The decision to withdraw the proposed rule and maintain the current categorical eligibility regulations is authorized by section 5(a) of the Food and Nutrition Act of 2008, as amended (the Act), which provides that households in which each member receives benefits under a State program funded under part A of Title IV of the Social Security Act (SSA) (also known as Temporary Assistance for Needy Families (TANF) block grants)  1 shall be categorically eligible for the Supplemental Nutrition Assistance Program (SNAP). This action withdraws a proposed rule published in the Federal Register on July 24, 2019, (84 FR 35570), which would have revised how receipt of TANF benefits may confer categorical eligibility for SNAP. Specifically, the proposed rule would have limited the TANF “benefits” that may confer categorical eligibility to “ongoing” and “substantial” benefits. The proposed rule defined “ongoing” benefits as those that a household receives or is authorized to receive for a period of at least six months and “substantial” benefits as those valued at a minimum of $50 per month. The proposed rule also limited the types of non-cash TANF benefits conferring categorical eligibility to those that focus on subsidized employment, work supports, and childcare. Finally, the proposed rule would have required State agencies to inform FNS of all non-cash TANF benefits that confer categorical eligibility. The proposed rule would have cost $2.314 billion in administrative expenses between 2019-2023 and resulted in 3.1 million individuals in 1.7 million households losing SNAP eligibility in Fiscal Year 2020.

During the proposed rule's 60-day comment period, nearly 158,000 comments were received. All the comments may be viewed by going to http://www.regulations.gov and searching for public submissions under docket number FNS-2018-0037. The comments came from a broad range of stakeholders and generally opposed the proposed rule. Commenters opposed the rule largely due to concerns about the potential impacts on food insecurity, particularly among children, veterans, individuals with disabilities, and the elderly. Others expressed concerns that the proposed rule would discourage savings and make it more difficult for households to become financially self-sufficient and have adverse economic impacts for communities. Commenters largely opposed the proposed ongoing and substantial criteria, arguing that the criteria would have undermined the Department's stated goal of the supporting self-sufficiency, in addition to creating administrative burdens for State agencies and unnecessary barriers to program participation for applicants. Numerous commenters expressed concerns about the legality of the framework of the proposed rule.

Commenters claimed the Department did not provide valid justifications for the changes proposed, identify any evidence to support the need for a regulatory change, or adequately explain its decision-making. Many commenters argued that the proposed rule was arbitrary and capricious.

More specifically, many commenters responded to concerns raised in the proposed rule regarding the impact of expanded categorical eligibility on SNAP program integrity. These commenters disputed the proposed rule's assertion that States have abused the flexibility offered by categorical eligibility, writing that States have been responsible and methodical stewards of SNAP. Commenters also wrote that the proposed changes went well beyond shoring up the integrity of the program and were intended to reduce SNAP benefits. Several commenters suggested that the program integrity concerns cited in the proposed rule were unwarranted since all households are required to submit and verify income and other eligibility information to determine the SNAP benefit allotment.

After reviewing and considering the comments received, the Department has determined that the proposed rule to revise categorical eligibility should not be finalized. In withdrawing this proposed rule, the Department reaffirms its longstanding categorical eligibility policy, codified in regulations at 7 CFR 273.2(j). The Department has determined that the proposed revisions did not sufficiently justify the impact on the estimated 1.7 million SNAP households that would have lost eligibility under the rule and did not adequately mitigate the disproportionate impact the rule would have had on households with an elderly member. Additionally, the Deparment has determined that the proposed changes and concerns raised regarding program integrity were not adequately supported by data and do not justify the costs to State agencies of implementing the change.

In withdrawing this proposed rule, the Department reaffirms the purpose of categorical eligibility to simplify the SNAP application process for both SNAP State agencies and households by reducing the amount of information that must be verified if a household has already been determined eligible to receive benefits from another assistance program specified in Sec. 5(a) of the Act. Beginning in 2009, the Department proactively encouraged States to implement expanded categorical eligibility policies in order to increase SNAP participation and reduce State administrative burdens. The Department acknowledges that the flexibility afforded by expanded categorical eligibility policies are critical to reducing the burden on needy households and State agencies administering benefit programs.

The Department agrees with the issues raised by many commenters and no longer believes that the limitations the proposed rule would have put on categorical eligibility are appropriate. Accordingly, the proposed rule to revise categorical eligibility for SNAP published in the Federal Register on July 24, 2019, (84 FR 35570) is hereby withdrawn.

Title III, Part C  1 of EPCA, 2 established the Energy Conservation Program for Certain Industrial Equipment. (42 U.S.C. 6311-6317) This equipment includes UFHWSTs, the subject of this NOPD. (42 U.S.C. 6311(1)(K))

Pursuant to EPCA, DOE is triggered to consider amending the energy efficiency standards for certain types of commercial and industrial equipment, including the equipment at issue in this document, whenever the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) amends the standard levels or design requirements prescribed in ASHRAE Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings,” (ASHRAE Standard 90.1). Under a separate provision of EPCA, DOE is required to review the existing energy conservation standards for those types of covered equipment subject to ASHRAE Standard 90.1 every six 6 years to determine whether those standards need to be amended. (42 U.S.C. 6313(a)(6)(A)-(C)) DOE is conducting this review of the energy conservation standards for UFHWSTs under EPCA's six-year-lookback authority. (42 U.S.C. 6313(a)(6)(C))

For this proposed determination, DOE analyzed UFHWSTs subject to standards as specified in the Code of Federal Regulations (CFR) at 10 CFR 431.110. DOE first analyzed the technological feasibility of more efficient UFHWSTs. For those UFHWSTs for which DOE determined higher standards to be technologically feasible, DOE estimated energy savings that would result from potential amended energy conservation standards. DOE also considered whether potential energy conservation standards would be economically justified. As discussed in the following sections, DOE has initially determined that it lacks clear and convincing evidence that amended energy conservation standards for UFHWSTs would result in significant additional conservation of energy or be economically justified.

Based on the results of these analyses, summarized in section V of this document, DOE has tentatively determined that current energy conservation standards for UFHWSTs do not need to be amended.

The following section briefly discusses the statutory authority underlying this proposed determination, as well as some of the historical background relevant to the establishment of energy conservation standards for UFHWSTs.

EPCA, Public Law 94-163 (42 U.S.C. 6291-6317, as codified), among other things, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part C of EPCA, added by Public Law 95-619, Title IV, § 441(a) (42 U.S.C. 6311-6317, as codified), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes UFHWSTs, the subject of this document. (42 U.S.C. 6311(1)(K))

Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing; (2) labeling; (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C. 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).

Federal energy conservation requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption in limited circumstances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (42 U.S.C. 6297(d); 42 U.S.C. 6316(a); 42 U.S.C. 6316(b)(2)(D))

Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of covered equipment. (42 U.S.C. 6314) Specifically, EPCA requires that if a test procedure referenced in ASHRAE Standard 90.1 is updated, DOE must update its test procedure to be consistent with the amended test procedure in ASHRAE Standard 90.1, unless DOE determines, by rule, published in the Federal Register and supported by clear and convincing evidence, that the amended test procedure is not reasonably designed to produce test results that reflect the energy efficiency, energy use, or estimated operating costs of the covered ASHRAE equipment during a representative average use cycle. In addition, DOE must determine that the amended test procedure is not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2) and (4)) In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures in the Federal Register and offer the public an opportunity (of not less than 45 days duration) to present oral and written comments on them. (42 U.S.C. 6314(b)) In contrast, if DOE determines that test procedure revisions are not appropriate, DOE must publish in the Federal Register its determination not to amend the test procedures. (42 U.S.C. 6314(a)(1)(A)(ii))

Manufacturers of covered equipment must use the Federal test procedures as the basis for the following: (1) Certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(b); 42 U.S.C. 6296), and (2) when making representations to the public regarding the energy use or efficiency of such equipment. (42 U.S.C. 6314(d)) Similarly, DOE uses these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. It is noted that DOE does not prescribe a test procedure for UFHWSTs, as the current Federal standard is an insulation design requirement of a minimum R-value of R-12.5. 10 CFR 431.110.

EPCA contains mandatory energy conservation standards for commercial heating, air-conditioning, and water-heating equipment. (42 U.S.C. 6313(a)) Specifically, the statute sets standards for small, large, and very large commercial package air conditioning and heating equipment, packaged terminal air conditioners and packaged terminal heat pumps, warm-air furnaces, packaged boilers, storage water heaters, instantaneous water heaters, and UFHWSTs. Id. In doing so, EPCA established Federal energy conservation standards that generally corresponded to the levels in the ASHRAE Standard 90.1 in effect on October 24, 1992 ( i.e., ASHRAE Standard 90.1-1989).

If ASHRAE Standard 90.1 is amended with respect to the standard levels or design requirements applicable under that standard for certain commercial equipment, including UFHWSTs, not later than 180 days after the amendment of the standard, DOE must publish in the Federal Register for public comment an analysis of the energy savings potential of amended energy efficiency standards. (42 U.S.C. 6313(a)(6)(A)(i)) DOE must adopt amended energy conservation standards at the new efficiency level in ASHRAE Standard 90.1, unless clear and convincing evidence supports a determination that adoption of a more-stringent efficiency level as a national standard would produce significant additional energy savings and be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii))

To determine whether a standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:

If DOE adopts as a national standard the efficiency levels specified in the amended ASHRAE Standard 90.1, DOE must establish such a standard not later than 18 months after publication of the amended industry standard. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) If DOE determines that a more-stringent standard is appropriate under the statutory criteria, DOE must establish the more-stringent standard not later than 30 months after publication of the revised ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(B)(i))

EPCA also requires that every six years DOE shall evaluate the energy conservation standards for each class of certain covered commercial equipment, including UFHWSTs, and publish either a notice of determination that the standards do not need to be amended, or a notice of proposed rulemaking (NOPR) that includes new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6313(a)(6)(C)(i)) EPCA further provides that, not later than three years after the issuance of a final determination not to amend standards, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6313(a)(6)(C)(iii)(II)) DOE must make the analysis on which the determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6313(a)(6)(C)(ii)) Further, a determination that more- stringent standards would: (1) Result in significant additional conservation of energy and (2) be both technologically feasible and economically justified must be supported by clear and convincing evidence. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)) DOE is publishing this NOPD in satisfaction of the 6-year review requirement in EPCA, having initially determined that DOE lacks clear and convincing evidence that amended standards for UFHWSTs would result in significant additional conservation of energy and be economically justified.

The initial Federal standards for UFHWSTs, established by EPCA, corresponded to the efficiency levels contained in ASHRAE Standard 90.1-1989. On January 12, 2001, DOE amended the standards for UFHWSTs to be equivalent to the efficiency level in ASHRAE Standard 90.1 as revised in October 1999. 66 FR 3336 (January 2001 final rule). The January 2001 final rule established an insulation design requirement of a minimum R-value of R-12.5 for all UFHWSTs. 66 FR 3336, 3356 (Jan. 12, 2001). This remains the current Federal standard (and the standard level specified in the most recent version of ASHRAE Standard 90.1). The current standard is located at 10 CFR 431.110.

As noted previously, the standards for UFHWSTs were most recently amended in the January 2001 final rule. EPCA requires DOE to evaluate the applicable energy conservation standard for UFHWSTs every 6 years to determine whether it needs to be amended. (42 U.S.C. 6313(a)(6)(C)(i)) Thus, DOE published a request for information (RFI) on August 9, 2019, which identified various issues and sought to collect data and information to inform its determination, consistent with its obligations under EPCA, as to whether the UFHWST standards need to be amended (the August 2019 RFI). 84 FR 39220.

DOE received five comments in response to the August 2019 RFI from the interested parties listed in Table II.1. Discussion of the relevant comments provided by these organizations and DOE's responses are provided in the appropriate sections of this document.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 3

DOE developed this proposed determination after a review of the UFHWST market, including product literature and product listings in the DOE Compliance Certification Management System (CCMS) database. DOE also considered written comments, data, and information from interested parties that represent a variety of interests. This notice addresses issues raised by these commenters.

When evaluating and establishing new or amended energy conservation standards, DOE typically divides covered equipment into equipment classes by the type of energy used or by capacity or other performance-related features that justify differing standards. For UFHWSTs, the current standard at 10 CFR 431.110 is applicable to a single equipment class covering all UFHWSTs, which is consistent with the standard and structure in ASHRAE Standard 90.1. DOE's regulations define “unfired hot water storage tank” as a tank used to store water that is heated externally, and that is industrial equipment. 10 CFR 431.102. The scope of coverage is discussed in further detail in section IV.A.1 of this NOPD.

EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6314(a)) As a general matter, manufacturers of covered ASHRAE equipment must use these test procedures to certify to DOE that their equipment complies with energy conservation standards and to quantify the efficiency of their equipment. (42 U.S.C. 6316(b); 42 U.S.C. 6296) DOE's current energy conservation standards for UFHWSTs are expressed in terms of a minimum R- value for tank insulation. ( See 10 CFR 431.110.)

DOE does not prescribe a test procedure for UFHWSTs; however, DOE's regulations define “R-value” as the thermal resistance of insulating material as determined using either ASTM International (ASTM) C177-13, “Standard Test Method for Steady-State Heat Flux Measurements and Thermal Transmission Properties by Means of the Guarded-Hot-Plate Apparatus,” or ASTM C518-15, “Standard Test Method for Steady-State Thermal Transmission Properties by Means of the Heat Flow Meter Apparatus” and expressed in (°F ft 2 h/Btu). 10 CFR 431.102.

In response to the August 2019 RFI, DOE received several comments encouraging DOE to consider a performance-based test procedure for UFHWSTs. ASAP and NRDC referenced a test procedure notice of proposed rulemaking (NOPR) published in the Federal Register on May 9, 2016 (81 FR 28588) (May 2016 CWH TP NOPR) in which DOE proposed, among other things, a standby loss test for UFHWSTs, and a final rule for the test procedure for commercial water heating (CWH) equipment published in the Federal Register on November 10, 2016 (81 FR 79261), in which DOE suggested that it would address comments received in response to the May 2016 CWH TP NOPR in a separate rulemaking notice. These commenters encouraged DOE to review and finalize the performance-based test procedure for UFHWSTs before proceeding with a UFHWST standards rulemaking, in order to not forgo potential additional energy savings that could come from incorporating standby losses and/or other changes to the UFHWST test procedure. (ASAP and NRDC, No. 7 at pp. 1-2) Similarly, the CA IOUs stated that they believe the current R-12.5 insulation requirement limits consumer choice and does not encourage design innovation. They likewise encouraged DOE to adopt a performance-based metric, which they believe would lead to additional energy savings. The CA IOUs analyzed standby losses for commercial storage water heaters in the AHRI Directory of Certified Product Performance and noted a wide range of performance. They stated that this suggests the potential for energy savings opportunities for UFHWSTs, if storage water heater tanks are representative of UFHWSTs. Commenting more specifically, the CA IOUs encouraged DOE to consider the thermal losses through uninsulated ports. (CA IOUs, No. 3 at pp. 1-3)

In contrast to these comments, BWC recommended that DOE maintain the requirements for UFHWSTs in terms of insulation level, stating that performance testing for UFHWSTs would be overly burdensome, especially considering the relatively small and customized nature of the marketplace. BWC also expressed concerns that a test procedure change, and ultimately an energy conservation standards change, could have anti-competitive impacts on the UFHWST market. (BWC, No. 5 at pp. 1-3) AHRI also recommended maintaining the current prescriptive design requirement (a minimum insulation requirement of R-12.5), rather than a performance-based metric, stating that the prescriptive approach is simpler. (AHRI, No. 6 at p. 2)

As discussed in section II.A of this document, DOE is publishing this NOPD in satisfaction of the 6-year-lookback review requirement in EPCA, which requires DOE to evaluate the energy conservation standards for certain commercial equipment, including UFHWSTs. Under that provision, DOE must publish either a notice of determination that the standards do not need to be amended, or a NOPR that includes proposed amendments to the energy conservation standards (proceeding to a final rule, as appropriate) every six years. (42 U.S.C. 6313(a)(6)(C)(i)) Because test procedure amendments to adopt a standby loss requirement were not finalized for UFHWSTs, for this analysis of potential amended standards, DOE has only considered potential amended standards based on updating the prescriptive design requirement for insulation R-value.

In evaluating potential amendments to energy conservation standards, DOE first conducts a market and technology assessment to survey all current technology options in products on the market and prototype designs that could improve the efficiency of the products or equipment that are the subject of the determination. This list of technology options for consideration is developed in consultation with manufacturers, design engineers, and other interested parties. DOE then conducts a screening analysis for the technologies identified, and, as a first step, determines which of those means for improving efficiency are technologically feasible. DOE considers technologies incorporated in commercially available equipment or in working prototypes to be technologically feasible. See generally 10 CFR 431.4; 10 CFR part 430, subpart C, appendix A, section 6(c)(3)(i) and 7(b)(1).

After DOE has determined that particular technology options are technologically feasible, it further evaluates each technology option in light of the following additional screening criteria: (1) Practicability to manufacture, install, and service; (2) adverse impacts on equipment utility or availability; (3) adverse impacts on health or safety; and (4) unique-pathway proprietary technologies. See generally 10 CFR 431.4; 10 CFR part 430, subpart C, appendix A, sections 6(c)(3)(ii)-(v) and 7(b)(2)-(5). Section IV.A.3 of this document discusses the results of the screening analysis for UFHWSTs, particularly the designs DOE considered, those it screened out, and those that are the basis for the standards considered in this proposed determination.

When DOE proposes to adopt an amended standard for a type or class of covered equipment, as part of its analysis, the Department determines the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such equipment. Accordingly, in the engineering analysis, DOE determined the maximum technologically feasible (max-tech) improvements in energy efficiency for UFHWSTs, using the design parameters for the most efficient equipment available on the market or in working prototypes. The max-tech levels that DOE determined for this analysis are described in section IV.B of this proposed determination.

For each efficiency level (EL) evaluated, DOE projected energy savings from application of the EL to the UFHWSTs purchased in the 30-year period that begins in the assumed year of compliance with the potential amended standards (2025-2054). The savings are measured over the entire lifetime of the UFHWSTs purchased in the previous 30-year period. DOE quantified the energy savings attributable to each EL as the difference in energy consumption between each standards case and the no-new-standards case. The no-new-standards case represents a projection of energy consumption that reflects how the market for equipment would likely evolve in the absence of amended energy conservation standards. DOE used a simplified National Impacts Analysis (NIA) spreadsheet model to estimate national energy savings (NES) from potential amended or new standards for UFHWSTs. The simplified NIA for this analysis is to ascertain if potential efficiency improvements for UFHWSTs meet the required significance of savings described in section III.D.2 of this document; however, it does not estimate the net present value (NPV) to the Nation of these savings that is typically performed as part of the NIA. The simplified NIA spreadsheet model (described in section IV.F of this document) calculates energy savings in terms of site energy, which is the energy directly consumed by equipment at the locations where it is used.

In determining whether amended standards are needed for covered equipment addressed by ASHRAE Standard 90.1, DOE must consider whether such standards would result in significant additional conservation of energy. 4 (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)(ii)(II))

EPCA defines “energy efficiency” as the ratio of the useful output of services from an article of industrial equipment to the energy use of such article, measured according to the Federal test procedures. (42 U.S.C. 6311(3)) EPCA defines “energy use” as the quantity of energy directly consumed by an article of industrial equipment at the point of use, as measured by the Federal test procedures. (42 U.S.C. 6311(4)) Given this context, DOE relies on site energy as the appropriate metric for evaluating the significance of energy savings.

As noted previously, EPCA provides seven factors to be considered in determining whether a potential energy conservation standard is economically justified. (42 U.S.C. 6313(a)(6)(B)(ii)(I)-(VII)) The following sections provide an overview of each of those seven factors.

In determining the impacts of a potential amended standard on manufacturers, DOE typically conducts a manufacturer impact analysis (MIA). In conducting a MIA, DOE uses an annual cash-flow approach to compare the quantitative impacts between the no-new-standards and the amended standards cases. The industry-wide impacts typically analyzed include: (1) Industry net present value (INPV), which values the industry on the basis of expected future cash flows; (2) cash flows by year; (3) changes in revenue and income, and (4) other measures of impact, as appropriate. However, DOE is not proposing amended standards for UFHWSTs, and, therefore, this proposed determination would have no cash-flow impacts on manufacturers. Accordingly, as discussed further in section IV.G of this document, DOE did not conduct an MIA for this NOPD.

For individual consumers, measures of economic impact include the changes in the life-cycle cost (LCC) and payback period (PBP) associated with new or amended standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also typically calculates the national net present value of the consumer costs and benefits expected to result from particular standards. DOE also typically evaluates the impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a standard. However, as discussed in section V.A.2 of this document, due to significant uncertainties regarding the costs of alterations to doorways and mechanical rooms (which may be required in certain replacement installations in order to get an UFHWST to its installation destination if additional insulation thickness makes the UFHWST too large for existing structures to accommodate) and the lack of data indicating the likelihood of such alterations being required, any analysis conducted by DOE regarding the LCC or PBP would be of limited value because of the lack of data and high degree of uncertainty of the inputs to those analyses. Therefore, DOE did not estimate the NPV of consumer costs and benefits.

EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product that are likely to result from a standard. (42 U.S.C. 6313(a)(6)(B)(ii)(II)) DOE typically conducts this comparison in its LCC and PBP analysis.

The LCC is the sum of the purchase price of equipment (including its installation) and the operating expense (including energy, maintenance, and repair expenditures) discounted over the lifetime of the equipment. The LCC analysis requires a variety of inputs, such as equipment prices, energy consumption, energy prices, maintenance and repair costs, equipment lifetime, and discount rates appropriate for consumers. To account for uncertainty and variability in specific inputs, such as equipment lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value.

The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of more-efficient equipment through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more-stringent standard by the change in annual operating cost for the year that standards are assumed to take effect. This type of calculation is known as a “simple” payback period because it does not take into account changes in operating expenses over time or the time value of money ( i.e., the calculation is done at an effective discount rate of zero percent). Payback periods greater than the life of the equipment indicate that the increased total installed cost is not recovered by the reduced operating expenses.

For its LCC and PBP analysis, DOE assumes that consumers will purchase the equipment in the first year of compliance with new or amended standards. The LCC savings for the considered efficiency levels are calculated relative to the case that reflects projected market trends in the absence of new or amended standards. As discussed in section IV.D of this document, DOE did not conduct an LCC and PBP analysis for this NOPD because the lack of data and high degree of uncertainty of the inputs to those analyses meant that the outputs would be of little value.

Although significant conservation of energy is a separate statutory requirement for amending an energy conservation standard, EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (42 U.S.C. 6313(a)(6)(B)(ii)(III)) As discussed in section IV.F of this document, DOE uses the NIA spreadsheet models to project national energy savings.

In establishing equipment classes and in evaluating design options and the impact of potential standard levels, DOE evaluates potential standards that would not lessen the utility or performance of the considered products. (42 U.S.C. 6313(a)(6)(B)(ii)(IV)) Because DOE is not proposing standards for UFHWSTs, the Department has tentatively concluded that this proposed determination would not reduce the utility or performance of UFHWSTs.

EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from a proposed standard. (42 U.S.C. 6313(a)(6)(B)(ii)(V)) Because DOE is not proposing standards for UFHWSTs, DOE did not transmit a copy of its proposed determination to the Attorney General for anti-competitive review.

DOE also considers the need for national energy conservation in determining whether a new or amended standard is economically justified. (42 U.S.C. 6313(a)(6)(B)(ii)(VI)) Because DOE has tentatively concluded that it lacks clear and convincing evidence that amended standards for UFHWSTs would result in significant additional conservation of energy or be economically justified, DOE did not conduct a utility impact analysis or emissions analysis for this NOPD.

In determining whether an energy conservation standard is economically justified, DOE may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6313(a)(6)(B)(ii)(VII)) To the extent DOE identifies any relevant information regarding economic justification that does not fit into the other categories described previously, DOE could consider such information under “other factors.”

This section addresses DOE's consideration of the statutory factors and the analyses that DOE has performed for this proposed determination with regard to UFHWSTs. Separate subsections address each component of the factors for DOE's consideration, as well as corresponding analyses to the extent conducted. DOE used a spreadsheet tool to estimate the impact of potential energy conservation standards. This spreadsheet uses inputs from the energy use analysis and shipments projections and calculates a simplified NES expected to result from potential energy conservation standards.

DOE develops information in the market and technology assessment that provides an overall picture of the market for the equipment concerned, including the purpose of the equipment, the industry structure, manufacturers, market characteristics, and technologies used in the equipment. This activity includes both quantitative and qualitative assessments, based primarily on publicly-available information. DOE also conducted structured, detailed interviews with representative manufacturers. During these interviews, DOE discussed engineering, manufacturing, procurement, and financial topics to validate assumptions used in its analyses, and to identify key issues or concerns. These interviews were conducted under non-disclosure agreements (NDAs), so DOE does not document these discussions in the same way that it does public comments in the comment summaries and DOE's responses throughout the rest of this document.

The subjects addressed in the market and technology assessment for this proposed determination include: (1) A determination of the scope and equipment classes; (2) manufacturers and industry structure; (3) shipments information, (4) market and industry trends, and (5) technologies or design options that could improve the energy efficiency of UFHWSTs. The key findings of DOE's market assessment are summarized in the following subsections.

In this analysis, DOE relied on the definition of UFHWSTs in 10 CFR 431.102, which defines an UFHWST as a tank used to store water that is heated externally, and that is industrial equipment. Any equipment meeting the definition of an UFHWST is included in DOE's scope of coverage. UFHWSTs are not currently divided into equipment classes ( i.e., there is a single equipment class covering all UFHWSTs).

In the August 2019 RFI, DOE requested comment on whether the current definition of UFHWSTs requires any revisions, and whether any sub-category divisions should be added. 84 FR 39220, 39224 (August 9, 2019). In response, BWC generally supported the definition of UFHWSTs as presented in the August 2019 RFI ( i.e., the current regulatory definition). Similarly, BWC also stated that it does not believe any subcategory definitions should be created and that there is not an appropriate way to divide UFHWSTs into separate equipment classes. (BWC, No. 5 at pp. 1-2) The CA IOUs encouraged DOE to ensure that any revised definitions of UFHWSTs maintain the current scope of coverage, and suggested that DOE should not consider establishing new equipment classes that are not currently available in the market. The CA IOUs also recommended that equipment class differentiations should be based on performance- related features that are “accessible to the layperson and is based on user operation.”  5 (CA IOUs, No. 3 at pp. 1-3)

In this proposed determination, absent any indication that the scope of UFHWSTs as currently defined would benefit from amendment, DOE is not proposing any changes to the definition of UFHWSTs. Similarly, because DOE does not have an indication that capacity or other performance characteristic justifies a different standard level, and because commenters did not provide any such indication, DOE is not proposing to divide UFHWSTs into separate equipment classes in this NOPD. Therefore, the analysis for this NOPD was conducted for the existing single equipment class covering all UFHWSTs.

In the August 2019 RFI, DOE identified several technology options that would be expected to improve the efficiency of UFHWSTs. 84 FR 39220, 39225 (August 9, 2019). These technology options were based on manufacturer equipment literature and publicly- available technical literature. Specifically, the technologies identified in the August 2019 RFI included the following:

DOE uses the following five screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:

(1) Technological feasibility. Technologies that are not incorporated in commercial equipment or in working prototypes will not be considered further.

(2) Practicability to manufacture, install, and service. If it is determined that mass production and reliable installation and servicing of a technology in commercial equipment could not be achieved on the scale necessary to serve the relevant market at the time of the projected compliance date of the standard, then that technology will not be considered further.

(3) Impacts on equipment utility or equipment availability. If it is determined that a technology would have significant adverse impact on the utility of the equipment to significant subgroups of consumers or would result in the unavailability of any covered equipment type with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as equipment generally available in the United States at the time, it will not be considered further.

(4) Adverse impacts on health or safety. If it is determined that a technology would have significant adverse impacts on health or safety, it will not be considered further.

(5) Unique-Pathway Proprietary Technologies. If a design option utilizes proprietary technology that represents a unique pathway to achieving a given efficiency level, that technology will not be considered further.

10 CFR part 430, subpart C, appendix A, sections 6(c)(3) and 7(b). In summary, if DOE determines that a technology, or a combination of technologies, fails to meet one or more of the listed five criteria, it will be excluded from further consideration in the engineering analysis.

In response to the August 2019 RFI, DOE received several comments related to the suggested technology options. A.O. Smith stated that the technologies used to increase the efficiency of UFHWSTs are limited to changes in installation thickness, location, and materials. (A.O. Smith, No. 8 at p. 2) BWC stated that many of the technologies listed would be very difficult to apply to UFHWSTs due to the wide variety of tank sizes, configurations, and fittings. Additionally, BWC stated that the majority of the technologies identified would present significant manufacturability issues due to the variability of tank configurations and fittings, and that increasing insulation thickness and/or changing to another insulating solutions could present issues with fittings that would not occur otherwise. BWC also asserted that the technology options listed could increase the fragility of tanks, which could cause difficulties in moving the tanks to their final installation location. (BWC, No. 5 at p. 2) As discussed in section IV.A of this document, DOE also conducted interviews with manufacturers. During these interviews, which were conducted under NDAs, manufacturers made statements similar to those comments submitted by BWC in response to the August 2019 RFI.

In response to these comments, DOE acknowledges that requiring use of advanced insulation types (such as vacuum panels or aerogels) could necessitate an extremely difficult change to the UFHWST manufacturing process due to the rigid nature of these materials and the high degree of customization and ports on UFHWSTs. Applying these materials closely around ports and configuring them to all tank shapes and setups ( e.g., number of ports, port locations) may not be possible where tight curvatures would be required and/or due to the high level of customization of UFHWSTs. Additionally, DOE is not aware of equipment on the market that incorporate aerogels, vacuum panels, or inert gas-filled panels at the time of this analysis. Therefore, in the analysis for this NOPD, DOE did not consider any advanced insulation types as a technology option to increase the insulation R-value for UFHWSTs.

To explain what technologies are commonly used, BWC stated that most manufacturers use polyurethane foam to achieve the minimum R-12.5 requirement, although high density fiberglass may be applied in certain areas where it is difficult to apply foam. (BWC, No. 5 at p. 2) Relatedly, A.O. Smith stated that certain technology options proposed by DOE, such as insulation on tank bottoms, would be impractical to implement because bottom mounted drain connections must be kept accessible. (A.O. Smith, No. 8 at p. 2) AHRI commented that technologies such as pipe insulation cannot be pre-configured by the manufacturer for installation in the field. (AHRI, No. 6 at p. 2)

As suggested by BWC, and supported by DOE's review of publicly-available manufacturer information, polyurethane foam is the most commonly used type of insulation for meeting the minimum insulation requirement, but fiberglass and/or Styrofoam are often used in specific regions ( e.g. tank tops or bottoms, or regions around ports) where doing so could limit access to ports or be impractical to manufacture. For its analyses, DOE has estimated energy losses based on tanks being covered primarily with polyurethane foam, but the agency has also included several regions with alternative insulation materials. Therefore, DOE included a minimum amount of insulation around pipes and fittings in its analysis of baseline equipment, but it did not consider requiring different insulation materials in these regions. Likewise, DOE did not consider additional insulation coverage around pipes and fittings as a technology option for the analysis.

Ultimately, after reviewing all of the proposed technologies, DOE did not screen out improved insulation R-value due to increased polyurethane foam thickness, so the Department included this as a design option in the engineering analysis. DOE determined that this technology option is technologically feasible because it only involves an increase in thickness of the same insulation material that is currently commonly used on UFHWSTs, and can be achieved with the same processes that are currently being used in commercially-available equipment or working prototypes ( e.g., fabricating jackets or foaming).

The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of UFHWSTs at different levels of reduced heat loss (“efficiency levels”). 6 This relationship serves as the basis for the cost-benefit calculations for commercial consumers, manufacturers, and the Nation. There are typically two elements to consider in the engineering analysis; the selection of efficiency levels to analyze ( i.e., the “efficiency analysis”) and the determination of equipment cost at each efficiency level ( i.e., the “cost analysis”). In determining the performance of higher-efficiency equipment, DOE considers technologies and design option combinations not eliminated by the screening analysis. DOE then typically estimates the manufacturing production cost (MPC) at the baseline and the change in MPC associated with reducing the heat loss of equipment above the baseline, up to the max-tech efficiency level for each equipment class. The typical output of the engineering analysis is a set of cost-efficiency “curves” that are used in downstream analyses ( i.e., the LCC and PBP analyses and the NIA). However, for the reasons discussed in IV.B.3 of this document, the cost analysis was not performed for this NOPD.

DOE typically uses one of two approaches to develop energy efficiency levels for the engineering analysis: (1) Relying on observed efficiency levels in the market ( i.e., the efficiency-level approach), or (2) determining the incremental efficiency improvements associated with incorporating specific design options to a baseline model ( i.e., the design-option approach). Using the efficiency-level approach, the efficiency levels established for the analysis are determined based on the market distribution of existing equipment (in other words, based on the range of efficiencies and efficiency level “clusters” that already exist on the market, without regard to the specific design options used to achieve those levels). Using the design-option approach, the efficiency levels established for the analysis are determined through detailed engineering calculations and/or computer simulations of the efficiency improvements resulting from implementation of specific design options that have been identified in the technology assessment. DOE may also rely on a combination of these two approaches. In this rulemaking, DOE is adopting a design-option approach because there are very few models of UFHWSTs currently on the market that are marketed with higher insulation levels than the current baseline requirement of R-12.5.

Based on its review of publicly-available equipment information and feedback from manufacturers, DOE had tentatively determined that 2 inches of polyurethane foam insulation is needed to meet the current insulation requirement, and DOE, therefore, considered this insulation thickness as the baseline. As discussed in section IV.A.3 of this document, increased polyurethane foam insulation thickness was the only technology option that was not screened-out for this analysis, and thus, DOE considered more-stringent efficiency levels ( i.e., increased R-value) based on varying levels of increased polyurethane foam thickness.

In response to the August 2019 RFI, AHRI commented that there is a diminishing return from increasing insulation thickness due to the increasing heat transfer rate and surface area as the insulation thickness increases. (AHRI, No. 6 at pp. 1-2) This comment was supported by individual manufacturers during interviews with DOE. Manufacturers stated that surface tension decreases as the foam thickness increases, which results in the foam becoming less stable. To counter this, less blowing agent is used and the foam becomes denser, thereby reducing the added insulating benefit per inch of applied insulation at thicknesses above 3 inches (if foam is applied by being poured into a form, which is the typical application method for polyurethane foam on jacketed UFHWSTs). Manufacturers stated that due to the changing foam density as the insulation thickness increases, the R-value per inch is expected to diminish as insulation thickness is increased, especially as thickness increases beyond 3 inches. As a result, when more than 3 inches of insulation thickness is applied, it is unclear how much additional R-value could be achieved by continuing to increase the thickness of the foam of jacketed UFHWSTs. Unjacketed tanks, which are intended for outdoor installation and may not have the same space constraints as indoor units, do not have an outer metal jacket enclosing and protecting the foam. As a result, unjacketed tanks can be spray-foamed in layers, which reduces the compression of the foam and mitigates the potential for changes in foam density at thicknesses above 3 inches. However, all UFHWSTs were considered in a single equipment class (as discussed in section IV.A.1 of this document), so the max-tech level for jacketed UFHWSTs was applied for all UFHWSTs in this analysis. Furthermore, feedback from manufacturers and DOE's previous knowledge of the UFHWST market indicated that at least 90 percent of UFHWSTs are jacketed and intended for indoor installation.

Therefore, DOE expects uncertainty related to the effective R-value of insulation for insulation thicknesses above 3 inches. Because thicknesses above 3 inches are not typically used on jacketed UFHWSTs, the improvement in R-value as insulation thickness increases beyond 3 inches for jacketed tanks is unclear at this time. Therefore, due to the high level of uncertainty regarding the R-value of foam insulation with thickness greater than 3 inches, DOE has limited its analysis to considering only up to 1 additional inch of insulation thickness above the baseline insulation level of 2 inches, so 3 inches of foam insulation was considered the max-tech efficiency level for UFHWSTs in this analysis.

DOE requests data and information related to achievable R-values of polyurethane foam insulation on jacketed UFHWSTs at thicknesses above 3 inches. DOE also seeks comment on its understanding of the difficulties associated with applying more than 3 inches of foam to jacketed UFHWSTs.

DOE also included one intermediate level of added insulation in its analysis, with 0.5 inch of added insulation above the 2-inch baseline that results in R-12.5. DOE has assumed for its analysis that polyurethane foam has an R-value per inch of 6.25 (up to a maximum thickness of 3 inches). The selected ELs used in the analyses for this NOPD are shown in Table IV.1.

DOE seeks comment on the considered efficiency levels analyzed for UFHWSTs. Additionally, DOE seeks comment on its assumption that polyurethane foam has an R-value per inch of 6.25, up to a maximum thickness of 3 inches.

For the engineering analysis, DOE analyzed the publicly-available details, including storage volumes and other critical features, of UFHWST models available on the market and conducted interviews with manufacturers under NDAs to determine appropriate representative equipment to analyze. In response to the August 2019 RFI, several commenters highlighted the customized and variable nature of the UFHWST market. (BWC, No. 5 at pp. 1-2; AHRI, No. 6 at p. 2; A.O. Smith, No. 8 at p. 1) BWC stated that it does not believe it is possible to have one representative volume of UFHWSTs (or more in a reasonable quantity). BWC also commented that it would be difficult to have a representative application with associated R-value, ambient conditions, tank setpoint, and draw patterns for UFHWSTs and suggested that DOE's analysis should not be overly simplified if it is acknowledged that tank orientation can affect heat losses. (BWC, No. 5 at pp. 2-3) A.O. Smith recommended that DOE conduct its analysis using various standard models, but the agency should keep in mind the customized nature of the UFHWST market. (A.O. Smith, No. 8 at p. 1)

To account for the wide range of UFHWSTs on the market, DOE chose several representative baseline units for analysis. As discussed in section IV.C.1.c of this document, DOE also included several ambient temperature conditions in its energy use analysis to reflect typical installation locations ( i.e., indoors in mechanical rooms or outdoors in “Very Hot” and “Hot” regions). Although UFHWSTs can be installed horizontally or vertically, DOE used a conservative assumption in its energy use analysis that water temperature would remain uniformly at 140 °F (as discussed in section IV.C.1.b of this document, DOE did not consider stratification of water temperatures inside the tank and assumed that a tank would always be full of hot water). Therefore, DOE determined that installation orientation would not have a significant impact on its energy use analysis results, so the Department calculated estimated standby losses based on all tanks being vertical, because vertical installations are the most common. The characteristics of these representative units are listed in Table IV.2.

In response to the August 2019 RFI, BWC stated that most manufacturers use polyurethane foam to insulate UFHWSTs, although fiberglass may be used in certain areas or on certain tanks where it is difficult to apply foam. (BWC, No. 5 at p. 2) As discussed in section IV.C.1 of this document, in its energy use analysis, DOE divided the surface area of each tank, at each EL, into several zones and assigned a representative R-value to each zone depending on the expected insulation type and thickness. Although most tank surfaces can be insulated with 2 inches of polyurethane foam, it is not practical to insulate all surfaces with polyurethane foam due to the insulation application process or the need to retain access to certain ports. In particular, it can be difficult to insulate the areas surrounding fittings, manholes or handholes, and the tops or bottoms of tanks with polyurethane foam, so DOE accounted for the use of other insulating materials in those areas. Similarly, certain fittings and ports will remain uninsulated due to the need to be accessible, situations for which DOE also accounted in its analysis.

In publicly-available equipment literature, DOE observed that the typical number of ports on UFHWSTs ranged from 5 to 11. These ports can include an inlet port, an outlet port, a temperature sensor, a temperature and pressure relief valve, a drain, a recirculation valve, one or more ports for anode rods, and other custom fittings. In its energy use analysis, DOE selected 7 ports as a representative number of ports. DOE further assumed that a 2-inch-wide ring of fiberglass would be placed around each port. DOE also included a small area (1.5 inches in diameter) of uninsulated tank at each port to reflect losses through adjoining pipes or fittings. Wherever fiberglass was modeled as the insulation for tanks, the thickness of fiberglass was the same as the thickness of polyurethane foam on the same tank (which for the analysis in this NOPD, depends on the EL) because the thickness of insultation would be uniformly constrained by the outer metal jacketing on most UFHWSTs. The R-values for each insulation type and at each EL are shown in Table IV.3.

Based on feedback from manufacturers and its own review of publicly-available materials, DOE also assumed that the tank tops would be covered with fiberglass instead of polyurethane foam, and that an extra maintenance access port (a 6 inch by 4 inch hand hole for tanks with storage volumes up to 500 gallons, or a 12 inch by 16 inch manhole for tanks with storage volumes greater than 500 gallons) would be partially covered with fiberglass and partially bare.

DOE requests comment on the inputs and assumptions used in its engineering analysis. In particular, DOE requests input on its choice of representative volumes, its assumptions about the typical coverage of various insulation materials, and its estimated R-values for each insulation material at each EL considered.

The cost analysis portion of the Engineering Analysis is typically conducted using one or a combination of cost approaches. The selection of cost approach depends on a suite of factors, including the availability and reliability of public information, characteristics of the regulated equipment, and the availability and timeliness of purchasing the equipment on the market. The cost approaches are summarized as follows:

• Physical teardowns: Under this approach, DOE physically dismantles commercially-available equipment, component-by-component, to develop a detailed bill of materials for the equipment.

• Catalog teardowns: In lieu of physically deconstructing equipment, DOE identifies each component using parts diagrams (available from sources such as manufacturer websites or appliance repair websites) to develop the bill of materials for the equipment.

• Price surveys: If a physical or catalog teardown is infeasible ( e.g., for tightly integrated equipment such as fluorescent lamps, which are infeasible to disassemble and for which parts diagrams are unavailable), cost-prohibitive, or otherwise impractical ( e.g. large commercial boilers), DOE conducts price surveys using publicly-available pricing data published on major online retailer websites and/or by soliciting prices through distributors or other commercial channels.

As discussed in section IV.D of this document, DOE did not conduct a cost analysis because DOE did not have the requisite inputs to develop its LCC model with a degree of certainty that would meet the statute's “clear and convincing” evidentiary threshold. DOE likewise did not expend resources to generate the cost-efficiency curve, as it is unnecessary without an LCC model to feed into.

As discussed, UFHWSTs store hot water and do not directly consume fuel or electricity for the purpose of heating water, so any potential amendments to the standard would reduce standby loss of heat from the stored water. Further, DOE currently only prescribes a minimum insulation requirement (as opposed to a minimum efficiency requirement) for UFHWSTs. Accordingly, the energy use analysis determines the annual energy consumption of paired water heaters and boilers due to standby loss of the UFHWSTs and assesses the energy savings potential of increasing the stringency of the required insulation for UFHWSTs.

For this determination, DOE adapted the thermal loss model described in the technical support document (TSD) for the commercial water heating energy conservation standards (ECS) NOPR published in the Federal Register on May 31, 2016 (81 FR 34440; May 2016 CWH ECS NOPR), with some modifications to how the tank surface areas are defined. 7 These modifications were introduced to capture equipment performance that results from differences in surface insulation thickness over different areas of tank ( i.e., insulation around fittings and access ports). These differences are described in section IV.C.1.a of this document.

As discussed in section IV.B.2 of this document, DOE used a conservative assumption in its energy use analysis that water temperature would remain uniformly at 140 °F and did not consider stratification of water temperatures inside the tank. Therefore, although tanks can be installed horizontally or vertically, there is no difference in thermal losses between these configurations, and DOE only used vertical tanks in its analysis. The UFHWST's total external surface area was divided into separate zones, where i is the index for each zone. Zones represent the different areas of an UFHWST that would have unique insulative values. These zones are described in more detail in in section IV.B of this document.

For this analysis, DOE assumed that the water inside the UFHWSTs is at a constant uniform temperature of 140 °F, which is the average water temperature required by the current Federal test procedures for storage-type CWH equipment during standby loss testing. See generally 10 CFR 431.106; 10 CFR part 431, subpart G, appendix A, section 6; 10 CFR part 431, subpart G, Appendix B, section 5. Because UFHWSTs serve the same function as storage-type CWH equipment in standby mode, DOE expects that similar conditions would be appropriate for UFHWSTs as for storage-type CWH equipment in standby mode. DOE used a conservative assumption that internal water temperatures would remain indefinitely at 140 °F. In reality, the rate of heat loss from a UFHWST would decrease slowly as the temperature difference between the internal stored water and the ambient air decreased. However, because this effect would be minimal, DOE did not consider stratification of water temperatures inside the tank and assumed that a tank would always be full of hot water. Therefore, DOE held the temperature T constant across all tank zones i .

DOE requests comment on the appropriateness of its assumption regarding the use of a constant internal water temperature of 140 °F.

Based on feedback from manufacturers during interviews conducted under NDA, DOE assumed that 90 percent of UFHWSTs would be installed indoors and that the remaining 10 percent would be installed outdoors. DOE assumed that all tanks that are installed indoors would have a constant ambient temperature of 75 °F, which is the average air temperature required by the current Federal test procedure for storage-type CWH equipment during standby loss testing. See generally 10 CFR 431.106; 10 CFR part 431, subpart G, appendix A, section 6; 10 CFR part 431, subpart G, Appendix B, section 5.

For the fraction of UFHWSTs that are installed in outdoor, or non-conditioned, spaces, DOE defined each climate zone ( z ) and calculated the monthly average temperatures from Typical Meteorological Year 3 (TMY3)  8 data for the Building America climate regions 1A, 2A, and 2B. 9 10 The temperatures for each region are represented by the cities in Table IV.4. The monthly regional averages were then weighted using the regional city populations based on data from 2018 Census. 11

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0459; Project Identifier MCAI-2021-00129-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, 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 the proposal 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 proposed AD.

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 Tom Rodriguez, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226; email Tom.Rodriguez@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The CAAI, which is the aviation authority for Israel, has issued CAAI AD I-57-2020-06-01, dated January 27, 2021 (CAAI AD I-57-2020-06-01) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Gulfstream Aerospace LP Model Gulfstream G280 airplanes.

This proposed AD was prompted by a report that during full-scale fatigue testing, a crack was found in the area of the attachment of the wing rib 0 to the front spar. The FAA is proposing this AD to address any cracking at the area of the wing rib 0 to the front spar, which could affect the structural integrity of the wing. See the MCAI for additional background information.

CAAI AD I-57-2020-06-01 specifies procedures for non-destructive testing (high frequency, mid frequency, bolt hole eddy current inspections, and a liquid (dye) penetrant inspection) for cracking on the forward (front) spar vertical stiffener and rib 0, installation of a doubler to the forward (front) spar and rib 0 attachment, and repair if necessary. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is proposing this AD because the FAA evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in CAAI AD I-57-2020-06-01 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, CAAI AD I-57-2020-06-01 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with CAAI AD I-57-2020-06-01 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Service information specified in CAAI AD I-57-2020-06-01 that is required for compliance with CAAI AD I-57-2020-06-01 will be available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0459 after the FAA final rule is published.

The FAA estimates that this proposed AD affects 23 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has received no definitive data on which to base the cost estimates for the repair specified in this proposed AD.

According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected oeprators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0455; Project Identifier 2018-SW-031-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, 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 proposal 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 Kristi Bradley, Program Manager, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email kristin.bradley@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0087, dated April 18, 2018 (EASA AD 2018-0087), to correct an unsafe condition for Leonardo S.p.A. Helicopters (formerly Finmeccanica S.p.A., AgustaWestland S.p.A.) Model AW189 helicopters. EASA advises of revisions resulting in Leonardo AW189 Maintenance Manual, Document 89-A-AMPI-00-P, Chapter IV, Airworthiness Limitations, Issue 13 (89-A-AMPI-00-P ALS Issue 13), which includes new and/or more restrictive airworthiness limitations and maintenance tasks since its original issuance. Failure to accomplish those airworthiness limitations and maintenance tasks could result in an unsafe condition.

Accordingly, EASA AD 2018-0087 requires accomplishing the actions specified in 89-A-AMPI-00-P ALS Issue 13 and revising the Aircraft Maintenance Program (AMP) with the actions specified in 89-A-AMPI-00-P ALS Issue 13.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type design.

The FAA reviewed AW189 Air Vehicle Maintenance Planning Information, 89-B-AMPI-00-P, Chapter 4, Issue 6, dated July 17, 2018 (89-B-AMPI-00-P ALS Issue 6). 89-B-AMPI-00-P ALS Issue 6 specifies various airworthiness limitations information including retirement lives, mandatory inspections, and certification maintenance requirements. 89-B-AMPI-00-P ALS Issue 6 is equivalent to 89-A-AMPI-00-P ALS Issue 13.

This proposed AD would require determining the total hours time-in-service (TIS) and total number of landings of tail gearbox fitting part number (P/N) 4F5350A04152. If the total hours TIS and total number of landings cannot be determined, this proposed AD would require removing the part from service. This proposed AD would establish a life limit for tail gearbox fitting P/N 4F5350A04152 and require removing the part from service according to the new life limit.

EASA AD 2018-0087 applies to Model AW189 helicopters, whereas this proposed AD would apply to that model helicopter with tail gearbox fitting P/N 4F5350A04152 installed instead. EASA AD 2018-0087 requires accomplishing the actions specified in 89-A-AMPI-00-P ALS Issue 13 and revising the AMP with the actions specified in 89-A-AMPI-00-P ALS Issue 13, whereas this proposed AD would require establishing a life limit for tail gearbox fitting P/N 4F5350A04152 and removing that part from service accordingly instead.

The FAA estimates that this AD, if adopted as proposed, would affect 4 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Replacing a tail gearbox fitting would take about 48 work-hours and parts would cost about $30,000 for an estimated cost of $34,080 per helicopter and $136,320 for the U.S. fleet, per replacement cycle.

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

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

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

For the reasons discussed, I certify this proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0454; Project Identifier AD-2021-00006-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, 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 proposal 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 Kuethe Harmon, Safety Management Program Manager, DSCO Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5198; email Kuethe.harmon@faa.gov. 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 received notification from Bell of established life limits for certain part numbered grip assemblies that were not included in Chapter 4—Airworthiness Limitations Schedule (ALS) of Bell Helicopter 205B Maintenance Manual BHT-205B-MM-1, Revision 1, dated July 15, 1993. Bell states the life limit of 9,000 hours TIS for grip assembly part number (P/N) 204-011-121-005, P/N 204-011-121-113, and P/N 204-011-121-005 was left out of the ALS for Model 205B helicopters. Bell states this may suggest that these part numbers have an unlimited life when installed on Model 205B helicopters, whereas the retirement life is 9,000 hours TIS. This condition, if not addressed, could result in fatigue and failure of the grip assembly and loss of control of the helicopter.

Accordingly, Bell specifies updating the existing ALS to establish a life limit of 9,000 hours TIS for grip assembly P/N 204-011-121-005, P/N 204-011-121-113, and P/N 204-011-121-005.

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

This proposed AD would require, before further flight, determining the total hours TIS of certain part-numbered grip assemblies and removing from service any certain part-numbered grip assembly that has accumulated or exceeded 9,000 total hours TIS. This proposed AD would also require, for certain part-numbered grip assemblies that have not accumulated or exceeded 9,000 total hours TIS, creating a component history card or equivalent record to annotate a life limit of 9,000 total hours TIS and removing these grip assemblies from service before accumulating 9,000 total hours TIS. Finally, this NPRM would prohibit installing any affected grip assembly that has exceeded or accumulated 9,000 hours TIS, and prohibit alternative life limits for any affected grip assembly.

The FAA estimates that this proposed AD would affect 2 helicopters of U.S. registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Determining the total hours TIS of each grip assembly and updating the helicopter records would take about 1 work-hour for each grip assembly, for an estimated cost of $85 per helicopter and $170 for the U.S fleet.

Replacing each grip assembly would take about 16 work-hours and parts would cost about $50,000 for an estimated cost of $51,360 per grip assembly.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

The Attorney General is responsible for enforcing the GCA, as amended, and the NFA, as amended. 1 This includes the authority to promulgate regulations necessary to enforce the provisions of the GCA and NFA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A)(ii), 7805(a). The Attorney General has delegated the responsibility for administering and enforcing the GCA and NFA to the Director of ATF, subject to the direction of the Attorney General and the Deputy Attorney General. See 28 CFR 0.130(a)(1)-(2). Accordingly, the Attorney General and ATF have promulgated regulations implementing both the GCA and the NFA. See 27 CFR parts 478, 479. The ATF Director delegated the authority to classify firearms pursuant to the GCA and NFA to ATF's Firearms Technology Criminal Branch (“FTCB”) and the Firearms Technology Industry Services Branch (“FTISB”), within the Firearms and Ammunition Technology Division (“FATD”), Office of Enforcement Programs and Services (“EPS”). 2 FATD supports the firearms industry and the general public by, among other things, responding to technical inquiries and by testing and evaluating firearms voluntarily submitted to ATF for classification under the GCA or NFA. There is no requirement that the firearms industry or the public submit firearms to ATF for evaluation of the firearm's proper classification under Federal law.

The statutory definitions of “firearm” under the GCA and the NFA are different. 3 In 1934, Congress passed the NFA in order to regulate certain “gangster” type weapons. 4 These weapons were viewed as especially dangerous and unusual, and, as a result, are subject to taxes and are required to be registered with ATF. 5 26 U.S.C. 5811, 5821, 5841, 5845. The Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), recognized these additional constraints as consistent with the Second Amendment. “We also recognize another important limitation on the right to keep and carry arms. [ United States v. ] Miller [, 307 U.S. 174 (1939),] said, as we have explained, that the sorts of weapons protected were those `in common use at the time.' 307 U.S., at 179, 59 S. Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” Id. at 627.

As a result of the different definitions in the GCA and NFA, classification of a weapon as a “firearm” under the GCA or the NFA affects how it is regulated under Federal law. For instance, a weapon classified as a “firearm” under only the GCA is subject to interstate controls, but is not subject to making or transfer taxes, and need not be registered in the National Firearms Registration and Transfer Record (“NFRTR”) as required by the NFA. See 18 U.S.C. 922(a)(1); 26 U.S.C. 5812, 5822, 5841, 5845. In contrast, weapons classified as NFA firearms are generally regulated under both statutes. This includes rifles having a barrel or barrels less than 16 inches in length (also known as “short-barreled rifles”) and shotguns having a barrel or barrels less than 18 inches in length (also known as “short-barreled shotguns.”). Under the NFA and implementing regulations, the term “rifle” is defined to mean “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger and shall include any such weapon which may be readily restored to fire a fixed cartridge.” 26 U.S.C. 5845(c); 27 CFR 479.11. In addition to the NFA requirements, the GCA also imposes specific restrictions on the transportation, sale, and delivery of “short-barreled rifles” and “short-barreled shotguns.” 18 U.S.C. 922(a)(4), (b)(4). Therefore, FATD's classifications of a particular firearm allow industry members to plan, develop, and distribute products in compliance with the law, thereby reducing their risk of incurring criminal or civil penalties, or the potential for costly corrective actions, including a possible recall by the manufacturer.

Generally, when FATD evaluates a submitted firearm sample, it examines its overall configuration, physical characteristics, and objective design features that are relevant under the statutory definitions of the GCA and NFA, and any other information that directly affects the classification of a particular firearm configuration as presented by that sample. The numerous configurations, materials, and designs of modern firearms require thorough examination and consideration to ensure proper classification. Even though firearms may have a similar appearance ( i.e., shape, size, etc.), an ATF classification of a firearm pertains only to the particular sample submitted because of the vast variations in submissions, the application of different relevant statutes and judicial interpretations of these statutes, the manufacturer's or maker's stated intent, 6 and the objective design features supporting or undercutting that stated intent that may be legally and technically significant.

In recent years, some manufacturers have produced and sold devices (“stabilizing braces”) designed to be attached to large or heavy pistols and that are marketed to help a shooter “stabilize” his or her arm to support single-handed firing. The first individual to submit a forearm brace to determine if it changed the classification of a “pistol” advised ATF that “the AR15 pistol is very difficult to control with the one-handed precision stance due to the forward weight of the weapon and the recoil of the 5.56, 7.62 or 7.62[sic]x39 NATO caliber rounds.”  7 There, the submitter explained that the intent of the brace was to facilitate one-handed firing of the AR-15 pistol for those with limited strength or mobility due to a disability, and to reduce bruising to the forearm when firing with one hand. According to this individual, the brace concept was inspired by the needs of combat veterans with disabilities who still enjoy recreational shooting but could not reliably control heavy pistols without assistance. However, whereas some accessories marketed as “stabilizing braces” may make it easier for a person to fire a weapon with one hand and would not result in a determination that the firearm with the attached brace is a “rifle,” there are other accessories also marketed as “stabilizing braces” that may be attached to a weapon platform for the purpose of circumventing the GCA and NFA prohibitions on the sale, delivery, transportation, or unregistered possession and taxation of “short-barreled rifles.” As described below, the addition of an accessory that is marketed as a “stabilizing brace” to a pistol does not guarantee that the resulting firearm will still be classified as a pistol. Indeed, classifying a firearm based on a limited or singular characteristic ( i.e. the marketing label of the manufacturer that the item is a “stabilizing brace), “has the potential to be significantly overinclusive or underinclusive.”  8

Because short-barreled rifles are among the firearms considered unusual and dangerous, subjecting them to regulation under the NFA, it is especially important that such weapons be properly classified. Indeed, firearms with “stabilizing braces” have been used in at least two mass shootings, with the shooters in both instances reportedly shouldering the “brace” as a stock, demonstrating the efficacy as “short-barreled” rifles of firearms equipped with such “braces.”  9

The GCA and NFA regulate “firearms” and, with limited exceptions, do not regulate individual components. Accordingly, ATF does not classify unregulated components or accessories alone under the GCA and NFA. 10 However, components or accessories, when attached to a firearm, can affect the classification of a firearm because: (1) A component's or an accessory's likely use may be relevant in assessing the manufacturer's or maker's purported intent with respect to the design of a firearm; and (2) the design of a component or an accessory may result in a firearm falling within a particular statutory definition. Examples include: (1) The attachment of a forward secondary grip  11 to a “pistol,” where the resulting firearm would no longer be designed to be held and fired with a single hand; and (2) a wallet holster  12 where the handgun can be fired while inserted, thus changing the classification of these handguns into an “any other weapon.” See 26 U.S.C. 5845(e). A “stabilizing brace,” of which there are several variations, is yet another example of a component or an accessory that may change the classification of the firearm to which it is attached.

ATF's longstanding and publicly known position is that a firearm does not evade classification under the NFA merely because the firearm is configured with a device marketed as a “stabilizing brace” or “arm brace.”  13 When a purported “stabilizing brace” and an attached weapon's objective design features indicate that the firearm is actually designed and intended to be fired from the shoulder, such weapon may fall within the scope of the NFA, requiring registration and payment of tax. Accordingly, ATF must evaluate on a case-by-case basis whether a particular firearm configured with a “stabilizing brace” bears the objective features of a firearm designed and intended to be fired from the shoulder and is thus subject to the NFA. The use of a purported “stabilizing brace” cannot be a tool to circumvent the NFA (or the GCA) and the prohibition on the unregistered possession of “short-barreled rifles.”

As the purpose of the NFA is “to regulate certain weapons likely to be used for criminal purposes,” United States v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992), ATF cannot ignore the design features of a firearm that place it within the scope of the NFA's regulation. This is the case even when a manufacturer characterizes or markets a firearm accessory in a manner that suggests a use that does not correspond to its objective design. The characterization of an accessory by the manufacturer, including assertions in advertising, is not dispositive. If ATF's evaluation of a submitted sample demonstrates that the objective design features of the firearm, as configured, do not support the manufacturer's purported intent and, in fact, suggest an altogether different intent, ATF will classify the firearm based on the objective design features, as Federal law requires. See Sig Sauer, Inc. v. Brandon, 826 F.3d 598, 601-02 (1st Cir. 2016).

It is estimated that manufacturers of stabilizing braces have sold 3 million stabilizing braces since 2013. ATF has observed that the development and production of rifled barrel weapons with “stabilizing braces” has become more prevalent in the firearms industry and that, consequently, requests for classifications for this kind of firearm design have also increased. ATF has classified several firearms equipped with “stabilizing braces” and the objective features used to make these classifications have been described in letters to the industry as well as in criminal cases. However, ATF has received criticism for not more widely publishing the criteria and for not publishing a definitive approach in the application of that criteria. Therefore, to aid the firearms industry and public in understanding the criteria that FATD considers when evaluating firearm samples that are submitted with an attached “stabilizing brace” or similar component or accessory, ATF proposes a worksheet to be entitled Factoring Criteria for Rifled Barrel Weapons with Accessories  14 commonly referred to as “Stabilizing Braces,” ATF Worksheet 4999 (“Worksheet 4999”). The purpose of this worksheet is to allow individuals or members of the firearms industry to evaluate whether a weapon incorporating a “stabilizing brace” that they intend to submit to FATD or offer for sale will be considered a “short-barreled rifle” or “firearm” under the GCA and NFA. FATD will use the criteria within ATF Worksheet 4999 and resulting point value when evaluating and classifying a submitted firearm.

These criteria and worksheet do not apply to firearms with a smooth bore that use shotgun ammunition. These types of firearms, commonly referred to as “pistol grip shotguns,” were never designed to be fired from one hand ( e.g., Mossberg Shockwave, Remington Tac- 14). ATF has always classified these weapons as GCA “ firearms,” not shotguns or pistols, as they do not incorporate a stock, like a shotgun, and are not designed to be fired from one hand, like a pistol. Thus, the addition of a “stabilizing brace” does not assist with single-handed firing, but rather redesigns the firearm to provide surface area for firing from the shoulder.

Similar to the Factoring Criteria for Weapons, ATF Form 4590 (“Form 4590”), which is used for the importation of pistols and revolvers, the proposed ATF Worksheet 4999 has a point system assigning a weighted value to various characteristics of the fully assembled firearm as configured when submitted for classification. A firearm that accumulates less than 4 points in Section II (Accessory Characteristics), and less than 4 points in Section III (Configuration of Weapon), will generally be determined not to be designed to be fired from the shoulder, unless there is evidence that the manufacturer or maker expressly intended to design the weapon to be fired from the shoulder. A firearm that accumulates 4 points or more in Section II or Section III will be determined to be designed and intended to be fired from the shoulder.

As a preliminary factor when evaluating a submitted sample, certain prerequisites ( i.e., weapon weight and overall length) will be applied to determine if the firearm will even be considered as a possible pistol or immediately determined to be a rifle, as defined by the applicable statutes. As discussed, “stabilizing braces” were originally marketed as intended to assist persons with disabilities and others lacking sufficient grip strength to control heavier pistols. Therefore, attaching a “stabilizing brace” to a typical pistol, where no assistance is necessary, or attaching one to a firearm so heavy or difficult to control that one-handed shooting is impractical or inaccurate, regardless of the manufacturer's stated intent, will change the design of the firearm into a rifle intended to be fired from the shoulder. Indeed, the purported “stabilizing brace” would have no design function other than to facilitate the firing of the weapon from the shoulder.

On the proposed Worksheet 4999, objective design characteristics or features that are common to rifles, features associated with shoulder stocks, and those features limiting the ability to use the “stabilizing brace” as an actual brace are assigned point values. These point values range from 0 to 4 points based upon the degree of the indicator, explained as follows:

As in ATF Form 4590, the point values associated with particular features or designs are based upon their relative importance in classifying the firearm under the law. In this case, design factors that are more likely to demonstrate a manufacturer's or maker's intent to produce a “short-barreled rifle” and market it as a “braced pistol” accrue more points than those that reveal less evidence. There are certain inherent features that may support a design as a “stabilizing brace” and also a shoulder stock. For example, a large amount of surface area on the rear of a purported “stabilizing brace” may indicate that it is designed to be fired from the shoulder and facilitate its use as a shoulder stock. However, that characteristic may also be the result of incorporating substantial stabilizing support that envelopes the shooter's arm ( e.g., the original SB15 “stabilizing brace”), allowing one-handed firing of a large pistol. These complexities cannot serve merely to exempt all firearms with purported “stabilizing braces” from classification as “rifles.” Indeed, the statutory definitions of “rifle” in the GCA and NFA describe that type of weapon as one “intended to be fired from the shoulder.” 18 U.S.C. 921(a)(7); 26 U.S.C. 5845(c). The ATF Worksheet 4999 is necessary to enforce the law consistently, considering the diversity of firearm designs and configurations.

As stated above, if the total point value of the firearm submitted is equal to or greater than 4—in either Section II or III—then the firearm, with the attached “stabilizing brace,” will be determined to be “designed or redesigned, made or remade, and intended to be fired from the shoulder,” or a “rifle” under the GCA and NFA. The firearm will be classified as a “short-barreled rifle” under the GCA and NFA, and as an NFA “firearm,” if the attached barrel is also less than 16 inches. The ATF Worksheet 4999 will provide the public and the firearms industry with a detailed methodology for ensuring legal compliance.

By using ATF Worksheet 4999, ATF is ensuring uniform consideration and application of these criteria when evaluating firearm samples with attached “stabilizing braces.” ATF also notes that some makers or manufacturers have received a classification of a “stabilizing brace” without it being attached to a firearm or may have received a classification for a firearm that would be considered a NFA firearm under these criteria. Therefore, any maker or manufacturer who has received a classification prior to the effective date of the rule is encouraged to resubmit the firearm with the attached “stabilizing brace” to ensure that the prior classification is consistent with this new rule and to avoid any possible criminal or tax penalties for the continued manufacture, transfer, or possession of a NFA firearm. As iterated above, FATD's classifications allow industry members to plan and develop products that comply with the law, and thereby reduce their risk of incurring criminal or civil penalties, or the need for corrective actions, including a recall by the manufacturer. ATF recognizes that these factors may affect industry members and members of the public, as they may manufacture or already own firearms with a “stabilizing brace” attached. ATF wants to assist affected persons and industry members and provides the additional information in this proposed rule to aid them in complying with Federal laws and regulations.

Given the public interest surrounding these issues, ATF is proposing to amend the definition of “rifle” in 27 CFR 478.11 and 479.11, respectively, by adding a sentence at the end of each definition. The new sentence would clarify that the term “rifle” includes any weapon with a rifled barrel and equipped with  15 an attached “stabilizing brace” that has objective design features and characteristics that indicate that the firearm is designed to be fired from the shoulder, as indicated on ATF Worksheet 4999.

Because the objective design features and characteristics considered will be on a new worksheet to be used by ATF, the Department is also publishing this proposed worksheet—ATF Worksheet 4999—as part of the preamble to this proposed rule and inviting interested members of the public and industry to provide comment. Similar to ATF Form 4590, used to determine if a firearm is sporting for purposes of importation, ATF proposes to use ATF Worksheet 4999 to determine if a firearm is designed and intended to be fired from the shoulder, as follows:

As a preliminary factor when evaluating a submitted sample, certain prerequisites will be applied to determine if the firearm, without the attached “stabilizing brace,” will even be considered a suitable weapon for the brace. As described above, “stabilizing braces” were originally marketed as being designed to assist persons with disabilities and others lacking sufficient grip strength to control heavier pistols. Accordingly, FATD will first examine the submitted sample's weapon weight and overall length.

Weapon Weight. Weapon weight is a key prerequisite in determining whether a “stabilizing brace” is appropriately used on a weapon. A traditional unloaded 1911-type pistol weighs approximately 39 ounces. Similarly, the polymer Glock 17 weighs 39 ounces when fully loaded. Weighing just over 2 pounds, these firearms are easily held and fired with one hand without the need for a “stabilizing brace,” as such “braces” are designed. This stands in contrast to the weight of the type of pistols or other firearms for which the “stabilizing brace” was designed to be attached. The AR-type pistol, a popular large handgun design, for example, weighs approximately 5 to 7 pounds ( i.e., 80 ounces to 112 ounces) based on its configuration. Such weight is more difficult to manipulate and to keep on target, indicating the “stabilizing brace” is in fact intended to assist one-handed fire. Based on the weights stated above, firearms weighing less than 64 ounces/4 pounds (weighed with unloaded magazine and accessories removed) are not considered weapons suitable for use with a “stabilizing brace” accessory because they are more easily held and fired with one hand without the need for a “stabilizing brace.”

Overall Length. The overall length of a weapon is relevant in classifying it as a “rifle” or a “pistol” because, as a firearm becomes excessive in length, it is increasingly difficult to fire with one hand. The AR-type pistol has an overall length between 18 and 25 inches, depending on barrel length (due to the necessary inclusion of the buffer tube). Other large frame pistols range between 14 and 22 inches, such as the AK-type DRACO, HK SP5, and CZ Scorpion EVO. Firearms possessing an overall length between 12 and 26 inches may be considered pistols for which a “stabilizing brace” could reasonably be attached to support one-handed fire. Firearms with an overall length of less than 12 inches are considered too short to indicate any need for a “stabilizing brace.” Conversely, firearms exceeding 26 inches in overall length are impractical and inaccurate to fire one handed, even with a “stabilizing brace,” due to imbalance of the weapon.

If the submitted firearm sample meets the prerequisites of weighing at least 64 ounces and having an overall length between 12 and 26 inches, FATD will analyze various attachment characteristics. For FATD to determine that a weapon with an attached “stabilizing brace” is not, in fact, designed and intended to be fired from the shoulder, the accessory must not have the characteristics of a shoulder stock. These characteristics are as follows:

Accessory Design. The design of the accessory when attached is a factor in determining whether the item is actually a “stabilizing brace” or is intended to be utilized as a stock, making the firearm designed to be fired from the shoulder. Specifically, because the NFA or GCA could be circumvented by substituting a “stabilizing brace” for a traditional shoulder stock on a “short-barreled rifle” (“stabilizing braces” sometimes share close similarities with known stocks), the more features a purported “stabilizing brace” has in common with known shoulder stock designs, the more points it will accumulate. “Stabilizing braces” that are not based on any known shoulder stock design will accrue zero points. “Stabilizing braces” that incorporate one or more shoulder stock design features ( e.g., adjustment levers or features that allow for the length of the device to be varied in a manner similar to an adjustable shoulder stock, sling mounts, 16 or hardened surfaces) will accrue 1 point. Lastly, “stabilizing braces” that are modified versions of known shoulder stock designs will accrue 2 points.

Rear Surface Area. Rear surface area is a design characteristic referring to the area on the rear of the purported “stabilizing brace.” Since the purpose of a “stabilizing brace” is to be secured to a shooter's forearm, there is no advantage for a manufacturer of “stabilizing braces” to include substantial surface area on the rear of the design unless the brace is attached to a firearm in order to redesign it to be fired from the shoulder. As with the other design characteristics, rear surface area is a consideration that must be evaluated in light of the overall design. Clearly, larger, more substantial “stabilizing braces” may have more surface area in which to shoulder a firearm. However, while smaller, less substantial “stabilizing brace” designs may have reduced surface area, this shouldering area may still be similar to known shoulder stock designs upon which they are based. The reduced contact area of the flaps to the shooter's forearm, and the surface area necessary to shoulder the weapon work in tandem to indicate whether the purported “stabilizing brace” is, in fact, a shouldering device.

Any “stabilizing brace” that incorporates a surface area feature that clearly makes it difficult to use as a shouldering device will accrue zero points. A “stabilizing brace” accessory that is designed with only a minimal rear surface area ( e.g., a “fin-type”) with which a weapon could possibly be shouldered will accrue 1 point. A “stabilizing brace” accessory that is designed with a rear surface area sufficient to shoulder the firearm, or approximating the rear surface of known shoulder stocks, which allows shouldering the firearm, will accrue 2 points. Finally, a “stabilizing brace” accessory that features material clearly designed to increase rear surface area to facilitate shoulder firing will accrue 3 points.

Adjustability. When ATF was first asked to classify an adjustable “stabilizing brace,” it responded that adjustability is “a feature commonly associated with butt stocks/shoulder stocks as well as firearms designed and intended to be fired from the shoulder.”  17 Although ATF ultimately determined that adjustability, in and of itself, is not determinative of a “stabilizing brace's” design function on a firearm, it remains a significant indicator that the device is designed and intended to be shouldered. Weapons that do not incorporate an adjustable “stabilizing brace” will accrue zero points, while “stabilizing brace” designs that are adjustable will accrue 2 points.

Stabilizing Support. To be effective, a “stabilizing brace” must provide support for the weapon through sufficient and stable contact with the shooter's forearm. Original “stabilizing brace” designs used a substantial amount of hardened material intended to contact a significant portion of the shooter's forearm, and a strap to secure the device and limit movement. Later iterations substantially reduced these design features, mimicking the outline of low-profile ( i.e., slim design) shoulder stocks. These later designs resulted in less contact with the forearm and instead rely heavily upon a Velcro strap to perform the function of the more substantial flaps present in earlier designs. While the strap may be used to tighten the minimal polymer flaps on top of the arm, these later designs were far less effective at providing stabilizing support—in contrast to the originally stated intent—and increase bruising to the forearm when firing with one hand. These later designs were also similar to the tactical shoulder stocks widely advertised and sold in the marketplace.

Stabilizing support is a vital characteristic because it provides evidence to evaluate the purported purpose of the attached device, which is to provide shooters with forearm support for firing large, heavy handguns. It is therefore important for ATF to consider the various “stabilizing brace” designs and the forearm support they provide. ATF has categorized these different “stabilizing brace” designs into three broad categories: Counterbalance, “Fin-type”, and “Cuff-type.”

Counterbalance designs  18 utilize the weight of the weapon as a lever to push the “stabilizing brace” into the forearm and provide stability for firing. These designs do not typically include a strap because the “stabilizing brace” itself contacts the side and bottom of the shooter's arm and is held in place by the weight of the firearm, using the shooter's hand as the fulcrum. However, whether characterized as a method of storage or otherwise, there is no forearm stabilizing purpose in a Counterbalance design that folds closed such that it can no longer be used as a “stabilizing brace.” Indeed, this type of design may create rear surface area such that the “stabilizing brace” may be suitable only as a shoulder stock when closed. The folding feature of the Counterbalance design stands in contrast to the purported intent of the device. This feature presents some evidence that a firearm equipped with a Counterbalance “stabilizing brace” is intended to be fired from the shoulder and therefore will accrue 1 point.

“Fin-type” designs incorporate a thin “blade” designed to rest against the shooter's arm, and feature a minimal, thin rear surface area. Although originally submitted with the explanation that these devices would incorporate an arm strap or that a sling could be wrapped around the shooter's arm and provide additional support, 19 the majority of these accessories are now marketed and sold without such a strap, thus virtually eliminating their effectiveness as a “stabilizing brace.” “Fin-type” accessories that do not incorporate an arm strap of suitable length or functionality will accrue 2 points, while those that incorporate an arm strap long enough to secure a person's forearm consistent with the purported intent will not accrue any points (zero).

“Cuff-type” designs are by far the most prevalent of all “stabilizing braces,” consisting of over two dozen different unique designs. “Cuff-type” “stabilizing braces” have evolved over the past decade, from non-adjustable, large articles into compact designs, clearly based on, or modified from, shoulder stocks. “Cuff-type” “stabilizing braces” vary greatly in design and the classification of firearms with these types of “stabilizing braces” is the most complex of the three categories. The original “cuff-type” designs incorporated large “arm flaps” to fully envelop the forearm and also a strap to limit movement of the cuff by tightening it. These designs were contoured so that a shooter's forearm could easily fit through the cuff and the strap would tighten around the cuff to provide additional arm support. These designs were clearly devised to secure the firearm to the shooter's forearm and were effective in doing so. Therefore, a “cuff-type” “stabilizing brace” that fully wraps around the shooter's forearm ( e.g., SB15/SBX-K) will not accrue any points (zero).

Later designs of the “cuff-type” braces possessed arm flaps that lacked contouring and did not provide a suitable opening for the shooter's forearm. These designs relied on softer materials that, while saving on production costs, mimicked the design of popular shoulder stocks and did not provide the same support for single-handed firing of large handguns. These designs could be secured to the shooter's forearm, but the brace rested on top of the arm, and relied on the Velcro strap to secure the firearm to the shooter's arm. Because they are less effective at the stated purpose of stabilizing one-handed firing, it is appropriate that weapons with such devices attached accrue points as these are more evidently designed and intended for another purpose, which is to be fired from the shoulder. Such “cuff-type” “stabilizing braces” that partially wrap around the shooter's forearm ( e.g., SOB/SB-Mini) will accrue 1 point. Finally, those “stabilizing braces” incorporating arm flaps that do not wrap around the shooter's forearm ( e.g., SBA3/SB-PDW), thereby providing no arm support, will accrue 2 points.

Further, with the later “split stock” design, which is another “cuff-type” design where the flaps lack arm contouring, “stabilizing brace” developers simply used known or existing stocks, added a slot down the center of the stock, or otherwise slightly altered the original shoulder stock design and contended that these were “stabilizing braces” like any other “cuff-type” design. However, the purpose of such designs is clearly indicated by the fact that they are far more effective when utilized as a shoulder stock than a “stabilizing brace.” These types of “stabilizing braces” are difficult to attach to the arm, provide minimal support in one-handed shooting, and are not effective to use as a “stabilizing brace.” As such, any “stabilizing brace” that is configured as a “split-stock” ( e.g., SBT/FS1913) will accrue 3 points.

This section will be used to evaluate the entire weapon including how the “stabilizing brace” is mounted to the firearm as well as the effectiveness of the brace in single-handed firing as opposed to firing from the shoulder. It will also consider all of the accessories that have been added to affect firing that will be used in conjunction with the “stabilizing brace.”

Length of Pull. Length of pull is a common measurement of firearms that describes the distance between the trigger and the center of the shoulder stock. This is a measurement that may be used to fit a firearm to a particular shooter. Generally, taller shooters require a longer length of pull and shorter shooters require a shorter length of pull. Adjustable shoulder stocks are commonly available. Patents, advertising material, and other resources make clear that adjustability is meant to facilitate changing the length of pull. 20 Such length of pull measurements are far less relevant when a pistol is involved because a shooter merely requires a device that reaches from the back of the firearm to the forearm. Far less variation exists between shooters in this way. A firearm with a “stabilizing brace” will accrue more points the further it is positioned rearward, indicating that it is intended for use as a shouldering device. Firearms with “stabilizing braces” that incorporate a length of pull of less than 10 1/2 inches will not accrue any points (zero). However, a length of pull that is between 10 1/2 but under 11 1/2 inches will accrue 1 point, while 11 1/2 but under 12 1/2 will accrue 2 points, 12 1/2 but under 13 1/2 will accrue 3 points, and a length of pull of 13 1/2 inches or more will accrue 4 points as this is a standard length of pull for rifles and is a decisive indicator that the firearm is intended to be fired from the shoulder.

Attachment Method. A “stabilizing brace's” attachment method often provides critical insight as to how a firearm is intended to be used. “Stabilizing braces” attached to a standard-length AR-type pistol buffer tube (extending 6 to 6 1/2 inches from the rear of the firearm) will not accrue any points (zero). Use of an AR-type pistol buffer tube with adjustment notches, an adjustable rifle buffer tube, or an adjustable PDW-type guide rail, will accrue 1 point as each indicates the ability to adjust the “stabilizing brace.” An extended AR-type pistol buffer tube (greater than 6 1/2 inches), folding adaptors, and the use of “spacers” are all indicators that the “brace” is being positioned to serve as a shouldering device because it increases the “length of pull,” thereby allowing a shooter to fire the weapon from the shoulder. Therefore, such firearm will accrue 2 points. Additionally, a shoulder stock that has been modified to incorporate a “stabilizing brace,” or any attachment method that results in an unusable aim-point when the “stabilizing brace” is attached is also a strong indicator the weapon is actually intended to be shoulder fired and will accrue 3 points.

“Stabilizing Brace” Modifications/Configuration. “Stabilizing brace” accessories that have been modified from their original configuration will accrue additional points. Any “cuff-type” or “fin-type” accessory, which incorporates an arm strap too short to wrap around the shooter's arm or is manufactured from an elastic material (eliminating stabilizing support), will accrue 2 points, as will a “fin-type” accessory lacking an arm strap. Further, if these modifications reconfigure the device into a shoulder stock, 4 points will be accrued. These modifications could include taping or strapping the arm flaps together on a “cuff-type” “stabilizing brace,” or adding shouldering surface to a “fin-type” “stabilizing brace.”

Peripheral Accessories. ATF has examined multiple firearms that include peripheral accessories, often added by the end user, that indicate the weapon is not designed and intended to be held and fired by a single hand. Such accessories include secondary grips, hand-stops, flip-up rifle-type sights, sights/scopes with limited eye-relief, and bipod/monopods.

Certain hand-stop attachments have been determined to protect a shooter's off-hand from being placed in front of the barrel and do not, in and of themselves, redesign a pistol to be fired with more than one hand. However, the presence of such an attachment is an indication the weapon may not be intended to be fired with a single hand, but rather intended to be fired from the shoulder. As such, the presence of a hand-stop will result in 2 points being accrued. Further, the presence of any secondary grip on a weapon with a “stabilizing brace” accessory changes the classification from a one-handed to a two-handed weapon, thereby disqualifying it from being classified as a “braced pistol,” and resulting in the subject firearm accruing 4 points.

Installed sights are also indicators as to the intended use of a firearm with an attached “stabilizing brace.” ATF has examined numerous AR-type firearms with “stabilizing brace” accessories that lack any sight or that incorporate rifle-type flip-up or back-up iron sights (“BUIS”), which are only partially usable when firing the weapon with one hand. As such, the presence of this type of sight or lack of any sight will accrue 1 point. Further, firearms that incorporate a reflex sight ( e.g., Red Dot) in conjunction with a flip-to-the-side (“FTS”) magnifier with limited eye relief (distance between the shooter's eye and rear of sight/scope) will accrue 2 points. Finally, any weapon incorporating a sight or scope that possesses an eye relief (distance between the shooter's eye and rear of sight/scope) incompatible with one-handed firing will accrue 4 points, as this is a decisive indicator that the “stabilizing brace” is being utilized as a shouldering device. For example, a sight would be incompatible with one-handed firing if it cannot be seen clearly when held at arm's length, thus showing the weapon must be shouldered in order for the sight to be used.

Firearms that incorporate or are designed to rest on bipod/monopod accessories generally are not designed and intended to be held and fired by a single hand. Much like hand-stops, bipods/monopods do not necessarily, in and of themselves, change the classification of a “pistol” when installed. However, bipods/monopods offer “stabilizing support” to the firearms to which they are attached, which is often counter-intuitive to an attached “stabilizing brace,” for example, Counterbalance “stabilizing brace” designs. Therefore, attachment of a bipod/monopod will accrue 2 points, regardless of the type of “stabilizing brace” attached.

Finally, any complete firearm with an installed “stabilizing brace” that weighs more than 120 ounces (7 1/2 pounds), incorporating end user accessories, will be considered too heavy to be fired with one hand, and will accrue 4 points. The firearm will be weighed as configured, with an unloaded magazine. The upper limit of 120 ounces takes into account that in order to fire the weapon, the shooter will insert a loaded magazine, which will typically add an additional 16-32 ounces. For example, a loaded 30-round AR-type magazine with .223 caliber ammunition weighs approximately 16 ounces (1 pound), while a loaded 30-round AK-type magazine with 7.62x39 caliber ammunition weighs approximately 29 ounces (1.8 pounds). Additionally, a 20-round magazine with .308 Winchester caliber ammunition weighs approximately 23 ounces (1.4 pounds). These are typical types of magazines used with one-handed “stabilized” firing. Firearms may reach a weight where the use of a “stabilizing brace” provides insufficient support for one-handed firing. Indeed, the existence of a “stabilizing brace” on firearms that are too heavy to be “intended to be fired by one hand” indicates that the purported “stabilizing brace” is actually intended as a shouldering device.

Even if a weapon accrues less than 4 points in each section, attempts by a manufacturer or maker to circumvent Federal law by attaching purported “stabilizing braces” in lieu of shoulder stocks may result in classification of those weapons as “rifles” and “short-barreled rifles.” While some manufacturers have recognized that there is a market advantage in designing and selling “short-barreled rifles” as “pistols” to customers seeking to avoid tax and registration requirements, “stabilizing braces” are not a method by which the Federal statutes may be circumvented. Therefore, efforts to advertise, sell, or otherwise distribute “short-barreled rifles” as such will result in a classification as a “rifle” regardless of the points accrued on the ATF Worksheet 4999 because there is no longer any question that the intent is for the weapon to be fired from the shoulder.

For the purpose of explaining how the factoring criteria in Worksheet 4999 would be implemented, ATF applied the Worksheet 4999 to three weapons with common “stabilizing braces” attached: An AR-type firearm with an SB-Mini accessory, an AR-type firearm with an SBA3 accessory, and an AR-type firearm with a Shockwave Blade accessory. The results of that process follow.

Applying the criteria in Section I, the above firearm was determined to weigh approximately 91 ounces and have an overall length of 25 1/8 inches, and thus would be a suitable host firearm for a “stabilizing brace” accessory. In Section II, the firearm would score a total of 3 points. The firearm with attached SB-Mini (sometimes referred to as the SBL-Mini) accessory would score 0 points in Accessory Design for not being based on a known shoulder stock design. In Rear Surface Area, the firearm would accrue 2 points for possessing a rear surface useful for shouldering the firearm. In Adjustability, the firearm would accrue 0 points for not being an adjustable design. Finally, in Stabilizing Support the firearm would accrue 1 point, as the flaps on the “Cuff-type” design only partially wrapped around a shooter's forearm. As the firearm would score 3 points in Section II, it would be able to proceed to Section III.

Under Section III, the firearm would score a total of 3 points. In Length of Pull, the firearm was determined to possess a length of pull of approximately 11 3/8 inches; thereby it would accrue 2 points. In Attachment Method, the firearm would accrue 0 points as the SB-Mini accessory is attached using a standard-length AR-type pistol buffer tube. In the “Stabilizing Brace” Modification category, the firearm was determined to have no modifications, and would accrue 0 points. Finally, in the Peripheral Accessories, the firearm possessed rifle-type flip-up sights, which would accrue 1 point. As evaluated, no other accessories were installed onto the firearm. The firearm, in this configuration, would score a total of 3 points in this section, and accordingly would be determined not to be designed and intended to be fired from the shoulder. Therefore, since each section is evaluated separately, the firearm, as submitted, would be classified as a pistol with an attached “stabilizing brace” accessory.

ATF evaluated an AR-type firearm with the SBA3 accessory, and would determine the above firearm to be designed and intended to be fired from the shoulder. Applying the criteria in Section I, the firearm was determined to weigh approximately 89 ounces and have an overall length of 25 1/8 inches, and thus would be a suitable host firearm for a “stabilizing brace” accessory. In Section II, the firearm would score a total of 8 points, precluding it from proceeding to Section III. The firearm with attached SBA3 would accrue 1 point in Accessory Design for incorporating known shoulder stock features, such as an adjustment lever, a Quick Detach (QD) sling mount, and incorporation of hardened polymer-type material. In Rear Surface Area, the firearm would accrue 3 points, as the SBA3 accessory has additional rear surface material added for use in shouldering. In Adjustability, the firearm would accrue 2 points for being an adjustable design. Finally, in Stabilizing Support the firearm would accrue 2 point, as the flaps on the “Cuff-type” design fail to wrap around a shooter's forearm.

Although an evaluation under Section III is not necessary as the firearm would have already been determined to be designed to be fired from the shoulder, the firearm was further evaluated for informational purposes. Under Section III, the firearm would score a total of 5 points. In Length of Pull, the firearm was determined to possess a length of pull of approximately 12 1/2 inches; thereby it would accrue 3 points. In Attachment Method, the firearm would accrue 1 point as the SBA3 accessory utilizes an M4-type rifle buffer tube. Under the “Stabilizing Brace” Modification category, the firearm was determined to have no modifications, and would accrue 0 points. Finally, in Peripheral Accessories, the firearm possessed rifle-type flip-up sights, and thereby would accrue 1 point. As evaluated, no other aftermarket components or accessories were installed onto the firearm. The firearm, in this configuration, would score a total of 5 points in this section, and would be determined to be designed and intended to be fired from the shoulder. Therefore, the evaluated firearm, as submitted, would be classified as a “rifle.” Further, having a rifled barrel less than 16 inches in length, the firearm would be properly classified as a “short-barreled rifle” and an NFA “firearm.”

ATF evaluated an AR-type firearm with the Shockwave Blade accessory, and would determine that the firearm, as configured, would be designed and intended to be fired from the shoulder. Applying the criteria in Section I, the firearm was determined to weigh approximately 93 ounces and have an overall length of 23 inches, and thus would be a suitable host firearm for a “stabilizing brace” accessory. In Section II, the submitted firearm would score a total of 5 points, precluding it from proceeding to Section III. The submitted firearm with attached Shockwave Blade accessory would accrue 0 points in Accessory Design for not incorporating known shoulder stock features, such as an adjustment lever. In Rear Surface Area, the firearm would accrue 1 point, as the Shockwave Blade accessory has minimized rear surface area discouraging shouldering. In Adjustability, the firearm would accrue 2 points because it is installed onto a KAK-type tube that incorporates adjustment notches for adjustability. Finally, in Stabilizing Support, the firearm would accrue 2 points for being submitted without an arm strap—greatly reducing any stabilizing support.

Although an evaluation under Section III would not be necessary as the firearm would already have been determined to be designed to be fired from the shoulder, the firearm was further evaluated for informational purposes. Under Section III, the firearm would score a total of 14 points. In Length of Pull, the firearm was determined to possess a length of pull of approximately 13 1/4 inches, and thereby would accrue 3 points. In Attachment Method, the firearm would accrue 1 point as the Shockwave Blade accessory utilizes a KAK tube with adjustment notches. Under the “Stabilizing Brace” Modification category, the firearm would accrue 2 points for lack of an arm strap. Finally, in Peripheral Accessories, the firearm would accrue an additional 8 points. The firearm was submitted with a secondary forward grip, a determinative indicator that the weapon is not designed to be held and fired with one hand; thereby it would accrue 4 points. Further, the firearm would accrue an additional 4 points due to it being submitted with a scope that has incompatible eye relief for one-handed firing (where the weapon must be fired from the shoulder in order to use the sight). The submitted firearm, as configured, would score a total of 14 points in this section, and would be determined to be designed and intended to be fired from the shoulder. Therefore, the firearm would be classified as a “rifle.” Further, having a rifled barrel less than 16 inches in length, the firearm would be properly classified as a “short-barreled rifle” and an NFA “firearm.”

As mentioned, ATF wants to assist affected persons or companies and is providing additional information to aid them in complying with Federal laws and regulations. Below are options for those persons that may be affected upon publication of a final rule.

In order to comply with the provisions of the NFA, current unlicensed possessors of a firearm equipped with a “stabilizing brace” and a barrel length of less than 16 inches that would qualify as a “short-barreled rifle” as indicated on the ATF Worksheet 4999 contained in this proposed rule would need to take one of the following actions before the effective date of a final rule.

(1) Permanently remove or alter the “stabilizing brace” such that it cannot be reattached, thus converting the firearm back to its original pistol configuration (as long as it was originally configured without a stock and as a pistol) and thereby removing it from regulation as a “firearm” under the NFA. Exercising this option would mean the pistol would no longer be “equipped with” the stabilizing brace within the meaning of the proposed rule.

(2) Remove the short barrel and attach a 16-inch or longer barrel to the firearm thus removing it from the provisions of the NFA.

(3) Destroy the firearm. ATF will publish information regarding proper destruction on its website, www.atf.gov.

(4) Turn the firearm into your local ATF office.

(5) Complete and submit an Application to Make and Register a Firearm, ATF Form 1 (“Form 1”). As part of the submission, the $200 tax payment is required with the application. Pursuant to 27 CFR 479.102, the name, city, and state of the maker of the firearm must be properly marked on the firearm. All other markings, placed by the original manufacturer, should be adopted. Proof of submission of the Form 1 should be maintained by all possessors. Documentation establishing submission of Form 1 includes, but is not limited to, eForm submission acknowledgement, proof of payment, or copy of Form 1 submission with postmark documentation.

In order to comply with the provisions of the NFA, Federal firearm licensees not having paid SOT as a Class 2 manufacturer under the NFA currently in possession of a firearm equipped with a “stabilizing brace” and a barrel length of less than 16 inches that would qualify as a “short-barreled rifle” under the ATF Worksheet 4999 contained in this proposed rule would be required to take one of the following actions before the effective date of a final rule.

(1) Options 1-4 listed above.

(2) Complete and submit an ATF Form 1. As part of the submission, the $200 tax payment is required with the application. Pursuant to 27 CFR 479.102, the name, city, and state of the maker of the firearm must be properly marked on the firearm. All other markings, placed by the original manufacturer, should be adopted. Proof of submission of the Form 1 should be maintained by all possessors. Documentation establishing submission of Form 1 includes, but is not limited to, eForm submission acknowledgement, proof of payment, or copy of Form 1 submission with postmark documentation. An importer, manufacturer, or dealer licensed under the GCA, but not the NFA, may not engage in the business of dealing in NFA firearms prior to compliance with the payment of the SOT.

In order to comply with the provisions of the NFA, manufacturers licensed under the GCA and having paid SOT as a Class 2 manufacturer under the NFA currently in possession of a firearm equipped with a “stabilizing brace” and a barrel length of less than 16 inches that would qualify as a “short-barreled rifle” as indicated on the ATF Worksheet 4999 contained in this proposed rule would be required to take one of the following actions before the effective date of a final rule.

(1) Options 1-4 listed above.

(2) Complete and submit an ATF Form 2, Notice of Firearms Manufactured or Imported.

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic benefits, environmental benefits, public health and safety effects, distributive impacts, and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The Office of Management and Budget (“OMB”) has determined that this proposed rule is a “significant regulatory action” that is economically significant under section 3(f) of Executive Order 12866, because the rule will have an annual effect on the economy of $100 million or more. Accordingly, the rule has been reviewed by OMB. As required by OMB Circular A-4 (available at http://www.whitehouse.gov ), ATF has prepared an accounting statement showing the classification of expenditures associated with the NPRM.

Table 2 summarizes the affects that this proposed rule would have on the industry and public.

One of the reasons ATF is considering this proposed regulation is the failure of the market to compensate for negative externalities caused by commercial activity. A negative externality can be the by-product of a transaction between two parties that is not accounted for in the transaction. A negative externality addressed by this proposed rule is that individuals and manufacturers may try to use purported “stabilizing braces” and affix them to firearms to circumvent the requirements of the NFA, which requires registration and taxes to be paid on the making and transfer of NFA weapons. Further, Congress chose to regulate these items more stringently, finding them to be especially dangerous to the community if not regulated since they are used for violence and criminal activity. See United States v. Gonzalez, No. 2:10-cr-00967 CW, 2011 WL 5288727, at *5 (D. Utah Nov. 2, 2011) (“Congress specifically found that `short-barreled rifles are primarily weapons of war and have no appropriate sporting use or use for personal protection.” (quoting S. Rep. No. 90-1501, at 28 (1968))). Therefore, if persons can circumvent the NFA by effectively making unregistered “short-barreled rifles” by using an accessory such as a “stabilizing brace,” these weapons can continue to proliferate and could pose an increased public safety problem given that they are easily concealable.

Based on subject matter experts (“SMEs”), ATF estimates that there are at least eight manufacturers of “stabilizing braces.” Anecdotal evidence from the manufacturers of the affected “stabilizing braces” indicates that the manufacturers have sold between 3 million and 7 million “stabilizing braces” between the years 2013 to 2020 or over the course of eight years. For the purposes of this analysis, ATF uses 3 million as the low estimate and primary estimate of affected “stabilizing braces.” This proposed rule may affect upwards of 1.4 million individuals, 13,210 Type 1 Federal Firearms Licensees (“FFLs”), and 3,881 Type 7 FFLs. For more details, please refer to Chapter 2 and each of the specific cost chapters of the standalone Regulatory Impact Analysis (“RIA”) for this proposed rule.

One option for current owners of firearms with “stabilizing braces” to comply with the proposed rule would be to turn in the firearm with the attached stabilizing brace to ATF for disposal. As the individual possessing the firearm would be permitted to simply remove the “stabilizing brace” and dispose of it, while retaining the firearm, ATF believes it would be unlikely that individuals would turn in their entire firearm into ATF to be destroyed. As ATF does not anticipate anyone choosing to turn in a firearm with an attached stabilizing brace into ATF for disposal, so no cost was attributed to this scenario. Because braces themselves, as firearm accessories or components, are generally not regulated items, ATF requests comments regarding the population, methodology, and scope of this scenario.

Another scenario is for individuals and FFLs to retain the “stabilizing brace” but convert the firearm into a firearm under the GCA rather than under the NFA. More specifically, they may convert the firearm into a long-barreled rife. ATF anticipates the minimum need is to purchase a long barrel and handrails. The average cost of a long barrel is $198. 21 The average cost for handrails is $212, 22 making the cost per firearm $410. 23 ATF estimates that the average affected individual may own approximately two firearms with an attached “stabilizing brace” while affected FFLs own an average of 3 firearms with an attached “stabilizing brace.” The total cost for this scenario is $125.1 million. For more details, please refer to Chapter 4 of the standalone RIA. Because braces themselves are generally not regulated items, ATF requests comments regarding the population, methodology, and scope of this scenario.

Individuals and FFLs could keep their firearms with attached “stabilizing brace” and apply to register under the NFA. Under this scenario, individuals and Type 1 FFL dealers would need to complete a Form 1 for each and every firearm affected by this proposed rule. Type 7 FFL manufacturers would complete a Form 2 for all their affected firearms in inventory. FFLs would then be able to sell these firearms with attached “stabilizing braces” as NFA weapons to individuals who wish to purchase them. The estimated cost for an individual to apply for two firearms with attached “stabilizing braces” would be $132. 24 The cost per Type 1 FFL to fill out 3 Form 1s is $985. 25 The cost per Type 7 FFL to fill out one Form 2 is $47. 26 The total industry cost to this scenario is a one-time cost of $51.3 million. While individuals and Type 1 FFLs would need to pay a $200 makings tax per firearm under the NFA, because this cost is a transfer payment from industry to the Federal Government, the transfer payment of these taxes is described under section 7.2 of the standalone RIA. For more details, please refer to Chapter 5 of the standalone RIA. Because braces themselves are generally not regulated items, ATF requests comments regarding the population, methodology, and scope of this scenario.

Under this scenario, all parties affected could simply permanently remove or alter their “stabilizing braces” as they see fit. However, ATF has determined this would be a loss of property. There are various types of “stabilizing braces” that would be affected by this proposed rule. We assume that the lost value to owners of a “stabilizing brace” would be at least as much as the cost of a new “stabilizing brace.” The average cost for a “stabilizing brace” is $236. 27 At 1.9 million “stabilizing braces” affected under this scenario, ATF estimates that the cost for disposing of currently existing “stabilizing braces” would be $443.9 million. 28

While these “stabilizing braces” have been purchased over the course of eight years, ATF uses that information to estimate the future sales of these affected “stabilizing braces” forgone. However, in lieu of promulgating a proposed regulation, ATF has been and will continue to use enforcement actions, to include criminal actions, against existing FFLs that manufacture firearms that do not comply with the intent of the law. ATF estimates that in the absence of this proposed rule, these individual enforcement actions against existing FFLs would change the market perception of these “stabilizing braces” and may affect the overall demand for these items regardless of the implementation of the proposed rule. Therefore, ATF estimates that the overall future demand for “stabilizing braces” would decrease by the estimated amount attributed to Type 1 and Type 7 FFLs, making the primary estimate of future “stabilizing braces” 211,178 per year. 29 Thus, ATF estimates that this scenario would mean a loss of $49.7 million in sales per year.

For more details, please refer to Chapter 6 of the standalone RIA. Because braces themselves are not regulated items, ATF requests comments regarding the population, methodology, and scope of this scenario.

This section summarizes the total costs of this proposed rule as described throughout this RIA. As noted in Chapter 5 of the standalone RIA, $151.0 million was not accounted for in Chapter 5 due to the NFA tax. Because it would be considered a transfer payment from the public to the Federal Government, it was not included in the societal cost of the rule. The annualized cost of this proposed rule would be $114.7 million and $125.7 million, at 3 percent and 7 percent, respectively. At this time, the government cost of this proposed rule was not included in this cost assessment.

This proposed rule would affect attempts by manufacturers and individuals to circumvent the requirements of the NFA and would affect the criminal use of weapons with a purported “stabilizing brace,” such as the shooting incident at the King Soopers in Boulder, Colorado. The purpose of this proposed rule is to amend ATF regulations to clarify when a rifle is “intended to be fired from the shoulder” and to set forth factors that ATF considers when evaluating firearms with an attached purported “stabilizing brace” to determine whether these are “rifles” under the GCA or NFA, and therefore whether they are “firearms” subject to the NFA. Congress placed stricter requirements on the making and possession of “short-barreled rifles” because it found them to pose a significant crime problem. Providing clarity to the public and industry on how ATF enforces the provisions of the NFA through this proposed rule significantly enhances public safety and could reduce the criminal use of such firearms, which are easily concealable from the public and first responders.

This section outlines the various alternatives considered when creating this proposed rule. For a more detailed analysis, please refer to Chapters 1 and 10 of the RIA.

Proposed Alternative —Factoring Criteria for Firearms with Attached Stabilizing Braces. This proposed alternative would amend the definitions of rifle in 27 CFR 478.11 and 27 CFR 479.11 to indicate that a rifle includes any weapon with a rifled barrel equipped with an accessory or component purported to assist the shooter to stabilize the weapon while shooting with one hand, commonly referred to as a “stabilizing brace,” that has objective design features and characteristics that facilitate shoulder fire as described in ATF Worksheet 4999.

Alternative 1 —No change alternative. This alternative has no costs or benefits because it is maintaining the existing status quo. This alternative was considered and not implemented because the NFA requires regulation of certain types of firearms above what is required under the GCA.

Alternative 2 —Simple Criteria. This alternative would provide very short and simple parameters in terms of how a “stabilizing brace” or stock would be defined, such as length only. This alternative would be easy for the public to read and understand. Where this was feasible, ATF has incorporated these simple and easy to follow parameters.

Alternative 3 —Grandfather all existing firearms with an attached “stabilizing brace.” In order to enforce the regulation, a complete grandfathering of existing firearms with an attached “stabilizing brace” is problematic in that manufacturers could continue to produce these items that are actually “rifles” under the statutory definition and subject to the NFA and market them as grandfathered firearms with an attached “stabilizing brace” not subject to the same regulation. This could potentially pose an enforcement issue that may not be resolved for years if not decades.

Alternative 4 —Guidance documents. This alternative would publish a guidance document instead of a rulemaking. While this alternative minimizes cost because compliance in this scenario would be voluntary, it does not meet the objectives outlined in this proposed rule as guidance documents do not have the same force and effect as a regulation. Guidance documents do not in and of themselves impose binding legal obligations. This would pose an enforcement issue. Moreover, issuing a proposed rule invites comments from the public, creating greater transparency and notice.

Alternative 5 —Forgiveness of the NFA Tax. This alternative would allow individuals and entities that currently have firearms with attached “stabilizing braces” to apply and register firearms under the NFA without paying the $200 making tax. In this scenario, the societal costs would be the same except there would be no transfer payment. Similar to the proposed rule, the bulk of this cost would be the foregone future revenue and the loss in property for individuals not applying under the NFA. 30 This scenario was rejected because “stabilizing braces” are not serialized and an individual or entity could merely register all firearms possessed with the intent of later obtaining a “stabilizing brace.” Further, although the “brace” is used on a particular weapon, an individual might register all pistols as SBRs and then attempt to utilize other stocks on these firearms.

This proposed rule will not have substantial direct effects on the States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132 (Federalism), the Attorney General has determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform).

In accordance with the Regulatory Flexibility Act (“RFA”), ATF prepared an Initial Regulatory Flexibility Analysis (“IRFA”) that examines the impacts of the proposed rule on small entities (5 U.S.C. 601 et seq. ). The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of fewer than 50,000 people.

ATF performed an IRFA of the impacts on small businesses and other entities from the Factoring Criteria for Firearms with Attached “Stabilizing Braces” proposed rule [2021R-08] . We performed this assessment using the cost information discussed in chapters 2 through 7 of the RIA.

Based on the information from this analysis, we found:

• ATF estimates that this proposed rule would potentially affect at least 8 manufactures of “stabilizing braces.” Based on SME commentary, it is anticipated 3 of them would go out of business;

• ATF also anticipates that this proposed rule would affect 17,091 FFLs, many of whom would be considered small businesses;

• However, the highest anticipated cost to would be if a Type 1 FFL had 24 “stabilizing braces” (the high estimate that a Type 1 FFL may have) and opted to file under the NFA. Should they own 24 arm braces and opt to apply under the NFA, ATF anticipates these FFLs would need to make $111,855 in revenue or less in order to incur an impact of 10 percent or more.

• There are no relevant government entities.

The RFA establishes that agencies must try to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this goal, agencies must solicit and consider flexible regulatory proposals and explain the rationale for their actions to assure that such proposals are given serious consideration. 31

Under the RFA, we are required to consider what, if any, impact this rule would have on small entities. Agencies must perform a review to determine whether a rule will have such an impact. Because the agency has determined that it will have a significant impact on a substantial number of small entities, the agency has prepared an initial regulatory flexibility analysis as described in the RFA.

Under section 603(b) of the RFA, the regulatory flexibility analysis must provide or address:

• A description of the reasons why action by the agency is being considered;

• A succinct statement of the objectives of, and legal basis for, the proposed rule;

• A description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;

• A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;

• An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule; and

• Descriptions of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the proposed rule on small entities.

One of the reasons ATF is considering this proposed rule is the failure of the market to compensate for negative externalities caused by commercial activity. A negative externality can be the by-product of a transaction between two parties that is not accounted for in the transaction. A negative externality addressed by this proposed rule is that individuals and manufacturers may try to use purported “stabilizing braces” and affix them to firearms to circumvent the requirements of the NFA, which requires registration and taxes to be paid on the making and transfer of NFA weapons. If persons can circumvent the NFA by effectively making unregistered “short-barreled rifles” by using an accessory such as a “stabilizing brace,” these weapons can continue to proliferate and could pose an increased public safety problem given that they are easily concealable.

The Attorney General is responsible for enforcing the GCA, as amended, and the NFA, as amended. This responsibility includes the authority to promulgate regulations necessary to enforce the provisions of the GCA and NFA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A), 7805(a). The Attorney General has delegated the responsibility for administering and enforcing the GCA and NFA to the Director of ATF, subject to the direction of the Attorney General and the Deputy Attorney General. See 28 U.S.C. 599A(b)(1); 28 CFR 0.130(a)(1)-(2). Accordingly, the Department and ATF have promulgated regulations implementing both the GCA and the NFA. See 27 CFR parts 478, 479.

This proposed rule would prevent persons from circumventing the NFA by using arm braces as stocks on “short-barreled rifles”. If persons can circumvent the NFA by effectively making unregistered “short-barreled rifles” by using an accessory such as a “stabilizing brace,” these weapons can continue to proliferate and could pose an increased public safety problem given that they are easily concealable.

This rule would affect primarily three manufacturers of certain “stabilizing braces” that have been primarily used as an alternative to a stock on a firearm. It is anticipated they would lose their business of manufacturing “stabilizing braces.”

This proposed rule would also affect FFLs that sell these affected arm braces, and other small retailers of firearm accessories that have invested in the arm brace industry. ATF anticipates that this proposed rule would affect 17,091 FFLs, many of whom would be considered small businesses.

Based on data gleaned from persons who turned in bump stocks, an FFL could have as many as 24 “stabilizing braces” affected by this proposed rule. The majority are likely to own only one. The cost for an FFL could range from $236 to dispose of one “stabilizing brace” to $11,185 to submit 24 applications under the NFA. ATF anticipates the majority of FFLs to experience a one-time cost of $236 for the disposal of one “stabilizing brace.” However, the highest anticipated cost would occur if an FFL had 24 “stabilizing braces” and opted to file under the NFA. Should they own 24 arm braces and opt to apply under the NFA, ATF anticipates that these FFLs would need to make $111,855 in revenue or less in order to incur an impact of 10 percent or more.

Assuming that the average Type 1 FFL has an average of 3 “stabilizing braces” in inventory and opts to dispose of them, the FFL would lose $707 per entity. This would mean that the FFL would need to make $7,071 or less to incur a significant impact.

This proposed rule does not duplicate or conflict with other Federal rules.

Please see Chapter 9 of the RIA on the discussion of alternatives. ATF did not create any alternatives specific to small businesses but notes that the majority of the affected businesses would be considered small.

This rule is likely to be considered major as it is economically significant and is projected to have an effect of over $100 million on the economy in at least the first year of the rule. See 5 U.S.C. 804.

This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995 (“UMRA”), Public Law 104-4, 109 Stat. 48, based on the proposed rule's impact on State, local, or Tribal governments. However, based on the analysis presented in the RIA, the Department concludes that the proposed rule would impose a Federal mandate on the private sector in excess of $100 million in expenditures in any one year. The RIA constitutes the written statement containing a qualitative and quantitative assessment of the anticipated costs, benefits, and alternatives required under section 202(a) of the UMRA (2 U.S.C. 1532).

This proposed rule would call for collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-20). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the information collection, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.

Under the provisions of this proposed rule, there would be a one-time increase in paperwork burdens of NFA applications. This requirement would be added to an existing approved collection covered by OMB control number 1140-0011 and 1140-0012.

Title: Application to Make and Register a Firearm.

OMB Control Number: OMB 1140-0011.

Proposed Use of Information: The ATF Form 1 (5320.1) is required to register an NFA firearm by any person, other than a qualified manufacturer, who wishes to make and register an NFA firearm. The implementing regulations are in 27 CFR 479.61-479.71. Under the provisions of 26 U.S.C. 5822, no person can make an NFA firearm until he or she has applied for and received approval from the Attorney General (delegated to ATF). Subject to certain exceptions, the making of an NFA firearm is subject to a tax of $200 (26 U.S.C. 5821). The proposed use of this information is to ensure that applicants are in compliance with relevant laws.

Description and Number of Respondents: Currently, there is a total of 25,716 respondents to this information collection. Of these 25,716 respondents, 477 of them are FFLs, 21,879 of them are trusts and legal entities, and 3,360 of them are individuals. For the purposes of this proposed rule, ATF estimates 1,679 FFLs and 375,000 individuals would submit a response due to this proposed rule. For the purposes of this proposed rule, the number of trusts and legal entities were not calculated.

Frequency of Response: One time.

Burden of Response: Currently, one time. For this proposed rule, 2 to 3 times, depending on the number of firearms.

Estimate of Total Annual Burden: The existing hourly burden is 102,808 hours, with an additional 3,020,148 hours due to this proposed rule.

Title: Notice of Firearms Manufactured or Imported.

OMB Control Number: OMB 1140-0012.

Proposed Use of Information: The Notice of Firearms Manufactured or Imported, ATF Form 2 (5320.2), is required of (1) a person who is qualified to manufacture NFA firearms, or (2) a person who is qualified to import NFA firearms to register manufactured or imported NFA firearm(s). In general, under the provisions of 26 U.S.C. 5822, no person can make an NFA firearm until he or she has applied for and received approval from the Attorney General of the United States (delegated to ATF). Subject to certain exceptions, the making of an NFA firearm is subject to a tax of $200. Section 5841(b) provides that each manufacturer and importer shall register each firearm manufactured or imported. Section 5841(c) provides that each manufacturer shall notify the Attorney General about the manufacture of a firearm, as provided by the regulations. These regulations further stipulate that each importer must obtain authorization as required by regulations, prior to importing a firearm. Section 5852(c) exempts a qualified manufacturer from payment of the making tax for manufactured firearms. The proposed use of this information is to ensure that applicants are in compliance with relevant laws.

Description and Number of Respondents: Currently, there are 14,384 FFLs with SOT.

Frequency of Response: One time.

Burden of Response: Currently, respondents will respond one time. This proposed rule may require a second response to incorporate a change in inventory.

Estimate of Total Annual Burden: Currently, the burden hours is 7,192. This rule would add an additional burden of 1,323 hours.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this proposed rule to the OMB for its review of the collections of information.

We ask for public comment on the proposed collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.

You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the requirements for this collection of information become effective, we will publish a notice in the Federal Register of OMB's decision to approve, modify, or disapprove the proposed collection.

ATF requests comments on the proposed rule from all interested persons. ATF specifically requests comments on the clarity of this proposed rule and how it may be made easier to understand. ATF also requests comments on the costs or benefits of the proposed rule and on the appropriate methodology and data for calculating those costs and benefits. Additionally, ATF requests comments on providing a tax forgiveness for the registration of “short-barreled rifles” pursuant to this proposed rule.

ATF recognizes that individuals may have submitted comments previously in response to a notice ATF published on December 18, 2020, titled “Objective Factors for Classifying Weapons with `Stabilizing Braces.' ” 85 FR 82516. However, the notice was withdrawn on December 31, 2020, prior to the comment period ending. 85 FR 86948. Moreover, this proposed rule incorporates different provisions than the December 2020 notice did, including a series of objective factors that are weighted in order to reflect objective decisions based on the design elements of each “stabilizing brace.” Comments received pursuant to that notice have not been, and will not be, considered as part of this proposed rule. Commenters will need to submit new comments in connection with this proposed rule.

All comments should reference this document's docket number ATF 2021R-08, be legible, and include the commenter's complete first and last name and full mailing address. ATF may not consider, or respond to, comments that do not meet these requirements or comments containing excessive profanity. ATF will retain all comments as part of this rulemaking's administrative record. ATF will treat all comments as originals and will not acknowledge receipt of comments. In addition, if ATF cannot read your comment due to technical difficulties and cannot contact you for clarification, ATF may not be able to consider your comment.

ATF will carefully consider all comments, as appropriate, received on or before the closing date, and will give comments after that date the same consideration if practical to do so, but assurance of consideration cannot be given except as to comments received on or before the closing date.

In addition to the broader requests for comment outlined above, ATF is interested in specific comments from the public that may help address the following questions:

1. How do current owners of stabilizing braces anticipate that they will choose to comply with this rulemaking if it is finalized? Are owners more likely to permanently remove or alter their braces, turn in their firearms with a brace to ATF, or register them with ATF as NFA firearms and pay the associated tax? Would owners be more likely to register their firearms instead of choosing one of the other options if the tax on the registration is forgiven?

2. How do manufacturers anticipate they will comply with this rulemaking, if finalized? Will manufacturers stop making stabilizing braces, alter their stabilizing braces in some manner so they don't meet the criteria in this rulemaking, or market their braces differently?

3. Has ATF selected the most appropriate criteria for determining whether a stabilizing brace has made a firearm subject to the NFA? Do commenters have additional criteria that should be considered?

ATF will make all comments meeting the requirements of this section, whether submitted electronically or on paper, available for public viewing at ATF and on the internet through the Federal eRulemaking Portal, and subject to the Freedom of Information Act (5 U.S.C. 552). Commenters who do not want their name or other personal identifying information posted on the internet should submit comments by mail or facsimile, along with a separate cover sheet containing their personal identifying information. Both the cover sheet and comment should reference this docket number (2021R-08). For comments submitted by mail or facsimile, information contained on the cover sheet will not appear when posted on the internet but any personal identifying information that appears within a comment will not be redacted by ATF and will appear on the internet.

A commenter may submit to ATF information identified as proprietary or confidential business information. The commenter shall place any portion of a comment that is proprietary or confidential business information under law on pages separate from the balance of the comment with each page prominently marked “PROPRIETARY OR CONFIDENTIAL BUSINESS INFORMATION” at the top of the page.

ATF will not make proprietary or confidential business information submitted in compliance with these instructions available when disclosing the comments that it received but will disclose that the commenter provided proprietary or confidential business information that ATF is holding in a separate file to which the public does not have access. If ATF receives a request to examine or copy this information, it will treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). In addition, ATF will disclose such proprietary or confidential business information to the extent required by other legal process.

Submit comments in any of three ways (but do not submit the same comment multiple times or by more than one method). Hand-delivered comments will not be accepted. Comments not satisfying these requirements may not be considered by ATF.

• Federal eRulemaking Portal: ATF recommends that you submit your comments to ATF via the Federal eRulemaking portal at www.regulations.gov and follow the instructions. Comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that is provided after you have successfully uploaded your comment.

• Mail: Send written comments to the address listed in the ADDRESSES section of this document. Written comments should appear in minimum 12-point font size (.17 inches), include the commenter's first and last name and full mailing address, be signed, and may be of any length. Mailed comments will be treated as timely if they are postmarked on or before the last day of the comment period.

• Facsimile: Submit comments by facsimile transmission to (202) 648-9741. Faxed comments must:

1. Be legible and appear in minimum 12-point font size (.17 inches);

2. Be on 8 1/2 ″ x 11″ paper;

3. Be signed and contain the commenter's complete first and last name and full mailing address; and

4. Be no more than five pages long.

Any interested person who desires an opportunity to comment orally at a public hearing should submit his or her request, in writing, to the Director of ATF within the 90-day comment period. The Director, however, reserves the right to determine, in light of all circumstances, whether a public hearing is necessary.

Copies of this proposed rule and the comments received in response to it will be available through the Federal eRulemaking portal, at www.regulations.gov (search for RIN 1140-AA55), and for public inspection by appointment during normal business hours at: ATF Reading Room, Room 1E-063, 99 New York Ave. NE, Washington, DC 20226; telephone: (202) 648-8740.

For the reasons discussed in the preamble, 27 CFR parts 478 and 479 are proposed to be amended as follows:

The Southern Maryland Boat Club of Leonardtown, MD, has notified the Coast Guard that it will be conducting the Southern Maryland Boat Club Wharf Summer Regatta from 9:30 a.m. to 4 p.m. on July 31, 2021, and from 10:15 a.m. to 4 p.m. on August 1, 2021. The high-speed boat event consists of approximately 50 participating vintage and historic race boats—including runabouts, v-bottoms, tunnel hulls, and hydroplanes—12 to 21 feet in length. The boats will be participating in an exhibition, operating in heats along a marked racetrack-type course 1 mile in length and 150 feet in width, located in Breton Bay and McIntosh Run at Leonardtown, MD. The Regatta is not a competition, but rather a demonstration of the vintage race craft. Hazards from the high-speed power boat demonstration event include participants operating within and adjacent to designated navigation channels and interfering with vessels intending to operate within those channels, as well as operating within approaches to local public boat landings. The Captain of the Port (COTP) Maryland-National Capital Region has determined that potential hazards associated with the high-speed power boat event would be a safety concern for anyone intending to operate within certain waters of Breton Bay and McIntosh Run at Leonardtown, MD, operating in or near the event area.

The purpose of this rulemaking is to protect event participants, non-participants, and transiting vessels before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The Coast Guard is requesting that interested parties provide comments within a shortened comment period of 15 days instead of the more typical 30 days for this notice of proposed rulemaking. The Coast Guard believes the 15-day comment period still provides for a reasonable amount of time for interested parties to review the proposal and provide informed comments on it while also ensuring that the Coast Guard has time to review and respond to any significant comments and has final rule in effect in time for the scheduled event.

The COTP Maryland-National Capital Region proposes to establish special local regulations from 7 a.m. on July 31, 2021, through 6 p.m. on August 1, 2021. The special local regulation would be enforced from 7 a.m. through 6 p.m. on July 31st and 7 a.m. through 6 p.m. on August 1st. The regulated area would cover all navigable waters of Breton Bay and McIntosh Run, immediately adjacent to Leonardtown, MD, within an area bounded by lines drawn shoreline to shoreline, to the south along latitude 38°16′43″ N and to the west along longitude 076°38′30″ W.

This proposed rule provides additional information about areas within the regulated area, and the restrictions that would apply to mariners. These areas include a “Race area”, “Buffer area”, “Milling area” and “Spectator area”. They lie within an area bounded to the south by a line drawn along latitude 38°16′43″ N and bounded to the west by a line drawn along longitude 076°38′30″ W, located in Breton Bay and McIntosh Run, at Leonardtown, MD.

The proposed duration of the special local regulations and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after the high-speed power boat event, scheduled from 9:30 a.m. until 4 p.m. on July 31, 2021, and from 10:15 a.m. until 4 p.m. on August 1, 2021. The COTP and the Coast Guard Event Patrol Commander (PATCOM) would have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area. When hailed or signaled by an official patrol, a vessel or person in the regulated area would be required to immediately comply with the directions given by the COTP or Event PATCOM. If a person or vessel fails to follow such directions, the Coast Guard may expel them from the area, issue them a citation for failure to comply, or both.

Except for Southern Maryland Boat Club Regatta participants and vessels already at berth, a vessel or person would be required to get permission from the COTP or Event PATCOM before entering the regulated area. Vessel operators can request permission to enter and transit through the regulated area by contacting the Event PATCOM on VHF-FM channel 16. Vessel traffic would be able to safely transit the regulated area once the Event PATCOM deems it safe to do so. A person or vessel not registered with the event sponsor as a participant or assigned as official patrols would be considered a spectator. Official Patrols are any vessel assigned or approved by the Commander, Coast Guard Sector Maryland-National Capital Region with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

If permission is granted by the COTP or Event PATCOM, a person or vessel would be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels would be required to operate at a safe speed that minimizes wake while within the regulated area. Official patrol vessels would direct everyone other than participants while within the regulated area. Spectators are only allowed inside the regulated area if they remain within a designated spectator area. Only participants and official patrols are allowed within the race area and milling area.

The regulatory text we are proposing appears at the end of this document.

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

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

This regulatory action determination is based on size, duration and time of year of the regulated area, which would impact a small designated area of Breton Bay and McIntosh Run for 22 total enforcement hours. This waterway supports mainly recreational vessel traffic, which at its peak, occurs during the summer season. Although this regulated area extends across the entire width of the waterway, the rule would allow vessels and persons to seek permission to enter the regulated area, and vessel traffic able to do so safely would be able to transit the regulated are as instructed by Event PATCOM. Such vessels must operate at safe speed that minimizes wake and not loiter within the navigable channel while within the regulated area. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area.

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

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area lasting for eight hours. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

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

We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Documents mentioned in this NPRM as being available in the docket, and public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive. If you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 100 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On October 1, 2015, EPA promulgated a revision to the ozone NAAQS (2015 ozone NAAQS), lowering the level of both the primary and secondary standards to 0.070 parts per million (ppm). 1 Section 110(a)(1) of the CAA requires states to submit, within 3 years after promulgation of a new or revised standard, SIP submissions meeting the applicable requirements of section 110(a)(2). 2 One of these applicable requirements is found in section 110(a)(2)(D)(i)(I), otherwise known as the good neighbor provision, which generally requires SIPs to contain adequate provisions to prohibit in-state emissions activities from having certain adverse air quality effects on other states due to interstate transport of pollution. There are four so-called “prongs” within CAA section 110(a)(2)(D)(i); section 110(a)(2)(D)(i)(I) contains prongs 1 and 2. Under prongs 1 and 2 of the good neighbor provision, a SIP for a new or revised NAAQS must contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting air pollutants in amounts that will significantly contribute to nonattainment of the NAAQS in another state (prong 1) or interfere with maintenance of the NAAQS in another state (prong 2). EPA and states must give independent significance to prong 1 and prong 2 when evaluating downwind air quality problems under CAA section 110(a)(2)(D)(i)(I). 3

We note that EPA has addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) with respect to prior ozone NAAQS in several regional regulatory actions, including the Cross-State Air Pollution Rule (CSAPR), which addressed interstate transport with respect to the 1997 ozone NAAQS as well as the 1997 and 2006 fine particulate matter standards, 4 the Cross-State Air Pollution Rule Update (CSAPR Update), and, most recently, the Revised CSAPR Update for the 2008 ozone NAAQS. 5 6

Through the development and implementation of CSAPR and other regional rulemakings pursuant to the good neighbor provision, 7 EPA, working in partnership with states, developed the following four-step interstate transport framework to address the requirements of the good neighbor provision for the ozone NAAQS: (1) Identify downwind air quality problems; (2) identify upwind states that impact those downwind air quality problems sufficiently such that they are considered “linked” and therefore warrant further review and analysis; (3) identify the emissions reductions necessary (if any), considering air-quality and cost 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) adopt permanent and enforceable measures needed to achieve those emissions reductions.

EPA has released several documents containing information relevant to evaluating interstate transport with respect to the 2015 ozone NAAQS. First, on January 6, 2017, EPA published a notice of data availability (NODA) with preliminary interstate ozone transport modeling with projected ozone design values (DVs) for 2023 using a 2011 base year platform, on which we requested public comment. 8 In the NODA, EPA used the year 2023 as the analytic year for this preliminary modeling because that year aligns with the expected attainment year for Moderate ozone nonattainment areas for the 2015 ozone NAAQS. 9 On October 27, 2017, we released a memorandum (2017 memorandum) containing updated modeling data for 2023, which incorporated changes made in response to comments on the NODA, and noted that the modeling may be useful for states developing SIPs to address good neighbor obligations for the 2008 ozone NAAQS. 10 On March 27, 2018, we issued a memorandum (March 2018 memorandum) noting that the same 2023 modeling data released in the 2017 memorandum could also be useful for identifying potential downwind air quality problems with respect to the 2015 ozone NAAQS at step 1 of the four-step interstate transport framework. The March 2018 memorandum also included the then newly available contribution modeling results to assist states in evaluating their impact on potential downwind air quality problems for the 2015 ozone NAAQS under step 2 of the interstate transport framework. EPA subsequently issued two more memoranda in August and October 2018, providing additional information to states developing good neighbor SIP submissions for the 2015 ozone NAAQS concerning, respectively, potential contribution thresholds that may be appropriate to apply in step 2 of the framework, and considerations for identifying downwind areas that may have problems maintaining the standard at step 1 of the framework. 11

On October 30, 2020, in the Notice of Proposed Rulemaking for the Revised CSAPR Update, EPA released and accepted public comment on updated 2023 modeling that used a 2016 emissions platform developed under EPA/Multi-Jurisdictional Organization (MJO)/state collaborative project as the primary source for the base year and future year emissions data. 12 On March 15, 2021, EPA signed the final Revised CSAPR Update using the same modeling released at proposal. 13 Although Maine and New Hampshire relied on the modeling included in the March 2018 memo to develop their SIP submissions as EPA had suggested, EPA now proposes to primarily rely on the updated and newly available 2016 base year modeling in evaluating these submissions. By using the updated modeling results, EPA is using the most current and technically appropriate information as the primary basis for this proposed rulemaking. EPA's independent analysis, which also evaluated historical monitoring data, recent DVs, and emissions trends, found that such information provides additional support and further substantiates the results of the 2016 base year modeling as the basis for this proposed rulemaking. Section III of this notice and the Air Quality Modeling technical support document (TSD) included in the docket for this proposal contain additional detail on this modeling. 14

In the CSAPR, CSAPR Update, and the Revised CSAPR Update, EPA used a threshold of one percent of the NAAQS to determine whether a given upwind state was “linked” at step 2 of the 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 EPA, therefore, concluded the state would 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, considering both air quality and cost considerations, to determine what, if any, emissions might be deemed “significant” and, thus, must be eliminated under the good neighbor provision. EPA is proposing to rely on the one percent threshold for the purpose of evaluating Maine and New Hampshire's contributions to nonattainment or maintenance of the 2015 ozone NAAQS in downwind areas.

Several D.C. Circuit court decisions address the issue of the relevant analytic year for the purposes of evaluating ozone transport air-quality problems. On September 13, 2019, the D.C. Circuit issued a decision in Wisconsin v. EPA, remanding the CSAPR Update to the extent that it failed to require upwind states to eliminate their significant contribution by the next applicable attainment date by which downwind states must come into compliance with the NAAQS, as established under CAA section 181(a). 938 F.3d 303, 313.

On May 19, 2020, the D.C. Circuit issued a decision in Maryland v. EPA that cited the Wisconsin decision in holding that EPA must assess the impact of interstate transport on air quality at the next downwind attainment date, including Marginal area attainment dates, in evaluating the basis for EPA's denial of a petition under CAA section 126(b). Maryland v. EPA, 958 F.3d 1185, 1203-04 (D.C. Cir. 2020). The court noted that “section 126(b) incorporates the Good Neighbor Provision,” and, therefore, “EPA must find a violation [of section 126] if an upwind source will significantly contribute to downwind nonattainment at the next downwind attainment deadline. Therefore, the agency must evaluate downwind air quality at that deadline, not at some later date.” Id. at 1204 (emphasis added). EPA interprets the court's holding in Maryland as requiring the Agency, under the good neighbor provision, to assess downwind air quality by the next applicable attainment date, including a Marginal area attainment date under CAA section 181 for ozone nonattainment. 15 The Marginal area attainment date for the 2015 ozone NAAQS is August 3, 2021. 16 Historically, EPA has considered the full ozone season prior to the attainment as supplying an appropriate analytic year for assessing good neighbor obligations. While this would be 2020 for an August 2021 attainment date (which falls within the 2021 ozone season running from May 1 to September 30), in this circumstance, when the 2020 ozone season is wholly in the past, it is appropriate to focus on 2021 to address good neighbor obligations to the extent possible by the 2021 attainment date. EPA does not believe it would be appropriate to select an analytical year that is wholly in the past, because the agency interprets the good neighbor provision as forward looking. See 86 FR 23054 at 23074; see also Wisconsin, 938 F.3d at 322. Consequently, in this proposal EPA will use the analytical year of 2021 to evaluate Maine and New Hampshire's good neighbor obligations with respect to the 2015 ozone NAAQS.

On February 6, 2020, Maine submitted a SIP revision addressing the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements for the 2015 ozone NAAQS.

Maine relied on the results of EPA's modeling for the 2015 ozone NAAQS contained in the March 2018 memorandum to identify downwind nonattainment and maintenance receptors that may be impacted by emissions from sources in Maine in the year 2023. These results indicate Maine's greatest impact on any potential downwind nonattainment or maintenance receptor would be 0.01 ppb in Suffolk County, New York (monitoring site 361030002). Maine compared this value to a screening threshold of 0.70 ppb, representing one percent of the 2015 ozone NAAQS. Because Maine's impacts to receptors in downwind states are projected to be less than 0.70 ppb in 2023, Maine concluded that emissions from sources within the state will not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state.

On September 5, 2018, New Hampshire submitted a SIP revision addressing the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements for the 2015 ozone NAAQS. This “good neighbor SIP” was included as an enclosure in the state's infrastructure SIP for the same NAAQS.

New Hampshire relied on the results of EPA's modeling for the 2015 ozone NAAQS contained in the March 2018 memorandum to identify downwind nonattainment and maintenance receptors that may be impacted by emissions from sources in New Hampshire in the year 2023. These results indicate New Hampshire's greatest impact on any potential downwind nonattainment or maintenance receptor would be 0.06 ppb in Queens County, New York (monitoring site 360810124). New Hampshire compared this value to a screening threshold of 0.70 ppb, representing one percent of the 2015 ozone NAAQS. Because New Hampshire's impacts to receptors in downwind states are projected to be less than 0.70 ppb in 2023, 17 New Hampshire concluded that emissions from sources within the state will not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state.

New Hampshire's September 2018 good neighbor SIP submission also lists New Hampshire's regulations for controlling emissions of ozone precursors as well as its regional emissions-control strategies. These include Env-A 619, Prevention of Significant Deterioration (PSD), and Env-A 618, Nonattainment New Source Review (NNSR) (82 FR 24057; May 25, 2017); and Env-A 2300, Mitigation of Regional Haze (77 FR 50602; August 22, 2012).

Maine and New Hampshire's SIP submissions both rely on analysis of the year 2023 to show that each state does not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state. However, given the holdings in Wisconsin and Maryland, analysis of that year is no longer sufficient where the next attainment date for the 2015 ozone NAAQS is in 2021. 18 Nonetheless, the analysis EPA conducted for the 2021 analytical year corroborates the conclusion reached in each state's submission.

As stated in Section I of this notice, in consideration of the holdings in Wisconsin and Maryland, EPA's analysis relies on 2021 as the relevant attainment year for evaluating a State's good neighbor obligations with respect to the 2015 ozone NAAQS using the four-step interstate transport framework. In step 1, we identify locations where the Agency expects there to be nonattainment or maintenance receptors for the 2015 8-hour ozone NAAQS in the 2021 analytic future year. Where EPA's analysis shows that an area or site does not fall under the definition of a nonattainment or maintenance receptor in 2021, that site is excluded from further analysis under EPA's four step interstate transport framework. 19 For areas that are identified as a nonattainment or maintenance receptor in 2021, we proceed to the next step of our four-step framework by identifying the upwind state's contribution to those receptors.

EPA's approach to identifying ozone nonattainment and maintenance receptors in this action is consistent with the approach used in previous transport rulemakings. EPA's approach gives independent consideration to both the “contribute significantly to nonattainment” and the “interfere with maintenance” prongs of section 110(a)(2)(D)(i)(I), consistent with the D.C. Circuit's direction in North Carolina. 20

For the purpose of this proposal, EPA identifies nonattainment receptors as those monitoring sites that are projected to have average design values that exceed the NAAQS and that are also measuring nonattainment based on the most recent monitored design values. This approach is consistent with prior transport rulemakings, such as CSAPR Update, where EPA defined nonattainment receptors as those areas that both currently monitor nonattainment and that EPA projects will be in nonattainment in the future analytic year. 21

In addition, in this proposal, EPA identifies a receptor to be a “maintenance” receptor for purposes of defining interference with maintenance, consistent with the method used in the CSAPR and upheld by the D.C. Circuit in EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 136 (D.C. Cir. 2015). 22 Specifically, monitoring sites with a projected maximum design value in 2021 that exceeds the NAAQS are considered maintenance receptors. EPA's method of defining these receptors takes into account both measured data and reasonable projections based on modeling analysis.

Recognizing that nonattainment receptors are also, by definition, maintenance receptors, EPA often uses the term “maintenance-only” to refer to receptors that are not also nonattainment receptors. Consistent with the methodology described above, monitoring sites with a projected maximum design value that exceeds the NAAQS, but with a projected average design value that is below the NAAQS, are identified as maintenance-only receptors. In addition, those sites that are currently measuring ozone concentrations below the level of the applicable NAAQS, but are projected to be nonattainment based on the average design value and that, by definition, are projected to have a maximum design value above the standard are also identified as maintenance-only receptors.

To evaluate future air quality in steps 1 and 2 of the interstate transport framework, EPA is using the 2016 and 2023 base case emissions developed under EPA/MJO/state collaborative emissions modeling platform project as the primary source for base year and 2023 future year emissions data for this proposal. 23 Because this platform does not include emissions for 2021, EPA developed an interpolation technique based on modeling for 2023 and measured ozone data to determine ozone concentrations for 2021. To estimate average and maximum design values for 2021, EPA first performed air quality modeling for 2016 and 2023 to obtain design values in 2023. The 2023 design values were then coupled with the corresponding 2016 measured design values to estimate design values in 2021. Details on the modeling, including the interpolation methodology, can be found in the Air Quality Modeling TSD, found in the docket of this proposal.

To quantify the contribution of emissions from specific upwind states on 2021 8-hour design values for the identified downwind nonattainment and maintenance receptors, EPA first performed nationwide, state-level ozone source apportionment modeling for 2023. The source apportionment modeling provided contributions to ozone from precursor emissions of anthropogenic nitrogen oxides (NO X ) and volatile organic compounds (VOCs) in each state, individually. The modeled contributions were then applied in a relative sense to the 2021 average design value to estimate the contributions in 2021 from each state to each receptor. Details on the source apportionment modeling and the methods for determining contributions in 2021 are in the Air Quality Modeling TSD in the docket.

The 2021 design values and contributions were examined to determine if Maine and New Hampshire, considered separately, contribute at or above the threshold of one percent of the 2015 ozone NAAQS (0.70 ppb) to any downwind nonattainment or maintenance receptor. The data  24 indicate that the highest contribution in 2021 from Maine to a downwind nonattainment or maintenance receptor is 0.01 ppb to a maintenance receptor in Fairfield County, Connecticut (monitoring site 90013007), and, from New Hampshire, is 0.10 ppb to the same downwind receptor. The data also show modeled ozone contributions from Maine and New Hampshire to the design values of a larger set of monitoring sites (independent of attainment status) and indicate that the highest projected contribution in 2021 from Maine to any of these sites is 0.12 ppb to monitors in Putnam and Westchester Counties in New York (monitoring sites 360790005 and 361192004; #307 and #314 on the Design Values and Contributions spreadsheet), and, from New Hampshire, is 1.46 ppb to the monitor in Knox County, Maine (monitoring site 230130004; #226 on the Design Values and Contributions spreadsheet). While New Hampshire's modeled contribution to the Knox County monitor exceeds one percent of the 2015 ozone NAAQS, EPA's analysis at step 1 does not identify the Knox County monitor as a downwind area that may have problems maintaining the 2015 ozone NAAQS. The Knox County monitor's projected design value in 2021 is 57.4 ppb.

EPA also analyzed emissions trends for ozone precursors in Maine and New Hampshire to support the findings from the air quality analysis. In evaluating emissions trends, we first reviewed the information submitted by each state and then reviewed additional information available to the Agency. We focused on state-wide emissions of nitrogen oxides and volatile organic compounds. 25 26 Emissions from mobile sources, electric generating units (“EGUs”), industrial facilities, gasoline vapors, and chemical solvents are some of the major anthropogenic sources of ozone precursors. This evaluation looks at both past emissions trends, as well as projected trends.

As shown in Table 1, for Maine, between 2016 and 2023, annual total NO X and VOC emissions are projected to decline by 38 percent and 20 percent, respectively. For New Hampshire, between 2016 and 2023, annual total NO X and VOC emissions are projected to decline by 36 percent and 15 percent, respectively. The projected reductions are a result of the implementation of existing control programs that will continue to decrease NO X and VOC emissions in Maine and New Hampshire, as indicated by EPA's most recent 2021 and 2023 projected emissions.

As shown in Table 2, onroad and nonroad mobile source emissions collectively comprise a large portion of each state's total anthropogenic NO X and VOC. For example, in 2019, NO X emissions from mobile sources in Maine comprised 52 percent of total NO X emissions and 48 percent of total VOC emissions. In New Hampshire for that same year, NO X emissions from mobile sources comprised 54 percent of total NO X emissions and 45 percent of total VOC emissions.

The large decrease in NO X emissions between 2016 emissions and projected 2023 emissions in each state is primarily driven by reductions in emissions from onroad and nonroad mobile sources. EPA projects that both VOC and NO X emissions will continue declining out to 2023 as newer vehicles and engines that are subject to the most recent, stringent mobile source standards replace older vehicles and engines. 27

In summary, there is no evidence to suggest that the overall emissions trend demonstrated in Table 1 in either state will suddenly reverse or spike in 2021 compared to historical emissions levels or those projected for 2023. Further, there is no evidence that the projected ozone precursor emissions trends out to 2023 and beyond would not continue to show a decline in emissions. In addition, EPA's normal practice is to include in our modeling only changes in NO X or VOC emissions that result from final regulatory actions. Any potential changes in NO X or VOC emissions that may result from possible future or proposed regulatory actions are speculative.

This downward trend in emissions in Maine and New Hampshire adds support to the air quality analyses presented above for each state, and indicates that the contributions from emissions from sources in Maine and New Hampshire to ozone receptors in downwind states will continue to decline and, for each state, remain below one percent of the NAAQS.

Thus, EPA's air quality and emissions analyses indicate that emissions from Maine or from New Hampshire, with each state considered individually, will not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state in 2021.

As discussed in Sections II and III, Maine and New Hampshire have each concluded that emissions from sources in their individual state will not contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state. Each state submission reached this conclusion by relying on information for the analytic year 2023. As discussed above, the Wisconsin and Maryland decisions of the D.C. Circuit have made clear that the good neighbor analysis for the 2015 ozone NAAQS must focus on the next attainment date, and that date is the Marginal area attainment date in 2021. Therefore, EPA conducted additional analysis to determine whether each state's conclusions would remain valid in 2021 rather than 2023. EPA's evaluation of measured and monitored data, including interpolating values to generate a reasonable expectation of air quality and contribution values in 2021, as discussed in Section IV, is consistent with conclusions made by Maine and New Hampshire that, with each state considered separately, emissions from sources in each state will not contribute to nonattainment or interference with maintenance of the 2015 ozone NAAQS in any other state. Because our analysis corroborates each state's conclusion that emissions from within its state do not contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in another state, we propose to approve the Maine and New Hampshire submissions as meeting CAA section 110(a)(2)(D)(i)(I).

EPA is soliciting public comments on this notice. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This is a summary of the Commission's Report and Order and Further Notice of Proposed Rulemaking (FNPRM), ET Docket No. 13-115, FCC 21-44, adopted and released on April 22, 2020. This document is available by downloading the text from the Commission's website at https://www.fcc.gov/document/fcc-seeks-make-spectrum-available-commercial-space-launches-0. 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 Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In this FNPRM, the Commission continue its efforts to support commercial space launch operations and federal use of commercial space services. Specifically, the Commission proposes to add a non-Federal allocation in the 2025-2110 MHz band to support such operations, and the Commission seeks further comment on adding non-Federal allocations for commercial space launch operations in the 420-430 MHz, 2200-2290 MHz, and 5650-5925 MHz bands. The Commission further proposes to adopt a licensing framework and a set of technical rules to govern space launch operations services in the 2200-2290 MHz band, as well as the other three bands if they are ultimately allocated for commercial space launch purposes. In addition, the Commission seeks comment on whether to amend any of the rules applicable to space launch operations in the 2360-2395 MHz bands. The Commission seeks comment on various licensing frameworks to authorize a variety of telemetry, tracking, and command operations between launch vehicles and ground stations during the initial launch and reentry phases of space launch operations. The Commission also seeks comment on whether there are additional measures that should be considered in order to facilitate radio-frequency licensing of certain other types of space launch operations that may be currently addressed through experimental licensing, including communications between launch vehicles and satellites and communications in connection with certain payload activities. Finally, the Commission seeks to refresh the record on the matter of expanding Federal use of certain non-Federal FSS and MSS bands, including removing the footnote restriction on federal earth stations accessing federal space stations operating in the 399.9-400.05 MHz band.

2. In a 2013 Notice of Proposed Rulemaking and Notice of Inquiry ( NPRM ), the Commission proposed to provide a primary allocation of spectrum in three bands for non-Federal use during space launches: 420-430 MHz, 2200-2290 MHz, and 5650-5925 MHz. The NPRM also proposed to add either a Federal Fixed Satellite Service (FSS) or Mobile Satellite Service (MSS) allocation or a footnote to allow Federal access to several frequency bands for satellite services that currently only support commercial satellite systems. The NPRM also addressed a 2012 NTIA request to change a footnote in the U.S. Table to enable Federal space stations to operate in the 399.9-400.05 MHz MSS band.

3. 420-430 MHz Band. The 420-430 MHz band is used during launches from Federal launch sites to transmit a flight termination signal to a launch vehicle, if necessary. This signal will cause the launch vehicle to self-destruct if it goes off course and poses a danger to a populated area. The NPRM sought comment on whether the Commission should make a co-primary non-Federal Aeronautical Mobile allocation for the 420-430 MHz band and whether it should add a footnote to the U.S. Table restricting use of the allocation to self-destruct signals ( i.e., flight termination signals) during launches. The Commission has not received any STA requests for this band during space launches. This band is heavily used by Federal users, including the Department of Defense (DoD), for radiolocation applications.

4. The Commercial Spaceflight Federation notes that there has not been a need for this band by commercial companies because launches have occurred at government facilities which transmit the flight termination signals. However, the Commercial Spaceflight Federation claims that, as launches increasingly occur at private spaceports, operators will need licenses for this band. The New Mexico Spaceport Authority agrees that commercial operators will want to operate their own flight safety systems. SpaceX may need access to the band in the future. Orbital ATK endorses adding a co-primary non-Federal allocation for 421 MHz rather than adding the allocation for the entire band. Blue Origin takes no position on use of this band and indicates that it does not use this band during launches.

5. The Commission seeks further comment on whether to adopt a footnote to the U.S. Table which adds a primary non-Federal Aeronautical Mobile allocation to the 420-430 MHz band, requires coordination of assignments with NTIA, and restricts use of the band to pre-launch testing of launch vehicles and sending flight termination signals to launch vehicles during launches. Because launches to date have occurred at Federal ranges, access to this band by commercial launch providers has not been necessary. The Commission expects this may change as companies transition towards using commercial launch sites in the future. Thus, adding this Aeronautical Mobile allocation may be critical for protecting the public during space launches. Because the intended use of this band is for safety-of-life applications, the Commission proposes to add the Aeronautical Mobile allocation on a primary basis so that its use will be on an interference-protected basis. Further, the Commission proposes to add this Aeronautical Mobile allocation for the entire 420-430 MHz band, rather than limit it to just 421 MHz as suggested by Orbital ATK, because the Commission cannot predict what frequencies will be available at the future at launch sites. As NTIA permits range safety operations ( i.e., flight termination systems) across 420-450 MHz, should the Commission expand the Aeronautical Mobile allocation to 420-450 MHz? Regardless of the frequency range of the allocation, use of the band would need to be coordinated with NTIA. In this FNPRM, the Commission also proposes licensing and service rules for use of this band, should the Commission adopt this proposed allocation.

6. While the U.S. Table does not have a Mobile allocation in the 420-430 MHz band, the International Table has a Mobile, except aeronautical mobile allocation, for all regions. Therefore, aeronautical mobile use of the 420-430 MHz band is contrary to the International Table. Consequently, other countries may permit radio services in the band that are not compatible with aeronautical mobile use of this band. If the Commission adopts an Aeronautical Mobile allocation for this band, does it need to place restrictions on use of the allocation to prevent harmful interference occurring to radio services in other countries? Such restrictions could include prohibition of operations near international borders, power limitations, or use of directional antennas to direct transmission away from international borders.

7. 2025-2110 MHz Band. The NPRM addressed three frequency bands commonly used by commercial space launch entities at that time. However, since the NPRM was adopted in 2013, the commercial space launch industry has also begun to use the 2025-2110 MHz band to transmit control signals to launch vehicles. The Commission has granted access to this band during space launches using STAs issued under its Part 5 experimental licensing rules. The Commission expects that use of this band by the commercial space launch industry will continue to grow in the future and that establishing a permanent allocation for these services will provide more reliable access to this band than the STA process. The Commission therefore proposes to amend the Allocation Table by adding a co-primary non-Federal space operation (Earth-to-space) allocation to the 2025-2110 MHz band.

8. The 2025-2110 MHz band is currently allocated for both Federal and non-Federal fixed and mobile use. The largest non-Federal use of the band is for the Broadcast Auxiliary Service (BAS) operating under Part 74 of the Commission's rules. BAS stations make it possible for television and radio stations to transmit program material from the site of a breaking news story or a major event to the studio for inclusion in a broadcast program. BAS stations are also used to transmit programming material from a studio to the broadcasting transmitter or between television broadcast stations. BAS shares the 2025-2110 MHz band with the Cable Television Relay Service (CARS) and the Local Television Transmission Service (LTTS), which “have technically and operationally similar stations[.]” The Commission's rules encourage BAS, CARS, and LTTS users of this band to consult with local coordination committees in selecting their frequencies to avoid causing harmful interference with each other's operations.

9. Since 2000, the 2025-2110 MHz band has been allocated for Federal space operation, space research, and earth exploration satellite services. While these Federal allocations are co-primary, these uses in general are not allowed to constrain BAS, CARS, and LTTS deployment and must be coordinated with these non-Federal operations. Federal use of these allocations continues to increase as Federal users seek to increase resiliency and deploy large constellations of smaller satellites. To date, sharing of this band between Federal operations and BAS, CARS, and LTTS users has been successful.

10. Federal primary fixed and mobile service allocations were added to the 2025-2110 MHz band in 2014. Footnote US92 restricts Federal use of the band to the military services and places specific requirements upon federal systems to facilitate sharing of the band with incumbent Federal and non-Federal services. The military services' transition plans include the relocation of certain terrestrial systems from the 1755-1780 MHz band into the 2025-2110 MHz band. The process of relocating Federal systems into the band is currently on-going.

11. Multiple commercial space launch operators either have used or have indicated that they plan to use the 2025-2110 MHz band to support their launch operations. SpaceX has used this band to send command signals to the first stage of its Falcon 9 launch vehicle as it lands either on a recovery drone ship or on land. Blue Origin has used this band to transmit command signals to its suborbital New Shepard launch vehicle and plans to use it in the future for orbital launches of its New Glenn launch vehicle. Rocket Lab has used this band to conduct ground testing for its Electron Launch Vehicle and plans to use it in the future to command the third stage of its launch vehicles. These operations have been conducted using STAs issued by the Commission under its Part 5 experimental rules. The Commission expects that use of this band by the commercial space launch industry will continue to grow in the future. The Commission seeks comment on the projected future use of this band for space launch activities.

12. To support the commercial space launch industry, the Commission proposes to amend the Allocation Table by adding a co-primary non-Federal Space Operation (Earth-to-space) (space-to-space) allocation to the 2025-2110 MHz band. Given the heavy use of this band by BAS, CARS, and LTTS, and the increasing Federal use of the band, including for Federal space systems, these service rules will need to provide for coordination with these operations. As the Commission expects the number of launches to continue to increase in the future, the Commission believes that adopting this approach will be more feasible than relying on the current STA process. The Commission seeks comment on this allocation proposal.

13. The Commission proposes to allow use of the entire 2025-2110 MHz band without any restriction on where licensed launches may occur. The Commission notes that for the Space Operation allocation for the 2200-2290 MHz band, the Commission considered whether the use of that spectrum should be restricted to launches at Federal ranges. In addition, the Space Operation allocation the Commission is adopting for the 2200-2290 MHz band for space launches restricts non-Federal space operations to specific portions of the band. Both of these restrictions were requested by NTIA to facilitate coordination with the existing Federal users of this bands. The Commission seeks comment on whether limiting launches to certain frequencies or locations is needed to facilitate coordination between non-Federal and Federal users. Should use of this band for space launches be limited to only portions of the band? Considering the restrictions placed on Federal uses of the band, should these same restrictions be placed on new non-Federal uses of the band? Are other restrictions also required to protect the incumbent and incoming Federal uses of the band? Is there any reason to restrict use of the band to launches conducted at specific locations such as at Federal ranges or FAA licensed launch sites given that the Commission are not placing any such restrictions on use of the Space Operation allocation the Commission are adopting for the 2200-2290 MHz band? Considering the Federal and non-Federal uses of the band, would it serve the public interest to adopt any of these restrictions? The Commission notes that many recent launches using this band have been conducted from either Federal ranges or FAA licensed launch sites. For example, SpaceX has launched from Cape Canaveral, Florida and Rocket Lab has conducted launch testing at Wallops Island, Virginia. However, Blue Origin has launched from Van Horn, Texas, which is neither an FAA licensed launch site or at a Federal range. Should use of the Space Operation allocation be limited to space launches or are there other kinds of space operation uses that may be appropriate for this band? Are there any other restrictions that are needed to facilitate sharing of the band between the non-Federal space operation service and the other users of the band, in particular BAS, CARS, and LTTS?

14. 2200-2290 MHz Band. In addition to a Space Operation allocation, both the International Table and the Federal Table include a Mobile Service allocation allowing aeronautical mobile use. Would it serve the public interest to modify the non-Federal allocations for the 2200-2290 MHz band to include a Mobile Service allocation in this band to facilitate licensing of commercial space launch operations in the commercial space launch operations context? The Commission notes that three frequencies in the 2360-2395 MHz band are available for both Federal and non-Federal use for telemetry and telecommand of launch and reentry vehicles under a Mobile allocation and its Part 87 rules. This use is identical to the launch vehicle telemetry for which space launch providers have obtained STAs for the 2200-2290 MHz band. To harmonize the allocation status and the applicable service rules of the 2200-2290 MHz and 2360-2395 MHz bands, it may be appropriate to adopt a Mobile allocation for the 2200-2290 MHz band in addition to the Space Operation allocation the Commission has adopted. Therefore, the Commission seeks comment on whether the Commission should add a non-Federal secondary Mobile allocation to the 2200-2290 MHz band. What are the benefits and costs of subjecting commercial space launch operations to both terrestrial mobile service and space operations regulatory frameworks? Does the Commission need to define the boundary between, when and how mobile service rules or space operations rules apply to space launch operations, if both allocations together cover the operations? If so, would it serve the public interest to make this boundary depend on the stage of the launch vehicle—earlier or later stages? How should the Commission define such stage boundaries? If the Commission were to divide space launch operations into stages, how should the Commission define space launch vehicles and should such a definition include any spacecrafts carrying payloads to their orbital locations? What are the domestic and international legal and policy ramifications of adopting such a clear dual allocation and service rules approach where the communications emanating from the same equipment would be considered under both terrestrial and space services allocations, and be regulated under one or the other, depending on the launch vehicle's position in its trajectory and distance from the earth? Alternatively, should the Commission regulate a space launch vehicle's operations throughout its trajectory under a single rule part? Commenters should discuss how the Commission can provide the most flexibility with the least regulatory burden while serving the public interest.

15. If the Commission adopts a non-Federal secondary Mobile allocation, the Commission proposes to implement this allocation by modifying the footnote to the U.S. Table that the Commission has adopted to implement the Space Operation allocation in the 2200-2290 MHz band. Similar to the non-Federal space operations allocation, this mobile allocation footnote would restrict use of the band to pre-launch testing and space launch operations and require coordination of use of the band with NTIA prior to each launch. Are all of these restrictions appropriate for the Mobile allocation in this band? The Federal Mobile allocation for the 2200-2290 MHz band is currently restricted to line-of-sight use only, including aeronautical telemetry; excludes flight testing of manned aircraft; and prohibits the introduction of high-density mobile systems. Would it be appropriate to adopt any of these limitations on use of the non-Federal Mobile allocation? Are any other limitations on use of the non-Federal Mobile allocation necessary?

16. The Space Operation Service is defined in the Commission's rules as being “concerned exclusively with the operation of spacecraft, in particular space tracking, space telemetry, and space telecommand.” As the non-Federal Space Operation allocation the Commission has adopted in the Report and Order is limited to use for pre-launch testing and during space launch operations the use of this allocation is limited compared to what would normally be permitted under a Space Operation allocation. The Commission seeks comment on whether a greater range of non-Federal space operations should be permitted under the Space Operation allocation in this band— i.e., should the restrictions the Commission has placed on use of this allocation be modified, reduced, or eliminated? Expanding the scope of this allocation could be especially useful for permitting communication between spacecraft during orbital and suborbital missions. For example, SpaceX has used the 2200-2290 MHz band for communication between its Dragon spacecraft and the International Space Station. As the commercial space industry continues to develop, the need for communication with and tracking of spacecraft is likely to increase. Is there a need for a non-Federal space operation (space-to-space) allocation in this frequency band, similar to the Federal allocation? In considering modifying any restrictions on non-Federal use of this band, the Commission must keep in mind the need to protect Federal operations in this band. How could permitting greater non-Federal space operations activities in the band be done while preventing harmful interference to Federal operations?

17. The non-Federal Space Operation allocation the Commission has adopted for the 2200-2290 MHz band is limited by US96 to four subbands: 2208.5-2213.5 MHz, 2212.5-2217.5 MHz, 2270-2275 MHz, and 2285-2290 MHz. Recent space launches that have accessed this band for telemetry using STAs have used different portions of the band than these four subbands. The fact that the channels used for these launches were successfully coordinated with NTIA indicates that it may be possible to provide additional flexibility to space launch operators rather than limiting access to only these four subbands. To provide this flexibility, the Commission proposes to remove the restriction in US96 limiting use of the band for non-Federal space operations to the four subbands. Instead, under this proposal use of the Space Operation allocation during pre-launch testing and space launch operations could potentially occur in any portion of the 2200-2290 MHz band. Because of the heavy use that Federal agencies make of this band, use of this band for launches will need to be coordinated with NTIA. As Federal use of this band is likely to evolve over time, this coordination with NTIA will be necessary on a launch-by-launch basis.

18. While the Commission is proposing to remove the limitation on use of the Space Operation allocation to four subbands, it may still be appropriate to place some limitations on the spectrum that may be used during launches because the band will be shared with Federal users. The subbands currently in US96 are each 5 megahertz wide with a total of 20 megahertz of spectrum potentially available for use for each launch. Should non-Federal use of this allocation be limited to channels with a necessary bandwidth of 5 megahertz as is currently required by US96? Should there be a limit on the total amount of spectrum available for use during a launch? If the Commission places limitations on the bandwidth in each channel or total bandwidth per launch, should there also be a means for these limits to be waived if there is sufficient justification? If the Commission leaves in place the restriction on non-Federal use of the 2200-2290 MHz band to a limited set of subbands, should the subbands be adjusted to reflect the fact that recent launches have used channels outside of these subbands?

19. While the NPRM proposed that the Commission adopt a primary Space Operation allocation for the 2200-2290 MHz band, the Commission has instead adopted a secondary allocation. Several commenters advocate adoption of a primary allocation claiming that it will lead to streamlined licensing, eliminate repeated licensing work, require less coordination, and provide greater certainty with respect to approvals. Although the secondary allocation the Commission adopts is clearly preferable to the current STA process, adopting a primary allocation may nevertheless be the most appropriate long-term band management policy. Adopting a primary allocation would place commercial launch operators on an equal footing with other users of the band and provide greater certainty to incentivize investment as the commercial space industry continues to expand with more frequent launches, privately developed launch facilities, and manned space flights. Therefore, the Commission seeks comment on whether it should adopt a primary Space Operation allocation for the 2200-2290 MHz band. The Commission notes that even if it adopts a primary non-Federal allocation for this band, individual launches would still have to be coordinated with NTIA because of the heavy existing Federal use of the band.

20. 5650-5925 MHz Band. The 5650-5925 MHz band is used for radar tracking of launch vehicles during launches. This often involves placing a radar transponder on the launch vehicle, which responds to a ground-based radar signal that transmits tracking information back to the tracking station. Because launches in the past have occurred at Federal ranges, the radar tracking stations used during the launches have been Federal facilities. However, commercial launch providers have obtained experimental STAs for transponders on the launch vehicles that operate in the band.

21. The NPRM made two alternate proposals for providing commercial entities access to this spectrum for radar tracking during launches. Under the first proposal, the NPRM proposed to add a footnote to the U.S. Table providing a primary non-Federal radiolocation service allocation. The footnote would restrict use of the allocation to launches and pre-launch testing and would require coordination with NTIA. In a second proposal, the NPRM proposed to add a primary non-Federal radiolocation service allocation to the 5650-5925 MHz band with a footnote containing the same restrictions. The NPRM asked a number of questions concerning use of the band, such as the operational requirements for radar tracking during space launches, whether other radiolocation bands could be used, and if there are compatibility issues with Intelligent Transportation Systems that are primary in a portion of the band.

22. In response to the 2013 NPRM, the Commercial Spaceflight Federation recommended adding a non-Federal allocation to the 5650-5925 MHz band, noting that the band is used by Federal radar facilities to track launches from government-owned facilities. The New Mexico Spaceport Authority applauded the Commission in recognizing the potential to mix Federal and commercial equipment within one system or service and requests that the Commission design future regulations to promote interoperability between Federal and commercial systems. The Aerospace Industries Association argued that no allocation is needed for the band, given that the band is used for radar tracking from the Federal launch range, which is managed by the range. Orbital ATK endorsed adding a non-Federal allocation to the band at 5765 MHz. No commenters who have discussed the needs of the commercial space industry with Commission staff in the past year have indicated an interest in using this band during space launches. In recent years, only one licensee has obtained licenses for use of the 5650-5925 MHz band.

23. The Commission seeks further comment on whether to adopt a non-Federal Radiolocation allocation for the 5650-5925 MHz band by adding a footnote to the U.S. Table. Should such an allocation be limited to use for pre-launch testing and tracking of launch vehicles? Radar transponders transmitting from commercial launch vehicles require licenses from the Commission, even if the vehicle is launched from a Federal or commercial launch site and tracked by a Federal ground-based radar tracking facility. As there currently is no non-Federal Radiolocation allocation for this band, the Commission issues experimental STAs to authorize operations in the 5650-5925 MHz band to support commercial launches. This case-by-case procedure may become more burdensome as the commercial launch industry grows. However, given the apparent low interest in this band for radar tracking during launches, there may be no need to adopt this allocation. Hence, the Commission seeks comment on the number of launches likely to need access to this band in the future. Given that recent STAs issued for use of this band have used only the 5758-5772 MHz portion of the band, should the allocation be limited only to a portion of the band? Should the allocation be primary or secondary? Should use of the band be limited to specific locations such or Federal ranges or FAA-licensed launch sites?

24. In addition to having an allocation for Federal radiolocation, the 5650-5925 MHz band is shared with other services. The 5850-5925 MHz band has a primary non-Federal Mobile allocation with use of this allocation in the 5895-5925 MHz band limited to the Intelligent Transportation System radio service. Because launch facilities are generally not located near public roads and the signal emanates from high in the sky, ensuring a weak signal at ground level, the Commission expects negligible, if any, impact on Intelligent Transportation Systems in the upper portion of the band. Is this expectation reasonable? If use of this band for space launches would impact Intelligent Transportation Systems in the upper portion of the band, are there specific accommodations the Commission could take to minimize that impact? The 5650-5895 MHz band is currently used by Unlicensed National Information Infrastructure (U-NII) devices operating under the Commission's Part 15 rules. U-NII devices operating in the 5650-5725 MHz portion of the band employ dynamic frequency selection (DFS) to detect the presence of radar signals to avoid causing interference. Will DFS successfully enable coexistence between U-NII devices and space launch radars in this portion of the band? In the 5725-5850 MHz band, U-NII devices operate without the use of DFS. Are there steps the Commission could take to minimize interference between space launch radar operations and U-NII and ITS operations in the upper portion of the band? If interference between these operations is likely, should the Commission limit this new radar allocation to the frequencies below 5725 MHz? The 5850-5925 MHz band is also allocated to the fixed-satellite service in the uplink direction with use limited to international, inter-continental systems. Given the limited number of earth stations and limited number of launch sites, the Commission expect that sharing would be feasible though coordination. The Commission seeks comment on this view.

25. Licensing and Technical Rules for Space Launch Operations. In this section, the Commission proposes to adopt rules for new non-Federal space launch operations. As an initial matter, the Commission seeks comment on how to define non-Federal “space launch operations.” The STAs that the Commission has granted in the 2200-2290 MHz band, for example, have included telemetry from the launch vehicle and the payload, during the initial space launch, the orbital phase (including docking with the ISS), and return and reentry of the space launch vehicle. If the Commission were to cover communications needs during these operations, do these operations include all activities that may be needed for a successful commercial space launch operation? Would it serve the public interest to include all of these operations in the definition of “space launch operations”? Is there a need to limit or further expand the definition to include other space operations? The Commission also seeks comment on whether and how to define “space launch vehicle” and whether there should be any distinction between a “launch vehicle” or a “reentry vehicle” for space launch operations purposes. The Commission seeks to establish rules that flexibly, efficiently, and effectively support the evolving spectrum requirements of commercial space launch operations while continuing to adequately protect vital Federal operations in the bands. In that regard, the Commission seeks comment on the appropriate licensing and technical rules to meet these goals. First, the Commission seeks comment on the appropriate licensing framework for the non-Federal space launch operations in the 2200-2290 MHz band, the proposed non-Federal space launch operations in the 420-430 MHz and 2025-2110 MHz bands, and the potential non-Federal launch tracking operations in the 5650-5925 MHz band. The Commission also seeks comment on which Commission rule parts should apply to different elements of space launch operations, and on how to integrate these various provisions to facilitate operations of space launch services, including potentially by creating a new stand-alone rule part. The Commission proposes and seeks comment on specific licensing rules, such as rules governing scope of service, eligibility, license period, application processing rules, and coordination requirements, as well as technical rules that will foster interoperability of equipment used for non-Federal and Federal launches and rules regarding equipment authorization. Finally, the Commission seeks comment on whether the Commission should update any rules regarding space launch vehicle use of aeronautical telemetry in the 2360-2395 MHz band.

26. Applicability of Certain Sections of Part 87 (Aeronautical Mobile). Existing licensing and operating rules under Part 87 currently support commercial space launch operations in the 2360-2395 MHz band and offer an established regulatory approach. The telemetry and telecommand uses identified for the non-Federal space launch operations in the 2200-2290 MHz band and the proposed non-Federal operations in the 420-430 MHz and 2025-2110 MHz bands are similar to space launch telemetry uses permitted in the non-Federal 2360-2395 MHz band, which are supported under Part 87, Subpart J flight testing rules. The Commission seeks comment regarding which rules under Part 87 would be the most appropriate model for non-Federal operations in the 2200-2290 MHz, 420-430 MHz, and 2025-2110 MHz bands, as well as associated telemetry and telecommand functions, and on the benefits and costs of applying such rules. In Appendix D, the Commission sets forth proposed Part 87 rules that could be applied to these operations in these bands, if the Part 87 model is adopted.

27. The Commission notes that the initial launch and reentry phases of a space launch operation share some, but not all, of the characteristics of conventional aviation services, specifically flight test and aeronautical mobile telemetry uses, which are regulated under Part 87. Space launch operations may need additional flexibility for communications with ground stations in the United States, abroad, in space, and in some instances with other space stations, including satellites. The Commission also notes that certain Part 87 licensing and operational rules, while relevant to conventional aviation services generally, may not be appropriate for space launch operations. The Commission seeks comment on whether there are Part 87 general licensing and technical rules that may not be applicable for purposes of developing a regulatory framework for commercial space launch operations.

28. Applicability of Part 90 (Private Land Mobile). With respect to launch vehicle radar tracking functions, the Commission seeks comment on administering the proposed 5650-5925 MHz band radiolocation allocation as part of the Radiolocation Service, which is currently regulated under Part 90. In what phases of space launch operations is this radar tracking function needed? Are there any space launch operations phases, including orbital phases, that may require the Commission to formulate additional radar tracking rules and, if so, what are those and why would they be needed? The radiolocation uses for the 5650-5925 MHz band differ from the aeronautical telemetry uses governed under the Part 87 rules. Because radiolocation operations are generally regulated under Part 90, the Commission proposes to apply the existing licensing framework to the 5650-5925 MHz radiolocation use. This would apply to ground stations as well as to associated transponders affixed to the space launch vehicle for tracking purposes. The Commission seeks comment on the benefits and costs of this proposal and on other possible licensing frameworks. Specifically, is Part 90 the appropriate licensing mechanism for ground stations and transponders affixed to the launch vehicle or should ground stations and associated transponders be licensed under Part 87? In Appendix D, the Commission set forth proposed Part 90 rules that could be applied to these operations in this band, if the Part 90 model is adopted.

29. Applicability of Part 25 (Satellite). The Part 25 rules provide for authorization of both space stations and earth stations. Under Part 25, a “space station” is defined as a station located on an object which is beyond, is intended to go beyond, or has been beyond, the major portion of the Earth's atmosphere; “space radiocommunications” is defined as any radiocommunication involving the use of one or more space stations. In addition, Part 25 includes a definition for “spacecraft” as a man-made vehicle which is intended to go beyond the major portion of the Earth's atmosphere. Given that space launch vehicles are intended to go beyond the major portion of the Earth's atmosphere, safely deliver their payloads (typically satellites), and then reenter the atmosphere, the Commission seeks comment on the benefits and costs of applying the definition of space stations under Part 25 of its rules, to radio communications stations on space launch vehicles. Additionally, some communications between launch vehicles and ground stations/earth stations may be conducted consistent with the Commission's rules applicable to earth stations and a space operations allocation in the U.S. Table of Frequency Allocations. The Commission notes that the Part 25 rules, including space station and earth station licensing processes, are designed to license spectrum use by commercial space services. The Commission seeks comment on which Part 25 rules could be applied, or used as a model for, the licensing of a space launch vehicle's communications through its full trajectory, and on the benefits and costs of this approach.

30. Integrating the Authorization of Space Launch Operations across Rule Parts. The Commission recognizes that while a space launch operation may involve distinct telemetry, tracking, and command operations uses, it may be more practical to address all functions under a stand-alone rule part. Another option would be to create one or more subparts specifically to support commercial space launch telemetry, tracking, telecommand, and other communications needs of space launch operations. These subparts could establish the conditions under which frequencies would be licensed for use during a space launch. The Commission seeks comment on these approaches or on any alternate approaches. How can the Commission facilitates reliable access to spectrum while meeting the changing communications needs of space launch operations during any point of a space launch vehicle's trajectory? The Commission seeks comment on the best way to authorize the use of the relevant spectrum bands to cover space launch operations, starting at the launch site through the launch vehicle's trajectory and until its final destination, including reentry, in a flexible, efficient, and effective manner. Commenters should discuss the costs and benefits of any licensing approach that they propose.

31. Licensing Rules for Space Launch Operations. In the Report and Order, the Commission adopts a secondary allocation for the 2200-2290 MHz band to support the current level of commercial launches and enable the continued growth of the commercial space launch industry. Consistent with the Report and Order, the Commission proposes certain service rules for the 2200-2290 MHz band and for the additional bands discussed herein.

32. As noted, the non-Federal space operations allocation the Commission has adopted for the 2200-2290 MHz band includes a restriction and limits pre-launch testing and space launch operations to the 2208.5-2213.5 MHz, 2212.5-2217.5 MHz, 2270-2275 MHz, and 2285-2290 MHz subbands. Consistent with the current allocation, the Commission seeks comment on restricting the use of the 2200-2290 MHz band for pre-launch testing and space launch operations to these four subbands in its service rules. Contingent on the adoption of this proposal, the Commission proposes to permit licensees to use additional frequencies outside the four subbands upon adequate justification for why such additional frequencies are necessary and in the public interest, on a case-by-case basis. Any requirement for frequencies for use during launches will have to be balanced with the use of the band by Federal systems and coordinated with NTIA. As noted in the Report and Order, any use will be limited to the telemetry and tracking operations of launch vehicles during pre-launch testing and during space launch operations. In the FNPRM above, however, the Commission also seeks comment on whether to remove the allocation restriction limiting use of the 2200-2290 MHz band for non-Federal space operations to the four subbands, such that use of the Space Operation allocation during pre-launch testing and space launch operations could potentially occur in any portion of the 2200-2290 MHz band. Thus, the Commission also seeks comment on whether, to provide greater flexibility in spectrum use, the Commission should remove any presumptive limitation to the four subbands in the service rules as well given that the use of any spectrum in the 2200-2290 MHz band would be separately coordinated for each launch.

33. The Commission also proposes to add a provision restricting use of the proposed 420-430 MHz allocation to the transmission of flight termination signals during pre-launch testing and launches. This transmission would provide for a flight termination signal if a space launch vehicle goes astray. Because a launch vehicle which has gone off-course can endanger lives, the flight termination signal link must be extremely reliable. Therefore, it may not be possible to permit additional uses—particularly those that are not safety-of-life services—in the band.

34. Further, the Commission proposes to restrict the commercial launch use of the 2025-2110 MHz band to telecommand uplink transmissions from the ground controller stations to the space launch vehicle in the event that the Commission adds a non-Federal Space Operation allocation to this band. This allocation would enable space launch providers to transmit to their space launch vehicles during the launch and recovery phase of operations. The largest use of the 2025-2110 MHz band is for the BAS. This band is heavily used by BAS, CARS, and LTTS operations, as well as by Federal entities for space operations, space research, and the earth exploration satellite service. Considering these existing operations, as well as operations by non-Federal launches on a special temporary authority basis to date, is it feasible to accommodate uses in addition to the space launch telecommand uses described above?

35. The Commission further proposes to add a restriction to limit use of the 5650-5925 MHz band to launch vehicle tracking. Although frequencies in the 5650-5925 MHz band are available to support certain non-Federal uses, the predominant use in the band is radiolocation, with Federal entities using the band for a wide variety of radar applications, including launch vehicle tracking. In order to promote interoperability with existing Federal radar tracking functions and to limit impact to other uses, the Commission proposes to restrict commercial space launch vehicle uses of this band to radar tracking.

36. The Commission seeks comment on these proposals. In particular, the Commission seeks comment on whether these proposals provide sufficient flexibility for existing and future needs of non-Federal launch activities or whether additional uses should be accommodated if technically feasible. Additional uses in the bands beyond those specified above may not currently be possible due to technical characteristics and existing uses of the bands. However, the Commission seeks comment on whether to provide flexibility to enable other uses if it determines such uses are technically feasible and will not restrict or cause harmful interference to existing uses and incumbent operations. The Commission seeks comment on the costs and benefits of limiting the scope of uses in these bands. Commenters also should discuss what other measures the Commission should consider to promote a competitive marketplace for space launch operations and services.

37. Eligibility. In the Report and Order, the Commission explains that opening this spectrum to the commercial space launch industry would encourage entrepreneurial efforts by providing commercial space entities certainty in their access to the spectrum that they need to promote the advance planning and investment necessary for future space launch activities. The Commission therefore proposes to limit eligibility to hold authorizations for the 2200-2290 MHz band as well as the proposed 420-430 MHz, 2025-2110 MHz, and 5650-5925 MHz bands to non-Federal entities that conduct space launch operations. The Commission seeks comment on the extent to which the supplemental eligibility criteria for flight test stations, set forth in § 87.301, would be an appropriate model for space launch license eligibility. To be eligible for a new commercial space launch license, the Commission proposes that the applicant must qualify as one of the following: (1) An operator or manufacturer of a commercial space launch or reentry vehicle or space launch or reentry vehicle components; (2) a parent corporation or its subsidiary if either corporation is an operator or manufacturer of a space launch or reentry vehicle or space launch or reentry vehicle components; or (3) an educational institution or a person primarily engaged in the design, development, modification, and flight test evaluation of a launch or reentry vehicle or launch or reentry vehicle components. The Commission also seeks comment on whether to allow other entities that provide space-based services, including satellite service providers, to be eligible for commercial space launch licenses. The Commission seeks comment on these eligibility restrictions, including whether to expand or further restrict the scope of eligible entities.

38. Currently, each application for a flight test license under Part 87, Subpart J is required to include a certification to establish the applicant's eligibility for a license. Similarly, the Commission proposes to use this as a model to require an applicant for any commercial space launch frequencies to certify the eligibility criteria proposed above. The Commission tentatively concludes that requiring this certification would be in the public interest and impose minimal burden on eligible entities. The Commission seeks comment on this proposal as well as on whether to impose any additional certification requirements. In some cases, the Commission has also required subsequent certifications by a licensee that stations comply with applicable technical requirements, such as in § 25.133 of the Commission's rules. The Commission seeks comment on whether to require such a certification, through an appropriate check-box, by either license applicants or licensees.

39. Shared Frequency Use and Cooperative Use of Facilities. The Commission proposes to provide non-Federal space launch operators access to the 2200-2290 MHz band as well as the proposed 420-430 MHz, 2025-2110 MHz, and 5650-5925 MHz bands on a shared, non-exclusive basis. The Commission traditionally has issued Part 87 licenses on a shared basis and not for the exclusive use of any licensee. Certain Part 90 radiolocation uses are also authorized on a similar shared basis. Similarly, the Commission's Part 25 satellite licensing rules also include provisions relating to shared and cooperative use of spectrum. Given that there is the potential for many different launch vehicle operators to use a given launch area, authorizing commercial space operations on a shared basis appears to be a reasonable approach for providing spectrum access for multiple space launch entities. It should be noted that, in this context, shared use status, while non-exclusive, does not mean that a licensee will be required to accept interference. The licensee will be entitled to interference protection for its launch operations. The Commission seeks comment on this proposal and request comments on other viable options.

40. Further, in the context of flight test operations, Part 87 generally limits authorizations of flight test land stations to only one per airport, but it requires that these stations be made available without discrimination to anyone eligible for a flight test station license. This rule has enabled the shared use of facilities, which has reduced costs to licensees and promoted efficient use and competition in the aviation industry.

41. The Commission seeks comment on whether a similar non-discrimination policy for all space launch operations in the bands at issue is also necessary. The Commission is aware that there are launch sites that currently have ground transmitters for shared use, and it seeks comment on the practices involving ground stations at Federal ranges and FAA-licensed sites. Should the Commission adopt rules providing for non-discriminatory access of these facilities by non-Federal space launch entities? The Commission seeks comment on whether non-discriminatory shared use of these facilities is necessary to support the existing and future needs of commercial space launch entities. The Commission seeks further comment on the costs and benefits of a cooperative use of facilities approach, as well as other facilities that may require non-discriminatory access and ways to streamline these practices.

42. In licensing space launch operations, the Commission's goals are two-fold: (1) To encourage innovations and investments in the U.S. space commerce; and (2) to ensure a regulatory environment conducive to the establishment of a competitive U.S. commercial space launch sector while protecting Federal and other users in the bands. In this FNPRM, the Commission seeks comment on various licensing models with these goals in mind and aim to bring regulatory certainty in the marketplace while minimizing administrative burden and duplicative regulations.

43. Site-Based Licensing. A number of Part 87 services, including flight test station licenses, and Part 90 radiolocation services are authorized on a site-by-site basis. A site-based licensing model is helpful in a shared use situation as fixed, well-defined areas of operation simplify coordination during the application process for services requiring frequency coordination, and facilitate intensive spectrum sharing. Moreover, this approach enables the Commission and interested stakeholders to identify quickly licensees in the band and their specific areas of operation in the event interference issues arise, which allows parties to resolve such issues in the shortest timeframe practicable. The Commission seeks comment on these conclusions and whether to issue space launch licenses on a site-by-site basis. Would site-based licensing meet the needs of space launch operations? Does site-based licensing enable the safe and efficient operation of shared frequencies while providing the certainty and flexibility needed to support the existing and future needs of commercial space launch entities? Are space launch activities centered usually around certain sites? If the Commission were to adopt site-based licensing, how should the it define a site?

44. Other Licensing Options. The Commission also seeks comment on whether there are any other licensing models that may be suitable in the space launch operations context. For example, would it be appropriate to license specific space launch vehicles and list applicable ground stations (including those at the launch sites licensed by FAA) as authorized communications points with those vehicles? Another option would be to adopt a new approach combining various aspects of space-based services and aeronautical service licensing rules. If the Commission does so, what are the rules that would be most appropriate for licensing space launch services? Stations on space launch vehicles could be licensed similar to space stations and the communicating ground/earth stations could be licensed on a single or multiple site basis. A ground/earth station's operations also could be conditioned, for example, on filing of a certification before a planned space launch to certify that any required frequency coordination has been satisfactorily completed and the relevant ground/earth stations are in compliance with all applicable legal and technical rules that the Commission might adopt for space launch operations. Or licensing of space launch operations could be similar to licensing models applicable to certain wireless services such as the 3650-3700 MHz band, and the 71-76 GHz, 81-86 GHz, 92.0-94.0 GHz, and 94.1-95.0 GHz bands. Pursuant to these approaches, space launch operators could have access to various spectrum bands on a non-exclusive, yet protected, basis, but would be subject to measures designed to promote shared use of spectrum, such as a registration and frequency coordination requirement prior to each launch. With respect to the terrestrial nationwide, but non-exclusive, licensing approach, which typically has been used for shorter-distance terrestrial wireless services, could such a licensing approach be effective as applied to all phases of operations, including orbital phases? Could such a licensing process streamline the information that would be needed for initial licensing and then registration and coordination prior to a planned launch? The Commission seeks comment on the feasibility, costs, benefits, and potential challenges (if any) associated with each of these proposals.

45. Comments should discuss any needed changes that should be made to reduce potential administrative burdens and streamline the site-based licensing process as well as any other alternatives. The Commission also seeks comment on service area definitions as well as alternatives and the costs and benefits of proposed alternatives.

46. Authorized Bandwidth. The Commission proposes to grant licenses for non-Federal operations in the 2200-2290 MHz band using a 5 megahertz bandwidth, similar to NTIA's limit for transmissions by Federal space-to-Earth operations in the band. The Commission further seeks comment on permitting licensees to use larger bandwidths upon adequate justification for why such bandwidth are necessary and in the public interest, on a case-by-case basis. Any requirement for additional bandwidth for use during launches will have to be balanced with the use of the band by Federal systems and coordinated with NTIA. The Commission's review of experimental authorizations requested for the 2200-2290 MHz band indicates that the majority of applications involved requests for bandwidths of less than 5 megahertz. The Commission tentatively concludes that licensing the 2200-2290 MHz band in 5 megahertz channel blocks will likely accommodate most non-Federal launch vehicle operations in the band and provide licensees with greater flexibility than authorizations with a smaller bandwidth. This approach is consistent with NTIA's stated preference. The Commission seeks comment on this approach as well as other approaches. The Commission notes that 2360-2395 MHz band space launch telemetry and telecommand operations may be authorized in bandwidths of 1, 3, and 5 megahertz. Should the Commission similarly authorize the 2200-2290 MHz band in a range of bandwidths?

47. As discussed, the Commission is proposing to allocate the entire 420-430 MHz and 2025-2110 MHz bands for flight termination and telecommand uses, respectively, and is seeking comment regarding the portions of the 5650-5925 MHz band that should be allocated for launch vehicle tracking purposes. The Commission seeks comment on the appropriate bandwidth or spectrum blocks for the proposed 420-430 MHz, 2025-2110 MHz, and 5650-5925 MHz allocations. The Commission notes that the bandwidths associated with experimental authorizations granted for frequencies in the 2025-2110 MHz and 5650-5925 MHz bands have varied in size. The Commission seeks comment on the typical and/or necessary bandwidths applicable to the space launch uses specified in this proceeding. Consistent with an NTIA recommendation, the Commission further seeks comment regarding the 420-430 MHz band, specifically on “the most appropriate frequencies . . . for each designated launch facility based on which frequencies can be supported for sending command destruct/flight termination signals.”

48. License Term and Renewal. The Commission historically has established ten-year terms for wireless radio service licenses, including Part 87 aviation and Part 90 radiolocation licensees. In the satellite licensing context, most satellites are authorized for a 15-year license term. The Commission tentatively concludes that ten-year terms will provide certainty and flexibility for space launch providers and therefore proposes to issue commercial space launch licenses for ten-year terms. The Commission recognizes, however, that the spectrum and use must be carefully managed and coordinated due to the heavy use of these bands, and the Commission notes that it has granted shorter license terms for Part 87 flight test stations pursuant to the frequency coordination process as a means to manage and ensure periodic reevaluation of possible interference issues. Several commenters have suggested a shorter five-year period as an appropriate license term. The Commission seeks comment on alternative license terms.

49. The Wireless Radio Services (WRS) proceeding established the process for renewing a site-based license. Specifically, it provided that a site-based WRS licensee will meet our renewal standard if it can certify that it is continuing to operate consistent with its most recently filed construction notification (or most recent authorization, when no construction notification is required), and make the certifications regarding permanent discontinuance and substantial compliance with Commission rules and policies that are applicable to all renewal applicants seeking to avail themselves of one of the renewal safe harbors. Services subject to this site-based renewal standard include the Part 90 Radiolocation Service. The Commission proposes to extend this renewal standard to licensees in the 5650-5925 MHz band to the extent the Commission applies the Part 90 Radiolocation Service rules to this band. The Commission request comment on this proposal.

50. The WRS Order does not apply to Wireless Radio Services that are licensed by rule or on a “personal” basis or that have no construction/performance obligation. This includes most Part 87 services. The Commission seeks comment on whether to require commercial space launch licensees make a “renewal showing,” for instance, certifying that it is operating consistent with its initial application for authorization or that it has complied with the required coordination. The Commission seeks comment on whether this renewal showing is warranted for the bands at issue given the heavy use by Federal agencies. The Commission believes that requiring a renewal showing in these bands would facilitate efficient spectrum use by ensuring that licensees use the spectrum productively, collaboratively, and in compliance with Commission rules during their initial license terms. The Commission seeks comment on the costs and benefits of imposing a renewal requirement for commercial space launch operations licensees.

51. Application Process. The Commission seeks comment on the application process to be used to assign commercial space launch licenses. As an initial matter, the Commission seeks comment on whether assignment of space launch operations licenses is subject to Section 309(j) of the Communications Act. The Commission notes that, while Section 309(j) of the Communications Act requires that it assign spectrum licenses through the use of competitive bidding for mutually exclusive license applications, the shared, non-exclusive licensing the Commission is proposing for the spectrum bands at issue would not result in mutually exclusive applications and thus would not be subject to such competitive bidding requirements. However, where Section 309(j) applies and to the extent that the Commission determines that it is in the public interest to adopt a licensing scheme that would result in mutually exclusive license applications, it proposes to use the general competitive bidding rules set forth in Part 1, Subpart Q, of the Commission's rules. The Commission seeks comment on these conclusions and proposals.

52. With respect to application framework, the Commission is aiming to establish an application framework that would increase the regulatory certainty while reducing the administrative burden. One approach would be to apply the existing licensing framework for Part 87 and Part 90 licensees to commercial space launch operations applications. Currently, applicants for Part 87 flight test stations and Part 90 radiolocation licenses are required to submit FCC Form 601 and associated schedules through the Universal Licensing System (ULS). The Commission seeks comment on requiring applicants seeking authorization for 2200-2290 MHz as well as the proposed 420-430 MHz, 2025-2110 MHz, and 5650-5925 MHz frequencies to file an FCC Form 601 and applicable schedules through ULS under the appropriate rule part designation. The Commission seeks comment on the benefits and costs of this approach. Another approach would be to use aspects of Form 312 and Schedule S, with narrative legal and technical information similar to licenses under Part 25 and filing in the International Bureau Filing System (IBFS). The Commission seeks comment on these and any alternative approaches.

53. Depending on the licensing scheme, for example, if the Commission adopts site-based licensing, would it be in the public interest to license the bands individually and use separate applications for separate spectrum bands? The Commission recognizes that not all operators will seek authorization for all of the bands at issue. Moreover, even where an applicant seeks multiple frequency bands, the applicant may not have the same site or area of operation for each of the bands. Would separate licensing of separate bands be less burdensome and provide more flexibility for applicants than a single multi-band license application process, similar to space station and earth station licensing? Would some of the differences in operational parameters be addressed more efficiently in a nationwide non-exclusive licensing application which would be coupled with a planned launch coordination registration? Are there any coordination issues in any of the frequency bands that would benefit from site licensing? Would it be simpler and less costly for the Commission to incorporate into the existing ULS or IBFS licensing processes and/or forms? What are the most efficient and effective way to license space launch operations that will provide operators with substantial benefits in terms of flexibility and efficiency, and will facilitate rapid implementation of this service?

54. To support the evolving communications needs of space launch entities and to provide flexibility sufficient to support innovation and investment in new technologies, the Commission seeks comment on how to allow applicants for space launch licenses to request authorization covering all launches within their license terms. The Commission also seeks comment on any measures needed to implement a multi-launch approach. For example, how should the Commission account for any variances in vehicle trajectory or spectrum usage from launch to launch? Should operators be required to file a modification or notification to change certain characteristics of their license, and if so, which characteristics? Which of these variances must be reflected in the license and which ones can be addressed during a planned launch coordination stage on a case-by-case basis? What information should be required to be provided at the licensing application stage and the planned launch stage?

55. If the Commission were to adopt a site-based licensing system for commercial space launch operations, under this proposal, applicants may request: (1) Fixed stations on the ground, (2) mobile stations on the ground, and/or (3) stations on launch vehicles. For fixed ground site locations, each applicant would include in its application the specific coordinates for its proposed fixed sites. Because most space launch entities conduct launches at specific fixed sites, the Commission does not anticipate that providing this information will be burdensome. For mobile stations on the ground, each applicant would specify a mobile area of operation, as defined by a center point and radius governing their area of operation. Would this definition of mobile area of operation provide licensees the flexibility needed to support the existing and future needs of space launch entities? The Commission seeks comment on this proposed definition of mobile area of operation and on alternate definitions that might further its goals of providing flexibility to space launch operators while protecting other uses in the bands. For example, should the mobile area of operation be defined by a specific county or some other metric, such as an option that allows the applicant to describe in text the proposed area of operation? For stations on launch vehicles, these stations can be authorized within a specific area of operation with a center point and radius coordinated and approved by an approved frequency coordinator. The Commission seeks comment on these proposals. The Commission further seeks comment on whether an applicant's ground stations in the United States should be licensed separately from the launch vehicle stations with which they are communicating, or whether those operations may be encompassed within a single license.

56. Launch vehicle operations can be categorized broadly into two take-off modes: A vertical take-off like a traditional launch vehicle or a horizontal take-off from a runway. In addition, launch vehicles can be either expendable or reusable. Further, an operator may seek to use different launch vehicles from launch to launch. The Commission seeks comment on whether the proposed site-based licensing framework and area of operation definitions will adequately accommodate all of these initial launch and reentry scenarios. To the extent that commenters believe that the proposals cannot be applied satisfactorily to all take-off, flight, and landing operations, the Commission requests comment on alternate licensing options or definitions. The Commission asks commenters to evaluate the costs and benefits of these proposals as well as alternatives or additional requirements that may be needed to improve the application process and to address the specific needs of the commercial space launch industry.

57. ITU Process. The Commission notes that the International Telecommunication Union (ITU) Radio Regulations are treaty provisions binding on the United States, and require that no transmitting station may be established or operated by a private person or by any enterprise without a license by or on behalf of the government of the country to which the station in question is subject. The Communications Act of 1934, as amended, provides the FCC with authority to take actions to implement the ITU Radio Regulations. The operations of the radio facilities on launch vehicles therefore must be authorized consistent with the ITU Radio Regulations. Because these operations could cause harmful interference in other countries, the Commission proposes to require applicants to submit appropriate draft documentation for submission to the ITU. The Commission seeks comment on this proposal and whether there are other alternatives, including bi-lateral coordination with affected countries, to coordinate and minimize harmful interference from any FCC authorized space launch operation.

58. The Commission seeks comment more generally on the ITU process as it relates to space launch vehicle licensing and operations. In the space station context, operators provide information to the Commission for submission to the ITU as part of the space station application or authorization process. If the Commission were to decide to apply this process, the Commission seeks comment on how and when launch vehicle operators should provide it with information for submission to the ITU. One possibility would be an approach where launch vehicle applicants or licensees submit information to the Commission for an ITU submission regarding an upcoming planned launch a certain number of days prior to the planned launch. The Commission seeks comment on this approach and on alternatives. The Commission notes that this process is likely to vary depending on the licensing regime adopted, in particular on the scope of the license, such as whether a license covers multiple launches, including multiple launch trajectories. The Commission seeks comment on how the scope of the license should affect the applicant's submission of information for the ITU process.

59. Space Launch Vehicle Operations Outside the United States. The Commission observes that launch vehicle flight paths will commonly extend downrange beyond the U.S. territories, requiring the space launch vehicle to communicate with ground-based telemetry, tracking, and telecommand stations located outside of the United States, particularly in the 2025-2110 MHz and 2200-2290 MHz frequency bands. Such communications could be considered within the scope of a Part 87 authorization, for example, or be addressed by a licensing approach covering launch vehicles that would allow operations of such vehicles with ground stations both within and outside the U.S. territories, similar to a space station license under Part 25. The Commission seeks comment on these observations and the best way to authorize the use of the relevant spectrum bands to cover these operations.

60. The Commission seeks comment on whether it should view such launch vehicle operations as being authorized under the applicable site-based license subject to the requirement that such use is identified in the application and ITU coordination is completed. Or should such use be separately authorized? Would an alternative type of license better address operations with ground/earth stations outside the United States? The Commission notes that the ability of a launch vehicle operator to obtain ground station authorizations outside the United States may be dependent upon U.S. launch vehicle licensing and/or ITU coordination and/or notification procedures, as needed. The Commission seeks comment on the various licensing approaches, given the need for down-range communications, and on the role that ITU coordination should have in the particular licensing approach.

61. Operations Inside the United States with non-United States Space Launch Vehicles. The Commission seeks comment on how the Commission should authorize ground station operations in the United States with space launch vehicles that are not authorized by the United States. For example, a space launch vehicle originating from a non-U.S. launch site and not otherwise authorized by the United States may seek to communicate with ground stations in the United States. Should the Commission adopt a process for ground station operators to request communications with these launch vehicles? For example, in the context of Part 25 satellite licensing, ground/earth station operators in the United States can apply for authority to communicate with non-U.S.-licensed space stations. In the space launch context, should applications be filed by the U.S. ground/earth station operators? And, if so, what information should be required?

62. Alternative Approach. The Commission also seeks comment on whether an authorization should be structured to cover all the bands allocated for commercial launch services, including operations outside the United States, discussed above. In other words, a single license application would be used to request multiple spectrum bands and associated uses on a single launch vehicle. For example, if a launch vehicle receives a flight termination signal in one frequency band and operates TT&C in a different frequency band, what are the costs and benefits to those operations being covered under a single space launch operations license? Would such an approach streamline our licensing processes or complicate them? What are the procedural and legal challenges that the Commission needs to consider with such a licensing approach? This approach also could be combined with the site-based or nationwide non-exclusive licensing approaches discussed above. Would such an approach serve the public interest? If the Commission were to adopt such an approach how can it be implemented? What licensing information should be required at the licensing application stage and the planned launch coordination stage? The Commission requests comment on these alternatives and seeks input on any other alternatives it should consider. The Commission asks that commenters discuss the impacts of a proposal, including associated administrative burdens or benefits.

63. Frequency Coordination. Frequency coordination minimizes the likelihood of interference between operations and facilitates the efficient use of spectrum. The Commission seeks comment on the appropriate coordination process between Federal and non-Federal users to be used prior to the grant of an application for space launch frequencies as well as a coordination process for the ongoing use of these frequencies by operators during their license terms.

64. As discussed in the Report and Order, the Commission shares licensing authority with NTIA. Section 301 establishes the Commission's licensing authority over non-Federal stations, and section 303 grants the Commission authority to “[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this [Act.]”. NTIA maintains licensing authority over Federal stations pursuant to section 305(a). The Commission and NTIA's shared licensing authority is guided by an established set of procedures for developing regulations for radio services in the shared bands and for authorizing frequency use by Federal agencies and Commission licensees.

65. These procedures, set forth under the Memorandum of Understanding (MOU) between NTIA and the Commission, require the agencies to endeavor to give notice to each other of “all proposed actions that could potentially cause interference” to non-Federal and Federal operations respectively. NTIA coordinates with Federal spectrum users through the Interdepartment Radio Advisory Council (IRAC), a committee that includes representation from different government agencies, and typically includes a review period of 15 business days.

66. Until the Commission adopts licensing and technical rules, the Commission will continue to coordinate STAs issued to commercial operators for space launch purposes with NTIA, pursuant to the MOU. Even after licensing and technical rules go into effect, the Commission will continue to have to pre-coordinate licenses with NTIA. Although the Commission is adopting one and proposing three other permanent non-Federal allocations for these bands, coordination is still required for use of these frequencies, given the potential for impacts to and from Federal users in these bands, as well as the potential for harmful interference among non-Federal users. The Commission therefore seeks input on a coordination procedure that will adequately minimize the potential for harmful interference, while also minimizing burdens on launch operators to the extent possible.

67. Pre-grant coordination. To help ensure that users in a band are protected from harmful interference, the Commission has incorporated various coordination requirements in its service rules, particularly in bands with shared use, in addition to the standard IRAC process. For example, applicants for flight test station licenses under Part 87, Subpart J are required to meet all applicable frequency coordination requirements. Section 87.305 requires that, prior to submission of an application to the Commission, a frequency advisory committee must coordinate all frequency requests with applicable Federal Government area frequency coordinators and provide recommendations regarding operating parameters. A flight test station application must include a frequency coordination statement from the frequency advisory committee, which includes a technical evaluation and recommendations to minimize interference. Once the application is submitted to the Commission, the request is then also submitted to NTIA for coordination, pursuant to the FCC and NTIA's MOU.

68. The Commission seeks comment on whether it should require applicants for a license in space launch frequencies to undergo a pre-application coordination requirement similar to that specified in § 87.305. This pre-application coordination requirement historically has been successful in minimizing the risk of harmful interference between flight test stations and other users of the band. Adopting a similar process may be helpful in the space launch context given the heavy usage of these bands by Federal entities as well as other space launch operators and the potential of interference to these operations. While it may, on first glance, seem that there is duplicative review, the pre-application coordination helps to narrow down the acceptable operating parameters of the use, thereby reducing administrative burdens and expediting review once the application is submitted. The Commission seeks comment on whether to apply this pre-application coordination process, or whether, in the alternative, it should impose a different coordination process.

69. In this regard, the Commission observes that Federal entities seeking to use the 2025-2110 MHz band for TT&C uplink purposes must complete a similar coordination process prior to submitting an application for authorization to NTIA. A Federal entity must coordinate with all BAS and other non-Federal incumbents that may be affected by the Federal operation prior to submitting an application, and must engage the local BAS frequency coordinator(s), where available, in support of achieving such coordination. To the extent that the Commission adopts a non-Federal allocation in the 2025-2110 MHz band for TT&C uplink purposes, it seeks comment on whether to require commercial space launch operators seeking to use the band to follow the same pre-application coordination process to help ensure that launch operations will not cause harmful interference to applicable non-Federal and Federal incumbents in the band. Alternatively, the Commission seeks comment as to whether it should apply a different pre-application coordination, such as the process identified in § 87.305.

70. If the Commission determines it would be in the public interest to adopt a pre-application coordination requirement, should the Commission appoint a designated frequency coordinator to streamline the coordination process? The Commission designated the Aerospace and Flight Test Radio Coordinating Council (AFTRCC) as the frequency coordinating committee for non-Government flight test telemetry station assignments in the 1435-1535 MHz band and extended authority to the 2310-2320 MHz and 2345-2390 MHz bands. If the Commission decides to appoint a specific frequency coordinator, would it be in the public interest to extend AFTRCC's authority, or should the Commission appoint a different entity?

71. Post-grant coordination. Given that the license terms associated with permanent authorizations may span several years, the Commission seeks comment on coordination between space launch licensees and other users of the respective bands for separate launch operations. The Commission notes that experimental STAs are approved, and thereby coordinated, on a per launch basis. By contrast, the Part 87 flight test rules do not require additional formal coordination once an application has been granted. Given the complicated logistics entailed in a space launch operation, as well as changes in the operational environment on and around Federal ranges and other sites that are likely to occur over time, the Commission does not believe that a one-time coordination would be effective to cover all launches that occur during the term of an operator's license. At the same time, the Commission also wishes to avoid a coordination process that is overly burdensome for launch operators or that injects uncertainty as to spectrum access. The Commission requests that commenters propose solutions for this issue in their comments.

72. The Commission seeks comment on other coordination processes that are streamlined and efficient for space launch entities yet are also adequately protective of Federal operations and consistent with the provisions of the Commission and NTIA's MOU. The Commission asks that commenters include detailed coordination procedures in their proposals, as well as the cost and benefits of the proposed process. The Commission notes that, given the importance in minimizing the potential for harmful interference to Federal and non-Federal uses alike in these bands, the Commission does not anticipate that coordination procedures would include a “shot clock”— i.e., a provision that permits launch operators to move forward if review has not been completed by a certain date. The Commission seeks comment, however, on whether notification procedures could, under some circumstances or conditions, be sufficient to meet coordination requirements.

73. Technical Rules for Space Launch Operations. The Commission seeks comment on a proposed technical framework and on additional technical requirements for operations in the non-Federal allocations in the 2200-2290 MHz band and for operations in the proposed non-Federal allocations in the 420-430 MHz, 2025-2110, and 5650-5925 MHz bands. The Commission seeks to develop a technical framework and requirements that can address the unique needs of the commercial space sector.

74. The Commission's goal in establishing a technical framework for commercial space launch operations is to develop rules that support the evolving interests and requirements of commercial space entities while minimizing harmful interference between Federal and non-Federal operations. The Commission finds that the current framework that applies to Federal operators offers a predictable and tested model that promotes the efficient use of spectrum while minimizing interference among users in these bands. The Commission therefore proposes to adopt a similar set of technical rules to non-Federal space launch operations in the newly allocated 2200-2290 MHz band as well as in the proposed allocations. The Commission finds that adopting a technical framework similar to that which currently applies to Federal operations will promote interoperability and allow commercial launch providers to benefit from the economies of scale inherent from using the same radio systems for both Federal agencies and commercial customers.

75. In the 2013 Notice of Proposed Rulemaking, the Commission sought comment generally on how to support the anticipated growth of the commercial space launch industry. The Commission asked whether providing non-Federal access to this spectrum would allow commercial space launch operators to incur lower development costs because they would be able to use the same communications systems for both Federal and non-Federal launches.

76. Several commenters support allocations and service rules that promote interoperability between Federal and commercial systems. For example, New Mexico Spaceport Authority (NMSA) maintains that interoperability between ranges avoids increased costs for development, hardware acquisition, operations, and testing; saves on opportunity costs; increases competition among launch providers and launch sites; and promotes the industry overall.

77. The Commission seeks comment on its proposal to model a technical framework on rules applicable to Federal launch operations. The Commission discusses below, as examples of this approach, certain technical requirements set forth in NTIA rules or ITU Radio Regulations and seeks comment on whether to apply similar rules to the 2200-2290 MHz band, as well as the proposed 420-430 MHz, 2025-2110 MHz, and 5650-5925 MHz allocations. The Commission seeks comment on other technical requirements that apply to Federal space launch operations in the relevant bands, such as any requirements regarding frequency tolerance, emissions classifications, or emissions levels, the benefits and costs of such requirements, whether the Commission should apply these requirements to non-Federal operations, and any additional technical rules needed to achieve its goals. For example, Table 5.2.1 of the NTIA Manual specifies frequency tolerance standards for aeronautical, space, and radiolocation stations in the frequencies at issue in this proceeding among others. The Commission seeks comment on adopting these or alternative frequency tolerance standards.

78. 2200-2290 MHz. The 2200-2290 MHz band typically is used, in non-Federal space launch operations, for sending telemetry data from the launch vehicle to ground controllers. NTIA explains that Federal operations in the band primarily consist of tracking, telemetry, and control data communications for control of spacecraft. The band is used by Federal agencies in space operation, space research and Earth exploration-satellite service (space-to-Earth) for communications with earth stations and return links via TDRSS (space-to-space), which provides links between low earth orbiting spacecraft and earth stations. Federal agencies and the military also use this band for terrestrial telemetry operations for aircraft, missile flight testing, land and maritime mobile communications, and fixed point-to-point microwave relay communications.

79. As discussed above, the Commission has adopted a Space Operation allocation for the 2200-2290 MHz band and is also seeking comment on adopting a Mobile allocation in this band. As space launch operations in this band may potentially operate under this dual regulatory approach, the Commission seeks comment on technical requirements under both a space operations and aeronautical mobile allocation, including whether these technical rules align with NTIA's requirements for both Federal and non-Federal space operations and how the Commission might promote consistency between and among the various, similarly situated services authorized in the band.

80. Emission mask. Under NTIA's space operations requirements, earth and space stations in the space operations service above 470 MHz must comply with the emissions mask standard established in section 5.6.2 of the NTIA Manual. Section 5.6.2 provides that for frequencies offset from the assigned frequency less than the 50 percent of the necessary bandwidth, no attenuation is required. At a frequency offset equal to 50 percent of the necessary bandwidth, an attenuation of at least 8 dB is required. Frequencies offset more than 50 percent of the necessary bandwidth should be attenuated in accordance with a specified formula dependent on necessary bandwidth and frequency displaced from the center of the emission bandwidth.

81. Section 5.3.9 of the NTIA Manual provides that aeronautical telemetry operation in the 2200-2290 MHz band must meet the emissions limits from Chapter 2 of the Inter-Range Instrumentation Group (IRIG) Standard 106-15, Part 1. Chapter 2 of IRIG Standard 106-15, Part 1 (hereinafter IRIG Standard 106-15), in turn, includes the following aeronautical telemetry spectral mask: All spectral components larger than −[55 + 10×log(P)] dBc ( i.e., larger than −25 dBm) at the transmitter output must be within the spectral mask calculated using the following equation:

82. While the Commission seeks to align the technical parameters used by Federal and non-Federal operations to facilitate interoperability, it also seeks to introduce measures that will help licensees to simplify or streamline operations, while ensuring that other users in the band are protected. To that end, the Commission requests comment on the utility of using one specific mask for all non-Federal operations in the band as an alternative to NTIA's dual emissions mask approach. For example, the Commission seeks comment on applying the space operations emissions mask described above at all stages of flight, or whether alternatively the emission limits for space stations found in Part 25 should be applied. As another alternative, the Commission seeks comment on the use of the emission mask described in part 87 of the Commission's rules: (1) On any frequency removed from the assigned frequency by more than 50 percent, up to and including 100 percent of the authorized bandwidth, at least 25 decibels attenuation; (2) on any frequency removed from the assigned frequency by more than 100 percent, up to and including 250 percent of the authorized bandwidth, at least 35 decibels attenuation; and (3) on any frequency removed from the assigned frequency by more than 250 percent of the authorized bandwidth, at least 43 + 10 log(pY) decibels or 80 decibels, whichever is the lesser attenuation. The Commission seeks comment on these emission masks and whether such masks are appropriate notwithstanding our goal of promoting interoperability. Alternatively, the Commission seeks comment on whether to follow the NTIA approach of applying the aeronautical telemetry and space operations emission masks referenced by the NTIA Manual to first-stage and subsequent telemetry operations in the band, respectively, or any other alternatives.

83. Power limits. The RCC's IRIG Standard 106-15 that NTIA applies to aeronautical telemetry in the 2200-2290 MHz band provides that the EIRP of a transmitter shall not exceed 25 watts and that the output power shall not exceed 25 watts. NTIA's space operations requirements, in contrast, do not impose a power limit, and instead rely on a power flux-density limit. Consistent with the Federal requirements, the Commission seeks comment on whether to limit first-stage operations to an effective radiated power of 25 watts and a transmitter output power of up to 25 watts, and below, the Commission seeks comment on whether to apply a power flux-density limit on operations after the first stage. Alternatively, if the Commission adopts a power flux-density limit in the band, the Commission seeks comment on whether no further limit on power is necessary, or whether it should adopt an alternative to the power limit in IRIG Standard 106-15.

84. Power flux-density limits applicable to second-stage operations. The ITU Radio Regulations establish power flux-density limits at the surface of the Earth from space research, space operation and Earth exploration-satellite services in the 2025-2110 MHz and 2200-2290 MHz bands in order to protect the fixed and mobile services in those bands. These limits are reflected in section 8.2.36 of the NTIA Manual. The Commission seeks comment above on potentially treating commercial space operations in the band under both a mobile service and space operation service allocation framework. If the Commission adopts this approach, what should be the boundary between these regulatory frameworks for purposes of applying the ITU power-flux density limits? Should the ITU power flux-density limits apply when the launch vehicle is above a specified altitude, at a certain time after launch, at a particular stage of operation, or based on some other fashion on launch operations in the band? For example, the power flux-density limits could apply after 15 minutes of flight, or alternatively, could apply to either the second or subsequent stage of the launch vehicles operation. Would applying the power-flux density limit above a certain altitude better accommodate reentry operations as well? To the extent NTIA requires space launch operations to meet the PFD limit, at what stage of the launch (or at what demarcation point) does NTIA require compliance with the limit? Should the Commission adopt a parallel requirement in its technical rules? The Commission further seeks comment on whether, aside from the interest in harmonization, it should impose the power flux-density limit on operations in the 2200-2290 MHz band in a reference bandwidth of 1 megahertz instead of 4 kilohertz, consistent with Recommendation ITU-R SA.1273.

85. 420-430 MHz. As noted, the 420-430 MHz band typically is used for sending flight termination commands from ground control to the launch vehicle, if necessary, during launch. Non-Federal entities may obtain access to this band through STAs. NTIA explains that the band is also used by the military and other Federal agencies for a number of important radar applications, multi-function position-location communications systems, and test range telecommand and flight termination systems, making the band essential to national security.

86. The Commission recognizes that several commercial space launch entities have migrated or are in the process of migrating the flight termination signal from transmission of a signal from the ground station to launch vehicle to an automated function within the launch vehicles via onboard systems ( i.e., the flight termination sequence is now initiated from onboard the launch vehicle). Moreover, launches to date have occurred at Federal ranges, so access to this band by commercial launch providers has not been necessary. However, the Commission expects this to change as companies transition towards using commercial launch sites in the future. Therefore, adopting technical rules for commercial flight termination functions in the 420-430 MHz band is critical for ensuring the public is protected during space launches. To facilitate seamless operation with respect to Federal and non-Federal operations, the Commission seeks comment on whether to apply the same technical specifications for flight termination used by Federal space launches to non-Federal operations. For example, below, the Commission seeks comment on applying NTIA rules regarding emission mask and power limits.

87. Emission mask. NTIA requires land/mobile stations in the 420-430 MHz band to meet the standard established in section 5.2.2.2. This section requires that the mean power of any emission supplied to the antenna transmission line, as compared with the mean power of the fundamental, must be in accordance with the following: (a) On any frequency removed from the assigned frequency by more than 75 percent, up to and including 150 percent, of the authorized bandwidth, at least 25 decibels attenuation; (b) on any frequency removed from the assigned frequency by more than 150 percent, up to and including 300 percent, of the authorized bandwidth, at least 35 decibels attenuation; and (c) on any frequency removed from the assigned frequency by more than 300 percent of the authorized bandwidth, two levels of attenuation depending on whether the transmitter operates with mean power of (1) less than 5 kilowatts or (2) 5 kilowatts or greater.

88. To facilitate similar treatment among non-Federal and Federal launches, the Commission proposes to apply an emission mask similar to section 5.2.2.2 to commercial launch operators using the 420-430 MHz band for flight termination purposes. The Commission seeks comment on the proposed emission mask. The Commission requests comment on alternative limits, and on the need for an emission mask generally for the transmission of this singular function.

89. Power limits. NTIA permits a maximum power limit of 1 kW of transmit power for range safety operations in the 420-450 MHz bands, which include flight termination operations such as self-destruct commands. Requests for additional power must be coordinated with and agreed to by the Commission. Range safety operations at three specific locations—Vandenberg AFB, CA; White Sands Missile Range, NM; and Cape Canaveral AFS, FL—may be authorized up to 10 kW transmit power without Commission coordination.

90. The Commission aims to provide flexibility to space launch operators using this band, but the Commission recognizes that limits are particularly necessary in this band, given that the intended use of this band is for safety-of-life applications. Consistent with the NTIA requirements, and with NTIA's stated preference for non-Federal launch operations in the band, the Commission proposes to permit an effective radiated power of up to 1000 watts by non-Federal launch providers. The Commission seeks comment on whether the proposed limits are sufficient to provide both the flexibility and the protection necessary to this safety-of-life application. The Commission also seeks comment on whether to consider alternative limits.

91. 2025-2110 MHz. The 2025-2110 MHz band supports fixed and mobile services on a primary basis for non-Federal terrestrial use. The band is allocated to BAS and LTTS for fixed and mobile use and to CARS for mobile use only. Federal operations include communications with satellites or other space stations, as well as between satellites or spacecraft, occurring under primary allocations for space operations (Earth-to-space) (space-to-space), space research (Earth-to-space) (space-to-space), or Earth exploration-satellite service (Earth-to-space) (space-to-space). Federal agencies operate earth stations in this band for tracking and command of manned and unmanned Earth-orbiting satellites and space vehicles either for Earth-to-space links for satellites in all types of orbits or through space-to-space links using TDRSS. In addition, the National Oceanic and Atmospheric Administration (NOAA) operates earth stations in this band to control the Geostationary Operational Environmental Satellite (GOES) and Polar Operational Environmental Satellite (POES) meteorological satellite systems. To facilitate the relocation of military operations from the 2155-2180 MHz band, the 2025-2110 MHz band also includes a primary Federal allocation for fixed and mobile services, restricted to use by the military services and subject to certain provisions codified in footnote US92 of the U.S. Table.

92. Emission mask. The most analogous authorized Federal operation in the 2025-2110 MHz band is earth station telecommand transmissions to spacecraft, which operate under space operations rules. As discussed above, NTIA requires that earth and space stations in the space operations service above 470 MHz comply with the emissions mask standards established in section 5.6.2 of the NTIA Manual. Section 5.6.2 provides that for frequencies offset from the assigned frequency less than the 50 percent of the necessary bandwidth, no attenuation is required. At a frequency offset equal to 50 percent of the necessary bandwidth, an attenuation of at least 8 dB is required. Frequencies offset more than 50 percent of the necessary bandwidth should be attenuated in accordance with a specified formula dependent on necessary bandwidth and frequency displaced from the center of the emission bandwidth.

93. Consistent with the Commission's general approach, the Commission proposes to adopt the NTIA's emissions mask described above for commercial space launch transmissions in the 2025-2110 MHz band, except that the Commission proposes to apply attenuation requirements to the licensee's assigned frequencies rather than requiring a separate calculation of necessary bandwidth. The Commission seeks comment on this proposal, and on whether the Commission should adopt an alternative emissions mask.

94. Power limits. NTIA requires that the EIRP transmitted in any direction towards the horizon by a Federal earth station in bands between 1 GHz and 15 GHz that are shared with stations in the fixed or mobile service, which includes the 2025-2110 MHz band, shall not (with limited exceptions) exceed the following limits:

95. Consistent with the Commission's general approach, the Commission proposes to adopt the NTIA's limit on maximum transmitted EIRP for commercial space launch transmissions in the 2025-2110 MHz band. The Commission seeks comment on this proposal, and on whether the Commission should adopt an alternative maximum power limit.

96. 5650-5925 MHz. The 5650-5925 MHz band supports launch vehicle radar tracking. As noted, tracking of a launch vehicle typically involves use of a transponder that is placed on the launch vehicle. The transponder transmits a radar signal that is received at a ground-based tracking station. The radar signal provides ground controllers with more precise and accurate tracking information for the launch vehicle. NTIA explains that the Department of Defense (DoD) uses this band for a wide variety of radar applications, including anti-air warfare radars, which are part of an advanced ground-based air defense missile system. DoD and NASA also use this band for a variety of land-based and shipborne radars. The 5650-5925 MHz band also supports daily DoD and Department of Homeland Security (DHS) unmanned aircraft systems (UAS) missions.

97. Section 5.5 of the NTIA Manual contains the technical rules for Federal radar operations in the 5650-5925 MHz band. Section 5.5 provides five classifications of radar (Criteria A through E) incorporating NTIA's Radar Spectrum Engineering Criteria (RSEC). The RSEC establishes the technical standards for Federal radar use. Operations in the 5650-5925 MHz band are governed by RSEC Criteria A, RSEC Criteria B, or RSEC Criteria C, depending on the system characteristics and peak operating power of the radar system. RSEC Criteria A radars include radars with the following system characteristics: (1) Non-pulsed radars of 40 watts or less rated average power; (2) pulsed radars of 1 kW or less rated peak power; (3) radars with an operating frequency above 40 GHz; and (4) expendable, non-recoverable radars on missiles. Criteria B applies if the radar system operates with a peak power over 1000 Watts and less than 100 kW. Criteria C applies if the system operates with less than 1000 Watts. The NTIA Manual also includes receiver standards.

98. Emission mask. To facilitate the interoperable use of tracking radar equipment, the Commission proposes that Commission licensees that plan to utilize the 5650-5925 MHz band for launch vehicle tracking will need to comply with the applicable RSEC requirements in the NTIA Manual. The NTIA Manual provides emission masks for RSEC Criteria A, RSEC Criteria B, and RSEC Criteria C. The Commission proposes to incorporate the emission masks listed in the NTIA Manual. The Commission seeks comment on this proposal and also request the submission of any alternative emission masks that may be applicable for operations in the band.

99. Power limits. While NTIA requires radar operations to meet RSEC technical requirements, neither the RSEC requirements nor ITU Radio Regulations establish a specific power limitation for emissions inside the assigned bandwidth for radar operations in the 5650-5925 MHz band. However, the Commission notes that an ITU Recommendation, ITU-R M.1638-1, provides characteristics and sharing studies for certain radiolocation uses in the 5250-5850 MHz band that may be of use in helping to establish appropriate technical standards for radar tracking operations in the 5650-5925 MHz band. The Commission seeks comment on whether it is appropriate to derive power limits for operations in the 5650-5925 MHz band using parameters described in Recommendation ITU-R M.1638-1, specifically those found in Annex 1, Table 2, of the recommendation. The Commission seeks comment on appropriate limit(s) identified in the recommendation as well as alternative power levels.

100. Accommodation of other services. The Commission sought comment above on potential restrictions to the non-Federal radiolocation allocation in the 5650-5925 MHz band to enable coexistence with other operations in portions of this band. These other operations include the Intelligent Transportation Systems that operate in 5895-5925 MHz, U-NII devices that operate in 5650-5895 MHz, and fixed-satellite service uplinks that operate in 5850-5925 MHz. The Commission seeks comment on whether to adopt requirements or restrictions in the service rules for the radiolocation service to facilitate coexistence with these other operations. These may include, for example, limiting the portions of the band and/or locations where radiolocation operations may be conducted, restricting use of the radiolocation service only to transponders attached to launch vehicles, requiring coordination with these other operations, or limiting the power that radiolocation stations may transmit in the direction of the geostationary arc.

101. 2360-2395 MHz. As noted in the NPRM, three frequencies in the 2360-2395 MHz band are available for both Federal and non-Federal telemetry and telecommand use for launch and reentry vehicles. This band is currently regulated under Subpart J of the Commission's Part 87 rules. As discussed in Section IV.B, one proposal is to create a separate subpart under the Part 87 rules for the commercial space launch operations under the non-Federal space operations allocation the Commission adopts today for the 2200-2290 MHz band. The Commission seeks comment on whether to administer the 2360-2395 MHz space launch use under this new subpart or whether to retain the Subpart J designation. If the Commission administers the 2360-2395 MHz space launch use under the new subpart, should it apply the licensing scheme set forth under the new subpart or the existing licensing framework provided under the current Subpart J flight testing rules? In that event, should the Commission continue to apply the technical rules currently applicable to these services? Moreover, if the Commission continue to apply the Subpart J rules to the 2360-2395 MHz frequencies that may be used for space launch operations, should the Commission eliminate or amend any requirements under that subpart, including technical requirements such as power and emission limits, in light of other rule changes it proposes to adopt today? The Commission also notes that space launch telemetry and telecommand operations in the 2360-2395 MHz band occur under a Mobile allocation. In contrast, the Commission has adopted a Space Operation allocation for space launch telemetry operations in the 2200-2290 MHz band, while seeking comment on whether to add a Mobile allocation, and proposes to adopt a Space Operation allocation for space launch telecommand operations in the 2025-2110 MHz band. The Commission seeks comment on whether, to facilitate any changes it should make to the 2360-2395 MHz band space launch rules, it should add a primary Space Operation allocation to the band, limited to launch vehicle telemetry and associated telecommand operations, subject to the same restrictions as apply to such operations under the Mobile allocation as specified in footnote US276 of the U.S. Table.

102. While there has been substantial development of equipment for commercial space launches operating in the 2200-2290 MHz band, the Commission has very limited information on the state of commercial space launch equipment operating in the 2360-2395 MHz band. Accordingly, the Commission seeks comment on the current state of equipment development for commercial space launch purposes in the band. The Commission seeks comment on whether any such equipment that has equipment authorization now or is currently in development should be grandfathered from any rule changes it adopts for the 2360-2395 MHz band.

103. Equipment Authorization. Radio Frequency (RF) devices are required to be properly authorized under 47 CFR part 2 prior to being marketed or imported into the United States. Equipment that contains an RF device must be authorized in accordance with the appropriate procedures specified in 47 CFR part 2, subpart J, with certain limited exceptions. These requirements not only minimize the potential for harmful interference, but also ensure that the equipment complies with the rules that address other policy objectives—such as human RF exposure limits. The Commission has two different approval procedures for equipment authorization—Certification and Supplier's Declaration of Conformity (SDoC). The rule part governing the service under which the equipment operates may require that such equipment be authorized under SDoC or receive a grant of certification from a Telecommunication Certification Body. In some instances, a device may perform different functions under multiple rule parts, resulting in the device being subject to more than one type of approval procedure. Part 25, for example, requires equipment authorization for portable earth-station transceivers, e.g., handsets, body-worn devices, antenna-in-keyboard notebook computers, as well as satellite digital audio radio service (SDARS) terrestrial repeaters and mobile-satellite service (MSS) ancillary terrestrial component (ATC) base stations and mobile transceivers. Part 87 generally requires certification for aviation services equipment, with limited exceptions such as flight test station transmitters for limited time periods. In the context of space launch operations, should the Commission require Part 2 equipment authorization for the radio frequencies devices that are being used to provide space launch operations and if so, which procedure is appropriate? Are there any additional or alternative compliance requirements or authorization processes specified in any of our rule parts, including Part 25, Part 87, or Part 90, that may be appropriate for space launch radio frequency devices or would provide analogous models for authorizing such equipment? What should such rules, if any, look like? Commenters should discuss cost and benefits of any proposed equipment authorization process and how such a process would serve the public interest while ensuring the equipment complies with the technical rules applicable to space launch operations.

104. Licensing and Operating Rules for Payload Activities. Although the primary focus of this proceeding is on radio-frequency use by space launch vehicles, space launch operations include launches of satellites and other commercial payloads. Accordingly, the Commission also seeks comment on whether there are improvements to the licensing process that could facilitate more routine licensing for certain payload activities currently addressed through experimental licensing. Launch payloads vary, from traditional geostationary and small satellites, to cargo capsules destined for the ISS, including the SpaceX Crew Dragon capsule transporting human crew to the ISS. Although most commercial payload needs for radiofrequency are addressed through the satellite licensing provisions in Part 25 of the Commission's rules, there are some types of activities that are currently addressed through experimental licensing.

105. For example, involving some of the same frequency bands that are used for space launch activities, SpaceX's cargo and crew capsules utilize S-band frequencies. For links between the capsule and ground stations, SpaceX uses 2106 MHz (earth-to-space) and 2216 MHz (space-to-earth); SpaceX also uses 2203.2 MHz for links between the capsule and the ISS, 2028.78 MHz for links between the ISS and the capsule, 2287.5 MHz for links between the capsule and TDRSS, and 2106.4 MHZ for TDRSS to the Capsule. In addition to SpaceX, another example is the Orbital Sciences Corporation, a Northrop Grumman Systems Corporation Affiliate, and its operations of the Cygnus spacecraft for transporting cargo to ISS, and deploying satellites. The Cygnus spacecraft has used 2287.5 (space-to-Earth) as well as 2287.5 MHz for links between the Cygnus spacecraft and TDRSS, and 2203.2 MHz for links between the Cygnus spacecraft and the ISS. The Commission seeks comment on how to establish frequency allocations and license processes to facilitate commercial space launch operations involving operations of payloads.

106. The Commission seeks comment on whether any changes to the Table of Frequency Allocations it is adopting or proposing herein for the 2025-2110 MHz and 2200-2290 MHz frequency bands are needed to provide for these payload communications. What are the spectrum requirements for such operations? Are there other frequency bands that the Commission should also consider for such uses? Recognizing that this use would also be subject to coordination with NTIA, are there additional technical provisions that would facilitate compatibility with existing Federal and other Non-Federal operations in these frequency bands?

107. In addition, the Commission seeks comment on whether such payload operations should be addressed in Part 25 of the Commission's rules. If so, as these newer commercial operations were not considered when many of the rules were first adopted, are there any modifications to the current Part 25 rules ( e.g., default rules, bond requirements, fees, etc.) that may facilitate licensing? Would a streamlined process along the lines of the recently adopted process for small satellites be appropriate for such operations? Are there other licensing models that can be better suited for the needs of these payload operations?

108. The Commission is also aware of at least one launch operator, Rocket Lab, which intends to operate a spacecraft, derived from a launch vehicle upper stage, which will remain in orbit and function as a payload, equipped with various radios and sensors designed for longer-term operations. One option to license such operation is to require the applicant to apply for both a launch operation license to cover the launch vehicle and a separate license for orbital insertion activities to cover subsequent payload activities, assuming the Commission decides to separate these activities and govern them under separate rule parts ( e.g., Part 87 for the launch activities and Part 25 for the payload activities). To that end, the Commission seeks comment on this proposal and on the point at which operations should be considered to have switched from launch vehicle operations to payload operations ( i.e., which operations should be covered by the Part 87 license and which by the Part 25 license). In addition, reentry operations may be necessary for certain payload vehicles, especially those transporting human crew. The Commission seeks comment on whether there should be distinct regulatory framework for such commercial payload transportation as well as the appropriate authorization approach for such reentry operations. Finally, are there other approaches the Commission should consider for licensing the radiofrequency operations of such objects?

109. In this FNPRM, the Commission separates issues associated with the licensing of commercial space launch operations into space launch vehicle communications operations (including space launch vehicle reentry) and payload communications operations—due to their distinct communications operations and underlying missions. The Commission believes that the telemetry, tracking, and command functions associated with the vehicle launch phase of a space launch are more akin to terrestrial aeronautical mobile and radiolocation operations under Parts 87 and 90, respectively, while the payload stage and associated communications may be more aptly viewed as space operations. Further, the Commission anticipates that operators may have different spectrum needs or seek to address them in different ways. Given these differences, are there any advantages of establishing separate licensing for these activities? Would such an approach provide space launch operators with greater flexibility to seek spectrum tailored to their operations? That said, the Commission seeks comment on other alternatives, including whether it would be appropriate and serve the public interest to license all phases of a commercial space operation under one authorization. The Commission seeks comment on the costs and benefits of such an authorization, including the possible consequences of issuing a single license to cover all aspects of a commercial launch operation and the associated administrative burdens and benefits. For example, would consigning all necessary information under one authorization inadvertently complicate the application and licensing process given the disparate operations involved rather than streamlining or simplifying it? What are the procedural and legal challenges that the Commission needs to consider with such a licensing approach?

110. Launch Vehicle-Satellite Communications. While the new proposed licensing rules for space launch operations would support transmissions for TT&C between commercial space launch vehicles and ground stations, the Commission also seeks comment on authorizing communications between space launch vehicles and other space stations, including satellites. In some instances, the Commission observes that radios designed for communications with the Globalstar or Iridium satellite systems, for example, have been used on space launch vehicles in order to utilize those systems for data relay, including for TT&C purposes. The Commission seeks comment on whether such operations should continue to be licensed on an experimental or otherwise case-by-case basis, or whether these types of operations could be authorized as part of one of the approaches to space launch vehicle licensing discussed in this FNPRM. If commenters support authorization for such uses on a regular basis, are any changes needed to the Table of Frequency Allocations to provide for such operations? Are there existing frameworks from which the Commission could draw to authorize space launch vehicle to satellite communications through a footnote to the domestic Table of Frequency Allocations and appropriate additions or revisions to Part 25? What additional technical provisions would be needed to ensure compatibility with existing systems and services? Commenters proposing any licensing approaches should also discuss costs and benefits of such approaches, including associated administrative burdens or benefits, and how their proposals would ensure the most efficient and effective use of the spectrum in the public interest. For example, the Commission seeks comment on whether any proposed licensing approach for such operations would streamline the licensing processes or complicate them, and on the procedural and legal challenges that the need to be considered with such an approach.

111. Expanded Federal Use of the non-Federal FSS and MSS Bands. Over the past few years, U.S. space policies have evolved to encourage the Federal Government to use commercial space-related systems to meet its satellite communications needs through commercial leasing, which can include investment in Federal earth stations. However, current rules do not protect Federal earth station investments when they are built to connect to commercial satellites. The FCC has collaborated with NTIA over many years on opportunities to provide greater parity between Federal and analogous non-Federal earth stations, recognizing that reliable satellite communications are vital for Federal agencies to accomplish their missions.

112. Nearly eight years ago, the NPRM sought comment on this issue. Specifically, the NPRM sought comment on a proposal to add a co-primary Federal FSS or MSS allocation to several bands together with a footnote that limits primary Federal use of the bands to earth stations communicating with non-Federal space stations. Alternatively, and in lieu of adding the new Federal allocations, the NPRM also sought comment on a proposal to add a footnote to the Table of Allocations outlining certain circumstances under which Federal earth stations operating with non-Federal space stations would be entitled to interference protection. The bands under consideration at that time included a wide range of non-Federal FSS and MSS allocations. The NPRM also proposed that for either approach, Federal agencies could operate earth stations in motion (ESIMs) on an interference protected basis to the same extent as non-Federal licensees. Under those proposals, Federal agencies would be expected to comply with all of the Part 25 rules pertaining to ESIMs and with the footnotes to the Allocation Table regarding ESIMs.

113. In the NPRM, the Commission noted that reliable access to spectrum for commercial launch operations and for federal earth stations were “two separate, but closely related portions of the commercial space sector.” Moreover, the National Space Policy has long recognized both of these issues as vital to continued progress in space. However, while the Commission advances its proposals regarding commercial launch operations in the Order, it notes that the spectrum landscape in non-Federal FSS and MSS allocations has changed significantly in the time since the NPRM was adopted. Our Spectrum Frontiers, 3.7 GHz Service, 6 GHz proceedings, among others, have altered the underlying assumptions about current and expected future uses of many of the frequency bands that were discussed in the NPRM and the subsequent record. Some of the bands under consideration in the NPRM may no longer be appropriate candidates for expanded Federal FSS or MSS use given recent changes in the FCC's licensing or technical rules for the band. Other bands, however, may support greater Federal use.

114. The Commission recognizes again the need for greater parity and certainty in the protections granted to communications between commercial satellites and Federal users. However, the Commission must give careful consideration to the NPRM' s proposals based on the current state of the commercial satellite marketplace. Accordingly, the Commission seeks to refresh the record with respect to the NPRM, which sought comment on expanded Federal use of the 4.0-4.2 GHz, 5.925-6.425 GHz, 11.7-12.2 GHz, 13.75-14.5 GHz, 18.3-19.3 GHz, 19.7-20.2 GHz, 28.35-29.1 GHz, and 29.25-30 GHz frequency bands, among others. The Commission plans to move expeditiously in reviewing and acting on this new record.

115. Some of the bands raised in the NPRM may no longer be suitable for expanded federal use. In the 3.7 GHz Report and Order the Commission established a new 3.7 GHz Service for terrestrial operations in the 3.7-3.98 GHz band and established a transition process for existing non-federal operators in the 3.7-4.2 GHz band. The transition process included protection criteria for existing registered incumbent operators that would continue to operate FSS earth stations in the 4.0-4.2 GHz portion of the band after the transition. At that time, the Commission also found that it would not be in the public interest to allow non-federal operators to register new protected earth stations in the 4.0-4.2 GHz band. Since that time, the Commission completed Auction 107 and announced winning bids totaling a record $81.1 billion in gross bids. Similarly, the Commission recently adopted rules to permit greater use by unlicensed devices of the 5.925-6.425 GHz band, which is the uplink band paired with the 3.7-4.2 GHz downlink band. The Commission has proposed to further expand unlicensed use of this band. Do commenters agree with the Commission's observation that, given the current status of these bands, they may not be suitable candidates for expanded federal use?

116. In the NPRM, the Commission noted that terrestrial services heavily use several segments of the extended Ku-band, including the 10.7-11.7 GHz and 12.7-13.25 GHz bands, and therefore the Commission, at the time, “[did] not anticipate that the [extended Ku-] band will be heavily used by Federal agencies.” Does this remain the case? Does the complexity of coordination between terrestrial and satellite users in these bands outweigh the benefits of expanding Federal users' access to these frequencies? Are there other frequency bands included in the NPRM that should be considered further? Which of the two alternative NPRM proposals for providing Federal access to these bands—adopting a Federal allocation or providing Federal earth stations interference protection through a footnote—is preferable? Are any additional modifications required to either set of proposals with respect to any relevant frequency bands, including whether to include a secondary allocation instead of a co-primary allocation or provide some other means of providing interference protection to Federal earth stations, communicating with non-Federal satellites? What process should the Commission, NTIA, and Federal agencies follow when coordinating Federal earth stations in the relevant bands to receive protection? Should the fact that the Commission has licensed non-geostationary satellite systems with large numbers of satellites in some of these bands since the NPRM was issued impact our decision? Is there a need for the Commission to address Federal access to satellite bands where its rules permit blanket licensing of earth stations, such as the Ku-band and Ka-band, as blanket licensing permits Federal agencies to access commercial satellite systems on what effectively amounts to an equal basis with Commission licensees? Finally, to the extent that certain parties may be concerned about how such proposals, if implemented, might inhibit future repurposing of these bands for other non-federal services, the Commission seeks comment on those concerns and ways to address them.

117. Federal Space Stations in the 399.9-400.05 MHz MSS Band. Currently, U.S. Table footnote US319 prevents Federal space stations from operating in the 399.9-400.05 MHz band even though there is a primary Federal MSS allocation for this band. At the request of NTIA, the NPRM proposed to permit Federal space stations ( i.e., satellites) to operate in this band. The Commission takes this opportunity to invite further comment on the NPRM' s proposal to modify footnote US319 to permit Federal space stations to operate in the 399.9-400.05 MHz band.

118. NTIA made this request to allow the 399.9-400.05 MHz band be used for a new satellite system that will assume some of the traffic currently handled by the Argos satellite system. Argos is a satellite system that was established by the French Space Agency, NASA, and the National Oceanic and Atmospheric Administration (NOAA). Argos is used for a large number of applications, such as monitoring the oceans at thousands of fixed and drifting buoys, tracking the movements of wildlife, relaying information by humanitarian agencies from remote areas, monitoring water resources, and tracking the locations of ships. According to NTIA, establishing a new satellite system in the 399.9- 400.05 MHz band would allow non-environmental applications to be removed from the Argos system which will result in lower interference, higher capacity, and improved reliability and service for both the environmental applications remaining on Argos and the non-environmental applications moved to the new system.

119. The Commission first made the 399.9-400.05 MHz band along with three other frequency bands available for MSS in 1993 to allow deployment of non-geosynchronous low Earth orbit (LEO) satellite systems, called “Little LEO” systems, to provide non-voice services such as data messaging and position determination. Although a Little LEO system had been deployed in other nearby frequency bands, at the time that the NPRM was adopted in 2013 no MSS applicants had requested access to the band. In 2019, the Commission's International Bureau initiated a processing round for non-voice non-geostationary systems in this band as well as the 400.15-401 MHz band. Five applications were included in this processing round. The Commission's International Bureau has granted market access for the 399.9-400.05 MHz band to two of these applicants while the other applications remain pending.

120. The only commenter to address the 399.9-400.05 MHz band in response to the NPRM was Bigelow Aerospace. Bigelow Aerospace suggested that the 399.9-400.05 MHz band be allocated for emergency audio/data and backup communications links for communications between manned space stations or spacecraft and earth stations. Bigelow Aerospace made this suggestion as part of a discussion of the future bandwidth needs of crewed space stations and spacecraft that included suggestions that numerous other bands be used for different communication purposes. Bigelow Aerospace did not address the merits of NTIA's request to open up this band to Federal space stations.

121. The Commission seeks additional comment on the NPRM' s proposal to amend footnote US319 to permit Federal space stations in the 399.9-400.05 MHz band. As indicated by the number of applications the Commission has received to use the band for NVNG MSS operations, the interest in use of the band has significantly changed since the record was developed in response the NPRM. Considering these changes, the Commission seeks to update the record on this issue and on whether modifying footnote US319 to permit Federal space stations to operate in the 399.9-400.05 MHz band would serve the public interest. Allocating spectrum for a new satellite system to supplement Argos may further the reliable provision of important services. However, any Federal satellites in this band will need to coexist with the non-Federal systems to also be deployed in the band. The Commission seeks comment on how this spectrum band can be shared by Federal systems without causing harmful interference to non-Federal systems, including those in the adjacent bands, and if coordination between the relevant systems can resolve any potential interference issues.

122. Future Needs of the Commercial Space Industry. In the Notice of Inquiry ( NOI ) accompanying the NPRM, the Commission launched an inquiry into the future spectrum requirements of the commercial space industry. The NOI sought comment broadly on what other spectrum needs may be important as the commercial space sector continues to develop, including the spectrum requirements for commercial spaceports, the communications needs for other portions of space missions after the launch, and the portions of the Commission's rules that may need to be amended to keep pace with this rapidly changing industry. Therefore, the Commission seeks further comment on these issues and any additional information, data, and proposals that might be relevant to determine current and future spectrum and communications needs of the commercial space industry to facilitate innovations and the sustainability of space exploration and development.

123. Ex Parte Presentations. The proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 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.

124. Comment Period and Filing Procedures. 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.

• During the time the Commission's building is closed to the general public and until further notice, if more than one docket or rulemaking number appears in the caption of a proceeding, paper filers need not submit two additional copies for each additional docket or rulemaking number; an original and one copy are sufficient.

• After COVID-19 restrictions are lifted, the Commission has established that hand-carried documents are to be filed at the Commission's office located at 9050 Junction Drive, Annapolis Junction, MD 20701. This will be the only location where hand-carried paper filings for the Commission will be accepted.

125. 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).

126. Initial Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities of the proposals addressed in this Notice of Proposed Rulemaking. The IRFA is set forth in Appendix E of this Further Notice of Proposed Rulemaking. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the Further Notice of Proposed Rulemaking, and should have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this Further Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with the Regulatory Flexibility Act.

127. Paperwork Reduction Act Analysis. This Further Notice of Proposed Rulemaking contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4)), the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

128. Accordingly, It is ordered that, pursuant to sections 1, 2, 4(i), 5(c), 301, 303(c), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 155(c), 301, 303(c), 303(f), and 303(r), and § 1.411 of the Commission's rules, 47 CFR 1.411, this Report and Order and Further Notice of Proposed Rulemaking is hereby adopted .

129. It is further ordered that the amendments of part 2 of the Commission's rules, as set forth in Appendix A of the Report and Order and Further Notice of Proposed Rulemaking, are adopted , effective thirty (30) days after publication in the Federal Register .

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

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

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 2, 87, and 90 as follows:

The revisions and additions read as follows:

The additions read as follows:

Why we need to publish a rule. Under the Endangered Species Act, critical habitat must be designated, to the maximum extent prudent and determinable, for all species determined to be endangered or threatened. The Lists of Endangered and Threatened Wildlife and Plants are in title 50 of the Code of Federal Regulations (CFR) in part 17 (50 CFR 17.11(h) for wildlife and 50 CFR 17.12(h) for plants). Designations and revisions of critical habitat can only be completed by issuing a rule.

What this document does. This document proposes the designation of critical habitat for the Texas hornshell and announces the availability of the draft economic analysis. The Texas hornshell has been listed as an endangered species under the Act. This rule proposes designation of critical habitat necessary for the conservation of the species.

The basis for our action. Under the Endangered Species Act, any species that is determined to be a threatened or endangered species shall, to the maximum extent prudent and determinable, have habitat designated that is considered to be critical habitat. Section 4(b)(2) of the Endangered Species Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species.

Supporting analyses. We prepared an analysis of the economic impacts of the proposed critical habitat designation and hereby announce the availability of the draft economic analysis for public review and comment.

Our species status assessment report (SSA report) documents the results of the comprehensive biological status review for the Texas hornshell and provides an account of the species' overall viability through forecasting of the species' condition in the future (Service 2018, entire). Additionally, the SSA report contains our analysis of required habitat and the existing conditions of that habitat.

Peer review. We sought comments from independent specialists on the SSA report to ensure that our critical habitat proposal is based on scientifically sound data and analyses. We received feedback from four scientists with expertise in freshwater mussel biology, ecology, and genetics as peer review of the SSA report. The reviewers were generally supportive of our approach and made suggestions and comments that strengthened our analysis. We incorporated these comments into the SSA report, which can be found at http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0021.

We intend that any final action resulting from this proposed rule will be based on the best scientific data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned government agencies, the scientific community, industry, or any other interested party concerning this proposed rule. Because we will consider all comments and information received during the comment period, our final determinations may differ from this proposal.

We particularly seek comments concerning:

(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq. ) including information to inform the following factors such that a designation of critical habitat may be determined to be not prudent:

(a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(b) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;

(d) No areas meet the definition of critical habitat.

(2) Specific information on:

(a) The amount and distribution of Texas hornshell habitat;

(b) What areas that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the species should be included in the designation and why;

(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

(d) What areas not occupied at the time of listing are essential for the conservation of the species. We particularly seek comments regarding:

(i) Whether occupied areas are inadequate for the conservation of the species; and,

(ii) Specific information that supports the determination that unoccupied areas will, with reasonable certainty, contribute to the conservation of the species and, contain at least one physical or biological feature essential to the conservation of the species.

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

(4) Information on the projected and reasonably likely impacts of climate change on the Texas hornshell and proposed critical habitat.

(5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the benefits of including or excluding areas that may be impacted.

(6) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.

(7) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act, in particular for those covered by the Candidate Conservation Agreement (CCA) and Candidate Conservation Agreement with Assurances (CCAA) for the Texas hornshell in the Black and Delaware Rivers in New Mexico and Texas.

(8) Whether any lands should be considered for exclusion under section 4(b)(2) of the Act for national security reasons, whether such exclusion is or is not appropriate, and whether the benefits of excluding any specific area outweigh the benefits of including that area as critical habitat and why.

(9) Whether lands owned by the Kickapoo Indian Reservation of Texas should be considered for exclusion under section 4(b)(2) of the Act, whether such exclusion is or is not appropriate, and whether the benefits of excluding any specific area outweigh the benefits of including that area as critical habitat and why.

(10) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the associated documents of the draft economic analysis, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.

(11) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

All comments submitted electronically via http://www.regulations.gov will be presented on the website in their entirety as submitted. For comments submitted via hard copy, we will post your entire comment—including your personal identifying information—on http://www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov.

All previous Federal actions are described in the final rule listing the Texas hornshell as an endangered species under the Act published in the Federal Register on February 9, 2018 (83 FR 5720).

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

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

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

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

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

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

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

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

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

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.

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

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

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

Within the identified geographical area occupied at the time of listing (see below, Areas Occupied at the Time of Listing ), the habitat areas used by the species are in Texas, New Mexico, and Mexico. Because we do not designate as critical habitat areas outside the United States (50 CFR 424.12(g)), we did not examine areas on the Mexican side of the Rio Grande; the critical habitat extends only as far into the river as the United States' jurisdictional boundary, i.e., to the middle of the river. However, conservation of habitat that meets the conditions described in this designation in Mexico may be important to recovery of the species.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:

(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;

(iv) No areas meet the definition of critical habitat; or

(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.

We did not identify any of the factors above to apply to the Texas hornshell. Therefore, we find designation of critical habitat is prudent for the species.

Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Texas hornshell is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

(i) Data sufficient to perform required analyses are lacking, or

(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”

When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).

At the time of our August 10, 2016, proposed rule to list the species, we found that critical habitat was not determinable due to insufficient knowledge of the biological needs of the species. We have continued to review the available information related to the Texas hornshell and newly acquired information necessary to perform this assessment, and we reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. We examined collection reports and occupancy models for the Texas hornshell (Randklev et al. 2017, entire). Additionally, we prepared a draft economic analysis. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Texas hornshell.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species.

The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic needed to support the life history of the species. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.

Most freshwater mussels, including Texas hornshell, are found in aggregations, called mussel beds, that vary in size from about 50 to greater than 5,000 square meters (m 2 ), separated by stream reaches in which mussels are absent or rare (Vaughn 2012, p. 983). Texas hornshell larvae (called glochidia) are parasites that must attach to a host fish (generally river carpsucker ( Carpiodes carpio ), grey redhorse ( Moxostoma congestum ), and red shiner ( Cyprinella lutrensis )). A population of Texas hornshell incorporates more than one mussel bed; it is the collection of mussel beds within a stream reach between which infested host fish may travel, allowing for ebbs and flows in mussel bed density and abundance over time throughout the population's occupied reach. Therefore, resilient Texas hornshell populations must occupy stream reaches long enough so that stochastic events that affect individual mussel beds do not eliminate the entire population. Repopulation by infested host fish from other mussel beds within the reach can allow the population to recover from these events. Longer stream reaches are more likely to support populations of Texas hornshell into the future than shorter stream reaches. Therefore, we determine that long stream reaches are an important component of a riverine system with habitat to support all life stages of Texas hornshell.

Texas hornshell need flowing water for survival. They are not found in lakes or in pools without flow, or in areas that are regularly dewatered. River reaches with continuous flow support all life stages of Texas hornshell, while those with little or no flow do not. Flow rates needed by the species will vary depending on river size, location, and substrate type.

Additionally, Texas hornshell occur in flow refuges such as crevices, undercut riverbanks, travertine shelves, and large boulders. These refuges must have seams of clay or other fine sediments within which the mussels may anchor, but not so much excess sediment that the mussels are smothered. Those areas with clean-swept substrate (substrate not covered in sediment) with seams of fine sediments in crevices are suitable Texas hornshell habitat, as well as habitat for their host fish.

Freshwater mussels, as a group, are sensitive to changes in water quality parameters such as dissolved oxygen, salinity, ammonia, and pollutants. Habitats with appropriate levels of these parameters are considered suitable, while those habitats with levels outside of the appropriate ranges are considered less suitable. We have used information available for other species of freshwater mussels to inform the needs of Texas hornshell. Juvenile freshwater mussels are particularly susceptible to low dissolved oxygen levels. Juveniles will reduce feeding behavior when dissolved oxygen is between 2-4 milligrams per liter (mg/L), and mortality has been shown to occur at dissolved oxygen levels below 1.3 mg/L. Additionally, Texas hornshell will die at salinity levels of 7 parts per thousand (ppt) for more than several weeks (Lang 2001, pp. 10-11). Juvenile mussels of other species have been shown to experience complete mortality after 7 days at salinity levels greater than 4 ppt (Blakeslee et al. 2013, p. 2851)

The release of pollutants into streams from point and nonpoint sources have immediate impacts on water quality conditions and may make environments unsuitable for habitation by mussels. Early life stages of freshwater mussels are some of the most sensitive organisms of all species to ammonia and copper (Naimo 1995, pp. 351-352; Augsperger et al. 2007, p. 2025). Additionally, sublethal effects of contaminants over time can result in reduced feeding efficiency, reduced growth, decreased reproduction, changes in enzyme activity, and behavioral changes to all mussel life stages. Even wastewater discharges with low ammonia levels have been shown to negatively affect mussel populations. Therefore, we determine that stream reaches with the following water quality parameters are suitable for Texas hornshell:

As discussed above, Texas hornshell larvae are parasites that must attach to a host fish to develop into juvenile mussels. Texas hornshell primarily use river carpsucker, gray redhorse, and red shiner as hosts. The river carpsucker and red shiner are widespread throughout the Texas hornshell's occupied range (Hubbs 1990, pp. 90-91; Levine et al. 2012, p. 1857). The presence of these fish species, either singly or in combination, supports the life-history needs of the Texas hornshell.

We derive the specific physical or biological features essential to the conservation of the Texas hornshell from studies of this species' habitat, ecology, and life history as described below. Additional information can be found in the final listing rule published in the Federal Register on February 9, 2018 (83 FR 5720), and the Species Status Assessment for the Texas Hornshell (Service 2018, entire). We have determined that the following physical or biological features are essential to the conservation of the Texas hornshell:

A riverine system with habitat to support all life stages of the Texas hornshell, which includes:

(a) Flowing water at rates high enough to support clean-swept substrate but not so high as to dislodge individuals;

(b) Crevices beneath boulders, shelves, and within undercut banks with seams of fine sediment;

(c) River carpsucker, red shiner, and gray redhorse present; and

(d) Water quality parameters within the following ranges:

(i) Salinity below 0.9 ppt;

(ii) Ammonia below 0.7 mg/L;

(iii) Low levels of contaminants; and

(iv) Dissolved oxygen levels within substrate greater than 1.3mg/L.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of this species may require special management considerations or protection to reduce the following threats: Increased fine sediment, water quality impairment, loss of flowing water, and barriers to fish movement.

Management activities that could ameliorate these threats and protect the integrity of the stream ecosystem include restoring or maintaining the natural hydrology of the stream, removing livestock from Texas hornshell habitats, preventing chemical spills, and appropriately maintaining bridges and other stream crossings to limit sediment input.

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not currently proposing to designate any areas outside the geographical area occupied by the species at the time of listing in February 2018.

The SSA report contains much of the information used to identify critical habitat for Texas hornshell, which includes existing State recovery plans, numerous survey reports on streams throughout the species' range, and museum records of historical locations (Service 2018).

The proposed critical habitat designation does not include all streams known to have been occupied by the species historically; instead, it focuses on occupied streams within the historical range that have retained the necessary physical and biological features (PBFs) that will allow for the maintenance and expansion of existing populations. The following streams meet the definition of areas occupied by the species at the time of listing: Black River, Delaware River, Pecos River, Devils River, and Rio Grande. No developed areas occur within the proposed designation except for road crossings of streams, which do not remove the suitability of these areas for this species, because habitat is still present.

In summary, for areas proposed as critical habitat, we delineated critical habitat unit boundaries using the following criterion: Evaluate habitat suitability of stream segments within the geographic area occupied at the time of listing, and delineate those segments that contain some or all of the PBFs to support life-history functions essential for conservation of the species.

As a final step, we evaluated those occupied stream segments identified through the above analysis and refined the starting and ending points by evaluating the presence or absence of appropriate PBFs. We selected upstream and downstream cutoff points to omit areas that are highly degraded and are not likely to support the Texas hornshell. For example, permanently dewatered areas or areas in which there was a change to unsuitable parameters ( e.g., water quality, bedrock substrate) were used to mark the start or endpoint of a stream segment proposed for designation. Critical habitat stream segments were then mapped using ArcMap version 10 (Environmental Systems Research Institute, Inc.), a Geographic Information Systems program.

The areas proposed for designation as critical habitat provide sufficient stream habitat for adult Texas hornshell, as well as for the habitat needs for juveniles and the fish species that serve as hosts for the Texas hornshell's parasitic larvae. In general, the PBFs of critical habitat are contained within the riverine ecosystem formed by the channel at bankfull stage. Texas hornshell use the riverine ecosystem for feeding, breeding, and sheltering.

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

We are proposing for designation of critical habitat river miles that we have determined were occupied at the time of listing and contain one or more of the physical or biological features that are essential to support life-history processes of the species.

The critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-2017-0030, on our internet site ( https://www.fws.gov/southwest/es/TexasCoastal/ ), and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above).

We are proposing to designate 463.6 mi (745.9 km) in five units as critical habitat for Texas hornshell. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for Texas hornshell. The five areas we propose as critical habitat are: (1) Pecos Tributary Unit; (2) Pecos River Unit; (3) Devils River Unit; (4) Rio Grande—Lower Canyons Unit; and (5) Rio Grande—Laredo Unit. Table 1 shows the occupancy of the units, the land ownership, and approximate areas of the proposed designated areas for the Texas hornshell.