Congress enacted the FDCPA in 1977 to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.”  1 The statute was a response to “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors,” which Congress attributed to the “inadequacy” of “existing laws and procedures,” including State laws. 2 To remedy this, the FDCPA imposes various requirements and restrictions on debt collectors' debt collection activity. Relevant here is section 808, which provides that a “debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.”  3 Section 808 then states that “[w]ithout limiting the general application of the foregoing, the following conduct is a violation of this section” and enumerates eight specifically prohibited practices, including the “collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.”  4

At the time of the FDCPA's enactment, the Federal Trade Commission (FTC) was the agency that administered, and had primary responsibility for enforcing, the FDCPA. 5 Then, in 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, which created the CFPB and granted it authority to administer, implement, and enforce the FDCPA. 6 Congress also provided the CFPB authority to prescribe rules under the FDCPA. 7 Pursuant to that authority, in 2020, the CFPB issued Regulation F, which implements the FDCPA, to prescribe rules governing the activities of debt collectors. 8 The CFPB implemented FDCPA section 808(1) at 12 CFR 1006.22(b) by “generally mirror[ing] the statute, with minor wording and organizational changes for clarity.”  9 In particular, the CFPB stated that the “term `any amount' includes any interest, fee, charge, or expense incidental to the principal obligation.”  10

In 2013, the CFPB launched its supervisory program over certain larger participants in the consumer debt collection market. Through these examinations, the CFPB ascertains compliance with the FDCPA, and now Regulation F, as well as other Federal consumer financial laws. The CFPB also periodically publishes Supervisory Highlights with anonymized findings and analysis from these supervisory examinations, as well as compliance bulletins to provide entities with guidance on complying with certain legal requirements.

For example, in 2017, the CFPB issued a compliance bulletin (Bulletin) that “provides guidance to debt collectors about compliance with the [FDCPA] when assessing phone pay fees,” a type of pay-to-pay fee. 11 The Bulletin summarizes CFPB staff's conclusion that, under section 808(1), debt collectors may collect such pay-to-pay fees only if the underlying contract or state law expressly authorizes those fees. 12 In particular, the Bulletin states that in at least one supervisory exam, CFPB examiners found that a debt collector “violated [section 808(1)] when they charged fees for taking mortgage payments over the phone” where the underlying contracts creating the debt did not expressly authorize collecting such fees and where the relevant State law did not “expressly permit collecting such fees.”  13

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0291, dated December 22, 2021 (EASA AD 2021-0291) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A350-941 and -1041 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A350-941 and -1041 airplanes. The NPRM published in the Federal Register on March 31, 2022 (87 FR 18744). The NPRM was prompted by reports that passenger door stop screws were found with missing screw heads. The NPRM proposed to require repetitive general visual inspections (GVI) of each passenger door stop screw for any missing screw heads, and applicable corrective actions, as specified in EASA AD 2021-0291.

The FAA is issuing this AD to address missing door stop screw heads, which could result in reduced structural integrity of the airplane. See the MCAI for additional background information.

The FAA received comments from Delta Airlines (DAL). The following presents the comments received on the NPRM and the FAA's response to each comment.

DAL requested that the FAA remove the reporting requirement in paragraph (h) of the proposed AD. DAL stated that Note 3 in paragraph (4) of EASA AD 2021-0291 indicates that “[u]sing the inspection report in accordance with the instructions of [the specified service information] is acceptable to comply with the requirements” of paragraph (4). The commenter added that the service information specified in EASA AD 2021-0291 states that the relevant Task (“Complete the Inspection Report Sheet”) specifies that sending the Inspection Report sheet is not an RC (required for compliance) step. The commenter stated that EASA AD 2021-0291, by referencing the service information in Note 3, appears to approve completing the inspection report sheet, but does not require sending the inspection report as it is not required for compliance.

The FAA does not agree to the requested change. The inspection reports that are required by this AD will enable the manufacturer to obtain better insight into the nature, cause, and extent of the missing screw heads, and may help the FAA determine whether different AD requirements may be appropriate. Further, EASA AD 2021-0291 requires reporting inspection results to Airbus in paragraph (4) and note 3 is only an option of how to comply with that reporting requirement. This AD has not been changed with regard to this request.

If the FAA does not remove the reporting requirement as DAL requested, DAL recommended revised compliance times for reporting, which DAL asserted would remove restrictive time constraints while still meeting the intent of the proposed AD. Delta stated that commonly the scanned records from each airplane visit are not available until after the end of the visit (when the entire package is sent for scanning all at once), which could take up to 75 days. Delta added that potentially a report due under the conditions of paragraph (h)(3)(ii) of the proposed AD could involve a case where the service information and AD inspections were signed off 20 days into their 75-day long visit but before the AD's effective date, and could result in manual coordination with the Production Control Office.

• For paragraph (h)(3)(i) of the proposed AD, DAL recommended revising the reporting compliance time as “within 30 days after the end of the maintenance visit/check during which the inspection was performed” instead of “within 30 days after the inspection.”

• For paragraph (h)(3)(ii) of the proposed AD, DAL recommended this paragraph to state “within 30 days after the end of the maintenance visit/check during which the inspection was performed or within 30 days after the effective date of this AD, whichever occurs last” instead of “within 30 days after the effective date of this AD.”

The FAA agrees with the request for the reasons provided, and has revised paragraphs (h)(3)(i) and (ii) of this AD accordingly.

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

EASA AD 2021-0291 specifies procedures for repetitive general visual inspections (GVI) of each passenger door stop screw for any missing screw heads, and applicable corrective actions. The corrective actions include replacement of the passenger door stop screw, repair, and follow-up actions (GVI of the adjacent door stop area and surrounding structure for damage, including any broken door stop screws). EASA AD 2021-0291 also specifies procedures for reporting results of the initial inspection to Airbus. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 27 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates that it would take about 1 work-hour per product to comply with the reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, the FAA estimates the cost of reporting the inspection results on U.S. operators to be $2,295, or $85 per product.

The FAA estimates the following costs to do any necessary on-condition screw replacement that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs or applicable follow-up actions specified in this AD.

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

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

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

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

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

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

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

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

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

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

The FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Williams FJ44-2A, FJ44-2C, FJ44-3A, and FJ44-3A-24 model turbofan engines. The SNPRM published in the Federal Register on April 14, 2022 (87 FR 22153). The SNPRM was prompted by a report of cracks in the HPT disk posts and failure of an HPT disk post, resulting in the contained fracture of an HPT disk post and blade. Subsequently, Williams notified the FAA that revised service information was available, which added additional serial-numbered FJ44-2A, FJ44-2C, and FJ44-3A model turbofan engines to the effectivity and updated the compliance time for replacing the HPT disk. In the SNPRM, the FAA proposed to require removing the HPT disk, P/N 67093, from service before reaching defined cycle limits and replacing it with a part eligible for installation. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received no comments on the SNPRM or on the determination of the costs.

The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. This AD is adopted as proposed in the SNPRM.

The FAA reviewed Williams International Service Bulletin (SB) WISB-72-1032, Revision 2, dated June 4, 2020. This SB specifies procedures for removing and replacing the HPT rotor assemblies that include HPT disk, P/N 67093. This SB also provides instructions for incorporating the latest HPT combustor/fuel slinger module on FJ44-2A and FJ44-2C model turbofan engines. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA reviewed Williams International SB WISB-72-1034, Revision 3, dated July 2, 2021. This SB describes procedures for re-identifying the HPT rotor assembly and HPT disk.

The FAA estimates that this AD affects 242 engines installed on airplanes of U.S. registry.

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

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

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

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

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0260, dated November 18, 2021 (EASA AD 2021-0260) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A350-941 and -1041 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A350-941 and -1041 airplanes. The NPRM published in the Federal Register on April 18, 2022 (87 FR 22816). The NPRM was prompted by a report of inadvertent AFS altitude changes on the FCU. The NPRM proposed to require revising the existing AFM to include a procedure on the use of the AFS control panel ALT knob and replacing any affected FCU with a serviceable FCU, as specified in EASA AD 2021-0260. The NPRM also proposed to prohibit the installation of affected parts.

The FAA is issuing this AD to address erroneous target altitude during descent, climb, or go-around, which could result in an unexpected vertical trajectory deviation and loss of correct situational awareness that could potentially result in uncontrolled impact with the ground. See the MCAI for additional background information.

The FAA received a comment from the Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

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

EASA AD 2021-0260 describes procedures for revising the existing AFM to include a procedure on the use of the AFS control panel ALT knob and replacing any affected FCU having part numbers (P/N) C31006AC01 or C31006AB01 with a serviceable FCU having P/N C31006AD01. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 27 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0204, dated September 14, 2021 (EASA AD 2021-0204) (also referred to as the MCAI), to correct an unsafe condition for all Model A300-600 series airplanes.

EASA AD 2021-0204 specifies that it requires certain tasks (limitations) already required by EASA AD 2019-0090, dated April 26, 2019 (which corresponds to FAA AD 2019-21-01, Amendment 39-19767 (84 FR 56935, October 24, 2019) (AD 2019-21-01)), and invalidates (terminates) prior instructions for those tasks. This AD, for AD 2019-21-01, terminates the limitation for the tasks identified in the service information referred to in EASA AD 2021-0204 only.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). The NPRM published in the Federal Register on February 24, 2022 (87 FR 10315). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in EASA AD 2021-0204.

The FAA received a comment from Airline Pilots Association, International (ALPA), who supported the NPRM without change. The FAA also received a comment from FedEx Express, who stated the requirements in the NPRM would not adversely impact operations.

The FAA received an additional comment from UPS Airlines. The following presents the comment received on the NPRM and the FAA's response.

UPS Airlines requested that the incorporation of Airworthiness Limitations Section (ALS) Part 2 Variations 3.3 through 3.6 be combined into a single proposed rule. UPS Airlines stated their preference for a single rule that would encompass all released ALS Part 2, Revision 03, variations 3.1 through 3.6, and supersede current FAA AD 2020-23-11. UPS asserted that multiple active rules for the same program requirements place an unnecessary compliance tracking burden on operators for the hundreds of tasks within the ALS program, with no enhancement or benefit to fleet airworthiness.

The FAA does not agree with the requested change. The state of design initiated separate actions. If the ALS changes were combined by the FAA unilaterally it would delay the rulemaking activity and thus delay making the ALS changes mandatory. This AD has not been changed with regard to this request.

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

EASA AD 2021-0204 specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD would affect 118 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work- hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

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 modifies the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2021-0971 in the Federal Register (86 FR 62962; November 15, 2021), amending VOR Federal airway V-44 and revoking VOR Federal airway V-446 in the vicinity of Samsville, IL. The proposed actions were due to the planned decommissioning of the VOR portion of the Samsville, IL, VOR/DME NAVAID. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

VOR Federal airways are published in paragraph 6010(a) of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The ATS routes listed in this document will be published subsequently in FAA Order JO 7400.11.

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

The FAA is amending 14 CFR part 71 to amend VOR Federal airway V-44 and remove VOR Federal airway V-446 due to the planned decommissioning of the Samsville, IL, VOR. The VOR Federal airway actions are described below.

V-44: V-44 extends between the Columbia, MO, VOR/DME and the Samsville, IL, VOR/DME; and between the Falmouth, KY, VOR/DME and the Albany, NY, VOR/Tactical Air Navigation (VORTAC). The airspace within restricted areas R-4001B, R-5002A, R-5002B, and R-5002E are excluded when active; the airspace within V-139 and V-308 airways are excluded; and the airspace below 2,000 feet mean sea level (MSL) outside the United States is excluded. The airway segment between the Centralia, IL, VORTAC and the Samsville, IL, VOR/DME is removed. Additionally, the exclusions regarding the airspace within R-4001B, R-5002A, R-5002B, and R-5002E when active, and the airspace within the V-139 and V-308 airways are removed as well. The unaffected portions of the existing airway remain as charted.

V-446: V-446 extends between the Troy, IL, VORTAC and the Samsville, IL, VOR/DME. The airway is removed in its entirety.

All NAVAID radials listed in the VOR Federal airway description below are unchanged and stated in True degrees.

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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 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.

The FAA has determined that this action of amending VOR Federal airway V-44 and revoking VOR Federal airway V-446, due to the planned decommissioning of the VOR portion of the Samsville, IL, VOR/DME NAVAID, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

Prior to April 2004, when the FAA issued a Determination of No Hazard to Air Navigation for proposed construction or alteration of an antenna structure, the Determination included the following condition: “This determination is based, in part, on the foregoing description which includes specific coordinates, heights, frequency(ies) and power. Any changes in coordinates, heights, frequency(ies) or use of greater power will void this determination. Any future construction or alteration, including an increase in heights, power, or the addition of other transmitters requires separate notice to the FAA.” As a result of this condition, a proponent seeking only to add frequencies to a previously studied structure for which the FAA had issued a Determination of No Hazard was required to file notice with the FAA. They had to file the notice on FAA Form 7460-1 in accordance with the previously discussed condition.

On April 27, 2004, the FAA published a revised policy regarding the notification requirements for co-locating antenna systems on existing structures previously studied by the FAA (69 FR 22732). The revised policy was based on a Best Practices Agreement recommended by the Colo Void Clause Coalition (CVCC). 1 Under this revised policy, a proponent was not required to file notices with the FAA for an aeronautical study to add certain frequencies to an existing structure that FAA issued a current Determination of No Hazard to Air Navigation.

In February 2006, the CVCC asked the FAA to consider amending its policy to include additional frequency bands. The CVCC also sought clarification of the condition in the 2004 policy requiring proponents to provide the FAA with an electronic copy of its antenna system location databases. On November 21, 2007, the FAA further amended the policy to add the requested frequencies (72 FR 65449). FAA also withdrew the condition requiring proponents to provide electronic copies of antenna system location databases because any unintentional electromagnetic interference resulting under the policy can be mitigated by condition 2 of the policy. 2

On August 4, 2020, the CVCC requested that the FAA consider amending the November 21, 2007 policy by including additional frequency bands not requiring notice to the FAA when co-located with previously studied structures with No Hazard determinations. The frequencies are those that the Federal Communications Commission (FCC) has authorized for use by wireless companies. 3 The FCC reviewed the bands and associated technical rules to ensure their use of the bands would not cause harmful effects to other users operating in the same bands. Furthermore, many of these commercial radio frequency systems use technology that are industry and federally approved. The FAA agrees with the FCC's evaluation, and after careful review and coordination, has determined that it can include most of the requested additional frequencies by amending the current Colo Void policy. These additional frequencies will promote telecommunication and wireless services, while not negatively impacting either the safety or efficiency of civil flight.

The FAA recognizes the telecommunications industry's need and commitment to provide wireless services to the public. Also, the FAA recognizes that it is essential for these companies to speed up the time frame for build-out and deployment of their networks. However, the FAA's first commitment is to aviation safety. For that reason, the FAA finds that it can amend its policy to add most, but not all, of the frequencies requested by the CVCC. As has been the case with previous policy updates, the express notice requirements under part 77 of Title 14 Code of Federal Regulations (CFR) are not altered or modified. If the addition of frequencies is accompanied by an increase in the height of a previously studied structure, notice must be filed with the FAA as required by 14 CFR 77.9. 4 Physical structures located on or near public use and other types of landing facilities defined in 14 CFR 77.9(d) raise concerns about possible obstruction to air navigation, and the FAA will handle these issues pursuant to current regulations and procedures.

Under this policy, a proponent is not required to file notice with the FAA to add frequencies to an existing structure that either has a current FAA issued Determination of No Hazard to Air Navigation or otherwise does not meet notice criteria if the frequency is listed in this policy. If an additional antenna system must be used to add frequencies, the antenna system must not be located on Federal or public use landing facilities property.

Furthermore, the antenna system must not be co-located or mounted on an FAA antenna structure without prior coordination with the FAA's Spectrum Engineering Group. This policy to not require notice only applies to antenna systems operating on the following frequencies and service types, as dictated by various parts of 47 CFR. FAA is updating the policy to include additional frequencies. In some instances, the frequencies added by this notice are subject to designated power and bandwidth limitations. These limitations are specified where applicable. The new frequencies are designated with an asterisk.

• 698-806 MHz (Advanced Wireless Service—Part 27).

• 806-821 MHz and 851-866 MHz (Industrial/Business/Specialized Mobile Radio Pool—Part 90).

• 816-820 MHz and 861-865 MHz (Basic Exchange Telephone Radio—Parts 1 and 22).

• 821-824 MHz and 866-869 MHz (Public Safety Mobile Radio Pool—Part 90).

• 824-849 MHz and 869-894 MHz (Cellular Radiotelephone—Parts 1 and 22).

• 849-851 MHz and 894-896 MHz (Air-Ground Radiotelephone—Parts 1).

• 896-901 MHz and 935-940 MHz (900 MHz SMR—Part 90).

• 901-902 MHz and 930-931 MHz (Narrowband PCS—Part 24).

• 929-930 MHz, 931-932 MHz, and 940-941 MHz (Paging—Parts 1, 22, and 90).

• 1670-1675 MHz (Wireless Communications Service—Part 27).

• * 1695-1710 MHz, 1755-1780 MHz, and 2155-2180 MHz (Advanced Wireless Service—Part 27; 3280 Watts effective isotropic radiated power (EIRP), No bandwidth limitations; largest spectrum block is 20 MHz).

• 1710-1755 MHz, 2020-2025 MHz, and 2110-2180 MHz (Advanced Wireless Service—Part 27).

• 1850-1990 MHz (Broadband PCS—Part 24, Point-to-Point Microwave—Part 101).

• 1990-2000 MHz (Broadband PCS—Part 24).

• 2000-2020 MHz and 2180-2200 MHz (Mobile Satellite Service—Part 25).

• 2305-2320 MHz and 2345-2360 MHz (Wireless Communications Service (WCS)—Part 27).

• 2320-2345 MHz (Satellite Digital Audio Radio Service—Part 27).

• 2496-2690 MHz (Broadband Radio Service—Part 27).

• * 3.45 GHz (3450-3550 MHz Miscellaneous Wireless Communications Services—Part 27, 3280 watts/MHz EIRP, 20 MHz).

• * 3.5 GHz (3550-3700 MHz Citizens Broadband Radio Service—Part 96; 47 dBm/10 MHz EIRP, 10 MHz).

• * 5.9 GHz (5850-5925 MHz Dedicated Short-Range Communications Service—Part 90; 33 Watts EIRP and higher power level limited to state and local governmental entities).

• 6.0-7.0 GHz, 10.0-11.7 GHz, 17.7-19.7 GHz, and 21.2-23.6 GHz (Fixed Microwave Service—Part 101).

• * 12 GHz (12200-12700 MHz Multichannel Video Distribution & Data Service—Part 101; +50 dBW EIRP, 500 MHz).

• * 24 GHz (24250-24450 MHz and 24750-25250 MHz Upper Microwave Flexible Use Service—Part 30; +75 dBm/100 MHz EIRP, 200 MHz/500 MHz).

• * 28 GHz (27500-28350 MHz Upper Microwave Flexible Use Service—Part 30; +75 dBm/100 MHz EIRP (mobile base stations), +85 dBm/100 MHz EIRP (fixed directional antenna stations), 850 MHz).

• * 29 GHz and 31 GHz (29100-29250 MHz and 31000-31300 MHz, 23 dBW/MHz EIRP (Point-to-Point Operations), 150 MHz).

• * 37 GHz (37000-38600 MHz Upper Microwave Flexible Use Service—Part 30; +75 dBm/100 MHz EIRP (mobile base stations), +85 dBm/100 MHz EIRP (fixed directional antenna stations), 200 MHz).

• * 39 GHz (38600-40000 MHz Upper Microwave Flexible Use Service—Part 30; +75 dBm/100 MHz EIRP (mobile base stations), +85 dBm/100 MHz EIRP (fixed directional antenna stations), 200 MHz).

• * 47 GHz (47200-48200 MHz, Upper Microwave Flexible Use Service—Part 30; +75 dBm/100 MHz EIRP, 100 MHz).

• * 70 GHz (71000-76000 MHz Millimeter Wave Service—Part 101; +55 dBW EIRP, 5,000 MHz).

• * 80 GHz (81000-86000 MHz Millimeter Wave Service—Part 101; +55 dBW EIRP, 5,000 MHz).

• * 90 GHz (92000-94000 MHz and 94100-95000 MHz Millimeter Wave Service—Part 101; +55 dBW EIRP, 2,900 MHz).

In addition, the following conditions also apply to this Colo Void policy. First, if an antenna system, operating in the designated frequency bands, causes EMI to air navigation, including communication facilities and aviation radio frequency services, the FAA will contact the proponent. The proponents must mitigate the EMI in a timely manner, as recommended by the FAA in each particular case. Depending on the severity of the interference, the proponent must eliminate harmful EMI either by adjusting operating parameters (for example, employing extra filtering or reducing effective radiated power), or by ceasing transmissions, as may be required by the FCC and the FAA. Failure to provide successful EMI mitigation techniques will result in referral to the FCC's Enforcement Bureau for possible enforcement action. Second, this policy only applies to current technologies and modulation techniques (for example, analog, time division multiple access, and Global System Mobile Communications) existing in the wireless radiotelephone environment on the date of issuance of this policy. Any future technologies placed into commercial service by wireless service providers, although operating on the frequencies mentioned above, must provide notification to the FAA under 14 CFR part 77 procedures.

As has been the case with previous policy updates, the FAA will continue to revise the conditional language in future cases involving Determination of No Hazard to Air Navigation to reflect this policy. Furthermore, this policy applies retroactively to any structure for which the FAA has issued a Determination of No Hazard to Air Navigation.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because we must establish the special local regulation by July 9, 2022 and lack sufficient time to request public comments and respond to these comments before the special local regulation must be established.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the Marietta River Front Roar taking place on the Ohio River between mile marker 171 and mile marker 173.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041; 33 CFR 1.05-1. The Captain of the Port Ohio Valley (COTP) has determined that potential hazards associated with Marietta River Front Roar starting July 9, 2022, will be a safety concern for anyone on the Ohio River from mile marker 171 to mile marker 173. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the special local regulation for the duration of the powerboat races.

This rule established a special local regulation from 9:30 a.m. through 5 p.m. on July 9, 2022, and 9:30 a.m. through 4 p.m. on July 10, 2022. The special local regulation will cover all navigable waters between mile markers 171 and 173 on the Ohio River. The duration of the regulated area is intended to protect personnel, vessels, and the marine environment in these navigable waters for the duration of the powerboat races. No vessel or person will be permitted to enter the regulated area without obtaining permission from the designated representative.

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

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

This regulatory action determination is based on the size and location of the special local regulation. This rule involes a special local regulation lasting less than a week and covering a limited area of 3 nautical miles. In addition, vessel traffic will be able to reach out to the safety boat to coordinate safe passage through the special local regulation which will impact a 3 mile stretch on the Ohio River. The Coast Guard will publish a Local Notice to Mariners (LNMs), and issue a Broadcast Notice to Mariners (BNMs) via VHF-FM marine channel 16 about the regulated area.

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting from 9:30 a.m. through 5 p.m. on July 9, 2022 and 9:30 a.m. through 4 p.m. on July 10, 2022 that will limit access of the Ohio River from mile marker 171 to mile marker 173. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

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

On May 18, 2022 (87 FR 30129), EPA proposed to approve the 2015 Ozone NAAQS redesignation and maintenance plan for the Indiana portion of the Louisville area and IDEM's 2035 VOC and NO X motor vehicle emission budgets for the Indiana portion of the Louisville area. EPA also proposed to approve IDEM's emission inventory for the Indiana portion of the Louisville area under the 2015 Ozone NAAQS, and IDEM's emission statement certification for the 2015 ozone standard. An explanation of the CAA requirements, a detailed analysis of the revisions, and EPA's reasons for proposing approval were provided in the notice of proposed rulemaking and will not be restated here. The public comment period for this proposed rule ended on June 17, 2022. EPA received no comments on the proposal. We are finalizing our action as proposed.

EPA finds that the Indiana portion of the Area is attaining the 2015 ozone NAAQS based on quality-assured and certified monitoring data for 2019-2021 and that the Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus approving a change in the legal designation of the Indiana portion of the Area from nonattainment to attainment for the 2015 ozone NAAQS. EPA is also approving, as a revision to the Indiana SIP, the State's maintenance plan for the Area. The maintenance plan is designed to keep the Indiana portion of the Area in attainment of the 2015 ozone NAAQS through 2035. EPA also finds adequate and is approving the 2035 VOC and NO X motor vehicle emission budgets for the Indiana portion of the Area. EPA is further approving the base year emissions inventories for the Indiana portion of the Area under the 2015 ozone NAAQS. Finally, we are confirming that Indiana has acceptable and enforceable annual emission statement regulations that require all facilities located in Lake, Porter, Clark, and Floyd Counties that emit greater than or equal to 25 tons/year of NO X or VOC during the reporting year to submit annual emissions statements.

In accordance with 5 U.S.C. 553(d) of the Administrative Procedure Act (APA), EPA finds there is good cause for this action to become effective immediately upon publication. The immediate effective date for this action is authorized under 5 U.S.C. 553(d)(1).

Section 553(d)(1) of the APA provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction.” The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However, when the agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. EPA has determined that this rule relieves a restriction because this rule relieves sources in the area of Nonattainment New Source Review (NNSR) permitting requirements; instead, upon the effective date of this action, sources will be subject to less restrictive Prevention of Significant Deterioration (PSD) permitting requirements. For this reason, EPA finds good cause under 5 U.S.C. 553(d)(1) for this action to become effective on the date of publication of this action.

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

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

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

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

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

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

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

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

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

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

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

This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 6, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, 40 CFR parts 52 and 81 are amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0386 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before September 6, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0386, by one of the following methods:

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

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

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

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

In the Federal Register of October 21, 2021 (86 FR 58239) (FRL-8792-04-OCSPP) EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1E8905) by IR-4, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The October 21, 2021, document incorrectly identified the petition number as 1E9805. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide pyriofenone in or on the pepper/eggplant subgroup 8-10B at 2 parts per million (ppm) and the tomato subgroup 8-10A at 0.3 ppm. The petition also requested to remove the existing tolerance on vegetable, fruiting, group 8-10 at 0.3 ppm. That document referenced a summary of the petition, which is available in the docket, https://www.regulations.gov. One comment was submitted by the United States Department of Agriculture (USDA) in response to the notice of filing. The comment was in support of the petition.

Based upon review of the data supporting the petition and in accordance with its authority under FFDCA section 408(d)(4)(A)(i), EPA is establishing the tolerances at different levels than petitioned for and is modifying the crop group definition to be consistent with Agency terminology. A discussion of these modifications can be found in section IV.C.

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

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

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

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

Toxicological profile. For a discussion of the Toxicological Profile of pyriofenone, see Unit III.A. of the May 30, 2019, rulemaking (84 FR 24983) (FRL-9993-11).

Toxicological points of departure/Levels of concern. For a summary of the Toxicological Points of Departure/Levels of Concern for pyriofenone used for human risk assessment, please reference Unit III.B. of the May 30, 2019, rulemaking.

Exposure assessment. EPA's dietary exposure assessments have been updated to include the additional exposure from the new greenhouse uses of pyriofenone on the pepper/eggplant subgroup and tomato subgroup. An acute dietary exposure assessment was not performed as there are no appropriate toxicological effects attributable to a single exposure (dose). A conservative chronic dietary exposure assessment was performed for pyriofenone, assuming 100 percent crop treated (PCT), tolerance-level residues, and default processing factors. The chronic dietary exposure assessment was revised to reflect the updated Dietary Exposure Evaluation Model that incorporates the What We Eat in America (WWEIA) consumption data from 2005-2010. The chronic estimated drinking water concentration (EDWC) of 3.9 ppb is unchanged from the May 30, 2019, rulemaking and was directly incorporated into the chronic assessment. A cancer dietary assessment was not conducted because pyriofenone is classified as “not likely to be carcinogenic to humans.” Because there are no existing or proposed residential uses associated with pyriofenone, there is not expected to be any residential handler exposure or post-application exposures.

Cumulative exposure. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to pyriofenone and any other substances and pyriofenone does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that pyriofenone has a common mechanism of toxicity with other substances.

Safety factor for infants and children. EPA continues to conclude that there are reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor from 10X to 1X. See Unit III.D. of the May 30, 2019, rulemaking for a discussion of the Agency's rationale for that determination.

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

An acute dietary exposure assessment was not performed as there were no appropriate toxicological effects attributable to a single exposure (dose) observed in available oral toxicity studies, including maternal toxicity in the developmental toxicity studies. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD; they are 4.9% of the cPAD for children 1 to 2 years old, the group with the highest exposure. There are no proposed or registered residential uses; therefore short- and intermediate-term residential exposure is not expected. Pyriofenone is classified as “Not Likely to Be Carcinogenic to Humans”; therefore, EPA does not expect pyriofenone exposures to pose an aggregate cancer risk.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to pyriofenone residues. More detailed information on this action can be found in the document titled “Pyriofenone. Human Health Risk Assessment for Section 3 Registration of Pyriofenone in Greenhouses for Crop Groups 8-10 and 9” in docket ID EPA-HQ-OPP-2021-0386.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the May 30, 2019, rulemaking.

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

Codex has not established MRLs on crop subgroups 8-10A (tomato subgroup) or 8-10B (pepper/eggplant subgroup).

The Organisation for Economic Co-operation and Development (OECD) maximum residue limit (MRL) Calculation Procedures of the tomato residue data result in a tolerance of 0.2 ppm; EPA is thus establishing a tolerance of 0.2 ppm for tomato subgroup 8-10A instead of the petitioned-for level of 0.3 ppm. The correct crop subgroup name for 8-10B is pepper/eggplant subgroup 8-10B, not pepper/eggplant 8-10B. As a housekeeping measure, EPA is removing the tolerance for fruit, small vine climbing subgroup 13-07D, which expired on October 6, 2021.

In this rule, EPA is establishing a tolerance for pyriofenone residues in or on the tomato subgroup 8-10A at 0.2 ppm that is lower than the current tolerance of vegetable, fruiting, group 8- 10 (0.3 ppm). For the reasons explained in the Pyriofenone Human Health Risk Assessment, the Agency believes these revised, lower tolerances are appropriate based on available residue data.

In accordance with the World Trade Organization's (WTO) Sanitary and Phytosanitary Measures (SPS) Agreement, EPA intends to notify the WTO of the changes to these tolerances in order to satisfy its obligations under the Agreement. In addition, the SPS Agreement requires that Members provide a “reasonable interval” between the publication of a regulation subject to the Agreement and its entry into force to allow time for producers in exporting Member countries to adapt to the new requirement. Accordingly, EPA is retaining the existing tolerances for the commodities in tomato subgroup 8-10A by establishing an expiration date for the tomato subgroup 8-10A at the existing tolerance level of 0.3 ppm to allow this tolerance to remain in effect for a period of six months after the effective date of this final rule. (Although crop group 8-10 also includes a subgroup 8-10C for which EPA is not setting separate tolerances, all of the commodities in subgroup 8-10C are also included in subgroup 8-10B, for which EPA is establishing a higher tolerance at 2 ppm; therefore, there is no need to retain a separate tolerance for subgroup 8-10C.) After the six-month period expires, the allowable residues on members of the tomato subgroup 8-10A must conform to the new lower tolerance level of 0.2 ppm. This reduction in tolerance level is not discriminatory; the same food safety standard contained in the FFDCA applies equally to domestically produced and imported foods. The new tolerance levels are supported by available residue data.

Therefore, tolerances are established for residues of pyriofenone in or on the pepper/eggplant subgroup 8-10B at 2 ppm and the tomato subgroup 8-10A at 0.2 ppm. Additionally, the existing tolerance for the vegetable, fruiting, group 8-10 is removed but the tolerance for tomato subgroup 8-10A at the existing level of 0.3 ppm is designated to expire 6 months from the publication of this document. Finally, EPA is removing the tolerance for fruit, small vine climbing subgroup 13-07D that expired on October 6, 2021, which completes the implementation of the pyriofenone tolerance changes in the April 15, 2021 rulemaking (86 FR 17545) (FRL-10019-55). The tolerance for fruit, small vine climbing subgroup 13-07D is no longer needed because, in 2021, EPA established separate tolerances for residues of pyriofenone in/on grape; grape, raisin; and fruit, small vine climbing, except grape, subgroup 13-07E. Subgroup 13-07E includes all the commodities in subgroup 13-07D other than grape.

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

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

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

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

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

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

You may be potentially affected by this action if you manufacture (defined by TSCA to include import), process, or use chemical substances subject to regulations in 40 CFR part 720, 721, or 723. The following list of North American Industry 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:

• Chemical Manufacturers (NAICS code 325).

• Petroleum and Coal Products (NAICS code 324).

• Merchant Wholesalers, Nondurable Goods (NAICS code 424).

If you have any questions regarding the applicability of this action, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine whether a use of a chemical substance is a “significant new use.” EPA is required to issue its determination through promulgation of a final rule after considering all relevant factors, including those listed in TSCA section 5(a)(2). Such rules are called “significant new use rules” (SNURs). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before manufacturing or processing a chemical substance for that use (15 U.S.C. 2604(a)(1)(B)). TSCA section 5(a)(1)(B) requires persons to notify EPA at least 90 days before manufacturing a new chemical substance for commercial purposes (under TSCA, manufacture includes import). TSCA section 3(11) defines a “new chemical substance” as any substance that is not on the TSCA Inventory of Chemical Substances compiled by EPA under TSCA section 8(b).

EPA is finalizing amendments to the general requirements for SNURs in 40 CFR part 721, Significant New Uses of Chemical Substances that were proposed in 2016 (81 FR 49598, July 16, 2016) (FRL 9944-47) (Ref. 1). Based on public comments received on proposed changes to 40 CFR 721.63, EPA will move certain language which was proposed at 40 CFR 721.63(a)(1) and (4) to new paragraphs at 40 CFR 721.63(a)(7) and (a)(8), respectively, to ensure the new provisions only apply to SNURs issued after the finalization of this rule (see Unit III.A). With the exception of amendments proposed at 40 CFR 721.63(a)(1) and (4), all other amendments are being finalized as proposed. Most of the changes relate to the standard significant new uses for new chemical SNURs identified in 40 CFR 721 subpart B, which EPA cross-references in individual SNURs in subpart E. Other changes are procedural changes to the general provisions in subpart A that apply to all SNURs. EPA also clarified in the preamble of the proposed rule some definitions contained in 40 CFR part 721 and is making a minor change to reporting requirements for TSCA section 5 notices in 40 CFR parts 720.38, 720.45 and 723.50.

Based on changes that have occurred for respiratory protection requirements, codified in NIOSH regulations at 42 CFR part 84 and the OSHA standard at 29 CFR 1910.134, EPA is making changes to 40 CFR 721.63. In addition, based on the updates to 29 CFR 1910.1200, OSHA's modified Hazard Communication Standard (HCS) published March 26, 2012 (77 FR 17574) (Ref. 2), EPA is making changes to 40 CFR 721.72. EPA is also amending 40 CFR part 721 subparts A and B and clarifying definitions contained in 40 CFR part 721. EPA is making these changes and clarifications based on its experience in issuing and administering over 2,800 SNURs. Many of the changes are based on public comments received by EPA in the course of proposing and issuing SNURs, and questions or suggestions from the public regarding current SNUR requirements, such as considering a hierarchy of controls before using personal protective equipment to control exposures, clarifying the meaning of certain uses under 40 CFR 721.80(j), allowing for removal in wastewater treatment when computing estimated surface water concentrations according to 40 CFR 721.91, and revising the bona fide procedure in 40 CFR 721.11 to include coverage of situations where the significant new use terms are confidential.

There will be a minor increase in the overall compliance burden and cost due to the modified requirements in 40 CFR parts 720, 721, and 723. The modified SNUR requirements will be compatible with the current hazard communication requirements under 29 CFR 1910.1200 and the respiratory protection requirements at 42 CFR part 84 and 29 CFR 1910.134. The new paragraphs at 40 CFR 721.63(a)(7) and (8) will only apply to SNURs proposed after this final rule and are aligned with current industry practice. The modified SNUR requirements at 40 CFR 721.72 will also allow, but not require, persons subject to a SNUR that has been previously issued to use the updated requirements of 40 CFR 721.72.

The economic analysis for this final rule (Ref. 3) estimates that the amendments for new chemical SNURs and section 5 notices would result in a combined total first year burden and cost of 1,585 hours and $94,731, respectively. The total steady state increase cost is $54,029 per year. On a per unit basis, the rule would impose startup costs ranging from $0 to $74.89 per new chemical SNUR, with incremental steady states costs ranging from $0 to $137.18.

On July 16, 2016 (Ref. 1), EPA proposed amendments to the regulations governing significant new uses of chemical substances under TSCA to align these regulations with revisions to the OSHA HCS, which are cross referenced. EPA further proposed the July 2016 amendments to align with changes to the OSHA Respiratory Protection Standard and the NIOSH respirator certification requirements for the respiratory protection of workers from exposure to chemicals. EPA also proposed revising the regulations governing SNURs, based on issues that have been identified by EPA and raised by stakeholders through the public comment process. Additionally, EPA proposed making a minor change to reporting requirements for premanufacture notices (PMNs) and other TSCA section 5 notices.

Enacted on June 22, 2016, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act) (Pub. L. 114-182) amended several sections of TSCA, including section 5. Among other changes, the Lautenberg Act added a new paragraph to TSCA section (5)(a)(3) titled “Review and Determination”, which obligates EPA to review and issue a determination on each notice received under section 5(a)(1) within the applicable review period. As amended by the Lautenberg Act, EPA is also now required to issue an order pursuant to TSCA section 5(e)(1) when it makes a determination under TSCA section 5(a)(3)(B) that either: (1) The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the chemical substance; (2) In the absence of sufficient information, the chemical substance may present an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA; or (3) The chemical substance is or will be produced in substantial quantities and may either enter the environment in substantial quantities or result in significant or substantial human exposure. While these amendments impact EPA's review of significant new use notices (SNUNs), the Lautenberg Act did not affect the amendments EPA proposed on July 16, 2016 (81 FR 4959) (Ref. 1), which EPA is now finalizing.

The manner in which the different subparts of 40 CFR part 721 are applied to new chemical SNURs and existing chemical SNURs is summarized in Table 1. EPA typically utilizes subparts B, C, and D when issuing new chemical SNURs for certain chemical substances that have undergone PMN review. Other SNURs, including existing chemical SNURs, may be issued for chemical substances either not on the TSCA Inventory or for those on the TSCA Inventory that typically have not undergone PMN review. In issuing existing chemical SNURs, EPA does not use subpart B or D but may apply the standard recordkeeping requirements in subpart C. The general requirements of subpart A apply to all SNURs unless these specific requirements are modified in the significant new use requirement section for a specific chemical substance listed in subpart E. Finally, Subpart E lists significant new use and recordkeeping requirements for new and existing chemical substances.

EPA is making substantive changes and clarifications to language in Subparts A and B of 40 CFR 721. The changes to Subpart A will affect all SNURs. The changes in Subpart B may affect some previously issued new chemical SNURs already in subpart E and will affect future new chemical SNURs issued using the changed terms in Subpart B. Unit III describes each change and how these changes may affect previously issued SNURs, as well as SNURs issued after this rule becomes effective. Not all of the previously issued new chemical SNURs will be affected by the changes in Subpart B. For example, as described in the economic analysis for this final rule (Ref. 3) and according to the EPA Chemical Data Report (CDR) for Reporting Year 2015, 107 chemicals were reported in commerce and subject to new chemical SNURS. Only 18 of the 107 SNURs contained provisions for worker protection and/or hazard communication. In March 2012, OSHA modified its Hazard Communication Standard (HCS) to conform to the United Nations' Globally Harmonized System of Classification and Labelling of Chemicals (GHS). OSHA's March 2012 regulatory amendments sought to enhance the effectiveness of the HCS by ensuring employees are apprised of the chemical hazards to which they may be exposed and reducing incidents of chemical-related occupational illnesses and injuries (Ref. 2). The GHS is an internationally harmonized system for classifying chemical hazards and developing labels and safety data sheets (SDS). The GHS further acts as a set of criteria and provisions that regulatory authorities can incorporate into existing systems or use to develop new systems.

The GHS utilizes a building block approach, which allows a regulatory authority to implement certain provisions that are appropriate for its sphere of regulation. The GHS includes the regulatory components, or building blocks, that might be needed for classification and the labeling requirements for chemicals in the workplace, transport, pesticides, and consumer products. The 2012 amendments OSHA made to the HCS adopted certain sections of the GHS that were appropriate for OSHA's regulatory sector. The building block approach also gives regulatory agencies the authority to select which classification criteria and provisions to adopt. For example, OSHA adopted the classification criteria and provisions for labels and SDSs, because the current HCS covers these elements. As described in Unit III, EPA is adopting some of the GHS criteria for hazard communication pertaining to aquatic toxicity.

EPA received 18 public comments on the proposed rule. Commenters included potentially affected businesses, trade associations, environmental and public health advocacy groups, and other Federal agencies. In this preamble, EPA has responded to many of the significant comments relevant to the proposed rule; however, the more comprehensive version of EPA's response to comments related to this final action can be found in the Response to Comments document (Ref. 4). The Response to Comment document summarizes all the comments relevant to the proposal and EPA's response to those comments. In the Response to Public Comments document, EPA also discusses any changes to and clarifications from the proposed rule.

This final rule is based on the July 2016 proposal and consideration of the public comments received on the proposed rule.

As a result of changes to OSHA and NIOSH requirements, and other issues identified through EPA's experience issuing and administering SNURs, EPA is making several changes to the SNUR regulations in subparts A and B. The following sections describe the changes and the reasons for the changes.

Based on changes that have occurred in respiratory protection requirements since 1989, per the NIOSH regulation at 42 CFR part 84 and the OSHA standard at 29 CFR 1910.134, EPA is making changes to 40 CFR 721.63. In June 1995, NIOSH updated and modernized its regulation for testing and certifying non-powered, air-purifying, and particulate-filter respirators (42 CFR part 84). The 42 CFR part 84 respirators have met a higher certification test than older respirators previously certified under 30 CFR part 11 and provide increased worker protection (Ref. 5). Because the 42 CFR part 84 test criteria simulate worst-case respirator use, NIOSH has encouraged discontinuing the use of particulate respirators certified under 30 CFR part 11 and switching to particulate respirators certified under 42 CFR part 84. However, non-powered particulate respirators that were approved under 30 CFR part 11 using the “old” labeling were allowed to be manufactured and sold until July 10, 1998. Specifically, distributors who purchased 30 CFR part 11 particulate filters and respirators prior to July 10, 1998, are able to sell them as “certified” until inventories of these products are depleted. Users who purchased such particulate filters and respirators from these distributors will be able to use them until their inventories are depleted or until the end of the shelf life or service life of these products.

Additionally, in January 1998, OSHA's revised Respiratory Protection Standard (29 CFR 1910.134) replaced the respiratory protection standards adopted by OSHA in 1971 (Ref. 6). Subsequently, in August 2006, OSHA announced that it modified its Respiratory Protection Standard (29 CFR 1910.134) by adding definitions as well as maximum use concentration (MUC) and assigned protection factor (APF) requirements to 29 CFR 1910.134 (Ref. 7). Due to these changes, the respirators currently listed in 40 CFR 721.63 may no longer meet the current NIOSH/OSHA criteria for respirator selection and use.

EPA is updating language pertaining to respiratory protection requirements listed in 40 CFR 721.63(a)(4), (a)(5), and (a)(6) to be consistent with both OSHA and NIOSH requirements. In 40 CFR 721.63(a)(4), which requires that respirators be used in accordance with 30 CFR part 11, EPA is replacing the reference to 30 CFR part 11 with a reference to 42 CFR part 84 to incorporate the most updated NIOSH regulation for testing and certifying respirators. Most manufacturers and processors are already subject to and complying with 42 CFR part 84. This change will apply to all previously issued SNURs that contain significant new use requirements pertaining to respiratory protection by clarifying manufacturers and processors subject to current SNURs can follow updated respiratory protection requirements without triggering a SNUN requirement. The updated language will also be included in the issuance of new SNURs as appropriate.

EPA is also updating NIOSH-certified respirator language in 40 CFR 721.63(a)(5). At the time of the proposal, EPA had been incorporating the updated NIOSH-certified respirator language in newly issued SNURs rather than referencing the respirator language currently listed in 40 CFR 721.63(a)(5). EPA has continued citing the new respirator language in SNURs issued since this rule was proposed in July 2016 (81 FR 49598). The finalized provisions to 40 CFR 721.63(a)(5) will standardize the use of the updated NIOSH-certified respirator language and allow EPA to cross-reference the language for new chemical SNURs rather than on an individual basis.

EPA has included language that allows any person subject to SNURs with older respirator requirements in 40 CFR 721.63(a)(5) already cited in subpart E to continue using older-style respirators in order to avoid the triggering of a SNUN requirement. These fifteen older respirators are listed in 40 CFR 721.63(a)(5)(i) through (xv). EPA also includes language in 40 CFR 721.63(a)(5) that would allow any person subject to the older respirator requirements in 40 CFR 721.63(a)(5)(i) through (xv) to use an equivalent respirator under the newer requirements, provided that the APF of the new respirator is equal to or greater than the respirator cited in subpart E. EPA has included in the public docket a chart comparing the APF of the respirator classes in the current regulations with the previous corresponding respirator requirements that can be consulted in order to determine availability of suitable substitutes (Ref. 8). The amendment to 40 CFR 721.63(a)(6) also updates language for the airborne form of a chemical substance applicable to the respiratory protection requirements in 40 CFR 721.63(a)(4). EPA will cite this language when issuing new SNURs.

EPA is also revising 40 CFR 721.63 to add language that would make it a significant new use not to implement a hierarchy of controls to protect workers. This revision will require any person subject to an applicable SNUR to determine and use appropriate engineering and administrative controls before using personal protective equipment (PPE) for worker protection, similar to the requirements in OSHA standards at 29 CFR 1910.134(a)(1) and guidance in Appendix B to subpart I of 29 CFR 1910.

This change is being made in part due to comments received on recently promulgated SNURs. Some of these comments identified the industrial hygiene “hierarchy of controls” approach for workplace health and safety and argued that persons subject to SNURs should follow the OSHA standards requiring the use of controls that are higher in the hierarchy of controls before requiring employees to use personal protective equipment (PPE). In final SNURs published on June 26, 2013 (78 FR 38210) (FRL-9390-6) (Ref. 9), EPA responded to the comments, agreeing that a hierarchy of controls should be applied, and that PPE should be the last option in controlling exposures. Where engineering and administrative controls are not feasible or are insufficient to protect exposed workers, persons who are subject to a SNUR must follow any applicable PPE requirements or submit a SNUN to EPA. Since June 26, 2013, new chemical SNURs containing significant new uses related to lack of PPE for workers have included the same language requiring consideration and implementation of engineering controls and administrative controls where feasible. These requirements to consider engineering and administrative controls are based on and consistent with the OSHA requirements at 29 CFR 1910.134(a)(1).

In the July 2016 proposal (81 FR 49598), EPA proposed revising 40 CFR 721.63(a)(1) and 40 CFR 721.63(a)(4) to add language requiring consideration and use of engineering and administrative controls where feasible before PPE for worker protection. This change would have affected SNURs issued after this rule became effective in addition to previously issued SNURs that incorporate references to worker protection standards at 40 CFR 721.63(a)(1) and 40 CFR 721.63(a)(4). However, based on public comments, EPA has decided to move the language that was proposed at 40 CFR 721.63(a)(1) and 40 CFR 721.63(a)(4) to new paragraphs 40 CFR 721.63(a)(7) and 40 CFR 721.63(a)(8), respectively. These new paragraphs will not affect previously issued SNURs but rather, will only be applicable to SNURs issued or amended after this rule becomes effective. While EPA is not updating the language referenced by many existing SNURs, EPA continues to affirm that a hierarchy of controls should be applied, and that PPE should be the last option in controlling exposures. Additionally, EPA believes that most companies are already following a hierarchy of controls as required by OSHA regulations. EPA's response to public comments on the hierarchy of control language can be found in the Response to Comment document for this rule (Ref. 4).

Based on the changes to 29 CFR 1910.1200, OSHA's modified HCS, EPA is making changes to 40 CFR 721.72. In March 2012, OSHA modified its HCS to conform to the United Nations' Globally Harmonized System of Classification and Labelling of Chemicals (GHS). OSHA's March 2012 regulatory amendments sought to enhance the effectiveness of the HCS by ensuring that employees are apprised of the chemical hazards to which they may be exposed and reducing incidents of chemical-related occupational illnesses and injuries (Ref. 2). Modifications to the HCS include revised criteria for classification of chemical hazards; revised labeling provisions that include requirements for use of standardized signal words, pictograms, hazard statements, and precautionary statements; a specified format for safety data sheets; and related revisions to definitions of terms used in the HCS and requirements for employee training on labels and safety data sheets (Ref. 2).

Under EPA's current regulations, when SNURs are issued with a citation to 40 CFR 721.72 in subpart E for a chemical substance, it is considered a significant new use if the company does not develop a written hazard communication program for the substance in the workplace. Paragraphs (a) through (h) of 40 CFR 721.72 can be cited in subpart E as elements that must be included in the hazard communication program. Manufacturers and processors subject to a SNUR in subpart E for a chemical substance can rely on an existing hazard communication program, such as one established under the OSHA HCS or one based on GHS recommendations, to comply with this significant new use requirement to the extent the hazard communication program contains elements cited for that SNUR from 40 CFR 721.72 paragraphs (a) through (h).

EPA is adding new paragraphs (i) and (j) to 40 CFR 721.72 that it will use when imposing hazard communication requirements for SNURs issued after this rule becomes effective. The new paragraph (i) will require that a written hazard communication program be developed and implemented for the substance in each workplace in accordance with OSHA HCS 29 CFR 1910.1200.

This approach will maintain consistency in compliance for any person subject to TSCA and OSHA regulations for the same activity. By cross-referencing the OSHA HCS EPA should minimize duplication of requirements and minimize potential confusion that additional obligations are being created. In addition, any amendments to the OSHA HCS will be automatically encapsulated without EPA having to amend its own regulations. This approach is also consistent with the requirement for EPA to coordinate with other federal executive departments and agencies under TSCA section 9(d) to impose “the least burdens of duplicative requirements on those subject to the chapter and for other purposes.”

The new paragraph (j) describes specific statements and other warnings that could be incorporated in SNURs for substances identified in subpart E. The specific statements and warnings that could be required would be based on EPA's risk assessment of the chemical substance and would be consistent with the OSHA HCS and GHS recommendations.

EPA expects that, whenever the statements in paragraphs (g), (h), and (j) are required and the determinations for the SNUR are published, manufacturers and processors subject to the SNUR will also consider if they trigger any other corresponding hazard communication under the OSHA HCS requirements or under GHS recommendations. Any hazard and/or precautionary statements required by the SNUR will include a minimum set of hazard warnings. EPA may also propose individual SNURs or issue section 5(e) SNURs under 40 CFR 721.160 using other specific statements, signal words, symbols, hazard category, and pictograms as hazard communication requirements.

EPA is updating 40 CFR 721.72 paragraphs (a) through (h) to be consistent with both OSHA requirements and GHS recommendations. These changes apply to individual SNURs in subpart E issued before the effective date of this final rule as described in the next two paragraphs. EPA is making changes to 40 CFR 721.72 paragraphs (a), (c), and (d) to change using the term “material safety data sheet” (MSDS) to “safety data sheet” (SDS) and allow easily accessible electronic versions or other alternatives to maintaining paper copies of the SDS. These changes apply to any previously issued SNUR in subpart E that cites these paragraphs. EPA is also adding new hazard and precautionary statements, listed in 40 CFR 721.72 paragraphs (g) and (h), to make this provision consistent with statements under the OSHA HCS requirements and the GHS recommendations. While the previously issued SNUR precautionary and hazard statements will remain applicable solely for previously issued SNURs, EPA has also identified which of the new statements can be used as alternatives for the previously issued precautionary and hazard statements. Manufacturers and processors subject to a previously issued SNUR will have the option to use the prior precautionary and hazard statements or use the new alternative statements that are consistent with the OSHA HCS requirements or GHS recommendations to comply with the SNUR.

EPA is also including language which allows any person subject to a previously issued SNUR containing requirements for 40 CFR 721.72 paragraphs (a) through (h) to comply with those requirements by following the requirements of 40 CFR 721.72 paragraph (i), which will be applied to SNURs issued after this final rule, and using any statements specified for that substance in the 40 CFR 721.72 paragraphs (g) or (h). For example, a person currently subject to a SNUR citing the requirement to establish a hazard communication program as described in 40 CFR part 721.72 paragraphs (a) through (f) and the requirement for using a hazard statement in paragraph (g)(1)(iii), central nervous system effects, could comply by taking the following steps: That person could establish a hazard communication program according to the requirements in paragraph (i) and use the hazard statement in paragraph (g)(1)(iii), “central nervous system effects,” or the alternative hazard statement (g)(1)(xi), “may cause damage to the central nervous system through prolonged or repeated exposure.”

EPA recommends using a Chemical Abstracts Service (CAS) number to identify the chemical substance in an SDS whenever possible. EPA makes this recommendation because CAS numbers are widely used by industry to provide a unique, unambiguous identifier for chemical substances. Only when a CAS number is not available should a different unique numerical identifier be used. Because of variations in naming conventions for chemical substances, using CAS numbers makes it easier for the regulated community to accurately identify and report chemical identities. For example, upon importation of a chemical substance, if the chemical substance is being identified to assure compliance with regulatory requirements, providing the most specific CAS number is the most efficient and clear way to ensure this. The changes for SNUR hazard communications requirements concerning how to identify chemical substances are consistent with OSHA regulations.

EPA is also clarifying the significant new use for new chemical SNURs described at 40 CFR 721.80(j), which identifies as a significant new use as “Use other than as described in the premanufacture notice referenced in subpart E of this part for the substance.” EPA is not changing the language of 721.80(j). Instead, EPA is clarifying how it identifies a significant new use that meet the criteria in 721.80(j) for individual SNURs. When EPA issues a SNUR using the designation at 40 CFR 721.80(j) in subpart E for a chemical substance and that use described in the premanufacture notice is claimed as confidential, EPA cites 40 CFR 721.80(j). See Unit III.E for a discussion of how manufacturers and processors subject to a SNUR with a confidential significant new use designation can currently file a bona fide inquiry to determine whether a specific use is a significant new use and EPA's amendments for future bona fide inquiries. In identifying the significant new use in subpart E for certain previously issued SNURs where the use described in the premanufacture notice was not claimed confidential, EPA cited 40 CFR 721.80(j) and included the PMN use described in the premanufacture notice in parentheses. EPA has received public comments in response to proposed SNURs and pre-notice inquiries for SNUNs stating that manufacturers and processors subject to SNURs find it confusing when EPA cites 40 CFR 721.80(j) and then identifies the PMN use in parentheses. These comments and inquiries have explained that when EPA cites the new use this way it appears as though the significant new use is the use in the parentheses, where the significant new use is actually use other than the use in parentheses.

To better identify the significant new use, EPA has changed this procedure to only cite 40 CFR 721.80(j) when the use described in the PMN is confidential. When the use described in the PMN is not confidential, EPA intends to identify the significant new use in a new chemical SNUR by describing the use, such as in the following example: “A significant new use is any use other than as a pesticide intermediate.” (This example was published in the direct final SNUR issued on February 12, 2014 (79 FR 8291) (Ref. 10) and is codified in subpart E at 40 CFR 721.10718.)

When EPA issues a new chemical SNUR citing the significant new uses described in 40 CFR 721.90 (a)(4), (b)(4), and (c)(4), the SNUR requires significant new use notification if the results of the equation for computation of estimated surface water concentrations in 40 CFR 721.91 exceed the level specified for that SNUR in subpart E. The equation estimates surface water concentrations based on the amount of a chemical substance released from industrial processes and the flows of the water body. The current equation does not take into consideration amounts of a chemical substance released to a surface water after control technology such as wastewater treatment. As proposed, EPA is revising this requirement to allow manufacturers and processors to account for reductions in surface water concentrations resulting from wastewater treatment. 40 CFR 721.91 contains instructions for the computation of estimated surface water concentrations according to the equation specified in 40 CFR 721.90 (a)(4), (b)(4), and (c)(4). EPA is revising the instructions at 40 CFR 721.91 to allow for a certain percentage of removal of a chemical substance from wastewater after undergoing control technology, applicable to the requirements at 40 CFR 721.90. EPA has previously allowed surface water concentrations to be calculated with a consideration of wastewater treatment in certain SNURs by adding regulatory text to individual rules. This change to 40 CFR 721.91 will make the consideration of control technology part of the calculations for the equation specified in 40 CFR 721.90 when cited in subpart E for a specific chemical substance. EPA will cite the control technology and the percentage removal for SNURs in subpart E, based on EPA's assessment of the effectiveness of the control technology for the specific chemical substance. The most common form of control technology in new chemical SNURs is wastewater treatment. However, EPA will not identify a percentage of removal from wastewater for every chemical substance subject to a SNUR with the significant new use specified in 40 CFR 721.90 (a)(4), (b)(4), and (c)(4). Rather, EPA, when appropriate, will identify an applicable removal percentage when issuing SNURs. The revised provisions will apply only when a removal percentage has been identified in the SNUR. This change does not apply to existing SNURs where a removal percentage has not been identified.

Due to questions and comments from manufacturers and processors expressing confusion around the meaning of the phrase “predictable or purposeful release” at 40 CFR 721.90, EPA is making changes to clarify the scope of the term. The phrase is used to qualify significant new uses pertaining to releases to water in 40 CFR 721.90. As described in the April 29, 1987 proposed rule, Proposed General Provisions for New Chemicals Follow-up (52 FR 15608) (Ref. 11), the phrase “predictable or purposeful” does not include releases where emergency conditions exist and significant new use notification is not possible. Therefore, routine or repeated activity that results in releases to water or non-routine releases to water that are not due to emergency conditions are included in the term “predictable or purposeful.” EPA does not intend the phrase “predictable or purposeful release” to limit the agency's strict liability authority under the statute.

Certain new chemical SNURs have a significant new use designation that is based on confidential business information (CBI) contained in the PMN and therefore, not disclosed in the published SNUR. Currently, for each SNUR containing a significant new use designation considered to be CBI, that SNUR cross-references the bona fide procedure in the specific SNUR in subpart E for 40 CFR 721.1725. Under the bona fide procedures, a manufacturer or processor may request EPA to determine whether a specific use would be a significant new use under the rule. The manufacturer or processor must show that it has a bona fide intent to manufacture or process the chemical substance and must identify the specific use for which it intends to manufacture or process the chemical substance. If EPA concludes that the person has shown a bona fide intent to manufacture or process the chemical substance, EPA will tell the person whether the use identified in the bona fide submission would be a significant new use under the rule.

When the chemical identity in a SNUR is CBI, 40 CFR 721.11 provides a means by which bona fide submitters can determine whether their substance is subject to the SNUR. However, as described in the previous paragraph, chemical identity is not the only information contained in a SNUR that may be claimed as CBI. EPA is modifying the bona fide procedure in 40 CFR 721.11 of subpart A so that it applies to all SNURs containing any CBI, including the significant new use. EPA finds it would be more efficient to have a bona fide procedure for determining confidential significant new uses in subpart A rather than referencing 40 CFR 721.1725(b)(1) each time EPA issues a SNUR containing a significant new use designation containing CBI. In addition, EPA is modifying the bona fide procedure that allows EPA to disclose the confidential significant new use designations to a manufacturer or processor who has established a bona fide intent to manufacture (including import) or process a particular chemical substance.

EPA is revising requirements in 40 CFR 720.38, 720.45, and 40 CFR 723.50 to require that any safety data sheet (SDS) already developed, even if in draft form, either to comply with OSHA requirements or for other purposes, must also be submitted as part of any notification or exemption application (PMN, SNUN, LVE, LoREX, or TME) under section 5 of TSCA. Many submitters already submit available SDSs as part of their submission and the information contained in SDSs is often useful for EPA's assessments of chemicals. This revision would not require submitters to develop an SDS. It only requires a submitter to submit an already-developed SDS as part of a notification under TSCA section 5, to the extent the SDS is known or reasonably ascertainable by the submitter.

EPA is correcting several typographical errors and more accurately applying the terms manufacture, manufacturer, and manufacturing to the regulatory text of sections 40 CFR parts 720, 721, and 723.

The following is a list of the documents that are specifically referenced in this document. The docket includes these documents, as well as other information considered by EPA that are not listed below, including documents that are referenced within the documents that are included in the docket. For assistance in locating docket items, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

OMB has approved the information collection activities contained in this rule pursuant to the PRA (44 U.S.C. 3501 et seq. ) and has assigned OMB control number 2070-0012 (EPA ICR No. 574.15). This action does not impose any new requirements requiring additional OMB approval under the PRA. Estimates presented below reflect minor incremental changes associated with the rule as presented in the Economic Analysis (Ref. 3).

Respondents/affected entities: Certain manufacturers (including importers) and processors (see Unit I.A.).

Respondent's obligation to respond: Mandatory under TSCA section 5. This rule does not change the obligation that is contained in individual chemical specific SNURs.

Estimated number of respondents: 1,226.

Frequency of response: On occasion, i.e., upon submission of a SNUN pursuant to individual chemical specific SNURs.

Total estimated incremental burden: 1,585 hours (for the first year), then 486 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated incremental cost: $ 94,731 (for the first year), then $ 54,029 (per year). This includes $0 annualized capital or operation & maintenance costs.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the Agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities. The Agency's basis is briefly summarized here and is detailed in the Economic Analysis (Ref. 3).

EPA has observed only a small proportion of SNUNs submitted by self-declared small businesses. To the extent that the percentage of small firms abiding by a SNUR is similar to the percentage of small firms submitting SNUNs, it is unlikely that a substantial number of small entities would be affected by this final rule's changes to SNUR requirements. Similarly, for TSCA section 5 notices, assuming that a similar small proportion of small firms are submitting all notices, it is likewise unlikely that substantial number of small entities would be affected by this final rule's changes.

EPA also concludes that the steady state incremental per-firm costs of complying with the rule, estimated to range from $23-$109 per firm (Ref. 3), are low compared to the cost of developing and marketing a chemical.

This action does not contain an unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and will not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments. Based on EPA's experience with proposing and finalizing SNURs, state, local, and tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any state, local, or tribal government would be impacted by this rulemaking. EPA concludes that this rule is not expected to result in expenditures by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (when adjusted annually for inflation) in any one year. Accordingly, this rule is not subject to the requirements of UMRA sections 202, 203, or 205. The Economic Analysis (Ref. 3) for this action is summarized in Unit I.E. and is available in the docket.

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because 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 (65 FR 67249, November 9, 2000), because it will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated as a significant energy action by the Administrator of the Office of Information and Regulatory Affairs.

This action does not involve technical standards that would require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272.

In accordance with Executive Orders 12898 (59 FR 7629, February 16, 1994) and 14008 (86 FR 7619, January 27, 2021), EPA finds that this action will not result in disproportionately high and adverse human health, environmental, climate-related, or other cumulative impacts on disadvantaged communities because this action does not establish an environmental health or safety standard.

This action is subject to the CRA, 5. U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons set forth in the preamble, 40 CFR chapter I is amended as follows:

This is summary of the Commission's Report and Order, PS Docket No. 20-187; FCC 22-36, adopted on May 19, 2022, and released on May 20, 2022. The full text of this document is available at https://www.fcc.gov/document/fcc-modernizes-and-improves-its-priority-services-rules-0. To request this document 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 FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Paperwork Reduction Act: This document does not contain new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Congressional Review Act: The Commission believes, and the Administrator of the Office of Information and Regulatory Affairs, OMB, concurs that these rules are non-major. As such, the rules are non-major under the Congressional Review Act, U.S.C. 804(2). The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

1. In this Report and Order, we update and streamline the Commission's priority services rules. These rules enable National Security and Emergency Preparedness (NSEP) personnel to obtain prioritized connectivity during emergency situations by authorizing prioritized provisioning and restoration of communications facilities and prioritized network access for wireless communications. The priority services programs are used to “maintain a state of readiness [and] to respond to and manage any event or crisis . . . [that] degrades or threatens the NSEP posture of the United States.”

2. The priority services rules have long been in need of an update to account for changes in technology. The Commission's current rules date back to the establishment of the Telecommunications Service Priority (TSP) System in 1988 and the creation of the Priority Access Service (PAS), more commonly referred to as Wireless Priority Service (WPS), in 2000. These rules were originally developed when communications networks were primarily based on circuit-switched technologies. As such, the rules do not address the advanced capabilities of next-generation communications technologies that support data and voice services, or the ability of users at different priority levels to share network capacity and resources.

3. In this Report and Order, we update our priority services rules to reflect today's marketplace and governance framework and to authorize explicitly the prioritization of next-generation technology. Specifically, we remove outdated language that may cause confusion or otherwise impede the use of next-generation technologies to support the provision of priority services for voice, data, and video communications. We also amend the rules to reflect the current framework for administration of priority services by the Department of Homeland Security (DHS) while eliminating burdensome and unnecessary requirements on service providers. These changes will reduce regulatory burdens and make our rules flexible enough to accommodate changing administrative requirements and technological advances related to the priority services programs.

4. For years, NSEP personnel have had access to priority services programs that support national command, control, and communications by providing prioritized connectivity over commercial communications infrastructure during national emergencies. Three specific programs support prioritized connectivity for NSEP users of telecommunications services: (1) TSP, (2) WPS, and (3) Government Emergency Telecommunications Service (GETS), which provides prioritization through the Public Switched Telephone Network. All three programs are administered by DHS's Cybersecurity and Infrastructure Security Agency (CISA). However, the Commission's rules only apply to TSP and WPS, while GETS operates solely via contractual arrangements between DHS and service providers.

5. TSP. The Commission's TSP rules require certain service providers to prioritize the provisioning and restoration of communications facilities to “ensure effective NSEP telecommunication services.” The TSP rules apply, on a mandatory basis, to common carrier services and “services which are provided by government and/or non-common carriers and are interconnected to common carrier services.” Service providers that are covered by the mandatory TSP rules must “maintain and provision and, if disrupted, restore facilities and services” in accordance with the prioritization levels outlined in the TSP rules. The Commission designed the TSP System to provide “a means by which carriers may provide priority provisioning or restoration service to a user without violating the unreasonable preference prohibition of Title II of the Communications Act.” The TSP System “allows the assignment of priority levels to any NSEP service” across three time periods, or stress conditions: (1) Peacetime/Crisis/Mobilizations; (2) Attack/War; and (3) Post-Attack/Recovery. There are more than 2,000 organizations enrolled in TSP ( e.g., military bases, federal agencies, hospitals) covering approximately 365,000 active circuits. Costs associated with TSP are governed by tariff or contract and TSP users may be responsible for one-time setup fees and monthly charges, in addition to the actual charges related to provisioning and restoration of the service. The Commission's TSP rules have not been substantively updated since they were initially adopted in 1988.

6. WPS. The Commission's WPS rules permit, but do not require, commercial mobile radio service (CMRS) providers to offer mobile wireless priority services. If a service provider elects to offer WPS, it must comply with the Commission's WPS rules, which establish the following five priority levels (ordered from highest to lowest): (1) Executive Leadership and Policy Makers; (2) Disaster Response/Military Command and Control; (3) Public Health, Safety and Law Enforcement Command; (4) Public Services/Utilities and Public Welfare; and (5) Disaster Recovery. WPS is provided on an individual-device basis, with users initiating wireless priority calls by entering a specified feature code for each call in order to activate priority treatment for that call. WPS users are responsible for commercial wireless subscription and equipment costs. One of the driving forces behind the FCC's decision to codify WPS rules was a concern that, in the absence of such rules, a service provider's decision to give NSEP users priority treatment might be considered a violation of the Act's non-discrimination provisions. There are more than 606,000 authorized WPS users across the U.S. and U.S. territories. The Commission's WPS rules have not been updated since they were initially adopted in 2000.

7. Developments Since the Commission's Initial Adoption of the Priority Services Rules. Both the telecommunications marketplace and the administrative framework of the priority services programs have evolved since the Commission adopted its priority services rules. Consumers are increasingly moving away from legacy telephone services that rely on traditional time-division multiplexing technology, and toward internet Protocol (IP)-based and next-generation services. Incumbent local exchange carriers are increasingly retiring copper facilities and replacing them with fiber and wireless spectrum-based technology that provides greater capacity and flexibility to support advanced communications services. The Commission has actively supported the transition from legacy networks to next-generation networks, and it has taken measures to reduce regulatory barriers to this transition.

8. While the transition from legacy network technology to IP-based technologies promises greater innovation, including for priority services programs, it may pose transitional challenges for NSEP communications that historically have relied on functionality found in legacy technologies. As carriers replace their legacy systems with new technologies and platforms, some of the features in priority services programs that were designed to be used on legacy systems will be more difficult and costly to maintain and ultimately could be rendered inoperable. The Government Accountability Office has observed that it is a “challenge . . . that IP networks may not support existing telecommunications `priority' services, which allow key government and public-safety officials to communicate during times of crisis.” Availability of priority services only on those traditional voice networks may hamper the ability of NSEP personnel to make effective use of cutting edge emergency response tools that rely on IP-supported data network availability.

9. Federal Agency Administration/Oversight of Priority Services Programs. Three agencies are primarily responsible for the oversight and administration of priority services programs—DHS, the Executive Office of the President (EOP), and the FCC. DHS is responsible for “oversee[ing] the development, testing, implementation, and sustainment of NS/EP communications,” including the priority services programs. DHS also maintains a Joint Program Office that is responsible for “coordination of programs that support NS/EP missions, priorities, goals, and policy.” DHS assists organizations with the enrollment process and issues TSP authorization codes. DHS also manages WPS through contract and reimbursement mechanisms. EOP is responsible for “[p]olicy coordination, guidance, dispute resolution, and periodic in-progress reviews” of NSEP telecommunications functions. Within EOP, the Office of Science and Technology Policy “advise[s] the President on prioritization of radio spectrum and wired communications that support NS/EP functions” and “issue[s] an annual memorandum . . . highlighting national priorities for . . . analyses, studies, research, and development regarding NS/EP communications.” The FCC, through the Public Safety and Homeland Security Bureau, works with DHS to ensure the priority services programs operate effectively and efficiently. The Commission supports DHS in the “operation and restoration of critical communications systems and services” by providing information on communications infrastructure, service outages, and restoration.

10. Notice of Proposed Rulemaking to Update the TSP and WPS Rules. In July 2020, the Commission adopted a Notice of Proposed Rulemaking (NPRM) proposing to modernize its priority services rules to cover priority treatment of voice, data, and video services for emergency personnel. The NPRM followed two petitions that the National Telecommunications and Information Administration (NTIA) filed on behalf of DHS—one in July 2018 and another in July 2019—which asked the Commission to update its TSP and WPS rules to reflect the current operations of the programs, incorporate the current Executive Branch governance structure, and address changes in technology and evolving user needs. The Bureau sought comment on both petitions via public notice.

11. In the NPRM, the Commission proposed to update its priority services rules in several key respects. First, it proposed to extend the rules to cover data, video, and IP-based voice services for NSEP personnel. Second, it proposed to streamline the rules by removing outdated requirements that may impede the use of IP-based technologies. Third, it proposed to amend the rules to reflect current administrative responsibilities for the priority services programs, while eliminating burdensome and unnecessary administrative requirements. We received nine comments and two reply comments in response to the NPRM. In addition, CISA and the First Responder Network Authority (FirstNet) submitted ex parte comments in December 2020. The comments generally express support for updating our priority services rules as proposed in the NPRM to reflect today's marketplace and governance framework and to account for next-generation communications technology.

12. Today, we update and streamline our priority services rules, as proposed in the NPRM, with certain modifications. First, we adopt changes that apply to both TSP and WPS, such as updating the Commission's responsibilities for the priority services programs and clarifying that service providers are authorized to offer prioritization of next-generation services and technologies, including IP-based voice, data, and video communications. Second, we adopt specific changes that apply only to TSP or WPS. In the TSP rules, we expand the list of services that are eligible for priority treatment and clarify the timing and level of effort required for provisioning and restoring service. In the WPS rules, we clarify the operation of the priority levels and expand both the types of services and the groups of users that are eligible for WPS. As explained below, we find that these changes will substantially increase the benefits to NSEP users and public safety while reducing the regulatory costs imposed on providers of priority services.

13. As noted above, the Commission's priority services rules have not been substantively updated since they were initially adopted, which has resulted in many provisions becoming outdated. In this section, we adopt proposals from the NPRM to modernize both our TSP and WPS rules to ensure they reflect current terminology, legal authorities, and administrative practices.

14. Program Administration. We adopt the NPRM proposal to amend our rules to reflect current responsibilities for administering the priority services programs. The roles and responsibilities of some federal agencies have shifted since these rules were originally adopted. Likewise, we find that service providers and NSEP users, as well as other federal agencies, will benefit from a description of the Commission's own responsibilities for the programs. Accordingly, we adopt the NPRM proposal, with minor revisions, to add the following language to part 64, Appendix A and Appendix B:

15. We also adopt the NPRM proposal to eliminate the provisions of part 64, Appendix A and Appendix B that describe the responsibilities of the Executive Office of the President (EOP) for the priority services programs. As noted in the NPRM, many of these responsibilities have since been transferred to other federal agencies, particularly DHS. In addition, while DHS and EOP have important responsibilities related to the priority services programs, we find it unnecessary to describe their functions in our rules.

16. Commenters generally support removing portions of the rules that describe EOP's responsibilities because Executive Order 13618 transferred most of EOP's functions to other federal agencies. CISA is the only commenter that opposes this change, contending that because EOP “retains immense WPS-related responsibilities” and has significant influence over TSP and WPS, the Commission's rules should continue to describe EOP's responsibilities. We agree with the majority of commenters that such description is unnecessary because EOP, DHS, and other Executive Branch agencies derive their legal authority from statutes and executive orders—not the Commission's rules. Thus, removing these references from our rules will have no legal or practical impact on the ability of these agencies to perform their functions. In addition, specific Executive Branch agency responsibilities for priority services could change in the future, in which case any codification of these responsibilities in our rules would become outdated and require further action by the Commission to update the rules.

17. We also amend Appendix A and Appendix B to reflect the actual, current administrative responsibilities and functions for the TSP and WPS programs, consistent with our proposal in the NPRM. Commenters generally oppose including rules that would require service providers to comply with “supplemental regulations and procedures” established by DHS. For example, CTIA asserts that such language could allow DHS to retroactively alter contracts, which, in turn, could “disrupt the contractual bargaining dynamic” between DHS and service providers. Verizon and T-Mobile argue that “without more explicit limitations on DHS's discretion,” such requirements “could risk undermining the Commission's intended light regulatory touch . . . as well as service providers' and DHS's flexibility to address novel technical issues.” Commenters also argue that the proposed language could violate the Administrative Procedure Act by “subjecting participating providers to changing obligations without an opportunity for notice and comment.”

18. We adopt a dual approach in our modifications of the TSP and WPS rules that reflects differences in the underlying programs. We amend our TSP rules (Appendix A, section 5, as amended) by replacing the references to EOP with DHS and modifying the terminology to indicate that DHS issues “policies” rather than “regulations” for TSP. However, we delete the corresponding provision in the WPS rules (Appendix B, section 3). We believe this dual approach is appropriate given the differing administrative frameworks governing TSP and WPS. For TSP, DHS uses supplemental documents, including an Operations Guide and Service Vendor Handbook, to outline the specific processes and procedures that TSP providers must follow. However, DHS does not use these supplemental documents for WPS, but rather, outlines specific policies and procedures in its contractual arrangements with service providers.

19. We do not agree with commenters who contend that the updated TSP rule would undermine the flexibility of service providers and DHS to address novel issues. The underlying rule has existed since the TSP rules were initially adopted and there is no indication in the record that it has led to imposition of unreasonable requirements on service providers or otherwise negatively impacted the program. Moreover, the rule only obligates TSP users and service providers to comply with DHS policies and procedures that are “consistent with” Appendix A. In the unlikely event that DHS were to issue policies and procedures that are inconsistent with Appendix A, the rule does not obligate TSP users to comply with them. Similarly, we do not believe the amended rule violates the APA because (1) the DHS policies and procedures are largely administrative in nature; and (2) if DHS were to issue substantive rules without notice and comment, our rule does not constrain TSP participants from challenging such rules on APA grounds.

20. Terminology. Consistent with our expansion of the priority services rules to encompass IP-based services, discussed below, we adopt our proposal to amend Appendix A and Appendix B, where appropriate, to include these new services and technologies. First, we replace certain references to “telecommunications services” with “National Security Emergency Preparedness (NSEP) services,” a broader term that we define to include both telecommunications services and all IP-based services. We adopt the NPRM proposal to amend the definition of “NSEP services” in Appendix A as follows:

We also adopt the same definition for “NSEP services” in Appendix B, except for the last sentence, which is specific to TSP. Further, we define the phrase “internet Protocol (IP)-based services,” as used in the definition of “NSEP services” as: “services and applications that feature digital communications capabilities and which generally use the internet Protocol.” These changes will ensure that the Commission's rules account for current service offerings and other technologies that may someday qualify for priority treatment. As discussed more fully below, commenters support updating our priority services rules to expand the scope of the services that are eligible for priority treatment.

21. In this section, we adopt many of the proposed and requested amendments to the Commission's TSP rules in part 64, Appendix A. Specifically, we (1) eliminate certain outdated references; (2) expand the list of services that are eligible for priority treatment; (3) update the rules to reflect current oversight practices; (4) expand the scope of federal employees authorized to invoke priority treatment; (5) adopt rules to enhance the protection of TSP data; and (6) clarify the timing and level of effort for provisioning and restoring service. Finally, we decline to amend our rules to require service providers to report provisioning and restoration times to DHS.

22. Outdated Provisions. As a result of the changes that have occurred since the TSP rules were initially adopted, some provisions of the rules have become outdated and unnecessary. To address this issue, we eliminate section 2 of part 64, Appendix A, which outlines requirements governing the migration of circuits from the legacy Restoration Priority program and mandating the continuation of certain Commission orders pending the implementation of the TSP program. We also eliminate section 10 of Appendix A, which specifies procedures for the resubmission of circuits that were assigned restoration priorities before the Commission adopted the TSP rules. Commenters support these changes.

23. Eligible Services. We adopt our proposal to maintain the current requirement that common carriers must offer prioritized restoration and provisioning of circuit-switched voice communication services. We also adopt the NPRM proposal to amend our rules to make clear that service providers may offer, on a voluntary basis, prioritized provisioning and restoration of data, video, and IP-based voice services. As originally drafted, the TSP rules were intended as a regulatory carveout to allow common carriers to provide telecommunications services, which would ordinarily be subject to the non-discrimination requirements of Section 202, on a prioritized basis. As such, the rules make no mention of the wide array of innovative service offerings that are currently available to NSEP personnel. This rule change makes clear that neither the Commission's rules nor the Communications Act preclude TSP providers from offering priority treatment of voice, data, and video services for which provisioning or restoration priority levels are requested, assigned, and approved in accordance with Appendix A. This amendment does not alter the regulatory status or treatment of the authorized services; to the extent that these services are not subject to Title II of the Communications Act, they are not subject to the non-discrimination provisions under Section 202 that the TSP rules were drafted to protect against. We note that the orderly administration of the TSP program requires that all participants—regardless of classification status—follow the same set of rules. We therefore make clear that service providers who offer TSP must comply with the Commission's TSP rules.

24. Commenters support clarifying that IP-based services are eligible for TSP. We agree with commenters who assert that specific authorization is not necessary, but including this provision in our rules will prevent confusion among providers and NSEP users regarding the services that are eligible for priority treatment. No commenter objects to requiring service providers that elect to participate in the TSP program with respect to IP-based services to comply with the TSP rules.

25. However, we decline to adopt CISA's request that we require TSP service providers to offer prioritized provisioning and restoration of data, video, and IP-based voice services. While there may be potential benefits to making such services mandatory, the record weighs in favor of those services remaining voluntary at this time. First, we recognize that not all TSP providers may be able to offer prioritization for all IP-based services. In addition, because the NPRM discussed extending the TSP rules to non-common carrier services only on a voluntary basis, the record lacks sufficient information to evaluate the costs and benefits of making TSP mandatory for non-common carrier services.

26. Oversight, Industry Engagement, and Executive Branch Reporting. We adopt the NPRM proposal to eliminate references to the TSP System Oversight Committee (Oversight Committee) from the TSP rules. The Oversight Committee, composed of representatives from government and industry stakeholders, was established to identify and review any issues that arose in the administration of the TSP program and to recommend actions to correct them or prevent recurrence. In its petition, however, NTIA explained that the administration of the TSP program has evolved to obviate the need for the Oversight Committee. Specifically, NTIA notes that the Oversight Committee's role has been gradually filled by the Communications Information Sharing and Analysis Center (Comm ISAC), and that DHS has in recent years relied on the Comm ISAC to “exchange information and gain advice” on issues involving the TSP program. Among other advantages, DHS explains, the Comm ISAC is able “to address operational concerns in real time,” instead of waiting for a scheduled Oversight Committee meeting.

27. We eliminate the references to the Oversight Committee in our rules as outdated because the Comm ISAC is now fulfilling the Oversight Committee's role. We consider it unnecessary to “adopt rules that allow DHS to consult with the [Comm] ISAC,” as NTIA requests, because DHS does not require Commission authorization to consult with the Comm ISAC or other entities as part of its oversight of the TSP program.

28. NTIA requests that we replace the requirement that EOP submit quarterly reports to the Commission and Oversight Committee with an annual report to the Commission, which NTIA asserts “better aligns reporting timeframes to meet relevant programmatic needs.” We agree with commenters that some oversight is needed to ensure accountability and compliance with the Commission's rules. We also agree that DHS, as the agency primarily responsible for daily management and administration of TSP, should author reports on “the operational status of and trends in” TSP. We therefore eliminate the provisions of our rules that direct EOP to submit quarterly and semi-annual reports to the Commission and, instead, request that DHS provide information regarding TSP in annual reports to the Commission. Specifically, we request that the annual reports identify (1) numbers of requests proceeded for the various priority actions, and the priority levels assigned; (2) relative percentages of services assigned to each priority level under each NSEP category and subcategory; (3) any apparent serious misassignment or abuse of priority level assignments; and (4) any existing or developing problem, and DHS's recommendations on how it intends to address each problem.

29. Invocation Officials. We adopt our proposal to expand the scope of individuals who may invoke priority treatment for an eligible NSEP service. We define an “invocation official” as an individual who (1) understands how the requested service ties to the organization's NSEP mission; (2) is authorized to approve the expenditure of funds necessary for the requested service; and (3) has operational responsibilities for telecommunications procurement and/or management within the organization. Likewise, we eliminate the requirement that the invocation official must be designated in writing. Prior to this change, the Commission's rules required the individual to be part of a narrowly defined class of “senior officials,” including agency heads, and that such individual be appointed in writing in accordance with supplemental procedures issued by EOP.

30. We find that these changes will make the operation of the TSP program more efficient while providing greater flexibility for user organizations. These actions reflect changes that DHS has already made, such as lessening the seniority requirement to allow an individual who is able to attest to the need for priority treatment and to obligate funds on behalf of the organization to serve as the “invocation official.” We find that it is not necessary for the “invocation official” to be a senior government official, such as the head or director of a federal agency, because, as NTIA points out, requiring senior officials to request TSP participation has produced “unnecessary delays in the approval process given the demands placed on senior officials and their often limited availability.” We are also persuaded by NTIA's claim that the current requirements are untenable because senior officials typically do not “interact[ ] with service providers and often lack[ ] direct knowledge of the purpose and need for the NS/EP service.” Commenters support these changes.

31. Protection of TSP Data. We amend the TSP rules to enhance the protection of TSP data. We agree with NTIA that the unauthorized disclosure of sensitive information related to TSP circuits, in the aggregate, could pose a national security risk. We further agree that service providers moving certain operational, administrative, and management functions overseas could create additional risk by exposing TSP data to companies and individuals outside the United States. We likewise find merit in the arguments of some commenters that factors such as the use of firewalls, access controls, and other security protocols are more consequential than the physical location of the servers that house the TSP data. Even with respect to the physical location of the servers, we note that differing laws in foreign jurisdictions means that the threat of disclosure—through both lawful and unlawful means—varies from country to country. We conclude that a reasonableness test that accounts for the sensitivity of this data is preferable to prescriptive rules. While a reasonableness test provides less of a bright line for compliance, it will allow providers greater flexibility to manage their networks while respecting the confidentiality of this data. We therefore amend our rules to strengthen the current provision addressing the confidentiality of this data. The current version of this provision directs service providers to “[n]ot disclose information concerning NSEP services they provide to those not having a need-to-know or [who] might use the information for competitive advantage.” To this section, we add the following language:

We find that this test strikes the appropriate balance between DHS's concerns about the potential national security risks posed by the disclosure of this data, and the concerns of commenters about the shortcomings of a more prescriptive approach. We therefore conclude that the benefits to national security will far exceed the minimal costs that service providers may incur as a result of these requirements.

32. Provisioning and Restoration Timeframes. The Commission's current TSP rules include three subsections that address the timeframes that service providers must meet to (1) provision service; (2) restore service; and (3) meet requested service dates for TSP-subject facilities. However, each subsection specifies a different standard (“best efforts,” “as soon as possible,” and “as quickly as practicable”) for the time and level of effort required for service providers to provision or restore TSP facilities. NTIA claims the “varying and ambiguous language” in the current rules “has created confusion, disagreements, dissatisfaction, and unrealistic expectations” between users, providers, and DHS's program staff.

33. We agree with NTIA that replacing varying timeframe standards with a single standard will eliminate confusion and provide more certainty for service providers regarding their provisioning and restoration responsibilities. We also disagree with commenters who argue that we should maintain the existing standards or “eliminate the restoration timeframes from [the] rules entirely.” We therefore amend section 6.f of Appendix A by replacing the current language with the single term “promptly” to describe TSP service providers' provisioning and restoration obligations. Further, we define “promptly” as meaning “without delay.”

34. In adopting this standard, we address two competing sets of concerns raised by commenters. On the one hand, as NTIA points out, greater clarity and certainty regarding provisioning and restoration timeframes will reduce confusion and provide more concrete expectations for NSEP users, service providers, and DHS's program office staff. On the other hand, we seek to avoid an overly burdensome or prescriptive requirement that could, as other commenters point out, fail to account for the “variable nature of communications outages,” and the costs and benefits of specific circumstances. In general, we agree with commenters that the standard for provisioning and restoration must provide clarity and account for incident specific factors, while not placing unreasonable demands on service providers.

35. We find that the “promptly” standard best addresses the competing interests that are outlined in the record. Requiring “prompt” action—and defining “promptly” to mean “without delay”—necessitates that service providers move as rapidly as is reasonable under the circumstances, which establishes a clear and enforceable floor for action. However, this standard does not mandate specific timelines or levels of effort and it allows for consideration of variable incident-specific circumstances in determining what speed of response and allocation of resources is reasonable. We find the “promptly” standard preferable to the alternative standards proposed by commenters, such as “best efforts,” or “as soon as possible,” which do not convey the same sense of urgency and are more subjective and susceptible to conflicting interpretations.

36. Reporting Requirements. In the NPRM, we sought comment on NTIA's request that we amend our rules to require service providers to report provisioning and restoration times to DHS for TSP circuits in areas covered by the activation of the Disaster Information Reporting System (DIRS). DHS asserts that it is necessary for the Commission to impose such reporting requirements to enable DHS to obtain access to TSP provisioning and restoration times and aggregate data so that it can compare the data for TSP services to similar data for non-TSP services. However, most commenters oppose NTIA's request and raise a number of arguments for declining to adopt additional reporting requirements. Some commenters point out that requiring service providers to report data in the midst of a disaster could force them to divert resources away from the disaster response efforts. Other commenters contend that mandatory TSP reporting requirements could undercut the effectiveness of DIRS because service providers could attempt to avoid TSP reporting obligations by declining to participate in DIRS reporting. Others argue that comparing the provisioning and restoration times of TSP services and non-TSP services is unlikely to produce useful or actionable results. Finally, a number of commenters raise practical concerns with implementing the reporting requirements by, for example, pointing out that the configuration of networks and IT systems may not allow for reporting with the granularity required to produce such reports.

37. We decline to adopt reporting requirements in our rules. While we recognize the potential benefits of collecting provisioning and restoration data, commenters raise questions about the cost, efficacy, and utility of reporting requirements, and the record does not include sufficient information to rebut these objections. Indeed, no commenter responded to the concerns raised in the record. Only one commenter (BRETSA) indicated support for the requested rule change, but merely noted that requiring data on network performance might improve the management and operation of the TSP program. Moreover, NTIA does not propose specific obligations concerning the timing and frequency for reporting this information, but instead, proposes that DHS coordinate with the Commission to develop specific data requirements and reporting timeframes. We believe these details should be clarified before the Commission establishes new reporting requirements.

38. Finally, it is unclear whether DHS lacks other means to obtain the requested information. Some commenters contend that DHS may be able to obtain this information through contractual negotiations with service providers. CISA asserts that contractual arrangements for TSP do not currently exist between DHS and service providers and claims that DHS currently has no basis on which to establish contractual arrangements for TSP. However, CISA has not identified any legal prohibition that would preclude consideration of a contractual approach. Nevertheless, recognizing the potential value of collecting greater data about provisioning and restoration times, while we decline to adopt reporting requirements today, we encourage further dialogue regarding whether an appropriate avenue exists for obtaining this data that might be responsive to concerns raised in the record, whether through further changes to our rules or through other means.

39. With a few exceptions and modifications, discussed below, we adopt most of the changes to our WPS rules proposed in the NPRM. Specifically, we (1) update the rules to reflect the commonly used name for this program; (2) expand the list of services eligible for WPS to reflect newer technologies, as we did with TSP; (3) expand WPS eligibility to include additional users; (4) clarify the operation of the priority levels to make clear that higher priority services take precedence over those with lower priority; (5) discuss the applicability of the WPS rules to the FirstNet network; (6) clarify the extent to which preemption and degradation may be used to facilitate prioritized communications; (7) expressly authorize priority signaling; and (8) eliminate the requirement that priority access must be invoked on a per-call basis. Finally, as with TSP, we decline to adopt additional reporting requirements proposed by NTIA.

40. Program Name. As described above, government, industry, and users commonly refer to Priority Access Service as Wireless Priority Service. To reflect the prevailing naming convention, we adopt the NPRM proposal to replace all references to “Priority Access Service” with “Wireless Priority Service” in section 64.402 and part 64, Appendix B. We agree with NTIA that the name Wireless Priority Service “better reflects the service's current requirements and capabilities.” No commenters directly addressed this issue, but T-Mobile previously indicated support for “updating the language. . . as necessary to mitigate any potential confusion and enhance clarity.”

41. Eligible Services. We adopt the NPRM proposal to amend the WPS rules to expressly permit wireless service providers, on a voluntary basis, to give NSEP personnel priority access to, and priority use of, all secure and non-secure voice, data, and video services available over their networks, including IP-based services. We also adopt the NPRM proposal to eliminate references to “CMRS” and, where necessary, substitute the term “wireless” to describe services, networks, and providers. Finally, we retain the current requirement that if a service provider elects to offer WPS, it must comply with the Commission's WPS rules.

42. Commenters support amending the rules to authorize wireless service providers to voluntarily offer priority treatment of all voice, data, and video services to eligible users. Since the WPS rules were initially adopted in 2000, the “capacity and capabilities of [wireless] networks have expanded immensely” and wireless service providers are now able to offer a wide array of voice, data, and video services. The development of new technologies has direct implications for NSEP users, who increasingly rely on these innovative services and applications to “make and complete mission-essential communications in an efficient and effective manner.” We find that amending our rules to include all voice, data, and video services, including IP-based services, will promote consistency and prevent confusion among service providers.

43. DHS has interpreted the lack of explicit authorization in our rules to mean that WPS providers are not permitted to offer priority data, video, and IP-based voice services. We disagree with DHS's view, and instead agree with commenters who assert that while specific authorization is not necessary, it will prevent confusion among providers and NSEP users regarding the services that are eligible for priority treatment. We believe that by removing any uncertainty about the legal authority to offer these services, our action will facilitate the development of new services and capabilities which, in turn, will significantly benefit NSEP users.

44. Eligible Users. We adopt the NPRM proposal to modify the descriptions of priority levels and qualifying criteria in Appendix B to expand WPS eligibility to additional users, particularly those with response and restoration roles during emergency situations. Specifically, we amend Appendix B to include entities from the critical infrastructure sectors identified in Presidential Policy Directive (PPD)-21, and we modify the descriptions of priority levels and qualifying criteria to allow financial services and hospital personnel to qualify for WPS. We also remove outdated language that currently limits WPS eligibility to “key personnel” and individuals in “leadership positions” and clarify that WPS should be made available to all NSEP personnel that meet the qualifying criteria.

45. In addition to providing WPS to these critical groups, this amendment also brings our rules in line with developments in the administration of the WPS program. While the current rules do not include multiple categories of NSEP users, such as critical infrastructure protection, financial services, and hospital personnel, DHS is currently assigning priority levels to those users.

46. Commenters generally support allowing more groups of NSEP users to qualify for WPS, but disagree about the process for determining their eligibility and priority level assignments. For example, AT&T states that the Commission should “specify how entities . . . would be incorporated” into the priority levels, while T-Mobile argues that decision should “continue to lie[ ] with DHS.” We need not address this specific issue in our rules because, as described above, we eliminate the provisions that describe the responsibilities of EOP for the priority services programs. However, we expect that DHS will continue to make WPS eligibility determinations and priority level assignments pursuant to Executive Order 13618.

47. Priority Levels. The Commission's WPS rules list five levels of priority, with Priority Level 1 being the highest. NTIA asks the Commission to amend the rules to make explicit that Priority Level 1 communications—those made by the President of the United States, as well as certain executive leaders and policymakers—should receive priority treatment that exceeds that given to users at any other priority level. We agree with NTIA's requested rule change, which would make it both “explicit and conspicuous” that “the nation's executive leadership receive top priority.” Commenters generally agree that the Commission should update its rules to clarify the status of Priority Level 1 users. We therefore adopt the NPRM proposal and clarify that Priority Level 1 exceeds all other priority services offered by WPS providers.

48. WPS and FirstNet. In ex parte comments, FirstNet notes that “[although this proceeding appears specifically aimed” at WPS and TSP, “[FirstNet] wishes to clarify that any updates to the FCC's priority services rules should not apply to the distinct, unique FirstNet services.” FirstNet requests that the Commission exclude FirstNet services “from any updates or revisions to the Commission's priority services rules and, in particular, that FirstNet services not be subject to overriding priority or degradation vis-à-vis any other priority services offerings.” AT&T similarly argues that “[a]ccomplishment of the [FirstNet Authority's] mission requires . . . broad authority to assign priority levels,” and states that “the WPS rules should not interfere with the interplay of priority levels vis-à-vis FirstNet and WPS and other programs.” Verizon asserts that the same principle applies to public safety services offered by other providers, stating that the WPS rules “have never been interpreted so expansively as to preclude wireless providers from offering innovative priority and preemption capabilities in their separate public safety communications offerings.” Responding to AT&T, T-Mobile asserts that providers should not be allowed to “pick and choose how users receive priority based on their status with a particular provider,” and urges the Commission to “ensure that all WPS subscribers receive priority treatment based solely on their WPS status regardless of what network they are on, including FirstNet.”

49. As FirstNet notes, this proceeding is focused on TSP and WPS, and the NPRM did not mention or seek comment on FirstNet. Nevertheless, in light of the comments filed on this issue, we believe it is appropriate to clarify the relationship between WPS and FirstNet. As stated above, the WPS rules only apply to service providers that voluntarily elect to participate in WPS. FirstNet is a separate program with distinct statutory authority to operate the Nationwide Public Safety Broadband Network and to offer prioritization to first responders. As such, the WPS rules do not apply to prioritization within the FirstNet network, and FirstNet is therefore not required to comply with the WPS rules in providing such prioritization to its public safety users. However, FirstNet may voluntarily elect to participate in WPS and, if it chooses to do so, like any other WPS participant, its participation must be in accordance with the WPS rules. Indeed, FirstNet states that it offers WPS capability to users that request it, and acknowledges that “[t]o the extent a FirstNet subscriber has the WPS feature enabled on their FirstNet service, the use of that WPS capability would be subject to the prevailing WPS rules.”

50. Preemption and Degradation. The NPRM proposed to authorize preemption and degradation for Priority Level 1 and 2 voice calls, except for public safety emergency (911) calls. NTIA requested this clarification based on its view that “[c]urrent WPS rules do not permit NS/EP calls to preempt other in-progress calls.” NTIA asked that the Commission amend its rules because preemption and degradation are “critical priority feature[s] that will enable the highest priority NS/EP users to communicate and coordinate” during emergency situations—when commercial networks are often the most congested.” We sought comment on NTIA's requested rule change.

51. The WPS rules currently permit re-ordering of queued (not-yet-established) call requests based on user priority but do not provide for re-ordering of active (in-progress) calls. However, as several commenters point out, and as we recognized in the NPRM, the lack of explicit authorization does not preclude WPS providers from re-ordering active calls. We similarly find that preemption and degradation of active calls in support of WPS prioritization is not precluded by our rules. To the extent that these mechanisms are employed in WPS by common carriers subject to Title II, we clarify that they are not “unjust or unreasonable” practices that violate the non-discrimination provision of section 202. To the extent that these mechanisms are used in support of NSEP communications outside the scope of Title II, they are legally permissible. Thus, while expressly authorizing priority and preemption in the rules may be legally unnecessary, we determine that explicit authorization will help ensure “consistent interpretation of the rules by WPS providers to the ultimate benefit of NSEP users.”

52. AT&T expresses concern that authorizing preemption and degradation only in support of Priority Level 1 and 2 voice calls might suggest that it is prohibited for other priority levels. We agree that preemption and degradation of lower-priority communications are permissible at all WPS priority levels. Therefore, we modify the NPRM proposed rule to expressly permit, voice, data, text, and video communications from NSEP users assigned to any priority level to preempt or degrade other in-progress communications, except for public safety emergency (911) communications. Likewise, we make clear that preemption and degradation are permitted but not required by our rules. We agree with commenters that issues related to preemption and degradation should be determined via contractual arrangements because such an approach will give WPS providers increased flexibility to update their service offerings and determine when and how to apply these capabilities.

53. Priority Signaling. We adopt the NPRM proposal to update our WPS rules to expressly authorize priority signaling to ensure networks can detect WPS handset network registration and service invocation. Priority signaling is an important feature that allows service providers to mitigate the risks of signaling congestion by ensuring “successful WPS handset network registration and service invocation.” While commenters correctly note that the Commission's rules do not prohibit priority signaling and that some WPS providers already offer it via contractual arrangements with DHS, commenters do not raise any objections to explicitly authorizing priority signaling in our rules. We find that this rule change will promote clarity and consistency for providers and, therefore, adopt the rule change as proposed in the NPRM.

54. Methods of Invocation. We adopt the NPRM proposal to eliminate the requirement that WPS priority access must be invoked on a per-call basis. Currently, authorized users invoke priority access on a per-call basis by dialing a specified feature code before each call. We agree with NTIA that requiring users to invoke WPS for each communication “hinder[s] efficient response” during emergency situations. Although AT&T argues for maintaining the current requirement in order to ensure that “WPS functions smoothly for calls that must be transmitted over multiple carrier networks,” we believe that DHS is in the best position to ensure interoperability between the various networks that carry prioritized communications.

55. We also decline to prescribe other specific methods of WPS invocation in our rules. We agree with T-Mobile that methods of invocation should be determined by contractual arrangements because such an approach will ensure that all WPS providers are “afforded the same flexibility and treatment.” Commenters support this change because it provides greater flexibility for service providers to decide how to offer WPS services in the manner most suitable for their subscribers and networks.

56. Reporting Requirements. We decline to amend our rules to require service providers to file implementation, usage, and performance data with DHS. According to NTIA, DHS currently collects and analyzes data from WPS providers detailing “usage, performance, implementation, and supporting infrastructure,” so that it can assess “WPS readiness, usage, and performance at all times and all places offered, as well as for specific geographic areas and times. NTIA asserts that the requested rule change is necessary to ensure consistency across all WPS providers and to formalize the process by which providers submit WPS data to DHS.

57. Commenters oppose NTIA's requested rule change, arguing that new reporting requirements could inhibit providers' flexibility and ability to innovate and duplicate existing reporting processes. Notably, the record includes minimal responses to those objections. Instead, commenters assert that DHS should obtain this information via contractual arrangement with WPS providers. Based on this record and consistent with our discussion above with respect to TSP reporting, we decline to adopt new WSP reporting requirements at this time and encourage further dialogue on this matter.

58. The NPRM sought comment on an alternative “light touch” approach, whereby the current rules for TSP and WPS would be eliminated and the programs would operate strictly via contractual arrangements between DHS and service providers. This approach would make TSP and WPS prioritization resemble GETS, which provides prioritization through the Public Switched Telephone Network for over 330,600 GETS card holders. Currently, there are no Commission rules for GETS, which operates solely via contractual arrangements with DHS.

59. Most industry commenters prefer the “light touch” contractual approach to the current rules-based approach. T-Mobile disagrees, arguing that the Commission should “maintain a limited set of rules” for TSP and WPS. Likewise, CISA argues that eliminating the rules would remove the existing liability protections for prioritized non-broadband services and, without such protection from liability, carriers would be unlikely to offer priority services. CISA also asserts that it currently has no basis on which to establish contractual arrangements with TSP providers.

60. We decline to adopt a wholly contractual scheme for priority services. Although a contractual approach could provide some benefits, commenters have not identified fundamental problems or deficiencies in the existing rules-based approach. Overall, the record indicates that both TSP and WPS have functioned without major disruption and have expanded under the current approach. Given the critical role of the priority services programs in supporting the NSEP posture of the United States, we believe that continuing to have baseline rules for TSP and WPS will promote continuity and consistency in these programs. We agree with CISA that the rules provide important liability protections for service providers and that removing these protections could create uncertainty regarding liability that might discourage providers from participating in the programs. Further, a strictly contract-based approach could impose administrative and cost burdens on DHS by requiring it to make extensive programmatic changes. In sum, we conclude that the potential adverse impacts of implementing the alternative approach would outweigh the potential benefits.

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

62. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in this Report and Order on small entities. The FRFA is set forth in Appendix C of the Report and Order.

63. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM) adopted in July 2020. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. No comments were filed addressing the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

64. In the Report and Order, the Commission updates and streamlines its priority services rules. These rules facilitate prioritized connectivity to National Security and Emergency Preparedness (NSEP) personnel during emergency situations by authorizing prioritized provisioning and restoration of communications facilities and prioritized network access for wireless communications. The priority services programs are used to “maintain a state of readiness [and] to respond to and manage any event or crisis . . . [that] degrades or threatens the NSEP posture of the United States.”

65. The Commission takes this action because the priority services rules (the most recent of which were updated over two decades ago) need to be updated to account for changes in technology. The Commission's current rules date back to the establishment of the Telecommunications Service Priority (TSP) System in 1988 and the creation of the Priority Access Service (PAS), more commonly referred to as Wireless Priority Service (WPS), in 2000. The Commission's rules were originally developed when communications networks were primarily based on circuit-switched technologies. They do not address the advanced capabilities of internet Protocol (IP)-based communications that support data and voice services, or the ability of users at different priority levels to share network capacity and resources.

66. The Commission also takes this action to address the requests from the Department of Homeland Security (DHS) through the National Telecommunications and Information Administration (NTIA) to update the existing rules and requirements for the priority services programs. NTIA filed two Petitions for Rulemaking on behalf of DHS, requesting that the FCC update its TSP and Priority Access Service (PAS) rules to address changes in technology and evolving user needs for these programs. The NPRM sought comment on both NTIA petitions as well as on the Commission's proposed rule changes.

67. In the Report and Order, the Commission updates its priority services rules to reflect today's marketplace and governance framework and to explicitly authorize the prioritization of next-generation technology. For example, the Commission removes outdated language that could cause confusion and otherwise impede the use of IP-based technologies to support the provision of priority services for voice, data, and video communications. The Commission also amends its priority service rules to reflect current administrative responsibilities for the priority services programs while eliminating burdensome and unnecessary requirements on service providers. The scope of the changes adopted in the Report and Order in some instances apply to both TSP and WPS, and in other instances apply only to TSP or only to WPS. These changes are intended to reduce regulatory burdens and make our rules flexible enough to respond to changing administrative requirements or technological advances related to the priority services programs. We also believe that these changes will substantially increase the benefits to NSEP users and public safety while reducing the regulatory costs imposed on providers of priority services.

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

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

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

71. 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.

72. 700 MHz Guard Band Licensees. The 700 MHz Guard Band encompasses spectrum in 746-747/776-777 MHz and 762-764/792-794 MHz frequency bands. Wireless Telecommunications Carriers (except Satellite) is the closest industry with a 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.

73. According to Commission data as of December 2021, there were approximately 224 active 700 MHz Guard Band licenses. The Commission's small business size standards with respect to 700 MHz Guard 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, five winning bidders claiming one of the small business status classifications won 26 licenses, and one winning bidder claiming small business won two licenses. None of the winning bidders claiming a small business status classification in these 700 MHz Guard Band license auctions had an active license as of December 2021.

74. 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.

75. Advanced Wireless Services (AWS)—(1710-1755 MHz and 2110-2155 MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3); 2000-2020 MHz and 2180-2200 MHz (AWS-4)). Spectrum is made available and licensed in these bands for the provision of various wireless communications services. Wireless Telecommunications Carriers (except Satellite) is the closest industry with a 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.

76. According to Commission data as December 2021, there were approximately 4,472 active AWS licenses. The Commission's small business size standards with respect to AWS involve eligibility for bidding credits and installment payments in the auction of licenses for these services. For the auction of AWS licenses, the Commission defined a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million. Pursuant to these definitions, 57 winning bidders claiming status as small or very small businesses won 215 of 1,087 licenses. In the most recent auction of AWS licenses 15 of 37 bidders qualifying for status as small or very small businesses won licenses.

77. 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.

78. 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 a 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.

79. 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 a 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.

80. 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 a 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.

81. 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, 26 winning bidders claiming a small business classification won 214 licenses, and three winning bidders claiming a small business classification won all five auctioned licenses.

82. 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. Narrowband Personal Communications Services. Narrowband Personal Communications Services (Narrowband PCS) are PCS services operating in the 901-902 MHz, 930-931 MHz, and 940-941 MHz bands. PCS services are radio communications that encompass mobile and ancillary fixed communication that provide services to individuals and businesses and can be integrated with a variety of competing networks. Wireless Telecommunications Carriers (except Satellite) is the closest industry with a 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.

84. According to Commission data as of December 2021, there were approximately 4,211 active Narrowband PCS licenses. The Commission's small business size standards with respect to Narrowband PCS involve eligibility for bidding credits and installment payments in the auction of licenses for these services. For the auction of these licenses, the Commission defined a “small business” as an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is defined as an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. Pursuant to these definitions, seven winning bidders claiming small and very small bidding credits won approximately 359 licenses. One of the winning bidders claiming a small business status classification in these Narrowband PCS license auctions had an active license as of December 2021.

85. 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.

86. Offshore Radiotelephone Service. This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. Wireless Telecommunications Carriers (except Satellite) is the closest industry with a SBA small business size standard applicable to this service. 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. Additionally, based on Commission data, as of December 2021, there was one licensee with an active license in this service. However, since the Commission does not collect data on the number of employees for this service, at this time we are not able to estimate the number of licensees that would qualify as small under the SBA's small business size standard.

87. Rural Radiotelephone Service. Neither the Commission nor the SBA have developed a small business size standard specifically for small businesses providing Rural Radiotelephone Service. Rural Radiotelephone Service is radio service in which licensees are authorized to offer and provide radio telecommunication services for hire to subscribers in areas where it is not feasible to provide communication services by wire or other means. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). Wireless Telecommunications Carriers (except Satellite), is the closest applicable industry with a SBA small business size standard. The SBA small business size standard for Wireless Telecommunications Carriers (except Satellite) classifies firms having 1,500 or fewer employees as small. 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 total, 2,837 firms employed fewer than 250 employees. Thus, under the SBA size standard, the Commission estimates that the majority of Rural Radiotelephone Services firm are small entities. Based on Commission data as of December 27, 2021, there were approximately 119 active licenses in the Rural Radiotelephone Service. The Commission does not collect employment data from these entities holding these licenses and therefore we cannot estimate how many of these entities meet the SBA small business size standard.

88. 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.

89. 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.

90. 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.”

91. 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 a 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.

92. 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.

93. 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.

94. 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 a 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.

95. 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.

96. 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.

97. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The closest applicable industry with a 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.

98. Wireless Resellers. Neither the Commission nor the SBA have developed a small business size standard specifically for Wireless Resellers. The closest industry with a SBA small business size standard is Telecommunications Resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications and they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. Under the SBA size standard for this industry, a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 1,386 firms in this industry provided resale services during that year. Of that number, 1,375 firms operated with fewer than 250 employees. Thus, for this industry under the SBA small business size standard, the majority of providers can be considered small entities.

99. 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.

100. 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.

101. The rule changes adopted in the Report and Order will impose new and/or modified reporting, recordkeeping, and other compliance obligations on some small entities and other providers. At this time, the Commission cannot quantify the cost of compliance or determine whether small entities will have to hire professional assistance to comply with the updated Priority Services Rules. However, because our approach to the rule changes adopted in this proceeding has been to take a flexible approach rather than adopting prescriptive rules and reporting requirements, we do not believe the compliance obligations for small entities will impose any significant costs or burdens.

102. Telecommunications Service Priority. The Commission's TSP rules require certain service providers to prioritize the provisioning and restoration of communications facilities to “ensure effective NSEP telecommunication services.” The TSP rules apply, on a mandatory basis, to common carrier services and “services which are provided by government and/or non-common carriers and are interconnected to common carrier services.” Offering TSP is mandatory for wireline telecommunications providers, regardless of size. All service providers that are requested to provide NSEP prioritization which is paid for by the user not the provider, must offer it. Service providers that offer these services must also “maintain and provision and, if disrupted, restore facilities and services” in accordance with the prioritization levels outlined in the TSP rules.

103. Under the amended rules adopted in the Report and Order, small entities and other service providers that offer NSEP priority service must: (1) promptly, which we define as “without delay”, provide NSEP service when requested, at the priority level contracted for; (2) restore NSEP services which suffer outage or are reported as unusable or otherwise in need of restoration, before non-NSEP services, based on restoration priority level assignments; (3) respond to NSEP provisioning requests of authorized users and/or other service providers, and (4) cooperate with other service providers involved in provisioning or restoring a portion of an NSEP service by honoring provisioning or restoration priority level assignments.

104. Small entities and other services providers are also subject to enhanced data protection requirements to prevent the unauthorized disclosure of sensitive information relating to TSP circuits. The rules we adopt in the Report and Order require small entities and other service providers to take all reasonable efforts to secure the confidentiality of TSP information that they maintain from unauthorized disclosure. Such efforts include storing this information in a location and with security safeguards that are reasonably designed to protect against lawful or unlawful disclosure to company employees or service providers without a legitimate need for this information, or other entities to which the disclosure of this information would pose a threat to the national security of the United States. Service providers are required to immediately report any attempts that are made to compel the disclosure of this information to the Commission and DHS and to coordinate with the FCC and DHS prior to such disclosure. In emergency situations where providing prior notice is impracticable, service providers are required notify the FCC and DHS as soon as possible, but no later than 48 hours after such disclosure, and should an explanation why prior notice was not practicable when such notice is provided.

105. Requiring providers to take reasonable efforts will allow providers greater flexibility to manage their networks while respecting the confidentiality of this data. We believe a reasonableness test that accounts for the sensitivity of the data is preferable to prescriptive rules. We also believe that while small entities and other providers will incur costs for our enhanced TSP data protection rules, these costs will be minimal and the benefits to national security will far exceed the costs that service providers may incur as a result of these requirements.

106. Wireless Priority Service. Small and other wireless service providers are not required to offer WPS. The Commission's WPS rules permit, but do not require providers to offer mobile wireless priority services. Providers that offer WPS, offer the service pursuant to contractual arrangements with service users who like TSP users pay for the service and equipment costs. Providers that offer WPS, must also abide by the WPS rules promulgated by the Commission. Wireless service providers offering WPS must offer Priority Levels 1, 2, 3, 4, or 5. Priority Level 1 communications which are those made by the President of the United States, as well as certain other executive leaders and policymakers must be given the highest priority by WPS providers in relation to all other carrier-provided services.

107. The RFA requires an agency to describe any significant specifically small business alternatives that it has considered in reaching its 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 such small entities; (3) the use of performance, rather than design, standards, and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.

108. In the Report and Order, the Commission removed existing regulatory burdens, and declined to adopt several of the actions requested by NTIA, and in comments in response to the NPRM, that would have significantly increased the economic burden on small entities. As a preliminary matter, in updating and streamlining its priority services rules with adoption of rules applying to both TSP and WPS ( e.g., updating the Commission's responsibilities for the priority services programs and clarifying that service providers are authorized to offer prioritization of next-generation services and technologies, including IP-based voice, data, and video communications), the Commission created greater efficiencies by combining rules applicable to both TSP and WPS service providers to the extent that it was possible. The Commission believes creating this greater efficiency could lower compliance costs for small entities.

109. The Commission's approach in this proceeding was to provide small entities and other service providers flexibility, evidenced for example by its adoption of the reasonableness test requiring service providers to take all reasonable efforts to protect the confidentiality of TSP data, rather than imposing prescriptive requirements on small entities and other service providers which could have increased their compliance costs. The Commission also considered but ultimately did not adopt recordkeeping and reporting rules that would have place a significant financial burden on small entities. Specifically, if adopted the proposed rules would have created additional reporting burdens on by requiring NSEP service providers (both TSP and WPS) to report to DHS provisioning and restoration times for TSP circuits in areas covered by the activation of the Disaster Information Reporting System (DIRS), and to aggregate data that would allow DHS to compare the data for TSP and WPS services to similar data for non-TSP and non-WPS services. Instead of ultimately adopting this proposal, the Commission suggested that DHS enter into voluntary contractual arrangements with NSEP service providers, including small entities, to acquire the necessary data and information. The Commission believes the potential benefit of such reporting requirements was outweighed by questions of cost, efficacy, and the utility of these requirements, and therefore declined to adopt these provisions in the final rules.

110. The Commission also declined to adopt an alternative approach to the TSP and WPS requirements which would have had the Commission essentially completely remove itself from the priority services field—the “GETS model” approach. This approach would make TSP and WPS prioritization resemble the wholly-contractual Government Emergency Telecommunications Service (GETS). The GETS program, for which the Commission does not have rules, provides prioritization through the Public Switched Telephone Network for over 330,600 GETS card holders and operates solely via contractual arrangements with DHS. Because of the critical role of the priority services programs in supporting the NSEP posture of the United States, the Commission believes that NSEP rules remain necessary to establish baseline standards for these programs. The Commission notes that eliminating the rules would remove the liability protections for service providers which could discourage small entities and other service providers from participating in the programs. The Commission also notes that the elimination of the TSP rules would end the mandatory nature of the program for common carriers, thereby making participation in TSP completely voluntary for all service providers, which we find is not in the public interest. Accordingly, the Commission did not adopt this proposed approach.

111. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i), 4(j), 4(n), 201-205, 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 308(a), 309(a), 309(j), 316, 332, 403, 615(a)(1), 615(c), and 706 of the Communications Act of 1934, as amended, codified at 47 U.S.C. 151, 154(i)-(j) & (n), 201-205, 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 308(a), 309(a), 309(j), 316, 332, 403, 606, 615(a)(1), 615(c); and Executive Order 13618, this Report and Order is adopted.

112. It is further ordered that part 64 of the Commission's rules is amended, as set forth in Appendix A and Appendix B, effective thirty (30) days after publication in the Federal Register .

113. It is further ordered that the Office of the Managing Director, Performance Evaluation and Records Management, shall send a copy of this Report & Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 64 as follows:

The proposed rule was published at 86 FR 25979 on May 12, 2021. The Petitioner filed comments in support of the petition reaffirming its commitment to apply for channel 16. theDove Media, Inc. (theDove), the licensee of low power television station KDSO-LP, channel 16, Medford, Oregon, filed comments in opposition to the rulemaking petition and a counterproposal. On June 22, 2022, the Video Division of the Bureau approved a Joint Request for Approval of Settlement Agreement whereby theDove requested dismissal of its Opposition with prejudice, and the Petitioner agreed to reimburse theDove in an amount not to exceed $23,420 as reimbursement for costs related to theDove's acquisition and construction of a displacement facility on channel 26 at Medford. The parties also agreed that KTVL would not begin operations on channel 16 until KDSO-LP commenced operations on channel 26. The Video Division approved the Joint Request for Approval of Settlement Agreement and dismissed theDove's opposition by letter dated June 22, 2022.

The Petitioner states that the Commission has recognized that VHF channels have certain propagation characteristics which may cause reception issues for some viewers, that the reception of VHF signals require larger antennas relative to UHF channels, and that studies suggest a large variability in the performance of indoor antennas, with most performing poorly or not so well receiving VHF channels, compared to UHF channels. Petitioner further states that the Station has received numerous complaints from viewers unable to receive the Station's over-the-air signal, despite being able to receive signals from other local stations. In addition, the Petitioner states while the proposed channel 16 noise limited contour does not completely encompass the channel 10 noise limited contour, KTVL is a CBS affiliate and there are two other CBS affiliated stations that serve all but 9,355 persons in the noise limited contour loss area. 1 The Petitioner also submitted an analysis, using the Commission's TVStudy software analysis program, demonstrating that after taking into account service provided by other CBS stations, all of the population located within KTVL's channel 10 noise limited contour will continue to receive CBS service, resulting in no loss of network service.

This is a synopsis of the Commission's Report and Order, MB Docket No. 21-155; RM-11900; DA 22-660, adopted June 22, 2022, and released June 22, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs . To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

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

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

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