I. Obtaining Information and Submitting Comments A. Obtaining Information

Please refer to Docket ID NRC-2017-0031 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2017-0031.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by email to PDR.Resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents, by appointment, at the NRC's PDR, Room P1 B35, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8:00 a.m. and 4:00 p.m. (EST), Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2017-0031 in your comment submission.

NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

The NRC is requesting comments on a regulatory basis to support a proposed rule that would amend appendix B, “Quantities of licensed material requiring labeling,” to part 30 of title 10 of the Code of Federal Regulations (10 CFR), “Rules of General Applicability to Domestic Licensing of Byproduct Material,” and 10 CFR 70.25, “Financial assurance and recordkeeping for decommissioning.” The regulatory basis document is developed as a precursor to a proposed rule and describes the NRC's recommendation and considerations in amending 10 CFR parts 30 and 70. Appendix B to 10 CFR part 30 is used to determine decommissioning funding requirements for radioactive material licensed under 10 CFR parts 30 and 70.

The proposed rule would address the petition for rulemaking (PRM)-30-66, “Request of the Organization of Agreement States for the NRC to Amend Appendix B, `Quantities of Licensed Material Requiring Labeling,' ” submitted by the Organization of Agreement States (OAS) on April 14, 2017. In its petition, OAS requested that the NRC conduct a rulemaking to update appendix B to 10 CFR part 30 to include naturally occurring and accelerator-produced radioactive material radionuclides and their specific possession values. The OAS indicated that the failure to include these radionuclides in appendix B to 10 CFR part 30 has placed undue hardships on regulators and licensees with little or no radiation safety benefit, discouraged the development of new beneficial products, and negatively impacted patient care.

The specific objectives of this rulemaking effort are to (1) improve the regulatory framework for naturally occurring and accelerator-produced radioactive material by amending appendix B to 10 CFR part 30 to better align with NRC's regulatory authority over this material under the Energy Policy Act of 2005; (2) risk-inform NRC's decommissioning funding requirements by aligning the possession values in appendix B with NRC's radiation protection regulations in 10 CFR part 20, “Standards for Protection Against Radiation”; (3) clarify that only radioactive materials with half-lives greater than 120 days are subject to decommissioning financial assurance; and (4) clarify the purpose of appendix B by changing its title. To address item 3, the NRC is proposing to update appendix B using the list of radionuclides and possession values in appendix C to 10 CFR part 20, “Quantities of licensed material requiring labeling.”

The NRC held a public meeting on January 7, 2021, to discuss different approaches for updating appendix B to 10 CFR part 30. Members of the public supported updating appendix B to 10 CFR part 30, noting that a faster update to the appendix would be more beneficial than developing a new decommissioning financial assurance methodology. Information about the public meeting is available in the “Availability of Documents” section of this document.

The NRC will consider any comments received on the regulatory basis in the development of the proposed rule and will provide responses to comments in the proposed rule.

The NRC is seeking advice and recommendations from the public on the regulatory basis. We are particularly interested in comments and supporting rationale from the public on the NRC's initial assumptions regarding the qualitative and quantitative costs and benefits of the rulemaking, as well as on alternatives to the current recommended approach.

• The NRC is seeking comments on the assumptions used in developing the cost-benefit estimates. The NRC is interested in receiving information on the number of licensees affected by the rulemaking. The NRC is also interested in the effort needed to make any changes to current decommissioning funding plans or decommissioning financial assurance funding amounts, especially if an increase in decommissioning funding would be required.

• The NRC is seeking comments on possible impacts to small entities. Section 2.810, “NRC size standards,” provides specific size standards to determine whether a licensee qualifies as a small entity in its regulatory programs. The NRC is interested in the number of small entities that would be impacted by these changes, as well as the types of impacts the changes being proposed by this rulemaking would have on them.

• The NRC also is seeking comments on other benefits of the rulemaking, such as supporting advancements in science and technology, enabling uses of radioisotopes that would reduce effective doses to patients or overall costs to patients, and reducing costs to licensees who currently must develop decommissioning funding plans. Please provide quantitative information on costs and benefits, if available.

The regulatory basis recommends a rulemaking approach using information that already exists in regulations rather than creating a new methodology for determining the amount of decommissioning financial assurance. The NRC is seeking comments on any benefits to any alternative approach that might not have been considered in the NRC's assessment, as well as any suggested means to implement this approach, particularly on the categorization and funding amounts that would be appropriate.

The cumulative effects of regulation (CER) describe challenges that licensees or other impacted entities (such as State agency partners) may face while implementing new regulatory positions, programs, and requirements ( e.g., rules, generic letters, backfits, inspections). The CER is an organizational challenge that results from a licensee or impacted entity implementing a number of complex positions, programs, or requirements within a limited implementation period and with available resources (which may include limited available expertise to address a specific issue). The NRC has implemented CER enhancements to the rulemaking process to facilitate public involvement throughout the rulemaking process. Therefore, the NRC is specifically requesting comment on the cumulative effects that may result from this proposed rulemaking. In developing comments on the regulatory basis, consider the following questions:

1. In light of any current or projected CER challenges, what should be a reasonable effective date, compliance date, or submittal date(s) from the time the final rule is published to the actual implementation of any new proposed requirements, including changes to programs, procedures, and the facility?

2. If CER challenges currently exist or are expected, what should be done to address them? For example, if more time is required for implementation of the new requirements, what period of time is sufficient?

3. Do other (NRC or other agency) regulatory actions ( e.g., orders, generic communications, license amendment requests inspection findings of a generic nature) influence the implementation of the potential proposed requirements?

4. Are there unintended consequences? Does the proposed action create conditions that would be contrary to the proposed action's purpose and objectives? If so, what are the consequences, and how should they be addressed?

5. Please comment on the NRC's cost and benefit estimate of the potential proposed action. This information will be used to support additional regulatory analysis by the NRC.

The documents identified in the following table are available to interested persons as indicated.

The NRC may post materials related to this document, including public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2017-0031. In addition, the Federal rulemaking website allows members of the public to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2017-0031); (2) click the “Subscribe” link; and (3) enter an email address and click on the “Subscribe” link.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883). The NRC requests comment on this document with respect to the clarity and effectiveness of the language used.

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands the availability of RNAV routes in the National Airspace System, increases airspace capacity, and reduces complexity in high air traffic volume areas.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2022-0456; Airspace Docket No. 21-ASO-34) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-0456; Airspace Docket No. 21-ASO-34.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, issued August 10. 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this proposed rule. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action proposes to amend 14 CFR part 71 by amending Q-75 in the eastern United States. Q-75 currently extends from the ENEME, GA, WP to the COPLY, MA, WP. This action would replace the name “DUEYS, NY, Fix” with the “FARLE, NY, Fix” for safety reasons. The current DUEYS fix is located just 2.45 nautical miles from the DEEZZ, NY, Fix (which is located adjacent to, but not on, Q-75). The similar sounding pronunciation of the two Fixes can lead to pilot/air traffic controller miscommunication. The latitude/longitude coordinates of the FARLE Fix would remain the same as used for the DUEYS Fix, therefore this change would not affect the current charted alignment of Q-75. In addition, the FAA proposes to remove a number of WPs and Fixes from the description of Q-75. Because they do not denote a route turn point, they are not required to be included in the Q-75 description. However, these points will continue to be depicted on the IFR En Route charts because they are used for air traffic control purposes. The affected WPs and Fixes are: TEUFL, GA, WP; BROSK, NC, WP; DRAIK, VA, Fix; TOOBN, MD, WP; SACRI, MD, Fix; STOEN, PA, Fix; COPES, PA, Fix; BIGGY, NJ, Fix; JERSY, NJ, Fix; GREKI, CT, Fix; and SWALO, MA, Fix.

The proposed full route description of Q-75 is listed in The Proposed Amendment section, below.

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

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Section 412 of the Internal Revenue Code (Code) prescribes minimum funding requirements for defined benefit pension plans, and section 430 specifies the minimum funding requirements that apply generally to defined benefit plans that are not multiemployer plans. 1 Section 430(a) defines the minimum required contribution by reference to the plan's funding target for the plan year. Under section 430(d)(1), a plan's funding target for a plan year generally is the present value of all benefits accrued or earned under the plan as of the first day of that plan year.

Section 430(h)(3) provides rules regarding the mortality tables to be used under section 430. Under section 430(h)(3)(A), except as provided in section 430(h)(3)(C) or (D), the Secretary is to prescribe by regulation mortality tables to be used in determining any present value or making any computation under section 430. Those mortality tables are to be based on the actual mortality experience of pension plan participants and projected trends in that experience. In prescribing those mortality tables, the Secretary is required to take into account results of available independent studies of mortality of individuals covered by pension plans. Under section 430(h)(3)(B), the Secretary is required to revise any mortality table in effect under section 430(h)(3)(A) at least every 10 years to reflect actual mortality experience of pension plan participants and projected trends in that experience. Under section 430(h)(3)(C), a plan sponsor is permitted to request the Secretary's approval to use plan-specific substitute mortality tables that meet requirements specified in the statute rather than the generally applicable mortality tables. If approved, these substitute mortality tables are used to determine present values and make computations under section 430 during the period of consecutive plan years (not to exceed 10) specified in the request.

Section 430(h)(3)(D) provides for the use of separate mortality tables with respect to certain individuals who are entitled to benefits on account of disability. These separate mortality tables are permitted to be used with respect to disabled individuals in lieu of the generally applicable mortality tables provided pursuant to section 430(h)(3)(A) or the substitute mortality tables under section 430(h)(3)(C). The Secretary is to establish separate tables for individuals with disabilities occurring in plan years beginning before January 1, 1995, and for individuals with disabilities occurring in later plan years, with the mortality tables for individuals with disabilities occurring in those later plan years applying only to individuals who are disabled within the meaning of Title II of the Social Security Act.

Section 417(e)(3) generally provides that the present value of certain benefits under a qualified pension plan (including single-sum distributions) must not be less than the present value of the accrued benefit using applicable interest rates and the applicable mortality table. Section 417(e)(3)(B) defines the term “applicable mortality table” as the mortality table specified for the plan year for minimum funding purposes under section 430(h)(3)(A) (without regard to the rules for substitute mortality tables under section 430(h)(3)(C) or mortality tables for disabled individuals under section 430(h)(3)(D)), modified as appropriate by the Secretary. The modifications made by the Secretary to the section 430(h)(3)(A) mortality table to determine the section 417(e)(3)(B) applicable mortality table are not addressed in these proposed regulations. Revenue Ruling 2007-67, 2007-2 CB 1047, describes the modifications that are currently applied to determine the section 417(e)(3)(B) applicable mortality table.

Final regulations under section 430(h)(3) were published in the Federal Register on October 5, 2017 in TD 9826, 82 FR 46388 (the 2017 regulations). Section 1.430(h)(3)-1 prescribes base mortality tables and a set of mortality improvement rates, which may be reflected through the use of either generational mortality tables or static mortality tables. The generational mortality tables are a series of mortality tables, one for each year of birth, each of which fully reflects projected trends in mortality rates. The static mortality tables (which are updated annually  2 ) use a single mortality table for all years of birth to approximate the present value that would be determined using the generational mortality tables.

The mortality tables included in the 2017 regulations are based on the mortality tables included in the RP-2014 Mortality Tables Report  3 (referred to in this preamble as the RP-2014 mortality tables), which was released by the Retirement Plan Experience Committee (RPEC) of the Society of Actuaries (SOA) in October 2014 (as revised in November 2014), and a set of mortality improvement rates (the Scale MP-2016 rates) as released by RPEC. 4 In 2016, RPEC initiated a study of private-sector retirement plans in the U.S. in order to provide an update to RP-2014, and in 2019, RPEC issued the Pri-2012 Private Retirement Plans Mortality Tables Report (Pri-2012 Report). 5

In Notice 2019-67 (which provides mortality improvement rates and static mortality tables for 2021), the Treasury Department and the IRS asked for comments regarding future mortality tables under section 430(h)(3)(A). The notice identified the mortality tables in the Pri-2012 Report as a potential source for developing updated mortality tables under section 430(h)(3)(A) and requested comments regarding (1) whether there are other studies of actual mortality experience of individuals covered by pension plans and projected trends in that experience that should be considered for use in developing updated mortality tables under section 430(h)(3)(A), such as studies that examine the mortality experience of individuals covered by large public-sector pension plans, and (2) if the mortality tables in the Pri-2012 Report were to be used to develop updated mortality tables under section 430(h)(3)(A), which of the tables in that report should be used. In October 2021, RPEC published the Mortality Improvement Scale MP-2021 Report (MP-2021 Report), which is the latest update to its study on mortality improvement. 6 In response to the request for comments in Notice 2019-67, the Treasury Department and the IRS received seven comments. The comments are discussed in the Explanation of Provisions.

The standards prescribed for developing the mortality tables under 430(h)(3)(A) are the same as the standards that are prescribed for developing mortality tables for multiemployer plans under section 431(c)(6)(D)(iv)(II) (which are used to determine current liability in order to determine the minimum full funding limitation under section 431(c)(6)(B)). See § 1.431(c)(6)-1 (providing that the same mortality assumptions that apply for purposes of section 430(h)(3)(A) and § 1.430(h)(3)-1(a) are used to determine a multiemployer plan's current liability). These standards also apply for CSEC plans described in section 414(y) for purposes of developing mortality tables that are used for purposes of section 433(h)(3)(B)(i) (to determine current liability in order to determine the minimum full funding limitation under section 433(c)(2)(C) and the funded current liability percentage under section 433(i)). See § 1.433(h)(3)-1 (providing that the same mortality assumptions that apply for purposes of section 430(h)(3)(A) and § 1.430(h)(3)-1(a) are used to determine a CSEC plan's current liability).

These proposed regulations set forth the methodology that the Treasury Department and the IRS intend to use to update the generally applicable mortality tables that are used to determine present value or make any computation under section 430. Pursuant to section 417(e)(3)(B), a modified version of these updated tables would be used for purposes of determining the amount of a single-sum distribution (or another accelerated form of distribution). In addition, these tables would be used to determine current liability for multiemployer plans under section 431(c)(6) and CSEC plans under section 433(h).

The methodology for developing updated tables under section 430(h)(3)(A) is being proposed pursuant to the requirement under section 430(h)(3)(B) to revise the mortality tables used under section 430 to reflect the actual mortality experience of pension plan participants and projected trends in that experience. As under the 2017 regulations, the methodology involves the separate determination of base mortality tables and the projection of mortality improvement.

The base mortality tables proposed for use under section 430(h)(3)(A) are derived from the tables set forth in the Pri-2012 Report. After reviewing the Pri-2012 Report and comments received in response to Notice 2019-67, the Treasury Department and the IRS have determined that the experience study used to develop the Pri-2012 Report is the best available study of the actual mortality experience of pension plan participants (other than disabled individuals). Accordingly, the mortality tables in the Pri-2012 Report are the foundation for the base mortality tables used to project the mortality of pension plan participants under these proposed regulations. Like the mortality tables provided in the 2017 regulations, the mortality tables set forth in these proposed regulations are gender-distinct and provide separate non-annuitant and annuitant mortality rates.

Unlike the Pri-2012 Report, these proposed regulations do not provide separate tables for annuitants who are retirees and annuitants who are contingent beneficiaries. In response to the request for comments in Notice 2019-67, most commenters recommended against the use of separate mortality tables for retirees and contingent beneficiaries because: (1) Those separate mortality tables are complex to apply on an exact basis; (2) applying those mortality tables would require actuaries to use historical data that may be difficult to obtain; and (3) the use of those separate mortality tables would not have a significant effect in measuring a plan's liabilities. After reviewing the comments, the Treasury Department and the IRS concluded that the regulations should not provide separate mortality tables for annuitants who are retirees and annuitant who are contingent beneficiaries. Accordingly, these proposed regulations provide annuitant mortality tables that combine the mortality experience of retirees and contingent beneficiaries.

As under the 2017 regulations, these proposed regulations provide that the annuitant mortality tables are applied to determine the present value of benefits for an annuitant. For a non-annuitant, the non-annuitant mortality tables are applied for the periods before the participant is projected to commence receiving benefits, and the annuitant mortality tables are used for later periods. With respect to a beneficiary of a participant, the annuitant mortality tables apply for the period beginning with each assumed commencement of benefits for the participant. If the participant has died (or to the extent the participant is assumed to die before commencing benefits), the annuitant mortality tables apply with respect to the beneficiary for the period beginning with each assumed commencement of benefits for the beneficiary.

These proposed regulations set forth base tables that are to be used to develop the mortality tables for future years. These base tables have a base year of 2012 (the central year of the experience study used to develop the mortality tables in the Pri-2012 Report). These base tables generally have the same mortality rates as the employee and non-disabled annuitant mortality rates that were released by RPEC in connection with the Pri-2012 Report. However, these base tables also include non-annuitant mortality rates for ages below age 18 and above age 80 and annuitant mortality rates for ages below age 50. This generally is the same approach that was used to develop the base mortality tables in the 2017 regulations.

The non-annuitant mortality rates for ages above age 80 were developed by (1) using the annuitant rates from the base mortality tables for ages 90 and older, and (2) interpolating between the rates for age 80 and age 90 in order to produce a smooth transition between the age 80 rates from the non-annuitant tables to the age 90 rates from the annuitant tables. The interpolation uses increasing fractions with a denominator of 55 to allocate the total difference between the rates at ages 80 and 90 over those 10 years. Thus, the rate at age 81 is set equal to the rate at age 80 plus 1/55 of the total difference, the age 82 rate is equal to the rate at age 81 plus 2/55 of the total difference (so that the age 82 rate is equal to the rate at age 80 plus 3/55 of the total difference), and so on for other ages.

A similar approach was used to develop annuitant rates for ages below age 50 for males and 52 for females. The annuitant rates for ages under age 50 for males and 52 for females were determined by (1) using the non-annuitant rates from the base mortality tables for ages 18 to 40, and (2) interpolating between the rates for age 40 and a later age, using the same methodology described in the preceding paragraph. The later age for males was 50 and for females was 52 (requiring that a denominator of 78 be substituted for 55 when that methodology was applied for females). This method produces a smooth transition between the age 40 rates from the non-annuitant tables and the age 50 rates for males, and age 52 rates for females, from the annuitant tables. In addition, some anomalous rates for female annuitants at ages 55 and 56 in the Pri-2012 Report were smoothed by using a straight linear interpolation between the age 54 rates and the age 57 rates from the female annuitant table. For ages below age 18, both the non-annuitant and annuitant rates incorporate the juvenile rates from the Pri-2012 Report.

These proposed regulations use the Scale MP-2021 Rates (the mortality improvement scale in the MP-2021 Report) for valuation dates in the 2023 calendar year. This mortality improvement scale was developed using the same underlying methodology used to develop earlier mortality improvement scales but reflects historical population data through 2019 and the change to the RPEC-selected assumptions for the long-term rate of mortality improvement that was first incorporated in the Mortality Improvement Scale MP-2020 Report. 7 The Treasury Department and the IRS understand that RPEC expects to issue updated mortality improvement rates that reflect new data for mortality improvement trends for the general population on an annual basis. The Treasury Department and the IRS expect to take those updates into account in determining the mortality rates to be used under section 430(h)(3) for valuation dates in years after 2023. Those rates will be specified in guidance to be published in the Internal Revenue Bulletin. See § 601.601(d).

General Information

Written comments: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2021-0420, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

Due to public health concerns related to COVID-19, the EPA Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.

The EPA continues to monitor information carefully and continuously from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.

Entities potentially affected by this proposed rule include, but are not necessarily limited to, the following: State and local air pollution control agencies that adopt and implement regulations to control air emissions of VOC; and industries manufacturing and/or using HFO-1336mzz(E) for use in foam blowing, refrigeration, as well as applications in solvents and aerosol propellants, and other minor uses. Potential entities that may be affected by this action include the following:

This table is not intended to be exhaustive but rather provides a guide for readers regarding entities that might be affected by this deregulatory action. This table lists the types of entities that the EPA is now aware of that could potentially be affected to some extent by this action. Other types of entities not listed in the table could also be affected to some extent. To determine whether your entity is directly or indirectly affected by this action, you should consult your state or local air pollution control and/or air quality management agencies.

Tropospheric O 3 , commonly known as smog, is formed when VOC and nitrogen oxides (NO X ) react in the atmosphere in the presence of sunlight. Because of the harmful health effects of O 3 , the EPA and state governments limit the amount of VOC that can be released into the atmosphere. Volatile organic compounds form O 3 through atmospheric photochemical reactions, and different VOC have different levels of reactivity. That is, different VOC do not react to form O 3 at the same speed or form different amounts of O 3 . Some VOC react more slowly or form less O 3 ; therefore, changes in their emissions have limited effects on local or regional O 3 pollution episodes. It has been the EPA's policy since 1971 that certain organic compounds with a negligible level of reactivity should be excluded from the regulatory definition of VOC to focus VOC control efforts on compounds that significantly affect O 3 concentrations. The EPA also believes that exempting such compounds creates an incentive for industry to use negligibly reactive compounds in place of more highly reactive compounds that are regulated as VOC. The EPA lists compounds that it has determined to be negligibly reactive in its regulations as being excluded from the regulatory definition of VOC (40 CFR 51.100(s)).

The CAA requires the regulation of VOC for various purposes. Section 302(s) of the CAA specifies that the EPA has the authority to define the meaning of “VOC” and, hence, what compounds shall be treated as VOC for regulatory purposes. The policy of excluding negligibly reactive compounds from the regulatory definition of VOC was first laid out in the “Recommended Policy on Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977) (“1977 Recommended Policy”) and was supplemented subsequently with the “Interim Guidance on Control of Volatile Organic Compounds in Ozone State Implementation Plans” (70 FR 54046, September 13, 2005) (“2005 Interim Guidance”). The EPA uses the reactivity of ethane as the threshold for determining whether a compound has negligible reactivity. Compounds that are less reactive than, or equally reactive to, ethane under certain assumed conditions may be deemed negligibly reactive and, therefore, suitable for exemption from the regulatory definition of VOC. Compounds that are more reactive than ethane continue to be considered VOC for regulatory purposes and, therefore, are subject to control requirements. The selection of ethane as the threshold compound was based on a series of smog chamber experiments that underlay the 1977 Recommended Policy.

The EPA has used three different metrics to compare the reactivity of a specific compound to that of ethane: (i) The rate constant for reaction with the hydroxyl radical (OH) (known as k OH ); (ii) the maximum incremental reactivity (MIR) on a reactivity per unit mass basis; and (iii) the MIR expressed on a reactivity per mole basis. Differences between these three metrics are discussed below.

The k OH is the rate constant of the reaction of the compound with the OH radical in the air. This reaction is often, but not always, the first and rate-limiting step in a series of chemical reactions by which a compound breaks down in the air and contributes to O 3 formation. If this step is slow, the compound will likely not form O 3 at a very fast rate. The k OH values have long been used by the EPA as metrics of photochemical reactivity and O 3 -forming activity, and they were the basis for most of the EPA's early exemptions of negligibly reactive compounds from the regulatory definition of VOC. The k OH metric is inherently a molar-based comparison, i.e., it measures the rate at which molecules react.

The MIR, both by mole and by mass, is a more updated metric of photochemical reactivity derived from a computer-based photochemical model, and it has been used as a metric of reactivity since 1995. This metric considers the complete O 3 -forming activity of a compound over multiple hours and through multiple reaction pathways, not merely the first reaction step with OH. Further explanation of the MIR metric can be found in Carter (1994).

The EPA has considered the choice between MIRs with a molar or mass basis for the comparison to ethane in past rulemakings and guidance. In the 2005 Interim Guidance, the EPA stated:

The 2005 Interim Guidance notes that the EPA will consider a compound to be negligibly reactive if it is equally as or less reactive than ethane based on either k OH expressed on a molar basis or MIR values expressed on a mass basis (70 FR 54046).

The molar comparison of MIR is more consistent with the original smog chamber experiments, which compared equal molar concentrations of individual VOC, supporting the selection of ethane as the threshold, while the mass-based comparison of MIR is consistent with how MIR values and other reactivity metrics are applied in reactivity-based emission limits. It is, however, important to note that the mass-based comparison is less restrictive than the molar-based comparison in that more compounds would qualify as negligibly reactive.

Given the two goals of the exemption policy articulated in the 2005 Interim Guidance, the EPA believes that ethane continues to be an appropriate threshold for defining negligible reactivity. And, to encourage the use of environmentally beneficial substitutions, the EPA believes that a comparison to ethane on a mass basis strikes the right balance between a threshold that is low enough to capture compounds that significantly affect O 3 concentrations and a threshold that is high enough to exempt some compounds that may usefully substitute for more highly reactive compounds.

The 2005 Interim Guidance also noted that concerns have sometimes been raised about the potential impact of a VOC exemption on environmental endpoints other than O 3 concentrations, including fine particle formation, air toxics exposures, stratospheric O 3 depletion, and climate change. The EPA has recognized, however, that there are existing regulatory or non-regulatory programs that are specifically designed to address these issues, and the EPA continues to believe in general that the impacts of VOC exemptions on environmental endpoints other than O 3 formation can be adequately addressed by these programs. The VOC exemption policy is intended to facilitate attainment of the O 3 National Ambient Air Quality Standards (NAAQS), and VOC exemption decisions will continue to be based primarily on consideration of a compound's contribution to O 3 formation. However, if the EPA determines that a particular VOC exemption is likely to result in a significant increase in the use of a compound and that the increased use would pose a significant risk to human health or the environment that would not be addressed adequately by existing programs or policies, then the EPA may exercise its judgment accordingly in deciding whether to grant an exemption.

The Chemours Company submitted a petition to the EPA on November 30, 2016, requesting that (2E) -1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz(E); CAS number 66711-86-2) be exempted from the regulatory definition of VOC. The petition was based on the argument that HFO-1336mzz(E) has low reactivity ( i.e., 0.011 g of O 3 /g of HFO-1336mzz(E)) relative to the MIR of ethane (0.28 g O 3 /g). The petitioner indicated that HFO-1336mzz(E) may be used in a variety of applications in foam expansion or blowing agents where it has significant performance and energy-saving advantages. Chemours has developed HFO-1336mzz(E) to support reductions in emissions of greenhouse gases (GHGs). The global warming potentials GWP for HFO-1336mzz(E) are estimated as 26, 7, and 2 for time horizons of 20, 100, and 500 years, respectively as estimated by (Osterstrom et al., 2017). The World Meteorological Organization provided a 100-year GWP of 16 in its scientific assessment of O 3 depletion under the global ozone research and monitoring project. 2 Hence, HFO-1336mzz(E) can serve as a replacement for several higher global warming potential (>700 GWP) compounds for use in polyurethane rigid insulating foams, among others, many of which were removed from Significant New Alternatives Policy (SNAP) acceptable lists beginning on January 1, 2017, or January 1, 2020. The Petitioner stated that manufacturers and formulators of polyurethane foams and refrigeration equipment need access to HFO-1336mzz(E) to meet VOC limits on their products without impairing performance.

To support its petition, Chemours referenced several documents, including one peer-reviewed journal article on HFO-1336mzz(E) reaction rates (Osterstrom et al., 2017). Chemours also provided a supplemental technical report on the MIR of HFO-1336mzz(E) (Carter, 2011a). Per this report, the MIR of HFO-1336mzz(E) is 0.011 g O 3 /g HFO-1336mzz(E) on the mass-based MIR scale. This reactivity rate is much lower than that of ethane (0.28 g O 3 /g ethane). The reactivity rate k OH for the gas-phase reaction of OH radicals with HFO-1336mzz(E) (k OH ) has been measured to be 1.72 ± 0.42 × 10 − 13 centimeter (cm) 3 /molecule-seconds at ~300 degrees Kelvin (K) (Osterstrom et al., 2017). This k OH rate is lower than that of ethane (k OH of ethane = 2.4 × 10 − 13 cm 3 /molecule-sec at ~298 K) even when uncertainty is considered and, therefore, suggests that HFO-1336mzz(E) is less or equally reactive than ethane. In most cases, chemicals with high k OH values also have high MIR values, but for HFO-1336mzz(E), the products that are formed in subsequent reactions are expected to be poly fluorinated compounds, which do not contribute to O 3 formation (Osterstrom et al., 2017; Carter 2011a). Based on the current scientific understanding of tetrafluoroalkene reactions in the atmosphere, it is unlikely that the actual O 3 impact on a mass basis would equal or exceed that of ethane in the scenarios used to calculate VOC reactivity in Osterstrom et al. (2017), in line with Baasandorj et al. (2011) and Carter (2011a).

To address the potential for stratospheric O 3 impacts, the petitioner contended that, because the atmospheric lifetime of HFO-1336mzz(E) due to loss by OH reaction was estimated to be relatively short and it does not contain chlorine or bromine, it is not expected to contribute to the depletion of the stratospheric O 3 layer (Osterstrom et al., 2017; Baasandorj et al., 2011).

The EPA is proposing to respond to the petition to revise the EPA's regulatory definition of VOC for exemption of HFO-1336mzz(E). This action is based on consideration of the compound's low contribution to tropospheric O 3 and the low likelihood of risk to human health or the environment, including stratospheric O 3 depletion, toxicity, and climate change. Additional information on these topics is provided in the following sections.

As noted in studies cited by the petitioner, HFO-1336mzz(E) has a MIR value of 0.011 g O 3 /g VOC for “averaged conditions,” versus 0.28 g O 3 /g VOC for ethane (Carter, 2011). Therefore, the EPA considers HFO-1336mzz(E) to be negligibly reactive and eligible for VOC-exempt status in accordance with the Agency's long-standing policy that compounds should so qualify where either reactivity metric (k OH expressed on a molar basis or MIR expressed on a mass basis) indicates that the compound is less reactive than ethane. While the overall atmospheric reactivity of HFO-1336mzz(E) was not studied in an experimental smog chamber, the chemical mechanism derived from other chamber studies (Carter, 2011) was used to model the complete formation of O 3 for an entire single day under realistic atmospheric conditions (Carter, 2011a). Therefore, the EPA believes that the MIR value calculated in the Carter study submitted by the petitioner is reliable as it was supported by Osterstrom et al. (2017).

Table 2 presents three reactivity metrics for HFO-1336mzz(E) as they compare to ethane.

The reaction rate of HFO-1336mzz(E) with the OH radical (k OH ) has been measured to be 1.72 × 10 −13 cm 3 /molecule-sec (Osterstrom et al., 2017); other reactions with O 3 and the nitrate radical were negligibly small. The corresponding reaction rate of ethane with OH is 2.4 × 10 −13 cm 3 /molecule-sec (Atkinson et al., 2006). The data in Table 2 show that HFO-1336mzz(E) has a lower k OH value than ethane, meaning that it initially reacts slower or as fast in the atmosphere as ethane. However, the resulting unsaturated fluorinated compounds in the atmosphere are short lived and react more slowly to form O 3 (Osterstrom et al., 2017; Baasandorj et al., 2011). The mass-based MIR is 0.011 g O 3 /g VOC and much lower than that of ethane.

A molecule of HFO-1336mzz(E) is much less reactive than a molecule of ethane in terms of complete O 3 -forming activity, as shown by the molar-based MIR (g O 3 /mole VOC) values. Likewise, one gram of HFO-1336mzz(E) has a lower capacity than one gram of ethane to form O 3 in terms of a mass-based MIR. Thus, following the 2005 Interim Guidance, the EPA proposes to find HFO-1336mzz(E) to be eligible for exemption from the regulatory definition of VOC based on both the molar- and mass-based MIR.

The EPA's proposed decision to exempt HFO-1336mzz(E) from the regulatory definition of VOC is based on our findings above. However, as noted in the 2005 Interim Guidance, the EPA reserves the right to exercise its judgment in certain cases where an exemption is likely to result in a significant increase in the use of a compound and a subsequent significantly increased risk to human health or the environment. In this case, the EPA does not find that exemption of HFO-1336mzz(E) would result in an increase of risk to human health or the environment, regarding stratospheric O 3 depletion, toxicity, and climate change. Additional information on these topics is provided in the following sections.

The SNAP program is the EPA's program to evaluate and regulate substitutes for end-uses historically using O 3 -depleting chemicals. Under section 612(c) of the CAA, the EPA is required to identify and publish lists of acceptable and unacceptable substitutes for class I or class II O 3 -depleting substances. Per the SNAP program findings, the ODP of HFO-1336mzz(E) is zero. The SNAP program has listed HFO-1336mzz(E) as an acceptable substitute for a number of foam-blowing end-uses provided in 85 FR 79863, December 11, 2020 (USEPA, 2020).

HFO-1336mzz(E) is unlikely to contribute to the depletion of the stratospheric O 3 layer. The O 3 depletion potential (ODP) of HFO-1336mzz(E) is expected to be negligible based on several lines of evidence: the absence of chlorine or bromine in the compound and the atmospheric reactions described in Carter (2008). Because HFO-1336mzz(E)'s atmospheric lifetime is short relative to the time scale for mixing within the troposphere, it will decay before it has a chance to reach the stratosphere and, thus, will not participate in O 3 destruction.

Based on screening assessments of the health and environmental risks of HFO-1336mzz(E), the SNAP program anticipated that users will be able to use the compound without significantly greater health risks than presented by the use of other available substitutes for the same end uses (USEPA, 2020).

The EPA anticipates that HFO-1336mzz(E) will be used consistent with the recommendations specified in the manufacturer's safety data sheet (SDS) (Chemours, 2016). According to the SDS, potential health effects from inhalation of HFO-1336mzz(E) include skin or eye irritation or frostbite. Exposure to high concentrations of HFO-1336mzz(E) from misuse or intentional inhalation abuse may cause irregular heartbeat. In addition, HFO-1336mzz(E) could cause asphyxiation if air is displaced by vapors in a confined space. The Workplace Environmental Exposure Limit (WEEL) committee of the Occupational Alliance for Risk Science (OARS) reviewed available animal toxicity data and recommends a WEEL for the workplace of 400 parts per million (ppm) (2680 mg/m 3 )  3 time-weighted average (TWA) for an 8-hour workday, as later published in 2019 in Toxicology and Industrial Health (“Trans-1,1,1,4,4,4-hexafluoro-2-butene,” 2019). 4 This WEEL was derived based on reduced male body weight gain in the 13-week rat inhalation toxicity study (TNO, 2016a, and TNO, 2016b), based on the point of departure of NOAEL of 7500 ppm. This was also the NOAEL for the developmental toxicity study where developmental effects were only observed at maternally toxic levels. The EPA anticipates that users will be able to meet the WEEL and address potential health risks by following requirements and recommendations in the SDS and other safety precautions common to the refrigeration and air conditioning industry.

HFO-1336mzz(E) is not regulated as a hazardous air pollutant (HAP) under title I of the CAA. Also, it is not listed as a toxic chemical under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).

The Toxic Substances Control Act (TSCA) gives the EPA authority to assess and prevent potential unreasonable risks to human health and the environment before a new chemical substance is introduced into commerce. Section 5 of TSCA requires manufacturers and importers to notify the EPA before manufacturing or importing a nonexempt new chemical substance by submitting a Premanufacture Notice (PMN) prior to the manufacture (including import) of the chemical substance. Under the TSCA New Chemicals Program, the EPA then assesses whether an unreasonable risk may, or will, be presented by the expected manufacturing, processing, distribution in commerce, use, and disposal of the new substance. Based on its review of a PMN and a Significant New Use Notice (SNUN) for HFO-1336mzz(E), the EPA has determined that use of HFO-1336mzz(E) in consumer products or use other than as described in the PMN and SNUN, may cause serious chronic health effects. To address concerns identified during the PMN review of HFO-1336mzz(E), the EPA issued a Significant New Use Rule (SNUR) under TSCA on May 16, 2016, to require submission of a SNUN to the EPA at least 90 days before manufacturing or processing of HFO-1336mzz(E) for any uses in consumer products or any use other than as described in the PMN (81 FR 30451, 30462, May 16, 2016). The required notification will provide the EPA with the opportunity to evaluate the intended use before it occurs and, if necessary, to prohibit or limit that activity to protect against an unreasonable risk. The EPA received a SNUN for a significant new use of HFO-1336mzz(E) in 2017 and modified the SNUR in June 2021 based on its determination for the SNUN (86 FR 30210, 30215, June 7, 2021). 5 The EPA, therefore, believes that existing programs address the risk of toxicity associated with the use of HFO-1336mzz(E).

The EPA recognizes that both HFO-1336mmz(E) and its atmospheric breakdown product trifluoroacetic acid (TFA) are members of the broad class of compounds known as per- and poly-fluoroalkyl substances (PFAS), even though they are not among the PFAS currently listed or targeted for specific Agency action. Many PFAS are highly mobile in various media, some are volatile and can be transported long distances in air and/or in water and widely distributed in the environment. Some studies suggest that PFAS emitted to air can result in human exposures in other media such as source/surface or drinking waters even though the emissions origin may be distant from receptor water bodies. 6 Some PFAS are persistent in the environment and in the human body and can accumulate over time. There is evidence that exposure to certain PFAS can lead to adverse human health effects ( e.g., low infant birth weights, immune system effects, cancer, and thyroid disruption). Numerous states have developed health-based ( e.g., drinking water) standards for various PFAS. The Environmental Effects Assessment Panel for the Montreal Protocol (EEAP) has considered the production of TFA as a breakdown product of HFCs and HFOs and has found, “Projected future increased loadings of TFA to playas, land-locked lakes, and the oceans due to continued use of HCFCs, HFCs, and replacement products such as HFOs are still judged to present negligible risks for aquatic organisms and humans.”  7 In its most recent assessment report (2018 Assessment Report), EEAP found, “Overall, there is no new evidence that contradicts the conclusion of our previous Assessments that exposure to current and projected concentrations of salts of TFA in surface waters present a minimal risk to the health of humans and the environment.”  8

The Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report (IPCC AR5) does not provide an estimate for HFO-1336mzz(E) global warming potential (GWP). 9 The HFO-1336mzz(E) GWP on a 100-year time horizon was calculated to be 7 in 1 study by Osterstrom et al. (2017) and 32 (atmospherically well-mixed) and 14 (lifetime-adjusted) in another study by Baasandorj et al. (2018). However, the WMO (2018) calculated the 100-year GWP for HFO-1336mzz(E) as 16. Species with double bonds assembled in the Intergovernmental Panel on Climate Change Fifth Assessment Report (Table 8.A.1) indicate lower GWP than species without a double bond. However, the GWP of 14 approximated by (Baasandorj et al., 2018), and the gas-phase degradation of HFO-1336-mzz(E) is not expected to lead to a significant formation of atmospherically long-lived species. According to the SNAP rule, HFO-1336mzz(E)'s GWP of 16 is lower than those of some of the substitutes in a variety of foam blowing and refrigeration end-uses, solvents, and aerosol propellants (USEPA, 2020). HFO-1336mzz(E) was developed to replace other chemicals used for similar end-uses with GWP ranging from 1 to 1,300 such as the refrigerant 1,1,1,2-tetrafluoroethane (R-134a), among others. The petitioner claims that HFO-1336mzz(E) is a better alternative to other substitutes in foam expansion or blowing agents for use in polyurethane rigid insulating foams. Specifically, HFO-1336mzz(E) will provide significant performance and energy saving advantages and reduce climate change impacts both directly by its relatively low GWP and indirectly by decreasing energy consumption throughout the lifecycle of insulated foams in several applications.

The EPA proposes that HFO-1336mzz(E) is negligibly reactive with respect to its contribution to tropospheric O 3 formation and, thus, may be exempted from the EPA's definition of VOC in 40 CFR 51.100(s). HFO-1336mzz(E) has been listed as acceptable for use as a blowing agent in several end-uses under the SNAP program (USEPA, 2020). The EPA has also determined that exemption of HFO-1336mzz(E) from the regulatory definition of VOC will not result in an increase of risk to human health and the environment, and, to the extent that use of this compound does have impacts on other environmental endpoints, those impacts are adequately managed by existing programs. For example, HFO-1336mzz(E) has a similar or lower stratospheric O 3 depletion potential than available substitutes in those end-uses, and the toxicity risk from using HFO-1336mzz(E) is not significantly greater than the risk from using other available alternatives for the same uses. The EPA has concluded that non-tropospheric O 3 -related risks associated with potential increased use of HFO-1336mzz(E) are adequately managed by SNAP. The EPA does not expect significant use of HFO-1336mzz(E) in applications not covered by the SNAP program. To the extent that the compound is used in other applications not already reviewed under SNAP or under the New Chemicals Program under TSCA, the SNUR in place under TSCA requires that any significant new use of a chemical be reported to the EPA using a Significant New Use Notice (SNUN). Any significant new use of HFO-1336mzz(E) would, thus, need to be evaluated by the EPA, and the EPA will continually review the availability of acceptable substitute chemicals under the SNAP program.

This class of PFAS is highly varied, and variations in structure may result in (yet unknown) differences in environmental mobility and toxicity. The agency's ongoing work in PFAS is based on the recent PFAS Strategic Roadmap: EPA's Commitments to Action 2021-2024, which lays out an agenda and actions that have yet to be fully realized. Part of that plan is to better understand the environmental mobility, toxicity, and treatability of various congeners. There is much that we do not know about PFAS in general and for specific compounds. Therefore, EPA is seeking public comment on whether and how EPA should consider information on and properties of PFAS compounds beyond those properties related to the VOC exemption program and how it might impact the VOC delisting decision.

The EPA is responding to the petition by proposing to revise its regulatory definition of VOC at 40 CFR 51.100(s) to add HFO-1336mzz(E) to the list of compounds that are exempt from the regulatory definition of VOC because it is less reactive than ethane based on a comparison of mass-based MIR and molar-based MIR metrics and is, therefore, considered negligibly reactive. As a result of this action, if an entity uses or produces this compound and is subject to the EPA regulations limiting the use of VOC in a product, limiting the VOC emissions from a facility, or otherwise controlling the use of VOC for purposes related to attaining the O 3 NAAQS, this compound will not be counted as a VOC in determining whether these regulatory obligations have been met. This action would affect whether this compound is considered a VOC for state regulatory purposes to reduce O 3 formation, if a state relies on the EPA's regulatory definition of VOC. States are not obligated to exclude from control as a VOC those compounds that the EPA has found to be negligibly reactive. However, no state may take credit for controlling this compound in its O 3 control strategy. Consequently, reductions in emissions for this compound will not be considered or counted in determining whether states have met the rate of progress requirements for VOC in State Implementation Plans or in demonstrating attainment of the O 3 NAAQS.

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA. It does not contain any recordkeeping or reporting requirements.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action removes HFO-1336mzz(E) from the regulatory definition of VOC and, thereby, relieves manufacturers, distributers, and users of the compound from tropospheric O 3 requirements to control emissions of the compound.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments, or the private sector.

This action does not have federalism implications. It will 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.

This action does not have tribal implications, as specified in Executive Order 13175. This proposed rule removes HFO-1336mzz(E) from the regulatory definition of VOC and, thereby, relieves manufacturers, distributers, and users from tropospheric O 3 requirements to control emissions of the compound. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045, because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Since HFO-1336mzz(E) is utilized in specific industrial applications where children are not present and dissipates quickly ( e.g., lifetime of 22 days) with short-lived end products, there is no exposure or disproportionate risk to children. This action removes HFO-1336mzz(E) from the regulatory definition of VOC and, thereby, relieves manufacturers, distributers, and users from tropospheric O 3 requirements to control emissions of the compound.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action removes HFO-1336mzz(E) from the regulatory definition of VOC and, thereby, relieves manufacturers, distributers, and users of the compound from tropospheric O 3 requirements to control emissions of the compound.

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 District of Columbia Circuit Court within 60 days from the date the proposed action is published in the Federal Register . Filing a petition for review by the Administrator of this proposed action 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 must be filed and shall not postpone the effectiveness of such action. Thus, any petitions for review of this action related to the exemption of HFO-1336mzz(E) from the regulatory definition of VOC must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date proposed action is published in the Federal Register .

For reasons stated in the preamble, part 51 of chapter I of title 40 of the Code of Federal Regulations is proposed to be amended as follows:

I. General Information A. Does this action apply to me?

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).

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at https://www.epa.gov/dockets/comments.html.

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing receipt of pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 174 or part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

Pursuant to 40 CFR 180.7(f), summaries of the petitions that are the subject of this document, prepared by the petitioners, are included in dockets EPA has created for these rulemakings. The dockets for these petitions are available at https://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit and the corresponding docket.

PP 1F8953. (EPA-HQ-OPP-2022-0273). Danstar Ferment Ag/LALLEMAND PLANT CARE, Postsrasse 20, CH-6300 Zug, Switzerland (c/o Amy Plato Roberts, P.O. Box 990, Hailey, ID 83333), requests to amend an exemption from the requirement of a tolerance in 40 CFR 180.1120 for residues of the fungicide Streptomyces sp. strain K61 in or on all food commodities when used in accordance with label directions and good agricultural practices. The petitioner believes no analytical method is needed because it is expected that, when used as proposed, Streptomyces sp. strain K61, would not result in residues that are of toxicological concern. Contact: BPPD.

1. PP 1E8904. (EPA-HQ-OPP-2021-0387). Interregional Research Project No. 4 (IR-4), North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606, requests to amend 40 CFR part 180 by removing the tolerance for residues of the insecticide cyclaniliprole, 3-bromo- N -[2-bromo-4-chloro-6-[[(1-cyclopropylethyl)amino]carbonyl]phenyl]-1-(3-chloro-2-pyridinyl)-1 H -pyrazole-5-carboxamide, including its metabolites and degradates, in or on the raw agricultural commodity Vegetable, fruiting, group8-10 at 0.20 ppm. Contact: RD.

2. PP 1E8935. (EPA-HQ-OPP-2021-0657). Interregional Research Project #4 (IR-4), North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606, requests, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by removing established tolerances for residues of dodine in or on the raw agricultural commodities Apple at 5.0 ppm; Fruit, stone, crop group 12 at 5.0 ppm; Nuts, tree, crop group 14 at 0.3 ppm; and Pear at 5.0 ppm. Contact: RD.

3. PP 1E8957. (EPA-HQ-OPP-2022-0005). Interregional Research Project #4 (IR-4), North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606, requests to amend 40 CFR part 180 by removing the established tolerances of fomesafen, 5-2-chloro-4-(trifluoromethyl)phenoxy-N-(methylsulfonyl)-2-nitrobenzamide in or on the raw agricultural commodities: Cantaloupe at 0.025 parts per million (ppm); Cucumber at 0.025 ppm; Pepper, bell at 0.025 ppm; Pepper, non-bell at 0.025 ppm; Pumpkin at 0.025 ppm; Squash, summer at 0.025 ppm; Squash, winter at 0.025 ppm; Tomato at 0.025 ppm; and Watermelon at 0.025 ppm. Contact: RD.

4. PP 1E8980. (EPA-HQ-OPP-2022-0234). Interregional Research Project No. 4 (IR-4) North Carolina State University, 1730 Varsity Drive, Suite 210, Venture IV, Raleigh, NC 27606, proposes upon establishment of tolerances referenced in this document under “New Tolerances” for PP#1E8980, to remove existing tolerances in 40 CFR 180.666 for residues of the fungicide, fluxapyroxad, 3-(difluoromethyl)-1-methyl- N -(3′,4′,5′-trifluoro[1,1′-biphenyl]-2-yl)-1 H -pyrazole-4-carboxamide in or on Coffee, green bean 1 at 0.2 parts per million (ppm). Contact: RD.

5. PP 1E8981. (EPA-HQ-OPP-2022-0235). Interregional Research Project No. 4 (IR-4) North Carolina State University, 1730 Varsity Drive, Suite 210, Venture IV, Raleigh, NC 2760, proposes upon establishment of tolerances referenced in this document under “New Tolerances” for PP#1E8981, to remove existing tolerances in 40 CFR 180.582 for residues of the fungicide pyraclostrobin, (carbamic acid, [2-[[[ 1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy] methyl]phenyl]methoxy-, methyl ester) and its desmethoxy metabolite (methyl-N-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl] phenylcarbamate), calculated as the stoichiometric equivalent of pyraclostrobin in or on in or on Coffee, green bean at 1 0.3 parts per million (ppm). Contact: RD.

1. PP 0F8873. (EPA-HQ-OPP-2021-0422). Amoéba SA, 38 ave des Frères Montgolfier, F-69680 Chassieu, France (c/o SciReg, Inc., 12733 Director's Loop, Woodbridge, VA 22192), requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the fungicide and systemic resistance inducer Lysate of Willaertia magna C2c Maky, in or on raw agricultural commodities and processed food. The petitioner believes no analytical method is needed because it is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation. Contact: BPPD.

2. PP 1F8943. (EPA-HQ-OPP-2022-0323). Chr. Hansen, Inc., 9015 W Maple St., Milwaukee, WI 53214, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the fungicide and nematicide Bacillus paralicheniformis strain CH0273 in or on all food commodities. The petitioner believes no analytical method is needed because it is not applicable. Contact: BPPD.

3. PP 1F8944. (EPA-HQ-OPP-2022-0318). Chr. Hansen, Inc., 9015 W Maple St., Milwaukee, WI 53214, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the fungicide and nematicide Bacillus subtilis strain CH4000 in or on all food commodities. The petitioner believes no analytical method is needed because it is not applicable. Contact: BPPD.

4. PP 1G8963. (EPA-HQ-OPP-2022-0233). NewLeaf Symbiotics, Inc., 1005 North Warson Road, St. Louis, MO 63132, requests to establish a temporary exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the insecticide Methylorubrum extorquens strain NLS0042 in or on all food commodities. The petitioner believes no analytical method is needed because it is expected that, when used as proposed, Methylorubrum extorquens strain NLS0042 would not result in residues that are of toxicological concern. Contact: BPPD.

PP 2F8985. (EPA-HQ-OPP-2022-0231). Bayer CropScience LP, 800 N Lindbergh Blvd. St. Louis, MO 63167, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 174 for residues of the plant-incorporated protectants (PIP) Bacillus thuringiensis Vpb4Da2 and Brevibacillus laterosporus Mpp75Aa1.1 in or on corn. An analytical method to detect and quantify concentrations of Mpp75Aa1.1 and Vpb4Da2 proteins expressed in corn was provided with the petition. Contact: BPPD.

1. PP 0E8876. (EPA-HQ-OPP-2021-0130). Interregional Research Project No. 4 (IR-4), IR-4 Project Headquarters, Rutgers, The State University of NJ, 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to amend 40 CFR part 180 by establishing a tolerance for residues of ethalfluralin, N-ethyl-N-(2-methyl-2-propenyl)-2,6-dinitro-4-(trifluoromethyl)benzenamine in or on the raw agricultural commodity Stevia, fresh leaves at 0.05 parts per million (ppm). Adequate analytical methods for determining ethalfluralin in/on appropriate raw agricultural commodities and processed commodities have been developed and validated. Contact: RD.

2. PP 0E8882. (EPA-HQ-OPP-2021-0153). Interregional Research Project No. 4 (IR-4), IR-4 Project Headquarters, Rutgers, The State University of NJ, 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to amend 40 CFR part 180 by establishing tolerances for residues of novaluron, including its metabolites and degradates, in or on the following commodities. Compliance with the tolerance levels is to be determined by measuring only novaluron, (N-3-chloro-4-1,1,2-trifluoro-2-(trifluoromethoxy)ethoxyphenylaminocarbonyl-2,-difluorobenzamide), in or on the following raw agricultural commodities: Bean, phaseolus, forage at 15 parts per million (ppm); Cowpea forage at 15 ppm; Pea field, forage at 15 ppm; Bean phaseolus, hay at 80 ppm; Cowpea, hay at 80 ppm; and Pea, field, hay at 80 ppm. Adequate analytical methods for determining novaluron in/on appropriate raw agricultural commodities and processed commodities have been developed and validated. Contact: RD.

3. PP 1E8904. (EPA-HQ-OPP-2021-0387). Interregional Research Project No. 4 (IR-4), North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606, requests to amend 40 CFR part 180 by establishing tolerances for residues of the insecticide cyclaniliprole, 3-bromo- N -[2-bromo-4-chloro-6-[[(1-cyclopropylethyl)amino]carbonyl]phenyl]-1-(3-chloro-2-pyridinyl)-1 H -pyrazole-5-carboxamide, including its metabolites and degradates, in or on the raw agricultural commodities: Artichoke, globe at 1.5 parts per million (ppm); Sunflower subgroup 20B at 0.4 ppm; Pepper/eggplant ground 8-10B at 1.5 ppm; Tomato subgroup 8-10A at 0.6 ppm; Hog, meat at 0.01 ppm; Hog, fat at 0.015 ppm; Hog, meat byproducts at 0.015 ppm; Egg at 0.01 ppm; Poultry, meat at 0.01 ppm; Poultry, fat at 0.015 ppm; and Poultry, meat byproducts at 0.015 ppm. A practical analytical method for Cyclaniliprole and NK-1375 using Liquid Chromatography-MS/MS is available for analysis of all plant matrices. This method has been confirmed through independent laboratory validation and is available for enforcement purposes. Contact: RD.

4. PP 1E8935. (EPA-HQ-OPP-2021-0657). Interregional Research Project #4 (IR-4), North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606, requests, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing tolerances for residues of dodine, N-dodecylguanidine acetate in or on the raw agricultural commodities Fruit, pome, group 11-10 at 5 parts per million (ppm); Fruit, stone, group 12-12 at 5 ppm; Nut, tree, group 14-12 at 0.3 ppm; and Olive, with pit at 0.3 ppm.. Adequate analytical methods for determining dodine in/on appropriate raw agricultural commodities and processed commodities have been developed and validated. Contact: RD.

5. PP 1E8957. (EPA-HQ-OPP-2022-0005). Interregional Research Project #4 (IR-4), North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606, requests, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing tolerances for residues of fomesafen, 5-2-chloro-4-(trifluoromethyl)phenoxy-N-(methylsulfonyl)-2-nitrobenzamide in or on the raw agricultural commodities Vegetable, bulb, group 3-07 at 0.02 parts per million (ppm); Vegetable, cucurbit, group 9 at 0.025 ppm; Vegetable, foliage of legume, except soybean, subgroup 7A at 0.05 ppm; and Vegetable, fruiting, group 8-10 at 0.025 ppm. Adequate analytical methods for determining fomesafen in/on appropriate raw agricultural commodities and processed commodities have been developed and validated. Contact: RD.

6. PP 1E8966. (EPA-HQ-OPP-2022-0069). Interregional Research Project #4 (IR-4), North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606, requests, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing a tolerance for residues of Trinexapac-ethyl in or on the raw agricultural commodity clover, forage at 8 parts per million (ppm) and clover, hay at 15 (ppm). As a result of feeding clover that has been treated with trinexapac-ethyl to livestock, the following tolerances are proposed in livestock commodities: Cattle, fat; cattle, meat; goat, fat; goat, meat; horse, fat; horse, meat; sheep, fat; and sheep, meat at 0.03 ppm. Adequate analytical methods for determining trinexapac-ethyl in/on appropriate raw agricultural commodities and processed commodities have been developed and validated. Contact: RD.

7. PP 1E8980. (EPA-HQ-OPP-2022-0234). Interregional Research Project No. 4 (IR-4) North Carolina State University, 1730 Varsity Drive, Suite 210, Venture IV, Raleigh, NC 27606, requests to establish a tolerance in 40 CFR 180.666 for residues of the fungicide, fluxapyroxad, 3-(difluoromethyl)-1-methyl- N -(3′,4′,5′-trifluoro[1,1′-biphenyl]-2-yl)-1 H -pyrazole-4-carboxamide in or on Coffee, green bean at 0.2 parts per million (ppm), Stevia, dried leaves at 60 ppm, and Stevia, fresh leaves at 20 ppm. The Method for the Determination of BAS 700 F (Reg. No. 5094351) and its Metabolites M700F002 (Reg. No. 5435595), M700F008 (Reg. No. 5566402) and M700F048 (Reg. No. 5570265) in Plant Matrices and Processed Fractions”, Dated October 7, 2009; is used to measure and evaluate the chemical. Contact: RD.

8. PP 1E8981. (EPA-HQ-OPP-2022-0235). Interregional Research Project No. 4 (IR-4) North Carolina State University, 1730 Varsity Drive, Suite 210, Venture IV, Raleigh, NC 2760, requests to establish a tolerance in 40 CFR 180.582 for residues of the fungicide pyraclostrobin, (carbamic acid, [2-[[[ 1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy] methyl]phenyl]methoxy-, methyl ester) and its desmethoxy metabolite (methyl-N-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl] phenylcarbamate), calculated as the stoichiometric equivalent of pyraclostrobin in or on Coffee, green bean at 0.3 parts per million (ppm), Stevia, dried leaves at 150 ppm, and Stevia, fresh leaves at 40 ppm. The Method for the Determination of BAS 421 F, BAS 480 F, BAS 500 F, BF 500-3, BAS 505 F, BAS 510 F, BAS 550 F, BAS 555 F, BAS 560 F and BAS 700 F in Plant Matrices”, Dated June 2008 is used to measure and evaluate the chemical. Contact: RD.

This is a summary of the Commission's Second Further Notice of Proposed Rulemaking (Second Further Notice) in WC Docket No. 17-84, adopted March 16, 2022, released March 18, 2022. The full text of this document is available for public inspection on the Commission's website at https://www.fcc.gov/document/fcc-seeks-comment-resolving-disputes-over-pole-replacement-costs. To request materials in accessible formats for people with disabilities ( e.g., braille, large print, electronic files, audio format, etc.) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART, etc.), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY).

1. In this Second Further Notice, we seek comment on ways to eliminate or expedite the resolution of pole replacement disputes by establishing clear standards for when and how utilities and attachers must share in the costs of a pole replacement that is precipitated by a new attachment request. In the Pole Replacement Declaratory Ruling, the Bureau found that it would be contrary to the Commission's rules and policies to require a new attacher to pay the entire cost of a pole replacement when a pole already requires replacement ( e.g., because the pole is out of compliance with current safety and utility construction standards or it has been red-tagged) at the time a request for a new or modified attachment is made. According to the Bureau, even if the new attacher might benefit from that type of pole replacement, it is not “necessitated solely as a result” of the new attachment pursuant to the language in Section 1.1408(b) of our rules and therefore the utility may not impose all make-ready costs of that pole replacement on the new attacher. The Bureau based its clarification on the cost causation and cost sharing principles codified in Section 1.1408(b). We affirm the Bureau's findings in the Pole Replacement Declaratory Ruling as consistent with Section 224, the Commission's rules, and past Commission precedent.

2. On July 16, 2020, NCTA—the internet & Television Association filed a Petition asking the Commission to clarify its rules in the context of pole replacements. The record developed in response to the NCTA Petition indicates significant disagreement between utilities and attachers about when a pole replacement is not “necessitated solely” by a new attachment when the circumstances do not involve a preexisting violation or red-tagged pole. We seek comment on these more ambiguous situations and the role the Commission should take in providing further guidance regarding pole replacements. We also take this opportunity to seek comment on additional scenarios in which financial responsibility for pole replacements should be shared by attachers and utilities and how those costs should be apportioned. Additionally, we seek comment on the scope of utility liability for pole attachment rate refunds when rates are found to be unjust and unreasonable.

3. In the Pole Replacement Declaratory Ruling, the Bureau clarified, pursuant to the language in Section 1.1408(b) of our rules, that when a new attachment request precipitates a pole replacement, but the pole must also be replaced for other reasons, the pole replacement is not “necessitated solely” by the new attachment and all of the parties that benefit from the replacement must share proportionally in the cost, including utilities. Under this standard, and consistent with the 2018 Wireline Infrastructure Order, the Bureau made clear that this standard applies when the pole must be replaced due to a preexisting violation or because it has been red-tagged.

4. We seek comment on whether there are additional situations in which a pole replacement is not “necessitated solely” by a new attachment request. Is it possible for a future planned pole replacement to serve as grounds for concluding that the pole must be replaced for other reasons at the time of the new attachment request? If so, in what circumstances? For example, if the utility has already scheduled the requested pole for replacement one or two years after the new attachment request is made, could we deem that known and scheduled replacement as necessary at the time that the new attachment request is made and therefore consider the replacement of the pole to not be “necessitated solely” by the new attachment? Should the Commission codify a definition of “necessitated solely” for the purposes of Section 1.1408(b) and, if so, what should that definition be? When considering situations “necessitated solely” by a need to create capacity for a new attachment, should the term “capacity” refer to both additional space needed to accommodate the new attachment and/or the need for a stronger pole to increase loading capacity? Should the Commission codify a definition of “red-tagging” or other terminology that distinguishes between priority replacements that need to be performed immediately due to the status of a pole from non-priority replacements that may be implemented at a later time? The Commission has previously described a “red-tagged” pole as one found to be non-compliant with safety standards and placed on a utility's replacement schedule. Crown Castle argues that the Commission should employ a broader definition that includes “any pole where, based on an existing condition, the utility contends the pole must be replaced before any new attachment, or change to an existing attachment, may be made.”

5. Even if a pole replacement is necessitated for a reason other than a new attachment request, Section 1.1408(b) requires existing attachers (including the utility) to pay a proportional share of the replacement costs only if they “directly benefit” from the replacement. The Commission has previously determined that an incidental benefit is not sufficient to hold these attachers accountable for the pole replacement costs. When addressing additional circumstances to which the clarification in the Pole Replacement Declaratory Ruling should apply, if any, we ask that commenters specify whether any benefits that accrue to existing attachers are direct versus incidental and how they define those terms for the purposes of their arguments. We ask that commenters be clear about the criteria that distinguish a direct benefit from an incidental benefit and cite all economic and legal authorities that support their positions.

6. We seek comments specifically addressing whether a utility directly benefits from a pole replacement that is necessary to correct a preexisting violation that the utility did not cause. As stated in the 2018 Wireline Infrastructure Order, utilities may not hold new attachers responsible for the costs of correcting a preexisting violation. That does not necessarily mean, however, that the utility is ultimately responsible for all of the costs in all cases. Rather, the party that is responsible for the violation is responsible for the costs of correcting the violation, and the utility is authorized to seek recovery from the violating party. What are the circumstances under which existing attachers, as opposed to utilities, may be responsible for preexisting violations that require an entire pole to be replaced? In such situations, are there ways that a utility directly benefits from a pole replacement that corrects a preexisting violation within the meaning of the first two sentences of Section 1.1408(b), even if it did not cause the violation? For instance, in concluding that a utility may not hold a new attacher responsible for costs arising from the correction of safety violations caused by other attachers, the former Cable Services Bureau determined that it was up to the utility “to require other attachers to reimburse [the utility] or otherwise pay for corrections of safety violations.” In the 2018 Wireline Infrastructure Order, the Commission found that a utility may not hold a new attacher responsible for the costs of a preexisting violation caused by another attacher or delay the completion of make-ready to accommodate a new attachment while it “attempts to identify or collect from the party who should pay for correction of the preexisting violation.” In the context of pole replacements, should we construe these precedents to mean that the utility is responsible for the costs of correcting the violation vis-à-vis the new attacher, and, therefore, directly benefits when the pole replacement needed to accommodate the new attachment corrects the violation? If so, does that financial responsibility and direct benefit require the utility to share in the costs of the replacement under Section 1.1408(b)?

7. We also seek comment on how to identify and quantify the costs of a pole replacement that are proportional to the direct benefit obtained by a utility from a pole replacement that is not necessitated solely by a new attachment request. We remain committed to the long-standing principle that when “capital costs would not have been incurred `but for' the pole attachment demand . . . the attacher—the cost causer—pays for these costs.” In the context of make-ready charges for a new attachment, that includes the “direct incremental costs of making space available to the [attacher],” but excludes costs that are not required to accommodate the new attachment. Make-ready is “the modification or replacement of a utility pole, or of the lines or equipment on the utility pole, to accommodate additional facilities on the utility pole.” Make-ready charges to prepare a pole for a new attachment are “non-recurring costs for which the utility is directly compensated and as such are excluded from expenses used in the rate calculation.”

8. How should we distinguish the incremental costs attributable to the new attacher from the costs that should be attributable to utilities when a pole replacement is necessary to make space for the new attachment and for a reason that directly benefits the utility? In the context of a pole that also needs to be replaced to correct a preexisting violation or because it has been red-tagged, should the new attacher be responsible for the difference in cost between a taller or stronger pole needed to accommodate its attachment and what it would cost to replace the existing pole with one of the same type and size or strength? Is there a different way to apportion the cost of the new pole between its owner and the new attacher? How should other costs associated with pole replacements, such as the cost of transferring existing attachments to the new pole, be apportioned between the utility and new attacher? We ask that commenters submit data and documents describing and substantiating the precise costs of pole replacements in each scenario addressed above and specify the party that causes them to be incurred.

9. Finally, we seek comment on whether we should revise our cost allocation rules to modify or replace the direct benefit versus incidental benefit standard set forth in Section 1.1408(b). Is there a more equitable and efficient standard for determining when parties should share in the costs of modifying a facility? What are the costs and benefits of applying an alternate standard? We ask that commenters proposing alternate standards detail how costs would be allocated under the proposed standard's terms in real-world scenarios, specifically addressing the economic and operational impacts on the parties, including whether the standard would allow utilities to fully recover the costs of establishing additional capacity on their poles. We also ask that commenters explain whether any proposed alternate standard would promote or deter broadband deployment or the ability of utilities and attachers to successfully negotiate pole attachment agreements, including whether it would lead to an increase or decrease in pole attachment disputes.

10. Attachers have represented to the Commission that utilities often seek to hold them responsible for all costs of replacing a pole that is needed to make space for a new attachment, even if all of those costs are not needed to accommodate the new attachment ( e.g., pole upgrades, increasing capacity beyond the needs of the new attachment). While some utilities indicate that this is not the case and that new rules in this area are unnecessary, others have not denied it or have attempted to justify it with a broad interpretation of the Commission's cost causation policy, i.e., but for the new attachment request, the pole replacement would not have occurred at all, so the attacher should pay all costs of the replacement. Stated differently, some utilities contend that while implementing a pole replacement is necessitated solely by the new attachment, they should be able to enhance the pole in some way that is not necessitated by the new attachment without incurring financial responsibility for those enhancements. Attachers have also argued that utilities receive a windfall when they hold new attachers responsible for all the costs of a pole replacement because it eliminates or reduces the costs they would have otherwise had to pay to replace the pole in the future ( i.e., financial responsibility for the utility's deteriorating and aging infrastructure is shifted to the attacher). In particular, the white paper submitted by Charter's economist, Dr. Patricia Kravtin, states that “since the future replacement of the pole from the utility's perspective is `an inevitable event' that it would eventually have to pay for itself, the practice of transferring the full cost of that replacement onto new attachers (who must either pay to obtain access or choose to abandon their investment plans) results in burdens to the attaching entity far exceeding the costs they actually cause the pole owner to incur over a more meaningful time horizon.” We seek comment on the conclusions reached by Dr. Kravtin as they relate to the cost allocations and causes of pole replacements. Utilities counter that the early retirement of their poles precipitated by a new attachment comes at a cost—the value they lose in a capital asset that has not yet reached the end of its useful life—and that under the Commission's cost causation policy, they are entitled to compensation for the unrealized value of a pole that would otherwise remain in service.

11. While we acknowledge that the economic and legal arguments made by utilities could have merit, we are concerned by the frequent statements in the record that attachers are being required to absorb costs that are not caused by their attachments and/or result in attachers assuming financial responsibility for a utility's capital assets. Our concern is rooted in the potential impact on the deployment of broadband networks if the financial resources available for deployments are depleted by these costs. That said, we are keenly aware of the need to carefully examine the impact any changes to our cost allocation rules may have on the ability of utilities to fully recover the costs of expanding capacity to accommodate new attachments to avoid the unintended consequence of increased attachment denials. Section 224 does not provide the Commission with authority to require utilities to replace poles when additional capacity is needed to accommodate a new attachment. Utility commenters argue that “[i]f utilities are no longer compensated for pole replacements and can no longer control the pole replacement process, many utility pole owners will decide they can no longer economically or safely replace poles on a voluntary basis for new attachers. The `clarification' would deny new attachers access to poles that require replacement to accommodate them.”

12. To evaluate and resolve these competing concerns, we seek comment on whether the Commission should revise its pole attachment rules to expressly recognize that utilities directly benefit from pole replacements that are precipitated by a new attachment request and establish clear standards for when and how utilities should be required to pay a proportional share of the total pole replacement costs. We limit our inquiries to situations where a pole replacement is needed to accommodate a new attachment due to lack of capacity. We are aware of allegations by attachers that some utilities erroneously or disingenuously claim that an existing pole lacks capacity to accommodate a new attachment and insist that the pole must be replaced at the attacher's cost. The rules clearly prohibit such conduct by utilities, and the Commission is fully capable of adjudicating such disputes through its complaint process, and we believe that is the appropriate avenue for attachers asserting such claims to seek relief. Would clear standards on these points expedite cost dispute resolution between the parties? Or, are any disputes likely to be fact-specific and better addressed in adjudicatory proceedings? Are further cost allocation rules for pole replacements unnecessary and/or could they result in more attachment requests being denied as some utilities claim?

13. Attachers have represented to the Commission that, when a pole replacement is needed to expand capacity for a new attachment, utilities use that pole replacement as an opportunity to upgrade a pole ( e.g., increase its class or grade) or expand their own use of the pole in a manner that is unrelated to the new attachment ( e.g., expand capacity for future use by the utility itself or to rent to a different attacher). When that occurs, attachers represent that they are held accountable for the cost of upgrade/expanded use modifications made at the same time as the make-ready for their new attachments. According to NCTA, utilities insist that they are entitled to shift those costs to the new attacher because, even if the upgrade/expanded use modifications are not required to effectuate the new attachment, the utility would not have made them if a pole replacement had not been required to accommodate the new attachment. Attachers argue that, under the Commission's rules and precedent, they may not be held accountable for such costs because they are not necessitated by the new attachment. Utilities who shift the costs of upgrade/expanded use modifications to new attachers claim that, as described above, the pole replacement required to accommodate the new attachment is the “but for” cause of those modification costs. We note that some utilities have represented to the Commission that they do not hold new attachers responsible for pole upgrades that are not required by a new attachment and that new rules are unnecessary in this area.

14. We seek comment on whether utilities directly benefit when they use pole replacements precipitated by an attachment request to upgrade or enhance their poles and whether utilities should pay a proportional share of the total pole replacement costs. As an initial matter, we seek comment on whether the Commission's existing cost allocation rules and precedent require clarification on this point. Section 1.1408(b) of the Commission's rules states, in pertinent part, that “[t]he costs of modifying a facility shall be borne . . . by all parties that directly benefit from the modification,” and that each party that directly benefits from the modification shall share proportionally in its costs, but it then qualifies that language by stating, “[n]otwithstanding the foregoing, a party with a preexisting attachment to a pole . . . shall not be required to bear any of the costs of rearranging or replacing its attachment if such rearrangement or replacement is necessitated solely as a result of an additional attachment . . . sought by another party.” If a pole upgrade is necessitated at the time a pole is replaced to create capacity for a new attachment, does the text of Section 1.1408(b) allocate all costs of the pole replacement, including those for unrelated upgrade/expansion modifications, to the new attacher? Or does it merely shield other attachers, and not the utility, from bearing any upgrade costs? We note that the text of Section 1.1408(b) does not appear to include replacing a pole after receiving a modification request as an instance of “piggybacking.” The third sentence of the rule states that “[a] party with a preexisting attachment to the modified facility shall be deemed to directly benefit from a modification if, after receiving notification of such modification . . . it adds to or modifies its attachment.” While a “facility” may include a pole and a “modification” includes replacing a pole, adding to or modifying an attachment is not the same thing as installing a new, upgraded pole.

15. In the Local Competition Order, the Commission stated that an attacher is responsible for the entire cost of a new pole needed to create new capacity for its attachment “unless [other parties with attachments] expanded their own use of the facilities at the same time.” In the latter event, the other parties that expanded their own use of the facilities would need to share in the cost of the new pole. This language is broader than the text of Section 1.1408(b) of the Commission's rules. Whereas the rule text speaks to pole replacements that are “necessitated solely as a result of” the new attachment, the language in the Local Competition Order addresses situations where the pole replacement is an “opportunity” for the utility and other attachers to “expand their own use” of the new pole.

16. We seek comment on how to reconcile these cost attribution standards in the Commission's rules and precedent in the context of a utility using a pole replacement that is “necessitated solely” by a new attachment request as an opportunity to upgrade the requested pole in a manner that is not required by the new attachment. Does Section 1.1408(b) of our rules limit the cost-sharing statements in our precedent? Do the statements in our precedent establish a cost-sharing standard for a set of facts that is not contemplated by the codified rule?

17. Should the Commission address this issue by revising Section 1.1408(b) to expressly create a presumption that utilities directly benefit when they use a pole replacement precipitated by a new attachment request as an opportunity to upgrade the pole or expand it for its own use and should, therefore, pay a proportional share of the pole replacement costs? If so, what are the specific circumstances to which such a presumption would apply? Specifically, we seek comment on when an upgrade or expanded use of a pole by a utility confers an incidental versus direct benefit to a utility. For instance, NCTA and other commenters urge us to require utilities to share in the costs of a pole replacement that results in the utility obtaining excess capacity for its own use. The Commission has previously stated that, while that excess capacity may confer benefits on utilities, utilities are not under any obligation to share the future revenue they may receive due to that excess capacity, even if they did not share in the costs of the modification that created the excess capacity. Further, the Commission found that excess pole capacity could be “particularly cumbersome” if it remains unused for extended periods. Should these statements be understood to mean that the Commission has considered excess pole capacity to be an incidental benefit of a pole replacement rather than a direct benefit? Are there grounds for the Commission to conclude that excess capacity resulting from a pole replacement is a direct benefit to utilities and they should, therefore, share in the replacement costs? Are there other benefits that a utility obtains when a pole is replaced to accommodate a new attachment that the Commission should treat as incidental as opposed to direct? Or, as utilities claim, is it unnecessary to modify our rules to address cost allocation when utilities use a new attachment request that precipitates a pole replacement as an opportunity to upgrade the pole or expand it for its own use? In addressing these questions, we ask that commenters be specific with respect to how they are defining incidental and direct benefits, their economic bases for those definitions, and how they apply or do not apply to each circumstance proposed as a benefit to utilities.

18. If the Commission were to adopt the presumption described above, what would be a proportional allocation of the costs of a pole replacement that is precipitated by a new attacher and then used as an opportunity for the utility to upgrade or expand its use of the pole? What are the incremental costs of upgrading the class or grade of the taller pole being installed to accommodate the new attachment? Should the new attacher be responsible for the difference in cost between a taller pole of a same type as the existing pole and the upgraded pole, along with other typical make-ready costs of a new attachment ( e.g., the cost of transferring existing attachments to the new pole)? If not, what measure should be used? If the Commission revisits its position on the installation of excess pole capacity, should those costs be apportioned in a manner similar to when multiple attachers use an attachment request to upgrade their existing facilities, requiring expanded pole capacity, i.e., a ratio of the new space on the taller pole occupied by the new attacher to the total amount of excess capacity on the taller pole?

19. We also seek comment on whether adopting a presumption that utilities directly benefit from pole replacements precipitated by a new attachment when the utility uses the pole replacement as an opportunity to upgrade or expand its use of the pole would have a positive or negative effect on pole attachment negotiations and, relatedly, the deployment of broadband facilities. Would it facilitate and expedite successful negotiations by eliminating areas of dispute? Conversely, would it increase the frequency of pole attachment denials and delay the deployment of broadband networks due to utility concerns that they will not be fully compensated for the costs caused by the attachments? Are there potential adverse impacts for utility ratepayers? If so, would any of these adverse impacts be lessened if the Commission were to recognize specific circumstances under which the presumption could be rebutted? What would those circumstances be? What evidentiary showing would utilities need to make to substantiate that circumstances exist to rebut the presumption? Do these considerations vary based on whether the pole is located in an “unserved area,” and, if so, how should that term be defined in this context?

20. Additionally, we seek comment on how the last sentence of Section 1.1408(b) should be interpreted with respect to pole replacements. That sentence states, “If a party makes an attachment to the facility after the completion of the modification, such party shall share proportionately in the cost of the modification if such modification rendered possible the added attachment.” What time period is reasonable “after” the pole replacement occurs for the subsequent attacher to share in the costs of the pole replacement? Would any subsequent attachment to a new pole be considered “rendered possible” by the pole replacement even if it occurred a significant time later?

21. According to NCTA and other attachers, “[p]oles, like other utility infrastructure, have a finite life and require maintenance and intermittent replacement. Replacing an older pole with a new one necessarily allows the utility to defer the next scheduled replacement, including transfer of its facilities to the new pole, and reduces maintenance costs.” In NCTA's view, “where existing utility infrastructure is . . . near the end of its useful life, it is unjust and unreasonable [under Section 224(b) of the Act] for pole owners to shift the entire cost of a pole replacement to a new attacher when the pole owner itself derives the predominant financial gain, including in the form of betterment, from replacing and upgrading the pole.” Attachers argue that utilities should, therefore, be required to pay a proportional share of pole replacement costs whenever a pole is replaced to accommodate a new attachment, and irrespective of whether they have otherwise improved the pole. NCTA also argues that shifting the entire cost of a pole replacement to a new attacher is inconsistent with Section 224(f) of the Act because it discriminates against new attachers “seeking to bring broadband to an unserved area by imposing unjust and unreasonable conditions upon access.”

22. Utilities counter that the attachers' position is barred by Section 1.1408(b) of the Commission's rules, which mandates that new attachers bear the costs of pole replacements necessitated solely as a result of their new attachments. They also assert that the attachers misstate or misunderstand the process and economics of scheduling a pole for replacement. The record indicates that utilities use internal pole replacement programs to determine when a pole needs to be replaced because it is unsafe, unreliable, or unfit. These programs involve inspections scheduled at periodic intervals during which the condition of a pole is evaluated. If the pole is deemed to be in poor condition or reaching the end of its useful life—a status that utilities emphasize is distinct from a pole's age—the utility will schedule it for replacement. The timing of that replacement appears to vary based on the provisions of a particular utility's replacement program, but a pole that is deteriorating but still safe and serviceable may not be scheduled for replacement for a period of years after the inspection. For example, the POWER Coalition explains that its members conduct their inspections at8-10 year cycles and that if it is determined that a pole is not likely to remain serviceable until the next cycle ( i.e., for another 8-10 years), it will be replaced in one to two years. Utilities argue that when those pole replacements are accelerated to create capacity for new attachments, they lose the value of their capital asset that is being retired before it has reached the end of its useful life. For these reasons, utilities dispute that they obtain a benefit when a pole is replaced before the end of its useful life. Rather, they argue that requiring a new attacher to pay the costs of the pole replacement ensures that utilities are compensated for, among other things, the lost value of an asset that would otherwise remain in service for years. Some utilities have also indicated that state-level oversight of their capital budgets and spending cycles limits their flexibility to assume increased capital expenditures in a given year to accommodate communications deployments.

23. We seek additional information and documents that will better substantiate the economic, legal, and practical implications of potentially revising our rules governing cost sharing. We are particularly interested in additional information and analyses that expand the economic arguments made by utilities and attachers, including those addressing their respective economic incentives and how our rules do or do not effectively align them. We recognize that our current cost sharing rules have been interpreted to shift the financial responsibility of utilities for maintaining and replacing their capital assets to attachers, and that this shift inflates attachers' pole attachment costs. We also recognize that the ability of utilities to deny access to their poles due to insufficient capacity, together with the substantial cost to attachers having to deploy underground infrastructure in lieu of an attachment, potentially confers significant leverage to utilities that may disadvantage attachers in negotiations to obtain what they believe is an equitable allocation of pole replacement costs. Utilities counter that if they are prevented from fully realizing the value of their infrastructure assets when a new attachment request requires the early retirement of an otherwise serviceable pole, there is little incentive for them to approve the request.

24. We seek comment on whether revising our pole attachment rules to require utilities to pay some portion of the costs of replacing a pole that is necessitated solely to accommodate a new attachment would better align the economic incentives of the parties, or whether it would, as some utilities suggest, simply incent utilities to deny access to the pole in this circumstance. If we were to revise our rules on this point, what standards or formula should be used to apportion the costs between the utility, the new attacher, and any other existing attachers? Should we adopt NCTA's suggestion that new attachers be responsible for the remaining net book value of the pole being replaced, measured by the average depreciated bare pole investment derived using the Commission's pole attachment rate formula? If we were to adopt that standard, what, if any, additional costs would need to be allocated to the new and/or existing attachers to ensure that utilities are compensated for the costs of attachments to their poles? What, if any, impact would the standard proposed by NCTA have on pole attachment rates, costs borne by existing attachers other than the utilities, and utility ratepayers? The Electric Utilities argue that shifting some of the cost of pole replacements to utilities “would actually discriminate against existing attachers that have already paid the actual cost of make-ready necessary to accommodate their attachments.” According to Electric Utilities “[i]f electric utilities are bearing the vast majority of make-ready pole replacement costs, then those costs will be booked to the appropriate capital and O&M accounts (principally FERC Accounts 364 and 593), which will, in turn, lead to an increase in pole attachment rates paid by all attaching entities subject to the FCC's formulas.” Is there a different standard of cost allocation that would better balance the incentives of the parties, be administratively simple to apply, and be more amenable to utilities? Have states that regulate pole attachments adopted rules specifying how to allocate the upfront cost to replace a pole between utilities and attachers that the Commission should consider adopting or modifying for its own use?

25. We also seek comment on the relationship between the upfront costs incurred to replace a pole versus the recovery of pole replacement costs through recurring pole attachment rates. Specifically, would it be more efficient and effective to require all costs incurred to replace a pole (except where a pole replacement is solely necessitated by a new attachment) to be recovered over time through the allowance for depreciation reflected in recurring rates calculated pursuant to the Commission's pole attachment rate formulas, rather than upfront through make-ready fees? Would the utility be made whole for early replacement of a structurally sound pole through the allowance for depreciation expense reflected in recurring pole rental rates, given the use of accurate depreciation rates? Do utilities use group depreciation for poles? Do utilities' pole depreciation rates equally reflect the probability of late pole replacement, relative to average expected useful life, and the probability of early replacement, whether caused by the addition of an attachment or by some other reason? Under this approach, would the allowance reflected in recurring pole attachment rates through the application of the rate of return component of the carrying charge rate to the net cost of a bare pole, as in the Commission's rate formula, fully compensate the utility for the cost of capital used to finance the remaining undepreciated cost of a replacement pole? Pole replacement costs (other than for pole replacements solely necessitated by a new attachment) under this approach would be allocated in the same way that capital, maintenance, and administrative costs are allocated under the Commission's recurring pole attachment rate formulas. Would this approach reduce barriers to entry and at the same time send efficient pricing signals for pole investment and broadband deployment? Would this approach reduce cost allocation and rate disputes related to pole replacement? Could such an approach be used for recovery of all upfront pole replacement costs, regardless of the reason for replacement? What are the advantages and disadvantages of such an approach?

26. If we were to adopt a standard for allocating the costs of a pole replacement precipitated by a new attachment between utility and attachers, should utilities be able to contest that the allocation is sufficiently compensatory during negotiations with attachers and, if necessary, in complaint proceedings at the Commission, and what showing would be required for them to do so?

27. To help us understand the scale of the pole replacement costs at issue, we seek data from attachers for a broad sample of recent, large broadband network buildouts showing the total number of poles to which they attached and, of those poles, the number for which they paid the full cost to replace an existing pole. For each project identified, we ask that attachers specify the total non-recurring costs of the project ( i.e., costs for the physical material of the poles and any and all other assets, such as fiber and electronic equipment, and labor costs for design, engineering, and construction of the network) and the total non-recurring cost specifically for replacement poles. We ask that attachers and utilities provide information concerning the condition of the poles that were replaced and their status within the utility's pole inspection and replacement program, including any available information concerning the term of the pole's useful life. We also request that utilities provide data from their year-end 2021 accounts showing: (1) Gross pole investment; (2) accumulated pole depreciation expense; (3) accumulated deferred income taxes attributable to poles; (4) net pole investment ( i.e., gross pole investment minus accumulated depreciation expense minus accumulated deferred income taxes, a result that is equivalent to the net cost of a bare pole under the Commission's pole attachment formulas); and (5) pole investment excluded from gross pole investment (to avoid double recovery of the same pole costs through the collection of both non-recurring make-ready and recurring rental fees).

28. We seek comment on whether revising our cost sharing rules to recognize that utilities directly benefit from pole replacements needed to create capacity for new attachments and should pay a proportional share of those costs would have a positive or negative impact on the negotiation of pole attachment agreements and broadband deployment. As the Commission has previously recognized, Section 224 of the Act does not authorize us to mandate that utilities replace poles to create capacity for new attachments. We ask that commenters supporting or recommending specific cost allocation methodologies address why their favored solution will expedite pole attachment approvals without increasing denials, benefit consumers by connecting more people to broadband, and otherwise be in the public interest. We also seek comment on whether there are constraints on a utility's ability to deny attachment based on lack of capacity, such as the nondiscrimination requirement in Section 224(f)(2) of the Act. For instance, if a utility itself provides broadband, would it be discriminatory to deny attachment to another broadband provider based on lack of capacity?

29. In addition to the questions above, we seek comment on additional measures that the Commission could adopt that would enable attachers and utilities to avoid pole replacement disputes and/or quickly resolve them when they occur. For instance, ExteNet argues that the Commission should require utilities to provide potential attachers with information concerning the condition of, and replacement plans for, their poles. Would disputes concerning the need for pole replacements and associated costs be avoided if attachers had access to such information when planning their deployments? What specific data points would utilities need to provide potential attachers for such disputes to be avoided? What mechanism could utilities use to provide such information to attachers if required to do so ( e.g., an internal utility database) and what costs would be associated with establishing the mechanism(s)? Does the Commission have jurisdiction to require utilities to provide potential attachers with information concerning the status of their poles? Are there any other revisions or additions that the Commission can make to its rules that would enable parties to avoid disputes concerning pole replacements or facilitate the private resolution of those disputes? Beyond the topic of pole replacements, are there other recurring issues with the pole attachment process that hinder the ability of broadband providers to deploy new facilities? Are there other infrastructure-related barriers that broadband providers are facing in their efforts to quickly deploy broadband? What steps should the Commission take to address these and other problems that may arise, and to accelerate their resolution?

30. When pole replacement disputes cannot be avoided or resolved privately by the parties, are there additional procedures the Commission should adopt to expedite the resolution of pole attachment complaints? In November 2017, the Commission established a 180-day shot clock for the Enforcement Bureau to resolve pole access complaints. NCTA argues that the Commission should take the additional step of announcing policies favoring the placement of pole attachment complaints arising in unserved areas on the Accelerated Docket, which requires that proceedings on a complaint be concluded within 60 days. We seek comment on whether such a step is necessary given the 180-day shot clock for pole access complaints and the discretion already afforded to Commission staff to place a complaint on the Accelerated Docket if they deem it suitable. We seek comment on the specific criteria the Commission would include in a policy that would guide Commission staff on when pole attachment complaints should be placed on the Accelerated Docket. For example, should the Commission's policy take into account the number and complexity of the claims, need for discovery, need for expert affidavits, and ability of the parties to stipulate to facts? If the Commission were to adopt a policy that favors including pole attachment complaints on the Accelerated Docket, should it be limited to complaints that raise only discrete pole access issues and do not require the Commission to consider whether a rate, term, or condition of attachment is unjust or unreasonable? We also seek comment on any other procedural mechanisms that would expedite the resolution of complaints before the Commission concerning pole replacements. We also seek comment on whether there is additional clarity the Commission can provide on the scope of refunds available under the Commission's existing rules governing pole attachment complaints.

31. The Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, we seek comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

32. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities from the policies and rule changes proposed in this Second Further Notice. The Commission requests written public comment on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Second Further Notice. The Commission will send a copy of the Second Further Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Second Further Notice and IRFA (or summaries thereof) will be published in the Federal Register .

33. The Second Further Notice seeks comment on ways to eliminate or expedite the resolution of pole replacement disputes by establishing clear standards for when and how the cost causation and cost sharing requirements in Section 1.1408(b) of the Commission's rules apply to pole replacements. The Second Further Notice specifically seeks comment on situations in which a pole replacement is not “necessitated solely” by a new attachment request, whether and to what extent utilities directly benefit from various types of pole replacements, and if the Commission should establish standards for when utilities should be required to pay a proportional share of pole replacement costs. Additionally, the Second Further Notice seeks comment on whether the Commission should adopt an express presumption with regard to whether utilities directly benefit when they use pole replacements precipitated by attachment requests to upgrade or enhance their poles, as well as whether the Commission has previously embraced or rejected such a presumption. Comments are also sought regarding the circumstances in which such a presumption would apply, how relevant costs would be allocated, and whether this presumption would positively or negatively impact pole attachment negotiations and, relatedly, broadband deployment.

34. The Second Further Notice also seeks comment on the costs and benefits of early pole retirements. Specifically, when retiring a pole early to accommodate a new attachment, the Second Further Notice seeks comment on whether a revision of the Commission's pole attachment rules to require utilities to pay a portion of the costs of the pole replacement would help to align parties' economic incentives. The Second Further Notice seeks comment on whether it would be more efficient and effective to require all costs incurred to replace a structurally sound pole for reasons other than insufficient capacity to be recovered over time through the allowance for depreciation reflected in recurring rates calculated pursuant to the Commission's pole attachment rate formulas, rather than upfront through make-ready fees. It also seeks comment on whether a revision of the Commission's cost sharing rules to recognize that utilities directly benefit from pole replacements that create capacity for new attachments and should thus pay a proportional share of the costs would positively or negatively affect negotiations of pole attachment agreements and broadband deployment. The Second Further Notice seeks comment on whether the Commission should explicitly define certain key terms related to pole replacements and the rules governing them, including “necessitated solely” and “red-tagged.” Finally, the Second Further Notice seeks comment on measures the Commission could adopt to avoid disputes concerning pole replacements and expedite the resolution of complaints concerning pole replacements and provide more clarity with respect to the scope of refunds and payments that may be ordered if the Commission determines that a pole attachment rate, term, or condition is unjust and unreasonable.

35. The proposed action is authorized under Sections 1-4, 201, 202, 214, 224, 251, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-54, 201, 202, 214, 224, 251, and 303(r).

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

37. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration's (SBA) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 32.5 million businesses.

38. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

39. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 36,931 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

40. Wired Broadband internet Access Service Providers. (Wired ISPs). Providers of wired broadband internet access service include various types of providers except dial-up internet access providers. Wireline service that terminates at an end user location or mobile device and enables the end user to receive information from and/or send information to the internet at information transfer rates exceeding 200 kilobits per second (kbps) in at least one direction is classified as a broadband connection under the Commission's rules. Wired broadband internet services fall in the Wired Telecommunications Carriers industry. The SBA small business size standard for this industry classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, according to Commission data on internet access services as of December 31, 2018, nationwide there were approximately 2,700 providers of connections over 200 kbps in at least one direction using various wireline technologies. The Commission does not collect data on the number of employees for providers of these services, therefore, at this time we are not able to estimate the number of providers that would qualify as small under the SBA's small business size standard. However, in light of the general data on fixed technology service providers in the Commission's 2020 Communications Marketplace Report, we believe that the majority of wireline internet access service providers can be considered small entities.

41. Internet Service Providers (Non-Broadband). Internet access service providers using client-supplied telecommunications connections ( e.g., dial-up ISPs) as well as VoIP service providers using client-supplied telecommunications connections fall in the industry classification of All Other Telecommunications. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. For this industry, U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Consequently, under the SBA size standard a majority of firms in this industry can be considered small.

42. 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. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers.

43. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were engaged in the provision of fixed local services. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

44. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include both incumbent and competitive local exchange service providers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 5,183 providers that reported they were fixed local exchange service providers. Of these providers, the Commission estimates that 4,737 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

45. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the Commission nor the SBA have developed a small business size standard specifically for incumbent local exchange carriers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 1,227 providers that reported they were incumbent local exchange service providers. Of these providers, the Commission estimates that 929 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of incumbent local exchange carriers can be considered small entities.

46. Competitive Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include several types of competitive local exchange service providers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 3,956 providers that reported they were competitive local exchange service providers. Of these providers, the Commission estimates that 3,808 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

47. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a small business size standard specifically for Interexchange Carriers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 151 providers that reported they were engaged in the provision of interexchange services. Of these providers, the Commission estimates that 131 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of providers in this industry can be considered small entities.

48. Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The closest applicable industry with an SBA small business size standard is Wired Telecommunications Carriers. The SBA small business size standard classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 32 providers that reported they were engaged in the provision of operator services. Of these providers, the Commission estimates that all 32 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, all of these providers can be considered small entities.

49. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 115 providers that reported they were engaged in the provision of other toll services. Of these providers, the Commission estimates that 113 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

50. The broadband internet access service provider category covered by these new rules may cover multiple wireless firms and categories of regulated wireless services. Thus, to the extent the wireless services listed below are used by wireless firms for broadband internet access service, the actions may have an impact on those small businesses as set forth above and further below. In addition, for those services subject to auctions, we note that, as a general matter, the number of winning bidders that claim to qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments and transfers or reportable eligibility events, unjust enrichment issues are implicated.

51. 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 SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year. Of that number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 797 providers that reported they were engaged in the provision of wireless services. Of these providers, the Commission estimates that 715 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

52. Wireless Communications Services. Wireless Communications Services (WCS) can be used for a variety of fixed, mobile, radiolocation, and digital audio broadcasting satellite services. Wireless spectrum is made available and licensed for the provision of wireless communications services in several frequency bands subject to Part 27 of the Commission's rules. Wireless Telecommunications Carriers (except Satellite) is the closest industry with an SBA small business size standard applicable to these services. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

53. The Commission's small business size standards with respect to WCS involve eligibility for bidding credits and installment payments in the auction of licenses for the various frequency bands included in WCS. When bidding credits are adopted for the auction of licenses in WCS frequency bands, such credits may be available to several types of small businesses based average gross revenues (small, very small and entrepreneur) pursuant to the competitive bidding rules adopted in conjunction with the requirements for the auction and/or as identified in the designated entities section in Part 27 of the Commission's rules for the specific WCS frequency bands.

54. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

55. 1670-1675 MHz Services. These wireless communications services can be used for fixed and mobile uses, except aeronautical mobile. Wireless Telecommunications Carriers (except Satellite) is the closest industry with an SBA small business size standard applicable to these services. The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

56. According to Commission data as of November 2021, there were three active licenses in this service. The Commission's small business size standards with respect to 1670-1675 MHz Services involve eligibility for bidding credits and installment payments in the auction of licenses for these services. For licenses in the 1670-1675 MHz service band, a “small business” is defined as an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $40 million for the preceding three years, and a “very small business” is defined as an entity that, together with its affiliates and controlling interests, has had average annual gross revenues not exceeding $15 million for the preceding three years. The 1670-1675 MHz service band auction's winning bidder did not claim small business status.

57. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

58. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The closest applicable industry with an SBA small business size standard is Wireless Telecommunications Carriers (except Satellite). The size standard for this industry under SBA rules is that a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 407 providers that reported they were engaged in the provision of cellular, personal communications services, and specialized mobile radio services. Of these providers, the Commission estimates that 333 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

59. Broadband Personal Communications Service. The broadband personal communications services (PCS) spectrum encompasses services in the 1850-1910 and 1930-1990 MHz bands. The closest industry with an SBA small business size standard applicable to these services is Wireless Telecommunications Carriers (except Satellite). The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

60. Based on Commission data as of November 2021, there were approximately 5,060 active licenses in the Broadband PCS service. The Commission's small business size standards with respect to Broadband PCS involve eligibility for bidding credits and installment payments in the auction of licenses for these services. In auctions for these licenses, the Commission defined “small business” as an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $40 million for the preceding three years, and a “very small business” as an entity that, together with its affiliates and controlling interests, has had average annual gross revenues not exceeding $15 million for the preceding three years. Winning bidders claiming small business credits won Broadband PCS licenses in C, D, E, and F Blocks.

61. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

62. Broadband Personal Communications Service. The broadband personal communications services (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission initially defined a “small business” for C- and F-Block licenses as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For F-Block licenses, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These standards, defining “small entity” in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that claimed small business status in the first two C-Block auctions. A total of 93 bidders that claimed small business status won approximately 40% of the 1,479 licenses in the first auction for the D, E, and F Blocks. On April 15, 1999, the Commission completed the reauction of 347 C-, D-, E-, and F-Block licenses in Auction No. 22. Of the 57 winning bidders in that auction, 48 claimed small business status and won 277 licenses.

63. Specialized Mobile Radio Licenses. Special Mobile Radio (SMR) licenses allow licensees to provide land mobile communications services (other than radiolocation services) in the 800 MHz and 900 MHz spectrum bands on a commercial basis including but not limited to services used for voice and data communications, paging, and facsimile services, to individuals, Federal Government entities, and other entities licensed under Part 90 of the Commission's rules. Wireless Telecommunications Carriers (except Satellite) is the closest industry with an SBA small business size standard applicable to these services. The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 119 providers that reported they were of SMR (dispatch) providers. Of this number, the Commission estimates that all 119 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, these 119 SMR licensees can be considered small entities.

64. Based on Commission data as of December 2021, there were 3,924 active SMR licenses. However, since the Commission does not collect data on the number of employees for licensees providing SMR services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard. Nevertheless, for purposes of this analysis the Commission estimates that the majority of SMR licensees can be considered small entities using the SBA's small business size standard.

65. Lower 700 MHz Band Licenses. The lower 700 MHz band encompasses spectrum in the 698-746 MHz frequency bands. Permissible operations in these bands include flexible fixed, mobile, and broadcast uses, including mobile and other digital new broadcast operation; fixed and mobile wireless commercial services (including FDD- and TDD-based services); as well as fixed and mobile wireless uses for private, internal radio needs, two-way interactive, cellular, and mobile television broadcasting services. Wireless Telecommunications Carriers (except Satellite) is the closest industry with an SBA small business size standard applicable to licenses providing services in these bands. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

66. According to Commission data as of December 2021, there were approximately 2,824 active Lower 700 MHz Band licenses. The Commission's small business size standards with respect to Lower 700 MHz Band licensees involve eligibility for bidding credits and installment payments in the auction of licenses. For auctions of Lower 700 MHz Band licenses the Commission adopted criteria for three groups of small businesses. A very small business was defined as an entity that, together with its affiliates and controlling interests, has average annual gross revenues not exceeding $15 million for the preceding three years, a small business was defined as an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $40 million for the preceding three years, and an entrepreneur was defined as an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $3 million for the preceding three years. In auctions for Lower 700 MHz Band licenses seventy-two winning bidders claiming a small business classification won 329 licenses, twenty-six winning bidders claiming a small business classification won 214 licenses, and three winning bidders claiming a small business classification won all five auctioned licenses.

67. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

68. Upper 700 MHz Band Licenses. The upper 700 MHz band encompasses spectrum in the 746-806 MHz bands. Upper 700 MHz D Block licenses are nationwide licenses associated with the 758-763 MHz and 788-793 MHz bands. Permissible operations in these bands include flexible fixed, mobile, and broadcast uses, including mobile and other digital new broadcast operation; fixed and mobile wireless commercial services (including FDD- and TDD-based services); as well as fixed and mobile wireless uses for private, internal radio needs, two-way interactive, cellular, and mobile television broadcasting services. Wireless Telecommunications Carriers (except Satellite) is the closest industry with an SBA small business size standard applicable to licenses providing services in these bands. The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of that number, 2,837 firms employed fewer than 250 employees. Thus, under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

69. According to Commission data as of December 2021, there were approximately 152 active Upper 700 MHz Band licenses. The Commission's small business size standards with respect to Upper 700 MHz Band licensees involve eligibility for bidding credits and installment payments in the auction of licenses. For the auction of these licenses, the Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years, and a “very small business” an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. Pursuant to these definitions, three winning bidders claiming very small business status won five of the twelve available licenses.

70. Air-Ground Radiotelephone Service. Air-Ground Radiotelephone Service is a wireless service in which licensees are authorized to offer and provide radio telecommunications service for hire to subscribers in aircraft. A licensee may provide any type of air-ground service ( i.e., voice telephony, broadband internet, data, etc.) to aircraft of any type, and serve any or all aviation markets (commercial, government, and general). A licensee must provide service to aircraft and may not provide ancillary land mobile or fixed services in the 800 MHz air-ground spectrum.

71. The closest industry with an SBA small business size standard applicable to these services is Wireless Telecommunications Carriers (except Satellite). The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

72. Based on Commission data as of December 2021, there were approximately four licensees with 110 active licenses in the Air-Ground Radiotelephone Service. The Commission's small business size standards with respect to Air-Ground Radiotelephone Service involve eligibility for bidding credits and installment payments in the auction of licenses. For purposes of auctions, the Commission defined “small business” as an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $40 million for the preceding three years, and a “very small business” as an entity that, together with its affiliates and controlling interests, has had average annual gross revenues not exceeding $15 million for the preceding three years. In the auction of Air-Ground Radiotelephone Service licenses in the 800 MHz band, neither of the two winning bidders claimed small business status.

73. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, the Commission does not collect data on the number of employees for licensees providing these services therefore, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

74. 3650-3700 MHz band. Wireless broadband service licensing in the 3650-3700 MHz band provides for nationwide, non-exclusive licensing of terrestrial operations, utilizing contention-based technologies, in the 3650 MHz band ( i.e., 3650-3700 MHz). Licensees are permitted to provide services on a non-common carrier and/or on a common carrier basis. Wireless broadband services in the 3650-3700 MHz band fall in the Wireless Telecommunications Carriers (except Satellite) industry with an SBA small business size standard that classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

75. The Commission has not developed a small business size standard applicable to 3650-3700 MHz band licensees. Based on the licenses that have been granted, however, we estimate that the majority of licensees in this service are small internet Access Service Providers (ISPs). As of November 2021, Commission data shows that there were 902 active licenses in the 3650-3700 MHz band. However, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

76. Fixed Microwave Services. Fixed microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. They also include the Upper Microwave Flexible Use Service (UMFUS), Millimeter Wave Service (70/80/90 GHz), Local Multipoint Distribution Service (LMDS), the Digital Electronic Message Service (DEMS), 24 GHz Service, Multiple Address Systems (MAS), and Multichannel Video Distribution and Data Service (MVDDS), where in some bands licensees can choose between common carrier and non-common carrier status. Wireless Telecommunications Carriers (except Satellite) is the closest industry with an SBA small business size standard applicable to these services. The SBA small size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of fixed microwave service licensees can be considered small.

77. The Commission's small business size standards with respect to fixed microwave services involve eligibility for bidding credits and installment payments in the auction of licenses for the various frequency bands included in fixed microwave services. When bidding credits are adopted for the auction of licenses in fixed microwave services frequency bands, such credits may be available to several types of small businesses based average gross revenues (small, very small and entrepreneur) pursuant to the competitive bidding rules adopted in conjunction with the requirements for the auction and/or as identified in Part 101 of the Commission's rules for the specific fixed microwave services frequency bands.

78. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

79. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)). Wireless cable operators that use spectrum in the BRS often supplemented with leased channels from the EBS, provide a competitive alternative to wired cable and other multichannel video programming distributors. Wireless cable programming to subscribers resembles cable television, but instead of coaxial cable, wireless cable uses microwave channels.

80. In light of the use of wireless frequencies by BRS and EBS services, the closest industry with an SBA small business size standard applicable to these services is Wireless Telecommunications Carriers (except Satellite). The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

81. According to Commission data as December 2021, there were approximately 5,869 active BRS and EBS licenses. The Commission's small business size standards with respect to BRS involves eligibility for bidding credits and installment payments in the auction of licenses for these services. For the auction of BRS licenses, the Commission adopted criteria for three groups of small businesses. A very small business is an entity that, together with its affiliates and controlling interests, has average annual gross revenues exceed $3 million and did not exceed $15 million for the preceding three years, a small business is an entity that, together with its affiliates and controlling interests, has average gross revenues exceed $15 million and did not exceed $40 million for the preceding three years, and an entrepreneur is an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $3 million for the preceding three years. Of the ten winning bidders for BRS licenses, two bidders claiming the small business status won 4 licenses, one bidder claiming the very small business status won three licenses and two bidders claiming entrepreneur status won six licenses. One of the winning bidders claiming a small business status classification in the BRS license auction has an active licenses as of December 2021.

82. The Commission's small business size standards for EBS define a small business as an entity that, together with its affiliates, its controlling interests and the affiliates of its controlling interests, has average gross revenues that are not more than $55 million for the preceding five (5) years, and a very small business is an entity that, together with its affiliates, its controlling interests and the affiliates of its controlling interests, has average gross revenues that are not more than $20 million for the preceding five (5) years. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time we are not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

83. Satellite Telecommunications. This industry 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 SBA small business size standard for this industry classifies a business with $35 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 275 firms in this industry operated for the entire year. Of this number, 242 firms had revenue of less than $25 million. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 71 providers that reported they were engaged in the provision of satellite telecommunications services. Of these providers, the Commission estimates that approximately 48 providers have 1,500 or fewer employees. Consequently using the SBA's small business size standard, a little more than of these providers can be considered small entities.

84. All Other Telecommunications. This industry 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. Providers of internet services ( e.g. dial-up ISPs) or voice over internet protocol (VoIP) services, via client-supplied telecommunications connections are also included in this industry. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small.

85. Because Section 706 of the Act requires us to monitor the deployment of broadband using any technology, we anticipate that some broadband service providers may not provide telephone service. Accordingly, we describe below other types of firms that may provide broadband services, including cable companies, MDS providers, and utilities, among others.

86. Cable and Other Subscription Programming. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. The broadcast programming is typically narrowcast in nature ( e.g., limited format, such as news, sports, education, or youth-oriented). These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers. The SBA small business size standard for this industry classifies firms with annual receipts less than $41.5 million as small. Based on U.S. Census Bureau data for 2017, 378 firms operated in this industry during that year. Of that number, 149 firms operated with revenue of less than $25 million a year and 44 firms operated with revenue of $25 million or more. Based on this data, the Commission estimates that a majority of firms in this industry are small.

87. Cable Companies and Systems (Rate Regulation ). The Commission has developed its own small business size standard for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Based on available data, as of December 2020, there were approximately 45,308,192 basic cable video subscribers in the top Cable MSOs in the United States. Only five cable operators serving cable video subscribers in the top Cable MSOs had more than 400,000 subscribers. Accordingly, the Commission estimates that the majority of cable operators are small.

88. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, contains a size standard for small cable system operators, which classifies “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 small. As of December 2020, there were approximately 45,308,192 basic cable video subscribers in the top Cable MSOs in the United States. Accordingly, an operator serving fewer than 453,082 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, all but five of the cable operators in the Top Cable MSOs have less than 453,082 subscribers and can be considered small entities under this size standard. We note however, 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.

89. Electric Power Generators, Transmitters, and Distributors. The U.S. Census Bureau defines the utilities sector industry as comprised of “establishments, primarily engaged in generating, transmitting, and/or distributing electric power. Establishments in this industry group may perform one or more of the following activities: (1) Operate generation facilities that produce electric energy; (2) operate transmission systems that convey the electricity from the generation facility to the distribution system; and (3) operate distribution systems that convey electric power received from the generation facility or the transmission system to the final consumer.” This industry group is categorized based on fuel source and includes Hydroelectric Power Generation, Fossil Fuel Electric Power Generation, Nuclear Electric Power Generation, Solar Electric Power Generation, Wind Electric Power Generation, Geothermal Electric Power Generation, Biomass Electric Power Generation, Other Electric Power Generation, Electric Bulk Power Transmission and Control and Electric Power Distribution.

90. The SBA has established a small business size standard for each of these groups based on the number of employees which ranges from having fewer than 250 employees to having fewer than 1,000 employees. U.S. Census Bureau data for 2017 indicate that for the Electric Power Generation, Transmission and Distribution industry there were 1,693 firms that operated in this industry for the entire year. Of this number, 1,552 firms had less than 250 employees. Based on this data and the associated SBA size standards, the majority of firms in this industry can be considered small entities.

91. The Second Further Notice seeks comment on ways to effectively resolve pole replacement disputes through the establishment of standards for when and how utilities and attachers must share in the costs of a pole replacement necessitated by an attachment request. The Second Further Notice does not definitively propose any changes to the Commission's current pole attachment rules, but does request that commenters address the legal implications of any rule revisions they propose, which may include reporting, recordkeeping, and other compliance requirements. For example, the Second Further Notice seeks comment on whether the Commission has jurisdiction to require utilities to share information concerning the status of utility poles with attachers and, if so, the mechanism through which such information would be provided.

92. The Second Further Notice seeks comment on what situations exist in which a pole replacement is not “necessitated solely” by a new attachment request and whether codifying a definition of this phrase would be helpful for parties seeking to comply with Section 1.1408(b) of the Commission's rules. With respect to utility benefits, the Second Further Notice seeks comment on how to identify and quantify the costs associated with a pole replacement that are proportional to the direct benefit obtained by a utility from a replacement not necessitated solely by a new attachment request. The Second Further Notice also seeks comment on whether the Commission should revise its pole attachment rules to recognize that utilities directly benefit from pole replacements caused by new attachment requests and establish clear standards for when utilities should be required to pay a proportional share of pole replacement costs. Further, the Second Further Notice seeks comment on whether the Commission should adopt an express presumption that utilities directly benefit when they use pole replacements precipitated by an attachment request to upgrade or enhance their poles. The Commission then asks how costs should be allocated between utilities and attachers if such a presumption is adopted and whether the Commission should revise its cost sharing rules to require utilities to pay a portion of the costs of replacing a pole to create capacity for new attachments. The Commission also seeks comment on the scope of utility liability for pole attachment rate refunds when rates are found to be unjust and unreasonable. Should commenters provide compelling arguments, some or all of these proposals could be adopted. The guidance and clarity offered by these proposals would lessen the compliance impact on small utilities and attaching entities with regard to pole replacements and pole attachment rate refunds.

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

94. The Second Further Notice does not propose specific changes to the Commission's pole attachment rules, but seeks comment on whether the Commission should revise its rules to eliminate and expedite the resolution of pole replacement disputes between utilities and attachers and provide clarity with respect to the pole attachment rate refund liability for utilities. The Commission's objective in requesting this information is to determine whether it can and should establish clear standards for when and how attachers and utilities must share the costs of a pole replacement precipitated by a new attachment request. In considering the cost allocations, the Commission seeks comment on alternatives that might help smaller utilities and attaching entities. For example, it asks that when a pole needs to be replaced both to accommodate a new attachment and to correct a preexisting violation, whether the new attacher should be responsible for the difference in cost between the taller pole needed for its attachment and what it would cost to replace the existing pole with one of the same type and size. The Second Further Notice also seeks comment on what other methods of apportioning costs are available in this situation in an attempt to properly balance this burden on different types of entities. Additionally, the Second Further Notice seeks comment on the Commission recognizing an express presumption regarding whether utilities directly benefit when they use pole replacements precipitated by an attachment request to upgrade or enhance their poles. The Commission seeks comment on cost allocation alternatives related to the presumption, were it to be adopted, that could be helpful to smaller attachers and utilities. Specifically, the Second Further Notice asks whether the new attacher should be responsible for the difference in cost between a taller pole of the same type as the existing pole and the upgraded pole, along with other typical make-ready costs of a new attachment, or if another measure is more appropriate when specific parties are involved. Notably, at the conclusion of the Second Further Notice, the Commission also asks commenters recommending certain cost allocation methodologies to address why their favored solution will expedite pole attachment approvals, benefit consumers, and otherwise be in the public interest. The Commission further seeks comment on the scope of refunds available to attachers when pole attachment rates are found to be unjust and unreasonable. Information submitted in response to these requests for comment will enable the Commission to evaluate the impact that revising its cost sharing and rate refund rules would impact smaller entities.

95. None.

96. Ex Parte Rules. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, then the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with 47 CFR 1.1206(b). In proceedings governed by 47 CFR 1.49(f), or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

97. Initial Regulatory Flexibility Analysis. Pursuant to the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and actions considered in the Second Further Notice. The text of the IRFA is set forth herein. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Second Further Notice. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the Second Further Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

98. Contact Person. For further information about this proceeding, contact Michael Ray, FCC, Wireline Competition Bureau, Competition Policy Division, 45 L Street NE, Washington, DC 20554, (202) 418-0357, Michael.Ray@fcc.gov.

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

100. Accordingly, it is ordered that, pursuant to Sections 1-4, 201, and 224 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201, and 224, this Second Notice of Proposed Rulemaking is adopted .

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

In support, the Petitioner states that the proposed channel substitution would serve the public interest, since WCBB is one of only two full power stations in the market to broadcast on a VHF channel, and moving the Station to a UHF channel would improve the community's access to WCBB's Public Broadcasting Service (PBS) and other public television programming by improving indoor reception. According to Petitioner, although the proposed channel *20 facilities will result in a slight reduction in the Station's predicted population served, much of the predicted loss area is located outside the State of Maine and the vast majority is served by Petitioner's stations WMEB-TV, Orono, Maine, and WMEA-TV, Biddeford, Maine, or by other PBS member stations, WENH-TV, Durham, New Hampshire, WLED-TV, Littleton, New Hampshire, and WVTB, St. Johnsbury, Vermont. Petitioner further states that once terrain-limitations are factored into the analysis, the new loss area that would be created by the proposed substitution would contain 144 persons, which it asserts is well below the level the Commission considers de minimis in the context of considering impermissible loss of service. Since the proposed facility is located within the Canadian coordination zone, concurrence from the Canadian government must be obtained for this allotment.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 22-150; RM-11926; DA 22-403, adopted April 13, 2022, and released April 13, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

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

Members of the public should note that all ex parte contacts are prohibited from the time a notice of proposed rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in § 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a). See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

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

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule.

We particularly seek comments concerning:

(1) Reasons we should or should not remove Nelson's checker-mallow from the List of Endangered and Threatened Plants ( i.e., “delist” the species).

(2) New information on the historical and current status, range, distribution, and population size of Nelson's checker-mallow.

(3) New information on the known and potential threats to Nelson's checker-mallow.

(4) New information regarding the life history, ecology, and habitat of Nelson's checker-mallow.

(5) Current or planned activities within the geographic range of Nelson's checker-mallow that may have adverse or beneficial impacts on the species.

(6) The draft PDM plan for Nelson's checker-mallow.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”

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

If you submit information via https://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

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

Because we will consider all comments and information received during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species should remained listed as threatened, or we may conclude that the species should be reclassified from threatened to endangered.

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service's website, in addition to the Federal Register . The use of these virtual public hearings is consistent with our regulations at 50 CFR 424.16(c)(3).

A species status assessment (SSA) team prepared an SSA report for Nelson's checker-mallow. The SSA team was composed of Service biologists; the SSA team also consulted with other experts on the species. 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.

In accordance with our July 1, 1994, peer review policy (59 FR 34270; July 1, 1994), our August 22, 2016, Director's Memo on the Peer Review Process, and the Office of Management and Budget's December 16, 2004, Final Information Quality Bulletin for Peer Review (revised June 2012), we solicited independent scientific reviews of the information contained in Nelson's checker-mallow SSA report. We sent the SSA report to four independent peer reviewers and received no responses. The SSA report was also submitted to our Federal, State, municipal, Tribal, and conservation partners for scientific review. We received review from two partners, representing a Federal agency and a nonprofit conservation partner. In preparing this proposed rule, we incorporated the results of these reviews, as appropriate, into the final SSA report, which is the foundation for this proposed rule.

On February 12, 1993, we published in the Federal Register (58 FR 8235) a final rule listing Nelson's checker-mallow as a threatened species. We finalized the Recovery Plan for the Prairie Species of Western Oregon and Southwestern Washington, which includes Nelson's checker-mallow, in 2010 (Service 2010, entire). We conducted a 5-year status review in 2012 and did not recommend reclassification (Service 2012, entire). On May 7, 2018, we announced in the Federal Register (83 FR 20088) our initiation of a subsequent 5-year review for the species. We completed the status review in 2021 and therein recommended delisting the species.

Nelson's checker-mallow is an herbaceous perennial plant in the mallow family (Malvaceae). It produces 30 to 100 lavender to deep-pink flowers, arranged on an elongated, branched stalk. Plants produce short, thick, twisted rhizomes (creeping underground stems), as well as a system of fine roots extending from a taproot (a stout main root) (Service 2010, pp. F-3-F-4).

Nelson's checker-mallow is found in the Willamette Valley and the Coast Range of Oregon and Washington. It occupies a variety of prairie habitats and soil types, but is typically associated with open sites. In the Willamette Valley, the species occasionally occurs in the understory of Oregon ash ( Fraxinus latifolia ) woodlands or among woody shrubs, but more frequently occupies native prairie remnants, including those at the margins of sloughs, ditches, streams, roadsides, fence rows, drainage swales, and fallow fields (Glad et al. 1994, pp. 314-321). In the Coast Range, Nelson's checker-mallow populations typically occur in open, wet to dry meadows, in intermittent stream channels, and along margins of coniferous forests (Glad et al. 1987, pp. 259-262).

Once established, Nelson's checker-mallow plants are hardy; if plants become established at a site, they usually persist (Bartow 2020, pers. comm.). Their long taproot allows them to access subsurface water sources, and individual plants are long-lived (Dillon 2021, pers. comm.). In addition, regeneration from the taproot is possible after the above-ground and upper taproot portions of the plant have been removed (Dillon 2021, pers. comm.).

A thorough review of the taxonomy, life history, and ecology of Nelson's checker-mallow is presented in the SSA report, version 1.0 (Service 2021, entire).

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the List.

Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species, or to delist a species, is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and that the species is robust enough that it no longer meets the Act's definition of an endangered species or a threatened species. In other cases, we may discover new recovery opportunities after having finalized the recovery plan. Parties seeking to conserve the species may use these opportunities instead of methods identified in the recovery plan. Likewise, we may learn new information about the species after we finalize the recovery plan. The new information may change the extent to which existing criteria are appropriate for identifying recovery of the species. The recovery of a species is a dynamic process requiring adaptive management that may, or may not, follow all of the guidance provided in a recovery plan.

The Recovery Plan for the Prairie Species of Western Oregon and Southwestern Washington (recovery plan) divides the geographic area covered by included species into recovery zones, which provides a framework for recovering the species' historical ranges. Nelson's checker-mallow historically occupied seven recovery zones: SW Washington, Portland, Coast Range, Salem East, Salem West, Corvallis East, and Corvallis West. The following discussion provides an assessment of the species' status relative to the five delisting criteria outlined in the recovery plan.

The recovery plan specifies that the distribution of populations should reflect the extent of the species' historical geographic distribution to the extent practicable and identifies goals for a minimum number of populations and target number of plants per recovery zone, as follows: 5,000 plants in one population in the Portland recovery zone; 10,000 plants in two populations in the SW Washington, Salem East, and Corvallis East recovery zones; 15,000 plants in three populations in the Coast Range recovery zone; and 20,000 plants in four populations in the Salem West and Corvallis West recovery zones. The recovery plan further specifies that, with the exception of the Portland recovery zone, these targets may be achieved with a combination of at least two populations that number at least 2,000 individuals; and scattered independent populations must number at least 200 individuals. The rangewide delisting goal is 100,000 plants occurring in 20 populations.

Currently, a total of 334,968 individual plants are distributed across the historical range of the species. Considering only sites that meet the minimum threshold of 200 individuals required to be considered an independent population, there are 332,935 individual plants, found in 42 populations and distributed across six of the seven recovery zones.

Two recovery zones, Corvallis West and Salem West, meet both the abundance and distribution goals outlined in the recovery plan. Collectively, these two recovery zones contain 71 percent of the populations (30 populations) and 95 percent of the individual plants (313,662 plants) known to exist. A third zone, Salem East, contains 9,519 plants, occurring in three populations, essentially meeting the distribution and abundance goals of 10,000 plants distributed among two populations. Three of the remaining zones, Coast Range, Portland, and SW Washington, have the minimum number of populations but do not meet the recovery goals for abundance. The remaining zone, Corvallis East, does not have any populations that meet the minimum population threshold of 200 individual plants.

Rangewide, the abundance and distribution goal of 100,000 plants in 20 populations has been exceeded. Although the plants and populations are not distributed among recovery zones precisely as identified in the recovery plan, they are relatively well distributed throughout the historical range of the species. Therefore, we conclude that the intent of this criterion, which is to minimize extinction risk by ensuring a sufficient number and distribution of plants and populations, has been satisfied.

The recovery plan notes that the number of individuals in the population (or area of foliar cover) shall have been stable or increasing over a period of at least 15 years. Stable does not mean that the population size is static over time; over a period of 15 years, the number of individuals in the population may exhibit natural year-to-year variability, but the trend must not be declining. Populations must show evidence of reproduction by seed set or presence of seedlings.

Tracking trends for individual Nelson's checker-mallow sites and populations over time is confounded by irregular surveys and varying methodologies. However, the overall abundance of Nelson's checker-mallow has increased markedly since listing. Rangewide, the number of populations with greater than 200 plants, and the total number of plants, continues to increase. In addition, more sites have a large number of individuals than at the time of listing. At the time of listing in 1993, 19 sites had more than 100 plants, and only 5 sites had more than 1,000 plants. In 2012, 26 sites had more than 100 plants, and 4 had over 1,000 plants (Service 2012, pp. 17-19). Currently, 28 sites have more than 100 plants, and 24 sites have more than 1,000 plants (Service 2021, p. 18). These data indicate an overall positive trend since the time of listing, as well as since the 2012 5-year review. Additionally, natural reproduction is occurring on most sites and overall abundance is increasing throughout the recovery zones. Given that the number of individual plants and the number of large populations continue to demonstrate a positive trend, we conclude that this criterion has been met.

The recovery plan specifies that sites supporting populations of Nelson's checker-mallow must meet three criteria related to habitat quality and management:

1. Prairie quality. Sites supporting populations of Nelson's checker-mallow must be managed for high-quality prairie habitat, which consists of a diversity of native, non-woody plant species; low frequency of aggressive, nonnative plant species and encroaching woody species; and essential habitat elements for native pollinators.

2. Security of habitat. A substantial portion of the habitat for the populations should either be owned or managed by a government agency or private conservation organization that identifies maintenance of the species and the prairie ecosystem upon which it depends as the primary management objective for the site, or the site must be protected by a permanent or long-term conservation easement or covenant that commits present and future landowners to the conservation of the species.

3. Management, monitoring, and control of threats. Each population must be managed appropriately to ensure the maintenance or restoration of quality prairie habitat and to control threats to the species. Use of herbicides, mowing, burning, or livestock grazing in management should be implemented with appropriate methods and timing to avoid impacts to listed plant species. Management should be coordinated with adjacent landowners to minimize effects of pesticide drift, changes in hydrology, timber harvest, or road/utility maintenance. Species that may hybridize with Nelson's checker-mallow should be managed as appropriate to avoid contact with these taxa. Other potential threats relating to scientific research, overcollection, vandalism, recreational impacts, or natural herbivory/parasitism should be successfully managed so as not to significantly impair recovery of the species. Management and monitoring plans must be approved by the Service and should include standardized monitoring and performance criteria that will be used to assess the plans' effectiveness following implementation and to allow for adaptive management, as necessary. Management plans should include a focus on protecting habitat heterogeneity within protected sites and across a range of elevations and aspects to buffer the potential effects of climate change.

We can gauge the degree to which this criterion has been met by considering the management and ownership of sites that contain Nelson's checker-mallow. Of sites that have greater than 200 plants and, therefore, meet the definition of an independent population, 38 have formal management plans that address habitat quality and threats. Similarly, 26 populations are in public ownership and thus are considered protected; one additional site is owned and protected by a nongovernmental conservation organization, while 11 privately owned sites are protected by conservation easements. Four Nelson's checker-mallow sites have no protection and lack management plans. Together, these four sites account for less than 1 percent of the total number of Nelson's checker-mallow plants. That a majority of sites known to support Nelson's checker-mallow are managed in accordance with a formal management plan and are protected by virtue of ownership or conservation easement ameliorates concerns associated with the quality, security, and threat to prairie habitat. Therefore, we conclude that this recovery criterion has been met.

The recovery plan specifies that stored genetic material in the form of seeds must represent the species' geographic distribution and genetic diversity through collections across the full range of the species. Collections from large populations are particularly important as reservoirs of genetic variability within the species.

Nelson's checker-mallow seeds are currently stored at four separate repositories. The majority of stored seeds are located at the Corvallis Plant Materials Center (PMC) operated by the Natural Resources Conservation Service (NRCS) of the U.S. Department of Agriculture (USDA) in Corvallis, Oregon. Approximately 408 kilograms (900 pounds) of seeds, or about 112,500,000 seeds, are stored at this facility. Seeds in this collection were sourced primarily from production fields, which are maintained specifically to produce seed, and are used for habitat restoration, population augmentation, and out-planting throughout the range of the species. In addition, approximately 29,000 seeds are stored at the Rae Selling Berry Seed Bank at Portland State University in Portland, Oregon. This collection was sourced from Lane, Linn, Benton, Marion, Polk, Yamhill, and Tillamook Counties in Oregon, and Lewis County in Washington. A third, smaller collection of Nelson's checker-mallow seeds is held at the Miller Seed Vault, at the University of Washington's Botanical Gardens in Seattle, Washington. Approximately 705 seeds from locations in Washington are stored there. In addition to storage in these three regional repositories, a subset of seed from the Rae Selling Berry Seed Bank and the Miller Seed Vault has been sent to the National Laboratory for Genetic Resource Preservation at Colorado State University in Fort Collins, Colorado. Both the Rae Selling Berry Seed Bank and Colorado State University facility are certified by the Center for Plant Conservation. Collectively, stored seed represents the geographic range of Nelson's checker-mallow, and part of this stored seed is in Center for Plant Conservation-certified facilities. Therefore, we conclude that this criterion has been met.

The recovery plan specifies that monitoring of populations following delisting will verify the ongoing recovery of the species, provide a basis for determining whether the species should be again placed under the protection of the Act, and provide a means of assessing the continuing effectiveness of management actions.

A draft PDM plan for Nelson's checker-mallow has been developed that outlines an approach to monitoring Nelson's checker-mallow for a period of 6 years after the species is delisted. It addresses the current status of the species and provides details associated with monitoring methods and implementation, including site selection, data analysis, monitoring schedules, and reporting expectations. It also describes potential outcomes in the context of how secure the species remains after delisting. In addition, the draft PDM plan outlines roles and responsibilities and estimates associated costs. The draft PDM plan is available at Docket No. FWS-R1-ES-2021-0154 on https://www.regulations.gov for review and comment (see ADDRESSES ).

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:

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 consider these same five factors in delisting a species (50 CFR 424.11(c) and (e)).

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 species' expected response 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 we 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 review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be proposed for removal from the List of Endangered and Threatened Plants (“delisted”). However, it does 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-R1-ES-2021-0154 on https://www.regulations.gov.

To assess Nelson's checker-mallow 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 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. Throughout all of these stages, we 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.

Populations of Nelson's checker-mallow usually occupy open habitats that are free from encroachment of trees and shrubs. In the absence of disturbance to set back succession, prairie habitat is subject to woody species encroachment, gradually transitioning into shrub or woodland habitat. Periodic disturbance, such as fire or fall mowing, are necessary to maintain the open, high-light prairie habitats that Nelson's checker-mallow populations thrive in. Resilient Nelson's checker-mallow populations need a sufficient number of individuals to withstand stochastic events and disturbances. The minimum viable population size for Nelson's checker-mallow is not identified. However, the Recovery Plan specifies that independent populations should number at least 200 individuals (Service 2010, pp. IV-20) which provides a basis for evaluating population status.

For Nelson's checker-mallow to be considered viable, the species must be able to withstand catastrophic events and adapt to environmental changes. This can be achieved with a sufficient number of resilient populations distributed across its geographic range and representing the range of ecological settings in which the species is known to exist. The minimum number of populations required for Nelson's checker-mallow has not been determined. However, distribution and abundance goals laid out in the Recovery Plan (Service 2010, pp. IV-35-IV-36) and described in the Recovery Criteria section, above, provide a benchmark for evaluating the species.

At the time of listing in 1993, the primary threats to Nelson's checker-mallow were habitat loss due to land-use conversion for agriculture, competition from invasive plants, and roadside management activities. Other factors identified as potentially affecting prairie habitat were woody encroachment, hydrological alteration, recreational use, and trampling. Planned construction and expansion of a reservoir on Walker Creek (a tributary to the Nestucca River) was identified as a future threat as associated inundation would result in the loss of many plants, including the largest population of the species known to exist at the time. The listing rule (58 FR 8235; February 12, 1993) also noted the potentially negative effects of overcollection for scientific and horticultural purposes, predation by weevils, and small population size; some inadequacies in regulatory mechanisms were also identified. Subsequent to listing, climate change and hybridization were identified as potential threats to the viability of Nelson's checker-mallow.

We considered all of these threats when considering whether the species continues to warrant protection under the Act. The threat of inundation never materialized; the proposed reservoir was not constructed, given the designation of Walker Creek as part of Oregon's State Scenic Waterway program in 1992, and as part of the National Wild and Scenic Rivers program in 2019 (Oregon Department of Parks and Recreation 2021). We previously determined that overcollection does not occur to such a degree that it has a population-level effect and that regulatory mechanisms are adequately reducing the effects of threats that could act at a population scale (Service 2012, pp. 22-28). Weevil predation occasionally impacts individual plants and may locally affect some populations. However, it is seasonal in nature and unpredictable, and we did not find that it occurs at spatial and temporal scales large enough to affect the overall status of the species.

Many small populations of Nelson's checker-mallow remain distributed throughout the species' range. However, the number of large populations has increased significantly since the species was listed in 1993. Based on our assessment, presently 24 sites have more than 1,000 plants. This represents a significant improvement relative to the time of listing, when only five sites had more than 1,000 plants (Service 2012, pp. 17-19). Therefore, we conclude that small population size no longer puts the species at risk of extinction. The potential for hybridization among species of the same genus remains present. However, we found that the best available data indicates that hybridization does not pose a threat to the overall status of the species. Additional discussion of these threats is available in the recovery plan (Service 2010, pp. II-30-II-31; chapter III entire) and in the 2012 5-year review (Service 2012, pp. 22-28).

The stressors identified as having a population-level effects, and therefore included in our assessment of current and future condition, are habitat-related stressors and climate change. The loss, degradation, and fragmentation of prairie habitats have cascading effects that result in smaller population sizes, loss of genetic diversity, reduced gene flow among populations, destruction of population structure, and increased susceptibility to local population extirpation caused by environmental catastrophes. Collectively, this contributes to reduced viability through reductions in resiliency, redundancy, and representation. Climate change acts primarily through changes in habitat quality. The discussion below details the causes and consequences of these stressors on Nelson's checker-mallow.

Change in community structure due to plant succession has been a serious long-term stressor to Nelson's checker-mallow. Habitats occupied by this species contain native grassland species, as well as numerous introduced taxa, and are prone to transition to a later seral stage of vegetative development. The natural transition of prairie to forest in the absence of disturbance such as fire can lead to the loss of Nelson's checker-mallow sites (Service 2012, p. 24). However, active management of habitat through mowing and prescribed burning is effective in reducing Nelson's checker-mallow's exposure to this stressor.

Agricultural and urban development has modified and destroyed prairie habitats, resulting in fragmented, widely distributed patches (Service 2012, p. 24). Urban development in particular results in permanent loss of habitat and is of special concern where existing prairie habitat exists adjacent to urban areas (Service 2010, p. III-2). The greatest habitat losses due to land conversion are historical, although periodic additional losses of habitat on private lands may occur. Exposure of Nelson's checker-mallow populations to this stressor is mitigated by protections associated with public land ownership, conservation measures described later in this document, and State regulations requiring mitigation and restoration of degraded habitat.

Habitats occupied by Nelson's checker-mallow contain a mix of native and nonnative species. As described above, alteration of disturbance processes results in woody encroachment of prairie habitats. Nonnative woody species have been of particular concern, as they can rapidly proliferate and degrade open prairie sites (Service 2012, p. 24). In addition, nonnative, thatch-forming grasses may effectively limit recruitment (Institute for Applied Ecology (IAE) 2017, p. 1). Although invasion by nonnative plants remains a primary stressor to Nelson's checker-mallow populations, management practices including mowing, burning, and shrub removal are an effective approach to mediating these effects.

In the Pacific Northwest, temperature increases of 3 to 6 degrees Celsius (°C) (5.4 to 10.8 degrees Fahrenheit (°F)) are predicted by the end of the 21st century (Bachelet et al. 2011, p. 414). Although winter precipitation is predicted to increase, increased summer temperatures are expected to cause increased evapotranspiration, resulting in reduced growing season soil moisture (Bachelet et al. 2011, p. 414) and ultimately affecting prairie habitat quality. Detailed quantitative estimates of the effects of these conditions on Nelson's checker-mallow populations are not available. However, vulnerability assessments show the species to be moderately vulnerable to the effects of climate change when simulations from four “bookend” global circulation models and three emission scenarios are aggregated (Steel et al. 2011, p. 91).

In order for the species to be resilient to changing environmental conditions and remain viable into the future, maintenance of large populations in heterogenous habitats across the range of the species is required (Service 2010, p. IV-6). Management activities that maintain open prairie habitats, including mowing, burning, and shrub removal, have resulted in an increase in the number of large populations throughout the range of the species. As described below, the majority of Nelson's checker-mallow sites are managed in accordance with conservation programs that ensure maintenance of prairie conditions and promote the existence of viable Nelson's checker-mallow populations into the future.

Despite permanent habitat loss and modification, habitat restoration and protection projects have been implemented on both public and private lands throughout the range of Nelson's checker-mallow. These projects offset some of the permanent habitat losses and, as a result, Nelson's checker-mallow habitat is increasing (Bartow 2020, pers. comm.). The Wetland Reserve Program and other Farm Bill programs administered by the USDA's NRCS have been widely implemented in the Willamette Valley. Other programs, such as the Service's Partners for Fish and Wildlife program and the Act's section 10 programs ( i.e., safe harbor agreements and habitat conservation plans), are also available to landowners. These programs are focused on habitat restoration and protection and have contributed significantly to improving the status of Nelson's checker-mallow. These gains are particularly evident in the Corvallis West and Salem West recovery zones.

Rangewide, the majority of sites known to support Nelson's checker-mallow benefit from some type of conservation measure, by virtue of ownership and/or habitat management agreements. These conservation measures offer benefits to the species well into the future. For instance, of 66 sites, 44 are owned by a public entity, which offers indefinite protection from prairie habitat conversion to other uses. Fifty-seven sites are managed in accordance with the conservation programs described above, which ensure maintenance of prairie conditions required by Nelson's checker-mallow. The terms of these agreements vary, but they are typically valid for 10 to 30 years, with some extending into perpetuity. Collectively, these management regimes ensure habitat protections at a decades-long scale for most sites.

We assessed the current condition of Nelson's checker-mallow by using the best available information to estimate resiliency, redundancy, and representation. We sourced data for this analysis primarily from the Threatened and Endangered Plant Geodatabase (version 12/31/2019), developed by the Institute for Applied Ecology under a cooperative agreement with the Service for the purposes of tracking the status of species listed under the Act in the Willamette Valley. Additional data were compiled from supplementary reports (IAE 2019), location-specific records, and other information in our files. We use the term “site” rather than “population” to refer to our analytical units throughout our current and future conditions analyses to avoid confusion; the recovery plan defines an independent population as one that contains more than 200 individual plants, but we evaluated sites of all sizes.

Resiliency, the ability of populations to withstand stochastic events, is commonly determined as a function of metrics such as population size, growth rate, or habitat quality and quantity. We evaluated the current resiliency of Nelson's checker-mallow populations on the basis of abundance, as well as measurable habitat characteristics that represent the habitat-related stressors discussed above. The four specific metrics we included in our assessment of population resiliency (abundance, prairie habitat condition, site management, and site protection) are discussed in more detail below. A complete description of our analytical approach to current conditions is available in the SSA report. Abundance was scored based upon the total number of plants within a site, based on the most recent survey. Sites were scored as 1 (Low: Fewer than 200 plants), 2 (Moderate: 200-1,999 plants), or 3 (High: Equal to or more than 2,000 plants). These categorical thresholds correspond to recovery goals, which state that recovery targets may be achieved with a combination of at least two populations that number at least 2,000 individuals and that scattered independent populations must number at least 200 individuals.

Prairie habitat condition is a measure of overall habitat quality and was calculated using four distinct habitat metrics that are likely to influence population resiliency: Percent woody cover, percent native cover, native plant richness (number of unique species present), and invasive plant cover. For each site where data on these criteria are available, we assigned a score of 1 (Poor), 2 (Fair), or 3 (Good) for each habitat metric. We then determined overall prairie habitat condition for each site by averaging individual habitat metric scores. Additional detail about scoring categories for each individual metric is available in the SSA report.

Site management reflects the potential for prairie habitat degradation due to natural succession in the absence of natural and anthropogenic disturbance regimes. Site management may also be influential in mediating the effects of climate change through the maintenance of large populations in heterogenous habitats, and distributed across the range of the species. To account for existing site management that serves to offset these stressors, we assigned each site a score of 1 (Poor: Not managed for prairie conditions or unknown), 2 (Fair: Generally managed for prairie conditions but no management plan in place), or 3 (Good: Managed for prairie conditions with a management plan in place).

Site protection is a measure of the potential for losing Nelson's checker-mallow sites to agricultural and urban development. We used site ownership and the existence of conservation agreements to assess how well each site is protected from development, assigning each site a score of 1 (Poor: Private ownership with no conservation easement or similar program), 2 (Fair: Private ownership with conservation easement or similar program), or 3 (Good: Public ownership or private conservation organization ownership).

To estimate resiliency for each site, we calculated a condition score by averaging the scores for abundance, mean prairie habitat condition, site management, and site protection. We weighted management twice as much as the other factors due to its relative importance to long-term population resiliency (Service 2010, p. IV-5). Based on overall scores, current condition of each site was classified as high (score of greater than or equal to 2.5), moderate (score of 1.75-2.49), or low (score of less than 1.75).

Currently, we know of 66 sites containing Nelson's checker-mallow. Thirty-one of these sites (47 percent) are in high condition, while 29 of them (44 percent) are in moderate condition. Rangewide, only 6 sites (9 percent) are in low condition. These results demonstrate relatively high resiliency across the range of Nelson's checker-mallow.

Redundancy is defined as a species' ability to withstand catastrophic events and is determined as a function of the number of populations, as well as their distribution and connectivity. The historical distribution of populations of Nelson's checker-mallow is largely unknown. Throughout its range, Nelson's checker-mallow is restricted to remnant prairie habitats that are highly fragmented due to a history of land conversion and natural succession following alterations to disturbance cycles. However, since the time of listing, habitat restoration, reintroductions, and habitat protection have collectively improved the status of the species. Among the 66 known sites, 334,968 plants are distributed across six of the seven recovery zones, demonstrating overall good redundancy.

Representation refers to the ability of a species to adapt to change, and is based upon considerations of geographic, genetic, ecological, and niche diversity. Because we lack information about the genetic diversity of the species, we rely on geographical and ecological diversity in our assessment of representation. Populations of Nelson's checker-mallow are currently distributed in six of the seven recovery zones and occur in both the Willamette Valley and in the Coast Range. The species occupies a range of prairie sites with various soil textures and moisture levels and occurs in a wide range of plant communities including meadows, marshes, wetlands, riparian/tree shrub forests, and disturbed areas. This indicates that the species has the capacity to adapt to a variety of environmental conditions and has good representation.

To assess the future viability of Nelson's checker-mallow, we considered the factors that will influence the species in the foreseeable future. We define the foreseeable future as 25 to 50 years. This interval was chosen because it encompasses the length of time over which we conclude we can make reliable predictions about the anticipated effect of climate change. In addition, this period of time is sufficient to observe population trends for the species, based on its life-history characteristics. It also captures the terms of many of the management plans and conservation easements that are in effect at Nelson's checker-mallow sites.

We determined that, in the future, Nelson's checker-mallow will continue to be influenced by the factors that have historically influenced and are currently influencing the species, albeit at different relative rates. Therefore, in our analysis of future viability, we considered habitat-related changes and climate change. We considered the specific sources of habitat loss, degradation, and fragmentation (alteration of natural and human-mediated disturbance processes, habitat conversion to agricultural and urban use, and invasion by nonnative plants) in light of ongoing conservation support, including habitat management and site protection.

We make several assumptions about ongoing conservation support in the foreseeable future. Support for the conservation of Nelson's checker-mallow has been high among government agencies, nongovernmental conservation organizations, and some private landowners. We assume that priority recovery and management actions for the species will continue at approximately the current pace and that the species will continue to benefit from this ongoing conservation support. We base this assumption on the inclusion of Nelson's checker-mallow in a recovery plan that includes several other listed plants and insects, and that emphasizes restoration and maintenance of prairie habitat for the benefit of numerous species.

Management of existing sites for the restoration or maintenance of open prairie conditions is expected to continue. All of the protected sites have some level of management plan. These management plans vary in scope and complexity across ownerships, but all provide at least a basic level of habitat management that will benefit Nelson's checker-mallow. We anticipate that efforts to formalize new management plans where they do not currently exist, and to update existing management plans in response to changing conditions, will continue. Again, we base this assumption on the fact that prairie habitat is managed for multiple species, some of which are listed as endangered or threatened species under the Act. This provides an impetus for continued formalized management of these sites and maintenance of Nelson's checker-mallow habitat.

The majority of Nelson's checker-mallow sites are protected through ownership by public agencies or nongovernmental conservation organizations, or through conservation easements. We assume that sites owned by public agencies or conservation organizations will remain so owned. We also assume that conservation easements will continue to provide protections where they currently exist, given that the terms typically range from 30 years to perpetuity. Ongoing efforts to protect additional sites through land acquisitions or enrollment in conservation easements are expected to continue and may result in the protection of additional sites. Although sites not protected by virtue of ownership or conservation easement may be at risk due to development in the future, these sites are in the minority and their status is reflected in our analysis.

To assess the future viability of Nelson's checker-mallow, we considered a single scenario where we assumed that climate change will result in a dramatic reduction in abundance across the species' range but site management and protection will remain intact, as discussed above. We then reassessed population condition, applying the same methodology used for assessing current condition.

Published assessments do not provide detailed quantitative estimates of the effects of climate change on Nelson's checker-mallow populations. In order to evaluate the effects of climate change on individual sites, we characterized a worst-case future scenario in terms we could use in our analysis of future condition. In consultation with species experts and conservation partners, we defined the worst-case scenario as one where increased mortality and decreased recruitment culminate in a 50 percent reduction in abundance at all sites. We consider this a worst-case scenario because a 50 percent reduction represents the upper boundary of plausibility; the actual effects of climate change on population sizes are likely to be more moderate. Nevertheless, assuming a 50 percent reduction provides a generous margin of error if the assumptions described above are violated. We acknowledge that uniform response across the species' range is not likely, and that some populations may fare better than others under future conditions. However, this approach serves to demonstrate future viability under challenging future conditions.

In the scenario described above, resiliency declined only modestly, with 60 sites remaining in high or moderate condition (see Figure 1, below). The number of sites in high overall condition decreased from 31 to 25, relative to current condition, while the number of sites in moderate condition increased from 29 to 35. Sites experiencing reduced condition are relatively well distributed throughout the range of the species, with one site occurring in the Coast Range recovery zone, three sites occurring in the Corvallis West recovery zone, one site occurring in the Portland recovery zone, and one site occurring in the Salem West recovery zone. The number of sites in overall low condition (six sites) does not change in our foreseeable future.

These changes in overall future condition are driven by changes in abundance. In our future scenario, six additional sites fall below 200 individual plants and, therefore, receive a low score for abundance. Sites with low abundance are more vulnerable to stochastic events and carry a higher risk for extirpation in the future. However, the relative importance of site management and protection in guarding against habitat loss and maintaining resiliency is reflected in the relatively modest downward shift in overall future condition, relative to current condition (see Figure 2, below).

Our analysis of future condition indicates that redundancy will be maintained in the foreseeable future; 66 extant sites will remain well distributed throughout the current known range of the species. Consequently, no major changes in the species' ability to withstand catastrophes in the future is expected.

The distribution of extant Nelson's checker-mallow sites does not change under the parameters of our future condition analysis. Consequently, changes in ecological diversity are not projected to materialize as a result of climate change, and the species is likely to continue to occupy prairie habitat throughout its range and retain its adaptive capacity.

Collectively, our analysis of the resiliency, redundancy, and representation demonstrates that in 25 to 50 years, the viability of Nelson's checker-mallow will not be significantly reduced. 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. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then 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.

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 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. For a more detailed discussion on the factors considered when determining whether a species meets the definition of an endangered species or a threatened species and our analysis on how we determine the foreseeable future in making these decisions, please see Regulatory and Analytical Framework, above.

After evaluating the threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we found that the primary drivers of the status of Nelson's checker-mallow have been habitat loss, degradation, and fragmentation due to alteration of natural and human-mediated disturbance processes that maintain open prairie habitat, land conversion to agricultural and urban use, and invasion by nonnative plants. The best available information does not indicate that habitat loss due to inundation (Factor A), overcollection (Factor B), predation (Factor C), small population size (Factor E), or hybridization (Factor E) are threats to the viability of the species. To summarize, the threat of inundation never materialized as the proposed reservoir was not constructed; overcollection does not occur to such a degree that it has a population-level effect; weevil predation does occasionally impact individual plants and may locally affect some populations, but it does not occur at spatial and temporal scales large enough to affect the overall status of the species; many small populations of Nelson's checker-mallow remain distributed throughout the species' range, but the number of large populations has increased significantly since the species was listed; and the potential for hybridization among other species in the same genus remains present, but does not pose a threat to the overall status of the species. A variety of regulatory mechanisms adequately reduce the effects of any threats that act at a population scale (Factor D).

The habitat-related threats other than inundation identified above as drivers of Nelson's checker-mallow status are still present on the landscape. However, their magnitude and scope have decreased from historical levels and have been offset by a variety of management and conservation measures in the nearly 30 years since Nelson's checker-mallow was listed. Active maintenance of prairie habitat through mowing and prescribed burning has demonstrably reduced the threat posed by alteration of disturbance processes and associated woody encroachment (Factor A). The threat of invasive plants (Factor A) has also been significantly reduced as a result of active management. Rangewide, formalized management plans exist for 57 of the 66 sites known to contain Nelson's checker-mallow, a number that is expected to remain relatively constant into the foreseeable future. Similarly, 60 Nelson's checker-mallow sites are either in public ownership, have been acquired by nongovernmental conservation organizations, or are enrolled in conservation easement programs (Factor D), which has substantially reduced the risk of habitat and population losses due to land-use conversion (Factor A). The number of sites protected from conversion to agricultural or urban use is expected to remain relatively constant in the future. In sum, despite the continued presence of habitat-related threats on the landscape, advances in site management and protection have led to a significant reduction in threats and overall improvement in the status of the species since listing.

When Nelson's checker-mallow was listed, we estimated that the species occurred at 48 sites distributed among five population centers (historically interbreeding populations). Only five sites contained more than 1,000 individuals, and 30 percent of the known individuals of the species were threatened with inundation due to the planned construction of a dam. Currently, 334,968 individual plants are distributed across the historical range of the species. They occur at 66 sites, 24 of which have at least 1,000 Nelson's checker-mallow plants. Our analysis of current condition, based on abundance, habitat quality, site management, and site protection, shows that 60 of those sites are in either moderate or high condition, indicating relatively high resiliency. The sites are distributed among six of the seven recovery zones and occur in varied geographical and ecological settings, demonstrating overall good redundancy and representation.

Subsequent to listing, climate change and its potential to negatively affect prairie habitat was identified as a potential threat to Nelson's checker-mallow. We considered the potential consequences of climate change on the species and evaluated a worst-case future scenario that included a 50 percent reduction in the size of all known populations across the range of the species. Even in the face of such a severe population reduction, the species retained appreciable levels of resiliency, redundancy, and representation, with only six sites showing a reduction in resiliency and with geographical and ecological distribution fully maintained.

We recognize that some habitat-related threats remain present and that they have ongoing impacts to Nelson's checker-mallow. We acknowledge that the specific effects of climate change on Nelson's checker-mallow and its habitat are uncertain but may have a negative impact. However, we found that current and expected patterns in site protection and habitat management are sufficient to prevent affects to the species such that it would meet the Act's definition of an endangered species or a threatened species. Thus, after assessing the best available information, we determine that Nelson's checker-mallow is not in danger of extinction now or likely to become so in 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. Having determined that Nelson's checker-mallow is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range—that is, whether there is any portion of the species' range for which it is true that both (1) the portion is significant; and (2) the species is in danger of extinction now or likely to become so in the foreseeable future 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.

In undertaking this analysis for Nelson's checker-mallow, 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 or threatened.

For Nelson's checker-mallow, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: habitat loss, degradation, and fragmentation due to alteration of natural and human-mediated disturbance processes that maintain open prairie habitat, land conversion to agricultural and urban use, and invasion by nonnative plants; and climate change.

The threat of habitat loss from alteration of disturbance processes, land-use conversion, and invasion of nonnative plants has decreased in all portions of the species' range since the time listing, due to land protection efforts and active habitat management. Although these residual threats influence the species variably across its range, there is no portion of the range where there is currently a concentration of threats at a biologically meaningful scale, relative to other areas of the range. In the foreseeable future, climate change may interact synergistically with other threats to negatively affect habitat quality. We acknowledge that uniform response across the species' range is not likely, and that some populations may fare worse than others under future conditions. However, the best available information does not indicate that any portion of the species' range will deteriorate disproportionately in the foreseeable future. We anticipate that any negative consequence of co-occurring threats will be successfully addressed through the same active management actions that have contributed to the ongoing recovery of Nelson's checker-mallow and that are expected to continue into the future.

We found no concentration of threats in any portion of the Nelson's checker-mallow range at a biologically meaningful scale. Therefore, no portion of the species' range can provide a basis for determining that the species is in danger of extinction now or likely to become so in the foreseeable future in a significant portion of its range, and we find the species is not in danger of extinction now or likely to become so in the foreseeable future in any significant portion of its range. This does not conflict with the courts' holdings in Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017), because, in reaching this conclusion, we did not need to consider whether any portions are significant and, therefore, did not apply the aspects of the Final Policy's definition of “significant” that those court decisions held were invalid.

Our review of the best available scientific and commercial information indicates that Nelson's checker-mallow does not meet the definition of an endangered species or a threatened species in accordance with sections 3(6) and 3(20) of the Act. Therefore, we propose to remove the Nelson's checker-mallow from the List of Endangered and Threatened Plants.

This proposed rule, if made final, would revise 50 CFR 17.12(h) by removing Nelson's checker-mallow from the Federal List of Endangered and Threatened Plants. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect Nelson's checker-mallow. There is no critical habitat designated for this species, so there would be no effect to 50 CFR 17.96.

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been delisted due to recovery. PDM refers to activities undertaken to verify that a species delisted due to recovery remains secure from the risk of extinction after the protections of the Act no longer apply. The primary goal of PDM is to monitor the species to ensure that its status does not deteriorate, and if a decline is detected, to take measures to halt the decline so that proposing it as endangered or threatened is not again needed.

If at any time during the monitoring period data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

We are proposing to delist Nelson's checker-mallow based on our analysis in the SSA report, expert opinions, and conservation actions taken. Since delisting would be, in part, due to conservation actions taken by stakeholders, we have prepared a draft PDM plan for Nelson's checker-mallow. The draft PDM plan discusses the current status of the taxon and describes the methods proposed for monitoring if we delist the taxon. The draft PDM plan: (1) Summarizes the status of Nelson's checker-mallow at the time of proposed delisting; (2) describes frequency and duration of monitoring; (3) discusses monitoring methods and potential sampling regimes; (4) defines what potential triggers will be evaluated to address the need for additional monitoring; (5) outlines reporting requirements and procedures; (6) proposes a schedule for implementing the PDM plan; and (7) defines responsibilities. It is our intent to work with our partners towards maintaining the recovered status of Nelson's checker-mallow. We will seek public and peer reviewer comments on the draft PDM plan, including its objectives and procedures (see FOR FURTHER INFORMATION CONTACT and Information Requested, above), with the publication of this proposed rule.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ), need not be prepared in connection with determining a species' listing status under the Endangered Species Act. We published a document outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

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 do not believe that any Tribes would be affected if we adopt this rule as proposed. There are currently no Nelson's checker-mallow sites on Tribal lands, although some sites may lie within the usual and accustomed places for Tribal collection and gathering of resources. We welcome input from potentially affected Tribes on this proposal.

A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Oregon Fish and Wildlife Office.

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

Background

On February 15, 2022, we received a petition from the Center for Biological Diversity and Defend Them All Foundation to list the tope shark, Galeorhinus galeus, as a threatened or endangered species under the ESA and to designate critical habitat concurrent with the listing. The petition asserts that G. galeus is threatened by four of the five ESA section 4(a)(1) factors: (1) Present and threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial and recreational purposes; (3) inadequacy of existing regulatory mechanisms; and (4) other natural or manmade factors. In addition to requesting that we analyze whether the tope shark warrants listing based on its status throughout all or a significant portion of its range, the petition requests that we analyze whether any distinct population segments (DPS) of tope shark warrant listing. The petition also requests that, if we determine the tope shark or any DPSs of tope shark warrant listing as a threatened species, we promulgate a protective regulation under section 4(d) of the ESA, and requests that we promulgate a regulation under section 4(e) of the ESA for species similar in appearance to the tope shark. The petition is available online (see ADDRESSES ).

Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq. ), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a “may be warranted” finding does not prejudge the outcome of the status review.

Under the ESA, a listing determination may address a species, which is defined to also include subspecies and any vertebrate DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, “the Services”) policy clarifies the Services' interpretation of DPSs for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms to address identified threats; (5) or any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).

ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(h)(1)(i)) define “substantial scientific or commercial information” in the context of reviewing a petition to list, delist, or reclassify a species as “credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted.” Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered “substantial information.” In reaching the initial (90-day) finding on the petition, we will consider the information described in sections 50 CFR 424.14(c), (d), and (g) (if applicable).

Our determination as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted will depend in part on the degree to which the petition includes the following types of information: (1) Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available; (2) identification of the factors under section 4(a)(1) of the ESA that may affect the species and where these factors are acting upon the species; (3) whether and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the ESA may cause the species to be an endangered species or threatened species ( i.e., the species is currently in danger of extinction or is likely to become so within the foreseeable future), and, if so, how high in magnitude and how imminent the threats to the species and its habitat are; (4) information on adequacy of regulatory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and (5) a complete, balanced representation of the relevant facts, including information that may contradict claims in the petition. See 50 CFR 424.14(d).

If the petitioner provides supplemental information before the initial finding is made and states that it is part of the petition, the new information, along with the previously submitted information, is treated as a new petition that supersedes the original petition, and the statutory timeframes will begin when such supplemental information is received. See 50 CFR 424.14(g).

We may also consider information readily available at the time the determination is made. We are not required to consider any supporting materials cited by the petitioner if the petitioner does not provide electronic or hard copies, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials ( e.g., publications, maps, reports, letters from authorities). See 50 CFR 424.14(c)(6).

At the 90-day finding stage, we do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person conducting an impartial scientific review would conclude it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone necessitates a negative 90-day finding if a reasonable person conducting an impartial scientific review would conclude that the unknown information itself suggests the species may be at risk of extinction presently or within the foreseeable future.

To make a 90-day finding on a petition to list a species, we first evaluate whether the information presented in the petition, in light of the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, if we conclude the petition presents substantial scientific or commercial information suggesting that the petitioned entity may constitute a “species,” we evaluate whether the information indicates that the species may face an extinction risk such that listing, delisting, or reclassification may be warranted; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate whether the petition presents any information on specific demographic factors pertinent to evaluating extinction risk for the species ( e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate whether the petition presents information suggesting potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1) of the ESA.

Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

Many petitions identify risk classifications made by nongovernmental organizations, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” ( https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories ). Additionally, species classifications under IUCN and the ESA are not equivalent; data standards, criteria used to evaluate species, and treatment of uncertainty are also not necessarily the same. Thus, when a petition cites such classifications, we will evaluate the source of information that the classification is based upon in light of the standards on extinction risk and impacts or threats discussed above.

The tope shark, G. galeus, is one of 39 recognized species within the houndshark family, Triakidae, and is known by many other common names, including soupfin shark and school shark. The tope sharks' range includes most oceans, specifically the Northeast, Eastern Central, Southwest and Southeast Atlantic Ocean; the Southwest, Southeast, Western Central, Eastern Central, and Northeast Pacific Ocean; the Mediterranean Sea, and the Eastern Indian Ocean. They can be found in water depths of up to 826 meters, but prefer coastal areas and occur most frequently within depths up to 200 m (Walker et al. 2020). Maximum size varies regionally, with maximum lengths of up to about 6 feet (200 cm, (total length) and weights of up to 98.5 pounds 44.7 kg (Walker et al. 2020; Florida Museum, Fish Profile 2021). Age at maturity may also vary regionally and has been reported to range from about 10-15 years for females and about 12-17 years for males (Walker et al. 2020, COSEWIC 2007). Maximum lifespan is 40 to 60 years, and generation length has been estimated to be 23 to 26.3 years (Walker et al. 2020, COSEWIC 2007). Tope sharks reproduce every 1 to 3 years, although a triennial cycle may be more common (Peres and Vooren 1991, Nosal et al. 2021). They are ovoviviparous ( i.e., eggs are fertilized internally and hatch internally, with no placental connection to the mother) and produce litters of 20-35 pups on average after a roughly 12-month gestation period (Walker et al. 2017, Nosal et al. 2021). The diet is broad, and includes many teleost fishes ( e.g., herring, sardines, anchovies, hake, cod, salmon, halibut), as well as some invertebrates ( e.g., squid, octopus, crabs, annelids; Walker 1999; Florida Museum, Fish Profile 2021).

Tope sharks are highly migratory and have been reported to occur in small schools segregated by sex and age. Genetic and tagging data indicate that the species may be structured as six regional populations, delineated generally as Northeast Atlantic (includes the Mediterranean Sea), southern Africa (Namibia to East London, South Africa), Southwest Atlantic (southern Brazil to Patagonia), Northeast Pacific (British Columbia to Mexico, including the Gulf of California), Southeast Pacific (Ecuador to Chile), and Tasman Sea (Australia and New Zealand; Chabot and Allen 2009, Hernández 2013, Walker et al. 2020, Nosal et al. 2021).

The petition addresses a single species, G. galeaus; provides the scientific and common names for this species; and clearly indicates the administrative measures being requested. The petition also contains a detailed, narrative justification for the requested listing under the ESA and provides information on the species' taxonomy, geographic distribution, and threats. Global abundance estimates appear to be lacking for this species, but information is provided in the petition and supporting references regarding population status and trends. The petition is accompanied by literature citations and electronic copies of supporting material, including published scientific literature, web pages, and unpublished reports.

In the sections that follow, we provide a synopsis of our analysis of the information provided in the petition and readily available in our files regarding tope shark population status and trends and whether and to what extent factors identified in section 4(a)(1) of the ESA may cause the tope shark to be an endangered species or a threatened species.

The petition presents information and references indicating that the tope shark has declined in most parts of its range, and that these declines have been driven by overharvest for commercial purposes. The tope shark is currently categorized as “critically endangered” on the IUCN Red List based on trend analyses of abundance indices indicating steep declines in many parts of the range (Southwest Atlantic, southern Africa, Australia, and Northeast Atlantic) and an estimated median reduction of 88 percent for the global population over three generations (79 years; Walker et al. 2020).

The most recent IUCN assessment by Walker et al. (2020) presents the results of separate trend analyses completed using available data from multiple geographic regions of the tope shark's range. For instance, using standardized catch-per-unit-effort (CPUE) data from three fishery-independent survey datasets from the northern (2005-2018) and southern (1997-2016) Celtic Seas ecoregion and the Azores (1990-2015), Walker et al. (2020) estimated annual rates of reduction of tope shark in the Northeast Atlantic region of 1.7 percent and an estimated median reduction of 76.6 percent over three generations (79 years). Using limited CPUE data for the Southwest Atlantic (specifically Argentina) from 1992-2015, they estimated annual rates of decline of 5.9 percent and a median reduction of 99.3 percent over three generations. For Australia, Walker et al. (2020) used 74 years of stock assessment abundance data, collected from 1927-2000, and estimated annual rates of reduction of 2.8 percent and a median reduction of 90.1 percent over three generation lengths. Although the available data suggest tope sharks in New Zealand and Australia are a single population, Walker et al. (2020) also completed a separate trend analysis for New Zealand. Using standardized CPUE data collected from several locations off New Zealand during 1990-2016, they estimated annual rates of decline of 0.5 percent and an estimated median reduction of 29.8 percent over three generations (Walker et al. 2020).

A stock assessment has also been completed for tope shark in South Africa, where it remains a commercially targeted species. Using commercial fisheries catch data as well as scientific survey data, the assessment indicated a continuous declining trend in tope shark abundance at a rate of about 2.7 percent per year from 1991 to 2016, and an estimated 85.1 percent decline over three generations (Winker et al. 2019). No stock assessments or abundance indices appear to be available for the Northeast Pacific region (COSEWIC 2007, Walker et al. 2020).

The petition asserts that the tope shark is experiencing threats under section 4(a)(1)(A) of the ESA as a result of habitat degradation and destruction associated with climate change. The petition discusses and provides references regarding direct and indirect climate-change-driven impacts, including physical and chemical changes to ocean habitats ( e.g., ocean warming, increasing ocean acidity), changes in ocean circulation patterns, declines in primary productivity and upper-level consumers, range shifts for shark species, and negative health consequences for sharks. Available scientific evidence has clearly established that climate change has affected and continues to affect the distributions of many marine species as well as their productivity and phenology (Bindof et al. 2019, Morely et al. 2018). Experimental results have also revealed that ocean warming and acidification occurring under levels of carbon dioxide projected to occur by the end of this century can impair prey detection (olfaction) and hunting behavior and impact body condition and growth in some shark species (Dixson et al. 2015, Pistevos et al. 2015, Rosa et al. 2017). Although these various climate-change impacts are concerning, the extent to which tope sharks in particular may be threatened by such impacts is not clear based on the information in the petition or otherwise readily available.

The petition also asserts that high voltage undersea cables are degrading ocean habitats used by tope sharks and are contributing to extinction risk for this species. Specific impacts from high voltage undersea cables identified in the petition include interference with tope sharks' navigation, feeding, and predation. However, information to substantiate that tope sharks are being negatively affected by undersea power cables is not provided and appears to be lacking in general.

The petition identifies overutilization for commercial purposes under section 4(a)(1)(B) of the ESA and inadequate management of fisheries under section 4(a)(1)(D) of the ESA as the primary threats to the tope shark. Information in the petition and the cited references indicate that tope sharks have been fished commercially, typically with gillnets and longlines, throughout most of their range for meat, fins, and livers, which are rich in vitamin A. Demand for the liver oil in particular led to relatively intense commercial harvest of tope sharks during the 1930s and 1940s in several parts of its range, including the Northeast Pacific, Southwest Atlantic, South Africa, Australia, and New Zealand. This period of increased fishing pressure subsided fairly quickly, however, as the demand for shark liver oil declined and, in some locations, as stocks were depleted (COSEWIC 2007, Walker 1999). For example, from 1937-1949, an estimated 840,000 tope sharks were harvested in the Northeast Pacific for their livers, and the recorded commercial catch declined from a peak of over 4,000 t in 1939 to 287 t by 1944 (Walker 1999, Walker et al. 2020). This population is thought to have collapsed as a result of overexploitation, and although it is currently subject to a low level of commercial and recreational fishing in California, its current status is unknown (COSEWIC 2007).

Information presented in the petition and cited references regarding ongoing commercial fishing for and retention of tope sharks in other parts of the range do suggest cause for concern. For instance, in South Africa, results of the fairly recent stock assessment indicate a greater than 99 percent probability that the stock is overfished and subject to overfishing (Winker et al. 2019). The recent IUCN assessment by Walker et al. (2020), citing a stock assessment for Australia, states that the Australian government has classified the tope shark as overfished and that the current biomass of this stock is below 20 percent of unexploited levels. The petition also notes that for the Northeast Atlantic, the landings limit recommended in 2018 and 2019 ( i.e., 376 t) by the International Council for the Exploration of the Sea (ICES) has been exceeded based on the incomplete annual landings reported for tope shark during 2005-2018, which ranged from 542 t to 715 t (Walker et al. 2020).

Directed fishing for tope sharks is prohibited in several areas, including the United Kingdom (since 2008, expect for rod and reel), Mediterranean (since 2012), and Canada (since 2012). Other management measures in place within some range countries to address both directed and incidental take of tope sharks include limits on retention of bycatch and daily catch limits, seasonal and spatial area closures ( e.g., breeding and nursery areas), quotas and limited entry systems, and gear restrictions. Within the United States, Federal protections ( e.g., the Shark Conservation Act), as well as regulations in individual States regarding possession, sale, and trade of shark fins are being implemented to prevent the practice of shark finning ( i.e., removing shark fins and discarding the body at sea). In 2020, the tope shark was also listed on Appendix II of the Convention on Migratory Species of Wild Animals, which does not directly confer protections on the species, but does establish a framework and call upon Parties to develop agreements to conserve the species. Evidence of stock recovery or stabilization following implementation of some of these management measures is noted for at least a few locations, including the Northeast Pacific and Northeast Atlantic (Walker et al. 2020); however, the available trend analyses and stock assessments discussed in the petition suggest that existing management measures may be inadequate to prevent population declines throughout most of the range. Recreational catch of tope sharks is also unreported or under-reported, and therefore its impact and any related management measures cannot be fully assessed.

Lastly, the petition asserts that tope sharks are threatened by toxic pollutants in the marine environment, including dichlorodiphenyltrichloroethane (DDT), polychlorinated biphenyls (PCBs), and trace metals ( e.g., mercury). That sharks bioaccumulate such contaminants has been well documented, and concentrations of various contaminants in sharks have been shown to vary with multiple factors such as diet, length, weight, sex, species, and habitat (Walker 1999, Lyons et al. 2013, Kibria and Haroon 2015). High mercury concentrations in tope sharks in particular led to concerns over human consumption of the meat and consequently impacted demand and affected markets in some locations during and 1970s and 1980s (Walker 1999). The petition states that bioaccumulation of toxic contaminants may have negative health consequences for tope sharks, such as impaired immune function, endocrine disruption, infertility, and birth defects. However, information to indicate whether and how toxic contaminants are negatively affecting tope shark health in particular is not provided and may not be available.

After reviewing the petition, the literature cited in the petition, and other information readily available in our files, we find there is substantial scientific and commercial information indicating that listing tope sharks under the ESA may be warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.14(h)(2)), we will commence a status review of this species. During the status review, we will determine whether G. galeus is in danger of extinction (endangered) or likely to become so (threatened) throughout all or a significant portion of its range. As the petition did not request that we consider listing any specific DPSs, we will first assess the status of the taxonomic species, and then based on that assessment, consider whether additional analysis of potential DPSs is warranted and appropriate. As required by section 4(b)(3)(B) of the ESA, within 12 months of the receipt of the petition (February 15, 2023), we will make a finding as to whether listing the tope shark (or any DPSs) as an endangered or threatened species is warranted. If listing is warranted, we will publish a proposed rule and solicit public comments before developing and publishing a final rule. If applicable, the request to promulgate regulations under section 4(d) and section 4(e) of the ESA would be considered in accordance with the Administrative Procedure Act (5 U.S.C. 553) and applicable Departmental regulations, and appropriate action would be taken (50 CFR 424.14(j)).

To ensure that the status review is based on the best available scientific and commercial data, we are soliciting relevant data and information from interested parties regarding the tope shark. Specifically, we are soliciting information for this species in the following areas:

(1) Historical and current abundance and population trends throughout its range;

(2) Historical and current distribution, population structure, and genetic diversity;

(3) Current condition of its habitat and current and future threats to these habitats;

(4) Historical and current data on bycatch and retention of tope sharks in industrial, commercial, artisanal, and recreational fisheries throughout its range;

(5) Data on trade of tope shark and their products, including fins, meat, and liver oil; and

(6) The effects of other known or potential threats to tope sharks over the short-term or long-term; and

(7) Management, regulatory, or conservation programs for tope sharks, including mitigation measures related to any known or potential threats to the species within specific range countries.

We request that all data and information be accompanied by supporting documentation such as reprints of pertinent publications or bibliographic references. Please send any comments in accordance with the instructions provided in the ADDRESSES section above. We will base our findings on a review of the best scientific and commercial data available, including relevant information received during the public comment period.

A complete list of all references cited herein is available upon request (See FOR FURTHER INFORMATION CONTACT ).