The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, -400F, 747SR, and 747SP airplanes. The NPRM published in the Federal Register on June 7, 2021 (86 FR 30216). The NPRM was prompted by reports of cracks found in the front spar shear tie and at the intercostal lug fitting at certain locations. In the NPRM, the FAA proposed to require repetitive detailed and surface HFEC inspections of the front spar shear tie and intercostal lug fitting at certain locations for any cracking, and applicable on-condition actions. The FAA is issuing this AD to address any cracking in these areas that could result in the loss of limit load capability in a principal structural element, the potential inability to restrain the cargo for certain cargo configurations, and the potential for a center fuel tank rupture for certain cargo configurations under limit load conditions, which could adversely affect the structural integrity of the airplane.

The FAA received a comment from Boeing who supported the NPRM without change.

The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Requirements Bulletin 747-53A2904 RB, dated December 16, 2020. This service information specifies procedures for repetitive detailed and surface HFEC inspections of the station 1000 front spar shear tie at the left and right side buttock line (BL) 11.33, BL 33.99, BL 57.50, and BL 75.92, and of the intercostal lug fitting at the left and right side BL 11.33, for any cracking, and applicable on-condition actions. On-condition actions include repair, installing a new front spar shear tie, and installing a new intercostal lug fitting. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD will affect 117 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary installations and repairs that would be required based on the results of the inspection. The agency has no way of determining the number of aircraft that might need these installations and repairs:

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

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

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

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

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

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0280, dated December 14, 2020 (EASA AD 2020-0280) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Airbus SAS Model A318-111, -112 and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; and Model A320-211, -212, -214, -231, -232, and -233 airplanes. EASA AD 2020-0280 supersedes EASA AD 2014-0278, dated December 19, 2014 (which corresponds to FAA AD 2017-12-13, Amendment 39-18928 (82 FR 27983, June 20, 2017) (AD 2017-12-13)).

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2017-12-13. AD 2017-12-13 applied to certain Airbus SAS Model A320-212, -214, -232, and -233 airplanes. The NPRM published in the Federal Register on April 22, 2021 (86 FR 21228). The NPRM was prompted by a report of a crack found during an inspection of the pocket radius of the fuselage frame, and a determination that similar cracks may develop in nearby areas of the fuselage frame and that additional airplanes are subject to the unsafe condition. The NPRM proposed to require new repetitive inspections at the LH and RH sides of the fuselage skin at certain frames for any cracking, and repair if necessary, as specified in EASA AD 2020-0280.

The FAA is issuing this AD to address cracking of the pocket radius, which could lead to in-flight decompression of the airplane and possible injury to the passengers. See the MCAI for additional background information.

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

United Airlines indicated its support for the NPRM.

Delta Air Lines (DAL) requested that paragraph (h)(3) of the proposed AD reference both the Repair and Design Approval Form (RDAF) and the Airbus Repair Design Approval Sheet (RDAS). DAL stated that Airbus has entered into service the RDAF which supersedes the RDAS. DAL commented that if the proposed AD does not reflect this change, operators may be required to obtain an alternative method of compliance (AMOC) in order to use the RDAF to comply with the requirements specified in paragraph (h)(3) of the proposed AD.

The FAA disagrees with the commenter's request. The exception in paragraph (h)(3) removes any need to reference the RDAS or the RDAF. Instead, the specific reference to a specific repair instructions document is replaced with repair instructions approved, and within the compliance time specified in the repair approval, using a method approved by the Manager, Large Aircraft Section, International Validation Branch, FAA; or EASA; or Airbus SAS's EASA Design Organization Approval (DOA). The RDAS and the RDAF are within the provision to use a method approved by Airbus SAS's EASA DOA. The FAA has not changed this AD in this regard.

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

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

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

EASA AD 2020-0280 describes procedures for doing repetitive external general visual inspections or special detailed inspections ( i.e., phased array ultrasonic technology inspections of the external skin, or detailed inspections for primer/paint cracks and high frequency eddy current inspections of the internal skin) at the LH and RH sides of the fuselage skin, above stringer 6 from FR35 to FR47, for any cracking, 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.

The FAA estimates that this AD affects 439 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0222, dated October 14, 2020 (EASA AD 2020-0222) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Airbus SAS Model A321-211, -231, and -232 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A321-211, -231, and -232 airplanes. The NPRM published in the Federal Register on March 8, 2021 (86 FR 13229). The NPRM was prompted by a report of false drill starts found around the latch hook mounting holes of certain door frames of the fuselage due to erroneous manufacturing processes. The NPRM proposed to require a one-time inspection of the area around the latch hook mounting holes of the forward and aft door frames to detect damage from false drill starts, and repair if necessary, as specified in EASA AD 2020-0222.

The FAA is issuing this AD to address damage from false drill starts, which could result in reduced structural integrity of the airplane. See the MCAI for additional background information.

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

Delta Air Lines (DAL) asked that the FAA add an exception to paragraph (h) of the proposed AD as follows: (1) Require inspections and corrective action, if applicable, on all airplanes having manufacturer serial numbers (MSN's) identified in the applicability, regardless of “affected” part numbers referenced in EASA AD 2020-0222; or (2) Add a clarification that if “affected parts” are not found, no inspection is required where a frame replacement has occurred on an affected frame location, and the potential manufacturing defect has been removed because there would be a new part number designation for the spliced area and the airplane could be considered as no longer be affected.

The FAA does not agree with the commenter's request. EASA AD 2020-0222 is applicable to specific airplane MSNs, with an assertion that the current configuration continues to be installed with the part numbers that are described in EASA AD 2020-0222 as “affected part numbers.” The FAA does not have any information provided by EASA that there are potential configurations that have EASA-approved modifications that are exempt from the unsafe condition. If the MSN configuration DAL referred to does not include those “affected part numbers,” then there is no corresponding action for those airplanes, in accordance with the requirements in this AD. The FAA has not changed this AD in this regard.

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

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

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

EASA AD 2020-0222 describes procedures for a one-time detailed inspection of the area around the latch hook mounting holes of the forward and aft door frames to detect damage from false drill starts, and repair of any damage found. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 21 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

The FAA estimates the following costs to do any necessary on-condition repairs that are required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition repairs:

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0024, dated January 19, 2021 (EASA AD 2021-0024) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all ATR—GIE Avions de Transport Régional Model ATR42-200, -300, and -320 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-23-13, Amendment 39-21330 (85 FR 73407, November 18, 2020) (AD 2020-23-13). AD 2020-23-13 applied to all ATR—GIE Avions de Transport Régional Model ATR42-200, -300, and -320 airplanes. The NPRM published in the Federal Register on May 13, 2021 (86 FR 26195). The NPRM was prompted by false activation of the stall warning system due to wiring damage on the wire bundle between an AOA probe and the crew alerting computer, and the development of a wiring modification and AFM update to address the unsafe condition. The NPRM proposed to continue to require the actions in AD 2020-23-13, and also proposed to require for certain airplanes, modifying the captain stick shaker wiring, and for all airplanes, revising the existing AFM and applicable corresponding operational procedures to incorporate procedures for the stick pusher/shaker, as specified in EASA AD 2021-0024.

The FAA is issuing this AD to address false activation of the stall warning system, which could result in loss of control of the airplane during take-off and landing phases. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. The Air Line Pilots Association, International (ALPA) indicated its support for the NPRM.

The FAA has added paragraph (h)(7) of this AD to clarify what “discrepancies” are since the ATR Airworthiness Operators Message (AOM) referred to in EASA AD 2021-0024 does not use the word “discrepancy.”

The FAA has revised paragraph (h)(4)(ii) of this AD to clarify that, for inspections done on or before December 3, 2020, those reports must be submitted “within 30 days after December 3, 2020.” In the proposed AD, the FAA inadvertently stated that the reports were to be submitted “within 30 days after the effective date of this AD.” However, this requirement is retained from AD 2020-23-13 and the FAA intends for the compliance time to remain the same.

The FAA reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. The FAA has determined that these minor changes:

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

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

The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

EASA AD 2021-0024 describes procedures for a one-time detailed visual inspection of the wire bundles between the left- and right-hand AOA probes and the crew alerting computer for discrepancies (including, but not limited to, wire damage, missing or damaged conduits, and incorrect routing of wiring and conduits), and, depending on findings, applicable corrective actions. EASA AD 2021-0024 also describes procedures for modifying the captain stick shaker wiring, and amending the systems limitations section of the applicable AFM to incorporate procedures for the stick pusher/shaker. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Pocahontas Municipal Airport, Pocahontas, IA, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 24800; May 10, 2021) for Docket No. FAA-2021-0278 to amend the Class E airspace extending upward from 700 feet above the surface at Pocahontas Municipal Airport, Pocahontas, IA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

The NPRM inadvertently omitted the necessity to update the coordinates of Pocahontas Municipal Airport. That update is being made in this action.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface at Pocahontas Municipal Airport, Pocahontas, IA, by removing the Pocahontas NDB and associated extension from the airspace legal description; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is the result of an airspace review due to the decommissioning of the Pocahontas NDB which provided navigation information for the instrument procedures at this airport.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it revokes the Class E airspace extending upward from 700 feet above the surface at Standish Industrial Airport, Standish, MI, due to the closure of the airport and cancellation of the instrument procedures at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 24792; May 10, 2021) for Docket No. FAA-2021-0277 to revoke Class E airspace extending upward from 700 feet above the surface at Standish Industrial Airport, Standish, MI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 revokes the Class E airspace extending upward from 700 feet above the surface at Standish Industrial Airport, Standish, MI.

This action is the result of an airspace review due to the closing of the Standish Industrial Airport, Standish, MI, and cancellation of the instrument procedures at this airport.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface in Tuscaloosa, AL, to support IFR operations in the area.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 33588, June 25, 2021) for Docket No. FAA-2021-0171 to amend Class E airspace extending upward from 700 feet above the surface at Tuscaloosa National Airport, Tuscaloosa, AL, due to the decommissioning of the CRIMSON VORTAC.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in Paragraph 6005, of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic routes, and reporting points.

The FAA is amending 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface at Tuscaloosa National Airport, Tuscaloosa, AL, as the CRIMSON VORTAC is being decommissioned. The Class E airspace extending upward from 700 feet above the surface is amended by increasing the radius from 7.0 miles to 9.4 miles, adding an extension 4.0 miles each side of the 117° bearing from the airport extending from the 9.4-mile radius to 11.8 miles southeast of the airport and within 2.0 miles each side of the of the 041° bearing extending from the 9.4-mile radius to 11.5 miles northeast of the airport and within 4.0 miles each side of the 296° bearing extending from the 9.4-mile radius to 10.8 miles northwest of the airport and within 2.0 miles each side of the 221° bearing extending from the 9.4-mile radius to 11.8 miles southwest of the airport. This action also updates the name of Tuscaloosa National Airport, (formerly Tuscaloosa Municipal Airport) AL.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Scott City Municipal Airport, Scott City, KS, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 20100; April 16, 2021) for Docket No. FAA-2021-0159 to amend the Class E airspace extending upward from 700 feet above the surface at Scott City Municipal Airport, Scott City, KS. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface within a 6.5-mile (decreased from 6.9-mile) radius of Scott City Municipal Airport, Scott City, KS, and updates geographical coordinates of the airport to coincide with the FAA's aeronautical database.

This action is the result of an airspace review due to the decommissioning of the Scott City NDB which provided navigation information for the instrument procedures at this airport.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section. The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the typed of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CRF part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

In a rule published on February 19, 2020 (85 FR 9614), effective April 20, 2020, amendatory instruction 51 for § 3011.300 revised paragraph (a) in its entirety, instead of revising paragraph (a) introductory text, which lead to paragraphs (a)(1) through (5) being omitted from the CFR. This document corrects the error by adding paragraphs (a)(1) through (5) to § 3011.300.

For the reasons set out in the preamble, 39 CFR part 3011 is corrected by making the following correcting amendment:

On April 15, 2021, EPA published a notice of proposed rulemaking (NPRM) for the District. 86 FR 19793. The NPRM proposed approval of DC's regional haze plan for the second implementation period (“DC DOEE 2019 Regional Haze SIP submission”), which runs through 2028.

In the 1977 CAA amendments, Congress created a program for protecting visibility in the nation's mandatory Class I Federal areas, which include certain national parks and wilderness areas. 1 42 U.S.C 7491. The CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution”, 2 and directs EPA to promulgate regulations to assure reasonable progress toward meeting this national goal. 42 U.S.C. 7491(a)(4). On July 1, 1999, EPA promulgated the RHR, which is codified at 40 CFR 51.308. 3 See 64 FR 35714. Additional background and information about regional haze and the regional haze program is included in the April 15, 2021 proposal. 86 FR 19793.

To address regional haze visibility impairment, the 1999 RHR established an iterative planning process that requires states in which Class I areas are located and states “the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area to periodically submit SIP revisions to address regional haze visibility impairment. 42 U.S.C. 7491(b)(2); 40 CFR 51.308(b) and (f); see also 64 FR 35768 (July 1, 1999). Under the CAA, each SIP submission must contain “a long-term (ten to fifteen years) strategy for making reasonable progress toward meeting the national goal.” 42 U.S.C. 7491(b)(2)(B). States' first regional haze SIP submissions were due by December 17, 2007, 40 CFR 51.308(b), with subsequent SIP submissions containing revised long-term strategies originally due July 31, 2018, and every ten years thereafter. 64 FR 35768.

On January 10, 2017, EPA promulgated revisions to the RHR that apply for the second and subsequent implementation periods. 82 FR 3078. The revisions to the regional haze program focused on the requirement that States' SIPs contain long-term strategies for making reasonable progress towards the national visibility goal. Among other changes relative to the first period requirements, the 2017 RHR Revisions adjusted the deadline for States to submit their second-implementation-period SIP revisions from July 31, 2018 to July 31, 2021, clarified the order of analysis and the relationship between the reasonable progress goals (RPGs) and the long-term strategy, and focused on making visibility improvements on the days with the most anthropogenic visibility impairment, as opposed to the days with the most visibility impairment overall. EPA has issued several guidance documents relevant to SIP development for the second implementation period, including the August 2019 “Guidance on Regional Haze State Implementation Plans for the Second Implementation Period” (“2019 Guidance”). 4

Because the air pollutants and pollution affecting visibility in Class I areas can be transported over long distances, successful implementation of the regional haze program requires long-term, regional coordination among multiple jurisdictions and agencies that have responsibility for Class I areas and the emissions that impact visibility in those areas. In order to address regional haze, states need to develop strategies in coordination with one another, considering the effect of emissions from one jurisdiction on the air quality in another. Five regional planning organizations (RPOs), which include representation from state and tribal governments, EPA, and federal land managers (FLMs), were developed in the lead-up to the first implementation period to address regional haze. RPOs evaluate technical information to better understand how emissions from state and tribal land impact Class I areas across the country, pursue the development of regional strategies to reduce emissions of particulate matter and other pollutants leading to regional haze, and help states meet the consultation requirements of the RHR.

One of the five RPOs described above is the Mid-Atlantic/Northeast Visibility Union (MANE-VU). MANE-VU is a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Mid-Atlantic and Northeast corridor of the United States. The District, as well as other states and tribal governments along the Mid-Atlantic and Northeast corridor, are members of MANE-VU.

EPA published a final rule fully approving the DC regional haze SIP submission for the first implementation period on February 2, 2012 (77 FR 5191), and approved a five-year progress report as a SIP revision into the DC SIP on August 10, 2017 (82 FR 37305). On November 8, 2019, the District submitted another SIP revision, developed with the technical information from MANE-VU, to address the jurisdiction's regional haze obligations for the second implementation period, which runs through 2028. On April 15, 2021, EPA proposed to approve the DC DOEE 2019 Regional Haze SIP submission as meeting the applicable statutory and regulatory requirements. 86 FR 19793.

In the April 15, 2021 publication, EPA also proposed to correct an error in the citations of the regulatory provisions in a previous action—the final rule (FR) and identification of plan of the DC NOx RACT rule (February 24, 2020, 85 FR 10295)—according to our authority to make corrections to prior SIP actions under Section 110(k)(6) of the CAA. As we noted in the NPRM, the DC DOEE 2019 Regional Haze SIP submission relies in part on this rule.

Under the CAA and EPA's regulations, each state, including the District, must include in its SIP a long-term (ten to fifteen years) strategy for making reasonable progress toward meeting the national goal of remedying any existing and preventing any future anthropogenic visibility impairment in Class I areas. 42 U.S.C. 7491(b)(2)(B). To this end, 40 CFR 51.308(f) lays out the process by which states determine what constitutes their long-term strategies, with the order of the requirements in 40 CFR 51.308(f)(1) through (3) generally mirroring the order of the steps in the reasonable progress analysis and (f)(4) through (6) containing additional, related requirements. In addition, the SIP submissions for the second implementation period must address the requirements in 40 CFR 51.308(g)(1) through (5) pertaining to periodic reports describing progress towards the RPGs, 40 CFR 51.308(f)(5), as well as requirements for FLM consultation that apply to all visibility protection SIPs and SIP revisions. 40 CFR 51.309(i).

As discussed in the April 15, 2021 (86 FR 19793) NPRM, in accordance with CAA sections 169A and the RHR at 40 CFR 51.308(f), on November 8, 2019, DC DOEE submitted a revision to the DC SIP to address the jurisdiction's regional haze obligations for the second implementation period. The revision included the analyses conducted by MANE-VU and the District's determinations based on those analyses; the District's long-term strategy for making reasonable progress; and the District's assessment of progress made since the first implementation period in reducing emissions of visibility impairing pollutants and the visibility improvement progress at nearby Class I areas. EPA evaluated the District's submission against the requirements of the CAA and RHR for the second implementation period of the regional haze program. The following is a summary of selected components of the District's SIP submission; EPA's full evaluation of the complete submission against all applicable regional haze requirements for the second implementation period is contained in Section IV of the April 15, 2021 NPRM.

The core component of a regional haze SIP submission is a long-term strategy that addresses regional haze in each Class I area within a state's borders and each Class I area that may be affected by emissions from the state. The long-term strategy “must include the enforceable emissions limitations, compliance schedules, and other measures that are necessary to make reasonable progress, as determined pursuant to [40 CFR 51.308](f)(2)(i) through (iv).” 40 CFR 51.308(f)(2). The amount of progress that is “reasonable progress” is determined by applying the four statutory factors in CAA section 169A(g)(1) in an evaluation of potential control options for sources of visibility impairing pollutants, which is referred to as a “four-factor” analysis. The RHR refers to the controls identified pursuant to a four-factor analysis as “emission reduction measures,” see 40 CFR 51.308(f)(2)(i); these measures represent the level of emissions that a particular source or group of sources need to achieve to make reasonable progress towards the national visibility goal. States' SIPs must include “enforceable emissions limitations, compliance schedules, and other measures” ( i.e., any compliance tools) for the emission reduction measures they have determined are necessary to make reasonable progress pursuant to four-factor analysis. 40 CFR 51.308(f)(2).

MANE-VU's strategy, on which the District relied to satisfy its requirements for the second implementation period, included a combination of (1) measures for certain source sectors and groups of sources that the RPO determined were reasonable for states to pursue, and (2) a request for member states to conduct four-factor analyses for individual sources that it identified as contributing to visibility impairment. MANE-VU developed a set of emissions reduction measures for making reasonable progress in the five MANE-VU Class I areas. MANE-VU refers to each of the components of its overall strategy as an “Ask” of its member states. The District's submission discussed each of the Asks and explained why or why not each is applicable and how it has complied with the relevant components of the emissions control strategy MANE-VU has laid out for its states. A detailed description about the District's response to the six MANE-VU Asks and EPA's evaluation of the District's responses and compliance with 40 CFR 51.308(f)(2)(i) can be found in Section IV. E. of the April 15, 2021 NPRM.

The NPRM also sets out at length the other requirements in the RHR that the DC DOEE 2019 Regional Haze SIP submission must meet to be approved, EPA's evaluation of the DC DOEE 2019 Regional Haze SIP submission against those requirements, and EPA's conclusion that the District has met its requirements under 40 CFR 51.308 with respect to its regional haze SIP for the second implementation period, the DC DOEE 2019 Regional Haze SIP submission. In particular, EPA evaluated these requirements, as set forth in the NPRM, including: (1) Monitoring strategy and other implementation plan requirements; (2) requirements for RPG; and (3) requirements for state and FLM coordination. These other specific requirements of the CAA and EPA's RHR, and the rationale for EPA's proposed action, are more fully explained in the NPRM and will not be restated here.

EPA received one comment supporting our proposed action in the April 15, 2021 NPRM. The comment received is in the docket for this rulemaking action. EPA received no adverse comments.

EPA is approving the revision to the District of Columbia SIP submitted by the District through DC DOEE on November 8, 2019. EPA is approving the District's SIP submission as satisfying the regional haze requirements for the second implementation period.

In addition, EPA is correcting errors in the regulatory citation in our February 24, 2020 (85 FR 10295) final action on the DC NO X RACT rule and is codifying this correction by revising the appropriate entries under 40 CFR 52.470 (Identification of Plan). EPA approved the District's revision to the DC NO X RACT rule (20 DCMR 805) into the SIP on February 24, 2020. 85 FR 10295. However, after we finalized the rulemaking, EPA discovered that we had erred in identifying the particular sections of the DC NO X RACT rule for incorporation by reference into the DC SIP. EPA is amending the table in paragraph (c) of 40 CFR 52.470 to correctly reflect our intended approval of 20 DCMR sections 805.1(a), 805.1(a)(2), 805.4(a), and 805.4(b), described as follows.

EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Amendments to 20 District of Columbia Municipal Regulations (20 DCMR) Chapter 8, section 805.4:

a. Amending sections 805.4(a)(1) and (2) to set NO X emission limitations for any stationary combustion turbines with a heat input rating greater than fifty million (50,000,000) BTU per hour;

b. Amending section 805.4(a)(3) to set NO X emission limitations for certain stationary combustion turbines with a heat input rating less than or equal to fifty million (50,000,000) BTU per hour;

c. Amending section 805.4(a)(4) to set NO X emission limitations for certain stationary combustion turbines with a heat input rating less than or equal to ten million (10,000,000) BTU per hour;

d. Amending section 805.4(b) to replace requirements for stationary combustion turbines with an energy input capacity of one hundred million (100,000,000) BTU per hour or greater which is operated for less than five hundred (500) hours per year with testing and continuous monitoring requirements for any person required to comply with section 805.4.

These regulatory changes to section 805 were adopted on November 27, 2018, and effective on the date of publication, December 14, 2018, in the District of Columbia Register (Vol. 65, Number 51, page 013499, December 14, 2018).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 CAA. Accordingly, this 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 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 CAA; 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 1, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action pertaining to the District's regional haze state implementation plan for the second implementation period and correction for the RACT rule for major stationary sources of NO X may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0475 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before November 1, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2020-0475, by one of the following methods:

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

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

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

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

In the Federal Register of December 21, 2020 (85 FR 82998) (FRL-10016-93), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 0E8860) by IR-4, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR 180.599 be amended by establishing a tolerance for the residue of the miticide acequinocyl [2-(acetyloxy)-3-dodecyl-1,4-naphthalenedione] and its metabolite acequinocyl-OH [2-dodecyl-3-hydroxy-1,4-naphthoquinone], expressed as acequinocyl, in or on tropical and subtropical, medium to large fruit, smooth, inedible peel subgroup 24B at 7 parts per million (ppm). That document referenced a summary of the petition prepared by IR-4, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA is establishing the tolerance for the tropical and subtropical, medium to large fruit, smooth, inedible peel subgroup 24B at 4 ppm. The reason for this change is explained in Unit IV.C.

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

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

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

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

Toxicological profile. For a discussion of the Toxicological Profile of acequinocyl, see Unit III.A. of the June 7, 2018 rulemaking (83 FR 26369) (FRL-9978-20).

Toxicological Points of Departure/Levels of Concern. For a summary of the Toxicological Points of Departure/Levels of Concern for acequinocyl used for human risk assessment, please reference Unit III.B. of the January 18, 2017 rulemaking (82 FR 5409) (FRL-9956-85).

Exposure assessment. Much of the exposure assessment remains the same although updates have occurred to accommodate exposures from the petitioned-for tolerance. These updates are discussed in this section; for a description of the rest of the EPA approach to and assumptions for the exposure assessment, please reference Unit III.C. of the June 7, 2018 rulemaking.

EPA's dietary exposure assessments have been updated to include the additional exposure from the new use of acequinocyl on the commodities in tropical and subtropical, medium to large fruit, smooth, inedible peel subgroup 24B. The assessment used the same assumptions as the June 7, 2018 final rule concerning tolerance-level residues, default processing factors for all processed commodities and 100 percent crop treated.

Drinking water exposure. EPA has revised the acequinocyl drinking water assessment since the June 7, 2018 rulemaking to reflect the water solubility limits of acequinocyl and its hydroxylated degradate acequinocyl-OH (R1) due to uncertainty in the environmental fate study data. The recommended acute estimated drinking water concentration (EDWC) is 21 parts per billion (ppb) based on the water solubility limits of acequinocyl and acequinocyl-OH added together. The recommended chronic EDWC is 14 ppb, which is the maximum amount of acequinocyl residues of concern that may be present over a year. This level is based on the solubility of the degradate acequinocyl-OH (R1), which persists over the chronic exposure period.

Non-occupational exposure. There are no new residential (non-occupational) exposures associated with the new proposed use. The assessment of exposures to the currently registered uses on residential sites ( e.g., ornamentals for landscapes, gardens, and trees) has not changed since the June 7, 2018 rulemaking.

Cumulative exposure. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to acequinocyl and any other substances and acequinocyl does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that acequinocyl has a common mechanism of toxicity with other substances.

Safety Factor for Infants and Children. EPA continues to conclude that there are reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor. See Unit III.D. of the June 7, 2018 rulemaking for a discussion of the Agency's rationale for that determination.

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

Acute dietary risks are below the Agency's level of concern of 100% of the aPAD; they are 96% of the aPAD for children 1 to 2 years old, the population subgroup with the highest exposure estimate. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD; they are 90% of the cPAD for children 1 to 2 years old, the population subgroup with the highest exposure estimate.

As explained in the June 7, 2018 rulemaking, the Agency has assumed that there will be no residential handler exposure; therefore, a residential handler assessment was not conducted. The Agency only anticipates short-term post-application dermal exposures from registered uses of acequinocyl in residential areas. Using the exposure assumptions described for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1,800 in adults and 1,400 for children 6 to 11 years old. Because EPA's level of concern for acequinocyl is an MOE of 100 or below, these MOEs are not of concern.

As stated in the June 7, 2018 rulemaking, acequinocyl is not registered for any use patterns that would result in intermediate-term residential exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has been assessed under the appropriately protective cPAD, EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for acequinocyl.

Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, acequinocyl is not expected to pose a cancer risk to humans.

Therefore, based on the risk assessments and information described above, EPA concludes there is reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to acequinocyl residues. More detailed information can be found at http://www.regulations.gov in the document titled “Acequinocyl. Human Health Risk Assessment for the Proposed New Use on Tropical and Subtropical, Medium to Large Fruit, Smooth, Inedible Peel (Subgroup 24B)” in docket ID number EPA-HQ-OPP-2020-0475.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the June 7, 2018 rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

The Codex has not established an MRL for residues of acequinocyl in/on tropical and subtropical, medium to large fruit, inedible peel, subgroup 24B.

FFDCA section 408(d)(4)(A)(i) permits the Agency to finalize a tolerance that varies from that sought by the petition. The petitioner initially requested a tolerance of 7 ppm for tropical and subtropical, medium to large fruit, smooth, inedible peel (crop subgroup 24B). However, upon review of the requested tolerance, the Agency noticed that the petitioner incorrectly calculated the residues for whole fruit. Whole fruit residues were calculated as the sum of residues for pulp and peel combined and did not account for total sample weight. Residue concentrations are expressed in ppm, which is equivalent to mg/kg; therefore, residues from pulp and peel cannot simply be combined together to determine whole fruit residues without accounting for total sample weight. The corrected residue concentrations for the whole fruit were approximately half of the initially calculated concentrations and produced a recommended tolerance of 4 ppm when entered into the OECD calculator.

Therefore, a tolerance is established for residues of acequinocyl, including its metabolites and degradates, in or on tropical and subtropical, medium to large fruit, smooth, inedible peel subgroup 24B at 4 ppm.

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

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

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

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

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

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter 1 as follows:

In FR Doc. 2020-09260, beginning on page 43946 in the Federal Register of Monday, July 20, 2020, the following corrections are made:

This is a summary of the Commission's Report and Order in WC Docket Nos. 17-97, 21-291, FCC 21-93, adopted on August 5, 2021, and released on August 6, 2021. The complete text of this document is available for download at https://docs.fcc.gov/public/attachments/FCC-21-93A1.pdf. 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 and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Caller ID authentication using the STIR/SHAKEN framework is a key component of our multi-pronged effort to combat the scourge of illegal robocalls. STIR/SHAKEN is a set of technological standards that helps to prevent illegal “spoofing,” a practice that involves falsifying caller ID information in order to trick unsuspecting Americans into thinking that calls are trustworthy because the caller ID information appears as if the call came from a neighbor or a familiar or reputable source. With voice service providers required by our rules to implement STIR/SHAKEN in the internet Protocol (IP) portions of their networks by June 30, 2021, Americans are now in a position to answer their phones with greater confidence that the number displayed is correct.

To guard against bad actors and preserve trust within the distributed caller ID authentication system, the ability of a voice service provider to participate in STIR/SHAKEN can be revoked by the private Governance Authority that oversees the STIR/SHAKEN framework. This revocation process effectively allows the private Governance Authority to make decisions that render voice service providers noncompliant with our rules. To provide appropriate oversight and ensure due process, today we establish a process for voice service providers to appeal such revocation decisions to the Commission.

To address the issue of illegal caller ID spoofing, technologists from the internet Engineering Task Force (IETF) and the Alliance for Telecommunications Industry Solutions (ATIS) developed standards to allow for the authentication and verification of caller ID information for calls carried over IP networks. The result of their efforts is the STIR/SHAKEN caller ID authentication framework, which allows for the caller ID information to securely travel with the call itself throughout the entire length of the call path. A key component of the STIR/SHAKEN framework is the transmission of a digital “certificate” along with the call. This certificate essentially states that the voice service provider authenticating the caller ID information is the voice service provider it claims to be, it is authorized to authenticate this information and, thus, the voice service provider's claims about the caller ID information can be trusted. To maintain trust and accountability in the voice service providers that vouch for the caller ID information, a neutral governance system issues the certificates.

The STIR/SHAKEN governance system is comprised of several different entities fulfilling specialized roles. The Governance Authority, managed by a board consisting of representatives from across the voice service industry, defines the policies and procedures for which entities can issue or acquire certificates. The Policy Administrator applies the rules the Governance Authority establishes, confirms that Certification Authorities are authorized to issue certificates, and confirms that voice service providers are authorized to request and receive certificates. Certification Authorities, of which there are several, issue the certificates that voice service providers use to authenticate and verify calls. Finally, the voice service providers, when acting as call initiators, select an approved Certification Authority from which to request a certificate, and when acting as call recipients, check with Certification Authorities to ensure that the certificates they receive were issued by the correct Certification Authority.

To receive a digital certificate, a voice service provider must first apply to the Policy Administrator for a Service Provider Code (SPC) token. To obtain a token, the Governance Authority policy requires that a voice service provider must (1) have a current FCC Form 499A on file with the Commission, (2) have been assigned an Operating Company Number (OCN), and (3) have certified with the FCC that they have implemented STIR/SHAKEN or comply with the Commission's Robocall Mitigation Program requirements and are listed in the FCC Robocall Mitigation Database. The token then permits the voice service provider to obtain the digital certificates it will use to authenticate calls from one of the approved Certification Authorities. The token, therefore, is a prerequisite for a voice service provider to participate in the STIR/SHAKEN ecosystem endorsed by section 4 of the TRACED Act (and the Commission's implementing rules), and management of token access is the mechanism by which the Policy Administrator and Governance Authority protect the system from abuse and misuse.

The Policy Administrator grants tokens to voice service providers that meet the three eligibility criteria conditioned on the execution of a signed agreement with each voice service provider, stating that the voice service provider will follow the ATIS SHAKEN specifications. This agreement establishes that if the Policy Administrator deems the voice service provider to be in breach of the agreement, it has the authority to suspend or revoke a voice service provider's token. The Policy Administrator may revoke a service provider's service token on its own initiative in certain circumstances or when directed by the Governance Authority. In the SPC Token Revocation Policy, the Governance Authority lists the reasons for which a token may be revoked: (1) In the situation of compromised credentials, i.e., a voice service provider's private key has been lost, stolen, or compromised, or a certification authority has been compromised; (2) the voice service provider exits the STIR/SHAKEN ecosystem and closes its account with the Policy Administrator; (3) the voice service provider failed to adhere to the policy and technical requirements of the STIR/SHAKEN ecosystem, including the SPC Token Access Policy, funding requirements, or technical specifications regarding the use of STIR/SHAKEN; or (4) when directed by a court, the Commission, or another body with relevant legal authority due to a violation of Federal law related to caller ID authentication. When a service provider's credentials are compromised or it exits the ecosystem (the former two scenarios), the Policy Administrator may revoke a service provider's token without prior direction from the Governance Authority because in either circumstance revocation is clearly appropriate. However, when revocation is because a service provider failed to adhere to a policy or technical requirement, or is effected at the direction of a governmental body (the latter two scenarios), the Governance Authority conducts the revocation process according to the process outlined in the SPC Token Revocation Policy.

Token Revocation Procedure. Before the Governance Authority revokes a token due to a voice service provider's violation of a policy, technical, or legal requirement, the Governance Authority follows a multi-step process described by the SPC Token Revocation Policy, which allows the voice service provider to respond to the alleged infraction and appeal any adverse decision according to the Governance Authority's operating procedures. According to the SPC Token Revocation Policy, the revocation review process is triggered when a voice service provider, the Policy Administrator, a Certification Authority, or a regulatory authority (such as the Commission) reports a potential issue to the Governance Authority, generally via a complaint. After a preliminary review of the complaint, the Governance Authority decides whether or not to move forward with the review process. If the Governance Authority determines there is sufficient information to move forward, notice of the complaint will be sent to the Governance Authority Board. After the Governance Authority Board receives notice of the complaint, additional notices are sent to the complainant and to all other parties in the investigation process notifying them of the confidentiality requirements of the revocation proceeding. The Governance Authority also sends notice to the subject of the complaint—which has five business days to provide a preliminary response—and to the Policy Administrator who, after consulting with the Certification Authority if necessary, provides further information on facts related to the complaint and a proposed recommendation to the Governance Authority Board on whether to move forward with the complaint review. The Governance Authority Board then decides to either reject the complaint review, agrees review is necessary and accepts the complaint for review, or, if required, assigns it to the Technical Committee for further review.

If the Governance Authority Board decides to accept the complaint for review, it will reach out to the entity that is the subject of the complaint to provide another notification, this time stating that the complaint is being investigated and requesting a substantive written response. If the Governance Authority Board determines that additional review by the Technical Committee is also necessary, it will send the complaint to the Technical Committee, which will review the complaint and provide a recommendation to the Governance Authority Board. The Governance Authority will then review the Technical Committee's recommendation and request further investigation or discussion for the complaint, including submitting questions to all entities involved in the complaint review process. After reviewing all the material, including the Technical Committee's recommendation if necessary, the Governance Authority Board votes on whether to revoke the token, requiring a two-thirds vote of the Governance Authority Board to approve the revocation. If the Governance Authority Board votes to revoke the token, the decision is transmitted to the affected voice service provider, the complainant, and the Policy Administrator. The Policy Administrator then will execute the token revocation by deactivating the voice service provider's account and notifying all Certification Authorities to stop assigning new certificates to the voice service provider.

The aggrieved voice service provider may appeal an adverse decision by the Governance Authority Board through a formal appeal process outlined in the Governance Authority's Operating Procedures. In addition to the Governance Authority Board reviewing the complaint and issuing a written response, the formal appeal process includes the potential for a hearing before an independent panel of three individuals. Following a hearing, the appeal panel issues a written decision stating its findings of fact, conclusions, and the reasoning for its conclusions. If a voice service provider loses the appeal, or chooses not to appeal, it may seek reinstatement to the STIR/SHAKEN ecosystem if the Governance Authority approves of its plan of action to remedy the issue or issues underlying the token revocation.

On January 14, 2021, the Commission released a Second Caller ID Authentication Further Notice of Proposed Rulemaking proposing and seeking comment on establishing an oversight role for the Commission to oversee token revocation decisions made by the Governance Authority. The Commission specifically proposed adopting an appeal process similar to our process for reviewing decisions by the Universal Service Administrative Company (USAC). All commenters in the docket generally supported the proposal to establish such a role for the Commission. The Governance Authority Board states that “[g]iven the impact token revocation decisions will have on providers' abilities to comply with the Commission's call authentication rules, it is appropriate that the Commission should have a role in reviewing these decisions.” INCOMPAS “supports an oversight role for the agency in the certificate revocation process” while VON “recognizes the benefits to all stakeholders” from such a role, and USTelecom states “the Commission has a critical role in reviewing any [Governance Authority] revocation decisions.”

After reviewing the record, we conclude that the Commission should have an oversight role and therefore establish a review process of the Governance Authority's token revocation decisions. We do so to provide proper due process for voice service providers aggrieved by Governance Authority token revocation decisions and to “ensure that the STIR/SHAKEN ecosystem remains robust.” We detail the specific appeals process we adopt below. As we explain, we largely adopt the proposals in the Second Caller ID Authentication Further Notice. We deviate from those proposals in several respects, however, such as by requiring parties seeking review of a Governance Authority decision to file their requests for review in a dedicated public docket in the Commission's Electronic Comment Filing System (ECFS) and by directing the Wireline Competition Bureau (Bureau) to review all appeals in the first instance. As we explain below, we make these changes from our initial proposals because we find doing so will facilitate efficient review based on a full record.

Exhaustion of Governance Authority Appeals Process Required. We will require parties seeking review by the Bureau to first exhaust the Governance Authority appeal process, including completing the Governance Authority's formal appeal process. In the Second Caller ID Authentication Further Notice, the Commission proposed to require exhaustion of the Governance Authority's process before accepting appeals, stating that such a requirement would “enable the dispute to fully develop before potentially reaching the Commission, thereby making it easier for the Commission to identify the relevant facts and issues.” All commenters addressing the issue support this proposal. We agree with USTelecom that “[r]equiring exhaustion of the [Governance Authority] process will ensure that the [Governance Authority] can complete its process and render an independent decision before the FCC intervenes.” Doing so will ensure that only “serious challenges” will end up in front of the Commission, and will avoid wasting Commission resources by preventing us from “duplicating efforts and expending resources to develop the same facts [as the Governance Authority].” As VON notes, requiring exhaustion of the Governance Authority's process will “resolve a large majority of complaints without Commission action” ensuring the Commission does not waste time on issues that can be properly resolved by the Governance Authority.

Parties Permitted to Seek Review. We establish that any voice service provider aggrieved by a Governance Authority decision to revoke that provider's token may seek review by the Bureau after exhausting the appeals process established by the Governance Authority. We only allow appeals by the aggrieved party that suffered the token revocation, and not another party on its behalf, to ensure efficient use of limited Commission resources and provide finality and certainty for affected parties seeking an appeal. Third parties, including the Governance Authority, may participate to the extent that they may file oppositions and replies. This procedure mirrors the process in Universal Service appeals, where only the aggrieved party may appeal a USAC decision and other interested third parties may participate by filing oppositions and replies as appropriate, as well as supportive filings. We find that this approach—in addition to being consistent with the well-established process for USAC appeals—best balances competing arguments in the record. VON argues that voice service providers that rely on a delegated certification from a token holder should also be allowed to participate in the appeal as “intervenors” or have “interested party status.” VON states that some voice service providers “required to participate in the STIR/SHAKEN ecosystem may not obtain their own certificates and may instead rely on delegated certification from a token-holder.” Therefore, it asserts, “revoking a token would not just result in potential injury to the token-holder, but also to any other service provider that relies on the token-holder's continued authorization.” We disagree that voice service providers that rely on delegated tokens should be accorded special status because allowing them to participate in the appeal as interested parties “is not likely to give them the relief they need if the token holder is abusing its token.” Furthermore, the impact to a voice service provider with a delegated token is irrelevant as to whether the token holder acted in violation of rules such that token revocation is appropriate. USTelecom, in contrast with VON, argues that “[o]nly the token holders should participate in the appeal process.” To the extent USTelecom is arguing that third parties should not be able to participate in an appeal in any capacity, we disagree; we see no compelling reason to diverge with our standard procedures and not allow third parties, including voice service providers that rely on delegated tokens, to file oppositions and replies.

We note that any voice service provider that relies on a delegated token from another entity may seek a waiver of our STIR/SHAKEN rules for a limited time period if the token it relies upon is revoked. We agree with USTelecom that in typical cases, a 90-day waiver period, from the date the Governance Authority revokes a provider's token in the first instance, should give a voice service provider sufficient time to transfer its delegated token to a new partner and continue to participate in the STIR/SHAKEN framework. This time period balances the need for an affected voice service provider to have adequate time to receive another certificate with the public interest of broad STIR/SHAKEN participation. However, affected providers are free to request a different waiver period accompanied by an explanation of good cause for such a time period. We direct the Bureau to rule on all such waiver requests. Review of waivers of Commission rules is consistent with the Bureau's authority and will ensure waiver requests are reviewed in a timely and efficient manner to maintain the efficacy of the STIR/SHAKEN ecosystem.

Filing Deadlines. We establish that aggrieved providers have 60 days to seek Bureau review after the Governance Authority upholds its adverse token revocation decision. Specifically, a voice service provider requesting Bureau review of a Governance Authority decision to revoke that voice service provider's token shall file such a request electronically in ECFS within 60 days from the date the Governance Authority upholds its token revocation decision. Sixty days will provide sufficient time to an aggrieved voice service provider to receive notice and file a request for review and is equivalent to the time given parties in our Universal Service appeals process. The only commenter to address this issue, INCOMPAS, opposed our proposal and suggested we give aggrieved voice service providers 30 days to request review instead of 60 days in order to expedite the review process because “[r]evoking a voice service provider's access to SPC tokens will have significant repercussions for the provider and its customers.” We disagree with INCOMPAS's proposed shorter deadline. Because of the importance of the token to our STIR/SHAKEN rules we want to ensure providers have sufficient time to request review of any token revocation. Thirty days may not give affected voice service providers enough time to receive notice of the Governance Authority decision and then to prepare and file a request for review with the Bureau. We note that the 60-day deadline does not prevent providers from filing appeals sooner to expedite a review. We also note that 60 days is the same timeframe provided for in our Universal Service appeal process.

We also establish that any commenters shall adhere to the time periods for filing oppositions and replies as set forth in § 1.45 of our rules. This follows the procedure in our USAC appeals process and was unopposed in the record.

We establish a 180-day “shot clock” for the Bureau's review period, similar to the procedure used in our pole access complaint resolution proceedings. One hundred eighty days will typically be sufficient time for staff to complete reviews even if they present novel and potentially complex factual issues, and for staff to have time to present follow-up questions to the appealing party or the Governance Authority if necessary, while also ensuring parties can set expectations for when the review will be completed. As with pole access complaints, we expect the Bureau to meet the shot clock “except in extraordinary circumstances.”

The record support in favor of establishing a specific time limit for the Bureau's review persuades us to deviate from our proposal not to impose such a limit. VON argues we should impose a time limit on Bureau review “since revocation of a token can substantially impact a provider's business.” INCOMPAS suggests the Commission adopt a 30-day time limit for the Bureau to complete its review, arguing that speedy resolution is necessary because it “will give impacted voice service providers and their customers the information and clarity they need to make plans beyond the Commission's review.” And the Governance Authority Board states, “it is important that the Commission conclude its review and issue a decision as quickly as reasonably possible.” Nonetheless, while we agree with these commenters that prompt review is important, we disagree with INCOMPAS that the review period should be 30 days. INCOMPAS does not explain how the Bureau can adequately account for the potential novel and complex factual issues each appeal could raise in 30 days. Instead, we think a 180-day period is sufficient to ensure that the Bureau has time to render a carefully considered review for each appeal while also ensuring the review is completed in a timely and reasonable manner. And if an appeal were not to pose novel or complex issues, we think it could be completed well before 180 days.

We establish that the shot clock will start when the request for review is filed in ECFS. This procedure is identical to the one used in our pole access complaint proceedings and will ensure the Bureau and all parties are on notice of when the shot clock begins counting down in order to set expectations of when the review will be completed. We also establish that the Bureau will have discretion to pause the 180-day review period when actions outside the Bureau's control delay the Bureau's review. For example, the Bureau may pause the shot clock if parties need additional time to provide key information requested by the Bureau. The Bureau will resume the shot clock when the cause for pausing the shot clock has been resolved. We direct the Bureau to provide written notice of any pause in the shot clock, as well as when the shot clock is resumed. This procedure similarly draws from the one we use in pole access complaint review and will ensure the Bureau has adequate time to complete its review if faced with delays outside its control and that all parties are duly informed whenever the shot clock is paused or resumed.

Filing Requirements. We establish that requests for review shall be filed electronically in WC Docket No. 21-291, Appeals of the STIR/SHAKEN Governance Authority Token Revocation Decisions, in ECFS. The request for review shall be captioned “In the matter of Request for Review by (name of party seeking review) of Decision of the Governance Authority to Revoke an SPC Token.” The request for review shall contain (1) a statement setting forth the voice service provider's asserted basis for appealing the Governance Authority's decision to revoke the token; (2) a full statement of relevant, material facts with supporting affidavits and documentation, including any background information the voice service provider deems useful to the Bureau's review; and (3) the question presented for review, with reference, where appropriate, to any underlying Commission rule or Governance Authority policy. Moreover, we establish that requests for review need not include a statement of the relief sought. We assume that the relief sought will always be the reversal of the Governance Authority's revocation decision. We establish that the party seeking review shall send a copy of the request for review to the Governance Authority via sti-ga@atis.org or another method specified in the Governance Authority's Operating Procedures. Filers may request confidential treatment for filings pursuant to § 0.459 of our rules. These proposals were all unopposed in the record. In the Second Further Notice we proposed that filers would submit requests for review to the Commission's non-docketed inbox where they would not be viewable by the public. We deviate from this proposal and require filers to submit their requests to ECFS in order to allow public notice and opportunity to comment by third parties.

Governance Authority Record. We encourage the Governance Authority to submit to the Bureau the full record of a token revocation appeal within five days of receiving notice of a voice service provider's request for Bureau review. We ask the Governance Authority to file the record materials in WC Docket No. 21-291, Appeals of the STIR/SHAKEN Governance Authority Token Revocation Decisions, in ECFS. Governance Authority submission of such materials to the Bureau will “increase efficiency and fairness” of the Bureau's review process. The full record should include, as suggested by the Governance Authority Board, “the completed SPC token Complaint Submission Form, the notice of complaint that was sent to the [Governance Authority] Board, written responses from the provider at issue, the final written decision of the [Governance Authority] Board, any materials provided by the service provider as part of an appeal of the decision under the [Governance Authority] Operating Procedures, as well as the written decision by the [Governance Authority] Board regarding the appeal.” We agree with the Governance Authority Board that it does not need to submit drafts of the required documents or Board discussions to protect the confidentiality of its internal deliberations. We also recognize the Governance Authority Board's concern that the materials submitted by the Governance Authority Board merit confidential treatment and should be treated as such because they are likely to contain privileged or confidential “provider-specific” commercial information. Accordingly, the Governance Authority may request confidential treatment for its submissions pursuant to § 0.459 of our rules (as set forth in our rules, the Governance Authority Board would need to identify the specific information for which it is requesting confidential treatment. The Governance Authority Board also would need to submit a version of the filing that can be made public with the confidential material redacted. We encourage the Governance Authority Board to work with the voice service provider seeking review to determine which information is confidential or to put procedures in place that will require voice service providers to identify confidential information when submitting information to the Governance Authority Board and to identify any categories of internal documents it considers confidential.).

We do not expect the Governance Authority to submit a statement in opposition to the request for review. We will rely “on the entirety of the record developed” by the Governance Authority during its review process and will “only engage the [Governance Authority] in an appeal to the extent necessary to understand [Governance Authority's] policies and procedures and the [Governance Authority's] interpretations of them.” USTelecom argues that “[r]equiring the [Governance Authority] to file a statement in opposition to the FCC review request would needlessly make the [Governance Authority] a party to the proceeding rather than a neutral, independent arbiter in its own right.” USTelecom also notes that in the USAC appeals process “USAC does not file a statement in opposition to the review request.” We agree with USTelecom that the Governance Authority should remain a neutral party in the appeals process. However, we do not affirmatively prohibit the Governance Authority from participating beyond submission of the record should it find it appropriate to do so.

Wireline Competition Bureau Review. We establish that the Wireline Competition Bureau will review and issue decisions in the first instance in all appeals of decisions from the Governance Authority (in the Second Caller ID Authentication Further Notice the Commission proposed that the Bureau would review all appeals with one exception: the Commission would review appeals that presented “novel questions of fact, law, or policy.” That approach followed our USAC appeals procedure. We deviate from our USAC appeals procedure because, after further consideration, we expect most, if not all, appeals to present fact-specific and technically complicated issues; the Bureau is best situated to review such appeals in the first instance in a speedy manner.). Accordingly, we direct the Bureau to review all requests for review in the first instance, with applications for review to the Commission available after the Bureau issues a final decision. We direct the Bureau to ensure its decisions maintain the integrity and efficacy of the STIR/SHAKEN ecosystem to protect the public from unlawfully spoofed calls and unlawful robocalls. By directing the Bureau to review all appeals in the first instance we ensure voice service providers receive speedy resolution of their disputes by agency experts and those voice service providers whose tokens are determined to be rightfully revoked are promptly required to update their Robocall Mitigation Database certifications. We reiterate that, as with any decision adopted on delegated authority, an affected party may seek review by the full Commission of a decision issued by the Bureau, thus ensuring Commission oversight of all decision-making and availability to any interested party. No party addressed the appropriate scope of review by the Bureau in the record.

Standard of Review. We establish that the standard of review by the Bureau will be de novo. Specifically, we direct the Bureau to conduct de novo review of Governance Authority decisions to revoke a voice service provider's token. We agree with the Governance Authority Board that de novo review “will allow the Commission to independently verify the [Governance Authority] Board's decisions and better ensure that the SHAKEN ecosystem continues to operate in a fair and equitable manner.” Such an approach also avoids the concern expressed by VON that “anything more deferential than de novo review would inevitably result in [Governance Authority] decisions receiving precedential treatment, and would turn the STI-GA into a de facto policymaking body in place of the FCC.” A de novo standard of review was unopposed in the record and commenters all agreed a de novo standard is appropriate.

Status During Pendency of Appeals. We adopt a new rule establishing that throughout the review period, starting from when the Governance Authority revokes a voice service provider's token and including the duration of the Governance Authority's formal appeals process, until the Bureau issues a decision on the appeal, a voice service provider will not be judged to be in violation of the Commission's STIR/SHAKEN rules as a result of the revocation. We agree with USTelecom that it would be unreasonable for the agency to judge a voice service provider as noncompliant during the pendency of an appeal before it evaluates a revocation decision. USTelecom and NCTA supported this proposal. We find it necessary to satisfy due process for a party to have the opportunity to appeal the decision of the private Governance Authority and, if it appeals, to obtain a decision by the Bureau before being judged noncompliant. VON argues that we also not judge “delegated certificate customers” of a voice service provider that has its token revoked noncompliant during the pendency of an appeal. We disagree with VON. Establishing that a voice service provider that relies on a delegated token not be judged in violation of our rules during the pendency of an appeal would be redundant because such a provider may seek a waiver of our rules if the token it relies upon is revoked.

More specifically, we clarify that a provider subject to a revocation will not be in violation of our STIR/SHAKEN rules as a result of the revocation during (1) the time period in which it may file an appeal to the Governance Authority; (2) the pendency of any appeal before the Governance Authority; (3) the time period in which it may file an appeal to the Bureau; and (4) if it files an appeal with the Bureau, until the Bureau releases a final decision regarding the appeal (should the Bureau uphold or otherwise decide not to overturn the Governance Authority's decision, an aggrieved voice service provider may file a petition for reconsideration or application for review within the time periods permitted by our rules, but such filing will not protect the provider from a finding of noncompliance while the petition or application is pending.). The exclusion from liability applies specifically to rule 64.6301, which requires implementation of STIR/SHAKEN. In addition, because a voice service provider that has been aggrieved by an adverse Governance Authority service token revocation decision is not considered in violation of 64.6301 during the pendency of its appeal to the Bureau, it will not need to submit an amended filing to the Robocall Mitigation Database until its window to appeal to the Governance Authority or the Bureau lapses or, if it appeals, until the Bureau issues a final decision regarding its appeal. Specifically, while a voice service provider has the opportunity to appeal and while a filed appeal is pending, the voice service provider will not be judged in violation of the requirement to file an updated filing within 10 business days of any change to the information it must provide to the Commission pursuant to § 64.6305 of our rules. After the Bureau issues its decision, the voice service provider must update its Robocall Mitigation Database filing within 10 business days, if necessary (if the Bureau upholds a token revocation decision, the affected provider will be in violation of the § 64.6301(a) requirement to participate in STIR/SHAKEN because, without a token, the provider will not be able to authenticate calls it originates consistent with the STIR/SHAKEN standards. A voice service provider that has its token revoked will not be eligible for the extension for voice service providers that cannot obtain a SPC token. The Commission established the extension for voice service providers for whom it is unfeasible to obtain a token in the first instance under the Governance Authority's Token Access Policy, not for providers that are subject to token revocation.).

In the Second Caller ID Authentication Further Notice, the Commission proposed that a voice service provider would not be judged in violation of the TRACED Act during the pendency of an appeal. We decline to adopt this proposal. The TRACED Act contains no STIR/SHAKEN implementation obligation for voice service providers; rather it directs the Commission to require voice service providers to implement STIR/SHAKEN. There is therefore no need to establish that voice providers will not be judged in violation of the TRACED Act during the pendency of an appeal.

We conclude that after revocation by the Governance Authority, a voice service provider may not maintain possession and use of its token regardless of whether it files an appeal to the Bureau. In effect, this means that although a voice service provider will not be judged in violation of our rules it will not be able to continue to exchange STIR/SHAKEN-authenticated traffic during the pendency of an appeal. The only commenter to address the subject supports the approach we adopt, and we agree that we do not want to create an incentive for bad-actor voice service providers to appeal the Governance Authority decision for the sole purpose of delaying revocation of their tokens. For the same reason, should the Bureau uphold or otherwise decide not to overturn the Governance Authority's decision, a voice service provider will not regain the right to use its token by filing a petition for reconsideration or application for review. This proposal was unopposed in the record.

We conclude that section 4(b)(1) of the TRACED Act grants us authority to establish an oversight role for the Commission to review token revocation decisions made by the Governance Authority. Section 4(b)(1) directs the Commission to require the implementation of the STIR/SHAKEN framework. Establishing an oversight role for the Commission is consistent with the TRACED Act's caller ID authentication implementation mandate because it will make revocation decisions by the Governance Authority that have the effect of putting entities outside of our STIR/SHAKEN implementation rules reviewable by the Commission. We also conclude we have authority to establish an oversight role for the Commission under section 251(e) of the Communications Act of 1934, as amended. Section 251(e) grants the Commission exclusive jurisdiction over North American Numbering Plan resources in the United States and, within that broad grant, provides us with authority to mandate caller ID authentication. We find that section 251(e) grants us the corresponding authority to review decisions that have the impact of preventing a voice service provider from complying with our caller ID authentication rules. No party opposed our assertion of legal authority.

Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980 (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Second Caller ID Authentication Further Notice of Proposed Rulemaking. The Commission sought written public comment on the possible significant economic impact on small entities regarding proposals addressed in the Second Caller ID Authentication Further Notice of Proposed Rulemaking, including comments on the IRFA. Pursuant to the RFA, a Final Regulatory Flexibility Analysis is set forth in Appendix B. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this Third Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

Paperwork Reduction Act. This document contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. These requirements have been reviewed and approved by the Office of Management and Budget (OMB) pursuant to 44 U.S.C. 3507(d) (The new information collection requirements were preapproved by the Office of Management and Budget under OMB Control No. 3060-1287 on June 3, 2021.) In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, we previously sought comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. This document also contains non-substantive modifications to the approved information collection. These modifications will be submitted to OMB for review and approval pursuant to OMB's non-substantive change process.

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

Contact Person. For further information about the Third Report and Order, contact Alexander Hobbs, Attorney Advisor, Competition Policy Division, Wireline Competition Bureau, at (202) 418-7433 or Alexander.Hobbs@fcc.gov.

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

This Third Report and Order continues the Commission's efforts to combat illegal spoofed robocalls. Specifically, the Third Report and Order establishes an oversight role for the Commission of the STIR/SHAKEN governance system's token revocation process. Under the adopted procedure, any voice service provider or intermediate provider that has its Service Provider Code (SPC) token revoked may seek review of this decision by the Commission through established procedures. The procedures in the Third Report and Order will help promote effective caller ID authentication through STIR/SHAKEN.

The Third Report and Order finds authority for these proposed rules under the TRACED Act. Section 4(b)(1) of the TRACED Act provided authority to require the implementation of the STIR/SHAKEN framework. We believe that to effectively direct the implementation of STIR/SHAKEN consistent with the TRACED Act, the Commission must have a role in decisions to revoke Service Provider Code tokens because the result of such a decision could place the service provider in noncompliance with our rules. The Third Report and Order also finds independent authority under section 251(e) of the Communications Act of 1934, as amended (the Act).

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

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

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

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

Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

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

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

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

We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small-business size standard ( e.g., a telephone communications business having 1,500 or fewer employees) and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

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

Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” As of 2018, there were approximately 50,504,624 cable video subscribers in the United States. Accordingly, an operator serving fewer than 505,046 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Therefore we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

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

The Commission's own data—available in its Universal Licensing System—indicate that, as of August 31, 2018 there are 265 Cellular licensees that will be affected by our actions. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

Satellite Telecommunications. This category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The category has a small business size standard of $35 million or less in average annual receipts, under SBA rules. For this category, U.S. Census Bureau data for 2012 show that there were a total of 333 firms that operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, we estimate that the majority of satellite telecommunications providers are small entities.

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

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

Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business definition specifically for prepaid calling card providers. The most appropriate NAICS code-based category for defining prepaid calling card providers is Telecommunications Resellers. This industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual networks operators (MVNOs) are included in this industry. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that 1,341 firms provided resale services during that year. Of that number, 1,341 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of these prepaid calling card providers can be considered small entities. According to Commission data, 193 carriers have reported that they are engaged in the provision of prepaid calling cards. All 193 carriers have 1,500 or fewer employees. Consequently, the Commission estimates that the majority of prepaid calling card providers are small entities that may be affected by these rules.

All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications”, which consists of all such firms with annual receipts of $35 million or less. For this category, U.S. Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of those firms, a total of 1,400 had annual receipts less than $25 million and 15 firms had annual receipts of $25 million to $49,999,999. Thus, the Commission estimates that the majority of “All Other Telecommunications” firms potentially affected by our action can be considered small.

The Third Report and Order adopts new rules requiring voice service providers to update their filings to the robocall mitigation database if the Bureau upholds an adverse service token revocation decision made by the Governance Authority. Some voice service providers required to amend their filings in this way may be small voice service providers.

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

The Third Report and Order adopts rules establishing an oversight role for the Commission within the STIR/SHAKEN governance system's token revocation process. Under our newly adopted rules entities, including small entities, that have their SPC token revoked by the private STIR/SHAKEN Governance Authority may appeal that decision to the Commission.

None.

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

Accordingly, it is ordered, pursuant to sections 4(i), 4(j), 201(b), 227b, 251(e), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 201(b), 227b, 251(e), and 303(r), that this Third Report and Order is adopted.

It is further ordered that parts 0 and 64 of the Commission's rules are amended as set forth in Appendix A, and that, pursuant to §§ 1.4(b)(1) and 1.103(a) of the Commission's rules, 47 CFR 1.4(b)(1), 1.103(a), this Third Report and Order shall be effective 30 days after publication of this Third Report and Order in the Federal Register , which will occur after the Commission receives OMB approval of the non-substantive changes contained herein.

It is further ordered that the Commission shall send a copy of this Third Report and Order to Congress and to 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 amends 47 parts 0 and 64 as follows:

This is a summary of the Bureau's document (Public Notification or PN) in WC Docket No. 18-89; DA 21-947, released on August 3, 2021. The full text of this document is available for public inspection on the Commission's website at https://docs.fcc.gov/public/attachments/DA-21-947A1.pdf.

1. By this document, the Bureau adopts final procedures for, and provides eligible providers of advanced communications services with additional guidance regarding, the application filing and reimbursement process for the $1.9 billion Reimbursement Program. After considering comments received in response to the Reimbursement Process Public Notification (PN), 86 FR 31464, June 14, 2021, the Bureau finalizes the information fields on the new FCC Form 5640, which participants must submit to request funding allocations and disbursements from the Reimbursement Program, as well as the procedures governing the submission of and any modifications made to that form. Acting Chairwoman Rosenworcel has announced a “target date” of October 29, 2021, to open the Reimbursement Program filing window to begin accepting applications. Prior to the target date, the Bureau will announce in a forthcoming public notice when it will open the Reimbursement Program online portal and begin accepting applications, and the filing window closing date. Finally, after considering comments received in response to the Catalog PN, 86 FR 18932, April 12, 2021, the Bureau also finalizes with this document the Catalog and the Replacement List which will be made available on the Commission's website.

2. The Bureau adopts the application and reimbursement procedures and finalizes forms for the Reimbursement Program proposed in the Reimbursement Process PN.

3. In the Reimbursement Process PN, the Bureau provided a representative sample of the questions to be included in the FCC Form 5640 Application Request for Funding Allocation and sought comment on those information fields. The Bureau received persuasive comments regarding various fields applicants would complete in the new proposed form and, in response, it has implemented some modifications, and will proceed with finalizing that form.

4. The Bureau proposed in the Reimbursement Process PN “requiring applicants to identify in their application for each location site: (1) Where covered communications equipment or services are located ( e.g., address, longitude and latitude, etc.) and documentation supporting the acquisition/existence of such covered equipment or services; and (2) the itemized cost estimates, taken from the Catalog where applicable, that are associated with the removal, replacement, and disposal of covered equipment and services at each site.” Several commenters argued that requiring specific information about equipment at the application stage is burdensome on small carriers and some carriers may not have access to the information. The Rural Wireless Broadband Coalition recommended that instead of requiring such information at the application stage, the Application Request for Funding Allocation should, after the equipment is removed, populate a field for the make, model, and number of units for the removed equipment.

5. The Bureau declines to modify the proposed site-specific information collected. The identification and tracking of site-specific information on covered and replacement communications and services, as well as on cost estimates, helps to ensure funds are spent for the purpose intended and protects against waste, fraud, and abuse. This information assists in determining program eligibility for the removal, replacement, and disposal of Huawei Technologies Company (Huawei) and ZTE Corporation (ZTE) equipment or services obtained on or before June 30, 2020, and facilitates the assessment of applicants' cost estimates for allocation purposes. The Bureau acknowledges that requiring site-specific information is more burdensome than a self-certification requirement. Including the more detailed site-specific information, however, will ensure that the Reimbursement Program Fund Administrator will be able to properly allocate the $1.895 billion and will limit the risk that incorrect estimates unnecessarily deplete the Reimbursement Program to the detriment of other applicants. Additionally, any increased costs associated with preparing applications that include site-specific information are potentially eligible for Reimbursement Program support, decreasing the financial burden on applicants when preparing applications. The Bureau, therefore, concludes that the benefits of the site-specific filing requirement outweigh any burden on the carriers. The Bureau recognizes, however, that the information provided is made in “good faith and that all information provided . . . is true and correct to the best of Applicant's knowledge,” based on the prior exercise of reasonable due diligence, at the time the application is filed. The Bureau will provide a process for participants to file modifications to their applications if more accurate information subsequently becomes available.

6. Additional Requested Form Changes. Several commenters sought changes or clarifications to the proposed information fields included in the Application Request for Funding Allocation. Nokia proposed changes to the questions concerning the use of Open Radio Access Network (Open RAN) technology interface standards by applicants. Specifically, Nokia requested that the fields indicating that applicants selected Open RAN solutions be removed because the fields show a preference for Open RAN. The Bureau disagrees. These questions are merely intended to help the Commission track technology choices by providers and do not suggest or otherwise encourage an applicant to select a particular technology solution. Accordingly, the Bureau fails to see how these questions show a preference for certain types of network architecture and decline to remove these questions.

7. Mavenir Systems, Inc. (Mavenir) separately requested several changes to the proposed information fields. Specifically, Mavenir requested that the Bureau strikes the use of “O RAN” to avoid confusion between Open RAN generally and the O RAN Alliance, that it specifies an applicant is using fronthaul Radio Access Network and Core Network, and that the Bureau specifies that an applicant is compliant with O-RAN Alliance 7.2 fronthaul standards rather than the more generally stated “O-RAN Alliance standards.” Additionally, Mavenir suggested two additions to the information fields inquiring whether applicants are using equipment or service compliant with the 3GPP X2 standard and other 3GPP open interfaces, and if so, whether there is an associated fee to make the equipment interoperable or open. To reduce confusion, the Bureau removes the general O-RAN question that was in item 51 on the proposed Application Request for Funding Allocation. Additionally, the Bureau modifies items 53 and 54 to ask applicants if the “equipment or service is compliant with O-RAN Alliance standards, such as O-RAN Alliance 7.2 fronthaul standards.” While the O-RAN Alliance 7.2 fronthaul standard is currently a leading standard, work continues on this developing standard, and updates continue to be published. For example, on June 29, 2021, after Mavenir and others filed their comments, the O-RAN Alliance published a Third White Paper, “O-RAN Minimum Viable Plan and Acceleration towards Commercialization.” In the Third White Paper, the O-RAN Alliance wrote that “[f]uture O-RAN releases will extend the [Minimum Viable Plan] with new features and functionalities as these inputs and priorities evolve.” The Bureau wants to ensure the information collected on the Application Request for Funding Allocation addresses whether the equipment is compatible with any future standards that are adopted as the O-RAN Alliance continues its work. Finally, the Bureau includes the two questions regarding 3GPP X2 standard and open interfaces because these questions are helpful in analyzing technology trends.

8. ADTRAN, Inc. (ADTRAN) suggested incorporating a “country of origin” line item into the Application Request for Funding Allocation, which would support a “buy American” policy. Specifically, ADTRAN requests for the Application Request for Funding Allocation to include a question about the replacement equipment manufacturer's country of origin. ADTRAN argued that such information collection would be consistent with the Open RAN-related line items. The Bureau finds that including a “country of origin” question on the Application Request for Funding Allocation will further help the Commission track and analyze technology trends without increasing the overall burden on applicants. Accordingly, the Bureau will modify the Application Request for Funding Allocation to include a question about the replacement equipment manufacturer's country of origin.

9. The Rural Wireless Association (RWA) requested clarifications and additions to the FCC Form 5640 Application Request for Funding Allocation. In particular, RWA argued that form changes were necessary because the Commission had yet to address whether there would be further prioritization within the three levels prioritized by Congress in the Secure and Trusted Communications Networks Act of 2019 (Secure Networks Act). In the 2021 Supply Chain Order, 86 FR 46995, August 23, 2021, (July 13, 2021), the Commission rejected RWA's request to provide additional sub-prioritization categories outside of the scheme advanced by Congress. Thus, the Bureau finds the changes requested by RWA would be inconsistent with the Commission's rules.

10. Administrative and Form Consistency Changes. The Bureau will further require, as proposed, that applicants obtain and identify in their applications an FCC Registration Number (FRN) issued by the Commission Registration System (CORES), a Data Universal Numbering System (DUNS) number or where applicable, a DUNS+4 number, and that applicants register with the System for Award Management (SAM) and provide the SAM Commercial and Government Entity (CAGE) Code in their applications. No commenter objected to these proposals. An FRN is an identifying number that is assigned to entities doing business with the Commission. Registration in the SAM provides the Commission with an authoritative source for information necessary to provide funding to applicants and to ensure accurate reporting pursuant to the Federal Funding Accountability and Transparency Act. The DUNS number or, where applicable, the DUNS+4 number, provides necessary banking information to assist the Commission in the electronic payment of funds to program recipients.

11. Separately, to reflect changes adopted in the 2021 Supply Chain Order, the Bureau modifies the question on the FCC Form 5640 concerning whether the applicant has obtained covered communications equipment or services. The Consolidated Appropriations Act, 2021 (CAA) amended the Secure Networks Act to modify the covered communications equipment and services eligible for the Reimbursement Program. The Commission in the 2021 Supply Chain Order, implemented these changes by changing its rules to limit equipment and services eligible for the reimbursement to communications equipment or services produced or provided by Huawei and ZTE that are purchased, leased, or otherwise obtained on or before June 30, 2020. Accordingly, the Bureau has made the necessary changes to the FCC Form 5640 to ask the applicant whether it has “previously purchased, leased or otherwise obtained communications equipment or services on the Covered List that were produced or provided by Huawei or ZTE, including their affiliates and subsidiaries, on or before June 30, 2020.”

12. The Bureau has also added a question for applicants to indicate whether the cost estimate provided by the applicant includes a technology upgrade over a comparable replacement. This information will help the Bureau and the Reimbursement Program Fund Administrator identify requests involving technology upgrades. As the Commission stated in the 2021 Supply Chain Order, “[p]articipants may obtain Reimbursement Program support for an amount equivalent to the cost estimate of a comparable replacement” but noted that if “a participant ultimately decides to upgrade to a higher quality, more advanced, non-comparable replacement, then the program participant will bear the difference in cost between the comparable replacement and the technology upgrade solution chosen.” The added question will help identify participants seeking a technology upgrade solution so that the Reimbursement Program Fund Administrator and the Bureau can review the applications accordingly. Participants are reminded that, when seeking a technology upgrade, they will need to include a vendor quote for the comparable replacement in addition to a vendor quote for the upgrade they wish to purchase. Finally, the Bureau has also made minor changes to the language of certain questions to improve clarity and assist applicants.

13. The Bureau strongly encourages interested participants to collect the information needed to prepare the application in advance of the opening of the filing window. Taking proactive steps will facilitate the submission process for applicants and help them identify and overcome potential challenges in advance of a filing deadline. Incomplete applications may be dismissed by the Bureau, which could prevent a provider from participating in the Reimbursement Program.

14. As proposed, the Bureau will use an online filing portal to receive and process Application Requests for Funding Allocation and to coordinate the interactions between program participants, the Reimbursement Program Fund Administrator, and the Bureau. No commenters addressed this approach. Applicants and recipients will electronically submit all filings related to the Reimbursement Program, including the Application Request for Funding Allocation, using an online filing portal. The Bureau will allow applicants to submit applications at either the holding company level or individual/subsidiary level as proposed. The Bureau strongly recommends, however, that applicants file a single application at the holding company level to optimize administrative efficiency by reducing the number of filings requiring processing.

15. Commenters supported the Commission's proposal to consider the use of Excel batch uploads of information to facilitate the completion of applications. To facilitate application preparation and ease the filing burden on applicants, the Bureau will develop the capability to allow batch uploads for targeted and specific portions of the applications. Additionally, some commenters requested that the Commission ensure there will be sufficient support for issues associated with filings in the portal. The Bureau agrees and will make support available to applicants for issues with the portal. Specifically, a Reimbursement Program Fund Administrator helpline and an email address will be designated for Reimbursement Program applicants to address questions related to their application and reimbursement request submissions. The Bureau will also provide additional details on the online filing process through webinars and other outreach activities.

16. Timing and Length. The Bureau adopts its proposals related to the Application Request for Funding Allocation filing window. Per § 1.50004(b) of the Commission's rules, the Bureau will announce the opening of an initial filing window in a subsequent public notice when the online filing portal is ready to begin accepting applications. In that public notice, the Bureau will also announce the duration of the initial filing window. Consistent with the 2021 Supply Chain Order, the Bureau has discretion to set the length of the initial filing window, which is not limited to 30 days and may be longer if the Bureau finds that applicants need help navigating the application filing portal to compile the necessary documentation required for the filing requirements. RWA, in its comments, indicated a 60-day filing window would ensure that applicants could timely file their Application Requests for Funding Allocation. The Bureau agrees with RWA that applicants would benefit from having a longer filing window and will consider this comment when it determines the duration of the filing window. The Bureau is working toward a target date of late October for the opening of the filing window. The Bureau anticipates that the filing window period will run at least 60 days, and potentially longer. Until the filing window closes, the Bureau will allow applicants to initiate, save, submit, and make changes to submitted applications as proposed.

17. In the 2021 Supply Chain Order, the Commission amended its rules to align eligibility for the Reimbursement Program with the CAA's amendments to the Secure Networks Act. Consistent with the CAA, as implemented by the 2021 Supply Chain Order, participation in the Reimbursement Program is limited to providers of advanced communications service with 10 million or fewer customers. As the Commission determined in the 2020 Supply Chain Order, 86 FR 2904, January 13, 2021, (December 11, 2020), “customers” is interpreted to include customers of the applicant and customers of any affiliate taking advanced communications service from the provider and its affiliates as of the date the application is filed. Eligibility to participate in the Reimbursement Program is limited to “providers of advanced communications service,” which is defined as providers of “high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology with connection speeds of at least 200 kbps in either direction.” A school, library or health care provider, or consortium thereof, providing facilities-based non-commercial educational broadband service connections of at least 200 kbps in one direction would qualify as a provider of advanced communication service for the purposes of the Reimbursement Program and is eligible for reimbursement funding. The Commission in the 2021 Supply Chain Order, also modified the scope of covered communications equipment and services eligible for Reimbursement Program support consistent with the amendments to the Secure Networks Act by the CAA. The modification limits eligibility for reimbursement to communications equipment or services produced or provided by Huawei or ZTE obtained on or before June 30, 2020.

18. The Bureau will review, with the assistance of the Reimbursement Program Fund Administrator, Application Requests for Funding Allocation to verify Reimbursement Program eligibility as required by the Commission's rules. The Application Request for Funding Allocation contains questions to assist with Reimbursement Program eligibility verification. For example, each applicant must answer “yes” or “no” as to whether it is a provider of advanced communications service with 10 million or fewer customers. Applicants must also indicate “yes” or “no” to whether they have obtained covered communications equipment or service eligible for Reimbursement Program support on or before June 30, 2020. In addition, applicants are required to identify the eligible covered communications equipment or service that they intend to remove, replace, and dispose of with Reimbursement Program support by site location.

19. The standard the Commission adopted to determine whether a provider is classified as a provider of advanced communications service is the same standard used to determine whether a provider must file FCC Form 477 to report broadband deployment data, i.e., the provision of a facilities-based broadband connection to an end user with a speed of at least 200 kbps in either direction. Accordingly, as part of the Bureau's internal verification process, it will cross-check applicants against the list of FCC Form 477 filers as of the most recent filing deadline. Applicants not identified on the most recent FCC Form 477 filer list may need to provide additional information to support Reimbursement Program eligibility in response to a Reimbursement Program Fund Administrator request for information.

20. The Bureau finds the validation of eligibility using FCC Form 477 filing information, coupled with requesting additional information evidencing eligibility where an entity has not recently filed an FCC Form 477, appropriate in our efforts to ensure the Reimbursement Program supports providers of advanced communications services with 10 million or fewer customers and protect against waste, fraud, and abuse.

21. As required by the Secure Networks Act and the Commission's rules, the Application Request for Funding Allocation requires applicants to submit initial estimates of costs reasonably incurred for the permanent removal, replacement, and disposal of covered communications equipment or services. Both the Secure Networks Act and the Commission's rules require applicants to provide cost estimates in their applications. The Secure Networks Act specifically states that the “Commission shall require an applicant to provide an initial reimbursement cost estimate at the time of application, with supporting materials substantiating the costs,” which the Commission “may require an applicant to . . . update,” and “submit additional supporting materials.”

22. To help applicants submit cost estimates with their applications, the Commission permitted applicants to rely on estimated costs identified in the Catalog, which contains categories of quantifiable costs typically incurred in the removal, replacement, and disposal process. For costs not covered by the Catalog, or if applicants want to use a cost estimate that differs from the Catalog, the applicant can instead provide an individualized cost estimate supported by documentation ( e.g., vendor quotes). The finalization of the Catalog is discussed in Part III.B of the PN, but here the Bureau addresses the proposals and comments related to the submission of cost estimates generally.

23. Technology Upgrades. In the 2021 Supply Chain Order, the Commission clarified that “the `costs reasonably incurred' standard . . . make[s] providers responsible for the additional incremental cost of funding upgrades that exceed what is reasonably necessary to transition to a comparable replacement.” The Commission acknowledged that whether an upgrade is a “reasonable, comparable replacement necessary for the transition” to a replacement “will likely depend on the facts in each case.” The Commission directed the Bureau, with the assistance of the Reimbursement Program Fund Administrator, to “first consider whether the cost is typically incurred when transitioning from covered communications equipment and services to a replacement.” Other factors the Bureau may consider include the “costs in relation to the alternative equipment and services and the capabilities and functions performed by the replacement equipment and service as compared to the equipment and services removed.”

24. As provided in the 2021 Supply Chain Order, participants may obtain Reimbursement Program support for an amount equivalent to the cost estimate of a comparable replacement. Participants electing to upgrade their equipment or service in excess of the costs of a comparable replacement, however, bear the difference in cost between the comparable replacement and the technology upgrade. Participants seeking funding for a technology upgrade in excess of the costs of a comparable replacement will be required to provide price quotes for the comparable replacement with their Application Request for Funding Allocation—they may not rely on the cost estimates contained in the Catalog—and they must also separately certify that the cost estimate is made in good faith.

25. While the Commission encourages providers to upgrade their networks, Congress directed the Commission to “preclude network upgrades that go beyond the replacement of covered communications equipment or services from eligibility.” Providers are responsible for the additional incremental costs of funding upgrades that exceed what is reasonably necessary to transition to a comparable replacement. In the 2021 Supply Chain Order, the Commission found, as a general matter, expenses incurred replacing microwave backhaul with fiber backhaul or replacing last-mile fixed wireless links with fiber-to-the-premises (FTTP) are not reasonably necessary to transition to a comparable replacement. Thus, consistent with the 2021 Supply Chain Order, while the Bureau will view fiber replacements as a technology upgrade, not a reasonable, comparable replacement, Reimbursement Program participants may be reimbursed for a portion of their expenses up to the difference in cost between a comparable replacement and the fiber upgrade. However, additional sources of Federal funding outside the scope of Reimbursement Program may be available to applicants for fiber deployments which could account for costs that exceed the costs of a comparable replacement. The Bureau encourages providers to explore all available funding options to upgrade their networks with fiber. Additionally, the Commission found that handset upgrades and certain other customer-premises equipment (CPE) are ineligible for reimbursement because replacing such handsets is not reasonably necessary to the removal, replacement, and disposal of covered communications equipment or service.

26. Average Catalog Cost Estimate. Separately, the Bureau adopts its proposals in the Reimbursement Process PN related to the submission of cost estimates for the purposes of granting funding allocations. The Bureau adopts its proposal to base its evaluation of applicant's cost estimates on the average between the minimum and maximum range of estimated costs for a particular itemized expense listed in the Catalog, rather than allowing applicants to choose any amount within the cost estimate range. The preliminary catalog included a low-end and high-end range of cost estimates for each particular itemized expense identified to help develop a record on reasonable expenses associated with the relevant expenses. In addition to a range of cost estimates, the final Catalog now includes the average between the low-end and high-end range of cost estimates for each itemized expense identified. Applicants relying on Catalog cost estimates for their applications will select the predetermined average cost estimate for a particular itemized expense identified in the Catalog as opposed to providing a cost estimate that is within the range of cost estimates. This approach will reduce the likelihood of applicants overestimating costs, and will thus minimize overallocation of limited funding to the detriment of other Reimbursement Program participants. Some commenters object to the use of average cost estimates, arguing that equipment types within the ranges are too varied, and that applicants will regularly exceed the averages. The Bureau rejects this argument. If an applicant finds that a Catalog cost estimate average does not fully account for its costs, or if a cost category is not identified in the Catalog, applicants are permitted to provide individualized cost estimates based on supporting documentation ( e.g., vendor quotes) and certify the cost estimate is made in good faith. This approach balances the Commission's goals of protecting against waste, fraud, and abuse while facilitating the production of estimates of costs reasonably incurred by applicants.

27. As indicated in this document, the Bureau will also collect cost-estimate information on a site-specific basis because it enables the review of cost estimates for reasonableness and promotes clear identification and tracking to assist with the invoicing process, as well as protecting against waste fraud and abuse. Applicants may, however, report in their applications network-wide costs, such as disposal costs or software upgrades, that apply to several site locations.

28. Nokia asks us to permit applicants to submit cost estimates that are based on reasonable costs incurred by the applicant over an 18-month project timeline. The Bureau declines to accept a cost estimate covering such a lengthy period of time. The removal, replacement, and disposal term provided for in the Secure Networks Act and the Commission's rules ends one year after the participant receives its initial disbursement of support. Accordingly, participants should submit cost estimates accounting for a one-year term as currently provided under the Commission's rules that commences when the participant receives its initial draw down disbursement.

29. The Commission's rules direct the Bureau to review applications to determine completeness, program eligibility, and the reasonableness of cost estimates. The Bureau must “approve or deny” applications no later than 90 days after the close of the relevant filing window. If additional time is needed to review the applications, the Bureau may extend the deadline up to an additional 45 days. Consistent with the Secure Networks Act, the Commission's rules state “[i]f the . . . Bureau determines that an application is materially deficient (including by lacking an adequate cost estimate or adequate supporting materials), the . . . Bureau shall provide the applicant a 15-day period to cure the defect before denying the application.” The Bureau sought comment on additional facets of the review process and received limited comment on the opportunity to cure and the filing of amendments during the 90-day review period as discussed herein.

30. The 90-day review period will commence on the next business day following the close of the filing window, per the Commission's rules. As proposed, after the filing window closes and the 90-day review period commences, the Reimbursement Program Fund Administrator will conduct an initial review of the applications to help the Bureau determine whether the applications are initially considered eligible and acceptable for filing and to evaluate the gross estimate demand contained in those applications. The Bureau will then issue a public notice “announcing those applications initially found eligible” and acceptable for filing, and those applications considered materially deficient. The Reimbursement Program Fund Administrator will proceed with processing those applications considered acceptable. Applicants filing applications found unacceptable for filing will need to amend and provide additional information demonstrating program eligibility before the Reimbursement Program Fund Administrator can proceed with processing their applications as acceptable for filing.

31. 15-Day Opportunity to Cure. As required by the Secure Networks Act and the Commission's rules, the Bureau will give applicants whose applications are found materially deficient a 15-day opportunity to cure the deficiency before their application is denied. As proposed, the Bureau will individually notify each applicant that its application is deficient and that it has 15 days to cure all of the identified deficiencies. Such notice will be distinct from the public notice announcing applications accepted for filing and applications with material defects. RWA questions whether the 15-day cure period starts on the date of the public notice release or the individual notification date. Accordingly, the Bureau clarifies the 15-day cure period will commence on the date of the individual email notification is sent by the Commission and received by the applicant.

32. The Bureau also broadly interprets the statutory 15-day opportunity to cure as providing all applicants an opportunity to cure material defects that would lead to the denial or partial denial of an Application Request for Funding Allocation, even filers of applications that were initially found acceptable. In those instances, should the Bureau subsequently find, after further review, that the application is materially deficient and subject to denial, the applicant will be afforded the 15-day cure period.

33. Requests for Additional Information. During the application review process there may be multiple instances where the Reimbursement Program Fund Administrator seeks additional information from an applicant prior to an application being granted or denied. These additional opportunities to amend an application or provide supplemental information prior to any official decision will ensure that all applicants have sufficient opportunities to present the most complete application seeking reimbursement, and the Bureau clarifies that these opportunities are separate and distinct from, and do not count against, the formal 15-day opportunity to cure period. The Bureau finds this clarification of the process mitigates RWA's concerns of having only a single 15-day cure period.

34. Amendments during the Application Review Period. As proposed, the Bureau will allow applicants to make amendments to the filings during the 90-day review period. Additionally, the Bureau adopts its proposal to deny, as a general matter, amendment requests to an Application Request for Funding Allocation that would result in an increase to the total cost estimate. The Bureau therefore denies RWA's request to allow increases to applicant cost estimates. Reimbursement Program support is limited and subject to prioritization requirements should demand exceed supply. Allowing amendments to increase cost estimates would hinder the review of applications within the statutory 90-day review period, as the Reimbursement Program Fund Administrator would need to restart its cost estimate review for reasonableness with each amendment filed. Moreover, amendments increasing total cost estimate demand could ultimately delay the issuance of allocations to all participants because the Bureau and Reimbursement Program Fund Administrator will not be able to determine if prioritization is necessary until all applications are processed and the last application is granted.

35. The Bureau also rejects Nokia's request to allow applicants to build in an overrun allowance of 10% to account for unexpected costs. Nokia asks that applicants receive a funding allocation for 10% more than their reported cost estimates. Applicants are required by the Commission's rules to provide good-faith cost estimates for removal, replacement, and disposal. Applicants are thus encouraged to provide cost estimates that are as accurate as possible based on all available information. Allowing applicants to build in overrun allowances would undermine the goal of the Reimbursement Program of efficiently allocating funding support to help as many eligible providers as possible.

36. 45-Day Extension Period. As proposed, and consistent with the Secure Networks Act, the Bureau directs the Reimbursement Program Fund Administrator to advise the Bureau, based on its initial review of the applications filed, whether to extend the 90-day deadline for granting or denying applications by up to an additional 45-day period. The Reimbursement Program Fund Administrator shall indicate whether it needs additional time to review the applications based on the number and complexity of the applications received. If the Bureau finds an extension justified, it will issue a public notice announcing the extension of the 90-day review period by a specified duration, not to exceed 45 days.

37. Allocation. Based on the cost estimates provided by applicants, the Reimbursement Program Fund Administrator will recommend for the Bureau's consideration a funding allocation for each approved application. The Bureau will review each recommendation and, following any modifications to cure deficiencies following the 15-day cure period, will either grant or deny the application and proceed with issuing the allocation. Should total allocation demand exceed the funding available, the Reimbursement Program Fund Administrator's allocation recommendations will be adjusted in accordance with the prioritization scheme required by the amended Secure Networks Act and adopted by the Commission in the 2021 Supply Chain Order.

38. No Allocation Adjustments. As directed by the Commission in the 2020 Supply Chain Order, “the funding amount allocated represents the maximum amount eligible for draw down by an eligible provider unless a subsequent funding allocation is made.” Accordingly, the Bureau emphasizes that once it makes a funding allocation determination, it will not adjust the funding allocation amount even if there is a change in the participant's plans or if actual costs exceed estimated costs. To the extent a participant requires funding in excess of its allocated amount, the participant will be required to file a new application in a subsequent filing window, if and when such a filing window is announced. The Bureau will only issue funding disbursements for reasonable expenses actually incurred.

39. Allocation Announcement Schedule. The Bureau adopts its proposal to periodically release public notices announcing funding recipients and the amount of their funding allocations as well as to notify recipients directly by email. No commenter filed comments on this proposal. This approach ensures administrative efficiency while also providing transparency to Reimbursement Program applicants and recipients, as well as the public.

40. Pursuant to the Commission's rules, after eligible providers receive funding allocations and incur actual costs, they must file reimbursement claims along with supporting invoices and other cost documentation to draw from their allocation. Each Reimbursement Program recipient must file at least one reimbursement claim within one year of the approval of its Application Request for Funding Allocation. Failure to file within the year will result in the expiration of the funding allocation and the provider will be unable to receive any reimbursement funds from the allocation as the unused funds would revert back to the Reimbursement Program. The Commission would be able to then reallocate to other applications in a future filing window any funds from the expired allocation. In this section, the Bureau adopts proposals related to the filing of reimbursement claims and extensions of the reimbursement claim deadline permitted under the Commission's rules.

41. Filing Reimbursement Claim Requests. The Bureau adopts several of its proposals related to processing recipients' requests for reimbursement and will finalize the FCC Form 5640 Reimbursement Claim Request as proposed. Additionally, the Bureau adopts its proposal to allow recipients to submit multiple Reimbursement Claim Requests as they incur expenses throughout the reimbursement period. The Bureau, with the assistance of the Reimbursement Program Fund Administrator, will review and grant or deny Reimbursement Claim Requests for actual costs reasonably incurred.

42. The Bureau adopts the approach for processing Reimbursement Claim Requests proposed in the Reimbursement Process PN. Accordingly, using the features available in the online filing portal, recipients will be required to link actual costs incurred and the supporting invoice documentation to their itemized cost estimates previously filed with the Bureau to complete the claim. Recipients must submit invoices through the online portal as attachments to their Reimbursement Claim Requests. With each invoice submitted, recipients must provide specific details related to the invoice (vendor name, date issued, description of contents, etc.) to assist reviewers in linking invoices to specific itemized cost estimates. Further, recipients seeking disbursements must have previously provided a vendor and supplier quote associated with the invoice included with the Application Request for Funding Allocation before submitting the Reimbursement Claim Request. Recipients who have not yet provided a vendor and supplier quote associated with the invoice because they relied on the Catalog cost estimates when completing their Application Request for Funding Allocation will need to file a modification before submitting the Reimbursement Claim Request. The Reimbursement Program Fund Administrator will not review Reimbursement Claim Requests that rely on invoices not substantiated by a corresponding quote previously filed.

43. Pursuant to the Commission's rules and the 2020 Supply Chain Order, recipients may seek reimbursement only for actual expenses incurred during the period beginning on April 17, 2018, and ending at the expiration of the one-year removal, replacement, and disposal term. Consistent with the 2020 Supply Chain Order, the Bureau will allow providers to obtain reimbursement for costs reasonably incurred prior to the creation and funding of the Reimbursement Program, but on or after April 17, 2018, for the removal, replacement, and disposal of covered equipment and services. The Bureau must authorize the payments from the Reimbursement Program fund in the United States Treasury to providers that have submitted valid claims for reimbursement.

44. RWA requests the Bureau allow the filing of requests “beyond the allocated funds so that the [Reimbursement Program] Fund Administrator can approve costs even though there may not yet be funding to pay such invoices.” The Bureau agrees, and the filing portal system will allow recipients to file Reimbursement Claim Requests, even when the amount requested exceeds the amount allocated to the recipient, up until the deadline for filing Reimbursement Claim Requests has expired. These requests will, however, remain in pending status if there is insufficient funding to grant the requests in full.

45. Nokia requests that the Commission expedite disbursements to contractors involved in creating cost estimates for Application Requests for Funding Allocation that are initially accepted for filing prior to allocating the funds to all applicants. Specifically, it argues that expedited disbursements for costs associated with application preparation “will relieve financial stresses on the industry and encourage more complete and accurate applications.” The Commission's rules, however, do not allow for disbursements prior to a funding allocation. Further, the Commission did not establish a separate disbursement process to reimburse for expenses incurred for applications initially found acceptable for filing. Providing a disbursement at this early stage would also trigger the recipient's obligation to complete the removal, replacement, and disposal process within one year and many applicants would be unable to meet that deadline. That said, costs associated with preparing applications are potentially eligible for reimbursement and applicants may file reimbursement claims for such costs once an allocation is issued.

46. Reimbursement Claim Request Deadline. All Reimbursement Claim Requests must be filed no later than 120 days following the expiration of the removal, replacement, and disposal term. Prior to the expiration of the claim request deadline, recipients under the Commission's rules are permitted to request and, if timely requested, will automatically receive a 120-day extension. RWA notes that the one-year removal, replacement, and disposal term can be extended and argues that the corresponding 120-day reimbursement claim deadline should also be extended if the underlying one-year term is extended. The Bureau agrees and confirms that if the Commission or the Bureau extends the one-year removal, replacement, and disposal term, the corresponding 120-day reimbursement claim deadline will also be extended and start from the new extended term date expiration.

47. Finally, as required by the Commission's rules, after the Reimbursement Claim Request filing deadline, the remaining unclaimed amounts in the allocation will expire. The remaining funds in the expired allocation will be available for Commission reallocation in a future filing window. However, as proposed in the Reimbursement Process PN, a timely submitted extension request, while pending, will toll the expiration of the funding allocation.

48. Amendments, Modifications, and Administrative Updates. In the Reimbursement Process PN, the Bureau sought comment on proposals to allow program participants to update information on file with the Commission through the filing of amendments, modifications, and/or administrative updates. The Bureau did not receive comments regarding modifications or administrative updates. The Bureau did, however, receive comments objecting to the general denial of amendments to the Application Request for Funding Allocation that would increase cost estimate submissions, as discussed elsewhere herein. Accordingly, the Bureau will allow participants to amend, modify, and file administrative updates using the online filing portal.

49. To file an amendment the participant must notify the Reimbursement Program Fund Administrator of its intent to amend its application through the Reimbursement Program Fund Administrator Help Desk. Notification of an intent to amend through the Reimbursement Program Fund Administrator Help Desk is necessary to unlock the underlying application in the online filing portal to allow for the filing of an amendment. This notice of intent to amend alerts the Reimbursement Program Fund Administrator to pause application processing pending the filing of additional changes that may impact the review process. Amendment filings are only permitted for underlying filings that are in a pending status.

50. The Bureau also will allow modification filings after an application is granted. For a granted Application Request for Funding Allocation, the Bureau will allow recipients to submit modification filings to change itemized expenses and locations identified on their filings and to provide vendor and supplier quotes for review by the Reimbursement Program Fund Administrator. The Bureau reiterates that if the modification filing would change the cost of the project, it will not alter the funding allocation issued. Additionally, participants are allowed to file administrative updates for routine, non-material changes to filings such as changes to the applicant's contact information ( e.g., address, phone number, and contact name). The online filing portal will accept and automatically process administrative updates once filed.

51. Notifications of Changes in Ownership. Recognizing that the Reimbursement Program will be administered over multiple years and changes in ownership may occur, the Bureau adopts its proposal to adapt the online filing system to account for changes in ownership, including changes due to bankruptcy. Specifically, the Bureau will institute a streamlined process whereby, post-consummation, the recipient of record will file a notification signed by both parties to the transaction that includes an explanation of the ownership changes. In the event of an involuntary change of control and/or ownership, such as, but not limited to, the appointment of a trustee in bankruptcy or a receiver, the process shall include a mechanism for a rightful recipient to file the notification without the signature of the other party to the transaction upon a showing of appropriate documentation regarding the change of control and/or ownership. The Bureau, with the assistance of the Reimbursement Program Fund Administrator, will determine the amount of the funding allocation remaining, i.e., the amount not yet claimed and disbursed through the reimbursement claim process, and how to handle transactions involving the acquisition of discrete network components, e.g., the sale of a portion of the network and not the entire network. Commenters support this approach. The Bureau notes, however, that while it is not requiring prior approval for new owners to participate in the Reimbursement Program, the new owners would still have to be eligible to participate in the program to receive funding under the Commission's rules. Providers with more than 10 million customers are not eligible to participate in the Reimbursement Program.

52. Consistent with the Secure Networks Act, the Commission's rules require Reimbursement Program participants to complete the removal, replacement, and disposal process within one year from the initial disbursement of funds. The initial disbursement is deemed to occur on the date on which the Commission first distributes reimbursement funds to the recipient. Participants must file to receive their initial disbursement within one year of receiving the funding allocation approval.

53. Both the Secure Networks Act and the Commission's rules authorize extensions of the one-year removal, replacement, and disposal term. Specifically, under § 1.50004(h)(1) of the Reimbursement Program rules, the Commission may grant a general extension of the one-year term by a period of six months to all Reimbursement Program recipients if the Commission: (1) Finds the supply of replacement communications equipment or services needed by the recipients to achieve the purposes of the Reimbursement Program is inadequate to meet the needs of the recipients; and (2) provides notice and detailed justification for granting the extension to the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate. In addition, the Bureau may grant individual extensions of time for a period not to exceed six months on a case-by-case basis. The Commission has interpreted the Secure Networks Act to allow grant of multiple individual extensions of time to a participant. To grant an extension, the Bureau must find that, due to no fault of the recipient, such recipient is unable to complete the permanent removal, replacement, and disposal by the end of the term.

54. Nokia requested a blanket 6-month extension of time, noting that many applicants will have difficulty adhering to a one-year deadline for removal, replacement, and disposal because, under normal circumstances, the process would take approximately one to three years. Additionally, Nokia notes that a high number of carriers attempting to replace equipment during the same period of time may delay the process. The Competitive Carriers Association (CCA) also requested a blanket 6-month extension, raising a similar concern in its comments, recognizing that carriers are “managing labor shortages, including limited availability of skilled engineers and 12 tower crews, and an extension will give carriers a more realistic opportunity to navigate staffing challenges.” Copper Valley Wireless, Inc. (Cooper Valley Wireless) asserts that the unique issues facing Alaskan providers will result in multiple extension requests. Thus, Copper Valley Wireless requests successive blanket extensions for Alaskan providers.

55. The Bureau finds these requests for an extension of the term for all future participants are outside the scope of the Reimbursement Process PN, and it, therefore, declines to address these requests. In addition, the Bureau finds it premature to consider a general extension before the Reimbursement Program is even launched and any removal, replacement, and disposal terms are established. Granting an across-the-board extension at this juncture is counter to Congress' intent of having a one-year term.

56. In addition, some commenters have expressed concern that the Commission appears to favor O-RAN replacement options and requests that the Commission not grant an applicant's extension request solely because of the replacement choice. As the Bureau did not seek comment on proposals related to granting term extensions, it finds these comments are also outside the scope of the Reimbursement Process PN. These comments more accurately relate to the 2021 Supply Chain Order, where the Commission said that some replacement options, such as O-RAN or virtual RAN, may require additional time for system integration. While the Bureau recognizes it may take longer to implement certain technological solutions, that is only one factor among many that could justify an extension. Regardless, the Bureau disagrees that the Commission has demonstrated a preference for O-RAN technology solutions as compared to any other solution.

57. To help mitigate against waste, fraud, and abuse, and consistent with the Secure Networks Act, the Commission required recipients to submit status updates, spending reports, and final certifications and updates. The Bureau takes this opportunity to reiterate these requirements as set forth in the Secure Networks Act and the Commission's rules.

58. Status Updates. The Secure Networks Act requires that “[n]ot less frequently than once every 90 days beginning on the date on which the Commission approves an application for a reimbursement under the Program, the recipient of the reimbursement shall submit to the Commission a status update on the work of the recipient to permanently remove, replace, and dispose of the covered communications equipment or services.” The Secure Networks Act also provides that “[n]ot earlier than 30 days after the date on which the Commission receives a status update,” the Commission “shall make such status update public on the website of the Commission.”

59. In the 2020 Supply Chain Order, the Commission required recipients to file the first status updates within 90 days of receiving their funding allocations. In the status updates, recipients are required to report on the efforts undertaken and challenges encountered in permanently removing, replacing, and disposing of their covered communications equipment or services. Recipients shall also report in detail on the availability of replacement equipment in the marketplace so the Commission can assess whether a general, six-month extension permitted by the statute is appropriate. Each status update must include a certification that affirms the information in the update is accurate. The obligation to file status updates expires after the recipient has notified the Commission of the completion of the permanent removal, replacement, and disposal of the covered communications equipment or service pursuant to a final certification. Status updates will be public, consistent with the Commission's rules, and the Commission directed the Bureau to post on the Commission's website the status update filings within 30 days of submission.

60. Spending Reports. The Secure Networks Act requires Reimbursement Program recipients to submit “reports regarding how reimbursement funds have been spent, including detailed accounting of the covered communications equipment or services permanently removed and disposed of, and the replacement equipment or services purchased, rented, leased or otherwise obtained, using reimbursement funds.” In the 2020 Supply Chain Order, the Commission required Reimbursement Program recipients to file spending reports within 10 calendar days after the end of January and July, starting with the recipient's initial draw down of disbursement funds and terminating once the recipient has filed a final spending report showing the expenditure of all funds received as compared to the estimated costs submitted. The Commission directed “program participants to submit the final spending report no later than 60 days following the expiration of the program participant's reimbursement claim deadline.” The Bureau is required to make spending reports, except for detailed accounting information, available to the public via a portal on the Commission's website.

61. Final Certifications. Within 10 days following the expiration of the removal, replacement, and disposal term, recipients must file a final certification with the Commission. The final certification must indicate whether the recipient has fully complied with all terms and conditions of the program, the commitments made in its application, and the timeline submitted. The final certification must also indicate whether the recipient has permanently removed covered communications equipment and services that were in its network as of the date of application submission. Pursuant to the Secure Networks Act and the 2020 Supply Chain Order, if an applicant indicates that it has not fully complied with all terms of program participation, the applicant must file an updated final certification “when the recipient has fully complied.” Program participants failing to timely submit a final certification or updated final certification may be subject to forfeitures and other penalties.

62. The Secure Networks Act directed the Commission to make public on the Commission's website status updates submitted by recipients under the Reimbursement Program. In the 2020 Supply Chain Order, the Commission directed the Bureau to make filed spending reports available to the public through an online portal. The Commission also directed us to treat as presumptively confidential detailed accounting information on the covered communications equipment or services subject to removal, replacement, and disposal, and the replacement equipment or services being reimbursed, and to withhold such disaggregated information from routine public inspection. The Commission also directed us to treat as presumptively confidential “[o]ther information, such as location of the equipment and services; removal or replacement plans that include sensitive information; the specific type of equipment or service; and any other provider specific information,” which the Commission found would likely qualify as trade secrets under the Freedom of Information Act (FOIA) the public release of which could raise security and confidentiality concerns. However, as a condition of receiving funding, the Commission required Reimbursement Program recipients to provide consent to allow vendors or contractors used by the recipient to release confidential information to an auditor, reviewer, or other representative as part of the auditing process, which is discussed in further detail in Part III.A.13 of the PN.

63. The Bureau will treat certain specified information submitted by Reimbursement Program participants as public or presumptively confidential consistent with the Secure Networks Act, the Freedom of Information Act, and the Commission's rules. As proposed in the Reimbursement Process PN, and consistent with the Commission's rules, the Bureau will make publicly available, through an online search portal, general and summary information submitted by participants. This includes the name of the applicant who submitted a FCC Form 5640, Application Request for Funding Allocation, and the funding amount requested. This also includes the Reimbursement Program participants selected for funding allocation and the funding amount awarded. Consistent with the 2020 Supply Chain Order, the Bureau will also make public on the Commission's website recipients' filed spending reports. The Bureau finds that the public interest is best served by making this information available to the public to ensure transparency and accountability.

64. Commenters agreed with the proposal to treat certain sensitive information collected as part of the Program as presumptively confidential and withhold that information from routine public inspection. For example, ADTRAN “fully supports the proposal to maintain the confidentiality of proprietary information with regard to the prices of the replacement equipment and services.” ADTRAN asserts that “such information constitutes trade secrets,” and ADTRAN “takes steps to protect that information by requiring its customers (and potential customers) to enter into non-disclosure agreements to maintain confidentiality.” ADTRAN agrees that “information on the specific replacement equipment and location of that equipment . . . should not be made publicly-available, particularly because such information on what is critical infrastructure could provide roadmaps to malefactors.” RWA agrees with the proposal to treat as presumptively confidential and withhold from public inspection information including “detailed accounting information,” “location of the equipment and services; removal or replacement plans that include sensitive information; the specific type of equipment and service; and any other provider specific information that qualifies as trade secrets under the Freedom of Information Act.”

65. Accordingly, as contemplated by the 2020 Supply Chain Order, and proposed in the Reimbursement Process PN, the Bureau finds that certain information likely constitutes confidential commercial or financial information or trade secrets under the FOIA, and consistent with the 2020 Supply Chain Order, and the Commission's rules, the Bureau will treat this information as presumptively confidential and will withhold from routine public inspection such information, including:

• Detailed accounting information on the covered communications equipment or services removed, replaced, and disposed of, and the replacement equipment or services purchased, rented, leased, or otherwise obtained using Reimbursement Program funds;

• Vendor price quotes submitted with the FCC Form 5640, Application Request for Funding Allocation, or in a Modification filing;

• Invoices submitted with the FCC Form 5640, Reimbursement Claim Requests;

• Equipment or services location, including address, latitude/longitude, etc.;

• Removal or replacement plans that include sensitive information;

• Specific equipment or service type;

• Other provider-specific information; and,

• Specific timeline for the permanent removal, replacement, and disposal of covered communications equipment and services.

The Bureau finds, consistent with the 2020 Supply Chain Order, that this information would likely qualify as confidential commercial or financial information or trade secrets under the Freedom of Information Act and therefore should be withheld from routine public inspection.

66. Finally, the Bureau adopts the approach proposed in the Reimbursement Process PN, to allow filers uploading attachments to the online portal to categorize whether the attachment is “confidential” or “public.” RWA argues that “anything attached to the FCC Form 5640 by an applicant that is clearly marked confidential should be treated as such and withheld from public inspection.” The Bureau clarifies that participants may submit requests to treat documentation as confidential information to be withheld from public inspection; however, such requests must be consistent with FOIA and the Commission's rules. Requests for confidential treatment that are overbroad or otherwise inconsistent with our rules will be rejected. Attachments designated as “confidential” will be withheld from routine public inspection, subject to FOIA and the Commission's rules, whereas attachments designated as “public” may be made publicly available.

67. The Secure Networks Act directed the Commission to “take all necessary steps to avoid waste, fraud, and abuse with respect to the Program,” including “regular audits and reviews of reimbursements under the Program to confirm that recipients of such reimbursements are complying with this Act,” and “random field investigations to ensure that recipients of reimbursements under the Program are performing the work such recipients are required to perform.” In the 2020 Supply Chain Order, the Commission adopted a number of measures as directed by the Secure Networks Act to combat waste, fraud, and abuse, including requiring audits, reviews, and field inspections. In particular, the Commission directed the Office of the Managing Director (OMD), or a third-party identified by OMD, to prepare a system to audit Reimbursement Program recipients to ensure compliance with the Commission's rules. Recipients are subject to audits and other investigations to evaluate their compliance with the statutory and regulatory requirements for the program. To facilitate audits and field investigations, recipients must provide consent to allow vendors or contractors used by the recipient to release confidential information to the auditor, reviewer, or other representative. Recipients must also allow any representative appointed by the Commission to enter the premises of the recipient to conduct compliance inspections.

68. In the 2021 Supply Chain Order, the Commission delegated financial oversight of the Reimbursement Program to OMD, in coordination with the Bureau and the Reimbursement Program Fund Administrator, to ensure that all financial aspects of the program have adequate internal controls. OMD, in coordination the Bureau, may issue additional directions to the Reimbursement Program Fund Administrator and program participants in furtherance of its responsibilities. The Bureau will continue to work with OMD, any third-party identified by OMD, and the Reimbursement Program Fund Administrator to develop an audit, review, and field investigations process for the Reimbursement Program to protect against waste, fraud, and abuse. Pursuant to the 2020 Supply Chain Order, participants must allow any representative appointed by the Commission to enter the participant's premises to conduct compliance inspections so, at a minimum, the audit process may include site visits to participant's premises to conduct these compliance inspections.

69. In this section, the Bureau adopts a final Catalog which applicants may rely on, where applicable, when submitting cost estimates in their Application Request for Funding Allocation, and the Bureau provides additional guidance regarding whether certain costs are reasonably incurred and may be reimbursable under the Reimbursement Program.

70. Section 4(d)(1) of the Secure Networks Act requires the Commission to “develop a list of suggested replacements” for covered equipment and services and for applicants to submit “initial reimbursement cost estimate[s] at the time of application.” To accomplish this objective, the Commission delegated authority to the Bureau to develop and finalize a Cost Catalog in the 2020 Supply Chain Order. The Commission's rules provide that eligible providers may rely upon the predetermined estimated costs identified in the Catalog when submitting their cost estimates with their requests for funding allocation. The Bureau contracted with Widelity Inc. (Widelity) to produce a preliminary catalog containing a non-exhaustive list of cost categories and a range of cost estimates for communications equipment and services potentially eligible for reimbursement. Widelity developed the preliminary catalog based on a series of confidential interviews with communications industry stakeholders to understand the process and costs associated with removing, replacing, and disposing of covered communications equipment and services. In the Catalog PN, the Bureau sought comment on the preliminary catalog, the suggested ranges of estimated costs and cost categories identified therein, and how the Catalog should inform the Reimbursement Program. Widelity subsequently conducted a thorough review of the preliminary catalog, based on comments received in response to the Catalog PN, and conducted additional engagement with communications industry stakeholders and the Bureau, resulting in additional improvements to the Catalog.

71. After considering comments received in response to the Catalog PN, and in consultation with Widelity, the Bureau revises and finalizes the Catalog as set forth in this document. The final Catalog includes as an attachment a chart indexing changes from the preliminary catalog to the final Catalog. In particular, the Bureau added an index number to reference line item cost categories, clarified certain expenses that it finds are highly variable, clarified units of measurement, clarified cost categories and descriptions, amended certain ranges of cost estimates, and corrected typographical errors. For the reasons discussed in this document, the Bureau adopts the Catalog in Appendix C of the PN for use in the Reimbursement Program. The Catalog will be made available on the Commission's website, and the line items and cost estimate averages taken from the ranges identified in the Catalog will be incorporated into the online filing portal for use by applicants when completing the FCC Form 5640, Application Request for Funding Allocation.

72. The Catalog identifies cost categories and a range of estimated costs that providers of advanced communications services would typically incur when removing, replacing, and disposing of covered communications equipment or service. The Bureau emphasizes the Catalog is not intended to be a definitive or exhaustive list of all reimbursable expenses but rather is an additional tool to help applicants with their application submissions. Inclusion or exclusion in the Catalog of a particular category of costs should not be interpreted as a determination whether the expense will be eligible for reimbursement. Applicants may reference the line item cost estimates identified in the Catalog when submitting their initial cost estimates. Consistent with the Secure Networks Act, applicants relying on the Catalog when requesting a funding allocation will still be required to provide supporting materials substantiating their cost estimates with documentation such as quotes or invoices before receiving a disbursement of funds for reimbursement. To the extent that certain reimbursable expenses are not explicitly listed in the Catalog or certain cost categories do not fully account for an applicant's reimbursable expenses, applicants may request reimbursement by submitting individualized cost estimates, with supporting materials substantiating the costs. The cost estimates identified in the final Catalog do not guarantee the ultimate disbursement of funds for any individual expense. Participants' requests for reimbursement will be evaluated based on supporting documentation regardless of whether the initial cost estimates were based on the Catalog or individualized cost estimates.

73. As noted in this document, cost estimates based on the Catalog will be the average of the low- and high-end range of cost estimates identified in the Catalog. If an applicant believes a cost estimate identified in the Catalog does not fully account for its specific circumstances or a cost category is not identified in the Catalog, the applicant may provide an individualized cost estimate. Applicants providing individualized cost estimates will be required to submit additional supporting documentation ( e.g., vendor quotes) and certify that the cost estimate is made in good faith. All cost estimates are subject to review by Commission staff, with the assistance of the Reimbursement Program Fund Administrator, to ensure that an expense is eligible for reimbursement under the costs reasonably incurred standard.

74. The Bureau received 13 comments in response to the Catalog PN, including comments addressing the preliminary catalog. Comments addressing the preliminary catalog were generally favorable; however, commenters also proposed changes to the preliminary catalog. Commenters requested clarifications to the units of measurement for particular cost estimates, requested modifications or clarifications to certain cost categories, and requested modifications to certain ranges of cost estimates. Commenters proposed changes to the access layer, distribution layer, and core layer equipment, as well as software and services. Commenters also requested clarification on whether certain costs are reimbursable under the Reimbursement Program. The Bureau addresses these comments in the following. The Bureau also highlights modifications to the Catalog proposed by Widelity based on its own thorough review of the preliminary catalog and additional engagement with communications industry stakeholders.

75. Clarifying Units of Measurement. USTelecom—The Broadband Association (USTelecom) asked the Commission to clarify whether wavelength division multiplexing (WDM) and optical transport network (OTN) equipment “prices are `per node' and . . . not `per route.' ” WDM and OTN equipment is typically priced in the communications industry on a per node basis as opposed to per route, and the Bureau clarifies that the range of cost estimates for WDM and OTN equipment in the Catalog is priced on a per node basis. USTelecom also asked the Commission to clarify “whether the range of prices identified in the preliminary Catalog for the `existing co[ ]location' expense type” are “per-month or a flat fee for each lease.” Because colocation is typically priced on a per-site, flat-fee basis, as opposed to a per-month basis, the Bureau revises the Catalog to clarify that the range of cost estimates for colocation is priced on a per-site basis to more accurately describe the per-unit cost of these expenses.

76. Requests to Include Additional Cost Categories. CCA asked the Commission to “include in the Cost Catalog an entry for preparation of the cell site closeout package, which may include photos, red line/as-built drawings, documents, and other relevant information to confirm that the site has been completed to specified standards and requirements.” The Bureau agrees. The Bureau finds that cell site closeout costs may be reasonably necessary to remove and replace covered communications equipment or services, and revised the Catalog to include under the “Services,” “Site Work” cost category, a subcategory for “Closeout Package—Microwave” and general “Closeout Package.” The range of cost estimates for these new cost categories was developed by Widelity based on confidential interviews with communications industry stakeholders.

77. RWA requested the Bureau add an “Attorney fees” cost category to the Catalog for “legal fees spent on the advocacy surrounding the development of the rules,” or “legal fees related to the ongoing rulemaking process.” The Bureau notes that the preliminary catalog included a “Participation in FCC Rulemaking” cost category with a range of cost estimates. The Bureau denies RWA's request because attorney's fees related to the rulemaking proceeding are not reasonably necessary for the removal, replacement, and disposal of covered communications equipment or services. The Bureau modifies the Catalog to remove the “Participation in FCC Rulemaking” cost category and range of cost estimates identified in the preliminary Catalog. The Bureau clarifies, however, that certain attorney's fees and legal expenses incurred for purposes of participating in the Reimbursement Program, such as preparing application forms, reimbursement forms, extension requests, and waiver requests, may be reimbursable to the extent they are reasonably incurred for the removal, replacement, and disposal of covered communications equipment and services and the allocation request is substantiated with supporting documentation. The Bureau also notes that, for example, attorney fees associated with negotiating and reviewing vendor contracts and legal fees associated with zoning and permitting are included in the Catalog range of cost estimates and potentially eligible for reimbursement.

78. Clarifying Reimbursable Expenses. CCA asked the Commission to provide “additional clarification on allowable reimbursements for internal employee time, including what type of documentation will be required.” As CCA noted, the preliminary catalog included a range of cost estimates related to internal labor costs, including carrier internal project management. The Bureau recognizes that the Reimbursement Program will demand significant employee time and resources. Internal labor costs, like other program costs, are reimbursable to the extent they are reasonably incurred removing, replacing, and disposing of covered communications equipment and services. However, for internal labor costs to be reimbursable, they must be entirely related to transition efforts, that is, the costs would not have been incurred but for Reimbursement Program participation removing, replacing, and disposing of covered communications equipment and services. In other words, participants are only eligible to recover that portion of employee time attributable to transitioning equipment and services, not unrelated employee time or expenses related to overhead. Labor costs associated with normal system or network maintenance and administration, conducted in the ordinary course of business, are not reimbursable. The Bureau will review internal labor costs with heightened scrutiny to ensure that such expenses are reasonably necessary for removal, replacement, and disposal of covered communications equipment or services, and to avoid waste, fraud, and abuse in the Program. Generally, the Bureau expects cost estimates for internal labor to be lower than cost estimates for outside services for the same work.

79. The Bureau finds that the Catalog adequately identifies and accounts for employee time, i.e., internal labor costs, that could be quantified for a range of cost estimates based on pricing data submitted by industry stakeholders to Widelity. For example, the Catalog includes a range of cost estimates for internal labor including project management and engineer/staff network operations which are on a per person per month basis. The Bureau makes no changes to the Catalog with respect to internal labor costs. Internal labor costs identified in the Catalog are reimbursable to the extent they are reasonably incurred removing, replacing, and disposing of covered communications equipment and services. Applicants may rely on the Catalog to estimate internal labor costs for their application submissions where applicable but will be required to submit additional documentation accounting for actual costs during the reimbursement stage to ensure that reimbursement funds are entirely related to transition efforts.

80. Applicants seeking reimbursement for internal labor costs that are not identified in the Catalog will be required to submit individualized cost estimates and documentation and certify that the estimates are made in good faith. In particular, to ensure that internal labor costs are entirely related to transition efforts, such costs must be estimated on a per-hour and per-project basis, providing both an estimate of labor hours to be incurred for each project and the internal labor rate to be used. Evidence of the salary/hourly rate of internal labor must be provided to establish the reimbursable portion of labor costs. Labor rates may be inclusive of salary and benefits. When submitting cost estimates for internal labor costs, the applicant should provide the employee hourly rates, a description of the work performed, and the number of hours to be worked ( e.g., copies of employee timesheets or paystubs with hours worked, and Internal Revenue Service Form W-2, Wage and Tax Statement).

81. The Bureau will exercise its discretion in determining whether the hours and/or labor rates satisfy the costs reasonably incurred standard. When submitting actual costs for reimbursement for internal labor, participants should provide: A report listing the hours incurred for each transition task, the applicable labor rate, and the resulting cost; and copies of employee timesheets showing hours worked on each transition task, by day. Timesheet hours must match the totals reported by the task in this document. Timesheets either may come from the participants' time and expense reporting systems or can be manually prepared using spreadsheets or other means. The Bureau may request additional supporting information for internal labor costs, such as payroll, human resources, or financial records.

82. RWA argues that costs associated with “long term maintenance contracts or managed service contracts to maintain and operate Huawei and ZTE networks may need to be terminated prior to the service terms being completed and that the costs associated with the termination . . . should be reimbursed as part of the costs associated with replacing the networks.” Observing that “other prepaid service contracts may need to be terminated prior to the service terms being completed,” RWA argues that “[t]hese costs should be eligible for reimbursement and included in the Cost Catalog because they are outlays already made that are not otherwise recoverable.” The Bureau rejects RWA's request because these expenses are incurred to maintain Huawei and ZTE networks that the Reimbursement Program is designed to replace. These expenses are not reasonably necessary to remove, replace, and dispose of covered communications equipment and services.

83. The Bureau does, however, clarify that early termination fees incurred by providers terminating long term service contracts, managed service contracts, or other prepaid contracts entered into prior to their application submission may be reimbursable to the extent they are reasonably necessary for removing, replacing, and disposing of covered communications equipment and services. The Bureau will not reimburse early termination fees for contracts entered into after June 30, 2020, as Congress has established that date as the eligibility cut-off for eligible expenses. Beyond our statutory obligation, after June 30, 2020, the date on which the Public Safety and Homeland Security Bureau released orders designating Huawei and ZTE as covered companies under our rule § 54.9, no Universal Service Funds could be used to purchase, obtain, maintain, improve, modify, or support Huawei or ZTE equipment or services. The Bureau declines to reward business decisions where a participant should be on notice to not enter into arrangements with such fees given the program's goals to incentivize providers to remove, replace, and dispose of Huawei and ZTE equipment and services. Participants seeking reimbursement for early termination fees must provide supporting documentation, including copies of vendor contracts with the early termination fee provisions.

84. CCA requested that certain integration costs be included in the Catalog. CCA requested that any Citizens Broadband Radio Service (CBRS) equipment being replaced should include “the costs of re-integration of the new CBRS equipment with Spectrum Access Systems.” Because Spectrum Access Systems (SAS) integration costs may be reasonably necessary to replace CBRS equipment, these costs may be reimbursable under the program. The Bureau revises the Catalog to include cost categories for access layer and distribution layer SAS Integration Costs and a range of cost estimates based on Widelity's confidential interviews with communications industry stakeholders.

85. CCA also requested inclusion in the Catalog of a cost category for “third-party integration costs” such as “billing software, messaging platforms, roaming services, WEAS systems, and robocall blocking services.” While these expenses are not in the Catalog, some of these expenses may be reimbursable. However, the Bureau rejects CCA's request because network integration costs are highly variable, making it difficult to develop a quantifiable range of cost estimates based on the record and information provided by communications industry stakeholders to Widelity. As noted in this document, the final Catalog does, however, include specific integration costs, such as SAS integration, that are specific to the type of equipment which may be eligible for reimbursement. Participants seeking reimbursement for network integration costs not identified in the Catalog will need to provide individualized cost estimates with supporting documentation.

86. RWA asked the Commission to modify the Catalog to include “VoLTE compatible replacement subscriber handsets” to replace “CDMA-capable voice services on some handheld devices.” Relatedly, CCA asked the Commission to modify the Catalog to clarify that replacements to “add, upgrade, or replace HSS, IMS, PCRF, etc. to support UMTS/LTE/VoLTE devices” fall within the catalog's “purview.” In the 2021 Supply Chain Order, however, the Commission rejected RWA's request, finding “CDMA-capable handsets not produced or provided by Huawei or ZTE ineligible for reimbursement under the Reimbursement Program rules because replacing such handsets with VoLTE-compatible subscriber handsets is not reasonably necessary to the removal, replacement, and disposal of covered communications equipment or service.” Consistent with the 2021 Supply Chain Order, the Bureau declines to modify the Catalog to include handsets and other end user customer premises equipment (CPE) outside of the limited CPE already accounted for in the Catalog.

87. RWBC asked the Commission to modify the Catalog to “include cost estimates for deploying fiber backhaul equipment,” arguing that “fiber backhaul facilities should be considered comparable to microwave backhaul facilities under the ` Emerging Technologies ' compatibility standard.” Similarly, USTelecom asked the Commission to clarify whether leasing “additional capacity on a long-term basis (like a fiber IRU) that would support the parallel network” is eligible for reimbursement. In the 2021 Supply Chain Order, however, the Commission did not consider “replacing microwave backhaul with fiber backhaul . . . necessary for the removal, replacement, and disposal of” covered communications equipment or services.” Instead, the Commission viewed such “fiber link replacements as a technology upgrade, and not a reasonable, comparable replacement.” As the Commission explained in the 2021 Supply Chain Order, if the participant decides to upgrade its equipment, it will bear the difference in cost between the comparable replacement and the upgrade, must provide price quotes for the comparable replacement with its application, as opposed to relying on the cost estimates in the Catalog, and must certify that the estimated cost is in good faith. Fiber backhaul facilities and additional capacity would be considered an upgrade, not a reasonable, comparable replacement. Accordingly, the Bureau declines to add this equipment as a separate cost category to the Catalog.

88. Ericsson argues that the preliminary catalog “only included Internet of Things (`IoT') software licenses associated with core network nodes,” which does “not reflect the need to replace existing Machine-to-Machine (`M2M') and IoT software licenses in the Radio Access Networks (`RAN') nodes.” Ericsson asked the Commission to “expand the current Catalog to include specific RAN software licenses for existing functionality, such as M2M, Cat-M1, Narrowband IoT, and similar items” because it would “ensure the continuation of IoT capabilities in one frequency band in all sectors of an existing LTE site with typical 2, 4, and 8-port radios.” The Bureau declines to implement Ericsson's request because the functionality cited, Internet of Things capabilities, is not reasonably necessary for core network operations and therefore is outside of the scope of the Catalog. The cost categories Ericsson requests to include in the Catalog are not part of the core network but rather are used by end users to connect to advanced communications services. In the 2021 Supply Chain Order, the Commission found that “Internet of Things devices, used by end users to access and utilize advanced communications services are distinctly different from the cell sites, backhaul, core network, etc. used to operate a network and provide advanced communications services,” and were “not reasonably necessary to the removal, replacement, and disposal of covered communications equipment or service.”

89. Vantage Point argues that “annual software or license fees” are “a true cost of network replacement and should be included in Catalog replacement estimates.” While these expenses may be reimbursable, the Bureau declines to implement Vantage Point's proposed change because specific software licensing fees are already included in the Catalog based on Widelity's engagement with industry stakeholders. Participants seeking reimbursement for software and licensing fees not identified in the Catalog will need to provide individualized cost estimates with supporting documentation.

90. Requests to Clarify or Modify Cost Categories. CCA asks us to “clarify that the full range of 911 implementation costs are reasonable,” including “third-party integration costs.” The Catalog includes cost estimates for “911 and E911 Services and Test Services” which the Bureau finds are sufficiently specific. To the extent that there are additional costs associated with 911 and E911 (Enhanced 911) implementation as CCA suggests, there is no evidence in the record or provided to Widelity that would form a basis for altering the Catalog 911 and E911 services cost categories. Accordingly, the Bureau declines to implement the change proposed by CCA.

91. USTelecom asked the Commission to clarify that the “Leasing” cost category is not limited to “wireless networks,” but that “wireline networks may also need to obtain or modify leases, such as, for example, for space in third-party datacenters.” In particular, USTelecom asserts that the “`existing colocation' expense type” is “unclear.” The Bureau clarifies that providers of wireline networks may be eligible for reimbursement of leasing expenses, including colocation expenses, reasonably incurred in removing, replacing, or disposing of covered communications equipment and services. The Bureau declines, however, to modify the Catalog to account for costs of leasing space in third-party data centers. The Bureau notes that there is no documentation in the record to quantify costs for leasing space in third-party data centers, and Widelity did not receive cost data on leasing space in third-party data centers.

92. Amendments to the Range of Cost Estimates. Commenters requested that the Bureau modifies the range of cost estimates for certain cost categories identified in the preliminary Catalog. Mavenir argues that the low range of cost estimates identified in the preliminary Catalog for “ `Open vRAN eNodeB', `RAN (Open RAN/vRAN) Components' or [Distributed Unit] . . . need to be changed to reflect that costs provided by Mavenir.” The Bureau agrees with Mavenir that it should modify the Catalog to reduce the low end of the range of estimated costs for “Open vRAN eNodeB,” and “RAN (Open RAN/vRAN Components)” to reflect the lower pricing information Mavenir submitted to Widelity. Accordingly, the Bureau implements these clarifications in the Catalog. However, the Bureau rejects Mavenir's request to lower the low end of the range of cost estimates for the distribution layer Distributed Unit cost category because Widelity had already factored in the pricing information Mavenir submitted to Widelity when developing the range of cost estimates for the preliminary catalog. Because the Bureau finds the range of cost estimates for Distributed Unit identified in the preliminary catalog to be reasonable, the Bureau includes it in the final Catalog.

93. USTelecom asked the Commission to “reexamine and confirm the appropriate prices” for WDM and OTN equipment. USTelecom asserted that it was “unclear why” cost estimates for access layer “Access WDM & OTN” equipment “matches” core layer “Metro WDM & OTN” equipment, “yet the apparently similar” distribution layer “Metro WDM & OTN” cost estimates are “very different.” To remove a potential source of confusion for participants, the Bureau removed the core layer “Metro WDM & OTN” cost category since this equipment is identical to distribution layer WDM and OTN equipment and thus the cost estimates were duplicative. As a result, the Bureau adjusted the range of cost estimates for “WDM & OTN—Core Equipment” to reflect the removal of distribution layer WDM and OTN equipment and the associated range of cost estimates. Accordingly, the Bureau adopts this revision in the Catalog. WDM and OTN associated equipment costs are included for the access layer, distribution layer, and core layer equipment cost categories.

94. USTelecom states that a member has “Huawei equipment that would appear to be classified as Coaxial Media Converters in the proposed catalog” and reports that it “paid well in excess of the maximum allowed,” and “the cost to replace Huawei with equal functionality will range from $13,000-$16,000 per replacement.” USTelecom notes that the carrier “typically refers to” the “Coaxial Media Converters” equipment as a “cable modem termination system (CMTS) and, while CMTS systems are generally deployed in a cable operator's headend, these particular Huawei CMTS devices are field-deployed.” Because the Bureau finds that the costs for replacing CMTS are reasonably necessary to comply with the Reimbursement Program, the Bureau finds that the Catalog should be revised to account for CMTS costs. The Bureau agrees with USTelecom that the high-end cost estimate should be $16,000 per node but, based on cost estimates recommended by Widelity based on industry engagement, the Bureau finds that the low-end cost estimate should be $8,500 per node. The Bureau modifies the Catalog to include this range of cost estimates for CMTS (per node).

95. CCA asks us to “add the costs of cell site routers to the Catalog, with an estimated cost of $3,000 per site” because “[e]ach cell site typically has a router installed.” The preliminary catalog identified a Distribution Layer cost subcategory and range of cost estimates for “Cell Site Routers.” The Bureau revised the Catalog to include additional Distribution Layer cost subcategories and ranges of cost estimates for small, medium, and large cell site routers based on Widelity's additional engagement with industry stakeholders. The Bureau finds that Widelity's thorough survey of communications industry manufacturers and service providers reasonably identified relevant ranges of estimated costs for cell site routers. To the extent that applicants disagree with the Catalog cost estimates, they may submit individualized cost estimates along with supporting documentation.

96. The Bureau also takes this opportunity to clarify that costs associated with removing, replacing, and disposing of wired (Wi-Fi) and wireless routers that constitute CPE are not be reimbursable under the program and revise the Catalog accordingly. The preliminary catalog included a subcategory (without cost estimates) for “Smart Home” CPE but clarified that “IP cameras, wifi doorbells, wifi, light switches, etc. would not be reimbursable.” In the preliminary Report, Widelity noted that for wireless networks, CPE can include an “internal modem and broadband router possibly with a wireless access point to distribute a signal throughout the premises or office,” and for wired networks, CPE can include a “broadband router, or a premise gateway with wireless (Wi-Fi) capabilities.” In the 2021 Supply Chain Order, the Commission found that certain CPE equipment including end-user handsets were “distinctly different from cell sites, backhaul, core network, etc. used to operate a network and provide advanced communications services.” In particular, the Commission found this equipment was not reasonably necessary to the removal, replacement and disposal of covered communications equipment. Wired (Wi-Fi) and wireless routers may constitute CPE used by end users to access non-core network elements and, consistent with the 2021 Supply Chain Order, are not reasonably necessary for the removal, replacement, and disposal of covered communications equipment or services. Accordingly, the Bureau revises the Catalog “Smart Home” subcategory to clarify that “Wi-Fi Routers” would not be reimbursable under the program.

97. Airspan argues that the “Cost Catalog's pricing appears grossly inflated,” noting that “some of the lower bound cost estimates listed in the Cost Catalog are as much as three times (3x) the price Airspan currently offers for equivalent hardware and other network elements,” and that network equipment and services are becoming less expensive by the day due to the ongoing evolution of network architecture design and equipment manufacturing.” Airspan did not sufficiently quantify with specificity the changes to the range of cost estimates it envisioned. The Bureau thus declines to modify the Catalog in response to Airspan's comment because it believes that Widelity's thorough survey of communications industry manufacturers and service providers reasonably identified relevant ranges of estimated costs. The Bureau notes that it modified the Catalog in parts to reduce the low-end of the range of cost estimates where appropriate.

98. Vantage Point argues that the preliminary Catalog underestimates shipping costs in Alaska, failing to account for “shipping costs to any other major Alaskan port,” other than Seattle to Dutch Harbor, and failing to account for “inland transportation costs.” The Bureau declines to modify the Catalog to account for additional shipping costs in Alaska raised by Vantage Point. The Catalog accounts for shipping costs to Alaska based on the longest shipping route, Seattle to Dutch Harbor, as an example for the costs typically incurred. Cost estimates for other outlying regions, which vary depending on multiple cost factors, including distance, time of year, freight weight, etc., would be too variable to include in the Catalog. To the extent that providers believe the Catalog does not adequately represent their shipping costs, they may submit individualized cost estimates with supporting documentation.

99. Widelity Proposed Revisions. Widelity also proposed various modifications, clarifications, and improvements to the preliminary catalog, based on additional engagement with communications industry stakeholders and its own thorough review. Widelity proposed various clarifications to the descriptions of the cost categories. For example, Widelity proposed clarifying that the “Virtual/ Cloud Core Deployment Cloud—Virtual IMS” cost category range of estimated costs is for equipment providing service to “up to 100,000 subscribers.” Widelity also proposed revising the description for “Antenna—LTE (Long Term Evolution)” to represent costs for a typical 10-port antenna, instead of an 8-port antenna, resulting in a decrease to the low-range of cost estimates from $2,087 to $1,479. Widelity also proposed adding additional cost subcategories to provide further specificity and guidance to applicants. For example, Widelity proposed adding a Distribution Layer Equipment cost category for “Hybrid Cable & Radio Jumpers, Tower Ancillary Components” with a range of cost estimates. Widelity also proposed changes to the range of cost estimates proposed in the preliminary catalog to more accurately reflect reasonable costs typically incurred managing a network. For example, Widelity proposed increasing the high-end of the range of cost estimates for “Tower/Installation Crews,” “Mobilization Less than or Equal to 250 Miles (2-4 Member Crew),” from $3,000 to $6,000.

100. Because the Bureau finds that Widelity's proposed modifications and clarifications improve the accuracy and quality of the Catalog and will aid participants preparing their initial cost estimates, it revises the Catalog to include additional changes identified by Widelity. A complete listing of the changes to the preliminary catalog that are reflected in the final Catalog are included as an attachment to the Catalog in Appendix C of the PN.

101. Highly Variable Expenses. For certain expenses identified in the preliminary catalog—such as costs associated with network security equipment, network automation, and network integrator services—a range could not be quantified, most often due to the highly variable nature of the cost. Taxes, for example, vary by state and locality and/or tax exemption and therefore could not be quantified for the Catalog. The same holds true for special access site costs which vary by site and region. For these expenses, while the Bureau recognizes they are potentially reimbursable, applicants will not be able to rely on the Catalog as there is no quantified range. Accordingly, for such expenses, applicants will need to provide an individual cost estimate with supporting documentation. The Bureau has moved those expense descriptions to the back of the Catalog merely as an acknowledgement that it has considered such costs and recognize they are potentially eligible for reimbursement even though a cost estimate range could not be quantified.

102. The Bureau adopts a final List of Categories of Suggested Replacement Equipment and Services (Replacement List) to guide providers removing, replacing, and disposing of covered communications equipment and services. Section 4(d)(1) of the Secure Networks Act directs the Commission to “develop a list of suggested replacements of both physical and virtual communications equipment, application and management software, and services or categories of replacements of both physical and virtual communications equipment, application and management software and services.” The list must be “technology neutral and may not advantage the use of reimbursement funds for capital expenditures over operational expenditures.” Accordingly, in the 2020 Supply Chain Order, Commission mandated the development of a Replacement List “that will identify the categories of suggested replacements of real and virtual hardware and software equipment and services to guide providers removing covered communications equipment from their networks.” and directed the Bureau to issue a public notice announcing the Replacement List. The Bureau sought and received comment on a preliminary Replacement List prepared by Widelity in the Catalog PN. After considering the comments addressing the preliminary Replacement List received in response to the Catalog PN, the Bureau declines to make any changes to the preliminary Replacement List.

103. Santel Communications Cooperative, Inc. (Santel) asked the Bureau to “add a statement in the Replacement List acknowledging that replacing covered equipment with other advanced communications services equipment, specifically including [fiber-to the-premises (FTTP)] equipment, qualifies for reimbursement under the Supply Chain Reimbursement Program.” In the 2021 Supply Chain Order, however, the Commission explained that it generally views fiber link replacements, including FTTP, as a technology upgrade and not a reasonable, comparable replacement for covered communications equipment and services. Participants may upgrade communications equipment and services under the Reimbursement Program but, as the Commission explained, will ultimately bear the difference in cost between the comparable replacement and the upgrade. Because cost determinations are very case-by-case specific, and FTTP is generally considered an upgrade, not a reasonable, comparable replacement, the Bureau declines to adopt Santel's proposed modification to the Replacement List.

104. ADTRAN seeks to “incorporate a `Buy American' preference into the suggested Replacement Equipment.” However, when Congress created the Reimbursement Program it did not express a preference for providers to replace covered communications equipment and services with equipment and services provided by U.S. companies. Similarly, and by ADTRAN's own admission, Congress did not include a “Buy American” preference for the Reimbursement Program in sections 901 or 906 of the Secure Networks Act. Furthermore, in the 2020 Supply Chain Order the Commission explained that the Replacement List should “provide carriers with the flexibility to select the equipment or services that fit their needs from categories of equipment and services.” Consistent with the 2020 Supply Chain Order, the Bureau provides participants with the flexibility to select U.S. and non-U.S. equipment or services (excluding, of course, Huawei and ZTE equipment or services) that satisfy their obligations under the Reimbursement Program. Accordingly, the Bureau declines to adopt ADTRAN's proposed modification to the Replacement List.

105. Accordingly, for the reasons stated herein, the Bureau adopts the preliminary replacement list proposed in the Catalog PN, without changes, as the final Replacement List for use in the Reimbursement Program. Consistent with the 2020 Supply Chain Order, the Bureau will publish the final Replacement List on the Commission's website and issue a public notice at least annually announcing any updates to the Replacement List, to the extent there are any updates, to ensure that the Replacement List remains current. The final Replacement List is attached as Appendix D of the PN.

106. The Bureau also sought comment in the Catalog PN on the Supply Chain Reimbursement Program Study (Report) prepared by Widelity. The Report represents the views of Widelity, not the views of the Commission or the Bureau, and is not an official Commission document. While the Bureau appreciates comments received addressing and proposing changes to the Report, the Bureau did not intend for further revisions to the Report by Widelity and instead sought comment only to help gauge the adequacy and sufficiency of the subjects covered in the Report as the Bureau works to implement the Reimbursement Program. Specifically, the Report was intended “as an industry and technology overview and explains Widelity's methodologies used to develop the initial version of the proposed Catalog and Replacement List.” Comments on the Report are relevant only to the extent they inform the finalization of the Catalog and Replacement List. The final Catalog will be used by participants to estimate initial costs, and the final Replacement List will serve as a suggested guide to participants replacing equipment and services. Accordingly, the Bureau finds it unnecessary to require further revisions to the Widelity Report.

107. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198. The Commission has submitted the information collection requirements contained in the 2020 Supply Chain Order, including FCC Form 5460, to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on those requirements.

108. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, OMB, concurs, that these requirements are non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Bureau will send a copy of this document to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

109. Legal Authority. The Bureau establishes procedures for the Reimbursement Program pursuant to the authority contained in section 4 of the Secure Networks Act, as amended, 47 U.S.C. 1603, and § 1.50004(p) of the Commission's rules, 47 CFR 1.50004(p).

110. Treasury Offset. The U.S. Department of the Treasury (Treasury) has a number of collection tools, including the Treasury Offset Program (TOP), whereby it collects delinquent debts owed to Federal agencies and states by individuals and entities, by offsetting those debts against Federal monies owed to the debtors. As noted in the Reimbursement Process PN, TOP will apply to disbursements from the Reimbursement Program. Reimbursement Program participants owing past-due debt to a Federal agency or a state may have all or part of their disbursement payments offset by Treasury to satisfy such debt. Prior to referral of its debt to Treasury, an entity is notified of the debt owed, including repayment instructions. If the referred debt of a Reimbursement Program participant remains outstanding at the time of a disbursement payment from the Reimbursement Program to that participant, the participant will be notified by Treasury that some or all of its payment has been offset to satisfy an outstanding Federal or state debt. Program participants that owe past due Federal or state debts that have been referred to Treasury are encouraged to resolve such debts prior to submitting their Application Request for Funding Allocation. The Bureau lacks discretion to deviate from the requirements of the TOP.

111. RWA recognizes the Commission lacks the authority to deviate from the TOP requirements but “encourages the Reimbursement Program Fund Administrator and the FCC to work through any debt collection issues with the applicant prior to funds being released so that an applicant can cure any outstanding debts in order to receive funding.” The Bureau will endeavor to work with participants, to the extent practicable, on Treasury Offset debt collection issues in connection with the disbursement process. Participants are, however, encouraged to proactively identify and resolve any outstanding Federal and state debt issues before participating in the Reimbursement Program that could lead to a Treasury Offset.

112. Do Not Pay. Absent comment on the issue, the Commission adopts the proposal for the Bureau in coordination with the Commission's Office of Managing Director to “conduct a thorough review of the federal `Do Not Pay' system database to verify an applicant's eligibility for payments and awards” before distributing the funding. Pursuant to the Payment Integrity Information Act of 2019 (PIIA), the Commission is required to ensure that a thorough review of available databases with relevant information on eligibility occurs to determine program or award eligibility and prevent improper payments before the release of any federal funds.” The Department of Treasury's Do Not Pay system is designed to decrease improper payments in Federal programs such as the payment of funds to ineligible recipients, overpayment, or underpayment.

113. Under the PIIA, the Commission is required to verify the eligibility of the funding recipient in multiple databases before allocating and distributing the funding. The Reimbursement Program Fund Administrator will initially check whether an applicant is identified in the Do Not Pay system. If an applicant is ineligible for funding under the Do Not Pay system, the Reimbursement Program Fund Administrator will notify the applicant and provide an opportunity for the applicant to expeditiously resolve the matter with the Do Not Pay system. The Bureau will not allocate funding to the applicant if an applicant is ineligible for funding under the Do Not Pay system. If a check of the Do Not Pay system results in a finding that a Reimbursement Program applicant is ineligible for funding or payment, the Commission will withhold funding and/or payments as appropriate. The Program Administrator may work with the applicant to give it an opportunity to resolve its listing in the Department of the Treasury's Do Not Pay system if the applicant can produce evidence that its listing in the Do Not Pay system should be removed. However, the applicant or program participant will be responsible for working with the relevant agency to correct its information before funding can be allocated or payment can be made by the Commission.”

114. Red Light Rule. In the Reimbursement Procedures PN, the Bureau sought comment on waiving the Commission's “red light rule” for all funding allocations and disbursements from the Reimbursement Program. RWA supported this proposal. Accordingly, the Bureau will waive the “red light rule” for the Reimbursement Program as discussed in this document.

115. The Commission's “red light rule” prevents parties who are delinquent on debts owed to the Commission from receiving benefits from the Commission while the debts remain unpaid. The Commission adopted the “red light rule” in implementation of the Federal Debt Collection Improvement Act of 1996 that sought to “maximize collections of delinquent debts owed to the Government . . .” The Commission has the authority to waive the “red light rule” for “good cause shown” under the Commission's rules. The Commission can waive compliance with its own regulations when “particular facts would make strict compliance [with the regulation] inconsistent with the public interest.” The Bureau finds that the waiver of the “red light rule” is justified in this instance given the national security risks posed to U.S. networks by Huawei and ZTE covered communications equipment and services.

116. Final Regulatory Flexibility Certification. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concerns” under the Small Business Act. A “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

117. The Commission prepared Initial Regulatory Flexibility Analyses (IRFAs) in connection with the 2020 Supply Chain Declaratory Ruling, 85 FR 47211, August 4, 2020, 2020 Supply Chain Second Further Notice of Proposed Rulemaking (FNPRM), 85 FR 48134, August 10, 2020, and the 2021 Supply Chain Third FNPRM, 86 FR 15165, March 22, 2021. The Commission sought written public comment on the proposals in the 2020 Supply Chain Declaratory Ruling, 2020 Supply Chain Second FNPRM, and the 2021 Supply Chain Third FNPRM, including comments on the IRFAs. No comments were filed addressing the IRFAs. The Commission included Final Regulatory Flexibility Analyses (FRFAs) in connection with the 2020 Supply Chain Order and the 2021 Supply Chain Order.

118. This document establishes procedures for the Reimbursement Program to implement the rules adopted by the Commission for the Reimbursement Program in the 2020 Supply Chain Order and in the 2021 Supply Chain Order. In particular, this document establishes procedures for, among other things, determining program eligibility and participating in the program, including the filing and processing of applications. The procedures established in this document flow from the proposals set forth in the 2020 Supply Chain Declaratory Ruling, 2020 Supply Chain Second FNPRM, and the 2021 Supply Chain Third FNPRM and discussed in the IRFAs accompanying those Notices, and are consistent with the requirements established in the 2020 Supply Chain Order and the 2021 Supply Chain Order and addressed in the FRFAs accompanying those Orders. Accordingly, no changes to our earlier analyses are required.

119. The Bureau has determined that the impact on the entities affected by the requirements contained in this document will not be significant. The effect of these measures is to establish for the benefit of those entities, including small entities, the procedures for filing an application consistent with existing rules, to participate in the Reimbursement Program to obtain funding support to remove from their networks, replace, and dispose of communications equipment and service considered a national security risk.

120. The Bureau therefore certifies that the requirements of this document will not have a significant economic impact on a substantial number of small entities. The Bureau will send a copy of the document including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. In addition, the document and this final certification will be sent to the Chief Counsel for Advocacy of the SBA, and will be published in the Federal Register .

The proposed rule was published at 86 FR 15180 on May 21, 2021. Because Gray's proposal that the Bureau allot channel 24 to York is not mutually exclusive with its existing channel 4 allotment at Superior and would result in removal of Superior's sole local transmission outlet, the NPRM sought comment on whether to waive section 1.420(i) of the Commission's rules regarding mutual exclusivity, and the Commission's allotment policy disfavoring the removal of a community's sole first local service. Gray filed comments in support of the petition reaffirming its commitment to apply for channel 24 and filed amended comments at the Bureau's request to more fully address the waiver issues. In addition to KSNB-TV, Gray is the licensee of KOLN, Lincoln, Nebraska. KOLN's tower collapsed in 2020 and according to Gray, given the imminent failure of KSNB-TV's existing technical facility, rebuilding KSNB-TV on channel 24 at the new KOLN tower would resolve VHF-related reception issues in certain areas of KSNB-TV's current predicted service area, and save several hundred thousand dollars in construction costs.

With respect to the mutual exclusivity requirement, the Commission adopted section 1.420 to allow a television station to request a new community of license without subjecting the station to the risk of losing its license to competing applications if the change in community of license was mutually exclusive with the station's current allotment, so that the change would not deprive potential future applicants of the opportunity to apply for a new station to serve the area. Gray demonstrated that multiple channels are currently available for future allotment in the Superior/York/Lincoln, Nebraska area and, thus, because the underlying purpose of the rule would not be frustrated by changing KSNB-TV's community of license without allowing competing expressions of interest, the Bureau waived this requirement of section 1.420 of the rules. The Bureau also waived the Commission's policy disfavoring the removal of a sole local service allotted to a community. York is significantly larger than Superior, and grant of a waiver to allow KSNB-TV to collocate with KOLN would result in the provision of first, second, and third television service to a substantial number of persons. Moreover, other important public interest benefits would accrue by permitting KSNB-TV to change its channel and community, and collocate with KOLN, including operational and economic efficiencies and resolving low VHF reception problems for KSNB-TV. There are also a number of channels that may be allotted to Superior if an interested party wishes to pursue acquiring a construction permit for a new station in the area. In addition, Superior would receive improved service from KSNB-TV's operation on channel 24 on the KOLN tower.

This is a synopsis of the Commission's Report and Order, MB Docket No. 21-60; RM-11884; DA 21-1038, adopted August 23, 2021, and released August 24, 2021. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

The Commission will 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 amends 47 CFR part 73 as follows:

The proposed rule was published at 86 FR 33612 on June 25, 2021. The Petitioner filed comments in support of the petition reaffirming its commitment to apply for channel 8. The Petitioner states that since it converted to digital channel 5 operations in 2009, it has received numerous complaints from the public about poor reception, and while it is operating with an effective radiated power of 45 kW, this power increase did not resolve the reception issues. The Petitioner recounts the steps it has taken to improve reception on its low-VHF channel, including obtaining authorizations for digital replacement translators, but concludes that it has no option to resolve the Station's reception problems other than to move from its low-VHF channel 5 to high-VHF channel 8. The Petitioner proposes to utilize a Distributed Transmission System (DTS) facility comprised of six single frequency network (SFN) nodes and identified three separate loss areas. The Petitioner submitted documentation showing that one loss area would continue to be served by five other full-power television stations and another loss area would continue to be served by eight other full-power television stations. While the third loss area would only continue to receive service from one full-power television stations, only 14 people live in this area.

This is a synopsis of the Commission's Report and Order, MB Docket No. 21-254; RM-11911; DA 21-1039, adopted August 23, 2021, and released August 24, 2021. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

The Commission will 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 amends 47 CFR part 73 as follows:

On August 21, 2019, NHTSA published in the Federal Register a Notice of Proposed Rulemaking (NPRM) proposing amendments to FMVSS No. 109, in response to a petition from the Tire and Rim Association (TRA). TRA sought to clarify the applicability of the FMVSSs to certain types of tires intended for use on trailers (Special Trailer (ST) tires, Farm Implement (FI) tires, and tires with a rim diameter code of 12 or below (hereinafter, “specialty tires”)), and sought other nonsubstantive technical amendments. 1 The NPRM proposed to clarify NHTSA's intent to make specialty tires intended for use on trailers to be subject only to FMVSS No. 119.

In the NPRM, NHTSA acknowledged that in a January 2006 final rule, 2 NHTSA stated its intent for specialty tires to be subject to FMVSS No. 119, but in an August 2007 final rule had inadvertently made specialty tires also subject to FMVSS No. 109. 3 Further, NHTSA acknowledged that FMVSS No. 109 does not specify test conditions for specialty tires with maximum inflation pressures not specified in FMVSS No. 109. Without specified test pressures, NHTSA cannot test specialty tires for compliance with FMVSS No. 109. While this issue could be remedied by adding new test pressures to FMVSS No. 109, NHTSA stated its belief that making specialty tires subject to FMVSS No. 119 is preferable because FMVSS No. 119 specifies test conditions based on load range designations. Doing so would provide the tire industry flexibility to change maximum tire inflation pressures for specialty tires without first requesting regulatory changes from NHTSA.

Based on the foregoing, NHTSA proposed an amendment to FMVSS No. 109 to remove references to specialty tires from the title and the “Application” section. Second, NHTSA proposed to add a reference to specialty tires to the title of FMVSS No. 119. In addition, though not suggested by TRA, NHTSA proposed an amendment to the “Scope” section of FMVSS No. 119 to include a reference to specialty tires, to provide added clarity regarding the applicability of FMVSS No. 119 to specialty tires. Specialty tires are already listed in the “Application” section of FMVSS No. 119.

NHTSA also proposed amendments to Table III in FMVSS No. 119, the endurance test schedule, which had been included in a prior NPRM proposing upgrades to FMVSS No. 119. 4 These included technical corrections to Table III of FMVSS No. 119 to include items that have been inadvertently omitted from the table through amendments to the standard, including those pertinent to specialty tires. The NPRM proposed correcting the omission of load range C, D, M, and N for speed-restricted service tires, load range A through E and M from the list of “All other” tires, and missing footnotes.

The August 2019 NPRM also included several nonsubstantive technical amendments:

• A corresponding amendment to FMVSS No. 110 to remove a reference to FMVSS No. 109 as a standard under which specialty tires could be certified.

• Clarification that tires manufactured for vehicles manufactured in the year 1975 are subject to FMVSS No. 109.

• The reinsertion of a footnote in Table II of FMVSS No. 119 that had inadvertently been omitted, stating that the minimum breaking energy requirements for rayon cord tires is 60 percent of those listed in the Table II. 5

• Formatting changes and revised headings in Table II of FMVSS No. 119 to make the table easier to read. 6

• Correction of the formula in S7.3(f)(1) of FMVSS No. 119 for computing breaking energy of a tire when using metric units. 7

• Correction of the values for total number of revolutions of the test wheel during the endurance test in Table III of FMVSS No. 119.

• Clarification that deep tread (18/32 inch or greater) light truck tires are excluded from FMVSS No. 139. NHTSA had previously determined that such tires should be subject to FMVSS No. 119. 8

• Clarification that FMVSS No. 139 excludes tires with rim diameters of 12 inches and below, not 8 inches as it currently is stated. Tires with rim diameters between 8 and 12 inches are considered specialty tires that will be subject only to FMVSS No. 119.

• The insertion of a missing heading referencing light truck tires with a nominal cross section ≤ 295 mm (11.5 inches) in the tables setting forth the test pressure for the high speed performance test, the tire endurance test, and the low inflation pressure performance test for light trucks in FMVSS No. 139.

• Correction of NHTSA's current address in FMVSS No. 110 and FMVSS No. 139.

• Typographical errors in the application section of FMVSS No. 110.

NHTSA received three comments in response to the August 2019 NPRM, one from the Japan Automobile Tyre Manufacturers Association (JATMA) and two separate comments from the U.S. Tire Manufacturers Association (USTMA), both of which are trade associations representing tire manufacturers.

JATMA's comment supported the proposal. However, JATMA also sought an amendment to S5.5.1 of FMVSS No. 139 “to reflect new Tire Identification Number [TIN] stipulated in 49 CFR part 574.5.”  9 Although JATMA does not specify precisely what in S5.5.1 of FMVSS No. 139 it wants amended, NHTSA believes that JATMA is likely referring to the reference to an “optional code.”

NHTSA is not accepting this suggested amendment from JATMA in the final rule. In an April 13, 2015 final rule, NHTSA updated the TIN requirements to standardize the length of the TIN to 13 symbols for new tires, making no part of the TIN optional. 10 However, compliance with these new requirements is optional until April 13, 2025 for most new tire manufacturers. Until that date, some tire manufacturers may be following the older TIN content requirements, which include an optional code. Therefore, NHTSA will not consider removing the references to an optional code in FMVSS No. 139, as suggested by JATMA, until after April 13, 2025.

USTMA's first comment was supportive of the proposal. However, it noted that the heading of section III.A in the NPRM referred to the “Date of Manufacture of Tires Subject to FMVSS No. 109.” USTMA noted that the applicability of FMVSS No. 109 hinges on the date of manufacture of the vehicle rather than the date of manufacture of the tire. USTMA is correct. However, as they noted in their comment, the text following the heading referred to the applicability of FMVSS No. 109 correctly.

USTMA submitted a second comment identifying a typographical error in FMVSS No. 119 not discussed in the NPRM. FMVSS No. 119, S6.3 sets forth requirements for the high speed performance test and refers to test procedures specified in S7.3. However, USTMA observed that the test procedures for the high speed performance test in FMVSS No. 119 are actually located in S7.4. USTMA requested that NHTSA correct this typographical error. NHTSA agrees that this is a typographical error and is correcting the error in this final rule. 11

Finally, NHTSA has reviewed the updates and clarifications in the proposal and has found that one additional change to the presentation of Table II of FMVSS No. 119 would be helpful. Specifically, NHTSA is separating the column containing light truck tires and tubeless tires with rim diameter code 17.5 or smaller into two separate columns. Although these tires use the same plunger size and have the same performance requirements for any given load range, including them in the same column made the column heading either ambiguous or too long. This nonsubstantive change should ease reader understanding.

For the reasons stated in the August 2019 NPRM, NHTSA is adopting all of the amendments proposed in the August 2019 NPRM except for the modification to Table II of FMVSS No. 119 discussed in the prior paragraph. The Agency is also amending S6.3 of FMVSS No. 119 to correct a typographical error, as discussed in the response to the comment from USTMA.

NHTSA has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the Department of Transportation's administrative rulemaking procedures. This rulemaking is not considered significant and was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.”

This rule clarifies the applicability of the FMVSSs to tires intended for use on trailers and makes other technical amendments. It will not result in any costs nor will it have any impact on safety.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies the rule would not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.

NHTSA has considered the effects of this final rule under the Regulatory Flexibility Act. I certify that this rule will not have a significant economic impact on a substantial number of small entities. This rule will directly impact manufacturers of tires. Although we believe some manufacturers affected by this rule are considered small businesses, we do not believe this rule will have a significant economic impact on those manufacturers. This final rule makes only minor technical changes to the FMVSSs, and does not affect the substantive requirements of the FMVSSs. This rule will not impose any costs upon manufacturers and instead, will relieve any confusion that may exist regarding the applicability of FMVSS No. 109 to specialty tires.

NHTSA has examined this rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The Agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule would not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.

The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).

Pursuant to Executive Order 13132 and 12988, NHTSA has considered whether this rule could or should preempt State common law causes of action. The Agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.

To this end, the Agency has examined the nature ( e.g., the language and structure of the regulatory text) and objectives of this rule and finds that this rule, like many NHTSA rules, prescribes only a minimum safety standard. As such, NHTSA does not intend that this rule preempt State tort law that effectively would impose a higher standard on motor vehicle manufacturers than that established by today's rule. Establishment of a higher standard by means of State tort law would not conflict with the minimum standard announced here. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.

With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729; Feb. 7, 1996), requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) specifies whether administrative proceedings are to be required before parties file suit in court; (6) adequately defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.

Pursuant to this Order, NHTSA notes as follows. The issue of preemption is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.

Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental, health, or safety risk that the agency has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not economically significant as defined under Executive Order 12866. Further, this rulemaking is not expected to have a disproportionate health or safety impact on children. Consequently, no further analysis is required under Executive Order 13045.

Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. There is no information collection requirement associated with this rule.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law ( e.g., the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. Voluntary consensus standards are technical standards developed or adopted by voluntary consensus standards bodies. Technical standards are defined by the NTTAA as “performance-based or design-specific technical specification and related management systems practices.” They pertain to “products and processes, such as size, strength, or technical performance of a product, process or material.”

Examples of organizations generally regarded as voluntary consensus standards bodies include ASTM International, the Society of Automotive Engineers (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.

There are no voluntary consensus standards developed by voluntary consensus standards bodies pertaining to this rule.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires the Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the Agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Agency publishes with the final rule an explanation of why that alternative was not adopted.

This final rule would not result in any expenditure by State, local, or tribal governments or the private sector of more than $100 million, adjusted for inflation.

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The Agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a “major rule” as defined by 5 U.S.C. 804(2).

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

Please note that anyone can search the electronic form of all documents received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or online at https://www.transportation.gov/privacy/.

In consideration of the foregoing, NHTSA amends 49 CFR part 571 as follows:

Why we need to publish a rule. Under the Act, a species may be listed as endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule. Further, under the Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable.

What this document does. This rule lists Bartram's stonecrop ( Graptopetalum bartramii ) as a threatened species. This document also finalizes a rule under the authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of Bartram's stonecrop.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that Bartram's stonecrop faces the following threats: Reduction in water availability (Factors A and E); erosion, sedimentation, and burial (Factors A and E); trampling (Factor E); altered fire regime (Factors A and E); loss of shade (Factors A and E); altered flooding regime (Factors A and E); drought (Factors A and E); illegal collection (Factor B); and small population size (Factor E). The existing regulatory mechanisms are not adequate to address these threats such that the species does not meet the Act's definition of an endangered or threatened species (Factor D).

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. In this case, we have found that the designation of critical habitat for Bartram's stonecrop is not prudent at this time.

Peer review and public comment. A species status assessment (SSA) team prepared an SSA report for Bartram's stonecrop. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. We sought the expert opinions of three independent and knowledgeable specialists regarding the species status assessment (SSA) report and received responses from two reviewers. These peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the SSA. We also considered all comments and information we received from the public during the comment period for the proposed listing of Bartram's stonecrop.

On December 6, 2019, we published in the Federal Register (84 FR 67060) a proposed rule to list Bartram's stonecrop as a threatened species under the Act (16 U.S.C. 1531 et seq. ). Our proposed rule included a proposed 4(d) rule for Bartram's stonecrop. The December 6, 2019, rule also proposed to list the beardless chinchweed ( Pectis imberbis ) as an endangered species and designate critical habitat for the species. We addressed our proposal to list the beardless chinchweed as an endangered species and designate critical habitat for that species in a separate Federal Register document on June 15, 2021. Please refer to the December 6, 2019, proposed rule for a detailed description of previous Federal actions concerning Bartram's stonecrop that occurred prior to December 6, 2019.

In preparing this final rule, we reviewed and fully considered comments from the public on the proposed rule. We did not make any substantive changes to this final rule after consideration of the comments we received. We updated the SSA report (to version 2.0) based on comments and additional information provided as follows:

(1) We included updated survey information provided to the Service and other reports of additional occurrences we received.

(2) We incorporated additional information regarding stressors to specific populations provided by land managers.

(3) We made many small, nonsubstantive clarifications and corrections throughout the SSA report and this rule, including under Summary of Biological Status and Threats, below, in order to ensure better consistency, clarify some information, and update or add new references. We considered whether this additional information altered our analysis of the magnitude or severity of threats facing the species. We conclude that the information we received during the comment period for the proposed rule did not change our previous analysis of the magnitude or severity of threats facing the species or our determination that Bartram's stonecrop is a threatened species.

Bartram's stonecrop is a small, succulent, perennial plant and a member of the Crassulaceae family. It occurs in shaded evergreen woodlands on rocky canyon outcrops at elevations ranging from 3,500 to 6,800 ft. The species is particularly susceptible to reductions in water availability, altered fire regime, and the effects of small population size. Most populations are very small, with 58 percent of extant populations throughout the range of the species supporting fewer than 50 individuals. These small populations are particularly vulnerable to extirpation.

Since 1924, we are aware of three populations that have been extirpated in the United States in recent years, and another that has contracted in size. Currently, 50 extant Bartram's stonecrop populations occur across 12 mountain ranges, nine in southern Arizona and three in northern Mexico. In addition, the southeastern Arizona landscape has experienced many changes since the 1890s, resulting from intensive cattle grazing, water development, and fire suppression ( e.g., Bahre 1991, entire). These impacts may have reduced the range or number of populations and individuals. The U.S. populations total 4,628 individuals within occupied habitats that total approximately 7 hectares (17 acres). This estimate includes 10 plants from two U.S. populations (Gardner Canyon East and Thomas Canyon) and one Mexico population (Sierra La Estancia) that have not been revisited since the initial survey in 1980.

Please refer to the December 6, 2019, proposed rule to list Bartram's stonecrop with a species-specific rule under section 4(d) of the Act (84 FR 67060) and the SSA report for a full summary of species information. Both are available on our Southwest Region website at https://www.fws.gov/southwest/ and at http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0104.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an “endangered species” or a “threatened species.” The Act defines an endangered species as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological status review for the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be listed as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R2-ES-2018-0104 on http://www.regulations.gov and at https://www.fws.gov/southwest/.

To assess Bartram's stonecrop viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. This process used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. Bartram's stonecrop occurs between elevations of 3,500 to 6,800 ft in Madrean woodlands with oaks, junipers, pines and species found in more mesic (wet) areas including sycamores, cottonwoods, and willows. The species typically occurs on rocky outcrops in deep, narrow canyons in heavy cover of litter and shade; and typically within 10 meters (m; 32.8 feet (ft)) of flowing or intermittent water. Bartram's stonecrop requires adequate precipitation to maintain soil moisture, cooler temperatures, and humidity in the microenvironment and for germination, growth and reproduction. Based on microhabitats in which the species is typically found, species needs include crevices (with or without soil) for seeds to lodge and germinate, shade and deep leaf litter to help maintain soil moisture, and a humid microhabitat in this arid environment. In addition, the habitat must support sufficient Bartram's stonecrop pollinators ( e.g., flies, bees, and butterflies) including plants for pollinator foraging and nesting within pollinator flight distance of Bartram's stonecrop populations. To maintain the species' viability, populations with multiple subpopulations and overall high abundance must be distributed across the species range and represent a range of environmental conditions. These populations must experience recruitment that exceeds mortality.

Several stressors influence whether Bartram's stonecrop populations will grow to maximize habitat occupancy, which increases the resiliency of a population to stochastic events. We evaluated the past, current, and future stressors ( i.e., negative changes in the resources needed by Bartram's stonecrop) that influence the viability of the species. We describe these stressors on viability in detail in chapter 4 of the SSA report (Service 2020a, entire). Stressors that have the potential to affect Bartram's stonecrop's population resiliency include:

• Loss of water in nearby drainages from climate change (drought) and mining;

• Altered fire regime resulting from fires ignited by recreationists, cross-border human activity, and lightning and exacerbated by nonnative plants;

• Altered precipitation, drought, flooding, and freezing regime from current and future climate change;

• Erosion, sedimentation, and burial from mining, recreation trails and roads, cross-border human activity, and post-wildfire runoff;

• Trampling from humans, and trampling and herbivory from wildlife and livestock;

• Illegal collection; and

• Small population size exacerbating all other stressors.

The largest risk to viability of the species is caused by the loss of habitat and includes: (1) Groundwater extraction and prolonged drought that reduce nearby water levels and humidity within Bartram's stonecrop habitat; and (2) altered fire regimes leading to erosion of Bartram's stonecrop habitat, sedimentation and burial of individuals by post-fire runoff, and loss of overstory shade trees. These stressors play a large role in the future viability of Bartram's stonecrop, especially for smaller populations. These stressors are currently reducing and are expected to continue to reduce nearby water levels, shade, and humidity within Bartram's stonecrop habitat or directly impact individuals.

Dewatering of streams from mining operations may lead to overstory canopy losses and subsequent loss of shade, as well as reductions in spring and stream flow and humidity in nearby Bartram's stonecrop populations. The Rosemont Mine Final Environmental Impact Statement (Statement) notes that no Bartram's stonecrop individuals were found in the project area or the footprint of the associated actions; however, individuals growing in the analysis area could experience indirect impacts from groundwater drawdown (USFS 2013a, p. 676). According to the Statement, the proposed mine pit would create a permanent drawdown of the water table, and groundwater would flow toward the pit and be lost to evaporation (USFS 2013a, p. 339). The Bartram's stonecrop plants growing just southwest of the proposed Rosemont Mine were analyzed in the Rosemont Final Environmental Impact Statement (USFS 2013a, pp. 346-350). The predicted groundwater drawdown in the affected population at the end of active mining is 0.1-5 feet, depending on the site assessed and the model used. At 20 years from the mine closure, the predicted drawdown increases to a maximum of 15-20 feet. The water would be perpetually replenished in part by groundwater from the regional aquifer, and the pit would act as a hydraulic sink. Given that Bartram's stonecrop is consistently found in locations with nearby springs or other water sources, the loss of groundwater and changes in soil moisture and humidity are expected to negatively affect the plant. For example, loss of groundwater in the unmapped spring in Box Canyon/Sycamore Canyon confluence, between Ruelas Spring and the Singing Valley Road residences, could substantially impact Bartram's stonecrop plants growing nearby (just southwest of the proposed Rosemont Mine).

Mining claims, trenching and exploration drilling activities, and a few active and proposed mines are present in Bartram's stonecrop's range. Many currently undeveloped areas of locatable mineral deposits may be explored and/or mined in the future. We do not know the full extent of future mine activity within the range of Bartram's stonecrop; however, a number of proposed mines are identified for development within Bartram's stonecrop habitat. The range of current and projected mining activities varies from 1 to 10 per sky island mountain range with Bartram's stonecrop occurrences (USFS 2012, entire). The loss or reduction of groundwater, stream flow, or spring flow in or near a Bartram's stonecrop population due to mining-related activities could lead to extirpation of that population.

Wildfire frequency in western forests from the mid-1980s to the present has nearly quadrupled compared to 1970-1985. The timing, frequency, extent, and destructiveness of wildfires are expected to continue to increase (Westerling et al. 2006, p. 943), given historical land management actions, an increase in fire starts from cross-border human activity and recreationists ( e.g., from campfires, cigarettes, target shooting), nonnative plant invasion, and continuing drought conditions (Westerling et al. 2006, p. 940; FireScape 2016, entire; Fire Management Information System 2016, p. 2). Direct impacts of fire include burning of Bartram's stonecrop individuals, resulting in injury, reduction in reproductive structures, or plant mortality. Indirect impacts of fire on Bartram's stonecrop may include increased runoff of floodwaters, post-fire flooding, deposition of debris and sediment originating in the burned area, erosion, changes in vegetation community composition and structure, increased presence of nonnative plants, alterations in the hydrologic and nutrient cycles, and loss of overstory canopy shade essential to maintaining Bartram's stonecrop microhabitat (Griffis et al. 2000, p. 243; Crawford et al. 2001, p. 265; Hart et al. 2005, p. 167; Smithwick et al. 2005, p. 165; Stephens et al. 2014, p. 42; Ferguson 2014, p. 43; Ferguson 2016a, p. 26). Fire primarily alters hydrology and erosion processes by consumption of the protective canopy, ground cover, and organic matter. When plants and litter are removed by fire, ground surface protection is decreased, less rainfall is intercepted, and less infiltration occurs (Pierson et al. 2011, p. 443). The exposed bare soil becomes susceptible to increased runoff generation and sediment detachment and transport (Pierson et al. 2011, p. 444). Amplified runoff post-fire carries sediment (Pierson et al. 2011, p. 443), causing erosion or burial of Bartram's stonecrop plants.

We are aware of 11 wildfires that occurred in known Bartram's stonecrop sites from 2007-2017, killing some Bartram's stonecrop individuals and removing shade in some sites (Ferguson 2014, pp. 9-10, 15, 28-29; Ferguson 2016a, p. 13; Ferguson 2016b, entire; Ferguson 2017b, p. 32; Ferguson 2017c, p. 2). Although we do not have pre-fire population counts in any population, two of the largest Bartram's stonecrop populations occur in sky island mountain ranges that have had the fewest acres burned from 2010-2017, which indicates these populations may have experienced less of the detrimental effects of fire than smaller populations. Wildfires have burned in all nine sky island mountain ranges of southern Arizona with known Bartram's stonecrop occurrences within the last decade. Wildfire could potentially cause extirpation of small Bartram's stonecrop populations throughout the range of the species and have negative impacts on larger populations. Bartram's stonecrop seeds are very tiny, reside at or near the soil surface (Shohet 1999, p. 48), and show no characteristics that would promote survival in a wildfire.

The nonnative plants in the uplands surrounding and within Bartram's stonecrop populations include nonnative grass species such as Lehmann's lovegrass and rose natal, both of which have numerous advantages over native grasses. Lehmann's lovegrass resprouts from roots and tiller nodes not killed by hot fire, is not hampered by the reduction in mycorrhizae associated with fire and erosion, responds to winter precipitation when natives grasses are dormant, produces copious seed earlier than native grasses, maintains larger seedbanks than native grasses, and has higher seedling survival and establishment than native grasses during periods of drought (Service 2020a, p. 50). Rose natal is capable of growing in low moisture situations, has prolific seed production, and has stems that root from the nodes (Stokes et al. 2011, p. 527). Both species outcompete native plants, reduce structural and spatial diversity of habitats, and increase biomass and fuel loads, increasing the fire frequency. Nonnative grasses have been reported with Bartram's stonecrop individuals in four instances, at Sycamore Canyon, French Joe Canyon, Shaw Canyon, and Juniper Flat populations, and upslope of several populations of Bartram's stonecrop in the Dragoon Mountains, increasing the likelihood of fire occurrence and subsequent impacts to these populations (Heritage Database Management System, E.O. ID 55; Simpson 2017, pers. comm.). Nonnative plant species increase the frequency and severity of wildfires; such wildfires can directly and indirectly impact individuals and populations.

The southwestern United States is warming and experiencing severe droughts of extended duration, changes in amount of snowpack and timing of snowmelt, and changes in timing and severity of precipitation and flooding (Garfin et al. 2014, entire). The effects of a changing climate are important considerations in the analysis of the stressors to Bartram's stonecrop, including increased nonnative competition (described above) and altered fire regimes during times of altered precipitation and drought. To analyze the effects of a changing climate to Bartram's stonecrop, we relied on the Intergovernmental Panel on Climate Change's (IPCC) Fifth Assessment (IPCC 2014, entire) and IPCC Climate Change 2013—The Physical Science Basis (IPCC 2013, entire). Four emission scenarios, referred to as Representative Concentration Pathways (RCPs), were developed for the IPCC report (IPCC 2014, p. 57). We evaluated the effects of climate change on Bartram's stonecrop using RCP 4.5 and RCP 8.5 to bracket the range of environmental variability. The IPCC report (2014) expresses confidence that emissions will fall within the RCP 4.5-8.5 range.

Precipitation is bimodal within the mountain ranges where Bartram's stonecrop occurs, with winter snow and rain, and summer monsoon rain. Fall and winter (October through March) precipitation is needed for Bartram's stonecrop germination, and both summer (July and August) and fall (October and November) precipitation is needed for Bartram's stonecrop flower production. Flowering is triggered by fall rains and does not occur during periods of water stress (Shohet 1999, pp. 22, 25, 36, 39). Altered precipitation timing and form ( i.e., snow versus rain), as well as reduced precipitation in the winter and spring and prolonged drought, are important stressors influencing the viability of Bartram's stonecrop due to impacts on moisture availability for germination, growth, and flowering. In addition, due to increased nonnative competition during times of reduced precipitation and drought, impacts from these stressors to Bartram's stonecrop populations would be exacerbated.

Altered precipitation timing and form (snow versus rain), as well as reduced winter and spring precipitation and prolonged drought, are currently occurring and projected to increase or be altered from normal in the Southwest (Garfin et al. 2014, entire). Recently, there has been a decrease in the amount of snowpack, earlier snowmelt, and increased drought severity in the Southwest (Garfin et al. 2013, entire; Garfin 2013b, p. 465). Further, more wintertime precipitation is falling as rain rather than snow in the western United States (IPCC 2013, p. 204; Garfin 2013b p. 465). This means that the amount of runoff in the spring when snow melts is reduced, as is soil moisture. Late winter-spring mountain snowpack in the Southwest is predicted to continue to decline over the 21st century under RCP 4.5 and 8.5 because of increased temperature (Garfin et al. 2013, pp. 6, 119). Reduced rain and snow, earlier snowmelt, and drying tendencies cause a reduction in late-spring and summer runoff. Together these effects, along with increases in evaporation, result in lower soil moisture by early summer (Garfin 2013, p. 117).

Precipitation timing and amount impact the germination, growth, and flowering of Bartram's stonecrop, resulting in the loss of individuals and recruitment, and overall reducing the population size. Climatic events such as reduced snowpack, earlier snowmelt, and increased drought are regional and will impact all populations of Bartram's stonecrop.

In the Southwest, the period since 1950 has been warmer than any period of comparable length in at least 600 years, and average daily temperatures for the 2001-2010 decade were the highest in the time period including 1901-2010 (Garfin et al. 2013, p. 3). Fewer cold waves and more heat waves occurred over the Southwest during 2001-2010 compared to average decadal occurrences in the 20th century. More frequent hot and fewer cold temperature extremes over most land areas are predicted on daily and seasonal timescales, as global mean surface temperature increases (IPCC 2014, p. 58). Heat waves are predicted to occur with a higher frequency and longer duration (IPCC 2014, p. 58). Occasional cold winter extremes will continue to occur (IPCC 2014, p. 60). Surface temperatures in the Southwest are predicted to increase substantially over the 21st century, with more warming in summer and fall than in winter and spring. Summer heat waves will become longer and hotter, while winter cold snaps will become less frequent but not necessarily less severe (Garfin et al. 2013, p. 6; Garfin et al. 2014, p. 464).

When temperatures rise, evapotranspiration rates also increase and soil moisture decreases. An increase in evapotranspiration results in water loss from the plant and increases stress on the plant. This increase in stress impacts photosynthesis, respiration, transpiration, water use efficiency, leaf conductance, growth rate, vigor, and gas exchange. These impacts result in reduced growth, flowering, and seed production, and, therefore, reduce overall recruitment and population numbers.

Along with projected warming and increased evapotranspiration, droughts in parts of the Southwest will become hotter, more severe, and more frequent (Garfin et al. 2013, pp. 6, 137-138). Future droughts are projected to be substantially hotter, and for major river basins such as the Colorado River Basin, drought is projected to become more frequent, intense, and longer lasting than in the historical record. This projection of intensified drought conditions on the Colorado River is not due to changes in precipitation, but rather due directly to warming and its effect on reducing soil moisture (Garfin 2013, p. 138).

Although rare species in the southwestern United States evolved with drought, recent changes in temperature and rainfall patterns present stressful conditions of increased magnitude compared to what the species faced. Some species may shift their distributions in response to warming of the climate (McLaughlin et al. 2002, p. 6070). However, it is highly unlikely that Bartram's stonecrop would be able to shift its range naturally to keep up with current and high projected rates of climate change due to its overall population decline and inability to maintain current populations. Because plants are not mobile, expanding the distribution of this species is dependent on seed dispersal. Bartram's stonecrop seeds are small and limited in dispersal ability (Ferguson 2020). Given their geographic location in the landscape ( i.e., in canyons with springs and streams), it is possible that seeds are transported by water and that populations may have been founded by a single individual plant or seed (Shohet 1999, p. 58). Seeds may also be dispersed via gravity and wind. Seedling distribution studies indicate gravity is the most likely dispersal mechanism as seeds are fusiform shaped (elliptical like a football) (Ferguson 2020, pers. comm.). Further, extant populations are small, which limits the amount of seed production for dispersal. It is highly unlikely that under elevated environmental stress associated with climate change, the species would be able to both maintain populations and colonize new areas with more suitable climate conditions. Thus, localized extirpations over portions of Bartram's stonecrop's range could result.

Bartram's stonecrop typically occurs on steep slopes with erodible soils and in areas susceptible to rock fall, making the plant particularly vulnerable to physical damage to its environment (Phillips et al. 1982, p. 10; Shohet 1999, p. 50; Ferguson 2014, p. 42; Ferguson 2016a, pp. 15, 26). Soil erosion can result in the burial of individual plants, loss of soil where the plant is rooted, or dislodgment of plants. While displaced plants may re-root (Shohet 1999, pp. 50-51, 60), it is more likely that these plants will not survive (Ferguson 2015, p. 2). Soil disturbance and erosion within or above Bartram's stonecrop habitat may occur from a variety of activities, including livestock and wildlife movement; the placement and maintenance of infrastructure, trails, and roads; and recreationists or other individuals traveling along established trails or cross country (Phillips et al. 1982, p. 10; Shohet 1999, p. 60; Ferguson 2014, p. 42; NPS 2015, p. 4; Ferguson 2016a, p. 26).

Direct removal of Bartram's stonecrop individuals and substrate due to erosion or burial of individuals may also occur due to the placement of mineral extraction sites and debris piles. Erosion from test pits (an excavation made to examine the subsurface conditions of a potential mine site) has been documented to remove portions of habitat occupied by Bartram's stonecrop in Flux Canyon (Phillips et al. 1982, pp. 9-10).

The trampling of individual Bartram's stonecrop plants may occur from a variety of activities, including livestock and wildlife movement; the placement and maintenance of infrastructure, trails, and roads; and recreationists or other individuals traveling along established trails or cross country (Phillips et al. 1982, p. 10; Shohet 1999, p. 60; Ferguson 2014, p. 42; NPS 2015, p. 4; Ferguson 2016a, p. 26). Populations may be particularly impacted during periods of unusual recreational use. We considered trampling as a stressor in our analysis of future viability only when it may impact a population with fewer than 50 individuals, as more minor stressors are exacerbated in small populations.

The illegal collection of succulents is known to occur, and is often difficult to detect. Illegal collection of Bartram's stonecrop individuals has been reported, and the effect of collection is more pronounced in small populations. More than half (58 percent) of Bartram's stonecrop populations contain fewer than 50 individuals. The lifespan of Bartram's stonecrop plants has been estimated at 5-10 years, allowing sufficient time for discovery and collection.

Bartram's stonecrop is an attractive and small plant not available from nurseries that can be easily collected by gardeners and succulent enthusiasts. This stressor was first noted in 1982, when exact localities were excluded from a summary report due to the possibility of illegal collection. Tagged individuals were uprooted and taken from two sites in the Santa Rita Mountains in 1997-1998. Plants in close proximity to trails have higher discovery potential and are therefore more likely to be collected. Collectors advertise in internet forums seeking Bartram's stonecrop seedlings or rooted cuttings. The similar southern Arizona species, Graptopetalum rusbyi (San Francisco leatherpetal), is cultivated and legally available for sale from plant nurseries. However, Bartram's stonecrop is more difficult to propagate and maintain in captivity and is therefore vulnerable to collection from the wild because collectors cannot find them for purchase in nurseries. Small populations may not be able to recover from collection, especially if mature, reproductive Bartram's stonecrop individuals are removed. The removal of mature plants reduces the overall reproductive effort of the population, thereby reducing the overall resilience of the population. While documented instances of collection are limited, the impacts from collection can be profound for small populations.

Small population size affects Bartram's stonecrop population resiliency, as all stressors are exacerbated in populations with only a small number of individuals (fewer than 50). Small populations are less able to recover from losses caused by random environmental changes (Shaffer and Stein 2000, pp. 308-310), such as fluctuations in reproduction (demographic stochasticity), variations in rainfall (environmental stochasticity), or changes in the frequency or severity of disturbances, such as wildfires. Twenty-nine of the 50 extant Bartram's stonecrop populations in the United States contain fewer than 50 individuals. Losses due to mining, erosion, trampling, collection, herbivory, fire, severe frost, or other stressors mentioned above are exacerbated in small populations and have the potential to seriously damage or completely remove these small populations.

In summary, the stressors that pose the largest risk to future species viability are primarily related to habitat changes: Groundwater extraction from mining, long-term drought, and alteration in wildfire regime. These stressors may reduce nearby water levels, shade, and humidity within Bartram's stonecrop habitat and may directly impact individuals. Other important stressors include erosion or trampling from livestock, wildlife, or human activities; illegal collection; herbivory of Bartram's stonecrop individuals or their shade trees by wildlife and insects; abnormal freezing or flooding events; or other stressors that have the potential to seriously damage or completely remove small populations. Synergistic interactions among altered precipitation, nonnative grasses, drought, and increased temperatures cumulatively and cyclically impact Bartram's stonecrop, and all stressors are exacerbated in small populations.

To determine current condition, we assessed each population in terms of its resiliency. Our analysis of the past, current, and future stressors on the resources that Bartram's stonecrop needs for long-term viability revealed a number of stressors influencing this species. Four Bartram's stonecrop populations contain nonnative grasses, and nonnative grasses are present upslope from several additional populations. Further, altered fire regimes have the potential to affect all Bartram's stonecrop populations. This altered fire regime enhances the spread of nonnatives. Consequently, all Bartram's stonecrop populations will be further impacted by nonnative grasses in the future. Altered precipitation, increased temperatures, increased evapotranspiration, decreased soil moisture, and decreased winter and spring precipitation are current and ongoing environmental conditions impacting all populations of Bartram's stonecrop and exacerbating an altered fire regime.

Many currently undeveloped areas of locatable mineral deposits may be explored or mined in the future. We do not know the full extent of future mine activity within Bartram's stonecrop's range; however, 12 mining projects are currently ongoing or proposed within 8 kilometers (5 miles) of Bartram's stonecrop populations in Arizona. The range of current and projected mining activities varies from 1 to 10 per mountain range with Bartram's stonecrop occurrences (USFS 2012, entire). One population, Sycamore Canyon (115 adult individuals in 2016), would be affected by groundwater drawdown due to the Rosemont Mine. Sycamore Canyon currently exhibits high resiliency. Further, this species is illegally collected and sold. Synergistic interactions among wildfire, nonnative grasses, decreased precipitation, and increased temperatures cumulatively and cyclically impact Bartram's stonecrop, and all stressors are exacerbated in small populations. In addition, over half of extant Bartram's stonecrop populations are small; therefore, loss due to erosion, trampling, collection, herbivory, fire, severe frost, or other stressors have the potential to seriously damage or completely remove these small populations.

Resiliency categories of low, moderate, and high are characterized by relative levels of abundance, number of subpopulations and the spatial distribution of groups, seed production, recruitment, and extent of suitable habitat. The categories of conditions used to determine population resiliency are further described in the SSA report (Service 2020a, table 5.12) and the proposed listing rule (84 FR 67060, December 6, 2019, p. 84 FR 67069). Of the 50 extant populations, 2 populations (4 percent) exhibit high resiliency (also described as high condition), 40 populations (80 percent) are in moderate condition, and 8 populations (16 percent) are in low condition. Many small populations exhibit moderate resiliency due to other demographic and habitat factors considered in the analysis of resiliency including number of subpopulations, recruitment, riparian elements, precipitation, and shade. Thus, the resiliency analysis of a population with a low abundance score and high scores in several or all the other categories of resiliency factors may result in an averaged score in the moderate resiliency category. The current resiliency of the known Bartram's stonecrop populations is shown in table 1.

No genetic studies have been conducted within or among the 53 Bartram's stonecrop historical populations in southern Arizona and Mexico. Mountain ranges that have only one or two populations, or have only one subpopulation per population, or low numbers of individuals per population with several miles between mountain ranges, may not be as genetically diverse because pollination or transport of seeds between populations may be very limited or nonexistent. Some genetic exchange likely occurs within populations containing many subpopulations, groups, or in populations with high abundance.

However, Bartram's stonecrop may exhibit some level of genetic diversity in response to elevational and other environmental variation between locations. The species occurs on multiple substrate types and at a range of elevations (3,500 to 6,800 feet), providing potential for local adaptation and genetic differentiation among populations. This range in elevation provides a variety of climatic conditions for the species to inhabit. Due to the loss of four populations, it is possible that there has been a loss of genetic diversity.

In three populations, plants have been reported over many decades, indicating that these populations may have the genetic and environmental diversity to adapt to changing conditions. The species currently occurs across 50 populations in 12 mountain ranges; therefore, we expect some level of genetic diversity exists among mountain ranges.

Bartram's stonecrop populations in the United States and Mexico are naturally fragmented between mountain ranges. Currently, 50 extant Bartram's stonecrop populations are spread across 12 different mountain ranges in southern Arizona and northern Mexico. Although this may imply some level of redundancy across the range of Bartram's stonecrop, 43 of the 50 extant populations contain fewer than 150 total individual plants. Further, 29 populations have 50 individuals or fewer, and 3 populations have been extirpated over recent (approximately 10) years. Given the distance of the mountain ranges with Bartram's stonecrop populations from each other, natural gene exchange or re-establishment following extirpation of populations within a mountain range is unlikely. In addition, the Mule Mountains contain a large number of Bartram's stonecrop individuals, but are represented by a single population approximately 38 kilometers (23.6 miles) away from the nearest population, making natural re-establishment of populations unlikely.

We used the best available information to forecast the future viability of Bartram's stonecrop. Maintaining multiple resilient populations over time (viability) depends on moisture in the microenvironment maintained by shade from overstory vegetation, spring and winter precipitation, proximity to water, and vegetation litter. We expect all extant Bartram's stonecrop populations to experience changes to these habitat characteristics to varying degrees. In addition, direct impacts to Bartram's stonecrop through being dislodged, buried, or collected will continue to impact the species.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. Our assessment of the current and future conditions encompasses and incorporates the threats individually and cumulatively. Our current and future condition assessment is iterative because it accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Acknowledging inherent uncertainties regarding the scope of the stressors manifesting and the species' response, we forecasted future conditions of Bartram's stonecrop under four plausible future scenarios (see chapter 6 of the SSA report; Service 2020a, pp. 104-124). The scenarios span a range of potential stressors that are occurring or will occur in the future that will influence the future status of the species and the effects of those stressors on the species. We analyzed future projections in 10-year and 40-year timeframes because this is within the range of predictions of available hydrological and climate change model forecasts and is within the period of the Rosemont Mine effects. Forty years represents eight generations of Bartram's stonecrop, which allows us to assess reproductive effects on the species and allows populations to have opportunities to rebound. The 10-year time step also represents a reasonable timeframe to judge the species' short-term vulnerability to stressors at the current level, without projecting changes to stressors that longer timeframes would provide. Thus, the future scenarios forecast the viability of Bartram's stonecrop over the next 40 years. The following stressors were considered at different levels of impact for each scenario:

• Mining activity—water extraction, excavation, burial, shade reduction;

• Altered fire regime—lightning, recreation, cross-border human activity, nonnative plants;

• Climate effects (water)—reduction in available water including precipitation, soil moisture, humidity, surface water, aquifer recharge, reduction in riparian vegetation, increased number of days without water;

• Climate effects (other)—dislodging from flooding events, seedling desiccation, flowering halt, shade removed; and

• Effects to individual plants (applied to populations with fewer than 50 individuals)—recreation, collection, trampling, livestock or wildlife grazing and herbivory.

The levels of stressors assessed in each scenario are described in greater detail in chapter 6 of the SSA report (Service 2020a, pp. 104-124).

The first scenario (“continuation”) evaluates the condition of Bartram's stonecrop if impacts from drought, climate change, and other stressors continue as in the near past, while the other scenarios evaluate the response of the species to changes in those risks. Scenario 1 is evaluated at the 10-year time step. The second scenario (“conservation”) assumes impacts from drought, climate change, and other stressors continue as in the near past and also takes into account realistically possible additional protective measures, which may or may not happen. Scenarios 2, 3, and 4 are evaluated at the 40-year time step. The third scenario (“moderate effects”) assesses an increase in stressors to populations with changes in climate as projected in a lower (RCP 4.5) emissions scenario along with increases in other stressors. The final scenario (“major effects”) assesses a further increase in stressors to populations, with changes in climate projected at a higher (RCP 8.5) emissions scenario, and with additional increases in other stressors. These scenarios are described in more detail in chapter 6 of the SSA report (Service 2020a).

In scenario 1, we assess impacts to Bartram's stonecrop from drought, climate change, and other stressors that continue as in the near past. Based on climate change projections, emissions will continue at the same rate as the near past, resulting in continued impacts to the species. In this scenario, we expect the viability of Bartram's stonecrop to be characterized by a loss of resiliency, representation, and redundancy from the current levels. At the 10-year time step, no populations would exhibit high resiliency, 9 populations would exhibit moderate resiliency, 41 populations would exhibit low resiliency and be more susceptible to loss, and no additional populations would be extirpated.

In scenario 2, we assess impacts to Bartram's stonecrop from drought, climate change, and other stressors that continue as in scenario 1 but with conservation measures implemented that provide a benefit to the species ( e.g., nonnative control, forest thinning, and prevention of human-caused wildfire). Climate change impacts are projected to continue at the current rate, and no conservation measures address drying of habitat. In this scenario, we expect the viability of Bartram's stonecrop to be characterized by similar levels of representation and redundancy and slightly lower levels of resiliency than it exhibits under the current condition. Because current stressors remain in place, conservation measures improve the resiliency of populations, but this effect is overshadowed by the impact of continued climate change and drought at the current level.

The third scenario assesses “moderate effects” to Bartram's stonecrop with impacts to the species evaluated at the 40-year time step. Under this scenario, water flow reduction due to drought and groundwater extraction continues to reduce the humid microhabitat for this species. Cross-border traffic continues, and risk of catastrophic wildfire is high due to dry conditions; invasion of nonnatives in the uplands; and increased risk of fire starts from illegal activity, recreation, and natural causes. Mining impacts individuals in the Patagonia and Santa Rita Mountains. Collection, trampling, freezing, herbivory, and human impacts also continue at current or increased levels.

Under this scenario, within the 40-year timeframe, we expect Bartram's stonecrop's viability to be characterized by lower levels of resiliency, representation, and redundancy than it has currently, which are already reduced as described above. In 40 years, we expect that none of the 50 extant populations would exhibit high resiliency, 2 populations would exhibit moderate resiliency, 35 populations would exhibit low resiliency, and 13 additional populations would be extirpated, further reducing species redundancy and representation (table 2, below; see table 6.6 in the SSA report (Service 2020a)). Under the moderate effects scenario, because of stressors described above, 45 populations would be reduced from their current condition (for population level projections, see figure 6.3 and table 6.6 in the SSA report (Service 2020a)). In this scenario, two of the three small populations in Mexico will be extirpated due to the amount of nonnatives contributing to fire, reduction in precipitation, increase in drought, and low resiliency of a small population.

Under scenario 4, “major effects”, we expect the viability of Bartram's stonecrop to be characterized by lower levels of resiliency, representation, and redundancy than under scenario 3. At the 40-year time step, no populations exhibit high resiliency, one would exhibit moderate resiliency, 16 would exhibit low resiliency, and 36 populations would be extirpated, further reducing redundancy and connectivity.

Please refer to the SSA report (Service 2020a, entire) for a more detailed discussion of our evaluation of the biological status of Bartram's stonecrop, the influences that may affect its continued existence, and the modeling efforts undertaken to further inform our analysis.

In our December 6, 2019, proposed rule (84 FR 67060), we requested that all interested parties submit written comments on the proposal by February 4, 2020. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposed rule. Newspaper notices inviting general public comment were published in the Arizona Daily Star on December 9, 2019, and the Sierra Vista Herald on December 13, 2019. We did not receive any requests for a public hearing. All substantive information provided during the comment period either has been incorporated directly into the final rule or is addressed below.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of three appropriate specialists regarding the 2018 SSA report. The peer reviewers have expertise that includes familiarity with Bartram's stonecrop and its habitat, biological needs, and threats. We received responses from two specialists, which informed the SSA report and proposed rule. The purpose of peer review is to ensure that our listing determinations and 4(d) rules are based on scientifically sound data, conclusions, and analyses.

In the development of the final rule, we solicited further expert opinion on stressors and the effect of stressors as analyzed in the SSA from six knowledgeable specialists with scientific expertise that included familiarity with Bartram's stonecrop and its habitat, biological needs, and threats (Service 2020b, entire). We reviewed all comments we received from the specialists for substantive issues and new information regarding Bartram's stonecrop. The reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the updated SSA report and final rule. Peer reviewer comments and expert opinions are incorporated into the SSA report (Service 2020a) and this final rule as appropriate.

We received 17 public comments in response to the proposed rule. We reviewed all comments we received during the public comment period for substantive issues and new information regarding the proposed rule. Seven commenters provided substantive comments or new information concerning the proposed listing and 4(d) rule for Bartram's stonecrop. Below, we provide a summary of the substantive issues raised in the public comments we received; however, comments outside the scope of the proposed rule, and those without supporting information, did not warrant an explicit response and, thus, are not presented here. Identical or similar comments have been consolidated and a single response provided.

(1) Comment: A commenter indicated that the Service did not notify the public of the imminent listing of the species and the public needs more time to respond.

Response: On August 8, 2012, we announced our 90-day finding that a petition to list Bartram's stonecrop as endangered or threatened under the Act presented substantial information indicating that listing of the species may be warranted (77 FR 47352). At that time, we requested data or other information from the public regarding the species to inform our status review and determination if listing is warranted. In response to publication of the 90-day finding, increased interest in Bartram's stonecrop and its status led to additional surveys and research beginning in 2013. On October 23, 2017, we sent a letter to interested parties, landowners, and Tribes indicating that an SSA would be conducted for Bartram's stonecrop to inform our listing determination, and we again requested scientific and commercial data or other information on the species.

In addition, the species has been included on our National Listing, which is publicly available on our website, since 2016. We updated the workplan in May 2019 and listed the 12-month finding for Bartram's stonecrop as a FY 2018 carryover action. The court-ordered settlement agreement of October 11, 2019, that stipulates delivery of a 12-month finding to the Federal Register by November 29, 2019, is also publicly available.

Finally, the December 6, 2019, proposed rule (84 FR 67060) opened a 60-day public comment period on the proposed listing and proposed 4(d) rule for Bartram's stonecrop.

As such, we complied with all requirements of the Act and conclude that the public was afforded adequate notice of the proposed listing of Bartram's stonecrop.

(2) Comment: Three commenters stated that relying on the conservation biology concepts of resiliency, redundancy, and representation to make the proposed listing determination is improper, as they are not found in the Act or the Service's implementing regulations and their meanings are uncertain, creating confusion if criteria for listing are being followed.

Response: The SSA framework is an analytical approach developed by the Service to deliver foundational science for informing decisions under the Act (Smith et al. 2018, entire). The SSA characterizes species viability (defined as the ability to sustain populations in the wild over time) based on the best scientific understanding of current and future abundance and distribution within the species' ecological settings using the conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 308-311). To sustain populations over time, a species must have the capacity to withstand: (1) Environmental and demographic stochasticity and disturbances (resiliency), (2) catastrophes (redundancy), and (3) novel changes in its biological and physical environment (representation). A species with a high degree of resiliency, representation, and redundancy is better able to adapt to novel changes and to tolerate environmental stochasticity and catastrophes. In general, species viability will increase and the risk of extinction will decrease with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). The SSA provides decision-makers with a scientifically rigorous characterization of a species' status and the likelihood that the species will sustain populations over time, along with key uncertainties in that characterization. The Bartram's stonecrop SSA provides the best scientific information available to guide a determination of whether or not Bartram's stonecrop is in danger of extinction now or in the foreseeable future.

Notwithstanding our use of resiliency, redundancy, and representation as scientific concepts helpful in assessing and describing a species' viability and extinction risk, we adhere to all requirements of the Act in making our listing determinations. This includes applying the Act's definitions of an endangered species and a threatened species, as well as an assessment of the 5 listing factors (see Regulatory Framework, below).

(3) Comment: Three commenters suggested the Service's discussion of its proposed 4(d) rule for Bartram's stonecrop conflicts with the Act and erroneously extends the “take” prohibition for fish and wildlife to a plant species.

Response: The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered plants. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.61, make it illegal for any person subject to the jurisdiction of the United States to: Import or export; remove and reduce to possession from areas under Federal jurisdiction; maliciously damage or destroy on any such area; remove, cut, dig up, or damage or destroy on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce an endangered plant. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

The final 4(d) rule for Bartram's stonecrop provides for the conservation of the species by applying all of the prohibitions listed in section 9(a)(2) of the Act and 50 CFR 17.61 that are applicable to an endangered plant, except as otherwise authorized or permitted at 50 CFR 17.61(c)(2) and (3), 50 CFR 17.71(b), and 50 CFR 17.72.

In the December 6, 2019, proposed rule (84 FR 67060, p. 84 FR 67086), we also describe a range of activities that have potential to impact Bartram's stonecrop, including:

• Unauthorized handling or collecting of the species;

• Ground-disturbing activities where the species occurs;

• Activities that would affect pollinators where the species occurs and in the surrounding area;

• Activities that would promote high-severity wildfires where the species occurs;

• Activities that would reduce shade, reduce proximity to water, and lower the water table such that the cooler, humid microenvironment is affected; and

• Herbicide applications where the species occurs.

These activities are provided as examples of actions that may affect Bartram's stonecrop, and as such would be subject to section 7 consultation for projects with a Federal nexus, and are not intended to be a list of prohibitions under the final 4(d) rule for Bartram's stonecrop.

(4) Comment: Several commenters stated that Service botanists have not visited sites with Bartram's stonecrop and that if more surveys are done, more plants will be found as Bartram's stonecrop is a small cactus with one-inch flowers that are hard to see. For example, the species has been discovered at 16 new locations since 2015.

Response: Bartram's stonecrop is a succulent with specific habitat requirements and is detectable in bloom and out of bloom by trained botanists. All researchers involved with Bartram's stonecrop surveys, including the Service, the National Park Service (NPS), the U.S. Forest Service (USFS), and the Arizona Game and Fish Department, as well as other academic and commercial entities, are experienced in both plant and habitat identification. Increased survey efforts since 2013 by such qualified individuals have led to newly discovered Bartram's stonecrop populations or groups. We are aware of 70 total elemental occurrences (Arizona Game and Fish Department, Heritage Database Management System) in the 50 extant U.S. Bartram's stonecrop populations. Of these, all but seven occurrences from five populations have been located or revisited since 2010 (Service 2020a, tables 5.2-5.11).

Following extensive survey efforts in Arizona and Mexico, we are now aware of 872 new individuals from the United States and Mexico since the SSA report was initially written (Service 2020a, entire). For example, between 2018 and 2020, numerous surveys for Bartram's stonecrop were conducted in the Rincon Mountains, and 13 additional Bartram's stonecrop populations were located (Service 2020a, pp. 89-90), including 1 population previously considered to be extirpated that contained one individual in 2019 (Service 2020a, p. 15). Similarly, recent surveys in the Santa Rita Mountains resulted in a newly discovered group of 55 individuals in Madera Canyon. We are also now aware of additional information from a private researcher's surveys beginning in 2012. We have incorporated this and all verified information regarding species occurrences in the revised SSA report (version 2.0) and this final rule. Although the newly discovered individuals contribute to the overall abundance of Bartram's stonecrop and may increase the resiliency of some populations, the threats to the species and the effect of those threats on the species remain such that the species is likely to become in danger of extinction within the foreseeable future. This additional information did not alter our conclusion that the species meets the Act's definition of a threatened species.

(5) Comment: Four commenters felt that there is not enough evidence to conclude that Bartram's stonecrop populations are declining. Specifically, the Mule Mountains population has increased in size to 798 individuals and the statement in the proposed rule that there has been a contraction in size is outdated.

Response: The 2015 survey of the Mule Mountains Juniper Flat population noted 798 individuals. This information is included in the SSA report (Service 2018, pp. 50, 71, 79, 80; Service 2020a, pp. 52, 72, 80, 81) and December 6, 2019, proposed rule (84 FR 67060). Extensive efforts during the 2015 survey located a larger group of plants within the known population. The newly discovered group of 798 plants is located approximately 300 meters from a southernmost group removed in a scouring flood and subsequent drying of the habitat. Therefore, if the larger group of Bartram's stonecrop plants co-occurred with the smaller group, but was not observed, then the overall Juniper Flat population has contracted with the loss of the smaller group. No additional surveys or observed occurrences in the Mule Mountains have been reported to the Service since 2015.

The statement regarding a “general state of population decline” has been removed in this final rule as we acknowledge that populations fluctuate over time. However, we do not expect populations extirpated due to drying of habitat to rebound over time as suitable habitat conditions would not be present. Specifically, drying of habitat has been linked to decreased abundance and extirpation of populations in the Chiricahua, Dragoon, Empire, Santa Rita, and Rincon mountains, including a group of plants from the largest population at Juniper Flat. In three of these instances, extirpation was associated with the drying of habitat, which rendered it no longer suitable for the species.

(6) Comment: Two commenters suggested that the moist canyons where Bartram's stonecrop have been found are associated with the attraction of the public and botanists to these locations, and that survey bias and poor detectability can result in the mischaracterization of Bartram's stonecrop habitat. Several commenters questioned the characterization of Bartram's stonecrop's habitat needs with respect to moisture and proximity to water.

Response: The Service completed a robust SSA based on the best available scientific and commercial information. Bartram's stonecrop is a species found in Madrean woodlands, and does not appear to be a riparian species dependent on shallow ground water. The best available information on Bartram's stonecrop indicates the species occurs near water sources (springs, seeps, or intermittent streams), which may provide humidity and create suitable microclimate conditions. The deep, narrow canyons and associated overstory species provide shade during a portion of the day and create a cooler temperature, and the vegetation litter promotes retention of soil moisture and contributes to the humid microenvironment. Of 56 extant Bartram's stonecrop subpopulations with microhabitat condition documented, 78.6 percent were found within 10 meters of an intermittent or perennial streambed, an additional 14.3 percent were found between 11 and 20 meters from an intermittent or perennial streambed, and 7.1 percent were located more than 20 meters from an intermittent or perennial streambed. Researchers searched for plants at varying distances from streambeds, but note most plants were found nearer streambeds. In general, botanists visit many different habitat types in southern Arizona, and few Bartram's stonecrop individuals have been located outside of habitats with relatively humid microhabitat conditions, as described in the SSA report (Service 2020a, pp. 18, 24).

(7) Comment: A commenter notes that other Bartram's stonecrop populations are being discovered, and at least one of the presumed extirpated populations (Rincon North) cannot really be determined to be gone.

Response: The discovery of 872 additional individuals and new groups of plants in Arizona and Mexico, as described in our response to Comment (4), above, represent substantial survey effort by multiple groups. The 2015 survey of the population referenced (referred to as Happy Valley North in the SSA report) did not locate any Bartram's stonecrop individuals. However, in 2019, a single plant was located within this population. We have incorporated the updated information into the revised SSA report and describe the Happy Valley North population as extant. However, we note that one individual does not indicate a robust population and consider this population to be in very poor condition.

(8) Comment: A commenter indicated we did not solicit information from Cecile Shohet, who conducted research on Bartram's stonecrop for a Master's of Science thesis.

Response: As required by the Act (16 U.S.C. 1533(b)(1)), we based the listing decision on the best available scientific and commercial information. We worked in partnership with numerous agencies and organizations to visit most of the known U.S. locations of Bartram's stonecrop occurrences at least once (with some long-term monitoring initiated), as well as a portion of the Mexico populations. Although information from 1983-2010 is limited, we used the best available information to assess the species' current and future conditions. The U.S. Forest Service, National Park Service, Service, industry surveyors, and other researchers gathering information on Bartram's stonecrop have increased survey efforts since 2013 in suitable habitat in Arizona and Mexico. At a minimum, recent surveys and research on Bartram's stonecrop have occurred each year from 2013 to 2020.

A solicitation for peer review of the SSA report was sent to Ms. Shohet on October 16, 2017, and no response was received. We solicited Ms. Shohet's expert opinion on specific aspects of the SSA and have incorporated all information received following the publication of the December 6, 2019, proposed rule in the revised SSA.

(9) Comment: Three commenters stated that there is little to no evidence that drying has contributed to the extirpation of Bartram's stonecrop populations.

Response: Bartram's stonecrop occurs only in habitat near water sources with a relatively moist and humid microenvironment and occasionally occurs in lower abundance in habitat farther away from water. As such, we determined that the humid microhabitat conditions are a need for species viability (ability to sustain populations in the wild over time). Changes to required habitat conditions, including drying, are expected to negatively affect Bartram's stonecrop populations and contribute to reductions in abundance and population extirpation. Bartram's stonecrop seedlings are particularly susceptible to desiccation, and resurveys have shown large losses in this size class.

Drying of habitat associated with population or group extirpations has been observed in the Carlink Canyon, Empire Mountains, and Mule Mountains. Extirpations occurring in drying habitat are unlikely to be recolonized since suitable conditions for Bartram's stonecrop are no longer present. When suitable habitat is lost and not restored, Bartram's stonecrop experiences an increased risk of extirpation and extinction.

(10) Comment: The commenters stated that several morphological and metabolic characteristics of Bartram's stonecrop are not discussed in the proposed rule despite their important role in determining the habitat requirements of Bartram's stonecrop. These characteristics include a thick waxy covering on the epidermis, Crassulacean acid metabolism that results in stomata only opening at night, a shallow root system, and succulent leaves massed together as a rosette.

Response: Crassulacean acid metabolism (CAM) plants minimize photorespiration and save water by separating the steps of carbon dioxide fixation and the Calvin cycle (used to turn carbon dioxide into sugar) in time, between day and night. Reducing photorespiration decreases wasted energy and decreases sugar synthesis. Approximately 6 percent of flowering plants are known to use CAM. CAM species vary widely in the efficacy and use of CAM, and many maintain the ability to conduct photosynthesis without reducing photorespiration during part of the day, part of the season, and/or part of their lifecycle. All or nearly all members of the nearly worldwide plant family Crassulaceae have the ability to perform CAM, and they occupy a range of microhabitats. Most taxa grow in arid habitats such as rocks and rock fissures under otherwise more humid climatic conditions, or in mountain regions in moderately arid areas, and are largely absent from hot deserts and arid lowlands. Therefore, it is not possible to predict a plant's habitat based solely on knowing that it performs CAM.

Bartram's stonecrop exhibits morphological features characteristic of other Crasulaceae including a waxy covering of the leaves, a shallow root system, and the arrangement of the leaves in a rosette. These features are also found in succulents that occur in drier habitats and may act to promote water conservation, but do not alter the habitat requirements of Bartram's stonecrop.

(11) Comment: A commenter noted that hundreds of plants and animals are at the northern fringe of their range in southern Arizona and are common and safe in Mexico.

Response: Historical distributions of Bartram's stonecrop populations are focused in southern Arizona, with some disjunct populations in northern Mexico. There have been surveys for this species in Mexico, and numerous biologists from Mexico have been consulted regarding its presence in the country. Habitat has been altered extensively in Mexico, and limited populations of Bartram's stonecrop have been located there; therefore, we do not find it reasonable to conclude that the species is common or safe in Mexico.

(12) Comment: A commenter claimed that surveys by Sanchez-Escalante in Mexico were rushed, and occurred in the wrong habitat and at the wrong time of year.

Response: The researcher Sanchez-Escalante spent 35 days exploring 55 sites in Sonora and Chihuahua, and covered 6,900 kilometers with a team of trained botanists with the specific aim of locating populations of six identified rare plant species in appropriate habitats. Two new Bartram's stonecrop populations were located and two historical Bartram's stonecrop populations were confirmed out of 11 suitable habitat locations surveyed. These surveys were conducted during the flowering season in late September when the plants are most visible. Therefore, we concluded the Sanchez-Escalante surveys were conducted using appropriate methods. Thus, we base our current understanding of the Bartram's stonecrop occurrences in Sonora and Chihuahua on the best available scientific information.

(13) Comment: A commenter mentioned that regular visitation is necessary to attain information on bloom period, seed production, reproduction method, pollinators, precipitation and growth relationships, and genetic diversity.

Response: We are aware of limited information regarding the life history and species characteristics the commenter mentioned. The current knowledge of Bartram's stonecrop phenology and reproduction is described in the SSA report (Service 2020a, p. 20). The inflorescence stalks of Bartram's stonecrop individuals grow for 30-40 days in July and August before coming to their full height, with flowers opening primarily between September and November (Kearney and Peebles 1951, p. 361; Phillips et al. 1982, pp. 2, 7; Shohet 1999, p. 25). Flowering is triggered by fall rains and does not occur during periods of water stress (Shohet 1999 pp. 22, 25, 36, 39). Seed dispersal occurs from November to December.

Bartram's stonecrop requires pollinators for reproduction. The major pollinators of Bartram's stonecrop are true flies and house flies, although honey bees may also play a role in pollination. Other species that have been noted on Bartram's stonecrop include wasps, butterflies, and bee flies (Shohet 1999, p. 41; Ferguson 2014, p. 26; Ferguson 2017b, p. 13). Fertilization success is greatest in earliest opening flowers, possibly due to more pollinators being available earlier in the season, although having a long period of flowering increases overall chance of pollination (Shohet 1999, p. 57).

The full relationship between precipitation and plant growth in each life stage has not been fully elucidated. However, winter precipitation is needed for germination, although some germination likely occurs following summer rains. Summer (July and August) and fall (October and November) precipitation is needed for flower production. We are supporting current research into the specific microhabitat requirements for Bartram's stonecrop including site characteristics of overstory vegetation, associated plant species, substrate characteristics, litter depth and character, local insolation and shade, soil temperature and soil moisture, and distance to perennial water. These studies will provide information on temperature and humidity parameters throughout the flowering, germination, and early seedling growth of the plants. Further studies will inform conservation and recovery efforts for the species.

(14) Comment: A commenter claimed the Service did not do due diligence to list threats or make determinations, but used the petitioner's list of threats. Three commenters also opined that the Service's analysis of stressors and classification of the current condition is speculative and not based on hard data.

Response: The Service's determination to list the species is based on a thorough, scientific analysis that was subject to appropriate peer review. Although there are threats noted in common between the Bartram's stonecrop SSA report and the petition to list the species (CBD 2010), there are also differences. The petition calls out mining, livestock grazing, and recreation as the primary threats to Bartram's stonecrop. The SSA analysis determined the following primary influences on viability: Loss of water availability; erosion, sedimentation, and burial; altered fire regime; and loss of shade. We based our analyses on the best available information, which included recent studies of and surveys for Bartram's stonecrop by the National Park Service, U.S. Forest Service, the Service, and private researchers.

(15) Comment: A commenter claimed the Service lacks basic knowledge about the biology and habitat requirements of Bartram's stonecrop and is not following the mandate to base listing decisions on the best scientific and commercial data available.

Response: We based this final listing determination on the best available scientific and commercial information, and the commenter did not provide any new information for us to consider. The best available information on Bartram's stonecrop indicates the species occurs near water sources (springs, seeps, or intermittent streams), which may provide humidity and create suitable microclimate conditions. The deep, narrow canyons and associated overstory species provide shade during a portion of the day and create a cooler temperature, and the vegetation litter promotes retention of soil moisture and contributes to the humid microenvironment. Additional Bartram's stonecrop biology and habitat research is ongoing, and results will inform future Service actions. In assessing the viability of Bartram's stonecrop, the best available scientific and commercial data provide information about some aspects of species' biology and habitat requirements, but may not represent a full and complete knowledge of the species. We drew reasonable conclusions about other aspects of the species' biology and requirements based on similar species, similar habitats, and best available information.

(16) Comment: A commenter indicated that managed livestock and wild ungulate grazing reduce fuels for fires and requested all language relating to domestic livestock threatening Bartram's stonecrop be removed from the SSA report and the rule.

Response: Livestock grazing is not noted in the SSA report or the rule as a major threat to Bartram's stonecrop. Rather, the Bartram's stonecrop SSA report concluded that because Bartram's stonecrop typically occurs on steep terrain, the plants are largely protected from grazing. However, trampling may occur when cattle graze in areas where Bartram's stonecrop occurs. Mortality may be caused by direct trampling by livestock (Searle and Meyer 2020, p. 6), and dislodging of soils by the hard edges of hooves may lead to increased erosion or burial of nearby plants, affecting Bartram's stonecrop individuals in areas with livestock grazing pressure. Therefore, while grazing is not a major threat to the species, trampling and direct mortality act as stressors to Bartram's stonecrop in some circumstances, and the effect of livestock is analyzed in the SSA report.

(17) Comment: A commenter suggested using past climate data at a local level rather than modelling projections when discussing climate as a threat.

Response: In the Bartram's stonecrop SSA report, figures 4.11a-c show both the past and projected mean daily maximum temperatures in Cochise, Pima, and Santa Cruz Counties, Arizona (Service 2020a, pp. 63-67). The data for past mean daily maximum temperatures also indicate increases in temperature in all three counties. Modelling projections based on the Intergovernmental Panel on Climate Change Fifth Assessment report (IPCC 2014, entire) and future climate projections from the National Climate Explorer Tool (USGS 2017a, entire) downscaled to county level were used to discuss climate change and the effects of current and future changes on Bartram's stonecrop. Section 4.3 of the SSA (USFWS 2020, pp. 37-51) describes these modelling projections in greater detail.

(18) Comment: A commenter stated that demographic and environmental stochasticity are naturally occurring phenomena for which Bartram's stonecrop plants are very well adapted.

Response: Demographic and environmental stochasticity are naturally occurring phenomena (Shaffer 1981, p. 131). However, Bartram's stonecrop populations adapted to naturally occurring phenomena now experience the additional stressors related to a changing fire regime, nonnative species, and the effects of a changing climate beyond the scope of normal occurrence. For example, effects due to a changing climate, coupled with other stressors, can have a cumulative impact resulting in greater than anticipated decline in rare species (Souther and McGraw 2014, pp. 1471-1472). In addition, populations that experience variability in abundance must maintain a minimum viable population to be able to repopulate after a demographic or environmental stochastic event or catastrophe (Holsinger and Falk 1991, p. 45). Following a stochastic event that extirpates a population, suitable habitat for Bartram's stonecrop must be present, including humidity and shade, to provide conditions for potential recolonization or regrowth. Rangewide (including Mexico), 29 of the 50 Bartram's stonecrop populations (58 percent) are small (fewer than 50 individuals). When the effect of small population size exacerbates other stressors beyond those naturally occurring phenomena that Bartram's stonecrop has adapted to, population abundance may be reduced to the extent that repopulation does not occur.

(19) Comment: Three commenters stated the analysis of mining as a threat is cursory, unsupported, and overstates the likelihood of mining projects occurring within the range of the species. They noted that no mining projects outside of Rosemont are specifically identified and that the Service used an outdated 2012 document/map for this discussion. The commenters also stated that there is no evidence that loss of water from mining operations is a significant threat to Bartram's stonecrop and noted that the shade trees associated with Bartram's stonecrop habitat do not rely on groundwater. Therefore, the proposed rule overstated water drawdown from mining as a threat.

Response: Mining is expected to affect Bartram's stonecrop individuals and populations in several ways. The direct removal of Bartram's stonecrop individuals due to erosion or burial from mineral extraction sites, test pits, and debris piles is expected to impact small populations. Fragmentation of Bartram's stonecrop populations due to placement of mining operations and associated activities can interfere with pollination and reproduction (Rathcke and Jules 1993, p. 276). Due to uncertainty regarding the effect of fugitive dust or heavy metal pollution generated by mining operations on Bartram's stonecrop's growth and vigor, these potential stressors were not analyzed. The primary threat to Bartram's stonecrop analyzed with regard to mining was the loss of overstory shade trees due to dewatering of nearby streams and groundwater drawdown.

Bartram's stonecrop-associated shade trees include the following riparian obligate species: Salix sp. (willow), Populus sp. (cottonwood), and Platanus sp. (sycamore). Within the following Bartram's stonecrop locations, the associated overstory includes riparian trees that provide between 50 and 80 percent shade to the sites: (1) Penasco Canyon: Willow; (2) Stronghold East: Ash; (3) Cave Canyon: Sycamore; (4) Josephine Canyon: Cottonwood and willow; (5) Santa Rita Sycamore Canyon: Ash; (6) Madera Canyon: Sycamore; (7) Jordan Canyon: Cottonwood, ash, and willow; (8) Warsaw/Old Glory Canyons: Willow; (9) Sawmill Canyon: Sycamore; and (10) Death Trap Canyon: Ash. Our response to Comment (6), above, describes the importance of riparian shade trees in maintaining the microhabitat needed by Bartram's stonecrop.

Dewatering of streams in the vicinity of mining operations may lead to overstory canopy changes and loss of shade, as well as reduction in spring and stream flow and humidity in nearby Bartram's stonecrop populations. One mine has been proposed in the Santa Rita Mountains. Bartram's stonecrop individuals and populations in the analysis area could experience indirect impacts from groundwater drawdown (USFS 2013a, p. 676). According to the Rosemont Final Environmental Impact Statement (USFS 2013a, p. 339), the proposed mine pit would create a permanent drawdown of the water table, and groundwater flowing toward the pit would be lost to evaporation. The water would be perpetually replenished in part by groundwater from the regional aquifer, and the pit would act as a hydraulic sink. The Bartram's stonecrop plants growing just southwest of the proposed Rosemont Mine were analyzed in the Rosemont Final Environmental Impact Statement (USFS 2013a, pp. 346-350). The predicted groundwater drawdown in the affected population at the end of active mining is 0.1-5 feet, depending on the site assessed and the model used. At 20 years from the mine closure, the predicted drawdown increases to a maximum of 15-20 feet.

In our analysis, we describe a range of potential mining scenarios that may affect Bartram's stonecrop: (1) Ongoing mining activity, (2) one to three new mining activities across the range of the species, and (3) greater than three new mining activities across the range of the species, to represent future levels of stressors to Bartram's stonecrop from mining. We used the information from Coronado National Forest Mining Activity (USFS 2012) to develop these plausible ranges of potential activities. We are not aware of any other sources regarding potential mining activities; however, we welcome any new information on the likelihood of mining impacts to inform subsequent Service actions.

(20) Comment: A commenter notes that Bartram's stonecrop rock habitat should minimize wildfire, erosion, sedimentation, and burial, and that the 12-month finding for Hexalectris colemanii concluded that wildfire was not a risk, yet it occurs in the same habitat as Bartram's stonecrop.

Response: The crevices in the rock habitat where Bartram's stonecrop occurs provide shade, shelter, and soil moisture retention, and they provide the plant some protection from burning due to a lack of surrounding vegetation serving as fuel for fire in the rocky terrain. However, overstory tree and shrub species that provide shade to Bartram's stonecrop plants may be impacted by fire. Due to the location of plants in crevices or shallow soil pockets in steep canyons, adherence to substrate or soil is tenuous, and plants can be easily dislodged due to post-fire flooding, foot traffic, eroding soil, or falling rocks.

Unlike Bartram's stonecrop, Hexalectris colemanii (Coleman's coralroot) is an almost exclusively subterranean species and is likely capable of resprouting following fire. In addition, the threats of nonnative plants ( e.g., Eragrostis lehmanniana (Lehmann's lovegrass) and Melinis repens (rose natal)) were not considered to be threats to the Coleman's coralroot (78 FR 76795; December 19, 2013), but are considered to be a threat to Bartram's stonecrop. These nonnative plants increase fire risk and alter the fire regime (frequency and severity) within Bartram's stonecrop habitat.

We are aware of 11 wildfires that occurred in known Bartram's stonecrop sites from 2007-2017, killing some Bartram's stonecrop individuals and removing shade in some sites. Wildfires have burned in all nine sky island mountain ranges of southern Arizona with known Bartram's stonecrop occurrences within the last decade. Wildfire could potentially cause extirpation of small Bartram's stonecrop populations throughout the range of the species and have negative impacts on larger populations. Bartram's stonecrop seeds are very tiny, reside at or near the soil surface (Shohet 1999, p. 48), and show no characteristics that would promote survival in a wildfire.

(21) Comment: Three commenters stated that there is no evidence that erosion, sedimentation, or burial are significant threats to Bartram's stonecrop.

Response: Erosion, sedimentation, and burial of Bartram's stonecrop individuals may occur as a result of mining, livestock pressure, recreation trails and roads, flooding events, cross border human activity, and post-wildfire runoff. Bartram's stonecrop is found in crevices or shallow soil pockets in steep canyons where adherence to substrate or soil is necessarily tenuous. Individual plants can be easily dislodged from these positions due to flooding, foot traffic, eroding soil, or falling rocks. Individuals dislodged by erosion and covered by rock fall have been observed in the Rhyolite Canyon subpopulation (Service 2020a, p. 76). Similarly, more than a half dozen individuals dislodged from trailside infrastructure were lost to erosion in the Madera population (Shohet 1999, p. 60). The effects of erosion, sedimentation, and burial and the loss of Bartram's stonecrop individuals are exacerbated in small populations.

(22) Comment: Some commenters stated that fire may not be so important for this species and that an altered fire regime poses an uncertain threat to Bartram's stonecrop.

Response: The Madrean evergreen woodlands of the sky islands where Bartram's stonecrop occurs have evolved with frequent low-severity fire with an interval of 10 to 30 years between relatively widespread fires in the pine-dominant forests (Swetnam et al. 2010, p. 4). Due to a variety of human activities in the landscape ( e.g., excessive livestock grazing, fuelwood cutting, nonnative introduction and expansion, and fire suppression starting around the turn of the last century through the mid-1900s), these woodlands now have high fuel loads, and high-severity fires are becoming increasingly more common (Swetnam et al. 2010, p. 11; FireScape 2016, entire). There is no evidence that such large, stand-replacing fires occurred historically; for example, fire-scar studies have revealed that only low-intensity surface fire regimes occurred within the range of Bartram's stonecrop for the past three to five centuries (Swetnam et al. 2010, p. 15).

Crevices provide shade, shelter, and soil moisture retention, and offer Bartram's stonecrop plants protection from burning due to a lack of surrounding vegetation for fuel in the rocky terrain. Regardless, Bartram's stonecrop individuals have been burned. We are aware of 11 wildfires that occurred in known Bartram's stonecrop sites from 2007-2017, killing some Bartram's stonecrop individuals and removing shade in some sites (Ferguson 2014, pp. 9-10, 15, 28-29; Ferguson 2016a, p. 13; Ferguson 2016b, entire; Ferguson 2017c, p. 32; Ferguson 2017h, p. 2). Wildfires have burned in all nine sky island mountain ranges of southern Arizona with known Bartram's stonecrop occurrences within the last decade. Wildfire could potentially cause extirpation of small Bartram's stonecrop populations throughout the range of the species and have negative impacts on larger populations. Bartram's stonecrop seeds are very tiny, reside at or near the soil surface (Shohet 1999, p. 48), and show no characteristics that would promote survival in a wildfire.

Indirect threats to the species from fire include increased runoff of floodwaters, post-fire flooding that may scour habitat, deposition of debris and sediment originating in the burned area that could cover individuals, erosion of habitat, changes in vegetation community composition and structure, increased presence of nonnative plants, alterations in the hydrologic and nutrient cycles, and loss of overstory canopy shade essential for maintaining Bartram's stonecrop microhabitat.

(23) Comment: A commenter expressed that Bartram's stonecrop should be listed as endangered and critical habitat should be designated.

Response: When making a listing decision for a species under the Act, the Service must determine if the current status of the species indicates it is in danger of extinction throughout all or a significant portion of its range (an endangered species) or likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (a threatened species). In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, and then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the Act's definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

We reviewed the potential risk factors ( i.e., threats or stressors) that are affecting Bartram's stonecrop now and into the future. While there are multiple stressors affecting Bartram's stonecrop, the best available information indicates that these threats are not immediately impacting Bartram's stonecrop such that the species meets the definition of an endangered species under the Act.

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. The designation of critical habitat may not be prudent if 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. Bartram's stonecrop is an attractive and small plant that can be easily collected by gardeners and succulent enthusiasts. This stressor was first noted in 1982, and observed in 1997-1998. Three researchers described the potential for collection of Bartram's stonecrop and factors that may make collection more likely. The lifespan of Bartram's stonecrop plants has been estimated at 5-10 years, allowing sufficient time for discovery and collection. As noted in the August 8, 2012, 90-day finding for this species (77 FR 47352), small populations may not be able to recover from collection, especially if the mature, reproductive plants are removed. The removal of mature plants reduces the overall reproductive effort of the population, thereby reducing the overall resilience of the population. While documented instances of collection are limited, the impacts from collection can be profound for small populations. In this case, we have found that the designation of critical habitat for Bartram's stonecrop is not prudent at this time as it would be likely to put the species at higher risk of collection.

(24) Comment: The commenters state that there is no evidence that illegal collection of Bartram's stonecrop individuals is a significant threat and that illegal collection is unlikely due to the short lifespan of the species and difficulty growing it horticulturally.

Response: The illegal collection of succulents is known to occur, and is often difficult to detect. Illegal collection of Bartram's stonecrop individuals has been reported, and the threat from it is more pronounced in small populations such as those in which the species occurs. More than half (58 percent) of Bartram's stonecrop populations contain fewer than 50 individuals. The lifespan of Bartram's stonecrop plants has been estimated at 5-10 years, allowing sufficient time for discovery and collection.

Bartram's stonecrop is an attractive and small plant not available from nurseries that can be easily collected by gardeners and succulent enthusiasts. This stressor was first noted in 1982, when exact localities were excluded from a summary report due to the possibility of illegal collection. Tagged individuals were uprooted and taken from two sites in the Santa Rita Mountains in 1997-1998. Plants in close proximity to trails have higher discovery potential and are therefore more likely to be collected. Collectors advertise in internet forums seeking Bartram's stonecrop seedlings or rooted cuttings. The similar southern Arizona species, Graptopetalum rusbyi (San Francisco leatherpetal), is cultivated and legally available for sale from cactus nurseries. However, Bartram's stonecrop is more difficult to propagate and maintain in captivity and is therefore vulnerable to collection from the wild because collectors cannot find them for purchase in nurseries. Small populations may not be able to recover from collection, especially if the mature, reproductive plants are removed. The removal of mature plants reduces the overall reproductive effort of the population, thereby reducing the overall resilience of the population. While documented instances of collection are limited, the impacts from collection can be profound for small populations.

(25) Comment: The commenters state that there is no evidence that trampling is a significant threat to Bartram's stonecrop.

Response: As Bartram's stonecrop is typically found in shady canyons, the possibility of individuals being lost to trampling remains. Trampling of individuals (direct mortality or damage due to crushing) related to recreation activities has been observed historically. Human traffic within Bartram's stonecrop populations can cause soil erosion and plant loss, including damage from researchers. Individual Bartram's stonecrop were trampled in a group of plants that bordered a campsite (Shohet 1999, p. 60). Westland Resources (2013, p. 19) noted that the potential placement of a trail through Bartram's stonecrop populations may impact individual plants. A Bartram's stonecrop plant in a group located within 10 meters (32.8 feet) of a frequently used hiking trail was covered by rock fall (Ferguson 2016a, pp. 14-15). Threats to individuals can be particularly important to small populations.

(26) Comment: Some commenters state that altered precipitation, drought, and flooding regimes pose an uncertain threat to Bartram's stonecrop, and that freezing is not detrimental unless severe.

Response: The southwestern United States is warming and experiencing severe droughts of extended duration, decreased stream flows, changes in amount and timing of snow melt, and changes in timing and severity of precipitation and flooding (CLIMAS 2014, entire). The seasonality and general precipitation requirements for Bartram's stonecrop are described in detail in the SSA report (chapter 2, p. 26). Bartram's stonecrop occurs in habitats and microhabitats with a higher soil moisture, humidity, and vegetative community indicative of more mesic conditions than other succulents. Drying of habitats and more arid conditions have been associated with population extirpation. Bartram's stonecrop and its habitat are very susceptible to drought, loss of humidity, increases in temperature, and increased intensity of storms and flooding (NPS 2015, p. 4).

Bartram's stonecrop occurs in Madrean woodlands characterized by warm, wet summers and mild winters. Precipitation within the sky island mountain ranges is bimodal, with winter snow and rain, and summer monsoon rain. Mean annual precipitation in these habitats is 10-17 inches, with more than 50 percent occurring in summer. The winter snow and rain coincide with Bartram's stonecrop seed germination and growth. Winter precipitation is needed for Bartram's stonecrop germination (although some germination likely occurs following summer rains), and both summer (July and August) and fall (captured partially in the October and November “winter” data) precipitation is needed for Bartram's stonecrop flower production.

The current and projected future trends in precipitation in the range of Bartram's stonecrop are discussed in the SSA report's sections 2.6 and 4.5 (Service 2020a, pp. 26, 54-68). The region has experienced serious drought (a prolonged period of abnormally low rainfall) in recent decades (Bowers 2005, p. 421; Garfin et al. 2013, p. 3; CLIMAS 2014, entire). Winter precipitation, in particular, has decreased over the past century, as recorded by weather stations within sky island mountain ranges containing Bartram's stonecrop (see SSA report, figures 2.6a-h) (Service 2020a, pp. 27-30). Winter precipitation is projected to decrease in the southwestern United States (IPCC 2013, p. 1080).

Precipitation is projected to decrease in the future with climate change, although it is expected to be more intense when it does occur (Seager et al. 2007, p. 1181; Karl et al. 2009, pp. 24, 33). Some projections suggest an overall similar amount of precipitation in the Southwest, but that it will be distributed differently in timing and intensity (Zhang et al. 2012, p. 390). Most climate change scenarios predict that the American Southwest will also become warmer during the 21st century (Overpeck et al. 2012, p. 5; Karl et al. 2009, p. 129), and the frequency of droughts is projected to increase by the end of the 21st century.

Continuing drought, increased temperatures, and increased evapotranspiration are expected to reduce vegetation cover and shade in Bartram's stonecrop habitat through overstory tree loss (Ferguson 2014, p. 42). Such tree mortality has already been observed in Bartram's stonecrop populations, negatively impacting available microhabitat (Ferguson 2016a, pp. 12, 17, 26). Drought or reduced water resources disproportionately affect seedlings, as this stage is particularly vulnerable to desiccation.

Bartram's stonecrop plants are almost always located near water sources (springs, seeps, or intermittent streams), but above the floodline (Phillips et al. 1982, p. 4; Shohet 1999, p. 22; NPS 2014, p. 2). Crevices above the floodline offer protection from typical flood events. Bartram's stonecrop needs crevices in solid bedrock or in shallow soil pockets on rock ledges and cliffs in deep, narrow canyons above normal flood levels to avoid seeds and plants being washed away during flood events. An increase in the flood frequency or intensity could result in an increase in the number of plants dislodged.

Based on climate change projections, it is likely that the severity of storm events will increase, resulting in more runoff, more severe flooding events, and more erosion and sedimentation affecting populations, especially following wildfire events in the uplands. Rainfall events in the southwestern United States are projected to be less frequent but more intense, and larger flood events are expected to be more common in the future (Karl et al. 2009, p. 24). Erosion and soil loss from such storm events may increase with higher peak stream flows. Flooding can remove Bartram's stonecrop individuals occurring near the stream's edge and has the potential to remove entire small populations (Phillips et al. 1982, p. 10; The Nature Conservancy 1987, p. 2; Ferguson 2014, p. 42; Ferguson 2016a, p. 26; NPS 2015, p. 4; Ferguson 2017b, p. 15). One group within a Bartram's stonecrop population was extirpated due to dislodging from a flooding event followed by drying of habitat (The Nature Conservancy 1987, p. 2).

Bartram's stonecrop is susceptible to damage from freezing events (Ferguson 2014, pp. 23, 40). An early season frost was reported in one Bartram's stonecrop population, and a hard frost is suspected of killing all plants in another population (Indian Creek) in 2011. Frost events are not projected to decrease in severity (Kodra et al. 2011, p. 3).

Because continuing drought, more severe freezing events, and increased high intensity rainfall events all pose threats to Bartram's stonecrop across the range of the species, this stressor is considered in our analysis of future species viability. We conclude that abnormal freezing events can seriously damage or completely remove small populations.

(27) Comment: Three commenters indicated that the Service's conclusion that small and isolated populations are a threat to Bartram's stonecrop is incorrect.

Response: Small population size has the potential to decrease Bartram's stonecrop population resiliency, as all stressors are exacerbated in populations with only a small number of individuals. Small populations are less able to recover from losses caused by random environmental changes (Shaffer and Stein 2000, pp. 308-310), such as fluctuations in reproduction (demographic stochasticity), variations in rainfall (environmental stochasticity), or changes in the frequency or severity of wildfires.

Most known Bartram's stonecrop populations are small, with over half of known individuals of the species residing in five populations. Twenty-nine of the 50 extant known Bartram's stonecrop populations (58 percent) rangewide contain fewer than 50 individuals, and 43 populations (86 percent) contain fewer than 150 individuals. The effect of more minor threats such as erosion, trampling, and illegal collection are all increased when Bartram's stonecrop populations are already small.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines “endangered species” as a species in danger of extinction throughout all or a significant portion of its range, and “threatened species” as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we summarize our findings below. We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to Bartram's stonecrop.

Bartram's stonecrop has experienced population declines, and three populations have been lost entirely. Currently, 50 extant Bartram's stonecrop populations contain 4,682 individuals in the United States and Mexico. Four Bartram's stonecrop populations contain nonnative grasses and several more are near nonnative grasses resulting in current habitat loss and continued loss in the future (Factor A). Further, an altered fire regime (Factors A and E) impacts all populations currently or in the near future and drives the spread of nonnatives (Factor A), exacerbating the encroachment of nonnative grasses. Consequently, all remaining populations of Bartram's stonecrop are impacted by nonnative grasses now or will be in the near future. Altered precipitation (Factors A and E), increased temperatures (Factors A and E), and decreased annual precipitation (Factors A and E) are current and ongoing regional conditions that are impacting all populations of Bartram's stonecrop. These environmental conditions exacerbate an altered fire regime, driving the spread of nonnative grasses with competitive advantages over native grasses during periods of drought. Many currently undeveloped areas of locatable mineral deposits may be explored or mined in the future (Factors A and E). The range of current and projected mining activities varies from 1 to 10 per mountain range with Bartram's stonecrop occurrence (USFS 2012, entire). One population, Sycamore Canyon (115 adult individuals), will be affected by groundwater drawdown due to the Rosemont Mine, which will impact the shade and moist microclimate this species needs (Factor A). This species is known to be collected and sold (Factor B), and plants in close proximity to trails or roads have higher discovery potential and are, therefore, more likely to be collected. Twenty-nine of 50 populations (58 percent) are small (fewer than 50 individuals) (Factor E). Erosion (Factors A and E), trampling (Factor E), collection (Factor B), herbivory (predation) (Factor C), and fire (Factors A and E) have the potential to reduce or completely remove these small populations. Synergistic interactions among wildfire, nonnative grasses, decreased precipitation, and increased temperatures cumulatively and cyclically impact Bartram's stonecrop, and all stressors are exacerbated in small populations (Factor E). The existing regulatory mechanisms (Factor D) do not address the majority of the threats to the species. Conservation efforts have not yet been implemented for this species.

We find Bartram's stonecrop to face increased vulnerability to the current and future threats due to the small population sizes of the majority of populations (Factor E). Small populations are susceptible to the loss of genetic diversity, genetic drift, and inbreeding. Currently 47 populations spread across nine mountain ranges in the United States and three ranges in Mexico exist as single populations ( i.e., no subpopulations to provide further resiliency in case of extirpation). The mountain ranges are widely separated (14-42 kilometers (8.7-26 miles) apart) and may not be genetically diverse because pollination or transport of seeds between populations may be very limited. This could mean that between-population genetic diversity may be greater than within-population diversity (Smith and Wayne 1996, p. 333; Lindenmayer and Peakall 2000, p. 200). Further, there may have been a loss of genetic diversity in the three extirpated populations. However, it is likely that the species' genetic representation will be lost given the impacts to populations through the reduction in the number of individuals per population and the loss of populations (Factor E). In addition, it is likely that ecological representation will continue to decline as those populations at lower elevations are lost due to reduced precipitation and increased temperatures (Factor E).

Regulatory mechanisms (Factor D) and other management efforts by USFS and NPS provide some benefit to Bartram's stonecrop, as the majority of known populations are located on USFS (67 percent of the area of populations) and NPS (22 percent) owned and managed lands. The Coronado National Forest Land and Resource Management Plan (Plan) includes actions to control nonnative invasive species, restore habitat for federally listed species, and contribute to the recovery of federally listed species (USFS 2018, pp. 38, 41, 44, 46, 49, and 175). The Plan recognizes Bartram's stonecrop occurrences on the Coronado National Forest (USFS 2018, pp. 54). The Arizona Department of Agriculture protects native plants including Bartram's stonecrop under the 2009 Arizona Native Plan Law (Arizona Revised Statutes Title 3. Agriculture § 3-903) and removal is restricted to salvage of the plants. However, these efforts have not been able to ameliorate the threat of nonnative plant species and the altered fire regime and effects of drought.

The overall range of the species has not been significantly reduced, although three populations are extirpated due to habitat alteration. Currently, 50 extant populations in 12 mountain ranges provides a level of protection from catastrophic events now and in the near future. While there are multiple stressors to the remaining populations, these stressors are not immediately impacting all populations such that Bartram's stonecrop is currently in danger of extinction. The stressors that pose the largest risk to future species viability are primarily related to habitat changes: Groundwater extraction from mining, long-term drought, and alteration in wildfire regime. These stressors are occurring and impacting Bartram's stonecrop and will continue to do so within the next 40 years. We chose a foreseeable future of 40 years (approximately 2060) because this is within the range of predictions of available hydrological and climate change model forecasts, is within the time period of the Rosemont Mine effects, and represents eight generations of Bartram's stonecrop, which allows us to assess reproductive effects on the species and allows the species opportunities to rebound. The primary sources we examined in determining future scenarios include the RCP 4.5 and 8.5 models in the IPCC (2013 and 2014, entire) and Garfin et al. (2013, entire). In addition, we examined literature pertaining to wildfire frequency and severity, including Westerling et al. (2006), FireScape (2016), and Fire Management Information System (2016). An increase in temperature results in increased evapotranspiration rates and soil drying, resulting in the effects of future droughts becoming more severe (Garfin 2013, pp. 137-138) and wildfires becoming more frequent and of increased intensity. The threats to Bartram's stonecrop act synergistically to influence the viability of the species. For example, decreased water availability and invasion of nonnative grasses promote higher severity and frequency of fires, while the effect of fires in Bartram's stonecrop habitat is to promote nonnative grass invasion and increase the likelihood of post-fire runoff and loss of shade trees.

We find that Bartram's stonecrop is likely to become an endangered species throughout all of its range within the foreseeable future. It is facing threats across its range that have led to reduced resiliency, redundancy, and representation, and we expect the species to continue to decline into the future. Thus, after assessing the best available information, we conclude that Bartram's stonecrop is not currently in danger of extinction, but is likely to become in danger of extinction within the foreseeable future throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020) ( Center for Biological Diversity ), vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) that provided that the Services do not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant; and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

Following the court's holding in Center for Biological Diversity, we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now ( i.e., endangered). In undertaking this analysis for Bartram's stonecrop, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered.

For Bartram's stonecrop, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following primary threats to the species: Reduction in water availability; altered fire regime; effects of climate change; and erosion, sedimentation, and burial. Loss due to trampling, collection, herbivory, severe frost, or other stressors also have the potential to impact individual Bartram's stonecrop plants. The effects of these threats are exacerbated in small populations. Altered precipitation, drought, flooding, and freezing regimes from current and future climate change are issues for all Bartram's stonecrop populations. Synergistic interactions among wildfire, nonnative grasses, decreased precipitation, and increased temperatures cumulatively and cyclically impact all Bartram's stonecrop populations. Some populations are expected to be affected by threats due to varying causes. For example, a higher risk of fires as a result of cross-border human activity is expected in the Baboquivari, Chiricahua, Mule, Pajarito-Atascosa, Santa Rita, Patagonia, and Whetstone mountains, while a higher risk of fires as a result of recreationists is expected in the Chiricahua, Dragoon, Pajarito-Atascosa, Patagonia, Rincon, and Santa Rita mountains. We found no concentration of threats in any portion of Bartram's stonecrop's range at a biologically meaningful scale. Thus, there are no portions of the species' range where the species has a different status from its rangewide status. Therefore, no portion of the species' range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This is consistent with the courts' holdings in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Our review of the best available scientific and commercial information indicates that Bartram's stonecrop meets the Act's definition of a threatened species. Therefore, we are listing Bartram's stonecrop as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the stressors to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new stressors to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website ( http://www.fws.gov/endangered ), or from our Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration of native vegetation, research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

Following publication of this final rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Arizona will be eligible for Federal funds to implement management actions that promote the protection or recovery of Bartram's stonecrop. Information on our grant programs that are available to aid species recovery can be found at http://www.fws.gov/grants.

Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered or threatened species in foreign countries. Sections 8(b) and 8(c) of the Act (16 U.S.C. 1537(b) and (c)) authorize the Secretary to encourage conservation programs for foreign listed species, and to provide assistance for such programs, in the form of personnel and the training of personnel.

Please let us know if you are interested in participating in recovery efforts for Bartram's stonecrop. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the U.S. Forest Service (Coronado National Forest), Bureau of Land Management, U.S. Customs and Border Protection, and National Park Service (Chiricahua National Monument and Saguaro National Park).

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered plants. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.61, make it illegal for any person subject to the jurisdiction of the United States to: Import or export; remove and reduce to possession from areas under Federal jurisdiction; maliciously damage or destroy on any such area; remove, cut, dig up, or damage or destroy on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce an endangered plant. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.62. With regard to endangered plants, a permit may be issued for scientific purposes or for enhancing the propagation or survival of the species. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species. The discussion below regarding protective regulations under section 4(d) of the Act complies with our policy.

Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary of the Interior (Secretary) shall issue such regulations as he deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like “necessary and advisable” demonstrates a large degree of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants. Thus, the combination of the two sentences of section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9.

The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces ( see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

Exercising this authority under section 4(d), we have developed a rule that is designed to address Bartram's stonecrop's specific stressors and conservation needs. Although the statute does not require the Service to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of Bartram's stonecrop. As discussed above under Determination of Bartram's Stonecrop's Status, we have concluded that Bartram's stonecrop is likely to become in danger of extinction within the foreseeable future due to groundwater extraction and prolonged drought expected to reduce nearby water levels and humidity within Bartram's stonecrop's microenvironment, and altered fire regimes leading to erosion of Bartram's stonecrop habitat that could dislodge plants, to sedimentation that could cover individuals, and to loss of overstory shade trees. In addition, collection, trampling, herbivory, flooding, and dislodging and burial from recreationists, cross-border violators, and domestic and wild animals contribute to the risk of extinction within the foreseeable future due to the majority of populations being small and isolated. The provisions of this 4(d) rule will promote conservation of Bartram's stonecrop by encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of Bartram's stonecrop. The provisions of this rule are one of many tools that the Service will use to promote the conservation of Bartram's stonecrop.

This 4(d) rule provides for the conservation of Bartram's stonecrop by prohibiting the following activities, except as otherwise authorized or permitted: Import or export; certain acts related to removing, damaging, and destroying; delivery, receipt, transport, or shipment in interstate or foreign commerce in the course of commercial activity; or sale or offering for sale in interstate or foreign commerce.

As discussed under Summary of Biological Status and Threats, above, multiple factors are affecting the status of Bartram's stonecrop. A range of activities have the potential to impact Bartram's stonecrop, including:

(1) Unauthorized damage or collection of Bartram's stonecrop from lands under Federal jurisdiction; and

(2) Malicious destruction or degradation of the species or associated habitat on lands under Federal jurisdiction, including:

(a) The intentional introduction of nonnative organisms that compete with or consume Bartram's stonecrop;

(b) Ground-disturbing activities that impact the species or its habitat;

(c) Activities that would affect pollinators where the species occurs and in the surrounding area;

(d) Activities that would promote high-severity wildfires where the species occurs; and

(e) Activities that would reduce shade or lower the water table such that the cooler, humid microenvironment is affected.

These activities are provided as examples of actions that may affect Bartram's stonecrop and are not intended to be a list of prohibitions under the final 4(d) rule for Bartram's stonecrop. As a whole, the 4(d) rule will help in the efforts to recover Bartram's stonecrop by prohibiting activities that damage individuals and populations and providing exceptions to those prohibitions for permitted or conservation activities.

We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.72, which states that “the Director may issue a permit authorizing any activity otherwise prohibited with regard to threatened species.” That regulation also states, “The permit shall be governed by the provisions of this section unless a special rule applicable to the plant is provided in sections 17.73 to 17.78.” We interpret that second sentence to mean that permits for threatened species are governed by the provisions of section 17.72 unless a special rule, which we have defined to mean a species-specific 4(d) rule, provides otherwise. We recently promulgated revisions to section 17.71 providing that section 17.71 will no longer apply to plants listed as threatened in the future. We did not intend for those revisions to limit or alter the applicability of the permitting provisions in section 17.72, or to require that every species-specific 4(d) rule spell out any permitting provisions that apply to that species and species-specific 4(d) rule. To the contrary, we anticipate that permitting provisions would generally be similar or identical for most species, so applying the provisions of section 17.72 unless a species-specific 4(d) rule provides otherwise would likely avoid substantial duplication. Moreover, this interpretation brings section 17.72 in line with the comparable provision for wildlife at 50 CFR 17.32, in which the second sentence states, “Such permit shall be governed by the provisions of this section unless a special rule applicable to the wildlife, appearing in sections 17.40 to 17.48, of this part provides otherwise.” Under 50 CFR 17.12 with regard to threatened plants, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for botanical or horticultural exhibition, for educational purposes, or for other purposes consistent with the purposes and policy of the Act. Additional statutory exemptions from the prohibitions are found in sections 9 and 10 of the Act.

We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Services in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Services shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, will be able to conduct activities designed to conserve Bartram's stonecrop that may result in otherwise prohibited activities without additional authorization.

Nothing in this 4(d) rule changes in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of Bartram's stonecrop. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service.

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 at 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 Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must 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 occupied 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) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

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.

In the proposed listing rule (84 FR 67060; December 6, 2019), we determined that designation of critical habitat for Bartram's stonecrop would not be prudent. However, we invited public comment and requested information on the threats of taking or other human activity, on Bartram's stonecrop and its habitat, and the extent to which designation might increase those threats.

During the comment period, we did not receive any substantive comments, or any comments that would require us to change the not prudent determination or our rationale for it (see 84 FR 67060, December 6, 2019, p. 84 FR 67088). Therefore, we restate our conclusion that the designation of critical habitat is not prudent, in accordance with 50 CFR 424.12(a)(1), because Bartram's stonecrop faces a threat by collection, and designation can reasonably be expected to increase the degree of these threats to the species by making location information more readily available.

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

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

A complete list of references cited in the SSA report and this rulemaking is available on the internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2018-0104 and upon request from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this final rule are the staff members of the U.S. Fish and Wildlife Service Species Assessment Team and the Arizona Ecological Services Field Office.

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

On October 9, 2020, we published in the Federal Register (85 FR 64097) a proposal to amend title 50 of the Code of Federal Regulations (CFR) at part 20. The proposal provided a background and overview of the migratory bird hunting regulations process, and addressed the establishment of seasons, limits, and other regulations for hunting migratory game birds under §§ 20.101 through 20.107, 20.109, and 20.110 of subpart K. Major steps in the 2021-22 regulatory cycle relating to open public meetings and Federal Register notifications were illustrated in the diagram at the end of the October 9, 2020, proposed rule. For this regulatory cycle, we combined the elements described in that diagram as “Supplemental Proposals” with the one described as “Proposed Season Frameworks.”

We provided the meeting dates and locations for the Service Regulations Committee (SRC) and Flyway Council meetings on Flyway calendars posted on our website at https://www.fws.gov/birds/management/flyways.php. On October 20-21, 2020, we held open meetings with the Flyway Council Consultants, at which the participants reviewed information on the current status of migratory game birds and developed recommendations for the 2021-22 regulations for these species. The October 9, 2020, proposed rule provided detailed information on the proposed 2021-22 regulatory schedule and announced the SRC meetings.

On February 22, 2021, we published in the Federal Register (86 FR 10622) the proposed frameworks for the 2021-22 season migratory bird hunting regulations. On July 16, 2021, we published in the Federal Register (86 FR 37854) the final frameworks for migratory game bird hunting regulations, from which State wildlife conservation agency officials selected seasons, hours, areas, and limits for hunting migratory birds during the 2021-22 season.

The final rule described here is the final in the series of proposed, supplemental, and final rulemaking documents for migratory game bird hunting regulations for the 2021-22 season, and deals specifically with amending subpart K of 50 CFR part 20. It sets hunting seasons, hours, areas, and limits for migratory game bird species. This final rule is the culmination of the annual rulemaking process allowing migratory game bird hunting, which started with the October 9, 2020, proposed rule. As discussed elsewhere in this document, we supplemented that proposal on February 22, 2021, and published final season frameworks on July 16, 2021, that provided the season selection criteria from which the States selected these seasons. This final rule sets the migratory game bird hunting seasons based on that input from the States. We previously addressed all comments in the July 16 Federal Register (86 FR 37854).

The programmatic document, “Second Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (EIS 20130139),” filed with the Environmental Protection Agency (EPA) on May 24, 2013, addresses NEPA (42 U.S.C. 4321 et seq. ) compliance by the Service for issuance of the annual framework regulations for hunting of migratory game bird species. We published a notice of availability in the Federal Register on May 31, 2013 (78 FR 32686), and our Record of Decision on July 26, 2013 (78 FR 45376). We also address NEPA compliance for waterfowl hunting frameworks through the annual preparation of separate environmental assessments, the most recent being “Duck Hunting Regulations for 2021-22,” with its corresponding March 2021, finding of no significant impact. The programmatic document, as well as the separate environmental assessment, is available on our website at https://www.fws.gov/birds/index.php.

Section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ), provides that the Secretary shall insure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat. Consequently, we conducted formal consultations to ensure that actions resulting from these regulations would not likely jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitat. Findings from these consultations are included in a biological opinion, which concluded that the regulations are not likely to jeopardize the continued existence of any endangered or threatened species. Additionally, these findings may have caused modification of some regulatory measures previously proposed, and the final frameworks (86 FR 37854; July 16, 2021) reflect any such modifications. The biological opinion is available from http://www.regulations.gov at Docket No. FWS-HQ-MB-2020-0032.

E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has reviewed this rule and has determined that this rule is significant because it will have an annual effect of $100 million or more on the economy.

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

An economic analysis was prepared for the 2021-22 season. This analysis was based on data from the 2016 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation (National Survey), the most recent year for which data are available (see discussion under Regulatory Flexibility Act, below). This analysis estimated consumer surplus for three alternatives for duck hunting (estimates for other species are not quantified due to lack of data). The alternatives are (1) issue restrictive regulations allowing fewer days than those issued during the 2019-20 season, (2) issue moderate regulations allowing more days than those in alternative 1, and (3) issue liberal regulations similar to the regulations in the 2020-21 season. For the 2020-21 season, we chose Alternative 3, with an estimated consumer surplus across all flyways of $270-$358 million with a mid-point estimate of $314 million. We also chose alternative 3 for the 2009-10 through 2020-21 seasons. The 2021-22 analysis is part of the record for this rule and is available at http://www.regulations.gov at Docket No. FWS-HQ-MB-2020-0032.

The annual migratory bird hunting regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). We analyzed the economic impacts of the annual hunting regulations on small business entities. This analysis is updated annually. The primary source of information about hunter expenditures for migratory game bird hunting is the National Survey, which is generally conducted at 5-year intervals. The 2021 analysis is based on the 2016 National Survey and the U.S. Department of Commerce's County Business Patterns, from which it is estimated that migratory bird hunters will spend approximately $2.2 billion at small businesses in 2021. The analysis is available from http://www.regulations.gov at Docket No. FWS-HQ-MB-2020-0032.

This final rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule will have an annual effect on the economy of $100 million or more. However, because this rule establishes regulations for hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).

This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has previously approved the information collection requirements associated with migratory bird surveys and the procedures for establishing annual migratory bird hunting seasons under the following OMB control numbers:

• 1018-0019, “North American Woodcock Singing Ground Survey” (expires 02/29/2024).

• 1018-0023, “Migratory Bird Surveys, 50 CFR 20.20” (expires 04/30/2023). Includes Migratory Bird Harvest Information Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and Parts Collection Survey.

• 1018-0171, “Establishment of Annual Migratory Bird Hunting Seasons, 50 CFR part 20” (expires 02/29/2024).

We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. Therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

The Department, in promulgating this rule, has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.

In accordance with E.O. 12630, this rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this rule will allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.

E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this rule is a significant regulatory action under E.O. 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated possible effects on federally recognized Indian Tribes and have determined that there are no effects on Indian trust resources. We solicited proposals for special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands for the 2021-22 migratory bird hunting season in the October 9, 2020, proposed rule (85 FR 64097). The resulting proposals were contained in a separate proposed rule published on May 4, 2021 (86 FR 23641). By virtue of these actions, we have consulted with Tribes affected by this rule.

Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. Any State or Tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with E.O. 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

The October 9, 2020, proposed rulemaking (85 FR 64097) opened the public comment period for 2021-22 migratory game bird hunting regulations. We previously addressed all comments in a July 16, 2021, Federal Register publication (86 FR 37854).

The rulemaking process for migratory game bird hunting, by its nature, operates under a time constraint as seasons must be established each year or hunting seasons remain closed. However, we intend that the public be provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act (5 U.S.C. subchapter II) requirements. Thus, when the preliminary proposed rulemaking was published, we established what we concluded were the longest periods possible for public comment and the most opportunities for public involvement. We also provided notification of our participation in multiple Flyway Council meetings, opportunities for additional public review and comment on all Flyway Council proposals for regulatory change, and opportunities for additional public review during the SRC meeting. Therefore, we conclude that sufficient public notice and opportunity for involvement have been given to affected persons.

Further, States need sufficient time to communicate these season selections to their affected publics, and to establish and publicize the necessary regulations and procedures to implement these seasons. Thus, we find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and therefore, under authority of the Migratory Bird Treaty Act (July 3, 1918), as amended (16 U.S.C. 703-711), these regulations will take effect less than 30 days after publication. Accordingly, with each conservation agency having had an opportunity to participate in selecting the hunting seasons desired for its State or Territory on those species of migratory birds for which open seasons are now prescribed, and consideration having been given to all other relevant matters presented, certain sections of title 50, chapter I, subchapter B, part 20, subpart K, are hereby amended as set forth below.

The Assistant Secretary for Fish and Wildlife and Parks approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of the Interior. Shannon Estenoz, Assistant Secretary for Fish and Wildlife and Parks, approved this document on August 10, 2021, for publication.

For the reasons set out in the preamble, title 50, chapter I, subchapter B, part 20, subpart K of the Code of Federal Regulations is amended as follows: