not whether it is currently deployed. The Commission finds that the 100 megahertz of 3.45-3.55 MHz spectrum will be suitable and available upon conclusion of the auction, and therefore, should be included in the spectrum screen at that point. Taken together, the pre-auction spectrum aggregation limit and four-year prohibition on transfers of 3.45 GHz Service licenses will help promote diversity in bidders while allowing flexibility to engage in secondary market transactions in time, and the inclusion of the spectrum in the spectrum screen will further the Commission's interest in continuing to monitor for excessive concentration of spectrum holdings across all bands suitable and available for the provision of mobile wireless services.

Use of Geographic Licensing. —Consistent with the Commission's approach in several other bands used to provide fixed and mobile services, the Commission finds that it is in the public interest to license the 3.45 GHz Service on an exclusive, geographic area basis. Geographic area licensing provides flexibility to licensees, promotes efficient spectrum use, and facilitates rapid assignment of licenses when using competitive bidding because mutually exclusive applications are received. There is wide support in the record for licensing the 3.45 GHz band flexible-use spectrum on an exclusive, geographic basis, and the Commission finds that such an approach will give certainty to licensees and provide the efficiencies of scale and scope that drive innovation, investment, and rapid deployment of next generation services.

Geographic License Area. —In the FNPRM, the Commission proposed to issue licenses on a PEA basis for the 3.45 GHz Service. Based on the record and consistent with the Commission's proposal, the Commission finds that PEAs are the appropriate license area for the technical rules it adopts in this band. In particular, the Commission agrees with commenters that, given its decision to adopt higher-powered operation in this band, PEAs will better assist carriers in making the most of the capabilities of 5G networks and encourage investment in furtherance of the goals found in section 303(y) of the Communications Act. These higher power levels allow larger coverage areas and encourage providers to take advantage of macro-cell deployments where possible, which are better suited to PEAs than a smaller license area. T-Mobile notes in particular that higher power levels combined with PEA license areas will promote service in rural areas.

Similarly, the availability of spectrum aggregation across other bands with similar technical rules make PEAs a better choice for the 3.45 GHz Service. The 3.7 GHz band, as well as several other recently licensed services, are licensed on a PEA basis, and the Commission finds that the goal of facilitating 5G service in the 3.45 GHz band is best served by aligning the band's rules with those of these bands.

For this reason, the Commission is not persuaded that it should license the 3.45 GHz band by counties or by census tracts. While the Commission recognizes that there are benefits of smaller license areas as a general matter, it declines to adopt license areas smaller than PEAs for the 3.45 GHz band, given its decision to allow higher-powered operations in this band.

Non-CONUS Geographies and the Gulf of Mexico. —As was noted in the FNPRM, the AMBIT efforts focused on licensing the 3.45 GHz band within the contiguous United States only, and for that reason the Commission proposed to exclude Alaska, Hawaii, and the U.S. Territories from 3.45 GHz band licensing at this time. NTIA recently affirmed that the Gulf of Mexico should not be considered for auction at this time. While the DoD may conduct further analysis at a later date, its transition plans filed with NTIA do not include areas outside of the contiguous United States or the Gulf of Mexico. As such, the Commission will not issue 3.45 GHz Service licenses in Alaska, Hawaii, the U.S. Territories, or the Gulf of Mexico at this time. While many commenters urge the Commission to license this and other mid-band spectrum in areas outside the contiguous United States, the Commission believes it would be premature and unwise for it to move beyond the AMBIT agreement in licensing the 3.45-GHz band in areas where the DoD has not committed to clearing or coordinating in the band to allow for its use.

The Commission recognizes, however, that over time more areas may become available for 3.45 GHz band use. In the FNPRM, the Commission noted that additional analysis by NTIA and the DoD, in cooperation with industry stakeholders may identify additional Cooperative Planning Areas and Periodic Use Areas outside the contiguous United States. To take advantage of any such future analysis that takes place, the Commission sought comment on whether it should delegate authority to the Wireless Telecommunications Bureau and the Office of Engineering and Technology to make any future adjustments to these areas as they deem appropriate and several commenters support the Commission doing so. In order to maximize future opportunities for 3.45 GHz band access, including in areas not otherwise licensed by the Commission's rules, such as PEAs in Alaska, Hawaii, the Gulf of Mexico, and other areas outside the contiguous United States, the Commission therefore delegates authority to the Wireless Telecommunications Bureau and the Office of Engineering and Technology, in coordination with NTIA, to create additional Cooperative Planning Areas and Periodic Use Areas as necessary to facilitate commercial network expansion into areas outside the contiguous United States. These new areas may be created upon notification from NTIA that non-Federal operations can occur, either alongside ongoing Federal operations or in areas cleared of those operations. The Commission further authorizes the Wireless Telecommunications Bureau and the Office of Economics and Analytics to consider applications and assign licenses for the PEAs associated with such additional Cooperative Planning Areas and Periodic Use Areas consistent with the licensing, technical, and competitive bidding rules the Commission is adopting, as such new areas are created for the 3.45 GHz band. Insofar as it becomes necessary to authorize non-Federal fixed and mobile (except aeronautical mobile) operations in these new license areas on the basis of rules that differ from the rules adopted here, the Commission delegates authority to the Wireless Telecommunications Bureau and Office of Engineering and Technology to conduct a rulemaking proceeding to make necessary changes to accommodate Federal operations and impose requirements on licenses for those new areas as needed.

License Term. —In the FNPRM, the Commission proposed 15-year license terms for the 3.45 GHz Service, which would be consistent with those adopted for the 3.7 GHz Service. As with the 3.7 GHz Service, the Commission believes that additional time for licensees to engage in, and recoup costs for, long-term investments may be necessary here given the need to coordinate Federal spectrum usage in this band with affected licensees. The Commission adopts its proposal to grant 3.45 GHz Service licenses for 15-year terms. Commenters widely support a 15-year license term. The Commission finds that the application of its standard 15-year license term for flexible-use licenses to the 3.45 GHz Service supports its overall goal of providing uniform licensing rules for this band and other flexible-use bands that predominantly host next-generation wireless networks. The Commission also agree with U.S. Cellular Corporation that providing sufficient time for licensees to realize reasonable returns on their investments is particularly important for spurring investment in rural areas, where returns on investment take longer to achieve as a result of lower population densities in such areas.

Renewal. —As proposed in the FNPRM, the Commission will apply its general part 27 renewal requirements for wireless licenses to the 3.45 GHz Service, as the Commission has for the 3.7 GHz Service and the Citizens Broadband Radio Service. The Commission will include the 3.45 GHz Service in the unified renewal framework for Wireless Radio Services. This means that 3.45 GHz Service licensees must comply with § 1.949 of the Commission's rules and demonstrate that, over the course of their license term, they either (1) provided and continue to provide service to the public, or (2) operated and continue to operate the license to meet the licensee's private, internal communications needs. Satisfaction with this requirement may be demonstrated either through the renewal showing in paragraph (f) of that rule or the relevant safe harbor found in paragraph (e).

As with other licensing rules the Commission adopts in this item, the Commission finds that the application of this renewal standard to the 3.45 GHz Service will help create uniform licensing rules for across flexible-use bands likely to host next-generation wireless networks. The Commission believes the likely use of this band for 5G and other wireless broadband services is well-suited to this renewal framework. Commenters support applying part 27 renewal rules to the 3.45 GHz Service.

Traditional Performance Benchmarks. —In addition to adopting renewal standards, the Commission also establishes performance requirements to ensure that spectrum is used intensely and efficiently. Performance requirements play a critical role in ensuring that licensed spectrum does not lie fallow. The Commission has applied different performance and construction requirements to different bands on a case-by-case basis, based on the unique circumstances surrounding deployment in that spectrum.

In the FNPRM, the Commission proposed that 3.45 GHz Service licensees offering mobile or point-to-multipoint service provide reliable signal coverage and offer service to at least 45% of the population in each of their license areas within eight years of the license issue date (first performance benchmark), and at least 80% of the population in each of their license areas within 12 years of the license issues date (second performance benchmark). For licensees providing fixed service, it proposed that they must demonstrate within eight years of the license issue date that they have four links operating and are providing service where the population within each license area is equal to or less than 268,00 people; where population within the license area is greater than 268,000, it must show that at least one link is in operation and providing service, either to customers or for internal use, for every 67,000 persons within a license area (first performance benchmark). By 12 years after the license issue date, the Commission proposed that point-to-point licensees must have eight links operating and providing service, either to customers or for internal use, if the population within the license area is equal to or less than 268,000, or if the population is greater than this, that it is providing service and has at least two links in operation per every 67,000 persons within a license area (second performance benchmark).

For the 3.45 GHz Service, the Commission determines that accelerated performance requirements, as compared to what was proposed in the FNPRM, are appropriate. While the Commission maintains the proposed signal coverage and link benchmarks, it reduces the timelines under which 3.45 GHz Service licensees must meet the first and second benchmarks. Specifically, 3.45 GHz Service licensees must meet the first performance benchmark at four years after the license issue date and must meet the second performance by at eight years after the license issue date. The Commission finds the four- and eight-year timeline will better serve the public interest for several reasons.

First, the 3.45 GHz band is not necessarily “greenfield” spectrum, a fact that the Commission has considered when it has adopted longer performance requirement deadlines. Rather, much of the 3 GHz band—including the 3.45 GHz band—has already been allocated for 5G use globally, with standard setting and global harmonization well underway and the technology for 5G deployment in the 3.45-3.55 GHz band is already available in the marketplace. As discussed above, 3GPP has specified two spectrum operating bands for 5G that overlap with the 3.45 GHz band: Band n77 (3.3-4.2 GHz) and band n78 (3.3-3.8 GHz). The Commission believes that the potential for economies of scale in the deployment of equipment in this band and adjacent bands can facilitate the widespread deployment of devices and services in this band in the near-term. As a result, the Commission anticipates that licensees can meet its revised performance benchmark deadlines.

Second, the Commission believes that these reduced timelines will better encourage robust investment and deployment and ensure that this valuable mid-band spectrum does not lie fallow. As discussed, the Commission is working swiftly to be ready to auction this spectrum in 2021 and it has set aggressive timelines for the clearing of secondary, non-Federal incumbents; and the DoD is similarly working quickly to prepare this band for rapid deployment. In addition, the Commission believes that its more aggressive performance timelines will further the clear Congressional intent in the Beat CHINA for 5G Act of 2020 not only to make this spectrum available to industry, but also to position it for rapid deployment. Making the most of these efforts requires 3.45 GHz licensees to be similarly focused on building out these networks as quickly as possible. Third, such aggressive timelines for deployment have been applied to mid-band spectrum before, most recently in the 2.5 GHz band, where the Commission noted that the critical role of mid-band spectrum in today's spectrum environment warrants such an approach.

Internet-of-Things (IoT) Performance Benchmarks. —In the FNPRM, the Commission also proposed to adopt the IoT alternate performance requirements used for the 3.7 GHz Service to give licensees the flexibility to provide services potentially less suited to a population coverage metric. Specifically, the Commission proposed that 3.45 GHz Service licensees providing IoT-type services could demonstrate that they offer geographic area coverage of 35% of the license area at the first performance benchmark 65% of the license area at the second performance benchmark.

The Commission adopts the proposed alternative IoT performance metrics but reduce the timeline under which 3.45 GHz Service licensees must meet them, consistent with the timeline it adopts for traditional performance benchmarks. For the same reasons that the Commission reduces the timeline for meeting the first and second population coverage and link-based benchmarks, it likewise reduces the timeline for meeting the alternative IoT performance benchmarks to four and eight years after the license issues date, respectively.

Failure to Meet Performance Requirements. —Alongside the performance benchmarks the Commission adopts, it also adopts meaningful and enforceable penalties for failing to meet those benchmarks. In the FNPRM, the Commission proposed that, in the event a licensee fails to meet the first performance benchmark, its second benchmark and license term would be reduced by two years, thereby requiring it to meet the second performance benchmark two years sooner and its license term would be reduced by two years. If a licensee fails to meet the second performance benchmark, the Commission proposed that its authorization for each license area in which it fails to meet the performance requirement would terminate automatically without Commission action.

Given the four- and eight-year timeline the Commission has adopted, the Commission modifies slightly this proposal. Accordingly, if the 3.45 GHz Service licensee fails to meet the first performance benchmark (at four years), its second benchmark period will be reduced by one year ( i.e., must be met at seven years after the issues date). Similarly, failure to meet the first performance benchmark will likewise reduce the license term by one year— i.e., the license term would be reduced to 14 years. Consistent with the FNPRM, if a 3.45 GHz Service licensee fails to meet the second performance benchmark, its authorization for each license area in which it fails to meet the performance requirements will terminate automatically without Commission action.

The Commission also adopts its proposal that, in the event a 3.45 GHz Service licensee's authority to operate terminates, its spectrum rights should become available for reassignment pursuant to the competitive bidding provisions of section 309(j). 47 U.S.C. 309(j). Consistent with the Commission's rules for other part 27 licenses, any 3.45 GHz Service licensee that forfeits its license for failure to meet its performance requirements shall be precluded from regaining that license.

Compliance Procedures. —As it did in the 3.7 GHz Service, the Commission in the FNPRM proposed to require 3.45 GHz Service licensees to submit electronic coverage maps that accurately depict both the boundaries of each licensed area and the coverage boundaries of the actual areas to which the licensee provides service or, in the case of a fixed deployment, the locations of the fixed transmitters associated with each link. The Commission adopts this proposal. Each coverage filing must include supporting documentation certifying the type of service that the licensee is providing for each licensed area within its service territory and the type of technology used to provide such service. Supporting documentation must include the assumptions used to create the coverage maps, including the propagation model and the signal strength necessary to provide reliable service with the licensee's technology. Consistent with the Commission's proposed rule, to demonstrate compliance with these performance requirements, licensees must use the most recently available decennial U.S. Census Data at the time of measurement and must base their measurements of population or geographic area served on areas no larger than the Census Tract level.

In the FNPRM, the Commission sought comment on potentially authorizing “license-by-rule” operations in the 3.45 GHz band. It noted that such opportunistic use of spectrum is permitted in the General Authorized Access tier of the adjacent Citizens Broadband Radio Service. The Commission asked whether this should be permitted generally or where not all spectrum licenses are sold at auction. The Commission asked commenters to explain the effect of allowing such operations on the Commission's efforts to ensure adequate protection of incumbent and licensee operations from harmful interference, and whether a database or other coordination techniques would create unnecessary burdens on licensees or hinder incumbent protection.

Some commenters support this proposal and note that opportunistic access can help to ensure this spectrum is put to immediate and intensive use. Indeed, in the Commission's Report & Order establishing the Citizens Broadband Radio Service, the Commission stated that “permitting opportunistic access to unused Priority Access channels would maximize the flexibility and utility of the 3.5 GHz Band for the widest range of potential users” and “ensure that the band will be in consistent and productive use.” Amendment of the Commission's Rules with Regard to Commercial Operations in the 3550-3650 MHz Band, GN Docket No. 12-354, Report and Order, 80 FR 36164, June 23, 2015, and Second Further Notice of Proposed Rulemaking, 80 FR 34119, June 15, 2015, 30 FCC Rcd 3959, 3983, para. 72 (2015). Thus, the Commission has not only authorized opportunistic use of locally unused spectrum in the adjacent CBRS band but also by unlicensed TV White Space operations in the 600 MHz band. These comments make clear, however, that implementing opportunistic use would require the use of some type of automated frequency coordination mechanism, such as the Spectrum Access System that is used in the Citizens Broadband Radio Service, and many commenters oppose such a mechanism because of the reporting burden it places on licensees. Although Spectrum Access Systems have coordinated opportunistic use of locally unused spectrum in other bands, the Commission declines to adopt this approach in the 3.45 GHz band at this time.

In the Citizens Broadband Radio Service band, Federal incumbent use is constantly changing, requiring a dynamic spectrum sharing environment and using automated coordination mechanisms to enable that environment. This approach allows the provision of a General Authorized Access tier without imposing additional requirements on Priority Access Licensees. Here, because the DoD and the Commission have worked collaboratively on a different sharing regime in the band, the limited Federal operations that remain indefinitely in the band will not require dynamic spectrum sharing. The goal shared by the Commission and the Executive Branch, including the DoD, has been to minimize requirements on licensees to coordinate their operations with third-party systems, thereby allowing maximum opportunities for flexibility in deployment and operational design. Permitting licensed-by-rule operations would require implementing coordination mechanisms similar to the Spectrum Access Systems found in the Citizens Broadband Radio Service. In light of the work that the DoD has done to plan for clearing the band, and the Commission's statutory mandate to begin a system of competitive bidding to auction some or all of the 3.45 GHz band by December 31, 2021, the Commission declines to permit licensed-by-rule operations at this time.

Similarly, based on the framework developed for this band, permitting licensed-by-rule operations near Cooperative Planning Areas and Periodic Use Areas would limit the ability of the DoD to work directly with licensees to ensure continued access as needed while minimizing the burden on commercial wireless operations. The DoD's work on determining the boundaries of these areas relies on its ability to cooperate with licensees to design and plan its use of the 3.45 GHz band. Although different coordination or exclusion areas might be designed in the future to accommodate opportunistic use enforced by a Spectrum Access System or similar mechanism, the Commission declines at this time to adopt any proposal that would involve licensed-by-rule use in this band. Nevertheless, the Commission recognizes that there may be potential opportunities in the future to consider steps it might take, in cooperation with NTIA and other Federal partners, to effect an overall rationalization of the non-Federal services in the 3 GHz band.

The Communications Act requires that the Commission resolve any mutually exclusive applications for new flexible-use licenses in this band through a system of competitive bidding. Consistent with the competitive bidding procedures used by the Commission in previous auctions, the Commission adopts the proposal in the FNPRM to conduct any auction for licenses in this band in conformity with the general competitive bidding rules set forth in part 1, subpart Q, of the Commission's rules. These part 1 rules govern competitive bidding design, application and certification procedures, reporting requirements, and the prohibition on certain communications regarding the auction. In addition, the part 1 rules address designated entity preferences and unjust enrichment, and provide a framework for the auction process. The commenters that address this issue generally support the proposal. Consistent with the part 1 rules, the Commission separately considers a Public Notice seeking comment on procedures for an auction of new licenses in this band, thereby beginning the separate pre-auction process. See Auction of Flexible-Use Service Licenses in the 3.45-3.55 GHz Band for Next-Generation Wireless Services; Comment Sought on Competitive Bidding Procedures for Auction 110, AU Docket No. 21-62, Public Notice, FCC 21-33 (2021) (Mar. 17, 2021), which is published elsewhere in this issue of the Federal Register .

Given the record and the Commission's experience in successfully conducting auctions pursuant to the part 1 rules, the Commission adopts the proposal to employ those rules when developing the auction for new licenses in this band. Should the Commission subsequently modify its general competitive bidding rules, the modifications would apply here as well. If and when areas outside the contiguous United States are made available by the DoD, the part 1 rules would similarly apply to any PEAs licensed by competitive bidding in those areas.

As the Commission observed in the FNPRM, under the Commercial Spectrum Enhancement Act (CSEA), Federal entities operating on certain frequencies that have been reallocated from Federal to co-primary Federal and non-Federal use and assigned by the Commission through auction are eligible for reimbursement for the cost of relocating or sharing their operations. In order to provide for such reimbursement, the Communications Act requires that the “total cash proceeds” from the auction of these frequencies must equal at least 110% of the estimated relocation or sharing costs of incumbent Federal operations. Based on the current allocation of the 3.45 GHz band for uses by the DoD and the DoD's planned sharing arrangements and relocation of some operations out of the band to make way for commercial use as part of the AMBIT agreement, this spectrum qualifies as eligible frequencies under the CSEA. Accordingly, the reserve price for any auction of 3.45 GHz band licenses at a minimum will be 110% of expected Federal relocation costs, based on the estimate of relocation costs provided to the Commission by NTIA consistent with the CSEA. In the public notice seeking comment on procedures for an auction of new licenses in this band being separately considered, the Commission seeks comment on setting that aggregate reserve price at $14,775,354,300.

Designated Entity Provisions. —In the FNPRM, the Commission sought comment on whether to offer bidding credits to designated entities in any auction of new licenses in this band. When authorizing the Commission to use competitive bidding, Congress required that the Commission “ensure that small businesses, rural telephone companies, and businesses owned by members of minority groups and women are given the opportunity to participate in the provision of spectrum-based services.” Based on the Commission's prior experience with the use of bidding credits in spectrum auctions, the Commission finds that using bidding credits is an effective tool to achieve the statutory objective of promoting participation of designated entities in the provision of spectrum-based services.

Small Businesses. —One way the Commission fulfills this mandate is through the award of bidding credits to small businesses. In the Competitive Bidding Second Memorandum Opinion and Order, Implementation of Section 309(j) of the Communications Act—Competitive Bidding, PP Docket No. 93-253, Second Memorandum Opinion and Order, 59 FR 44272, August 26, 1994, 9 FCC Rcd 7245, 7269, para. 145 (1994); see also 47 CFR 1.2110(c)(1), the Commission stated that it would define eligibility requirements for small businesses on a service-specific basis, taking into account the capital requirements and other characteristics of each particular service in establishing the appropriate threshold. Further, in the Part 1 Third Report and Order, Updating Part 1 Competitive Bidding Rules, WT Docket No. 14-170, Report and Order, 80 FR 56764, September 18, 2015, 30 FCC Rcd 7493, 7521, para. 145 (2015), and the more recent Competitive Bidding Update Report and Order, Amendment of Part 1 of the Commission's Rules—Competitive Bidding Procedures, WT Docket No. 97-82, Third Report and Order, 63 FR 2315, January 15, 1998, 13 FCC Rcd 374, 388, para. 18 (1997), the Commission, while standardizing many auction rules, determined that it would continue to use a service-by-service approach to defining small businesses. In the FNPRM, the Commission proposed to adopt bidding credits for the larger two of the three designated entity business sizes provided in the part 1 rules.

In adopting competitive bidding rules for other spectrum bands that will be used for 5G services, the Commission included provisions for designated entities to promote opportunities for small businesses, rural telephone companies, and businesses owned by members of minority groups and women to participate in the provision of spectrum-based services. For example, the Commission adopted two small business definitions for the auction of licenses in the 3.7 GHz band. These two small business definitions are the higher two of the three small business average gross revenues thresholds in the Commission's standardized schedule of bidding credits.

The Commission adopts the proposal in the FNPRM to apply the two small business definitions with higher average gross revenues thresholds to auctions of overlay licenses in the 3.45 GHz band. Accordingly, an entity with average annual gross revenues for the preceding five years not exceeding $55 million will qualify as a “small business,” while an entity with average annual gross revenues for the preceding five years not exceeding $20 million will qualify as a “very small business.” Since their adoption in 2015, the Commission has used these gross revenue thresholds in auctions for licenses likely to be used to provide 5G services in a variety of bands. The results in these auctions indicate that these gross revenue thresholds have provided an opportunity for bidders claiming eligibility as small businesses to win licenses to provide spectrum-based services at auction. Furthermore, by adopting thresholds that are not overly inclusive of qualified bidders, the Commission preserves the effectiveness of designated entity benefits for the parties that the Commission's designated entity rules are intended to benefit.

The Commission also adopts the proposal in the FNPRM to provide qualifying “small businesses” with a bidding credit of 15% and qualifying “very small businesses” with a bidding credit of 25%, consistent with the standardized schedule in part 1 of the Commission's rules. This proposal, supported by the Wireless internet Service Providers Association (WISPA), was modeled on the small business size standards and associated bidding credits that the Commission adopted for a range of other services. The Commission believes that this two-tiered approach has been successful in the past, and it will employ it once again. The Commission believes that use of the small business tiers and associated bidding credits set forth in the part 1 bidding credit schedule will provide consistency and predictability for small businesses.

Rural Service Providers. —In the FNPRM, the Commission also sought comment on a proposal to offer a bidding credit for rural service providers. The rural service provider bidding credit awards a 15% bidding credit to those that service predominantly rural areas and that have fewer than 250,000 combined wireless, wireline, broadband and cable subscribers. As a general matter, the Commission “has made closing the digital divide between Americans with, and without, access to modern broadband networks its top priority . . . [and is] committed to ensuring that all Americans, including those in rural areas, Tribal lands, and disaster-affected areas, have the benefits of a high-speed broadband connection.” WISPA supports this proposal as consistent with the Commission's approach in other flexible-use bands.

The Commission finds that a targeted bidding credit will better enable entities already providing rural service to compete for spectrum licenses at auction, and in doing so, will increase the availability of 5G service in rural areas. Accordingly, the Commission will apply the rural service provider bidding credit in auctions of new licenses in this band.

In the Report and Order , the Commission determined that secondary radiolocation licensees would be relocated to the 2.9-3.0 GHz band. In the FNPRM , it proposed that authorization for these secondary, non-Federal radiolocation operations in the to-be-cleared spectrum would cease on a date consistent with the first possible grant of flexible-use authorizations to new users in the band. As an example, the Commission noted that a licensing scheme that would result in an auction would see non-Federal radiolocation use sunset within 90 days of the close of the auction, because that date is “consistent with the first possible grant of flexible-use authorizations.”

NBCUniversal and Nexstar Broadcasting argue that 90 days after the auction closes is insufficient for them to take the steps needed relocate their Doppler radar systems. For example, NBCUniversal projects that it will take 18 months total for its transition given the production and procurement of equipment needed to transition NBCUniversal's four Doppler weather radar sites to the 2.9-3.0 GHz band, labor to manufacture and install new equipment, and equipment certification testing for its new operations. Nexstar projects that its transition will take 12-15 months for its one radar system. NBCUniversal and Nexstar argue that they should be permitted to continue operations until such time that flexible-use licenses are prepared to deploy services in the relevant markets, or in the alternative, asks the Commission to establish a sunset date of at least 180 days ( i.e., 6 months) after new flexible-use licenses in the relevant markets are granted.

The Commission finds persuasive the arguments raised by Nexstar and NBCUniversal regarding the amount of time needed to successfully complete their transitions. The Commission finds the public interest will be best served by adopting a sunset date of the secondary radiolocation authorization 180 days after the new flexible-use licenses are granted. The Commission also delegates authority to the Office of Engineering and Technology to cease certifying radiolocation equipment for the 3.45 GHz band 180 days after the new flexible-use licenses are granted. Secondary radiolocations users and the new flexible-uses licenses in a given market may of course enter into private agreements to complete the relocation process sooner.

The Commission sought comment in the FNPRM on interim timing and benchmarks for the transitioning of secondary, non-Federal radiolocation operations out of the 3.3-3.55 GHz band. No commenter suggests any such specific interim benchmarks or deadlines and the Commission finds no need to adopt any given the limited number of licensees that need to be transitioned. Secondary, non-Federal radiolocation licensees must relocate their operations by the sunset date.

In the FNPRM , the Commission sought comment on whether to require new flexible-use licensees to reimburse secondary, non-Federal radiolocation operators for their relocation costs pursuant to the Emerging Technologies framework, despite the secondary status of these operations. The Commission finds that, in this unique instance, the public interest is served by requiring new flexible-use licensees to reimburse secondary, non-Federal radiolocation users for their reasonable relocation expenses, particularly given the limited number of secondary radiolocation users, the public safety benefit their operations provide to millions of Americans, and the relatively small relocation costs at issue. The Commission's Emerging Technologies framework represents a broad set of tools that the Commission uses to facilitate the process of making spectrum available for new uses. Generally, the Commission applies the framework when it is necessary to relocate incumbent licensees in order to introduce new services into a frequency band. The application of specific relocation and cost-sharing processes under the framework varies for each frequency band and is based on the types of incumbent licensees and the particular characteristics of the band. In the FNPRM , the Commission noted that secondary users are normally not subject to reimbursement because secondary users cannot claim protection from primary operations, including those subsequently licensed by the Commission.

In order to ensure the speedy clearing of the 3.3-3.55 GHz band and minimize disruptions to the weather radar systems operated by secondary radiolocation users, the Commission will require new flexible-use licensees in the 3.45 GHz Service to reimburse secondary, non-Federal radiolocation licensees for reasonable costs related to the relocation of those operations to the 2.9-3.0 GHz band, including the costs of a relocation clearinghouse's administration of the reimbursement. Several factors lead the Commission to conclude that requiring reimbursement of these secondary, non-Federal radiolocation users supports the public interest in this specific instance. First, the operations of secondary radiolocation licensees provide an important public safety service by informing broadcasters' reports on severe, often life-threatening weather events. As both NBCUniversal and Nexstar note, their current transmitters and related equipment must be replaced in order for their systems to work in the 2.9-3.0 GHz band; they cannot simply be retuned. Given the public interest value served by these Doppler radar networks, and when combined with the limited number of networks at issue, the Commission finds that the public interest is served by minimizing any transition-related disruption to these operations.

Second, there are very few radiolocation licensees that need to be relocated. In fact, there are only a total of seven licenses that need to relocate out of the band. Compared to other Commission relocation efforts, the number of licensees that need to be moved out of the band here is significantly fewer, and indeed is miniscule compared to the number of flexible-use licenses that will be made available at auction.

Third, the overall estimated costs of reimbursement for the weather radar systems to relocate to the 2.9-3.0 GHz band is minimal and the Commission does not believe that it will jeopardize the overall success of the auction of flexible-use licenses. NBCUniversal estimates that it will cost $2.16 million to relocate all four of its radar systems, inclusive of equipment and labor. Nexstar estimates about $1 million for its systems' relocation. This is a total of just over $3 million dollars in relocation costs for a band that is expected to generate much more in revenue at auction.

Fourth, the Commission notes that these secondary radiolocation users face relatively minimal limitations from existing Federal primary users, which are geographically concentrated in particular locations. As such, the weather radar systems current operate without risk of harmful interference despite their secondary status.

For all these reasons, the Commission finds that reimbursement of secondary radiolocation users is appropriate in this specific instance. The Commission stresses, however, that secondary users generally are not entitled to reimbursement for the expense of transitioning to another band. As a general matter, because such users are not entitled to cause harmful interference to, or seek protection from, primary users, such users have no reasonable expectation that their investments in a band will be reimbursed in a spectrum transition under the Commission's Emerging Technologies framework. Indeed, absent the presence of all of the unique factors described, the Commission would not mandate reimbursement here. Consistent with the Commission's longstanding policy, secondary users should not expect that they will be reimbursed as part of a spectrum band clearing.

The Commission will require that the reasonable relocation reimbursement costs be shared by all 3.45 GHz Service licensees, regardless of location, rather than only those whose licenses would otherwise have been encumbered by the relocating incumbent operations. The Commission finds this to be the fairest and most efficient approach given the high-powered nature of many of these radiolocation stations, and the engineering and administrative difficulties inherent in attempting to determine which licensees would be directly affected by their operations. Given the estimated cost of relocation for all secondary, non-Federal radiolocation licenses, the burden on each licensee will be small relative to the cost of the license itself. Further, even if not directly affected, all 3.45 GHz Service licensees will benefit from a band fully cleared of secondary, non-Federal incumbents. While this basic structure has now become common in the Commission's application of the Emerging Technologies framework, the Commission's application in this instance seeks to streamline reimbursement and minimize the burdens on both incumbents and incoming licensees.

All new entrants to the band will be responsible for reimbursement of a pro rata share of reasonable relocation costs of non-Federal radiolocation operations. In other words, the total relocation costs will be divided by the number of 3.45 GHz Service licenses and each licensee will be required to pay their share based on the number of licenses they hold. If all licenses offered at auction are ultimately issued, this will mean each license held will require payment of approximately 0.025% of the total reimbursement costs.

The Commission finds that this structure provides an efficient and equitable option given the limited number of licensees requiring reimbursement and the complexity in determining which licenses are affected by the high-powered radiolocation systems being relocated. It will ensure that non-Federal radiolocation licensees are able to continue their operations without service interruptions while fairly distributing the costs of clearing the band across all new licensees. It also will avoid complex calculations as to which licensees are affected by the non-Federal radiolocation operations being relocated. These operations are typically high-powered, which allows them to detect and monitor weather patterns over hundreds of miles, but also have the potential to cause harmful interference to wireless broadband operations across several PEAs and not only the one in which they are located. It will therefore speed the process of clearing the band, making it available for deployment as soon after the grant of flexible-use licenses as possible.

As the Commission has done in past proceedings, it delegates to the Wireless Telecommunications Bureau, working in coordination with the Office of the Managing Director, authority to develop and implement a clearinghouse selection process similar to the process used in the 3.7 GHz proceeding; this delegation includes the authority to seek notice and comment on the parameters of additional considerations that should inform the creation and administration of the cost-sharing plan to help implement the Commission's decision here and, if necessary for the purposes of the more limited relocation here, to adjust the procedures adopted in that proceeding to tailor them to the relocation in this proceeding. Any disputes as to the reimbursement of particular expenses will be resolved by the Wireless Telecommunications Bureau.

3.45 GHz Service licensees will be required to pay their share of the reimbursement obligations subject to procedures to be specified by public notice. Non-Federal secondary radiolocation licensees must submit their expenses for relocating operations authorized under their licenses and existing as of the date of the Commission's temporary freeze on non-Federal applications in the 3.3-3.55 GHz band subject to procedures to be specified by public notice.

Due to the timing of the relocation of secondary, non-Federal radiolocation incumbents, the Commission agrees with NBCUniversal that the reimbursement requirement should include reasonable expenses incurred before the adoption of the Second Report and Order , provided that such expenses are legitimate, documented, required by the transition, and occurred subsequent to the adoption of the first Report and Order in this proceeding. These expenses include radar components being replaced to accommodate the stations' new frequencies, installation costs, professional services such as engineering to ensure coordination with incumbent operations in the 2.9-3.0 GHz band, and licensing costs related to the new equipment and frequencies. Expenses for other purposes, however, such as optional equipment upgrades, will not be permitted. The clearinghouse will have the authority to determine if expenses are eligible for reimbursement, with any disputes to be resolved by the Wireless Telecommunications Bureau.

In the FNPRM , the Commission proposed to use its section 316 authority to modify existing secondary, non-Federal radiolocation licenses such that they are no longer authorized to operate in the 3.3-3.55 GHz band and instead will be authorized for operation in the 2.9-3.0 GHz band. The Commission adopts this proposal and issues an Order of Proposed Modification under section 316 to modify these licenses to operate on their new frequencies. This license modification will allow the Commission to clear the 3.3-3.55 GHz band for flexible-use operations while ensuring that these secondary, non-Federal radiolocation operations can continue to offer the same services as they do currently. The Commission finds that the modification is in the public interest, as it will spur investment in—and deployment of—next-generation wireless services, while ensuring that incumbent space station services will be able to maintain the same services as they are currently providing. The Commission delegates authority to the Wireless Telecommunications Bureau to modify the relevant licenses as needed to specify the new frequencies for each.

Bifurcation of the Amateur Band. —In the Report and Order , the Commission terminated the allocation for secondary amateur operations in the 3.3-3.5 GHz band in order to clear the way for flexible-use operations. In the FNPRM , it proposed to bifurcate the sunset of this allocation in order to allow amateur operations to continue for the time being in that portion of the band not yet ready for commercial operations, while more rapidly clearing the portion necessary to accommodate the new 3.45 GHz Service. This proposal would allow amateur operations to continue in the lower portion of the band while the Commission, NTIA, and the DoD continue to analyze whether that spectrum can be reallocated for flexible use. Specifically, the Commission proposed splitting the band at 3400 MHz, which would allow amateur use in 100 megahertz while also providing a buffer to protect flexible-use operations at the lower edge of the 3.45 GHz band, and it sought comment on this proposal.

The Commission adopts its proposal to bifurcate the band, however, it adjusts its proposal and sets 3450 MHz as the frequency at which the band will be split. Based on the record, the Commission finds that this best supports the public interest and continued amateur use below the 3.45 GHz band. While the FNPRM proposed a guard band of 50 megahertz, the record demonstrates that such a guard band is unnecessary given the nature of amateur operations in the band. No commenter provides technical justification for a guard band, and the Commission agrees with the Amateur Radio Relay League's (ARRL) assessment that the guard band is not necessary from a technical standpoint. The Commission also recognizes that the nature of amateur equipment realities makes the 50 megahertz at 3400-3450 MHz particularly valuable to amateur operators because it means existing equipment can continue to operate in the band for the time being. The Commission therefore allows secondary amateur operations to continue in the 3400-3450 MHz portion of the band. The Commission emphasizes, however, that amateur licensees remain secondary users, and those that operate on frequencies close to the 3450 MHz band edge must do so with particular caution to avoid causing harmful interference to flexible-use licensees in the 3.45 GHz Service, which hold primary status. In light of these considerations, while amateur operations between 3450 MHz and 3500 MHz must cease within 90 days of the public notice announcing the close of the auction for the 3.45 GHz Service, as specified in the Report and Order , amateur operations may continue between 3300 MHz and 3450 MHz while the Commission, NTIA, and the DoD continue to analyze whether that spectrum can be reallocated for commercial wireless use.

The Commission agrees with T-Mobile that amateur operators that choose to remain in this band must do so fully aware of the Commission's ongoing efforts to clear the entire 3.1-3.45 GHz band for commercial operations as soon as possible. As the Commission stressed in the FNPRM , any amateur operations that continue to operate in the 3.3-3.45 GHz band do so on a secondary basis, with the allocation subject to sunset at any time. There is no expectation that such operations will be accommodated in future planning for commercial wireless operations in this spectrum, or that amateur operators will receive more than a short period of notice before their operations must cease.

Consistent with the Commission's FNPRM , the Commission declines to provide reimbursement of “relocation costs” of amateur operations in this band. ARRL suggests that some equipment might be “stranded” if the Commission prohibited continued operations in the 3400-3450 MHz portion of the band and argued reimbursement might be justified if equipment were stranded. Because the Commission permits amateur operations to continue on a secondary basis in the 3400-3450 MHz portion of the band, this specific reimbursement issue is moot. More generally, the Commission declines to require 3.45 GHz Service licensees to reimburse amateur users for any potential costs related to their transitions to other amateur bands given the vastly different situation of amateur operators as compared to secondary, non-Federal radiolocation operators in the band. As the Commission noted above, requiring reimbursement of secondary users' relocation expenses is itself a departure from Commission precedent; the Commission took this step for secondary, non-Federal radiolocation users given the very small number of licensees, the nature of the equipment they use for their high-power weather radar systems, the public safety benefits they provide and the risk to life and property from potential interruption to that service, and the relatively minimal costs of relocating these five incumbent systems as compared to the value of this spectrum for flexible-use services. Similar exigent circumstances do not exist here with respect to the hundreds of amateur users in the band, especially given that they have other options available to them within and outside the 3 GHz band.

Section 316 Modification. —Finally, the FNPRM sought comment on whether the Commission must modify amateur licenses pursuant to the Commission's section 316 authority in order to accomplish its proposed changes to the amateur allocation. No commenters addressed this question. In the FNPRM , the Commission noted that, due to the unique nature of amateur licensing, there are no new frequencies being specified for amateur operations; amateurs will instead be permitted to use any frequency already allocated to amateur use. Amateur service operators are granted licenses of a particular class, not a license to operate on particular frequencies. Further, because of this bifurcation of the band, amateur operators should require only minimal software changes to their operations, if any changes are required at all. For these reasons, the Commission concludes that the changes to its part 2 and part 97 rules already adopted in this proceeding, along with the part 2 rule changes being adopted, are sufficient to effectuate this change, and no section 316 license modification is necessary.

In the Report and Order , the Commission sunset the secondary amateur allocation in the 3300-3500 MHz band in order to make way for the use of this spectrum for commercial wireless services. It noted that clearing all secondary, non-Federal operations, including those of amateur operators, will allow the maximum use of the band by flexible-use licensees, and that clearing the entire band, rather than simply the portion being reallocated immediately, will prevent adjacent-channel interference and facilitate future clearing of the entire band for flexible use. However, in order to ensure that spectrum continues to be used efficiently, in the FNPRM the Commission proposed, and indeed adopted as part of the Second Report and Order here, a bifurcated sunset date for that allocation to allow amateur use to continue below 3450 MHz.

ARRL, The National Association for Amateur Radio, seeks reconsideration of the decision in the Report and Order to sunset the amateur allocation in order to clear the 3.3-3.5 GHz band. In its petition, ARRL argues that the nature of amateur use is such that it will not cause harmful interference to commercial wireless operations in the 3.45 GHz Service and that the public interest is not served by removing amateur operations from spectrum not being actively considered for commercial wireless use. These arguments reiterate points made by ARRL in its original comments in this proceeding. The Commission denies ARRL's request.

Reconsideration may be appropriate when the petitioner demonstrates that the original order contains a material error or omission, or raises additional facts that were not known or did not exist until after the petitioner's last opportunity to present such matters. Petitions for reconsideration that do not warrant consideration by the Commission include those that: Fail to identify any material error, omission, or reason warranting reconsideration; rely on facts or arguments which have not been previously presented to the Commission; rely on arguments that have been fully considered and rejected by the Commission within the same proceeding; or relate to matters outside the scope of the order for which reconsideration is sought.

The Commission dismisses ARRL's petition as procedurally deficient. The petition fails to identify a material error or omission, raise facts not known before the last opportunity to present such matters, or demonstrate that reconsideration would be in the public interest. Instead, ARRL's petition simply repeats arguments previously raised, considered, and rejected during the initial comment period in this proceeding. As its rules make clear, the Commission need not consider petitions for reconsideration that merely repeat arguments the Commission previously rejected. Indeed, ARRL's claim that the Commission's conclusion that amateur operations are incompatible with mobile and fixed services intended to be provided by the new non-Federal primary licensees is conclusory shows that ARRL recognizes that the Commission did address its concerns and reach a conclusion regarding them. Simply repeating its assertion that secondary amateur operations can coexist with flexible-use operations, both during deployment and beyond, is not a ground for reconsideration of the Commission's decision in the Report and Order .

As an alternate and independent basis for the Commission's decision, ARRL's petition also fails on the merits. First, ARRL argues that the Commission's decision in the Report and Order leaves large amounts of spectrum vacant. This is not the case. Under the rules adopted here, amateur use will be permitted to continue in the 150 megahertz between 3.3 GHz and 3.45 GHz until the Commission acts to adopt rules permitting commercial wireless use of that part of the band, and flexible-use operations will commence in the spectrum between 3.45-3.55 GHz. All spectrum in which amateur operations are ceasing operation will remain in use, or be available for use at the discretion of Federal or non-Federal primary users. The entire band will also continue to be used for Federal operations. As a result of this decision, no spectrum will be left vacant, and that which is not actively in use at any particular time has been removed from amateur access in order to provide for full flexibility in use by 3.45 GHz Service licensees.

Second, ARRL argues that the Commission's grounds for rejecting its claims were conclusory and depart from its earlier spectrum policy, such as the Emerging Technology framework, because the Commission in the Emerging Technologies Order encouraged spectrum sharing and did not sweep away incumbent users on a date certain as is done in this proceeding. The Commission disagrees. While it is true that some band reallocations done under the Emerging Technologies framework permitted incumbent operations to continue while new entrants deployed, the Emerging Technologies framework represents a broad set of tools that the Commission uses to facilitate the process of making spectrum available for new uses. The application of specific relocation and cost-sharing processes under the framework generally varies for each frequency band and is based on the types of incumbent licensees and the particular characteristics of the band. While the Commission agrees with ARRL that certain provisions of the Emerging Technologies Order were highly successful in accomplishing the transition to PCS in the 2 GHz bands, the Commission is required by the Administrative Procedure Act to provide the essential facts upon which its decisions are based and explanations with actual facts and evidence beyond merely repeating conclusory statements, as ARRL explains in its Reply.

Contrary to ARRL's claims that the Commission's reasoning was conclusory, ARRL's proposal to apply certain provisions of the 1993 Emerging Technologies Order (58 FR 59174, November 8, 1993)—without accounting for the differences between the transition to PCS in the 2 GHz band and the 3.45 GHz reallocation—is conclusory and unreasoned. In adopting a new framework for the 3.45 GHz band, the Commission did just that: The Commission considered the technical characteristics of the band, the feasibility of sharing spectrum between incumbent and incoming operations, and the alternate spectrum available to those incumbents. In this case, the rapid deployment of flexible-use operations in this band, and the provision of full flexibility for new wireless broadband deployment, are critical to making the most of the extensive work being done across the Federal Government to open this band for flexible use. The Commission's decision to sunset the secondary amateur allocation in the 3.3-3.5 GHz band in order to make way for the use of this spectrum for flexible-use wireless services and to adopt a bifurcated sunset date to allow amateur use to continue below 3450 MHz is supported by the unique circumstances and particular characteristics of the band.

Further, as noted in the Report and Order , amateur operators have alternate spectrum, including in the 3 GHz band, in which to conduct their operations without creating interference concerns and notification requirements for flexible-use wireless licensees. CTIA agrees with the Commission's reasoning that requires amateur operators to relocate by a sunset date, stating that this approach is entirely reasonable because amateur operators can move to myriad other bands that have an amateur allocation. As the Commission explained in the Report and Order , the record strongly favored a full clearing of the band before the grant of new flexible-use licenses in order to avoid reducing the deployment flexibility of new flexible-use licensees. This is due to the different nature of flexible-use operations relative to Federal radiolocation operations, and the different spectrum available for secondary use with the change in primary user of this band. With respect to this band, the Commission in the Report and Order found, and the Commission affirms here, that allowing amateur operations to continue until each individual frequency is put in use by a new 3.45 GHz Service licensee in that specific location would place an unnecessary burden on new licensees to ascertain the location and nature of amateur operations and provide proper notice to them. The Commission agreed with the concerns about burdens on licensees created by ARRL's proposal and believed that relying on amateurs to design their systems so as not to interfere with commercial operations would unreasonably restrain the flexibility commercial wireless licensees expect when spectrum rights are awarded at auction and is not in the public interest. Allowing maximal flexibility in network design, deployment, and operation will increase investment in communications services and systems and technological development by providing maximum opportunities for deployment of flexible-use services. The Commission finds that ARRL has offered nothing in its petition to rebut the Commission's conclusions.

In an ex parte filed following the public release of the draft of this item, ARRL argues again that there is no justification offered for the Commission's position. But even in that filing, ARRL acknowledges that its proposal for continued secondary access would impose burdens on 3.45 GHz Service licensees. In particular, before deploying pursuant to its license, a new 3.45 GHz licensee would be required to perform a spectrum survey combined with notice to amateurs in an area of proposed service, or to work with ARRL and issue a public notification of its build-out plans. This structure is, by definition, a restriction on licensee flexibility in deployment and a burden imposed on primary licensees in order to enable secondary access. The Commission does not believe that continued access to this spectrum for amateur operations justifies these limitations on the use of the band by 3.45 GHz Service licensees, especially given continued amateur access to 100 megahertz of this band.

ARRL argues that alternative spectrum may not be suitable for several specific amateur uses, including propagation studies and related weak signal and moon bounce operations, since by their nature they are dependent upon and studying the particular properties of the 3.3-3.5 GHz spectrum. As the Commission made clear in the Report and Order , amateur stations operating in the 3 GHz band have several other nearby bands available to them with similar propagation characteristics. ARRL notes in its reply that some amateur uses cannot be replicated in the numerous other spectrum bands available for amateur operations; to the extent that this is true, it is nonetheless outweighed by benefits of full clearing of this spectrum—ensuring that the spectrum is used intensely and efficiently, creating a spectral environment that will support wireless broadband operations, and promoting commercial interest and investment in the band.

The Commission made clear in the Report and Order that the full clearing of spectrum is necessary to ensure the intensive and efficient use of spectrum, create a spectral environment that will support wireless broadband operations, and promote commercial interest and investment in the band. ARRL has provided no new argument as to why this decision is incorrect or not in the public interest, and the Commission therefore denies its petition for reconsideration.

In a recent ex parte, ARRL asks that amateur use be permitted to continue in Alaska, Hawaii, and U.S. Territories. The Commission denies this additional request. The marginal benefits of allowing a temporary continuation of secondary amateur operations outside the contiguous United States is outweighed by the public interest benefits of removing this potential hurdle to future flexible use licensing in Alaska, Hawaii, and U.S. Territories. Clearing secondary amateur operations from these areas today will simplify and hasten the process of introducing flexible-use licensing in these areas in the future, in line with the Commission's other decisions in this proceeding and with the Congressional direction to make the licenses available for flexible use expeditiously.

It is ordered, pursuant to sections 1, 4(i), 157, 301, 303, 307, 308, 309, 310, 316, of the Communications Act of 1934, as amended, as well as the Commercial Spectrum Enhancement Act, Public Law 108-494, 118 Stat. 3986 (Dec. 23, 2004) as amended, and the MOBILE NOW Act, Public Law 115-141, 132 Stat. 1098, Div. P, Title VI, section 603 (Mar. 23, 2018), 47 U.S.C. 151, 154(i), 157, 301, 303, 307, 308, 309, 310, 316, 923(g), and 928 and 1502, and by the Beat China by Harnessing Important, National Airwaves for 5G Act of 2020, Public Law 116-260, Division FF, Title IX, Sec. 905 that the Second Report and Order, Order on Reconsideration, and Order of Proposed Modification is adopted.

It is further ordered that the rules and requirements as adopted herein are adopted , effective sixty (60) days after publication in the Federal Register ; and that the Order of Proposed Modification is applicable as of the date of publication in the Federal Register ; provided however, that compliance with §§ 2.106, 27.14, 27.1603, 27.1605, and 27.1607 of the Commission's rules, which contain new or modified information collection requirements that require review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act, is not required until those information collections are approved by OMB and the Commission announces compliance with the sections in a document published in the Federal Register . The Commission delegates authority to the Wireless Telecommunications Bureau to issue such document and to cause §§ 2.106, 27.14, 27.1603, 27.1605, and 27.1607 to be revised accordingly.

It is further ordered that, pursuant to sections 309 and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 309 and 316, in the Order of Proposed Modification the Commission proposes that the licenses and authorizations of all secondary, non-Federal radiolocation licenses in the 3.3-3.55 GHz band will be modified pursuant to the conditions specified in the Second Report and Order at paragraph 166. These modification conditions will be effective 60 days after publication of this Second Report and Order, Order on Reconsideration, and Order of Proposed Modification in the Federal Register , provided, however, that in the event any secondary, non-Federal radiolocation licensee who believes that its license or permit would be modified by this proposed action, seeks to protest this proposed modification pursuant to the procedures above, the proposed license modifications specified in the Second Report and Order, Order on Reconsideration, and Order of Proposed Modification and contested by the licensee shall not be made final as to such licensee unless and until the Commission orders otherwise. Pursuant to section 316(a)(1) of the Communications Act of 1934, as amended, 47 U.S.C. 316(a)(1), publication of the Second Report and Order in the Federal Register shall constitute notification in writing of the Commission's Order proposing the modification of the secondary, non-Federal radiolocation licenses, and of the grounds and reasons therefore, and those licenses and any other party seeking to file a protest pursuant to section 316 shall have 30 days from the date of such publication to protest such Order.

It is further ordered that, pursuant to sections 309 and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 309 and 316, that following the final modification of each secondary, non-Federal radiolocation license, the Wireless Telecommunications Bureau shall modify each such license as necessary in order to provide for its new frequency assignment.

It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Second Report and Order, Order on Reconsideration and Order of Proposed Modification 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 parts 1, 2, and 27 as follows:

Why we need to publish a rule. This document is a final rule to designate critical habitat for the candy darter. Under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ) (Act), any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can be completed only by issuing a rule.

We listed the candy darter as an endangered species on November 21, 2018 (83 FR 58747). Also, on November 21, 2018, we published in the Federal Register a proposed critical habitat designation for candy darter (83 FR 59232). Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.

What this document does. This document is a final rule that designates critical habitat necessary for the conservation of the candy darter. The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for candy darter. We are designating a total of approximately 593 stream kilometers (368 stream miles) of rivers and streams in Virginia and West Virginia for the candy darter.

Peer review and public comment. Our designation is based on the best scientific data available in our peer-reviewed species status assessment (SSA) report. The SSA was used to inform the decisionmaking process of the proposed and final listing rules (82 FR 46197 and 83 FR 58747, respectively) and proposed and final critical habitat designations (83 FR 59232 and this rule, respectively). For further detail on the responses from peer reviewers, see the final rule listing the candy darter as an endangered species (83 FR 58747). We also considered all comments and information received from the public during the comment period for the proposed designation of critical habitat. Information we received from public comment is incorporated in this final designation of critical habitat, as appropriate, or addressed below in Summary of Comments and Recommendations.

We proposed the candy darter for listing on October 4, 2017 (82 FR 46197), and finalized the listing on November 21, 2018 (83 FR 58747). As such, the candy darter is included as an endangered species on the List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations at 50 CFR 17.11(h). We also proposed to designate critical habitat for the candy darter on November 21, 2018 (83 FR 59232). For information on any actions prior to these rules, refer to the proposed listing rule.

We requested written comments from the public on the proposed designation of critical habitat for the candy darter (83 FR 59232) during an open comment period that opened on November 21, 2018, and closed on January 22, 2019. We did not receive any requests for a public hearing. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and draft economic analysis during these comment periods.

During the comment period, we received 14 comment letters directly addressing the proposed critical habitat designation. All substantive information provided during the comment period has been grouped into general issues specifically relating to the proposed critical habitat designation for the candy darter and either incorporated directly into this final determination, as appropriate, or addressed below in the following summary.

In addition, some of the 14 substantive comments directly related to the critical habitat designation also contained suggestions that were applicable to general recovery issues for the candy darter, but not directly related to the critical habitat designation ( i.e., meaning these comments are outside the scope of the critical habitat rule). These general comments included topics such as the use of reintroductions or translocations, specific areas for high-quality reintroduction sites, riparian vegetation management to address the effects of climate change on water temperature in candy darter streams, and baitfish regulations. While these comments may not be directly incorporated into the critical habitat rule, we have noted the suggestions and look forward to working with our partners on these topics during recovery planning for the candy darter.

(1) Comment: The U.S. Forest Service (USFS), the West Virginia Department of Natural Resources (DNR), and several public commenters suggested that reintroductions or translocations or both would be important conservation strategies for the candy darter. Some commenters suggested specific areas that would represent high-quality reintroduction sites.

Our response: During recovery planning and implementation for the candy darter, we will work collaboratively with our partners and all stakeholders to recover the species. Translocation into historically occupied habitats is consistent with the recovery strategy laid out in the Candy Darter Recovery Outline (Service 2019, entire). We appreciate the support of our partners in this regard and will continue to work with them to determine appropriate locations to implement this strategy, monitor the success of these efforts, and manage these populations as needed.

(2) Comment: The USFS urged us to consider that designating critical habitat might mandate conservation measures beneficial to the candy darter but perhaps be detrimental to the overall aquatic ecosystem ( e.g., maintaining or adding barriers to fish passage).

Our response: Barriers to fish passage may reduce the spread of variegate darters ( Etheostoma variatum ), the primary threat to candy darters, within candy darter habitats. However, the designation of critical habitat will not result in the mandate to install any passage barriers. Any proposals to install or remove fish passage barriers would be evaluated on a case-by-case basis for their potential effects to the candy darter and its critical habitat, as well as for the overall conservation benefits and effects to other ecosystem functions.

(3) Comment: The USFS asked us to clarify and recognize that the areas of ongoing hybridization between variegate darters and candy darters may change.

Our response: Occupied habitat for the candy darter are those areas where individual fish with pure candy darter alleles were found based on the most recent survey results. We recognize that the zone of hybridization may change over time and that pure candy darters may become extirpated from some portions of currently occupied habitat in the future. However, maintaining existing populations is important to the survival and recovery of the species. Therefore, designation of occupied habitat as it occurs at the time of listing is appropriate. Critical habitat can be revised in the future if substantial new information becomes available that would suggest certain areas should be added or removed.

(4) Comment: The USFS asked to us to acknowledge the importance of Forest Service Watershed Restoration Action Plans (and other conservation actions ongoing in national forests) within the range of the candy darter and expressed interest in discussing potential effects of critical habitat designations on land management activities.

Our response: We acknowledge the significant conservation contributions that the USFS has made to protecting and enhancing candy darter habitat and its surrounding watershed. We also recognize that there are section 7 consultation requirements as a result of the listing of the candy darter and the designation of critical habitat. We will continue to work collaboratively with the USFS to address these workload concerns and to determine what additional avoidance, minimization, and conservation measures are appropriate for the species.

(5) Comment: The USFS suggested that we consider whether or not the designation of critical habitat may increase the risk of malicious introductions of nonnative fish into candy darter streams.

Our response: We are not aware of any efforts to maliciously introduce nonnative fish in candy darter waters. The designation of critical habitat may increase public awareness of the importance of these watersheds and encourage the development of education and outreach about baitfish regulations. We are working with the West Virginia DNR to revise regulations to reduce the potential for baitfish introductions with the aim of increasing awareness and enforcement on this issue.

(6) Comment: The USFS and one public commenter raised concerns that climate change may cause widespread changes in vegetation in the riparian areas that would result in higher temperatures or increased flooding, which increases sedimentation in candy darter streams.

Our response: We acknowledge the importance of intact riparian areas to maintaining candy darter habitat and will work with partners to maintain and restore appropriate riparian areas to provide the proper thermal properties and bank stability in candy darter habitat.

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from agencies within the State of West Virginia (the State) regarding the proposal to designate critical habitat for the candy darter are addressed below.

(7) Comment: The proposed critical habitat rule also sought comments on the Service's intent to explore other recovery tools that may require additional regulations ( e.g., designating experimental populations under section 10(j) of the Act) or permits ( i.e., Safe Harbor Agreements under section 10 of the Act). The West Virginia DNR expressed concern with using our authorities under section 10(j) of the Act for recovery of the candy darter. The State concluded that establishing experimental populations (or designating additional areas of critical habitat, other than those proposed) is not in the best interest of the species. Conversely, one public commenter suggested that we should use our authorities under section 10(j) of the Act to establish experimental candy darter populations to promote State and private landowner collaboration in conserving the species.

Our response: As discussed above, during the recovery planning process for the candy darter, we will work collaboratively with our partners and stakeholders to ensure the best conservation outcome for the species. Translocation into historical habitats is consistent with the species' recovery strategy.

Upon further consideration, we conclude that designating experimental populations (under section 10(j) of the Act) is not appropriate at this time, and we are not designating any areas as critical habitat beyond those that were proposed. In the future, if we determine, in consultation with partners and stakeholders, that the reintroduction of the species to certain historically occupied streams would benefit from the regulatory flexibility offered by section 10(j) of the Act, we will publish a proposed rule for public comment. See Summary of Changes from Proposed Rule, below, for additional information.

(8) Comment: The West Virginia Department of Environmental Protection (DEP) and a public commenter expressed concerns with designating critical habitat. Commenters indicated that we should not designate critical habitat because: (1) Hybridization (and not loss of habitat) is the primary stressor affecting the candy darter; (2) habitat protections would not reduce the likelihood of extinction; and (3) habitat protections may disproportionately benefit the variegate darter.

Our response: The designation of critical habitat is not a discretionary action. According to section 4(a)(3)(A) of the Act, the Secretary of the Interior shall, to the maximum extent prudent and determinable, concurrently with making a determination that a species is an endangered species or a threatened species, designate critical habitat for that species. We have determined that critical habitat is both prudent and determinable for the candy darter (83 FR 59232, November 21, 2018). Therefore, as required by the Act and after consideration of substantive comments on the proposed rule, we are designating, as critical habitat, those areas occupied by the species at the time of listing on which are found the physical or biological features essential for the conservation of the species and which may require special management considerations or protection.

As we discussed in the SSA report (Service 2018, entire) and the proposed rule (83 FR 59232, November 21, 2018), there are multiple stressors in addition to the introduction of the variegate darter that are affecting the candy darter. Management of these other stressors will be important to the conservation of the species. In addition, while eliminating variegate darters from candy darter watersheds is an important goal for the conservation of the species, we are not aware of feasible methods for achieving this goal. We look forward to working with our conservation partners to research potential methods for reducing the threat of variegate darter hybridization. Though the candy darter and variegate darter share many of the same habitat requirements, such as unembedded gravel substrate, we have no evidence to suggest that the maintenance of high-quality habitat for the candy darter disproportionately benefits the variegate darter. On the contrary, it is conceivable that variegate darters are more tolerant of marginal habitat conditions and that high-quality streams within the candy darter's historical range might provide the candy darter a competitive advantage over the introduced variegate darter.

(9) Comment: The West Virginia DNR noted that candy darters may also be present in several perennial tributaries outside of the streams proposed for designation as critical habitat, but that these tributaries have not been surveyed. The State did not recommend including these tributaries as critical habitat at this time, but did recommend that these streams should be considered when reviewing projects that may affect the species.

Our response: We acknowledge that the candy darter may be present in additional streams or tributaries that have not been surveyed, and will work with the West Virginia DNR and Virginia Department of Game and Inland Fisheries to develop a list of these streams so that they can be considered during project reviews. The candy darter will be protected as an endangered species wherever it is found under the prohibitions described in section 9 of the Act.

(10) Comment: The West Virginia DEP pointed out that the rule does not define the ratio or density of nonnative species that would be consistent with the conservation of the candy darter.

Our response: As discussed in the candy darter SSA report, the scientific evidence is clear that nonnative species can have a detrimental effect on native species such as the candy darter. However, the data are not currently available to explicitly define a ratio or density of nonnatives that is protective of the candy darter. Research into establishing such conservation metrics and recovery goals for the candy darter will be addressed during the recovery planning and implementation process.

(11) Comment: The West Virginia DNR informed us that they have taken steps to formulate regulations designed to curtail, mitigate, or both, the practice of moving baitfish in regions that still contain candy darter populations and in areas in which they hope to reestablish candy darter populations.

Our response: Limiting the movement of baitfish is a key component to reduce the threat of additional variegate darter introductions, and we applaud the State's efforts in this regard.

(12) Comment: The West Virginia DNR suggested that we may have underestimated the threat of acid precipitation in the Upper Gauley.

Our response: Stream acidification in some candy darter watersheds is a serious concern and we appreciate the efforts of the State and other partners in addressing this threat. We will address this topic in future recovery planning.

(13) Comment: Two public commenters expressed concerns regarding the effect of a critical habitat designation on the coal mining industry. There was a particular emphasis of concern around a statement in the incremental effects memorandum (IEM) prepared by us for the economic analysis of the critical habitat designation (IEM 2018). The statement reads: “Specific recommendations for coal mining in candy darter watersheds (augmenting the general management recommendations) will include not using valley fills. Strategic placement and frequent maintenance of all construction and operational features ( e.g., roads, slurry ponds, and other features that lead to sedimentation) will also be recommended.” The commenters stated that this provision would result in a ban on coal mining.

Our response: It is important to note the context of this statement within the IEM, as it describes “protections or efforts relevant to the known threats to the species that would provide some level of conservation for the candy darter absent the proposed critical habitat designation.” The suggestion of avoiding valley fills as a conservation measure for candy darters specifically refers to potential actions that are not a result of critical habitat designation. Therefore, the IEM does not include the effects of these actions in its analysis, as they would occur regardless of the presence or absence of designated critical habitat.

We do not propose (nor do we have the authority) to ban coal mining. Federal agencies are required to consult with the Service to ensure that any action they carry out, fund, or authorize will not jeopardize the species or destroy or adversely modify designated critical habitat. The requirement to ensure any action does not jeopardize the species applies whether or not the action area is designated as critical habitat. Avoiding the use of valley fills in coal mining in candy darter watersheds, as referenced by the IEM, is an example of a conservation measure the Service might recommend during section 7 consultation, whether or not the area is designated as critical habitat.

The Service's 1996 Biological Opinion (BO) issued to the Office of Surface Mining and Reclamation and Enforcement (OSMRE) addresses coal mining practices regulated under the Surface Mining Control and Reclamation Act. The terms and conditions of that BO require the Service to work with the appropriate State regulatory authority to develop species-specific protective measures (SSPMs) to avoid and minimize the impacts to listed species. Implementation of SSPMs and development of the required protection and enhancement plan do not make any single conservation measure mandatory ( e.g., banning the use of valley fills). Rather, during the consultation process for each project, the Service works with OSMRE and the State regulatory agency to develop specific conservation measures to satisfy the requirement of the BO to avoid and minimize impacts to the candy darter while allowing coal mining to proceed.

(14) Comment: Two public commenters provided comments describing the beneficial impacts of forestry best management practices (BMPs) on water quality and encouraged us to use “consistent language, that is supported by science when discussing the value of forestry BMPs.”

Our response: We have always relied upon the use of the best scientific and commercial data available in decisionmaking processes, and we will continue to do so with regard to discussions of BMPs. The implementation of BMPs for forestry can reduce sedimentation when consistently and diligently applied, and that these BMPs are important for preserving the integrity of aquatic habitats and the species that occupy them. However, the assertion that current mechanisms are protective of the species does not relieve the Service of its statutory obligation to designate critical habitat. In Ctr. for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court held that the Act does not direct us to designate critical habitat only in those areas where “additional” special management considerations or protection is needed. If any area provides the physical or biological features essential to the conservation of the species, even if that area is already well managed or protected, that area still qualifies as critical habitat under the statutory definition if special management is needed.

(15) Comment: Two public commenters encouraged us to work with the State and private landowners to establish forestry BMPs on property that is adjacent to the critical habitat designation.

Our response: We recognize and appreciate the importance of working with landowners and project proponents to protect candy darter habitats, and to avoid, minimize, and mitigate any adverse effects that may occur. We will continue to use our existing authorities to address these issues as appropriate.

(16) Comment: Two public commenters noted that candy darters occupy habitats in watersheds with active coal mining. They stated that this situation suggests that candy darters can “thrive” in these areas.

Our response: While candy darter populations may persist in some watersheds where mining or other land disturbances are or have been present, the extent to which these populations are stable and/or thriving remains to be determined. The proposed critical habitat rule does not specify that any particular land use is incompatible with the persistence of candy darter populations. As mentioned in previous responses to comments raising concerns about the impacts to the coal mining industry, we plan to work cooperatively with the relevant State and Federal regulatory agencies to develop conservation measures allowing the continuation of coal mining in a manner that avoids and minimizes impacts to the candy darter and its habitat.

(17) Comment: One public commenter requested that we reinitiate section 7 consultation and issue a biological opinion for two natural gas Executive Order 13211 construction projects.

Our response: We are aware of these two pipeline projects and are in discussions with the Federal Energy Regulatory Commission regarding section 7 consultation needs for the candy darter.

(18) Comment: One public commenter asked us to clarify the terms “stream mile” and “protection of riparian buffers” and to confirm that private forest lands are not included in the critical habitat designation. Similarly, another commenter suggested that we should exclude State and private forest lands from a final critical habitat designation.

Our response: We determined the “stream mile” to be the estimated length of the occupied stream segment by tracing the approximate centerline of the stream channel from the appropriate upstream defining characteristic to the appropriate downstream defining characteristic using the USA Topo Environmental Systems Research Institute (ESRI) basemap and/or U.S. Geological Survey topographic map. See the “Criteria Used to Identify Critical Habitat” section in the proposed critical habitat rule (83 FR 59232, November 21, 2018) for further details. Within these stream segments, critical habitat consists of the stream channel up to the ordinary high water line. As defined at 33 CFR 329.11, the “ordinary high water mark” on nontidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of the soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.

Therefore, adjacent upland or terrestrial areas that are not below the ordinary high water line are not included in designated critical habitat. However, we would anticipate conducting section 7 consultations with Federal agencies for projects on Federal lands or for projects with a Federal nexus if a project had indirect impacts to the candy darter's critical habitat or on the species itself. In general, activities in riparian areas should be conducted in such a manner as to protect adjacent streams from excessive sedimentation, high water temperatures, and other water quality perturbations that would be detrimental to the candy darter. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Changes from the proposed to the final critical habitat designation were minor in nature. Based on substantive comments received during the public comment period that provided new candy darter survey data and habitat observations, we corrected some stream termini (and resultant segment lengths). Additionally, one stream with candy darter occurrence data was inadvertently omitted from the proposed rule; this segment is now included as critical habitat. The changes listed below resulted in a net reduction of approximately 2.8 stream kilometers (1.7 stream miles) of critical habitat from what was originally proposed. All changes are reflected on the maps, which outline the areas designated as critical habitat and are located at the end of this document.

As mentioned above in Summary of Comments and Recommendations, the Service has reconsidered its intent to establish nonessential experimental populations using our authority under section 10(j) of the Act at this time. Based on comments from a State partner, we conclude that allowing the States to reestablish and translocate the candy darter into historically occupied areas using their own authorities will be a more effective recovery strategy for the candy darter. However, if we receive further substantive information at a later date and determine that the use of a section 10(j) rule will aid in the recovery of the candy darter, we will publish a proposed rule for public comment. Reestablishing candy darter populations into historically occupied areas continues to be an important part of our recovery strategy for the candy darter. We will coordinate with our partners to implement the most effective recovery strategy. In both the State of Virginia and the State of West Virginia, the water and the streambed fall under the authority of the State. As a result, the State resource agencies hold the State regulatory authority over the waters (Virginia Code § 62.1, West Virginia Code § 22-26).

Please refer to our November 21, 2018, proposed critical habitat rule (83 FR 59232) for a summary of species information available to the Service at the time that the proposed rule was published. Based on information we received during the proposed rule's public comment period, we updated several critical habitat stream termini to more accurately capture areas that meet the definition of critical habitat and remove areas that do not. We also added one inadvertently omitted occupied stream as critical habitat in the Greenbrier River watershed. The result of these changes in this final rule is a net reduction of approximately 1.7 stream miles (2.8 stream kilometers) (outlined above). These changes are incorporated into the critical habitat maps at the end of this rule.

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as, “An area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).”

Conservation, as defined under section 3 of the Act, means “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.”

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features: (1) Which are essential to the conservation of the species, and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside of the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species, the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the Act's section 9 prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to the recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

On August 27, 2019, we published a final rule in the Federal Register (84 FR 45020) to amend our regulations concerning the procedures and criteria we use to designate and revise critical habitat. That rule became effective on September 26, 2019, but, as stated in that rule, the amendments it sets forth apply to “rules for which a proposed rule was published after September 26, 2019.” We published our proposed critical habitat designation for the candy darter on November 21, 2018 (83 FR 59232); therefore, the amendments set forth in the August 27, 2019, final rule at 84 FR 45020 do not apply to this final designation of critical habitat for the candy darter.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. For example, physical features might include gravel of a particular size required for spawning, alkali soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic needed to support the life history of the species. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.

We derive the specific physical or biological features essential to the conservation of candy darter from studies of this species' habitat, ecology, and life history as described below. Additional information can be found in the proposed critical habitat designation and final listing rule published in the Federal Register on November 21, 2018 (83 FR 59232 and 83 FR 58747, respectively), and the recovery outline for the candy darter (Service 2019, entire), which can be found at: https://ecos.fws.gov/docs/recovery_plan/2018%20CDRecoveryOutline.pdf. We have determined that the following physical or biological features are essential to the conservation of the candy darter:

(1) Ratios or densities of nonnative species that allow for maintaining populations of candy darters;

(2) A blend of unembedded gravel and cobble that allows for normal breeding, feeding, and sheltering behavior;

(3) Adequate water quality characterized by seasonally moderated temperatures and physical and chemical parameters ( e.g., pH, dissolved oxygen levels, turbidity, etc.) that support normal behavior, growth, and viability of all life stages of the candy darter;

(4) An abundant, diverse benthic macroinvertebrate community ( e.g., mayfly nymphs, midge larvae, caddisfly larvae) that allows for normal feeding behavior; and

(5) Sufficient water quantity and velocities that support normal behavior, growth, and viability of all life stages of the candy darter.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The overall habitat characteristics that are important for the candy darter include sufficiently stabilized forest streambanks throughout the watersheds such that water quality allows for normal feeding, breeding, and sheltering in an area with sufficiently low numbers of nonnative species (Service 2018, pp. 15-17, 22-25, 32-34). The features essential to the conservation of the candy darter may require special management considerations or protections to reduce the following threats: (1) Hybridization with the nonnative variegate darter; (2) general increase in water temperature, primarily attributed to land use changes; (3) changes in water chemistry, including, but not limited to, changes in pH levels or concentrations of certain contaminants (such as, but not limited to, coliform bacteria); (4) habitat fragmentation primarily due to construction of barriers and impoundments; (5) excessive sedimentation and stream bottom embeddedness (the degree to which gravel, cobble, rocks, and boulders are surrounded by, or covered with, fine sediment particles); and (6) competition for habitat and other instream resources and predation from nonnative fishes.

Management activities that could ameliorate these threats include, but are not limited to: (1) Use of BMPs designed to reduce sedimentation, erosion, and bankside destruction; (2) protection of riparian corridors and retention of sufficient canopy cover along streambanks; (3) reduction of other watershed disturbances that release sediments, pollutants, or nutrients into the water; (4) public outreach requesting the public's assistance with stopping the movement of nonnative aquatic species; (5) increased enforcement and/or outreach regarding existing regulations prohibiting the movement of bait fish; (6) survey and monitoring to further characterize the extent and spread of hybridization with variegate darters; (7) research to determine whether some environmental factors or set of factors might allow candy darters to persist in particular areas despite variegate darter introductions; (8) research characterizing habitat conditions in historically extirpated candy darter sites to facilitate successful reintroduction efforts; (9) research and development of tools and techniques that can be used to address the competitive behavior that allows for variegate darters to dominate candy darters, which leads to hybridization; and (10) reintroductions of candy darters to historically extirpated areas and/or population augmentation of candy darters in sufficient numbers to outcompete variegate darters.

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not designating any areas outside the geographical area occupied by the species at the time of listing, because we did not find any areas that were essential for the conservation of the species. We are designating critical habitat in areas within the geographical area occupied by the species at the time of listing in 2018. Refer to the candy darter proposed critical habitat designation for a full description of criteria used to identify critical habitat (83 FR 59232, November 21, 2018).

When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features that are suitable for the candy darter. The scale of the maps that the Service prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation requirements with respect to critical habitat and the requirement of no destruction or adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R5-ES-2018-0050, on our internet site https://www.fws.gov/northeast/candydarter/, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT , above).

We are designating five units as critical habitat for the candy darter. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those five units are: (1) Greenbrier, (2) Middle New, (3) Lower Gauley, (4) Upper New, and (5) Upper Gauley.

We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the candy darter, below. In all instances, the units are occupied. The State of Virginia (VA) or West Virginia (WV), as applicable, owns the stream water and stream bottoms, and the lands described below are those adjacent to the designated critical habitat stream areas.

The Greenbrier Unit consists of six subunits in Pocahontas County, WV. The occupied streams are adjacent to primarily Federal land, with some private land and one State-owned parcel. The Greenbrier Unit has been surveyed for the candy darter as recently as 2014 (Service 2018, p. 48). The unit currently supports all breeding, feeding, and sheltering needs for the species. See details below.

Unit 1a consists of approximately 29.7 stream kilometers (skm) (18.5 stream miles (smi)) of the East Fork of the Greenbrier River from the confluence of an unnamed tributary (located 1.8 skm (1.1 smi) upstream of the Bennett Run confluence), downstream to the confluence of the East Fork and West Fork of the Greenbrier River at Durbin, WV; approximately 6.8 skm (4.2 smi) of the Little River from the U.S. Highway 250 crossing, downstream to the confluence of the Little River and the East Fork of the Greenbrier River; and approximately 1.9 skm (1.2 smi) of Buffalo Fork from the Buffalo Lake dam, downstream to the confluence of Buffalo Fork and the Little River. The land adjacent to this unit is mostly forested interspersed with small communities, low-density residences, and agricultural fields along the lower portion of the East Fork of the Greenbrier River. Approximately 21.2 skm (13.2 smi) of Unit 1a is within the Monongahela National Forest with the remainder located almost entirely adjacent to private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Candy darters occur at multiple sites in this unit (Service 2018, p. 28). Unit 1a contributes to the redundancy of the Greenbrier metapopulation.

Unit 1b consists of approximately 29.9 skm (18.6 smi) of the West Fork of the Greenbrier River from the confluence with Snorting Lick Run, downstream to the confluence of the East Fork and West Fork of the Greenbrier River at Durbin, WV; approximately 13.3 skm (8.3 smi) of the Little River from the confluence with Hansford Run, downstream to the confluence of the Little River and the West Fork of the Greenbrier River; and approximately 4.8 skm (3.0 smi) of Mountain Lick Creek from the confluence with an unnamed tributary (located 1.5 skm (0.9 smi) downstream of the Upper Mountain Lick Forest Service Road crossing), downstream to the confluence of Mountain Lick Creek and the West Fork of the Greenbrier River. The land adjacent to this unit is almost entirely forested interspersed with a few residences and agricultural fields along the lower portion of the West Fork of the Greenbrier River near the town of Durbin, WV. Approximately 47.1 skm (29.3 smi) of Unit 1b is within the Monongahela National Forest with the remainder adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Surveys found candy darters at multiple sites in this unit (Service 2018, p. 28). Unit 1b contributes to the redundancy of the Greenbrier metapopulation.

Unit 1c consists of approximately 69.3 skm (43.1 smi) of the Greenbrier River from the confluence of the East Fork and West Fork of the Greenbrier River at Durbin, WV, downstream to the confluence of Knapp Creek at Marlinton, WV. The land adjacent to this unit is mostly forested; however, several small communities with residences and light commercial development, along with scattered rural residences and agricultural fields, occur at various locations. Approximately 47.5 skm (29.5 smi) of Unit 1c is within the Monongahela National Forest and the Seneca State Forest, with the remainder adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Survey data indicate candy darters are present in the upper and lower portions of this unit (Service 2018, p. 28). While survey data for the intervening section are lacking, candy darters may occur where suitable habitat is present. Unit 1c contributes to the redundancy of the Greenbrier metapopulation and provides connectivity between the other Greenbrier watershed populations.

Unit 1d consists of approximately 21.2 skm (13.2 smi) of Deer Creek from the confluence of Deer Creek and Saulsbury Run, downstream to the confluence with the Greenbrier River; and approximately 16.3 skm (10.1 smi) of North Fork from a point approximately 1.6 km (1.0 mi) upstream of the Elleber Run confluence, downstream to the confluence of North Fork and Deer Creek. The lower half of the land adjacent to this unit is mostly forested, while the upper portion contains low-density residences and agricultural fields. Approximately 10.0 skm (6.2 smi) of Unit 1d is within the Monongahela National Forest, with the remainder adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Surveys collected candy darters at two locations in this unit (Service 2018, p. 28). Unit 1d contributes to the redundancy of the Greenbrier metapopulation.

Unit 1e consists of approximately 10.1 skm (6.3 smi) of Sitlington Creek from the confluence of Galford Run and Thorny Branch, downstream to the confluence with the Greenbrier River. Some of the riparian area of Unit 1e is forested; however, the majority of the land adjacent to this unit is agricultural fields and widely scattered residences. Approximately 1.2 skm (0.7 smi) of Unit 1e is within the Monongahela National Forest, with the remainder adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Candy darters have been documented at several locations in this unit (Service 2018, p. 28). Unit 1e contributes to the redundancy of the Greenbrier metapopulation.

Unit 1f consists of approximately 43.9 skm (27.3 smi) of Knapp Creek from a point approximately 0.16 skm (0.1 smi) west of the WV Route 84 and Public Road (PR) 55 intersection, downstream to the confluence with the Greenbrier River at Marlinton, WV. The land adjacent to this unit is largely forested; however, low-density residential and agricultural fields occur in much of the upstream portions. The land surrounding the lowest section of Unit 1f is dominated by residential and commercial development. Approximately 7.2 skm (4.5 smi) of Unit 1f is within the Monongahela National Forest, with the remainder adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Surveys documented candy darters at several locations in this unit (Service 2018, p. 28). Unit 1f contributes to the redundancy of the Greenbrier metapopulation.

The Middle New Unit comprises three stream subunits in Bland and Giles Counties, VA. The occupied streams are adjacent to a mix of Federal and private land. Candy darter have been surveyed in the Middle New Unit as recently as 2016 (Service 2018, p. 48). The unit currently supports all breeding, feeding, and sheltering needs for the species. See details below.

Unit 2a consists of approximately 4.2 skm (2.6 smi) of Dismal Creek from the confluence with Standrock Branch, downstream to the confluence of Dismal Creek and Kimberling Creek. The land adjacent to this unit is almost entirely forested, with some scattered residences and small agricultural fields. Approximately 3.2 skm (2.0 smi) of Unit 2a is within the George Washington and Jefferson National Forest, with the remainder adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Surveys documented a small candy darter population, which contributes to the representation and redundancy of the species (Service 2018, p. 28).

Unit 2b consists of approximately 31.1 skm (19.3 smi) of Stony Creek from the confluence with White Rock Branch, downstream to the confluence with the New River. The land adjacent to this unit is almost entirely forested, with some scattered residences, a large underground lime mine, a processing plant, and a railroad spur line along the downstream portion. Approximately 16.1 skm (10.0 smi) of Unit 2b is within the George Washington and Jefferson National Forest, with the remainder adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Surveys documented candy darters at multiple locations within this unit. Unit 2b is the most robust population in Virginia and contributes to the representation and redundancy of the species (Service 2018, p. 28).

Unit 2c consists of approximately 5.1 skm (3.2 smi) of Laurel Creek from a point approximately 0.8 skm (0.5 smi) upstream of the unnamed pond, downstream to the confluence of Laurel Creek and Wolf Creek and approximately 1.4 skm (0.8 smi) of Wolf Creek from the Laurel Creek confluence downstream to the stream riffle adjacent to the intersection of Wolf Creek Highway and Alder Lane. The unit passes through a forested gap in a ridgeline; however, the riparian zone is dominated by Interstate Highway 77, U.S. Highway 52, and residential and commercial development. Unit 2c is adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Surveys found candy darters at several locations within this unit (Service 2018, p. 28). Unit 2c contributes to the representation and redundancy of the species.

Unit 3 consists of approximately 2.9 skm (1.8 smi) of the Gauley River from the base of the Summersville Dam, downstream to the confluence of Collison Creek. The land adjacent to this unit is entirely forested, with the exception of parking areas and infrastructure at the base of the Summersville Dam. The entirety of Unit 3 is within the National Park Service's Gauley River National Recreation Area and the U.S. Army Corps of Engineer's (Corps') Summersville Recreation Area. Candy darters are abundant in the tailwaters of the dam. Unit 3 supports the only candy darter population remaining in the Lower Gauley watershed and contributes to the representation and redundancy of the species. Candy darters were documented in surveys of Unit 3 as recently as 2014 (Service 2018, pp. 28 & 48). The unit currently supports all breeding, feeding, and sheltering needs for the species.

Unit 4 consists of approximately 7.9 skm (4.9 smi) of Cripple Creek from a point approximately 3.2 skm (2.0 smi) upstream of the State Road 94 bridge, downstream to the confluence of Cripple Creek and the New River. The land adjacent to this unit is primarily low-density residences and agricultural fields, although some small segments pass through wooded parcels. The stream in Unit 4 is adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Surveys found candy darters at several locations within this unit as recently as 2016 (Service 2018, pp. 28 & 48). This is the only known candy darter population in the Upper New River watershed, and this unit contributes to the representation and redundancy of the species. The unit currently supports all breeding, feeding, and sheltering needs for the species.

The Upper Gauley Unit consists of six stream subunits in Nicholas, Greenbrier, Pocahontas, and Webster Counties, WV. The occupied streams are adjacent to a mix of Federal and private land. Candy darter have been surveyed in the Upper Gauley Unit as recently as 2014 (Service 2018, p. 48). The unit currently supports all breeding, feeding, and sheltering needs for the species. See details below.

Unit 5a consists of approximately 37.3 skm (23.2 smi) of the Gauley River from the North and South Forks of the Gauley River, downstream to the confluence of the Gauley River and the Williams River at Donaldson, WV; and 2.9 skm (1.8 smi) of Straight Creek from its confluence with the Gauley River to a point approximately 2.9 skm (1.8 smi) upstream of the confluence. The land adjacent to this unit is mostly forested; however, aerial imagery (ESRI 2015; ESRI 2016; ESRI 2017) shows forest clearings with varying degrees of regrowth, indicating ongoing timber harvests in some tributary stream systems. Other human development in the watershed consists primarily of scattered residences and roads, mostly in the valley adjacent to the Gauley River. Approximately 9.0 skm (5.6 smi) of Unit 5a is within the Monongahela National Forest. The remainder of the unit is adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Surveys of Unit 5a captured candy darters at multiple locations (Service 2018, p. 28). The unit contributes to the redundancy of the Upper Gauley metapopulation.

Unit 5b consists of approximately 43.8 skm (27.2 smi) of the Gauley River from the confluence of the Gauley and Williams Rivers at Donaldson, WV, downstream to a point approximately 1.6 skm (1.0 smi) upstream of the Big Beaver Creek confluence. The land adjacent to this unit is mostly forested; however, aerial imagery (ESRI 2015; ESRI 2016; ESRI 2017) shows forest clearings with varying degrees of regrowth, indicating ongoing timber harvests in some areas. Other human development consists primarily of low-density residential areas and small communities with some commercial facilities. Small agricultural fields are associated with some of the scattered residences. Approximately 14.6 skm (9.2 smi) of Unit 5b is within the Monongahela National Forest and/or adjacent to land owned by the Corps. The streams in the remainder of the unit are adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Surveys of Unit 5b captured candy darters at several locations (Service 2018, p. 28). The unit provides connectivity between other candy darter streams in the Upper Gauley watershed and contributes to the redundancy of the Upper Gauley metapopulation.

Unit 5c consists of approximately 16.3 skm (10.1 smi) of Panther Creek from a point approximately 1.1 skm (0.7 smi) upstream of the Grassy Creek Road crossing, downstream to the confluence with the Gauley River. The unit is mostly forested; however, aerial imagery (ESRI 2015; ESRI 2016; ESRI 2017) shows forest clearings with varying degrees of regrowth, indicating ongoing timber harvests in much of the upland areas. Other human development consists of the occasional residence and small agricultural field in the creek valley, and the Richwood Municipal Airport located on an adjacent ridge. The streams in Unit 5c are adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. While survey data are sparse for this unit, candy darters occur within Panther Creek, and the stream maintains suitable habitat for the species; thus, this unit contributes to the redundancy of the Upper Gauley metapopulation (Service 2018, p. 28).

Unit 5d consists of approximately 52.4 skm (32.6 smi) of the Williams River from the confluence with Beaverdam Run, downstream to the confluence of the Williams River and the Gauley River at Donaldson, WV; and 5.1 skm (3.2 smi) of Tea Creek from a point on Lick Creek approximately 2.7 skm (1.7 smi) upstream of the Lick Creek confluence, downstream to the Tea Creek confluence with the Williams River. The land adjacent to this unit is almost entirely forested with just a few residences and small agricultural fields at the lower portion of the river. The streams in Unit 5d are entirely within the Monongahela National Forest. Survey data indicate candy darters are present at the upper and lower portions of this unit. While data are sparse for the majority of the intervening stretch, we assume, based on the available evidence, that the habitat is suitable for the species (Service 2018, p. 28). Unit 5d contributes to the redundancy of the Upper Gauley metapopulation.

Unit 5e consists of approximately 39.3 skm (24.4 smi) of the Cranberry River from the confluence of the North and South Forks of the Cranberry River, downstream to the confluence of the Cranberry River and the Gauley River. The land adjacent to this unit is almost entirely forested, and the stream is entirely within the Monongahela National Forest. Survey data indicate candy darters are present at the upper and lower portions of this unit. While survey data are sparse for the intervening stretch, we assume, based on the available evidence, that the habitat is suitable for the species (Service 2018, p. 28). Unit 5e contributes to the redundancy of the Upper Gauley metapopulation.

Unit 5f consists of approximately 16.7 skm (10.4 smi) of Cherry River from the confluence of the North and South Forks of the Cherry River, downstream to the confluence of the Cherry River and the Gauley River; approximately 28.0 skm (17.4 smi) of the North Fork Cherry River from the Pocahontas Trail crossing, downstream to the confluence of the North and South Forks of the Cherry River; approximately 26.2 skm (16.3 smi) of the South Fork Cherry River from a point approximately 0.5 skm (0.3 smi) south of County Road 29/4 in VA, downstream to the confluence of the North and South Forks of the Cherry River; and approximately 24.9 skm (15.5 smi) of Laurel Creek from a point approximately 0.3 skm (0.2 smi) west of Cold Knob Road, downstream to the confluence of Laurel Creek and the Cherry River. The land adjacent to this unit is mostly forested with scattered residences along the lower portion of the Cherry River. The town of Richwood, WV, with residential and commercial development and an industrial sawmill, is at the confluence of the North and South Forks of the Cherry River. The North and South Forks of the Cherry River are almost entirely forested; however, aerial imagery (ESRI 2015; ESRI 2016; ESRI 2017) shows forest clearings with varying degrees of regrowth, indicating ongoing timber harvests in several locations. There are scattered residences on Laurel Creek and some evidence of recent timber harvests; otherwise, the land adjacent to this section of Unit 1f is mostly forested. Approximately 29.1 skm (18.1 smi) of Unit 5f is within the Monongahela National Forest. The remainder is adjacent to almost entirely private land, except for a small amount that is publicly owned in the form of bridge crossings, road easements, and the like. Survey data indicate candy darters are well distributed throughout most of this unit (Service 2018, p. 28). Unit 5f contributes to the redundancy of the Upper Gauley metapopulation.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

We published a final regulation with a revised definition of destruction or adverse modification on August 27, 2019 (84 FR 45020). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.

If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of the candy darter. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.

Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the candy darter. These activities include, but are not limited to:

(1) Actions that would promote or facilitate the movement of variegate darters (or other nonnative aquatic species). Such activities could include, but are not limited to, the transfer of surface water across watershed boundaries and the modification or removal of dams that are currently limiting the spread of variegate darters where they have been introduced. These activities could further decrease the abundance of the candy darter through hybridization with the nonnative variegate darter.

(2) Actions that would significantly increase water temperature or sedimentation and stream bottom embeddedness. Such activities could include, but are not limited to, land use changes that result in an increase in sedimentation, erosion, and bankside destruction or the loss of the protection of riparian corridors and leaving insufficient canopy cover along banks.

(3) Actions that would significantly alter water chemistry. Such activities could include, but are not limited to, release of chemicals, biological pollutants, or heated effluents into the surface water or connected groundwater at a point source or by dispersed release (nonpoint source). These activities could alter water conditions to levels that are beyond the tolerances of the candy darter and result in direct or cumulative adverse effects to these individuals and their life cycles.

(4) Actions that would contribute to further habitat fragmentation. Such activities include, but are not limited to, construction of barriers that impede the instream movement of the candy darter ( e.g., dams, culverts, or weirs). These activities can isolate populations that are more at risk of decline or extirpation as a result of genetic drift, demographic or environmental stochasticity, and catastrophic events.

(5) Actions that would contribute to nonnative competition for habitat and other instream resources and to predation. Possible actions could include, but are not limited to, release or stocking of nonnative fishes or other related actions. These activities can introduce predators or affect the growth, reproduction, and survival of the candy darter through competition for resources.

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands within the final critical habitat designation.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. In order to consider economic impacts, we prepared an Incremental Effects Memo (IEM) and screening analysis, which together with our narrative and interpretation of effects we consider our draft economic analysis (DEA) of the proposed critical habitat designation and related factors. The analysis, dated July 3 2018, was made available for public review from November 21, 2018, through January 22, 2019 (83 FR 59232). The DEA addressed probable economic impacts of critical habitat designation for candy darter. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Additional information relevant to the probable incremental economic impacts of critical habitat designation for the candy darter is available in the screening analysis for the candy darter (IEc 2018), available at http://www.regulations.gov. We made no changes to the screening analysis from the proposed rule to the final rule.

After the Service fully considered the economic impacts of the critical habitat designation, the Secretary has decided not to exercise his discretion to exclude any areas from this critical habitat designation based on those economic impacts. A copy of the IEM and screening analysis with supporting documents may be obtained by contacting the West Virginia Ecological Services Field Office (see ADDRESSES ) or by downloading from the internet at http://www.regulations.gov.

Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. We have determined that the lands adjacent to the designation of critical habitat for candy darter are not owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security. In addition, we did not receive any requests based for exclusions based on national security impacts from any Federal agency. Consequently, the Secretary is not exercising his discretion to exclude any areas from the final designation based on impacts on national security.

Under section 4(b)(2) of the Act, the Service considers any other relevant impacts of the critical habitat designation, in addition to economic impacts and impacts on national security. The Service considers a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are nonpermitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.

In preparing this final rule, we have determined that there are currently no permitted conservation plans or other non-permitted conservation agreements or partnerships for candy darter, and the final designation does not include any tribal lands or tribal trust resources. However, we are aware of management plans within the candy darter's range such as the Monongahela National Forest Land and Resource Management Plan and forest plans for the George Washington and Thomas Jefferson National Forests. We anticipate no impact on tribal lands, partnerships, permitted or nonpermitted plans or agreements from this critical habitat designation. Accordingly, the Secretary is not exercising his discretion to exclude any areas from this final designation based on other relevant impacts.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq. ), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000 (13 CFR 121.201). To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are required to evaluate the potential incremental impacts of rulemaking only on those entities directly regulated by the rulemaking itself, and therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the Agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that the final critical habitat designation will not have a significant economic impact on a substantial number of small entities.

During the development of this final rule we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration.

The economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with candy darter conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following findings:

(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this proposed rule would significantly or uniquely affect small governments because the waters being proposed for critical habitat designation are owned by the States of Virginia and West Virginia. These government entities do not fit the definition of “small government jurisdiction.” Therefore, a Small Government Agency Plan is not required.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for candy darter in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this designation of critical habitat for candy darter does not pose significant takings implications for lands within or affected by the designation.

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies in Virginia and West Virginia. We received comments from the West Virginia DNR and the West Virginia DEP and have addressed them in the Summary of Comments and Recommendations section of the preamble. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).

Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the candy darter. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We determined that there are no tribal lands within the candy darter's historical or current range. Therefore, we are not designating critical habitat for the candy darter on tribal lands.

A complete list of all references cited is available on the internet at http://www.regulations.gov and upon request from the West Virginia Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this rule are the staff members of the Service's Species Assessment Team, the Northeast Regional Office, the West Virginia Ecological Services Field Office, and the Southwestern Virginia Ecological Services Field Office.

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