On March 23, 2021 the Commission received a Petition for Rulemaking from Nabilah Islam (“Petition”). The Petition asks the Commission to amend 11 CFR 113.1(g), which, in part, lists certain permissible and impermissible expenses for which campaign funds may and may not be used and sets forth the conditions under which candidates may pay themselves a campaign salary. Petition at 1. Each of the Petition's proposals is addressed in turn below.

Existing Commission regulations permit candidates to draw salaries from their principal campaign committees using campaign funds, subject to certain conditions. 11 CFR 113.1(g)(1)(i)(I). If these conditions are met, an eligible candidate may begin receiving a campaign salary on the date of “the filing deadline for access to the primary election ballot for the Federal office that the candidate seeks, as determined by state law, or in those states that do not conduct primaries, on January 1 of each even-numbered year.” Id. “If the candidate wins the primary election, his or her principal campaign committee may pay him or her a salary from campaign funds through the date of the general election, up to and including the date of any general election runoff.” Id. If, however, the candidate loses the primary, withdraws from the race, or otherwise ceases to be a candidate, no salary may be paid beyond the date he or she is no longer a candidate. Id. In odd-numbered years in which a special election for a Federal office occurs, the candidate's principal campaign committee may pay him or her a salary from the date the special election is set through the date of the special election. Id.

The Petition asserts that ballot access deadlines for state primaries “vary wildly based on state law.” Petition at 3-4. According to the Petition, during the 2018 election cycle, the date on which a candidate could begin drawing a campaign salary under Commission regulations “ranged from December 4, 2017 in Illinois to July 10, 2018 in Delaware, a difference of 218 days.” Id. at 4. The Petition asks the Commission to amend 11 CFR 113.1(g)(1)(i)(I) to “standardize and expand the ability for candidates to draw a salary” from their campaigns. Id. The Petition proposes that the regulations be amended to permit a candidate to begin drawing a campaign salary “ at least 180 days before the primary election, but a full year would be optimal.” Id. (emphasis in original).

The same provision of the Commission's existing regulations limits the amount of salary payments that a candidate may receive from his or her principal campaign committee. 11 CFR 113.1(g)(1)(i)(I). Under the regulation, salary payments may not exceed “the lesser of: The minimum salary paid to a Federal officeholder holding the Federal office that the candidate seeks; or the earned income that the candidate received during the year prior to becoming a candidate.” Id. The regulation further states that “[a]ny earned income that a candidate receives from salaries or wages from any other source shall count against the foregoing limit of the minimum salary paid to a Federal officeholder holding the Federal office that the candidate seeks.” Id. Any salary payments must also “be computed on a pro-rata basis.” Id.

The Petition alleges that the current maximum salary limitation “leaves candidates who are full time caretakers or who have had gaps in employment out in the cold.” Petition at 4-5. The Petition asks the Commission to amend 11 CFR 113.1(g)(1)(i)(I) by creating a minimum “floor” for the salary that a candidate may draw from his or her principal campaign committee at an amount “no less than the annualized salary of $15 per hour.” Id.

The Federal Election Campaign Act, 52 U.S.C. 30101-45 (“FECA”), provides that a candidate's authorized committee may use its funds for several specific purposes, including “otherwise authorized expenditures in connection with the campaign for Federal office of the candidate.” 52 U.S.C. 30114(a)(1). An authorized committee may not, however, convert campaign funds to “personal use.” 52 U.S.C. 30114(b); 11 CFR 113.1(g)(1)(ii). FECA defines “personal use” as the use of campaign funds “to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign.” 52 U.S.C. 30114(b)(2); see also 11 CFR 113.1(g). FECA and Commission regulations provide a non-exhaustive list of expenses that, when paid using campaign funds, constitute per se conversion to personal use. 52 U.S.C. 30114(b)(2); 11 CFR 113.1(g)(1)(i). For expenses not listed, the Commission determines on a case-by-case basis whether the expense would exist irrespective of the candidate's campaign. 11 CFR. 113.1(g)(1)(ii). Neither FECA nor Commission regulations explicitly address health insurance premiums. 1

The Petition alleges that rising healthcare costs act as a barrier to the prospective candidacies of “working class people.” Petition at 5. Accordingly, the Petition asks the Commission to amend 11 CFR 113.1(g) to expressly permit a candidate to use campaign funds to pay the costs of “any health benefit plan already provided to other campaign employees” beginning on the date on which the candidate is eligible to receive a campaign salary. 2 Id. The Petition also requests that such amendment “clarify that any payments for health insurance premiums that are not otherwise taxable under Internal Revenue Service rules should not count against any compensation cap set by the Commission.” Id.

The Commission seeks comment on the Petition. The public may inspect the Petition on the Commission's website at http://sers.fec.gov/fosers/.

The Commission will not consider the Petition's merits until after the comment period closes. If the Commission decides that the Petition has merit, it may begin a rulemaking proceeding. The Commission will announce any action that it takes in the Federal Register .

The FAA invites you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0259; Project Identifier AD-2020-01128-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this NPRM because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https:// www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Christopher McGuire, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2013-26-01, Amendment 39-17710 (78 FR 79295, December 30, 2013), (AD 2013-26-01), for all CFM CFM56-3 and CFM56-7B model turbofan engines equipped with a certain AGB not equipped with a handcranking pad oil dynamic assembly. AD 2013-26-01 requires an independent inspection to verify re-installation of the AGB handcranking pad cover after any maintenance involving the removal and reinstallation of the AGB handcranking pad cover. As an optional terminating action to the inspection requirements, AD 2013-26-01 allowed the installation of an AGB that incorporates a handcranking pad oil dynamic seal assembly. AD 2013-26-01 resulted from 42 events of total loss of engine oil from CFM56 model turbofan engines while in flight. The FAA issued AD 2013-26-01 to prevent loss of engine oil while in flight, which could result in engine failure, loss of thrust control, and damage to the airplane.

Since the FAA issued AD 2013-26-01, a dual-engine oil loss event occurred, prompting the FAA to propose the mandatory installation of a redesigned handcranking pad oil dynamic seal assembly. In addition, CFM revised its service information to provide procedures for replacing the starter drive pad assembly and handcranking cover assembly and for reworking and reidentifying an affected AGB to a part eligible for installation.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed CFM International CFM56-7B Service Bulletin (SB) 72-0879, Revision 6, dated March 1, 2018 (CFM SB 72-0879); CFM International SB CFM56-3 SB 72-1129, Revision 7, dated May 5, 2020 (CFM SB 72-1129); and CFM International SB CFM56-7B SB 72-0564 Revision 8, dated May 6, 2020 (CFM SB 72-0564). CFM SB 72-1129 describes procedures for the introduction of a new starter drive pad, new handcranking cover assembly, and reworking and reidentifying an AGB installed on CFM56-3 model turbofan engines. CFM SB 72-0879 and CFM SB 72-0564 describe procedures for the introduction of a new starter drive pad, new handcranking cover, and reworking and reidentifying an AGB installed on CFM56-7B model turbofan engines. CFM SB 72-0879 and CFM SB 72-0564 are differentiated by the part numbers of the AGBs eligible for rework and the new part numbers by which these AGBs will be reidentified once rework is complete. 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.

This proposed AD would retain certain requirements of AD 2013-26-01. This proposed AD would require the performance of an independent inspection to verify re-installation of the AGB handcranking pad cover after maintenance. Alternatively, this proposed AD would require the insertion of an independent inspection as a required inspection item in the approved continuous airworthiness maintenance program for the aircraft not later than the next time the AGB handcranking pad cover is removed for maintenance. This proposed AD would also remove the optional terminating action in AD 2013-26-01 and add a mandatory terminating action for certain model turbofan engines, requiring the removal and replacement of an affected AGB with an AGB that incorporates the oil dynamic seal assembly.

For all CFM56-3B and the majority of CFM56-7B turbofan engine models, this proposed AD would require replacement of the AGB as a mandatory terminating action to the inspection requirement of this AD. This proposed AD does not require this terminating action for CFM56-7B27A, CFM56-7B27A/3 and CFM56-7B27AE model turbofan engines because these model engines, which are installed only in military airplanes, do not have a replacement AGB eligible for installation.

The FAA estimates that this AD, as proposed, would affect 700 engines installed on airplanes of U.S. registry. The FAA estimates that the majority of operators will perform the repair and reidentification of the AGB rather than replace the AGB with a zero hour part. For the purpose of this cost estimate, the FAA estimates that 95% of AGBs will be repaired and reidentified while 5% of AGBs will be replaced with a zero hour AGB.

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

Invitation to Comment: We invite you to submit comments regarding the proposed priorities and definitions. To ensure that your comments have maximum effect in developing the notice of final priorities and definitions, we urge you to clearly identify the priority and definition that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed priorities and definitions. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about the proposed priorities and definitions by accessing Regulations.gov . Due to the COVID-19 pandemic, the Department buildings are currently not open to the public. However, upon reopening you may also inspect the comments in person at 400 Maryland Avenue SW, Room 3E344, Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays. Please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed priorities and definitions. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Purpose of Program: The EIR program, established under section 4611 of the Elementary and Secondary Education Act, as amended (ESEA), provides funding to create, develop, implement, replicate, or take to scale entrepreneurial, evidence-based, field-initiated innovations to improve student achievement and attainment for high-need students; and rigorously evaluate such innovations. The EIR program is designed to generate and validate solutions to persistent education challenges and to support the expansion of those solutions to serve substantially larger numbers of students. The EIR program includes Expansion grants (84.411A), Mid-phase grants (84.411B), and Early-phase grants (84.411C).

Program Authority: Section 4611 of the ESEA, 20 U.S.C. 7261.

Proposed priorities:

This notice contains two proposed priorities.

Proposed Priority 1—Innovative Approaches to Addressing the Impact of COVID-19 on Underserved Students and Educators.

Background: COVID-19 has caused unprecedented disruption in schools across the country and drawn renewed attention to the ongoing challenges for underserved students (as defined in this notice). In response to the pandemic, educators have mobilized and continue to address the needs of all students. Researchers and educators are now working to understand and address the impact of inconsistent access to instruction, services, and supports, and other challenges.

State educational agencies, local educational agencies, and nonprofit organizations play essential roles in building capacity at the State and local level both to respond to current crises and also create the systems and structures to support long-term change. The Department is interested in projects that develop and evaluate evidence-based innovations for addressing the impact of COVID-19 in ways that accelerate learning for students and address students' social, emotional, physical and mental health, and academic needs, with a focus on targeting resources and supports to underserved students. The EIR program statute refers to “high-need students.” In addressing the needs of underserved students, the requirement for serving “high-need students” can also be addressed.

The Department seeks innovative strategies under this priority that support students' success in the classroom; are delivered by qualified individuals (based on requirements established by the applicant) who receive adequate training and support; and are aligned with the district's curriculum and effective practices.

Proposed Priority:

Projects designed to address the needs of underserved students and educators most impacted by COVID-19 through—

(a) Collaborating with key stakeholders, such as families, caretakers, students, educators, and community leaders, to assess and understand students' social, emotional, physical and mental health, as well as academic needs, in light of historical educational inequities and the impact of the COVID-19 pandemic; and,

(b) Developing and implementing strategies to address those needs through one or more of the following:

(1) Re-engaging students and strengthening relationships between educators and students.

(2) Supporting district- and school-wide use of personalized learning (as defined in this notice).

(3) Utilizing multi-tier systems of support (as defined in this notice).

(4) Providing educators with professional development and resources to use trauma-informed practices.

(5) Creating or supporting equitable and inclusive learning environments in schools.

(6) Ensuring students have access to additional specialized instructional support personnel (as defined in this notice) during their school day, at their school site.

(7) Finding and supporting students experiencing homelessness, including those not attending school during the pandemic.

(7) Providing additional supports to educators to address their mental health and well-being and instructional practice needs.

(9) Providing evidence-based supports and educational opportunities to accelerate grade-level student learning (especially for underserved students) through instructional practice, including those supported by technology in ways that do not contribute to tracking or remediation, which may include one or both of the following—

(i) High-quality tutoring (as defined in this notice), summer learning and enrichment, or opportunities for high-quality expanded learning time (as defined in this notice) as well as implementation of embedded, high-quality formative assessment to support personalization.

(ii) Providing targeted supports for high school students to prepare for post-secondary education transition and success.

Proposed Priority 2—Promoting Equity and Adequacy in Student Access to Educational Resources and Opportunities.

Background: Improving educational equity and adequacy is a priority for the Nation's education system, with particular emphasis on supporting underserved students. For example, the Department's 2018 news release on STEM course taking reported that of students enrolled in Calculus courses, 8 percent were black, when black students represent 16 percent of high school enrollment. A similar trend exists for physics courses in which 12 percent of black students were enrolled. ( https://www2.ed.gov/about/offices/list/ocr/docs/stem-course-taking.pdf ).

Additionally, during the 2015-16 school year, African American male students comprised 8 percent of students enrolled and 25 percent of students who received an out-of-school suspension. National data show that African American girls are 5.5 times more likely and Native American girls are 3 times more likely to be suspended from school than White girls ( https://www2.ed.gov/about/offices/list/ocr/docs/school-climate-and-safety.pdf ). Research shows, however, that these disparities are not the result of differences in behavior, but rather perceptions of student behavior. The Department is interested in projects that address these discipline disparities given that one among many concerns is the missed learning opportunities.

Although multiple factors influence teacher impact on student achievement, data related to experience and certification illuminate this is one area of equity concern. Schools with high enrollments of students of color were four times as likely to employ uncertified teachers as were schools with low enrollments of students of color. Students in schools with high enrollments of students of color also have less access to experienced teachers. In these schools, nearly one in every six teachers is just beginning his or her career, compared to one in every 10 teachers in schools with low enrollments of students of color ( https://learningpolicyinstitute.org/sites/default/files/product-files/CRDC_Teacher_Access_REPORT.pdf ). The Department is interested in projects that address issues of disparities in teacher certification and experience given research indicating that fully certified and experienced teachers relate to student achievement (Boyd, et al., 2006; Clotfelter, et al., 2007; Darling-Hammond, et al., 2005; Kini & Podolsky, 2016; Goe, 2007; Ladd & Sorenson, 2017; Podolsky, et al., 2019).

The Department seeks to support projects that propose innovative ways to address the various inequities in this country's education system. This type of innovation will better enable educators to work toward closing achievement gaps and helping all students succeed in school and reach toward their future goals.

Underserved students have less access to the educational opportunities they need to succeed in multiple ways including access to well-rounded and rigorous coursework; how discipline policies are applied; and students' more limited access to certified, experienced, and effective teachers.

The Department seeks projects that develop and evaluate evidence-based innovations to remedy the inequities in our education system.

Proposed Priority:

Projects designed to promote equity in access to critical resources for underserved students in prekindergarten through grade 12 through one or more of the following:

(a) Addressing inequities in access to fully certified, experienced, and effective teachers through one or more of the following activities:

(1) Improving the preparation, recruitment, early career support, and development of teachers in high-need or hard-to-staff schools.

(2) Reforming hiring, compensation, and advancement systems.

(3) Improving the retention of fully certified (including teachers certified in the area they are assigned to teach), experienced, and effective teachers in districts, schools, and classrooms serving high concentrations of underserved students through one or more of the following activities:

(i) Providing comprehensive, high-retention pathways into the profession.

(ii) Creating or enhancing opportunities for teachers' professional growth and leadership opportunities.

(iii) Delivering collaborative, job-embedded, and sustained professional development.

(iv) Improving workplace conditions to create opportunities for successful teaching and learning.

(b) Addressing inequities in access to and success in rigorous, engaging, and culturally and linguistically responsive teaching and learning environments that prepare students for college and career through one or both of the following activities:

(1) Increasing access to and success in middle school courses that are foundational to advanced coursework in high school; advanced courses and programs, including Advanced Placement, International Baccalaureate, high-quality dual or concurrent enrollment (as defined in this notice), and high-quality early college high school (as defined in this notice), programs; high-quality STEM programs; or high-quality career and technical education pathways that are integrated into the curriculum.

(2) Developing, and expanding access to, programs designed to provide a well-rounded education (as defined in this notice).

(c) Addressing bias ( e.g., implicit and explicit) and creating inclusive, supportive learning environments.

(d) Including diverse stakeholders (including students) in State and local education decisions.

(e) Supporting discipline and resource equity through one or both of the following activities:

(1) Identifying and addressing, in collaboration with students, families, and educators, policies that result in the disproportionate use of exclusionary discipline through data collection and analysis (including school climate surveys) disaggregated by race, sex, English learner, disability status, gender-identity, and sexual orientation, in compliance with 20 U.S.C. 1232h and 34 CFR part 98, and other important variables.

(2) Identifying and addressing issues of equity in access to and the use of innovative tools, rigorous content, and effective teaching and learning practices, including by providing job-embedded professional development to educators on strategies for equitably integrating educational technology in ways that elevate student engagement beyond passive use and over-reliance on drill-and-practice to a more robust, creative, and playful medium.

(f) Addressing policies, practices, and procedures that contribute to significant disproportionality in special education or programs for English learners based on race or ethnicity.

(g) Improving the quality of educational programs in juvenile justice facilities (such as detention facilities and secure and non-secure placements) or supporting re-entry after release, by linking youth to education or job training programs.

Types of Priorities: When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register . The effect of each type of priority is as follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

Proposed Definitions:

Background:

We propose specific definitions for this program to promote a shared understanding of the scope of activities that could be supported by this program.

Proposed Definitions:

We propose to establish three definitions for this program (“high-quality tutoring,” “personalized learning,” and “underserved students”). We may apply one or more of these definitions in any year in which this program is in effect. We also intend to use definitions from section 8101 of the ESEA, and we provide the specific ESEA citations in parentheses.

Dual or concurrent enrollment means a program offered by a partnership between at least one institution of higher education and at least one local educational agency through which a secondary school student who has not graduated from high school with a regular high school diploma is able to enroll in one or more postsecondary courses and earn postsecondary credit that—

(a) Is transferable to the institutions of higher education in the partnership; and

(b) Applies toward completion of a degree or recognized educational credential as described in the Higher Education Act of 1965 (20 U.S.C. 1001 et seq. ). (Section 8101(15) of the ESEA)

Early college high school means a partnership between at least one local educational agency and at least one institution of higher education that allows participants to simultaneously complete requirements toward earning a regular high school diploma and earn not less than 12 credits that are transferable to the institutions of higher education in the partnership as part of an organized course of study toward a postsecondary degree or credential at no cost to the participant or participant's family. (Section 8101(17) of the ESEA)

Expanded learning time means using a longer school day, week, or year schedule to significantly increase the total number of school hours, in order to include additional time for—

(a) Activities and instruction for enrichment as part of a well-rounded education; and

(b) Instructional and support staff to collaborate, plan, and engage in professional development (including professional development on family and community engagement) within and across grades and subjects. (Section 8101(22) of the ESEA)

High-quality tutoring means tutoring that is based on evidence-based strategies to support students' success in the classroom; is delivered in individualized or small-group settings; reflects differentiated support based on student need; is aligned with the district's curriculum; has established standards of intensity and dosage based on level of need; is delivered by tutors who are well-trained, who are supported with resources and personnel (such as a tutor coordinator), and who work closely with the student's teacher of record; and includes instruments to examine instructional quality and quantity.

Multi-tier system of supports means a comprehensive continuum of evidence-based, systemic practices to support a rapid response to students' needs, with regular observation to facilitate data-based instructional decision-making. (Section 8101(33) of the ESEA)

Personalized learning means instruction that is aligned with rigorous college- and career-ready standards so that the pace of learning and the instructional approach are tailored to the needs of individual learners. Learning objectives and content, as well as the pace, may all vary depending on a learner's needs. Personalized learning may also draw on a number of student-centered blended learning models ( e.g., competency-based education, project-based learning, universal design for learning). In addition, learning activities are aligned with specific interests of each learner. Data from a variety of sources (including formative assessments, student feedback, and progress in digital learning activities), along with teacher recommendations, are often used to personalize learning.

Specialized instructional support personnel means—

(a) School counselors, school social workers, and school psychologists; and

(b) Other qualified professional personnel, such as school nurses, speech language pathologists, and school librarians, involved in providing assessment, diagnosis, counseling, educational, therapeutic, and other necessary services (including related services as that term is defined in section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401)) as part of a comprehensive program to meet student needs. (Section 8101(47)(A) of the ESEA)

Underserved students means high-need students as determined by the applicant, which may include one or more of the following:

(a) Students who are living in poverty, especially those students who are also served by schools with high concentrations of students living in poverty.

(b) Students of color.

(c) Students who are members of federally recognized Indian Tribes.

(d) English learners.

(e) Students with disabilities.

(f) Disconnected youth, including but not limited to (1) students who lost significant amounts of in-person instruction as a result of the COVID-19 pandemic and, or (2) students who did not consistently participate in remote instruction when offered during school building closures.

(g) Migrant students.

(h) Students experiencing homelessness.

(i) Lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) students.

(j) Students in foster care.

(k) Students without documentation of immigration status.

(l) Pregnant, parenting, or caregiving students.

(m) Students impacted by the justice system including formerly incarcerated students.

(n) Students who are the first in their family to attend postsecondary education.

(o) Students enrolling in or seeking to enroll in postsecondary education for the first time at the age of 20 or older.

(p) Students who are working full-time while enrolling in postsecondary education.

(q) Students who are enrolling in or seeking to enroll in postsecondary education who are eligible for a Pell Grant.

(r) Adult students with low skills, including those with limited English proficiency.

Well-rounded education means courses, activities, and programming in subjects such as English, reading or language arts, writing, science, technology, engineering, mathematics, foreign languages, civics and government, economics, arts, history, geography, computer science, music, career and technical education, health, physical education, and any other subject, as determined by the State or local educational agency, with the purpose of providing all students access to an enriched curriculum and educational experience. (Section 8101(52) of the ESEA)

Final Priorities and Definitions:

We will announce the final priorities and definitions in a document in the Federal Register . We will determine the final priorities and definitions after considering responses to the proposed priorities and definitions and other information available to the Department. This document does not preclude us from proposing additional priorities and definitions, subject to meeting applicable rulemaking requirements.

Note: This document does not solicit applications. In any year in which we choose to use one or more of these priorities and definitions we invite applications through a notice in the Federal Register .

Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f)(4) of Executive Order 12866.

We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these proposed priorities and definitions only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on an analysis of anticipated costs and benefits, we believe that this proposed regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Proposed Priorities 1 and 2 would give the Department the opportunity to support applicants seeking to address the COVID-19 pandemic and equity issues. We believe that these proposed priorities and definitions could result in a number of changes, including infusing funds to support key areas of need related to pandemic-related learning loss and ongoing challenges of historically underserved students. We also believe that applicants will be able to leverage these priorities to propel current efforts to respond to the COVID-19 pandemic and explore innovative approaches to promoting equity. Such changes have the potential to change educational opportunities and outcomes for high-need students.

The Department believes that this proposed regulatory action would not impose significant costs on eligible entities, whose participation in our programs is voluntary, and costs can generally be covered with grant funds. As a result, the proposed priorities and definitions would not impose any particular burden except when an entity voluntarily elects to apply for a grant. We believe the benefits would outweigh any associated costs.

Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make the proposed priorities and definitions easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed regulations clearly stated?

• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?

• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections?

• Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how?

• What else could we do to make the proposed regulations easier to understand?

The Secretary certifies that this proposed regulatory action would not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration Size Standards define proprietary institutions as small businesses if they are independently owned and operated, are not dominant in their field of operation, and have total annual revenue below $7,000,000. Nonprofit institutions are defined as small entities if they are independently owned and operated and not dominant in their field of operation. Public institutions are defined as small organizations if they are operated by a government overseeing a population below 50,000.

The small entities that this proposed regulatory action would affect are public or private nonprofit agencies and organizations, including institutions of higher education, that may apply. We believe that the costs imposed on an applicant by the proposed priorities and definitions would be limited to paperwork burden related to preparing an application and that the benefits of these proposed priorities and definitions would outweigh any costs incurred by the applicant. Therefore, these proposed priorities and definitions would not have a significant economic impact on a substantial number of small entities.

The proposed priorities and requirement contain information collection requirements that are approved by OMB under OMB control numbers 1894-0006 and 1810-0021. The Expansion grants (84.411A) and Mid-phase grants (84.411B) programs are approved under OMB control number 1894-0006. The Early-phase grants program (84.411C) is approved under the OMB control number 1810- 0021. The Department will request OMB approval under 1894-0006 for the Early-phase grants program (84.411C) around the same time this notice publishes.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

In accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.

Accessible Format: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of the Department published in the Federal Register , in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

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

The information in this Supplementary Information section of this preamble is organized as follows:

In addition to being available in the docket, an electronic copy of this document will be posted at https://www.epa.gov/ozone-pollution/ozone-national-ambient-air-quality-standards-section-176a-petition-maine.

On February 24, 2020, the state of Maine petitioned the EPA pursuant to Clean Air Act (CAA) section 176A(a)(2) for the removal of the state of Maine from the OTR except for 111 towns and cities comprising the Androscoggin Valley, 1 Down East  2 and Metropolitan Portland  3 Air Quality Control Regions, commonly referred to as the “Portland and Midcoast Ozone Areas.” Maine contends that emissions from northern and eastern Maine are not significant contributors to ozone nonattainment in other states nor do they interfere with maintenance of the ozone NAAQS in those Maine municipalities that would remain in the OTR. Therefore, removing these areas from the OTR would not degrade the air quality in Maine or in any other state. The petition includes monitoring data and technical analyses to support a demonstration that the areas requested to be removed from the OTR are in attainment with the ozone NAAQS and that emissions from these areas do not significantly contribute to ozone nonattainment in any area of the OTR. For the reasons described in this notice, the EPA is proposing to grant the petition on the basis that removing the areas of the state requested to be removed from the OTR would not result in emissions changes that would significantly contribute to nonattainment or interfere with maintenance in any area of the OTR.

Section 176A(a) of the CAA provides the Administrator with the authority to develop interstate transport regions for particular pollutants where the Administrator determines that interstate transport of air pollutants from one or more states contributes significantly to violations of air quality standards in other states. In the 1990 CAA Amendments, Congress created the OTR by statute under CAA section 184(a) to address the interstate transport of ozone pollution in the Northeast and Mid-Atlantic regions of the United States (U.S.).

The creation of an interstate transport region requires establishing a transport commission with representatives from each state who make recommendations to mitigate interstate pollution. Model rules and programs designed through the OTC (Ozone Transport Commission) may be adopted by the individual states through their own rulemaking processes. Under CAA section 184(c), the OTC may petition the EPA to approve additional control measures to be applied within all or part of the transport region. Maine seeks to remove portions of the state from the OTR, thereby releasing those areas from OTC recommendations and applicable control requirements established under CAA section 184.

Section 176A(a)(1) of the CAA provides the Administrator with authority to “add any state or portion of a state to any [transport] region . . . whenever the Administrator has reason to believe that the interstate transport of air pollutants from such state significantly contributes to a violation of the standard in the transport region.” Conversely, CAA section 176A(a)(2) allows the Administrator to “remove any state or portion of a state from [a transport] region whenever the Administrator has reason to believe that the control of emissions in that state or portion of the state . . . will not significantly contribute to the attainment of the standard in any area in the region.”

For the reasons fully described in this notice, and in consideration of monitoring data, technical demonstrations, and impacts to air quality control regimes in the areas to be removed, the EPA believes that the portion of Maine requested for removal from the OTR does not contribute to a violation of any ozone standard in any area of the OTR, and that further control of emissions from that portion of Maine will not significantly contribute to attainment of any ozone standard in any area of the OTR. Accordingly, the EPA is proposing to grant the CAA section 176A petition filed by the state of Maine to remove a portion of Maine from the OTR.

Ground-level ozone causes a variety of negative effects on human health, vegetation, and ecosystems. In humans, acute and chronic exposure to ozone is associated with premature mortality and several morbidity effects, such as asthma exacerbation. In ecosystems, ozone exposure may cause visible foliar injury, decrease plant growth, and affect ecological community composition.

Ground-level ozone is predominantly a secondary air pollutant created by chemical reactions between ozone precursors including nitrogen oxides (NO X ) and volatile organic compounds (VOCs) in the presence of sunlight. Emissions from electric generating utilities (EGUs), industrial facilities, motor vehicles, non-road equipment, gasoline vapors, and chemical solvents are some of the major anthropogenic sources of ozone precursors. The potential for ground-level ozone formation tends to be highest during months with warmer temperatures and stagnant air masses; therefore, ozone levels are generally higher during the summer months. 4 Increased temperatures may also increase emissions of anthropogenic and biogenic VOC emissions and can indirectly increase anthropogenic NO X emissions as well ( e.g., through increased electricity generation to power air conditioning).

The EPA has regulated ozone pollution and the precursor emissions that contribute to ozone for the last five decades. 5 Currently, there are two NAAQS in effect for ozone. 6 On March 12, 2008, the EPA promulgated a revision to the ozone NAAQS, lowering both the primary and secondary standards to 75 ppb. 7 On October 1, 2015, the EPA lowered the primary and secondary standards to 70 ppb. 8

In accordance with CAA section 107(d), the EPA designates areas as “attainment” (meeting the standard), “nonattainment” (not meeting the standard) or “unclassifiable” (insufficient data to classify). States with areas designated as nonattainment must develop and submit State Implementation Plans (SIPs) to the EPA with the goal of attaining and maintaining the level of the NAAQS by the applicable attainment deadline. In this way, the EPA and states work collaboratively to establish and implement nonattainment area planning requirements that are designed to bring areas into attainment of the NAAQS by the applicable attainment deadline. A key step in ensuring that areas attain and maintain ozone NAAQS is to assess and understand the potential for ozone source formation in a given area, including the potential for upwind states' emissions to impact ozone formation in downwind states.

Precursor emissions can be transported downwind directly or, after transformation in the atmosphere, as ozone or secondary ozone precursors. Studies have established that ozone formation, atmospheric residence, and transport can occur on a regional scale ( i.e., hundreds of miles) over much of the eastern U.S., with elevated concentrations occurring in rural as well as metropolitan areas. 9 Additionally, observational studies have demonstrated the presence of ozone and ozone precursor transport, and documented the impact that upwind emissions have on high concentrations of ozone pollution. 10 As a result of ozone transport, ozone pollution levels in a given location are impacted by a combination of local emissions and emissions from upwind sources. The transport of ozone across state borders compounds the difficulty for downwind states to be in attainment with ozone NAAQS. While substantial progress has been made in reducing ozone in many urban areas, regional-scale ozone transport is still a major component of peak ozone concentrations during the summer ozone season.

Subpart 1 of part D of title I of the CAA provides the general plan requirements for designated nonattainment areas. This subpart includes provisions governing the development of transport regions to address the interstate transport of pollutants that contribute to NAAQS violations. In particular, section 176A(a) of the CAA provides that, on the EPA's own motion or by a petition from the Governor of any state, whenever the EPA has reason to believe that the interstate transport of air pollutants from one or more states contributes significantly to a violation of the NAAQS in one or more other states, the EPA may establish, by rule, a transport region for such pollutant that includes such states. The provision further provides that the EPA may add any state or portion of a state to any transport region whenever the Administrator has reason to believe that the interstate transport of air pollutants from such state significantly contributes to a violation of the standard in the transport region.

Section 176A(b) of the CAA provides that when the EPA establishes a transport region, the Administrator shall establish an associated transport commission, comprised of (at a minimum) the following: The Governor or her or his designee of each covered state, the EPA Administrator or a designee, the Regional EPA Administrator or a designee, and an air pollution control official appointed by the Governor of each state. The purpose of the transport commission is to assess the degree of interstate transport throughout the transport region and assess and recommend control strategies to the EPA to mitigate such interstate transport.

Subpart 2 of part D of title I of the CAA provides plan requirements specific to the ozone NAAQS. Consistent with CAA section 176A, found in subpart 1, subpart 2 includes specific provisions focused on the interstate transport of ozone. CAA section 184(a) establishes a single transport region for ozone—the OTR—comprising the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area for the District of Columbia, which includes certain portions of northern Virginia. The Virginia counties and cities included in the OTR are Arlington County, Fairfax County, Loudoun County, Prince William County, Stafford County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City.

Section 184(b) of the CAA establishes specific control requirements that each state in the OTR is required to implement within the state, including certain controls on sources of NO X and VOCs. These control requirements are required to be implemented statewide in any state included within the OTR, regardless of ozone attainment status. 11 Under CAA section 184(b)(1)(A), OTR states must include enhanced vehicle emissions inspection and maintenance (I/M) programs in their SIPs. 12 Under CAA section 184(b)(2), major stationary sources of VOCs in OTR states are subject to the same requirements that apply to major sources in designated ozone nonattainment areas classified as Moderate. 13 Thus, the state must adopt rules to apply nonattainment new source review (NNSR) and reasonably available control technology (RACT) (pursuant to CAA section 182(b)(2)) provisions for major VOC sources statewide. Under CAA section 184(b)(2) states must also implement Stage II gasoline refueling vapor recovery programs, incremental to vehicle Onboard Refueling Vapor Recovery achievements, or measures that achieve comparable emissions reductions for both attainment and nonattainment areas. 14

Section 182(f) of the CAA requires states to apply the same requirements to major stationary sources of NO X as are applied to major stationary sources of VOCs under subpart 2. Thus, the same NNSR and RACT requirements that apply to major stationary sources of VOC in the OTR also apply to major stationary sources of NO X . 15 CAA section 182(f) provides for a NO X waiver, or an exemption to the NO X requirements, where the Administrator determines that such NO X reductions would not contribute to the attainment of the NAAQS in an area. Areas granted a NO X waiver under CAA section 182(f) may be exempt from certain requirements of the EPA's motor vehicle I/M program regulations and from certain federal requirements of general and transportation conformity. 16

Section 176A(a)(2) of the CAA states that the Administrator may remove any state or portion of a state from the Ozone Transport Region whenever the Administrator has reason to believe that the control of emissions in that state or portion of that state pursuant to its inclusion in the transport region will not significantly contribute to the attainment of the standard in any area in the region. The provision does not provide further methodology or criteria for the Administrator to apply other than this language when determining whether to remove a state or portion of a state from the OTR. Therefore, the meaning of this language is ambiguous, and the EPA has the authority to exercise discretion in its expertise to interpret this language and identify relevant criteria and develop a reasonable methodology in doing so. See, e.g., Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984); Smiley v. Citibank, 517 U.S. 735, 744-45 (1996). As explained in this action, in determining whether to grant the state of Maine's petition the EPA intends to draw upon its interpretations of the CAA's suite of interstate pollution transport provisions, taking into account any legal precedents established by prior EPA actions and associated court decisions.

The EPA has never taken final action to remove any state or portion of a state from the OTR under section 176A(a)(2) of the CAA. 17 The Agency has in recent years acted pursuant to CAA section 176A(a)(1) to deny a request to expand the OTR, 18 but did not in that action have cause to interpret the operative language in CAA section 176A. 19

Section 176A(a)(2) of the CAA does not expressly reference other statutory provisions, but the EPA believes it is appropriate to interpret the key terms in the section ( i.e., “control of emissions . . . will not significantly contribute to the attainment of the standard” and “in any area in the region”) within the context of and consistently with other parts of the CAA that govern the interstate transport of ozone pollution, taking into account relevant facts and circumstances and the EPA's past approaches to addressing interstate ozone transport.

The CAA provision that states and the EPA have primarily relied upon to address interstate pollution transport is section 110(a)(2)(D)(i)(I) of the CAA, often referred to as the “good neighbor” provision. The provision requires all states to submit SIPs that contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which “will contribute significantly” to nonattainment in, or interfere with maintenance by, any other state with respect to any NAAQS. Thus, each state is required to submit a SIP that demonstrates the state is adequately controlling sources of emissions that would impact another states' air quality relative to the NAAQS in violation of the good neighbor provision. However, if a state does not adequately address the good neighbor provision requirements in a SIP submission, the CAA requires that the EPA must address the requirements of the good neighbor provision in the state's stead. Specifically, if the EPA disapproves a state's SIP submission or if the EPA finds that a state has failed to submit a required SIP, then the EPA must promulgate a federal implementation plan (FIP) within two years, unless the state corrects the deficiency, and the EPA approves the plan or plan revision before the EPA promulgates a FIP. 20

To address the regional transport of ozone pursuant to the CAA's good neighbor provision, the EPA has promulgated four regional interstate transport rules focusing on the reduction of NO X emissions, as the primary meaningful precursor to address regional ozone transport across state boundaries, from certain sources located in states in the eastern half of the U.S. 21 22 The four interstate transport rulemakings are the NO X SIP Call, 23 Clean Air Interstate Rule (CAIR), 24 the Cross-State Air Pollution Rule (CSAPR), 25 and the Cross-State Air Pollution Rule Update (CSAPR Update). 26 27

Through the development and implementation of CSAPR and the CSAPR Update, the EPA, working in partnership with the states, developed a four-step interstate transport framework to interpret and address the requirements of the good neighbor provision. The four steps are: (1) Identifying downwind air quality monitors (known as “receptors”) that are expected to have problems attaining or maintaining clean air standards ( i.e., NAAQS); (2) identifying upwind states that impact those downwind air quality problems sufficiently such that they are considered “linked” and therefore warrant further review and analysis; (3) identifying the emissions reductions necessary (if any), considering cost and air quality factors, to prevent linked upwind states identified in step 2 from contributing significantly to nonattainment or interfering with maintenance of the NAAQS at the locations of the downwind air quality problems; and (4) adopting permanent and enforceable measures needed to achieve those emissions reductions.

Given the use of the phrase “significantly contribute to [ ] attainment” in CAA section 176A(a)(2), the EPA believes it is reasonable to look to the 4-step interstate transport framework to guide its analysis of whether a state or portion of a state has met the necessary condition for removal from the OTR in CAA section 176A(a)(2). Under Step 1 of the interstate transport framework, the EPA has interpreted the term “will” in the phrase “will significantly contribute” in section 110(a)(2)(D)(i)(I) by looking at current downwind air quality problems and whether those air quality problems will persist in a future year, i.e., by focusing its analysis regarding downwind interstate transport impacts on an analytic year in the future. In its transport rulemakings, the EPA has considered current monitored air quality data in addition to future projections “because `will' can mean either certainty or indicate the future tense,” and considering present-day data to inform the projected identification of downwind air quality problems “give[s] effect to both interpretations of the word.” North Carolina v. EPA, 531 F.3d 896, 913-14 (D.C. Cir. 2008). See 63 FR 57356, 57375 (Oct. 27, 1998) (NO X SIP Call) (relying on both monitored and modeled data); 70 FR 25162, 25241 (May 12, 2005) (CAIR); 81 FR 74504, 74517 (October 26, 2016) (CSAPR Update). 28 Specifically, in those rules, the EPA explained that it had the most confidence in its projections of nonattainment for those counties that also measure nonattainment for the most recent period of available ambient data. 81 FR 74517, 74531. In the CSAPR Update, receptors that had clean measured data but were projected to have nonattainment problems in the future-year modeling were denoted by the EPA as maintenance-only receptors, acknowledging that while currently attaining the NAAQS, such areas could violate the standard in the future under certain meteorological conditions. The D.C. Circuit has upheld this balance struck by the EPA in considering historical monitored data as well as future projected modeled data as a method for identifying downwind air quality problems at Step 1. See, e.g., Wisconsin v. EPA, 938 F.3d 303, 326 (D.C. Cir. 2019).

In CSAPR and the CSAPR Update, the EPA used a threshold of one percent of the NAAQS to determine whether a given upwind state was “linked” at step 2 of the four-step interstate transport framework and would, therefore, contribute to downwind nonattainment and maintenance sites identified in step 1. If a state's impact did not equal or exceed the one percent threshold, the upwind state was not “linked” to a downwind air quality problem, and the EPA therefore concluded that the state will not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in the downwind states. However, if a state's impact equaled or exceeded the one percent threshold, the state's emissions were further evaluated in step 3, taking into account both air quality and cost considerations, to determine what, if any, emissions reductions might be necessary to address the good neighbor provision.

In this action, these first two steps of the 4-step interstate transport framework are particularly informative to analyze the standard for removal of areas from the OTR established by CAA section 176A(a)(2). We acknowledge that the specific inquiry posed by the OTR removal provision does not perfectly align with the inquiry in the CAA section 110 good neighbor provision or in CAA section 176A(a)(1). Read literally, rather than identify significant contribution of emissions to nonattainment or maintenance receptors—that is, determining whether a state's emissions are large enough that they negatively impact air quality in another state and thus may warrant the imposition of control measures—CAA section 176A(a)(2) presents a different but related question: Whether OTR controls in a state will not significantly contribute to attainment anywhere in the OTR. Despite the framing of CAA section 176A(a)(2) as significant contribution to attainment rather than significant contribution to nonattainment, we think CAA section 176A(a)(2) is best read within the context of the statutory section as a whole, and in conjunction with the other CAA provisions addressing interstate pollution transport, and therefore focused on impacts to areas that are struggling with attaining or maintaining the NAAQS. We acknowledge that one could read CAA section 176A(a)(2) as asking the EPA to only analyze OTR areas that are already in attainment and determine whether such areas would remain so after the removal of a state or portion of a state from the OTR per CAA section 176A(a)(2). 29

However, we think a better interpretation of CAA section 176A(a)(2) is that it is establishing a standard that is the inverse of the question presented in CAA section 176A(a)(1). At base, CAA section 176A(a) presents two authorities—the Administrator may add a state or a portion of a state to the transport region whenever the Administrator has reason to believe that pollutants from that state significantly contribute to a violation of the NAAQS in the transport region and may remove a state or a portion of a state whenever the Administrator has reason to believe that the state's continued inclusion in the OTR will not be required for attainment in the transport region, i.e., that the petitioning state is not significantly contributing to air quality problems in the region and will not so contribute if the state is removed from the OTR. Interpreting the statute in this way means that under CAA section 176A(a)(2), although there is no explicit reference to significant contribution to nonattainment or maintenance, the EPA's inquiry focuses on whether the state, or portion of the state, to be removed is significantly contributing or will contribute to nonattainment of the standard in the OTR. This inquiry, therefore, does not solely focus on consequences to areas that are already in attainment.

In determining whether removal is warranted under section 176A(a)(2), the EPA must also interpret the phrase “control of emissions in that state or portion of that state pursuant to this section.” The EPA proposes that “controls” refers to new controls that would be required under CAA section 184(b) if the state or portion of the state were to remain in the OTR, as opposed to controls that the state has already adopted as required by the CAA due to its inclusion in the OTR. We believe interpreting “controls” in this manner gives effect to the forward-looking nature of the provision, which asks the Administrator to analyze whether removal of the state or portion of the state from the OTR “will” have the effect of contributing to air quality problems in any area in the OTR. In undertaking that forward-looking analysis, we think it is reasonable to assume that existing, SIP-approved controls that were adopted by the state due to its inclusion in the OTR will remain in place. Under the CAA, a state seeking to revise its SIP must undergo a section 110(l) demonstration. Section 110(l) of the CAA states that the Administrator cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP), or any other applicable requirement of the CAA. Therefore, the EPA will only approve a SIP revision that removes or modifies control measures after the state has demonstrated that such removal or modification will not interfere with attainment of the NAAQS, Rate of Progress (ROP), RFP or any other applicable requirement of the CAA.

States may demonstrate a revision's noninterference with NAAQS-related requirements by substituting one measure with another that achieves equivalent or greater emissions reductions or air quality benefit or by preparing an air quality analysis showing that removing the measure will not interfere with other applicable requirements ( i.e., without a substitute measure). 30 Additionally, for areas that do not have an attainment demonstration, the EPA would consider alternative analyses to demonstrate noninterference on a case-by-case basis. The level of rigor in the alternative demonstration would vary depending on the nature of the requirement, its potential impact on air quality in the area, and the air quality of the area in which the requirement applies.

Moreover, this interpretation of CAA section 176A(a)(2) is consistent with the EPA's treatment of nonattainment areas seeking redesignation to attainment under CAA section 107(d)(3). States seeking redesignation of a nonattainment area to attainment are required to demonstrate that the area will maintain the NAAQS, per CAA section 107(d)(3)(E)(iv) and CAA section 175A. In making demonstrations of maintenance, states perform air quality modeling or emissions projections showing that existing control requirements are sufficient to maintain the NAAQS in question. However, once redesignated, a state may seek revision of its SIP to remove nonattainment SIP measures that are not necessary to maintain the NAAQS, subject to a section 110(l) demonstration. 31 We, therefore, think the analysis under CAA section 176A(a)(2) should, like a CAA section 175A maintenance demonstration, assume continued implementation of existing OTR-control measures even though such measures would no longer be statutorily mandated once the EPA removes a state or portion of the state from the OTR. As in the case of an area redesignated to attainment, a state could only stop actively implementing those measures and remove them from its SIP after satisfying its obligation under section 110(l), as discussed earlier. We note that in submitting its petition to the EPA to remove portions of the state from the OTR, Maine committed to retaining all existing OTR control measures in its SIP.

To establish the proper geographic scope of the EPA's CAA section 176A(a)(2) “significant contribution” analysis, another phrase in the provision must be interpreted: “any area in the region.” The EPA proposes to interpret the phrase “any area in the region” to mean all existing areas in the OTR, including areas within the petitioning state. Here, this would include all areas of Maine, because the entire state is included in the OTR as established under section 184. However, we recognize that it is possible that Congress intended the EPA to focus primarily on interstate impacts within the OTR, rather than impacts within the petitioning state. Therefore, the Agency is requesting comment on this alternative interpretation, as set forth in more detail below.

Read literally, “any” is a broad term that, in this context, encompasses areas within the petitioning state because they are currently in the OTR. However, case law recognizes that “ `any' means different things depending upon the setting.” Nixon v. Missouri Municipal League, 541 U.S. 125, 132 (2004); see also Small v. U.S., 544 U.S. 385, 388 (2005) (“The word `any' considered alone cannot answer [the] question”). Here, aspects of the statutory structure and context indicate that “any” may reasonably be interpreted to have a narrower scope than all areas of the current OTR. For instance, it could be relevant that the provision at issue is part of CAA section 176A, which is titled, “Interstate Transport Commissions,” and the provision at issue is located within the subsection entitled “Authority to Establish Interstate Transport Regions.” The basis under CAA section 176A(a) for creating or expanding a transport region is the interstate effects of air pollution. Further, under the CAA's cooperative federalism scheme, states retain the primary regulatory role in developing and implementing the necessary emissions reductions within their borders to meet the air quality standards established by the EPA. See CAA section 101(a)(3). If a state's removal from the OTR were projected to have negative impacts on other areas within the state, under the CAA that state would retain jurisdiction, authority, and responsibility to address such air quality problems in the first instance. See, e.g., CAA sections 110, 172, 181, and 182. Rejecting a state's petition to be removed from the OTR solely on the basis of intrastate impacts could be seen as going beyond the purpose of CAA section 176A, which was promulgated to address the interstate effects of air pollution, i.e., a problem in which affected states might otherwise have no recourse.

Nonetheless, it is also possible that Congress envisioned that the grounds for removing an area from the OTR should require a different bar ( i.e., a demonstration that removal would not cause air quality problems in other states and in one's own state) than the conditions for adding a new area to a transport region (which are limited to out-of-state impacts). This broader reading of the term “any” in this context also comports with the overall public health and welfare purposes of the CAA. In this action, as explained below, under either interpretation, the EPA proposes that Maine's petition may be granted, because its own emissions' impact on itself do not—and are not expected to if the petition is granted—contribute to ozone NAAQS attainment problems within the state. Therefore, we propose to apply the broader interpretation, wherein “any area of the region” encompasses all current areas of the OTR, including the state of Maine. We request comment on both interpretations of the phrase “any area of the region.”

Turning back to the provision as a whole, informed by the backdrop and context of other CAA provisions addressing interstate pollution transport and the states' and the EPA's actions addressing those provisions, we think it is reasonable to interpret CAA section 176A(a)(2) in a manner consistent with EPA's 4-step interstate transport framework, and in particular here, Steps 1 and 2. Under this interpretation, the EPA determines whether air quality problems exist in the transport region (including the state or area of a state petitioned to be removed) based on projected air quality modeling and also current monitored data. If so, the EPA then determines whether the state (or portion of a state) to be removed from the OTR is contributing less than one percent of the NAAQS to those problems, indicating that the state (or portion of a state) is not significantly contributing to air quality problems in the OTR, and that additional OTR controls in that state (or portion of that state) and continued OTR membership are, therefore, unnecessary for attainment of the NAAQS in the OTR. Applying that framework to the question presented by CAA section 176A(a)(2), we think a reasonable interpretation requires the Administrator to identify whether there are ambient air monitoring sites in the OTR that either are projected to be in nonattainment based on modeling data, or potentially struggle with maintenance or are currently violating the NAAQS based on monitored data, and whether the area petitioned to be removed from the transport region contributes below one percent of the NAAQS to those monitors.

Consistent with the 1990 CAA Amendments, nine Maine counties were designated as nonattainment of the now-revoked 1979 1-hour NAAQS (0.12 parts per million (ppm)). York, Cumberland, Sagadahoc, Androscoggin, Kennebec, Knox, and Lincoln Counties were classified as Moderate nonattainment areas. Waldo and Hancock Counties were classified as Marginal nonattainment areas.

Maine had two nonattainment areas under the now-revoked 1997 8-hour ozone standard. The Portland Ozone Nonattainment area consisted of 56 cities and towns in York, Cumberland, and Sagadahoc Counties, along with the town of Durham in Androscoggin County, and was classified as Marginal for the 1997 ozone standard. The Hancock, Knox, Lincoln, and Waldo Counties Ozone Nonattainment Area (also known as the Midcoast area) consisted of 55 coastal towns and islands in Hancock, Knox, Lincoln, and Waldo counties and was designated as nonattainment under Subpart 1 for the 8-hour ozone standard. Maine was designated “Attainment/Unclassifiable” statewide for both the 2008 and 2015 8-hour ozone standards of 0.075 ppm and 0.070 ppm, respectively.

As previously discussed, Section 184(b) of the CAA established certain control requirements that each state in the OTR is required to implement within the state. Section 182(f) of the CAA Amendments allows for the suspension of the OTR stationary source NO X requirements based on a demonstration that additional NO X reductions would not produce net ozone air quality benefits in the OTR. Maine has petitioned for and has been granted the following CAA section 182(f) NO X waivers.

On December 26, 1995 (60 FR 66748), the EPA approved an exemption request for the Northern Maine area from CAA section 182(f) NO X requirements. This action exempted the Oxford, Franklin, Somerset, Piscataquis, Penobscot, Washington, Aroostook, Hancock and Waldo counties from the requirements to implement NO X control measures for existing stationary sources, NNSR for new sources and modifications that are major for NO X , NO X RACT requirements, the NO X -related general conformity provisions, and the NO X -related transportation conformity provisions now contained in 40 CFR 93.119. 32

On February 3, 2006 (71 FR 5791), the EPA approved a request for an exemption for a similar area in northern Maine (specifically Aroostook, Franklin, Oxford, Penobscot, Piscataquis, Somerset, Washington, and portions of Hancock and Waldo Counties) under the 1997 ozone standard.

On July 29, 2014 (78 FR 43945), the EPA approved the state of Maine's request for an exemption from the NO X requirements contained in section 182(f) of the CAA for the entire state of Maine for the 2008 ozone standard. The CAA does not provide a similar VOC waiver process, and major stationary sources of VOC remain subject to NNSR and RACT requirements throughout the entire state of Maine.

In addition to the NO X waivers under CAA section 182(f), Maine requested and was granted an OTR restructuring with respect to enhanced I/M requirements. 33 (66 FR 1873; January 10, 2001). While the Maine I/M rule did not meet all requirements of the EPA's final rule for enhanced I/M, the EPA determined that the implementation of an enhanced I/M program in Maine in place of the approved Maine I/M rule would not significantly contribute to attainment in any other state in the OTR.

On February 24, 2020, the state of Maine petitioned the EPA pursuant to CAA section 176A(a)(2) for the removal of the state of Maine from the OTR with the exception of the 111 towns and cities listed in Table 1 comprising the Portland and Midcoast Ozone Areas.

The Maine Department of Environmental Protection (Maine DEP) provided an analysis purporting to demonstrate that Maine's emissions are an insignificant contributor to the nonattainment for the 8-hour ozone NAAQS in other states and in those areas in Maine that will remain in the OTR. Maine's analysis consists of modeling “back trajectories” for ozone exceedance days in the 2016-2018 period recorded at monitoring locations in southern New England and in Maine, EPA source-apportionment modeling results, and emissions-inventory data for Maine and the OTR. 34 The EPA's assessment of the CAA section 176A petition is discussed in Section V.

If the EPA takes final action granting Maine's petition, the following consequences would result. First, for areas to be removed from the OTR, different requirements would become applicable under the New Source Review (NSR) construction permitting program. In these areas, Maine's minor NSR and Prevention of Significant Deterioration (PSD) permitting programs would apply to ozone (NO X and VOC) in lieu of the Nonattainment New Source Review (NNSR) permitting requirements that currently apply. However, the areas remaining in the OTR would continue to be subject to the NNSR permitting requirements. In addition, Maine could alter the geographic applicability of its motor vehicle I/M program through a SIP revision. Such a change would only have a minimal impact as the majority of the counties will remain within the OTR. 35 Regarding stage II refueling vapor recovery programs for motor vehicles, granting Maine's petition would not impact emissions because the EPA previously approved the state's request to decommission the program, under the reasoning that emissions reductions resulting from the program are now accomplished with on-board vapor recovery equipment installed at the time of vehicle manufacture. 36 Finally, upon approval of Maine's petition, only the portion of the state remaining in the OTR would be required to adopt ozone RACT requirements. However, RACT requirements already adopted in Maine's SIP could only be removed if the state submitted a SIP revision and satisfies the CAA's anti-backsliding provisions of section 110(l).

In the February 24, 2020, petition to remove areas of the state from the OTR, Maine confirmed that no current control requirements in the SIP will be relaxed as a result of the petition request. To date, Maine has not submitted any SIP revisions to modify current OTR control requirements and should the EPA grant final approval of Maine's petition, this would not in itself have the effect of revising Maine's existing SIP requirements. A more detailed discussion of the changes follows.

The NSR provisions of the CAA are a combination of air quality planning and air pollution control technology provisions that require stationary sources of air pollution to obtain permits before they are first constructed or engage in a modification of an existing facility. Part C of title I of the CAA contains the PSD program, which reflects the requirements for the preconstruction review and permitting of new and modified major stationary sources of air pollution (specifically, sources emitting specific amounts of regulated NSR pollutants) located in areas meeting the NAAQS (“attainment” areas) and, areas for which there is insufficient information to classify an area as either attainment or nonattainment (“unclassifiable” areas). Under the PSD program, new major stationary sources and major modifications of existing sources must apply best available control technology (BACT) for each regulated NSR pollutant emitted above specific thresholds and conduct an air quality analysis to demonstrate that the proposed source will not cause or contribute to a violation of any NAAQS or PSD increment. 37

Part D of title I of the CAA contains the NNSR program, reflecting the requirements for the preconstruction review and permitting of new and modified major stationary sources of air pollution locating in areas designated as not meeting the NAAQS (“nonattainment” areas). Under the NNSR program, new major sources and major modifications of existing sources in a nonattainment area must apply control technology that meets the statutory definition of Lowest Achievable Emissions Rate (LAER) and must obtain emissions reductions from existing sources to offset the emissions increase from the new or modified source and ensure that the emissions increase will not interfere with a state's reasonable further progress toward attainment of the NAAQS. 38

The permit program for non-major sources and minor modifications to major and non-major sources is known as the minor NSR program. CAA section 110(a)(2)(C) requires states to develop a permitting program to regulate the construction and modification of any stationary source “as necessary to assure that [NAAQS] are achieved.”

To comply with the requirements of the CAA and the NSR implementing regulations at 40 CFR 51.160 through 51.166, most states have EPA-approved SIPs in place to implement the PSD, NNSR, and minor NSR preconstruction permit programs. The state of Maine implements its NSR program requirements through 06-096 Code of Maine Regulations (CMR) in Chapter 100 (Definitions Regulation), Chapter 113 (Growth Offset Regulation), and Chapter 115 (Major and Minor Source Air Emission License Regulations). The EPA first approved Maine's NSR program regulations as part of the state's SIP on January 30, 1980 (45 FR 6784). 39 Together, Maine's PSD, NNSR, and minor NSR permitting programs ensure that construction of new and modified stationary sources of air pollutant emissions do not significantly deteriorate air quality in “clean areas,” impede reasonable further progress in nonattainment areas, or interfere with maintenance of any NAAQS.

The applicability of the PSD, NNSR or minor NSR programs to a stationary source must be determined in advance of construction and is a pollutant-specific determination. Thus, a stationary source may be subject to PSD for certain pollutants, NNSR for some pollutants and minor NSR for others after assessing the quantity of emissions, the regulated NSR pollutants emitted and the area's attainment status.

Pursuant to Maine's NNSR program, sources with a potential to emit equal to or greater than 100 tons per year of NO X or 50 tons per year of VOC qualify as major stationary sources. 40 New major stationary sources are subject to NNSR permitting requirements, including LAER and emissions offsets, for any pollutant ( i.e., NO X or VOC) which the source has the a potential to emit in amounts equal to or greater than the respective major source threshold. For existing major stationary sources in Maine, NNSR permitting requirements apply to construction projects that would result in a significant net emissions increase of NO X or VOC, defined as an increase equal to or greater than 40 tons per year for either NO X or VOC. Such projects qualify as a major modification at an existing major stationary source.

The CAA requires PSD programs to apply to any major emitting facility, defined as a stationary source that emits, or has a potential to emit, at least 100 tpy of a regulated NSR pollutant, if the source is in one of 28 listed source categories, or, if the source is not, then at least 250 tpy of a regulated NSR pollutant. See 42 U.S.C. 7479(1); 40 CFR 51.166(b)(1); and 40 CFR 52.21(b)(1). Maine's PSD program is more stringent than the federal program in that it sets the major stationary source threshold (for purposes of determining applicability to PSD permit requirements) at 100 tpy of a regulated NSR pollutant regardless of source category. See Chapter 100 (125)(B). New major stationary sources are subject to PSD permitting requirements, including BACT and air quality impacts analysis, for any regulated NSR pollutant that the source has the potential to emit in an amount equal to or greater than pollutant-specific significant emissions rates contained in the regulations. For both NO X and VOC, the significant emissions rate under PSD is 40 tons per year. Because the OTR is treated as moderate nonattainment for ozone, the precursors NO X and VOC are not currently subject to PSD permitting requirements in Maine. 41 See 40 CFR 51.166(i)(2).

Maine's minor NSR program regulates construction activities and resulting emissions at some new and existing sources not subject to NNSR or PSD. The emissions threshold for minor NSR applicability is 10 pounds per hour or 100 pounds per day. 42 The applicable control technology standard under Maine's minor NSR program is BACT, which uses the same definition of BACT as the state's PSD-program regulations. Thus, in Maine, BACT must be applied by all new major stationary sources and major modifications under the PSD program and to new non-major sources and minor modifications at both major and non-major sources under the state's minor NSR program. Under the definition in both programs, BACT is an emissions limitation based on the maximum degree of control that can be achieved for a particular pollutant taking into account energy, environmental, and economic impacts. BACT can be add‐on control equipment or a design, equipment, work practice, or operational standard if imposition of an emissions standard is infeasible.

The applicable control technology standard under Maine's NNSR program is the Lowest Achievable Emissions Rate (LAER). With regard to NO X and VOC, LAER is applicable to new major stationary sources and major modifications because of the state's current inclusion in the OTR (even though all areas in Maine are designated attainment or unclassifiable for ozone). Maine defines LAER within Chapter 100 as meaning the more stringent rate of emissions based on the following:

Because of Maine's location in the OTR, LAER is currently required if emissions of NO X or VOC from a project at a major source exceed Maine's NNSR applicability thresholds, and BACT is required if project emissions are below those thresholds but above the state's minor NSR thresholds. One result of granting Maine's petition to remove some portions of the state from the OTR is that PSD will apply to major sources and BACT will be required for NO X and VOC emissions in all NSR permitting actions (major and minor) for sources located in those areas removed from the OTR. However, existing LAER requirements contained in existing permits located in areas that would no longer be part of the OTR ( i.e., in final permits issued prior to the effective date of Maine's petition, should it be granted) would remain in effect. In addition to LAER, another requirement that is unique to NNSR is the requirement for new major sources and major modifications at existing sources to secure offsetting emissions reductions. Such emissions offsets must be obtained from “the same source or other sources in the same nonattainment area,” except that the state may allow emissions offsets derived from another nonattainment area if “(A) the other area has an equal or higher nonattainment classification than the area in which the source is located and (B) emissions from such other area contribute to a violation of the national ambient air quality standard in the nonattainment area in which the source is located.” 42 U.S.C. 7502(c). For ozone, the CAA requires that the amount of emissions offsets obtained increase with the severity of the area's nonattainment status. Areas within the OTR are treated as “moderate.” Thus, the emissions offsets that must be obtained in Maine is calculated by applying a ratio of 1.15 to 1 for NO X and VOC. 44

If the EPA grants Maine's petition to remove parts of the state from the OTR, new stationary sources locating in the affected area would be subject to PSD for NO X and VOC if the source is major under Maine's definition by virtue of it having a potential to emit 100 tons per year or more of any regulated NSR pollutant and 40 tons per year or more of NO X and VOCs. If triggered, PSD permitting requirements for NO X and/or VOC would include the application of BACT and a demonstration that the allowable emissions increase(s) would not cause or contribute to a violation of the ozone NAAQS. Modifications at existing major stationary sources that result in an increase of 40 tons per year or more of NO X or VOC by itself and on a net basis would be subject to the same PSD permitting requirements. New non-major sources and minor modifications at existing sources (major and non-major) would be subject to the minor NSR permitting requirements for NO X and/or VOC, including BACT, if emissions exceed the applicable minor NSR thresholds discussed previously.

Based on the foregoing, if the EPA finalizes its proposal to grant Maine's petition, some sources and modifications located in the part of the state no longer in the OTR would be subject to BACT instead of LAER for NO X and VOC. While there are not always significant differences between the level of control determined under BACT and LAER, BACT determinations must consider factors, such as energy, environmental, and economic impacts and other costs, that are not considered for LAER determinations. Because of differences between BACT and LAER, in individual determinations, it is not necessarily the case that LAER is always more stringent than BACT.

Some sources previously required to obtain emissions offsets under the NNSR program would not be required to do so under the PSD or minor NSR program. While the NNSR emissions offsets requirement would no longer apply in the portion of the state to be removed from the OTR, under PSD, new major stationary sources and major modifications would be required to demonstrate that proposed emissions increases will not cause or contribute to a violation of the ozone NAAQS. For projects subject to minor NSR, Maine's minor NSR program also requires at Chapter 115 section (7)(C)(1) air quality impact analyses of NO X for new minor sources and minor modifications at existing sources if emissions exceed 50 tons per year of NO X . Maine also has discretionary authority to require an ambient air quality analysis for sources that emit less 50 tons per year of NO X ( see Chapter 115 subsection (7)(B)(3)).

Procedurally, granting Maine's petition would not materially alter opportunities for public involvement, as Maine's PSD and NNSR pre-construction regulations contain procedures for the opportunity for public participation in the permitting process whether a stationary source is subject to minor NSR, PSD, or NNSR permitting regulations.

Section 184(b)(1)(A) of the Act requires certain areas in the OTR to adopt and implement an inspection and maintenance program meeting EPA's enhanced I/M performance standard. The EPA's I/M rule was established on November 5, 1992 (57 FR 52950). The EPA made significant revisions to the I/M rule on September 18, 1995 (60 FR 48035) and on July 25, 1996 (61 FR 39036). The I/M regulation was codified at 40 CFR part 51, subpart S, and requires States subject to the I/M requirement to submit an I/M SIP revision that includes all necessary legal authority and the items specified in 40 CFR 51.350 through 51.373. Maine is subject to the OTR requirements for a vehicle I/M program in the Portland, Maine area.

Maine's I/M program provides for the implementation of I/M in Maine's Cumberland County, which includes the Portland area, beginning on January 1, 1999. Maine implemented an annual, test and repair I/M program, which the state designed to meet the requirements of the EPA's performance standard and other requirements contained in the federal I/M rule. Testing is overseen by the Department of Public Safety (DPS) and implemented by individual garages in the existing safety inspection network. Aspects of the Maine I/M program include: Antitampering testing for catalytic converters on 1983 and newer light duty vehicles and trucks, gas cap pressure testing on 1974 and newer vehicles, and On-Board Diagnostic (OBD2) checks (beginning in January 2000), enforcement by the existing windshield safety inspection stickers, requirements for testing convenience, quality assurance, data collection, no cost waivers, reporting, test equipment and test procedure specifications, public information and consumer protection, inspector training and certification, penalties against inspectors which perform faulty inspections, and emissions recall enforcement. However, Maine did not meet the enhanced I/M requirements due to the lack of a required registration-based enforcement program. The EPA determined that even though Maine's I/M program did not meet the requirements for the EPA's enhanced I/M program, the program contributes to air quality improvement. The EPA also determined that an enhanced I/M program in Maine would not significantly contribute to the attainment of the 1-hour ozone standard anywhere in the OTR. (66 FR 1871, January 10, 2001). If the EPA grants Maine's 176A petition, the impacts on Maine's I/M program would likely be minimal. Cumberland County is the only county in Maine with an I/M program, and, as noted previously, only six towns in Cumberland County are included in the portion of the state requesting to opt out of the OTR, and those six towns contain only five percent of the county's population. Even if the state were to request to remove I/M requirements for those six towns in the future, subject to CAA section 110(l), the majority of Cumberland County would remain in the OTR and will continue to implement Maine's existing I/M program.

Stage II refueling vapor recovery systems and vehicle onboard refueling vapor recovery (ORVR) systems were initially both required by the 1990 Amendments to the CAA. Section 182(b)(3) requires ozone nonattainment areas classified Moderate and above to implement Stage II refueling vapor recovery programs. Under CAA section 184(b)(2), states in the OTR were also required to implement Stage II or comparable measures. CAA section 202(a)(6) required EPA to promulgate regulations for ORVR for light duty vehicles (passenger cars). 45

Maine's SIP approved Stage II program requirements were codified in Maine's Chapter 118, Gasoline Dispensing Facilities Vapor Control. 46 Maine's rule required gasoline dispensing facilities located in the counties of York, Cumberland, and Sagadahoc to install Stage II vapor recovery systems. With the widespread use of ORVR, Maine's revised Chapter 118 decommissioning Stage II vapor recovery requirements was approved into the SIP. (82 FR 32480, July 14, 2017). EPA's proposed grant of Maine's 176A petition would have no impact on Stage II requirements due to the decommissioning of the program in Maine.

Sections 182(b)(2) and 184(b)(1)(B) of the CAA require states with ozone nonattainment areas that are classified as Moderate or above, as well as areas in the OTR, to submit a SIP revision requiring the implementation of RACT for sources covered by a control techniques guideline (CTG) and for all major sources of VOCs and NO X . A CTG is a document issued by the EPA which establishes a “presumptive norm” for RACT for a specific VOC source category. RACT is defined as the lowest emissions limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. The CTGs usually identify a particular control level, which the EPA recommends as being RACT. States in the OTR are required to address RACT for the source categories covered by CTGs through adoption of rules as part of the SIP, and they are also required to adopt RACT for major sources of VOCs (50 tpy) and major sources of NO X (100 tpy) even if a CTG does not apply.

The EPA has approved: The Maine VOC RACT for the 1-hour ozone standard (65 FR 20753, April 18, 2000) and (67 FR 35441, May 20, 2002); the Maine NO X RACT for the 1-hour ozone standard (60 FR 66755, December 26, 1995, and 67 FR 57154, September 9, 2002); the Maine VOC and NO X RACT for the 1997 8-hour ozone standard (77 FR 30216, May 22, 2012); and the Maine VOC RACT for the 2008 8-hour ozone standard (84 FR 38558, August 7, 2019). We note that Maine's petition includes a commitment to implement existing RACT and to adopt future RACT requirements statewide, for both the 2015 ozone NAAQS and any future ozone NAAQS. The state's deadline to submit a RACT SIP for the 2015 ozone standard was August 3, 2020 (83 FR 62998, 63001, December 6, 2018).

Notwithstanding the stated intention in Maine's petition to adopt statewide RACT for the 2015 ozone standard and to adopt statewide RACT for future ozone NAAQS, in this case the EPA does not believe it is necessary for the state to adopt such additional RACT to meet the test set forth in CAA section 176A(a)(2). The state's technical demonstration submitted with its petition, which shows that Maine does not and will not contribute to nonattainment or interfere with maintenance anywhere in the OTR, does not reflect the adoption of statewide RACT to address the 2015 ozone NAAQS (or additional RACT controls for future standards). As stated in CAA section 176A(a)(2), and discussed in Section III.C of this notice, the Administrator may exercise the OTR removal provision “whenever the Administrator has reason to believe” that additional OTR controls will not contribute significantly to attainment in the OTR. The EPA interprets this language to permit the Administrator to consider whether to approve a state's petition even if the state has not met, and the EPA has not fully approved, all applicable OTR requirements to date.

If finalized, the EPA's grant of Maine's petition would terminate Maine's federal obligation under CAA section 184 to adopt further RACT requirements for the portion of the state no longer in the OTR, including for the 2015 ozone NAAQS. The portion of the state remaining in the OTR, however, remains obligated under CAA section 184 to submit a SIP revision to address both NO X and VOC RACT for the 2015 ozone NAAQS, and for any future ozone NAAQS so long as the area remains in the OTR. Of course, the state could still elect to adopt SIP-strengthening control measures (either at the state level or as SIP-strengthening measures) for sources in the portion of the state that is no longer in the OTR, even if that portion of the state is not obligated to meet RACT under section 184(b). In addition, if the EPA's grant is finalized, the state could seek to relax or remove RACT requirements in its SIP for the portion of the state no longer in the OTR, but as noted in section III.C, any such revision would be required to satisfy a demonstration of noninterference under section 110(l).

As noted previously, the Maine petition included detailed technical analyses for VOC and NO X emissions in the state, including an analysis of whether emissions from Maine impact other areas in the OTR. The state uses the following techniques to analyze those emissions and their impacts: Back trajectories using the National Oceanic and Atmospheric Administration (NOAA) Air Resources Laboratory's Hybrid Single Particle Lagrangian Integrated Trajectory (HYSPLIT) model  47 and photochemical source apportionment modeling. These analyses are in keeping with steps 1 and 2 of the interstate transport framework described in Section III.C of this document. In both the trajectory and modeling analyses, air quality monitors that either measured elevated ozone concentrations or were projected to have design values that violated the NAAQS or struggled to maintain the NAAQS were identified (step 1). Maine then used HYSPLIT trajectory model and photochemical source apportionment modeling to identify whether Maine contributed to those problem monitors (step 2). Further inspection of Maine's emissions trends supports the conclusions made using the HYSPLIT and source apportionment modeling analyses.

The air trajectories used by Maine DEP are four-dimensional representations of the path an air parcel follows, in time, based on surface and upper-level meteorological data during the day of and days prior to the measured exceedances. A back trajectory, as used by Maine DEP in this case, represents the path an air parcel takes to reach a specific point in time and space. Using the HYSPLIT back trajectory model, Maine DEP air quality meteorologists analyzed back trajectories for 989 days from the 2016 through 2018 ozone seasons at monitoring locations in the OTR with current 8-hour ozone design values exceeding the 2015 ozone NAAQS of 70 ppb. For each such exceedance day at each monitoring site, 48-hour back trajectories originating from 10 and 500 meters above ground level were created for the hour of the maximum hourly ozone. As noted above in Section IV.A of this document, for this analysis, the “NAM 12 km pressure” gridded meteorological data was used, except for August 27, 2016, when no meteorological data was available so the “NAM 12 km hybrid” meteorology was used for that day. The trajectories were then plotted to determine the origin of the air on high-ozone days. The Maine petition included maps showing that none of the 989 10m back trajectories traveled over the state of Maine (Figure 7 of Maine petition) and that 2 out of the 989 back trajectories at 500 meters traversed the far western edge of Maine (Figure 9 of Maine petition). Maine asserted that the fact that air parcels at violating monitors on days greater than 70 ppb did not originate from or traverse the state of Maine in the preceding 48 hours provided support for the conclusion that Maine did not contribute significantly to ozone nonattainment at those violating monitors.

In addition, Maine provided similar HYSPLIT back trajectory analyses for Maine monitors (none of which recorded design values above the NAAQS) on days when maximum daily 8-hour average ozone concentrations exceeded 70 ppb. These back trajectories showed that most of the air parcels traveling to the Maine monitors on those high-ozone days were transported from the south and southwest direction along the coast of Maine and primarily traversed either offshore locations or portions of the state that will remain in the OTR.

In addition to the trajectory analysis discussed above, Maine's petition referenced the EPA's photochemical modeling for the CSAPR Update for the 2008 ozone NAAQS and results from the interstate transport modeling for the 2015 ozone NAAQS. 48 49 The EPA's CSAPR Update modeling projected ozone design values in 2017 and modeled each state's total contribution to that value for the 2008 8-hr ozone NAAQS of 75 ppb. The same was done for the 2015 8-hour ozone NAAQS of 70 ppb interstate transport assessment for the year 2023. The maximum contribution from the entire state of Maine to any monitoring site in any other state in the OTR is 0.47 ppb in New Hampshire, based on the EPA's contribution modeling for 2017, and 0.13 ppb in Massachusetts based on the EPA's contribution modeling for 2023. The modeling further estimated that the maximum total contribution of the state of Maine to any monitors projected to have nonattainment or maintenance problems within the OTR was 0.01 ppb for both 2017 and 2023.

Finally, Maine provided graphical figures showing NO X and VOC historical emissions trends as well as projected emissions trends out to 2028. These data include statewide emissions inventories as well as a break-out of emissions for the Portland and Midcoast Ozone areas. Furthermore, the petition provides emissions data broken out into four source types (on-road vehicles, non-road equipment, point sources and nonpoint sources), and shows that emissions of on-road vehicles, which were the largest source of anthropogenic NO X emissions in the state of Maine between 2005 and 2014, are expected to continue to decline. Maine's emissions analysis also shows that nonpoint and non-road sectors were the largest sources of VOC emissions in the state of Maine in 2005 and 2014.

As noted in Section III.C of this document, the EPA views the inquiry under CAA section 176A(a)(2) as necessitating the identification of current and future air quality problems in the OTR, determining whether the petitioning area is significantly contributing to those problems, and examining whether removal of the petitioning area from the OTR will significantly contribute to nonattainment or maintenance problems in the future. The EPA proposes to find that the technical analyses submitted by Maine in its CAA section 176A petition, in conjunction with additional analysis performed by the EPA, support Maine's petition to remove a portion of the state from the OTR.

The HYSPLIT analyses performed by Maine and summarized in Section V.A. are a technically sound and appropriate method to support showing the potential (or lack of potential) of an area to contribute to high-ozone values at a downwind location. This type of trajectory analysis is a commonly used method to examine potential source-receptor relationships based on air transport patterns. In this case, we agree that the analysis provided by Maine showed that in 2016-2018 air parcels containing high-ozone concentrations at violating monitors in the OTR rarely if ever originated from Maine.

The EPA's ozone source apportionment air quality modeling conducted for the CSAPR Update, and the EPA's interstate transport modeling for the 2015 ozone NAAQS both further support the conclusions that (1) Maine has historically contributed below the one percent threshold of 0.70 ppb to all other states and contributes well below that threshold to any receptors currently  50 identified as having a potential nonattainment or maintenance problem, and that (2) the state will continue to contribute below that threshold to all other states in the OTR in the future. Further, EPA's analysis demonstrates that there are no ozone nonattainment or maintenance receptors in Maine, either now, or going forward, even if the petition is granted. The EPA's source apportionment modeling employs enhanced techniques that track the formation and transport of ozone from specific emissions sources and calculates the contribution of sources and precursors to ozone for individual receptor locations. The strength of the photochemical model source apportionment technique is that all modeled ozone at a given receptor location in the modeling domain is tracked back to specific sources of emissions and boundary conditions to fully characterize culpable sources.

Data from the contribution analysis are summarized within Table 2 of the state's submittal, showing the maximum modeled ozone contribution from Maine's emissions in other OTR states. The data indicate a maximum modeled impact of only 0.47 ppb in 2017 in New Hampshire, which is well below the one percent threshold of 0.70 ppb used to establish significant contribution linkages, and, additionally, occurs in a state, New Hampshire, that is attaining and projected to continue to attain both the 2008 and 2015 ozone NAAQS. The EPA also examined its 2023 contribution modeling to identify the highest contribution from Maine to any projected nonattainment or maintenance receptor in another state. The data show that the highest contribution from Maine to a nonattainment or maintenance receptor in another state based on modeling is 0.01 ppb in 2017 at the receptor in Greenwich, Fairfield County, CT and 0.01 ppb in 2023 at the receptor in Babylon, Suffolk County, NY (site 361030002). This amount ( i.e., 0.01 ppb) is well below a 0.70 ppb ( i.e., one percent of the 2015 NAAQS) contribution threshold.

Second, Maine's HYSPLIT back trajectory analyses included an evaluation of Maine monitors that indicates that high-ozone concentrations in the state are largely due to out-of-state contributions. Maine's petition provides back trajectory air parcel paths from monitors in the state on days when those monitors recorded maximum daily 8-hour average ozone concentrations that exceeded the 2015 NAAQS. The air parcels traveling to these Maine monitors on those high-ozone days did not typically traverse the portions of Maine proposed to be removed from the OTR. Rather, the air parcels were carried by winds from the south and southwest and, on most days traversed either marine locations or the portion of the state that will remain in the OTR ( i.e., the Portland and Midcoast areas).

We also propose to find that the NO X and VOC historical emissions trends and projected future emissions trends information to 2023 and 2028 provided in Maine's submittal further support removal of the petitioning area from the OTR. VOC and NO X emissions in Maine have declined since 2005 and are expected to continue to decline into the future. The historical and projected downward trend is driven, in large part, by emissions reductions from the point source and on-road mobile source categories.

Maine's documentation shows that statewide point source emissions of NO X and VOC decreased 51 and 45 percent, respectively from 2005 to 2016. Maine's projections predict that NO X and VOC emissions will continue to decrease into the future. For example, Maine's analysis of statewide emissions shows NO X and VOC reductions of 46 and 34 percent respectively between 2011 and 2023. These reductions are primarily coming from on-road vehicles, EGU point sources, and non-road equipment. The reduction in emissions from on-road vehicles is largely the result of several mobile source programs such as the Tier 3 emissions and gasoline standards for light-duty vehicles, the mobile source air toxics rule and the heavy-duty highway vehicle rule  51 which have resulted in newer vehicles having lower emissions than vehicles previously sold in the U.S. As more of those newer, lower-emitting vehicles replace older, higher-emitting vehicles, mobile source emissions are expected to further decline. It should be noted that none of these regulations were affected by the recent finalization of “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program”  52 or “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks,”  53 which addressed greenhouse gas emissions standards, corporate average fuel economy standards and the ability of states to adopt greenhouse gas standards and related regulations for light-duty vehicles.

We note that the source apportionment air quality modeling cited by Maine has been at issue in various legal challenges to EPA actions. See Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019); Maryland v. EPA, 958 F.3d 1185 (D.C. Cir. 2020). In both of those cases, the D.C. Circuit remanded the EPA's final actions to the extent that those actions failed to require upwind states to eliminate their significant contributions in accordance with the attainment dates found in CAA section 181 by which downwind states must come into compliance with the relevant NAAQS. Wisconsin, 938 F.3d at 313; Maryland, at 958 F.3d at 1203-04. The two statutory provisions at issue in Wisconsin and Maryland — i.e., CAA section 110(a)(2)(D)(i)(I) (the good neighbor provision), and CAA section 126, which by its terms incorporates the substantive requirements of the good neighbor provision—require that the states and the EPA consider statutory downwind attainment dates in determining the deadline by which upwind significant contribution must be eliminated. See CAA section 110(a)(2)(D)(i)(I) (State plans must “contain adequate provisions prohibiting, consistent with the provisions of this subchapter,” emissions which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such NAAQS) (emphasis added). By contrast, CAA section 176A has no reference to other provisions of the CAA, the attainment dates in title I, or a defined timeframe for analysis. See CAA section 176A(a)(1) and (2) (the Administrator may add any state whenever he has reason to believe that the interstate transport of air pollutants . . . “significantly contributes to a violation of the standard in the transport region”; and the Administrator may remove any state from the region whenever he has reason to believe that the OTR control of emissions in the state will not “significantly contribute to the attainment of the standard in any area in the region”) (emphasis added). In addition, while the selected analytic year for the EPA's air quality modeling can in some instances have a material impact on determining whether receptors are in attainment and/or whether areas are linked to those receptors, this is not the case for Maine. Maine has not been linked as contributing above the one percent of the NAAQS threshold to downwind nonattainment or maintenance based on air quality contribution modeling performed by the EPA for either the 2008 or 2015 ozone NAAQS. We, therefore, do not think that the legal issues identified with the EPA's air quality modeling in Wisconsin and Maryland, which were solely concerned with the relationship of that modeling to the statutory attainment dates, undermines Maine's use of that modeling in its petition. Moreover, we note that the D.C. Circuit upheld the EPA's air quality modeling with respect to the many technical challenges raised by petitioners in the Wisconsin case. 938 F.3d at 323-331.

The EPA, therefore, proposes to find that granting Maine's petition to remove portions of the state from the OTR, and the resulting changes in the extent of emissions controls that would result (discussed in detail in section IV), will not significantly contribute to nonattainment or maintenance problems for any area in the OTR. As noted, the emissions trends in Maine indicate continued declines in emissions of ozone precursors associated with on-the-books emissions controls, and do not depend on any new emissions limitations that would be driven by OTR control requirements under CAA section 184(b). In addition, Maine's highest modeled contribution to any receptor in the OTR that is expected to struggle with attainment or maintenance of the 2015 ozone NAAQS is only 0.01 ppb. This suggests that the ozone contribution from anthropogenic ozone precursor emissions in Maine would have to increase by a factor of 70 for Maine to potentially contribute above the one percent threshold to an existing or projected nonattainment or maintenance problem in the OTR. This observation is made merely to provide an indication of the general magnitude of emissions increases from Maine that would be needed in order for existing trends in improving air quality to be halted and reversed to the extent that such an increase may create new air quality problems closer to, or within, Maine. The EPA believes that granting the petition would not result in such a change in emissions resulting from either removal of existing emissions controls or unchecked growth in new source emissions. The historic emissions trends in Maine, the CAA's section 110(l) anti-backsliding provisions for SIP revisions and the new source PSD permitting provisions that would apply in the removed portion of the state provide assurances that a substantial increase in emissions is highly unlikely, and would represent an unprecedented reversal in overall emissions reductions for any state, whether in the OTR or not.

Further, as discussed in Section IV of this document, the primary change in the ozone control regime that will result from granting the petition is to switch from NNSR requirements for new sources of emissions to PSD NSR requirements, in the areas of the state to be removed. This change would mean the application of BACT rather than LAER controls for new sources and removal of the requirement to obtain emissions offsets. This change would be primarily impactful for VOCs rather than NO X emissions. This is because Maine has, in the past, obtained NO X waivers under CAA section 182(f), which suspended NNSR requirements (and RACT requirements) for major NO X emissions sources. During the periods when Maine was under NO X waivers, its NO X emissions and ozone levels generally continued to decline. Thus, while Maine has not obtained a NO X waiver for the 2015 ozone NAAQS, this does not affect the EPA's overall assessment that the switch to PSD NSR from NNSR would not be expected to result in a substantial change from historical levels of NO X emissions. With respect to VOC emissions, any new source growth under PSD NSR rather than NNSR cannot be reasonably anticipated to cause such a dramatic increase in emissions as to result in new air quality problems where none currently exist—where such improvements in Maine's air quality have primarily been driven by reductions in out-of-state emissions and non-OTR related control strategies such as federal mobile source standards.

Additionally, Maine's petition shows that a substantial portion of Maine's anthropogenic VOC and NO X emissions occur in the Portland and Midcoast ozone areas, which Maine is not proposing to remove from the OTR. 54 The fact that the petition shows contributions from the entire state to be insignificant, while a substantial portion of those emissions originate from areas that will remain in the OTR makes an even stronger case that there is reason to believe that granting Maine's petition will not result in significant contributions to ozone violations anywhere in the OTR.

Based on the information discussed in this notice, the EPA is proposing to grant Maine's CAA section 176A petition. In consideration of monitoring data, emissions data, technical demonstrations (including air quality monitoring and trajectory analyses), and the potential impact to air quality control regimes, the EPA proposes to find that additional OTR controls under CAA section 184(b) for the portion of the state that Maine is seeking to remove from the OTR will not significantly contribute to attainment of any ozone NAAQS in any area of the OTR. In support of this proposed conclusion, the EPA finds that removing the requested areas from the OTR will not result in emissions changes that would significantly contribute to nonattainment or interfere with maintenance of any ozone NAAQS in any area of the OTR. All areas of the state proposed for removal from the OTR have been designated in attainment of the ozone NAAQS since 2004, and the entire state of Maine has been designated as in attainment with the ozone NAAQS since 2007. Technical demonstrations from Maine's HYSPLIT back trajectory analysis, the EPA's ozone source apportionment modeling, and emissions trends all support the assertion that emissions from the areas requested to be removed from the OTR will not significantly contribute to nonattainment or maintenance problems in any area in the OTR, either within or outside the state of Maine, in the foreseeable future. Furthermore, removing those areas from the OTR will not result in unchecked relaxation of existing NO X and VOC controls included in Maine's SIP or revoke permitted emissions limits at existing facilities. Any future revisions to Maine's SIP would be subject to CAA section 110(l) anti-backsliding demonstrations. Accordingly, the EPA proposes to grant the CAA section 176A petition filed by the state of Maine.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action, if finalized, must be filed in the United States Court of Appeals for the appropriate circuit within 60 days of publication of any final action. Filing a petition for reconsideration by the Administrator of this rule, if finalized, will not affect the finality of the rule for the purposes of judicial review nor will it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. The Administrator of the EPA hereby determines that this action is subject to CAA section 307(d), as authorized by section 307(d)(1)(V).

For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

This is a summary of the Commission's Further Notice of Proposed Rulemaking ( Further Notice) in ET Docket No. 19-138, FCC 20-164 adopted November 18, 2020, and released November 20, 2020. The full text of the Further Notice, including all Appendices, is available by downloading the text from the Commission's website at https://docs.fcc.gov/public/attachments/FCC-20-164A1.pdf. When the FCC Headquarters reopens to the public, the full text of this document also will be available for public inspection and copying during regular business hours in the FCC Reference Center, 45 L Street NE, Washington, DC 20554. 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), (202) 418-0432 (TTY).

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.

• Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.

• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed 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 proceeding this Further Notice initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules, 47 CFR 1.1200 et seq. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

1. Simultaneous with this Further Notice, the Commission adopted a First Report and Order that revised the band plan for the 5.9 GHz band, authorizing unlicensed use in the lower 45 megahertz of the band (5.850-5.895 GHz) and retaining the upper 30 megahertz of the band (5.895-5.925 GHz) for the Intelligent Transportation System (ITS) radio service. As of the effective date of the First Report and Order, unlicensed indoor operations are permitted in the 5.850-5.895 GHz portion of the 5.9 GHz band, under specified power and other technical limitations designed to protect incumbent ITS service and federal radar operations from harmful interference. The Commission decided to consider requests for unlicensed outdoor operations in the 5.850-5.895 GHz band through the Commission's existing regulatory process for individualized and temporary access to spectrum, to be coordinated with the National Telecommunications and Information Administration (NTIA) to ensure that federal incumbents are protected from harmful interference.

2. The Commission implemented a period of one year from the effective date of the First Report and Order for the ITS licensees to transition all operations into the 5.895-5.925 GHz portion of the band. The Commission further adopted rules designating C-V2X technology as the ITS delivery system once the Commission adopts a deadline and the transition to the revised ITS band is complete. Pending resolution of the transition of ITS operations to C-V2X, ITS licensees will be able to continue their DSRC-based operations or, alternatively, to seek to deploy C-V2X-based operations through the Commission's existing regulatory processes.

3. In this Further Notice, we address the remaining issues to finalize the 5.9 GHz band restructuring. Specifically, the Further Notice addresses: (1) The transition of all ITS operations to C-V2X-based technology; (2) the codification of C-V2X technical parameters in the Commission's rules; (3) other transition considerations; and (4) the transmitter power and emissions limits, and other issues, related to full-power outdoor unlicensed operations across the 5.850-5.895 GHz band.

4. Under the First Report and Order, all existing ITS operations using channels in the lower 45 megahertz of the 5.9 GHz band (5.850-5.895 GHz) are required to transition out of that spectrum into the upper 30 megahertz of the 5.9 GHz band (5.895-5.925 GHz) that will continue to be designated for ITS. ITS licensees must take necessary steps to assess their existing equipment and infrastructure and either retune their devices to access only the spectrum in the 30 megahertz that will remain available for ITS operations or replace their equipment with transmitters designed to use only the revised ITS band. In this Further Notice, we propose to address remaining issues that must be resolved regarding the transition of ITS from DSRC to C-V2X operations in the 5.895-5.925 GHz band, including the timing and procedures needed to ensure a smooth transition. We also seek comment on additional or alternative measures that may be helpful, appropriate, or necessary.

5. Timeline. In the First Report and Order, we require that ITS operations in the 5.895-5.925 GHz band ultimately must use C-V2X technology. In order to complete the transition of the band to C-V2X, we propose that all ITS operations in the 5.895-5.925 GHz band either convert to C-V2X or cease operating two years after the effective date of a Second Report and Order to be adopted in response to this Further Notice. We seek comment on this proposal.

6. Since the Commission first proposed in December 2019 to authorize C-V2X operations in the 5.9 GHz band, manufacturers and licensees have had significant time to begin planning for the possible entry of C-V2X into the band. We seek comment on the state of development and availability of C-V2X equipment, both roadside units (RSUs) and on-board units (OBUs). We believe that two-years beyond the effective date of the rules the Commission will adopt in the Second Report and Order will allow the ITS supply chains to become replete with C-V2X equipment. This timeframe is consistent with the Department of Transportation's view that vehicle manufacturer product cycles necessitate two years lead time to ensure new V2X equipment is installed in new vehicles. And in some instances, this timeframe may not be needed as some commenters have explained that they have already deployed equipment that is both DSRC and C-V2X compatible. We seek comment on whether manufacturers can distribute C-V2X equipment through their existing supply chains, and on whether vehicle manufacturers can install C-V2X equipment into new vehicles, within this timeframe. Moreover, we expect that many licensees will begin planning for the eventual transition to C-V2X now and, thus, may take advantage of available opportunities to immediately operate C-V2X facilities in the upper 30 megahertz of the band under our STA, experimental licensing, or other existing regulatory process without first implementing interim DSRC operations. We seek comment on the number of licensees that may decide to operate in such a fashion and the number that plan to continue offering DSRC in the 30-megahertz band during the transition period. We assume that the transition process to C-V2X would primarily involve replacing DSRC transmitters with C-V2X transmitters, since we propose C-V2X technical rules consistent with the current rules for DSRC and therefore no antenna changes are needed to cover the same area based on the identical propagation characteristics between DSRC and C-V2X. We seek comment on the steps involved with converting all ITS operations in the 5.9 GHz band to C-V2X technology and the expected time to complete the entire process. We note that, as stipulated in the First Report and Order, licensees will not need to initiate changes to their authorizations when they transition to C-V2X; they simply will need to use equipment that meets the operational and technical rules the Commission will adopt in the Second Report and Order for C-V2X technology. If, however, a licensee needs to concurrently make adjustments to its system to add sites, increase power, or modify emissions, those changes will require modifications to the underlying RSU registration information.

7. We also seek comment on how to treat DSRC OBUs at the final transition date. Can manufacturers or DSRC system operators send over-the-air instructions to these units to turn off? Can OBUs be modified through software or hardware changes to operate using C-V2X-based technology? Absent other operating DSRC infrastructure (such as RSUs), would OBUs continue to communicate with each other and, if so, what would such communications entail? Is there any potential for harmful interference into C-V2X operations that could occur if DSRC OBUs continue to operate after the final transition date and, if so, how can such interference best be prevented? We seek comment on our proposed two-year sunset date for DSRC-based OBU operations and any alternative date that commenters might suggest. Commenters should be specific as to the merits of any date they recommend for ceasing DSRC operations in the 5.9 GHz band.

8. We note that OBUs are licensed-by-rule under the part 95 Personal Radio Services rules. “Licensed-by-rule” means that an authorized user can access the entire available spectrum without an individual station license document and is instead authorized to operate as long as the operations are in accordance with the applicable service rules. As a result, the Commission does not have detailed information and records on the exact number and location of users of such equipment. We seek comment on whether there are any specific issues related to modifying OBUs that are not reflected in the questions already raised. As an initial matter, we assume that most OBUs should be easily identified because very few vehicles sold to date are equipped with OBUs and the vast majority of existing units are associated with the various ITS trial programs occurring throughout the U.S. We seek comment on this notion. Are there estimates of the number of vehicles on the road today that incorporate DSRC-based OBUs independent of a trial or pilot program ( i.e., as part of a commercial deployment of DSRC services)? Does the Commission need to take steps to make owners of these vehicles aware of the changes being adopted? Or would automobile manufacturers take primary responsibility for notifying their customers of these rule changes? If the Commission should make owners aware of rule changes affecting OBUs, then how should the Commission conduct such consumer outreach? Commenters should provide specific details to justify their positions regarding our proposals.

9. Technical Parameters. The Commission's ITS rules set forth basic technical parameters such as power, height, and available channels. Further, to ensure interoperability within the ITS, DSRC operations are required to adhere to the provisions specified in the ASTM E2213-03 Standard (ASTM-DSRC), which is incorporated by reference in the Commission's rules. These rules divide the current 5.9 GHz band into seven, 10-megahertz channels, with an allowance to combine two pairs of channels into 20-megahertz channels. Further, specific channels are intended for public safety use only; one channel in particular, the “control channel,” which is outside the modified ITS band plan, is intended to be used for messages that coordinate channel usage and prioritize public safety messages. The modified ITS band plan eliminates the lower four, 10-megahertz channels, including the current control channel, and one of the public safety channels. These changes necessitate that we further propose to modify the ITS technical rules to ensure that ITS delivers its intended safety-related applications to the American public.

10. Our goal is to facilitate a smooth transition and ensure that existing ITS services continue with minimal or no interruption. Accordingly, we must address the technical rules through the transition process whereby C-V2X will replace DSRC technology in the 5.9 GHz band and after that transition when C-V2X is the sole technology in the 5.9 GHz ITS band. In the sections below, we seek comment on the technical considerations related to the simultaneous operation of DSRC and C-V2X in the 5.895-5.925 GHz portion of the 5.9 GHz band and, ultimately, exclusive operation of C-V2X in that band. In particular, as commenters consider the various technical issues addressed here, they should also frame their comments around considerations necessary during and after the transition. Specifically, for each technical issue, commenters should also answer whether there are technical issues that preclude simultaneous DSRC and C-V2X operations in this band. What spectral and/or geographic separation requirements, if any, are necessary to prevent harmful interference between the two types of operations? As ITS licenses generally specify a defined geographic area and are required to operate within as small a “communications zone” as necessary, can we permit existing licensees to modify to C-V2X operations premised simply on not exceeding their existing footprint? Can new licensees be authorized to use C-V2X before the final transition date, provided that they avoid existing geographic licensed areas or simply avoid existing registered RSUs? Are there any adjacent-channel issues that need to be considered between DSRC and C-V2X to enable nearby operation? For example, do C-V2X operations in the upper 30 megahertz need to initiate any mitigation measures to accommodate DSRC operations that continue in the lower 45 megahertz during the one-year transition period? What accommodations can be made to protect RSU sites operated pursuant to the four incumbent nationwide ITS authorizations? Commenters should consider how best to balance C-V2X band entry and co-existence with DSRC during the transition period, in light of the technical rules we are proposing herein and recommend if there are any interim measures that may be needed to ensure short-term compatibility prior to exclusive C-V2X use. We also seek information informed by current C-V2X tests being conducted under experimental licenses as to how best to enable a smooth transition from DSRC to C-V2X.

11. Bandwidth. We propose light touch changes to minimize disruption and simplify the transition from DSRC-based technology to C-V2X-based technology. The existing ITS band plan contains three, 10-megahertz channels that will comprise the new ITS band: Channels 180, 182, and 184 corresponding to 5.895-5.905, 5.905-5.915 and 5.915-5.925 GHz, respectively. We seek comment on whether this band plan, specifying three 10-megahertz channels, should continue for C-V2X. We also seek comment on whether the band plan should continue to accommodate combining two channels to provide a single 20-megahertz channel. Currently, channels 180 and 182 can be combined into channel 181 (5.895-5.915 GHz). Should such channel combining be permitted under the modified ITS band plan? Alternatively, should channels 182 and 184 be permitted to combine into a single 20-megahertz channel spanning 5.905-5.925 GHz? Should the Commission permit maximum flexibility by allowing each of these potential channel combinations to be used as necessary to accommodate various ITS applications and services? What about allowing all three channels to be combined and used as a single 30-megahertz channel? What are the consequences for any of these channel bandwidth choices on the deployment and adoption of C-V2X? How would a completely flexible band plan versus a prescriptive band plan affect the ability of C-V2X to maximize efficient use of the band? We seek comment on each of these possibilities and how best to strike the right balance to ensure efficient and effective band use can be maximized. Further, commenters should provide sufficient detail regarding their preferred band plan and how that may work with C-V2X and all other operational and technical rules that are addressed herein, such as power limits, out-of-band emissions (OOBE) limits, and channel use designations.

12. The control channel and the public safety priority channel. Currently the rules designate channel 178 (5.885-5.895 GHz) as the control channel and channel 184 (5.915-5.925 GHz) as a public safety channel. We seek comment on whether there is a compelling reason to have specific use designations on any or all of the channels used by C-V2X. Would designating any of the channels for a specific purpose, e.g., a control channel, help maximize band use efficiency? Does C-V2X need access to a control channel in a similar fashion as DSRC? If so, what is the best alternative for accommodating a control channel for C-V2X? Commenters should provide specific reasoning to support their preference. How would any channel designation work with the potential flexibility to combine any two or all three channels?

13. Commenters in favor of any channel designations should include detail regarding which designations they prefer we retain, which channel(s) those designations should pertain to, why they make those particular choices and how those choices will maximize use of the band and promote safety-related vehicular services. Alternatively, we could leave the issue of how best to use any of the channels to the standards-setting process and permit the industry to agree on use standards, but not designate those in our rules. We seek comment on the advantages and disadvantages of deferring to industry standardization processes in lieu of adopting prescriptive rules. Commenters in favor of using the standards process should also comment on expected timeframes for such bodies to produce relevant standards and how those timeframes complement the transition timeframe we propose in this Further Notice.

14. Relatedly, the existing ITS rules lay out a hierarchical priority system for messages. Communications involving the safety of life have access priority over all other ITS communications. Communications involving public safety have the next priority level with a presumption that RSUs operated by state or local governmental entities are engaged in public safety priority communications. At the lowest tier of the hierarchy are non-priority communications, which are all other communications. We seek comment on whether to retain this message priority hierarchy for C-V2X deployment. Because the stated purpose of the ITS is to promote safety, our inclination is that this message prioritization system should be retained as it helps to ensure that the most important messages are successfully transmitted. This may become even more important as ITS operations must adjust to delivering service in less spectrum than under the current band plan. We seek comment on this position. Would such a system work with C-V2X? If we retain the channel designations, do they need to be modified for C-V2X? More broadly, are the existing channel designations and operating protocols still technically relevant under the new band plan? Further, commenters should address whether this priority system should be modified in any way. Should there be more granularity in the priority tiers? If so, then how should such messages be designated? Should they continue to be associated with specific types of licensees or should the message type be the determining factor? Should we continue to maintain a priority system based on our expectation that dedicated ITS spectrum will be used primarily (if not exclusively) for safety-of-life applications?

15. Power and antenna height. The 5.9 GHz band ITS spectrum is shared and licensed on a non-exclusive geographic area basis based on geo-political boundaries. To maximize the use within this shared spectrum, the rules require that each registered RSU designate its intended area of operation or “communication zone” and that such communication zones be the smallest necessary. The rules provide for four communication zones designated “A” through “D” for coverage areas ranging from 15 meters to 1000 meters. Correspondingly, each zone is associated with a maximum permitted output power ranging from 0 dBm to 28.8 dBm. While this rule specifies output power, which is power supplied to the antenna, another rule specifies the maximum radiated power permitted on each channel ranging generally from 23 dBm to 33 dBm, but permitting state and local government entities to radiate at higher levels on the control channel (channel 178) at up to 44.8 dBm and on the public safety priority channel (channel 184) at up to 40 dBm. The Commission's rules also limit RSU antenna height as another way of ensuring these units do not transmit beyond their designated zone. RSU antenna height is limited to 8 meters at full power and may be as high as 15 meters with a corresponding power reduction. Notably, these rules working together require licensees in many cases to use directional antennas to attain the highest radiated power levels, which also serves to focus the energy to only the desired coverage areas.

16. We seek comment on what the appropriate power levels under the modified ITS band plan should be. As an initial matter, to maximize spectrum use among all users, we propose to retain the “communication zone” designations currently in the rules and require RSUs to specify their intended zone. We believe this will continue to ensure that stations only cover their intended area and provide opportunities for other licensees to install RSUs for other nearby areas without mutually interfering. We seek comment on this proposal and what effect, if any, it will have on C-V2X. 5GAA in a recent filing modified its initial position and now requests that the Commission delete the “communication zone” rules. Thus, we ask commenters to address whether the current communication zone distance limits should be retained or are there reasons to modify or eliminate them? Should they provide for more extended coverage areas? Or smaller areas? Or are they effective without change? Commenters advocating changes to the communication zones should provide specific information on what limits they favor and why and what effect those changes will have on the ability for C-V2X to deploy new systems and continue operating into the future.

17. We also seek comment on the appropriate output and radiated power levels that should be associated with each communication zone, channel, and user. The Commission, based on 5GAA's waiver petition, proposed in the 5.9 GHz NPRM power limits based on the most recent 3GPP standard (which at the time was Release 14). Specifically, the Commission proposed that C-V2X devices limit output power to no more than 20 dBm and limit EIRP to no more than 33 dBm. We are not aware of any changes to the power requirements in subsequent iterations of the 3GPP standard and thus, propose that C-V2X RSUs comply with that limit. Should the rules continue to permit higher radiated power for state and local governmental entities? Or should the rules be consistent among all users as a way of maximizing spectrum use and controlling potential interference between users? Should we limit radiated power to 23 dBm as specified for some channels, 33 dBm as specified for others or some other value, such as permitting higher power on a control channel? Likewise, should we continue to specify both output power and radiated power levels for communication zone/channel combinations? Or would it be more appropriate to specify only a radiated power limit, as requested by 5GAA in its comments? Based on how parties envision future use of the ITS band, are there advantages to continuing to specify both limits and requiring certain installations to use directional antennas to reach maximum power?

18. An alternative would be to specify power as a power density to normalize power for wider bandwidth channels, if we continue to permit such operations. We seek comment on whether that would serve C-V2X better than the current method, which associates a lower power density with wider bandwidth channels. We also seek comment on whether the current antenna height limitations are justified. Are there reasons to permit higher antenna heights? Should we continue to require that licensees reduce their power for higher antenna heights as a way of controlling coverage area and reducing the potential for interference? Further, we seek comment on whether we should specify measurement standards for equipment approval and compliance purposes. For example, should the Commission specify that these values should be measured as root mean square ( i.e., average) or peak values? And should the Commission specify the resolution bandwidth settings for compliance measurements in the rules? Commenters should address these questions in conjunction with their comments regarding retention or modifications of the existing communication zones and provide technical information regarding their preference for rules and how they would work to ensure maximum access to the band.

19. Finally, we seek comment on whether we should modify the power rules for C-V2X OBUs. The current rules specify a 1 mW output power maximum for portable OBUs. As with RSUs, the Commission proposed in the 5.9 GHz NPRM limits compatible with the 3GPP Release 14 standard for C-V2X vehicular and portable ( i.e. on-board) units, which would limit output power to no more than 20 dBm and EIRP to no more than 23 dBm. We believe these power levels continue to be appropriate for C-V2X vehicular and portable devices and propose those levels here. 5GAA, however, recently requested that the Commission eliminate the output power requirement and increase the OBU EIRP limit to 33 dBm. Should we adopt this higher power level instead? What effect would such an increase have on the ability of C-V2X RSUs to co-exist with and protect federal radiolocation stations? In commenting on these power levels, commenters should keep in mind the need to simultaneously ensure that such portable OBUs comply with the Commission's RF radiation exposure limits.

20. We also seek comment on how we should handle the standards issue with respect to C-V2X. The 5.9 GHz NPRM sought comment on incorporating 3GPP Release 14 by reference in the Commission's rules. We did not receive significant comment on this issue. Subsequent to the NPRM, in July 2020, 3GPP announced the completion of Release 16, which further enhanced the 5G network capabilities, including C-V2X that were addressed in Release 15.

21. The 3GPP Release 14 standard referenced in this Notice is formally known as: 3GPP TR 21.914 V14.0.0 (2018-05) 3rd Generation Partnership Project; Technical Specification Group Services and System Aspects; Release 14 Description; Summary of Rel-14 Work Items (Release 14). Release 14, inter alia, focuses on introducing Vehicle-to-Everything (V2X) communications, in particular Vehicle-to-Vehicle (V2V) communications. The V2X feature encompasses all aspects of the 3GPP work needed to support vehicle-based communications: Enhancements of the air interface, protocols, and impacts on the Long Term Evolution (LTE) core network. Release 14 defines two modes of operation for V2X communication (V2X communication via direct over-the-air connections between user equipment and V2X communication over the LTE network interface), which may be used by user equipment independently for transmission and reception. Release 14 also defines service requirements ( e.g., message transfer latency) for typical V2X applications; specifies architecture enhancements for LTE support of V2X services ( e.g., V2X architectures, functional entities involved for V2X communications, interfaces, provisioned parameters, and procedures); and specifies security aspects ( e.g., security aspects for LTE-based V2X communication, including security architecture, security requirements, as well as procedures and solutions to meet those requirements). Release 14 specifies core network and user equipment protocol aspects, including protocols for V2X authorization between user equipment and the V2X Control Function, communication among user equipment, and communication between the user equipment and the V2X Application Server over the LTE interface. Release 14 also describes support for V2V services based on LTE sidelink communications (direct communication between two LTE devices without going through a base station).

22. In light of the evolution of the C-V2X standard to a 5G network technology, we seek comment on whether our rules should incorporate the 3GPP standard by reference. Commenters in favor of incorporation by reference should also provide details regarding which version should be incorporated—Release 14 which is based on LTE technology or Release 16 which incorporates 5G technology. Commenters who advocate for Release 16 should address how vehicular safety applications will be delivered to all users given that 5G is not backwards compatible with LTE. One alternative could be to incorporate Release 14 now with a planned transition to Release 16 (or the current version) at some date certain in the future. We seek comment on such an option. Alternatively, is there a compelling argument for not incorporating any C-V2X standard into the rules? We seek comment on each of these options. Commenters should address how the option they favor would promote safety services among all users. Finally, we seek comment on whether we should only incorporate by reference specific aspects of either the 3GPP Release 14 or Release 16 standard? If so, which sections? Or if the Commission does not incorporate by reference any 3GPP standard, are there portions of the standard that need to be placed in our rules? Given our adoption of C-V2X as the sole technology permitted in the 5.9 GHz ITS band after the transition, Continental has raised concerns about the resolution of potential licensing disputes regarding that technology. We also request comment on this issue.

23. C-V2X OOBE limits. Because the existing rules for DSRC do not specify OOBE limits necessary to protect adjacent band services from harmful interference, the Commission sought comment in the 5.9 GHz NPRM on appropriate OOBE limits for C-V2X devices. Regardless of whether we incorporate the 3GPP standard or not, we continue to believe it is good practice to adopt specific OOBE limits into our rules. Doing so would provide equipment manufacturers with clear guidelines for equipment approval compliance. Furthermore, it would provide adjacent-channel licensees and equipment manufacturers with clear guidelines regarding the expected spectrum environment so they can incorporate appropriate filters and mitigation measures into their products to protect from harmful interference from adjacent channel emissions. Because our previous proposals were consistent with the current 3GPP standard, we propose the same OOBE limits for C-V2X here as we did in the 5.9 GHz NPRM. Specifically, we propose that all C-V2X equipment limit OOBE limits measured at the antenna input ( i.e., conducted limits) to: -29 dBm/100 kHz at the band edge; -35 dBm/100 kHz ± 1 megahertz from the band edge; -43 dBm/100 kHz ± 10 megahertz from the band edge; and -53 dBm ± 20 megahertz from the band edge. We also propose to limit out-of-band radiated emissions to -25 dBm/100 kHz EIRP or less outside the band edges of 5.895 GHz and 5.925 GHz.

24. We seek comment on these OOBE limits and whether they continue to be appropriate for C-V2X equipment. In this connection, we note that 5GAA recently requested that we adopt more relaxed OOBE requirements. It specifically requests that RSUs limit OOBE to: -16 dBm/100 kHz ± 1 megahertz of the band edge; -13 dBm/MHz ± 5 megahertz of the band edge; -16 dBm/MHz ± 30 megahertz of the band edge; and -28 dBm/MHz beyond 30 megahertz from the band edges.

25. Should we adopt these alternative OOBE limits instead? What would the effect of these relaxed limits be on the ability to design and manufacture C-V2X equipment? How would they affect equipment cost? Will these limits ensure compatibility with adjacent U-NII devices in both the U-NII-4 and U-NII-5 bands, which are below and above the modified ITS band, respectively? What effect would these limits have on adjacent band fixed services in the 6 GHz band? We also seek comment on the measurement standards that should be associated with equipment approval compliance for verifying that C-V2X equipment meets whatever OOBE limits we adopt.

26. Other Transition Considerations. In 5.9 GHz NPRM, we requested comment generally on the various transition-related considerations that we should take into account if we adopted our proposal to provide only 30 megahertz for ITS. For example, we asked about any re-channelization of DSRC-based operations in the upper 30 megahertz or the migration of ITS to C-V2X-based technology in the spectrum that remains reserved for ITS. To inform our consideration of issues relating to transitioning of ITS operations, we asked that commenters provide up-to-date information on actual DSRC operations under existing licenses (including the number of RSUs and OBUs) and the various uses that have been implemented. The Commission received several comments that involved some estimation of the potential cost considerations associated with these transition issues.

27. We take this opportunity to update the record on our inquiry in the 5.9 GHz band NPRM regarding transition cost considerations in light of the 5.9 GHz band plan that we have adopted in the First Report and Order. We recognize that, in light of our decision, commenters will be in a much better position to evaluate the necessary transitions of their respective systems We note that many of the DSRC projects appeared to be associated with demonstration projects designed to address particular traffic and safety concerns, and we seek any updates about DSRC demonstration projects or deployment, as well as any C-V2X demonstration or pilot projects, including any funding grants that have been provided or are anticipated. As the U.S. DOT has indicated, ITS operations to date have received substantial research and deployment investments, including federal, state, and local investment, over the years, and we seek comment on the availability of that or similar funding for transitioning associated with the new band plan for ITS. To what extent can existing funding at the federal or state or local level readily be used with regard to the necessary transition costs, including use of C-V2X-based technology?

28. While we did not propose in the 5.9 GHz NPRM to provide compensation for such relocation, we nonetheless seek further comment, including suggestions on which particular types of costs should be considered as appropriate for possible compensation (including how such costs would be documented) as well as the process by which such compensation might be determined or implemented. Finally, we request comment on any other actions the Commission should consider that would be helpful to ITS licensees with respect to these transition matters.

29. We seek comment on whether we should limit use of the 5.895-5.925 GHz band to non-commercial services or safety-of-life applications. Open Technology Institute at New America and Public Knowledge previously filed a petition for rulemaking asking the Commission to prohibit commercial operations in ITS spectrum. Should we modify our rules to prohibit commercial operations in this spectrum or otherwise limit services to safety-of-life applications? How would the Commission define “safety-of-life” applications? How would the Commission delineate between safety-of-life and non-safety-of-life applications? In such instances, would the Commission need to specifically list permitted applications in its rules or would a general prohibition suffice? Or, could such a prohibition on commercial operations be accomplished by limiting license eligibility to only certain licensees, such as governmental entities or entities eligible for licensing in the Private Land Mobile Radio Service Public Safety Pool under part 90? At what point would a use or licensing restriction so alter the current authorizations so as to constitute a fundamental license change that would exceed the Commission's authority to effectuate under section 316 of the Communications Act, as amended? We seek comment on the challenges and benefits associated with adopting restrictions on the types of ITS services that may operate in the 5.895-5.925 GHz band.

30. The First Report and Orde r takes an initial step at providing unlicensed U-NII device access to the 5.850-5.895 GHz band. Our decision to generally restrict U-NII devices to indoor locations until ITS operations transition to the 5.895-5.925 GHz band provides flexibility for unlicensed devices to begin using the 5.850-5.895 GHz band, but in a way that avoids the potential for harmful interference to vehicular safety-related applications. Once ITS operations have finished transitioning to the upper 30 megahertz, however, we can permit outdoor operations at full power, subject to such outdoor use protecting from harmful interference both co-channel federal radiolocation operations (which will remain in the band) and adjacent-band ITS operations.

31. Federal Radiolocation System Protection from Outdoor Unlicensed Operations. In the 5.9 GHz NPRM, we sought comment on whether there are any mitigation measures, such as technical or operational conditions or constraints that the Commission should consider for U-NII-4 operations to protect federal radars in the 5.9 GHz band. Comcast submitted that the Commission should adopt its proposal to implement the same technical rules as U-NII-3 with respect to U-NII-4 devices and federal DoD radar operations. WISPA agreed with the Commission's suggestion that no other mitigation measures are required to protect DoD radar operations in the 5.9 GHz band from U-NII-4 devices. NCTA stated that the Commission should adopt its proposal to authorize U-NII-4 devices without requiring any special frequency avoidance techniques or similar constraints since U-NII-3 devices have shared spectrum with co-channel federal incumbents for years without any specialized frequency avoidance techniques, and in general sharing has been successful.

32. NTIA reviewed the federal radar operations authorized in the 5.9 GHz band and determined that the number of radar sites needing protection could be reduced to from 59 to 30 sites. NTIA's analysis concludes that exclusion zones are needed to protect federal radiolocation systems only from U-NII-4 outdoor point-to-point (P2P) and point-to-multipoint (P2MP) devices. The exclusion zones recommended by NTIA are set forth in Table 2 of its Sept. 8, 2020 letter. To enforce the exclusion zones, NTIA recommends that interference mitigation techniques such as geo-fencing be employed to protect federal radiolocation operations. NTIA emphasizes that it is important that outdoor U-NII devices are not permitted to operate inside of these exclusion zones to ensure that federal radiolocation systems are protected from harmful interference. NTIA also requests that the new rules make clear that it may authorize additional exclusion zones or modify the existing exclusion zones listed in Table 2 as necessary to ensure federal radiolocation stations are protected.

33. We agree that some mitigation measures are needed to ensure that outdoor U-NII point-to-point and point-to-multipoint operations do not cause harmful interference to federal radiolocation systems. We seek comment on whether exclusion zones would be the best method for ensuring such protection. We note that some commenters express disagreement with the technical analysis provided by NTIA, including questioning whether NTIA's interference analysis is consistent with the assumptions in the 6 GHz Report and Order. We seek comment on NTIA's technical analysis, as well as comment on any alternate methods for determining the parameters of exclusion zones. Commenters advocating opinions that differ from NTIA's analysis should provide specific technical detail and analysis regarding how unlicensed devices would provide the required protection to federal radars. Alternatively, are other protection mechanisms, such as coordination, feasible methods of protecting federal operations in certain areas? Commenters favoring coordination or other methods should describe how such methods can be implemented and maintained such that federal radar operators have assurances that their installations are and continue to be protected from harmful interference in the future as more unlicensed devices may be installed or existing devices may be relocated.

34. Compliance with an exclusion zone implies some degree of location awareness, either within a device or by an installer. In crafting rules for outdoor use, we seek to protect important DoD radars from harmful interference, provide flexibility to U-NII system operators, minimize equipment complexity and capitalize on the greatest degree of harmonization with U-NII-3 devices as possible. We seek comment on how best to adopt rules that satisfy each of these goals to the greatest extent possible.

35. The Commission has required other unlicensed devices to incorporate geographic awareness ( i.e., a geolocation capability) and use a database to avoid areas where the potential for causing harmful interference would exist. For example, white space devices are required to incorporate a geolocation capability and check a white space database for a list of available channels before they can operate and 6 GHz standard power U-NII devices are similarly required to incorporate a geolocation capability and consult an automated frequency coordination database prior to operating to avoid causing harmful interference to fixed service incumbents. Should the Commission require a similar system here? The advantage of using geolocation and a database is that such systems have already been successfully deployed and we believe protecting only 30 federal radiolocation sites would be a relatively simple undertaking under this regime. But incorporating geolocation capability does increase the complexity of a device and add overhead (both hardware and software) necessary for such a system to work. In addition, requiring U-NII-4 devices to operate in this manner would entail many differences from U-NII-3 device operation and could limit their usefulness in providing the ability to use a 160-megahertz wide channel that spans the U-NII-3 and U-NII-4 bands. On the other hand, we expect many devices to operate throughout all the U-NII bands including the 6 GHz U-NII-5 and U-NII-7 bands which would already require this capability. For example, we expect that new devices would have capability to operate across multiple bands including the 5.150-5.250 U-NII-1 band, the 5.725-5.850 U-NII-3 band, the 5.850-5.895 GHz U-NII-4 band, the 5.925-6.425 U-NII-5 band and the 6.525-6.875 U-NII-7 band. In this case, how difficult would it be to similarly add the geolocation and database capability to U-NII-4 devices? Would there be any incremental cost for incorporating such a requirement? How would such a requirement affect the utility of U-NII-4 devices and their ability to work seamlessly with U-NII-3 devices to deliver applications over a 160-megahertz channel? If we were to adopt such a requirement, we anticipate the rules being consistent with the 6 GHz automatic frequency coordination rules, except that the exclusion zones are already known and do not need to be calculated by the automated frequency coordination system. We seek comment on using the 6 GHz framework for outdoor U-NII-4 devices.

36. Because the U-NII-4 band exclusion zones are known in advance, are there simpler methods for ensuring that outdoor U-NII-4 devices respect the need to avoid operating near the federal radiolocation systems? For example, could we simply rely on professional installation to ensure that outdoor U-NII-4 devices do not operate in those areas? Under a professional installation regime, what rules and requirements would the Commission need to put in place to ensure that U-NII-4 devices do not operate in any of the exclusion zones? Similarly, because these exclusion zones are known, could devices simply have a geolocation capability and either be preloaded with the exclusion zone coordinates and/or download those coordinates once or on a periodic basis, such as every time the device is turned on or at some set interval ( e.g., once a week or once a month)? We seek comment on whether this is a viable alternative to the other suggested methods. Commenters in favor of such a mitigation method should provide detailed comment regarding how the internal device database would work, the necessary update frequency, and the costs involved in developing equipment. We also seek comment on other alternatives that achieve the same goal; that is, methods that achieve the required protection and are easy and cost effective to implement and maximize utility of the U-NII-4 band.

37. Transmitter Power. In the 5.9 GHz NPRM, the Commission proposed that U-NII-4 devices be permitted to operate at the same power levels ( e.g., radiated power, power spectral density) as U-NII-3 devices and sought comment on whether it should adopt different power levels.

38. The Wi-Fi Alliance agrees that the Commission should adopt its proposal to apply the same power levels (radiated power, PSD) to U-NII-4 devices as apply to U-NII-3 devices because their efficacy has been proven by years of application in practice. Wi-Fi Alliance contends that to recognize the full benefit of the U-NII-4 spectrum, including expanded operations of existing U-NII devices, the technical rules governing the band must be aligned with the rules covering the U-NII-3 band; permitting U-NII-4 devices to operate at the same power levels as U-NII-3 devices will maximize the utility of both bands. It states that if a different power level is adopted for the U-NII-4 band, U-NII devices would not be able to operate across both the U-NII-3 and U-NII-4 bands, eliminating the potential use of wider channels, equipment commonality, reduced cost and complexity, superior performance, and other benefits that may be realized by the Commission's proposal. WISPA states the Commission's proposal to allow U-NII-4 devices to operate at the same power level as U-NII-3 devices is a sensible and efficient approach and consistent with WISPA's recommendations in ET Docket No. 13-49 in that it would permit higher-EIRP fixed wireless operations that will enable use of the 5.9 GHz band for rural broadband deployment, including both outdoor point-to-point operations and point-to-multipoint operations. Comcast asserts that harmonizing the U-NII-4 technical rules with those of the U-NII-3 band, particularly the Commission's proposal to allow U-NII-4 devices to operate at the same power levels as U-NII-3 devices, would substantially improve its ability to bring the band into use for consumers quickly and to put it to its best use. NCTA states that applying the U-NII-3 power limits to U-NII-4 will enable network operators and device manufacturers to build on the success of U-NII-3. Microsoft states that extending the U-NII-3 technical rules to the U-NII-4 band, except for the existing OOBE limits, will enable the public to realize the maximum benefits from the U-NII-4 band, including accelerating the timeline for initial deployments using this 45 megahertz of spectrum; establishing the same power levels in the U-NII-4 band as in the U-NII-3 band is essential for deployment of larger channels.

39. On the other hand, 5GAA and Qualcomm separately recommend that the Commission impose a power spectral density limit to protect C-V2X receivers from portable client devices that may be operating temporarily outdoors with relaxed OOBE limits but connected to an indoor access point in the U-NII-4 band, but did not recommend any specific limit. Car 2 Car and US Technical Advisory Group separately urge the Commission to revisit its proposals for maximum transmit power from U-NII-4 devices to avoid harmful interference to ITS operations, but did not recommend any specific level for the maximum transmit power. The Alliance for Automotive Innovation expresses concern that the National Highway Transportation Safety Administration's (NHTSA's) testing, which showed varying levels of harmful interference, underestimates the potential for harmful interference from unlicensed operations, since the NHTSA's tests were conducted with a 36 dBm EIRP, but fixed point-to-point U-NII devices could operate at power levels of 62 dBm EIRP using 5G antennas that have 32 dBi of gain. Qualcomm also expresses concern that outdoor point-to-point unlicensed operations with high EIRP signals in the U-NII-4 band could have serious performance impacts to installed RSUs and create C-V2X dead zones when vehicles pass nearby, regardless of the OOBE level. Intelligent Transportation Society of America (ITSA) also expresses concern that outdoor unlicensed point-to-point U-NII-4 band operations from a tower or rooftop alongside a roadway could cause harmful interference to ITS receivers.

40. For outdoor operation of U-NII-4 access point device after ITS operations move out of the U-NII-4 band, we propose a radiated power of 23 dBm/MHz or 36 dBm radiated power for all bandwidths. When combined with U-NII-3-band spectrum, outdoor access point EIRP can scale to 36 dBm for 40, 80, and 160 megahertz channels. We agree with the Wi-Fi Alliance that permitting U-NII-4 devices to operate at the same power levels as U-NII-3 devices is essential to achieving the full benefits of the U-NII-4 band and maximizing the utility of both bands while protecting incumbent operations in the U-NII-4 band from harmful interference. Allowing outdoor U-NII-4 devices to operate at the full power level permitted for U-NII-3 devices will enable the use of wider channels, promote equipment commonality, reduce costs and complexity, and facilitate broadband deployments in rural areas, including both outdoor point-to-point operations and point-to-multipoint operations. However, to avoid the need for much larger unlicensed exclusion zones where unlicensed operations would be prohibited in order to protect federal radar operations from harmful interference, we propose not to adopt the U-NII-3 point-to-point power limits in the U-NII-4 rules. We also propose that client devices be permitted to operate in the 5.850-5.895 GHz band at power levels that are 6 dB lower than those permitted for outdoor access point devices. We seek comment on these proposals.

41. OOBE Limits. In the 5.9 GHz NPRM, the Commission proposed that U-NII-4 devices, or devices that operate across a single channel that spans the U-NII-3 and U-NII-4 bands, meet the same OOBE limits as U-NII-3 devices at the upper and lower edges of those bands with no limit at the U-NII-3/U-NII-4 band edge. Proponents of ITS suggest that U-NII-4 devices, or devices that operate across a single channel that spans the U-NII-3 and U-NII-4 bands, meet OOBE limits that are much more restrictive than the existing U-NII-3 OOBE limits to protect adjacent-band ITS operations. Under GM's suggestion (−27 dBm/MHz at or above 5.905 GHz), U-NII-4 devices' OOBE would need to be 15 dB lower than the OOBE limit (−12 dBm/MHz) for a U-NII-3 device at the same frequency; under the suggestion from Car 2 Car, IEEE 1609 Working Group, US Technical Advisory Group, and Volkswagen (−40 dBm/MHz at 10 megahertz above the band edge), U-NII-4 devices' OOBE would need to be approximately 28 dB lower than the OOBE limit (−12 dBm/MHz) for a U-NII-3 device at the same frequency.

42. Proponents of unlicensed operations suggest more relaxed OOBE limits for outdoor unlicensed operations in the U-NII-4 band than proposed in the 5.9 GHz NPRM. WISPA submits that outdoor U-NII-4 operations' OOBE be limited to −5 dBm/MHz at or above 5.895 GHz. Broadcom, CableLabs, Facebook, and NCTA together suggest that OOBE for outdoor U-NII-4 operations be limited to 7 dBm/MHz at 5.895 GHz, decreasing linearly to −9 dBm/MHz at 5.925 GHz, measured using the root mean square (RMS) method (agreed to by 5GAA for the top of the 5.9 GHz band), to address concerns raised by ITS stakeholders. They claim that −9 dBm at 5.925 GHz will provide more than adequate protection for adjacent ITS operations and is consistent with the roll-off of the IEEE 802.11ac and 802.11ax emissions masks. They also assert that this limit would allow 5.9 GHz-capable Wi-Fi devices to deliver sufficient power and throughput to consumers to enable the wide range of use cases—including enhanced in-home Wi-Fi speeds and coverage to support remote learning, telemedicine, and other high-bandwidth applications, as well as more accessible large-scale connectivity to support smart city and agricultural applications in communities across the country—that make the 5.9 GHz band a unique opportunity; too restrictive an OOBE limit would make these kinds of use cases impossible.

43. The Wi-Fi Alliance recommends a more nuanced approach based on a the −27 dBm/MHz limit at or above 5.925 GHz that the Commission has effectively applied to U-NII-3 transmissions to protect ITS operations. Specifically, for outdoor U-NII-4 band devices, Wi-Fi Alliance proposes OOBE limits that mirror the existing limits for U-NII-3 devices at and above 5.895 GHz ( i.e., −5 dBm/MHz at 5.895 GHz, decreasing linearly to −27 dBm/MHz at 5.925 GHz). The Wi-Fi Alliance asserts that these U-NII-3 OOBE limits have proven to be effective in protecting ITS; there is no basis for imposing more stringent OOBE limits on operations in the U-NII-4 band since the Commission has already affirmed that the U-NII-3 OOBE limits afford sufficient protection to DSRC systems and C-V2X operations do not require greater protection than DSRC operations. The Wi-Fi Alliance argues that the Commission should reject arguments for more restrictive OOBE limits because imposing prohibitively burdensome and unnecessary band coexistence measures on U-NII-4 devices would preclude commercial viability of this band and defeat the objective of making additional spectrum available for unlicensed operations. The Wi-Fi Alliance also supports applying the existing U-NII-3 OOBE limits at the lower edge of the U-NII-3 band for outdoor U-NII-4 devices, or devices that operate across a single channel that spans the U-NII-3 and U-NII-4 bands, i.e., at 5.725 GHz, while not imposing any OOBE limit for U-NII-4 devices at the U-NII-3/U-NII-4 band edge ( i.e., at 5.850 GHz).

44. For outdoor U-NII-4 access point devices or outdoor access point devices that operate across a single channel that spans the U-NII-3 and U-NII-4 bands, we propose the outdoor U-NII-4 OOBE limits recommended by the Wi-Fi Alliance of −5 dBm/MHz at 5.895 GHz, decreasing linearly to −27 dBm/MHz at 5.925 GHz, measured using an RMS measurement. We are not convinced that the more relaxed OOBE limits suggested by unlicensed proponents would adequately protect ITS operations from harmful interference since they are less restrictive than existing U-NII-3 OOBE limits. We are also not convinced that the more stringent OOBE limits suggested by ITS proponents are necessary to protect adjacent-band ITS operations since they are more restrictive than the existing U-NII-3 OOBE limits, which the Commission previously affirmed would protect DSRC operations and have already proven to be effective in protecting ITS operations from harmful interference. We also propose to apply the existing U-NII-3 OOBE limits at the lower edge of the U-NII-3 band for outdoor U-NII-4 devices, or devices that operate across a single channel that spans the U-NII-3 and U-NII-4 bands, i.e., at 5.725 GHz, while not imposing any OOBE limits for U-NII-4 devices at the U-NII-3/U-NII-4 band edge, i.e., at 5.850 GHz. We believe that these limits will protect adjacent-band ITS operations from harmful interference due to unlicensed operations in the U-NII-4 band, support separate U-NII-3 and U-NII-4 bands to provide flexibility for designing U-NII-3 equipment under the less stringent OOBE rules at the upper edge of the band, and provide flexibility for devices to operate across the U-NII-3 and U-NII-4 bands using the widest channel bandwidths permitted under the IEEE 802.11 standard. We seek comment on these proposals.

45. Protection of Fixed-Satellite Service Operations. In the First Report and Order in this proceeding, we declined to adopt SES Americom's and Intelsat's suggestion to establish a maximum permissible aggregate power limit for U-NII-4 band unlicensed devices' operations that would be monitored and controlled by an Automatic Frequency Coordination (AFC) system to help protect FSS operations. However, as a precautionary measure to further protect FSS operations from harmful interference, we propose to require U-NII-4 band outdoor access points to limit the maximum EIRP above a 30 degree elevation angle to 21 dBm, which is similar to what the Commission already requires in the U-NII-1, U-NII-5, and U-NII-7 bands to protect FSS operations. This skyward restriction should address SES Americom's and Intelsat's concerns about potential aggregate interference from U-NII-4 band unlicensed operations. Since we do not expect outdoor access points to radiate significant power skyward, we do not believe this requirement will impose a burden on or affect the utility of outdoor access point users.

46. We do not find it necessary to propose to restrict the power radiated upward from U-NII-4 client devices as we propose to require for outdoor access points. We believe it is unlikely that relatively low-power unlicensed devices will cause harmful interference to receivers on geostationary satellites approximately 35,800 km above the equator and seek comment. We propose to limit upward power from outdoor U-NII-4 access points merely as a precautionary measure, as they are more likely to operate with higher power. While client devices can operate with an EIRP as high as 30 dBm (6 dB lower than access points' maximum allowed power), we find that they are less likely to cause interference to satellite receivers than similarly powered outdoor access points due to the nature of their operation. We expect them to generally operate at much lower power levels to maximize battery life and comply with radiofrequency (RF) exposure limits. In addition, client devices communicate with access points in an asymmetric nature, in that relatively little data is transmitted in the uplink direction ( i.e. from the client device) as compared to the downlink direction where any single access point may be serving many client devices. Moreover, client devices typically operate with omnidirectional antennas at low antenna heights and in a mobile or portable mode ( i.e., not installed in permanent outdoor locations). Thus, we expect that upwardly directed client device emissions will often be at low power levels and shielded to some extent by buildings, foliage, or other obstructions. We seek comment on these proposals and conclusions.

47. Increased Transmit Power for Indoor U-NII-4 Access Points. In the First Report and Order, we adopt a 20 dBm/MHz limit for indoor U-NII-4 access points, largely to protect co-channel ITS incumbent operations. We propose that indoor U-NII-4 devices be permitted to increase power to 23 dBm/MHz or 36 dBm radiated power for all bandwidths upon the later of one year following the effective date of the First Report and Order ( i.e., the date by when ITS operations must transition out of the 5.850-5.895 GHz band) or the effective date of a Second Report and Order adopting these proposed power increases. We seek comment on this proposal. We note that these proposed limits are consistent with NTIA's radiolocation protection analysis. In making this proposal, we do not propose to change any other aspect of indoor U-NII-4 devices; they would still be required to incorporate all the mitigation features we adopted in the First Report and Order, including the requirement to obtain power from a wired connection, a prohibition on weatherized enclosures and a requirement for an integrated antenna. Client devices would be limited to power levels 6 dB below the power limits for access points.

48. U-NII-4 Client to Client Communications. The rules adopted in the First Report and Order prohibit U-NII-4 client-to-client communications to protect co-channel incumbent ITS operations and federal radiolocation stations. But only the federal radiolocation stations will require protection after ITS operations transition out of the 5.850-5.895 GHz band. We seek comment on whether we can remove the client-to-client communications prohibition upon the later of one year following the effective date of the First Report and Order ( i.e., the date by when ITS operations must transition out of the 5.850-5.895 GHz band) or the effective date of a Second Report and Order eliminating the prohibition. As an initial matter, we note that NTIA's analysis for protecting these 30 radiolocation sites concludes that C-V2X OBUs can operate throughout the U.S. with no limitation. That analysis assumed that such OBUs operate with power levels up to 17 dBm/20 MHz or 50 mW. The equivalent power for wider channels is 20 dBm/40 MHz (100 mW), 23 dBm/80 MHz (200 mW) and 26 dBm/160 MHz (400 mW). Our proposal for C-V2X OBUs would limit power to no more than 23 dBm EIRP. We therefore seek comment on whether we can allow U-NII-4 client-to-client device communications at that same 23 dBm EIRP power level. Such communications could enable innovative new virtual reality or augmented reality applications in much the way similar applications have been envisioned under the Commission's proposals for ubiquitous operation of very low power devices in the 6 GHz U-NII bands.

49. Although U-NII-4 devices would not necessarily be in moving vehicles like C-V2X OBUs, would their operations still be functionally similar to such operations so as to allow the same power levels and still protect federal radiolocation operations? If concerns regarding potential harmful interference to federal operations persists, are there measures we could take to enable U-NII-4 client-to-client communications in areas outside the exclusion zones or with lower power within the exclusion zones? For example, because client devices are often smart phones with embedded geolocation technology, could an app or database connection or other mitigation method be used to control power or avoid certain areas where the potential for causing harmful interference is the greatest? We also note that 5GAA requests that we permit OBUs to transmit with as much at 33 dBm EIRP. How would OBUs at higher power levels affect the ability to permit client-to-client communications? 5GAA also states that U-NII-4 client-to-client operations could reduce the effectiveness of adjacent band C-V2X safety services. We seek comment on whether we can permit client-to-client communication and under what conditions. Commenters should provide technical and operations details as to how devices operating in a client to client mode would avoid causing harmful interference to co-channel federal radiolocation operations as well as to adjacent band C-V2X safety services.

50. As discussed in the First Report and Order, the record supports 30 megahertz of spectrum as sufficient to provide basic safety functions of ITS currently deployed and under consideration in the near future. Commenters have suggested, however, that additional spectrum may be needed either to support simultaneous deployment of 4G and 5G-NR C-V2X service or to support other advanced capabilities beyond the basic safety messages currently available.

51. We seek comment on whether, notwithstanding our determination that current safety-of-life services can continue to operate using 30 megahertz of spectrum, we should consider allocating additional spectrum for ITS applications. For what purposes would additional spectrum be needed? We note that the record evidence indicates that several categories of transportation-related communications and other ITS applications are currently being met through spectrum outside of the 5.9 GHz band. For example, capabilities like blind spot detection, lane-keep assist, and features that do not operate in the 5.9 GHz band, which provide substantial automotive and vehicular safety functions. Panasonic in its comments states that technologies like LiDAR, 76-81 GHz band radar, or other line-of-sight sensors can support advance driver assistance systems ( e.g. automatic emergency braking or lane-keeping). To the extent some ITS applications (or their functional equivalent) are currently being provided using alternative spectrum bands, commenters should explain with specificity why existing spectrum resources are inadequate and what specific safety benefits would result from making additional spectrum available for such services.

52. Panasonic suggests that harnessing the advantages of fully automated transportation requires cooperation between different vehicles with different levels of automation and the transportation infrastructure. Similarly, the U.S. DOT stated that in-vehicle sensors are susceptible to “blind spots” when they are operating outside of line-of-sight scenarios. U.S. DOT claims that the combination of sensors and V2X, with access to dedicated spectrum, will best provide enhancements to driver safety and will support automated driving behavior in the future.

53. We have already recognized that C-V2X is the preferred choice for deployment in the upper 30 megahertz portion of the band. How, in particular, would additional spectrum be used to leverage this technology and aid in its deployment? Should we determine that additional spectrum is needed to provide advanced ITS applications, what spectrum band(s) should we consider? Open Technology Institute and Public Knowledge have mentioned the 3450-3550 MHz band. Other commenters, like Dynamic Spectrum Alliance and NCTA, proposed allowing C-V2X to operate in the 4.9 GHz band. Other commenters provided similar views. In the intervening period since adoption of the 5.9 GHz NPRM, however, the Commission has adopted rule changes for the 4.9 GHz band to allow for non-public safety operation and leasing arrangements and has proposed allocating the 3.45-3.55 GHz band for flexible-use service. We also note that that commenters have mentioned a “clean sheet” approach when considering the best spectrum band in which to locate the proposed C-V2X operations. Others mention allowing ITS to use flexible use licensed or unlicensed spectrum in the way other technologies do. Commenters addressing this issue should provide specific information regarding spectrum bands that could support ITS operations, the types of applications or services they envision for that particular band and how C-V2X could coexist with existing spectrum users in that band(s). We also note that the commenters should consider the propagation characteristics of the spectrum they identify relative to the technology needs of ITS services ( e.g. low latency, reliability, non-line of sight communications, processing capabilities, international trends, and relevant standards-setting factors). Are there other rule changes we could make to enable vehicular safety-related applications in other bands on a shared basis?

54. Sections 90.375, 90.379, and 95.3189 of the proposed rules provide that C-V2X Roadside Units (RSUs) and C-V2X On-Board Unit (OBU) transmitter types operating in the 5895-5925 MHz band must comply with the technical standard 3rd Generation Partnership Project Technical Specification Group Services and System Aspects (3GPP) Release 14. The OFR has regulations concerning incorporation by reference. 1 CFR part 51. These regulations require that, for a proposed rule, agencies must discuss in the preamble to the proposed rule the way in which materials that the agency incorporates by reference are reasonably available to interested parties, and how interested parties can obtain the materials. Additionally, the preamble to the proposed rule must summarize the material. 1 CFR 51.5(a).

55. In accordance with the OFR's requirements, the discussion in section II.A. of this preamble summarizes the provisions of 3GPP Release 14. Interested persons may obtain a copy of 3GPP Release 14 through 3GPP's website at the address provided in §§ 90.395 and 95.3189 the rule. A copy of the standard may also be inspected at the FCC's main office.

56. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Further Notice. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Further Notice provided in the item.

57. In this Further Notice, we propose to resolve the timing, procedures, and technical parameters associated with the transition of the updated 5.9 GHz band plan. Specifically, the Further Notice proposes to allow full-power outdoor unlicensed operations across the 5.850-5.895 GHz band once ITS operations have exited this portion of the band and subject to any further necessary protections for federal operations in this spectrum. The draft also seeks to establish power and emissions limits and other rules related to outdoor unlicensed operations in the lower 45 megahertz of the band. The draft would address transitioning all ITS operations in the revised ITS band at 5.895-5.925 GHz to C-V2X-based technology, including the appropriate timeline for implementation, and the codification of C-V2X technical parameters for operation in the 5.895-5.925 GHz band. The Further Notice would also seek comment on whether the Commission should consider allocating additional spectrum for ITS applications in the future.

58. The proposed action is taken authority found in sections 1, 4(i), 301, 302, 303, 309, 316, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 301, 302, 303, 309, 316, and 332, and section 1.411 of the Commission's Rules, 47 CFR 1.411.

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

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

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

62. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. While the special purpose governments category also includes local special district governments, the 2017 Census of Governments data does not provide data aggregated based on population size for the special purpose governments category. Therefore, only data from independent school districts is included in the special purpose governments category. Of the 90,075 local governmental jurisdictions, there were 36,931 general purpose governments (county, municipal and town or township) with populations of less than 50,000, and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

63. Radio Frequency Equipment Manufacturers (RF Manufacturers). Neither the Commission nor the SBA has developed a small business size standard applicable to Radio Frequency Equipment Manufacturers (RF Manufacturers). There are several analogous SBA small entity categories applicable to RF Manufacturers—Fixed Microwave Services, Other Communications Equipment Manufacturing, and Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. A description of these small entity categories and the small business size standards under the SBA rules are detailed below.

64. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. They also include the Upper Microwave Flexible Use Service, Millimeter Wave Service, Local Multipoint Distribution Service (LMDS), the Digital Electronic Message Service (DEMS), and the 24 GHz Service, where licensees can choose between common carrier and non-common carrier status. A review of the Commission's Universal Licensing System in 2015, found approximately 66,680 common carrier fixed licensees, 69,360 private and public safety operational-fixed licensees, 20,150 broadcast auxiliary radio licensees, 411 LMDS licenses, 33 24 GHz DEMS licenses, 777 39 GHz licenses, and five 24 GHz licenses, and 467 Millimeter Wave licenses in the microwave services. The Commission has not yet defined a small business with respect to microwave services. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) and the appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this SBA category and the associated size standard, the Commission estimates that a majority of fixed microwave service licensees can be considered small.

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

66. Other Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing communications equipment (except telephone apparatus, and radio and television broadcast, and wireless communications equipment). Examples of such manufacturing include fire detection and alarm systems manufacturing, Intercom systems and equipment manufacturing, and signals ( e.g., highway, pedestrian, railway, traffic) manufacturing. The SBA has established a size standard for this industry as all such firms having 750 or fewer employees. U.S. Census Bureau data for 2012 show that 383 establishments operated in that year. Of that number, 379 operated with fewer than 500 employees and 4 had 500 to 999 employees. Based on this data, we conclude that the majority of Other Communications Equipment Manufacturers are small.

67. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The SBA has established a size standard for this industry of 1,250 employees or less. U.S. Census Bureau data for 2012 show that 841 establishments operated in this industry in that year. Of that number, 828 establishments operated with fewer than 1,000 employees, 7 establishments operated with between 1,000 and 2,499 employees and 6 establishments operated with 2,500 or more employees. Based on this data, we conclude that a majority of manufacturers in this industry are small.

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

69. Automobile Manufacturing. This U.S. industry comprises establishments primarily engaged in (1) manufacturing complete automobiles ( i.e., body and chassis or unibody) or (2) manufacturing automobile chassis only. The SBA has established a size standard for this industry, which is 1,500 employees or less. 2012 U.S. Census Bureau data indicate that 185 establishments operated in this industry that year. Of this number, 162 establishments had employment of fewer than 1,000 employees, and 11 establishments had employment of 1,000 to 2,499 employees. Therefore, the Commission estimates that the majority of manufacturers in this industry are small entities.

70. Internet Service Providers (Non-Broadband). Internet access service providers such as Dial-up internet service providers, VoIP service providers using client-supplied telecommunications connections and internet service providers using client-supplied telecommunications connections ( e.g., dial-up ISPs) fall in the category of All Other Telecommunications. The SBA has developed a small business size standard for All Other Telecommunications which consists of all such firms with gross annual receipts of $35 million or less. For this category, U.S. Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Consequently, under this size standard a majority of firms in this industry can be considered small.

71. Internet Service Providers (Broadband). Broadband internet service providers include wired ( e.g., cable, DSL) and VoIP service providers using their own operated wired telecommunications infrastructure fall in the category of Wired Telecommunication Carriers. Wired Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. The SBA size standard for this category classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, under this size standard the majority of firms in this industry can be considered small.

72. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” As of 2019, there were approximately 48,646,056 basic cable video subscribers in the United States. Accordingly, an operator serving fewer than 486,460 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but five cable operators are small entities under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Therefore, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

73. Intelligent Transportation System (ITS). The Commission's own data—available in its Universal Licensing System—indicate that, as of October 26, 2020, there are 124 active ITS licenses in the Commission's database that will be affected by our actions. An authorization to operate in the ITS service may be obtained by any territory, possession, state, city, county, town, or similar governmental entity, and any public safety or industrial/business entity meeting the pertinent eligibility requirements. Prior to operation, applicants are issued a non-exclusive, geographic area license: governmental entities are authorized based on that entity's legal jurisdictional area of operations; and non-governmental entities are licensed based on each applicant's area of operation ( i.e., by county, state, multi-state, or nationwide). 91 licensees are considered “public safety eligible” with the remaining 33 qualified under the Industrial/Business Pool requirements. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities.

74. The Further Notice proposes rules that will affect reporting and other compliance requirements.

75. The Further Notice proposes to resolve the timing, procedures, and technical parameters associated with the transition of the updated 5.9 GHz band plan. Specifically, the Further Notice proposes to allow full-power outdoor unlicensed operations across the 5.850-5.895 GHz band once ITS operations have exited this portion of the band and subject to any further necessary protections for federal operations in this spectrum. The Further Notice also seeks to establish power and emissions limits and other rules related to outdoor unlicensed operations in the lower 45 megahertz of the band. The Further Notice addresses transitioning all ITS operations in the revised ITS band at 5.895-5.925 GHz to C-V2X-based technology, including the appropriate timeline for implementation, and the codification of C-V2X technical parameters for operation in the 5.895-5.925 GHz band. The Further Notice also seeks comment on whether the Commission should consider allocating additional spectrum for ITS applications in the future.

76. This transition will require the Commission, licensees, and manufacturers to take certain actions, such as designing and operating unlicensed devices and C-V2X equipment per the Commission's revised rules.

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

78. The proposals that would require equipment modification or new equipment manufacturing would have an impact on equipment manufacturers, some of which may be small entities. Though we believe that our proposed technical rules for U-NII devices and ITS equipment would provide appropriate rules for this band, we seek comment on alternatives that are based on the existing rules or some other regulatory scheme, with regard to, e.g., power limits and OOBE limits.

79. The regulatory burdens we have proposed are necessary in order to ensure that the public receives the benefits of innovative services and technologies in a prompt and efficient manner and apply equally to large and small entities, thus without differential impact. We seek comment on any alternatives, and whether the pros and cons of leaving these choices to the industry will assist in reaching the best outcomes. We will continue to examine alternatives in the future with the objectives of eliminating unnecessary regulations and minimizing any significant impact on small entities.

80. None.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 15, 90, and 95 as follows:

The addition and revisions read as follows:

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 21-178; RM-11905; DA 21-460, adopted and released on April 21, 2021. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

In support of its channel substitution request, the Petitioner states that WYES-TV is the only station licensed to New Orleans operating on a VHF channel, and moving to a UHF channel would improve viewers' access to WYES-TV's PBS and other public television programming by improving indoor reception and resolving VHF reception issues. Petitioner further states that the Commission has recognized that VHF channels have certain propagation characteristics which may cause reception issues for some viewers, including allowing undesired signals and noise at relatively further distances, and the tendency of nearby electrical devices to emit noise in the VHF band that can cause interference to stations on VHF channels. In addition, the Petitioner submitted an analysis, using the Commission's TVStudy software analysis program, demonstrating that it will continue to serve all of the population located within the licensed channel *11 contour.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

• Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy .

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed 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). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a Notice of Proposed Rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in § 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

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