Currently, the FLRA's regulations do not recognize email transmission as an official method of service of Authority documents on parties to Authority proceedings. The Authority has received numerous party requests for email service of such documents, particularly due to an increase in telework and remote work by party practitioners. Email service would allow parties to receive Authority documents on the same day of service. Under the FLRA's regulations, when Authority documents are served by first-class mail, the responding party receives five additional days for filing any responsive filings. 5 CFR 2429.22. However, the Authority has found that there have been many instances when mail has taken longer than five days to reach the intended recipient, thereby shortening the recipient's response time. Allowing parties to opt for email service of Authority documents would avoid that problem and thereby improve customer service.

In addition, preparing and mailing paper copies of Authority documents to parties imposes significant costs on the Authority in terms of staff time, supplies, and equipment maintenance. Making email service a recognized, official method of service would also reduce or eliminate these costs.

For these reasons, the Authority hereby amends its regulations to allow parties using the FLRA's eFiling system to consent to email service of Authority documents in individual cases. If a party consents to email service in a particular case, then the Authority shall serve documents on that party exclusively by email to the email address that the party provides in the eFiling system. It is the party's obligation to maintain a valid email address in the system for proper service. When the Authority serves parties Authority documents by email, the date of service shall be the date the email is sent.

We emphasize that these amendments apply only to documents issued by the FLRA's Office of Case Intake and Publication in cases pending before the FLRA's Members. It does not apply to documents issued in cases pending before other FLRA offices or components, such as the Office of Administrative Law Judges or the Office of the General Counsel.

The Authority finds that this interim final rule is not a substantive rule, but is a rule of agency organization, procedure, or practice, for which advance notice is not required. 5 U.S.C. 553(b)(A); Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 & n.30 (1979) (stating that a substantive or legislative rule is one that “affect[s] individual rights or obligations”). However, as noted above, the Authority welcomes comments on this interim final rule.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Chairman of the FLRA has determined that this interim final rule will not have a significant impact on a substantial number of small entities, because this interim final rule applies only to Federal agencies, Federal employees, and labor organizations representing those employees.

The FLRA is an independent regulatory agency and thus is not subject to the requirements of E.O. 12866 (58 FR 51735, Sept. 30, 1993).

The FLRA is an independent regulatory agency and thus is not subject to the requirements of E.O. 13132 (64 FR 43255, Aug. 4, 1999).

This interim final rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This interim final rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The amended regulations contain no additional information collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq.

For the reasons stated in the preamble, the FLRA amends 5 CFR part 2429 as follows:

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1411; Project Identifier MCAI-2023-00710-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Kevin Clark, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2023-01-12, Amendment 39-22306 (88 FR 3629, January 20, 2023) (AD 2023-01-12), for all Safran Helicopter Engines, S.A. (Type Certificate previously held by Turbomeca, S.A.) Model Arriel 1C, Arriel 1C1, and Arriel 1C2 engines. AD 2023-01-12 was prompted by an MCAI originated by EASA, which is the Technical Agent for the Member States of the European Union. EASA issued EASA AD 2022-0256, dated December 19, 2022 (EASA AD 2022-0256) to correct an unsafe condition identified as reports of false engine fire warnings.

AD 2023-01-12 required replacing the affected fire detectors and prohibited installation of affected fire detectors, as specified in EASA AD 2022-0256. The FAA issued AD 2023-01-12 to prevent false engine fire warnings.

Since the FAA issued AD 2023-01-12, EASA superseded EASA AD 2022-0256 and issued EASA AD 2023-0110, dated May 26, 2023 (EASA AD 2023-0110) (referred to after this as the MCAI). The MCAI states that Safran determined that Model Arriel 1K and Arriel 1K1 engines may also have the affected fire detectors installed and are subject to the same unsafe condition. The MCAI retains the requirements of EASA AD 2022-0256 and expands the applicability to include the Model Arriel 1K and Arriel 1K1 engines.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1411.

The FAA reviewed EASA AD 2023-0110, which specifies procedures for replacing affected fire detectors. EASA AD 2023-0110 also specifies not to install an affected fire detector on any engine. 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 .

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 .

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD retains none of the requirements of AD 2023-01-12, This AD adds Model Arriel 1K1 engines to the applicability and requires accomplishing the actions specified in the MCAI already described, except for any differences identified as exceptions in the regulatory text of this AD, and except as discussed under “Differences Between this AD and the MCAI”.

Model Arriel 1K engines are contained in the applicability of EASA AD 2023-0110 but do not have an FAA type certificate. Therefore, this AD does not include those engines in the applicability.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because fire detectors that do not conform to the type design could lead to false engine fire warnings. Safran was informed of three occurrences of illumination of the engine fire alarm without confirmed fire (untimely illumination) on airframes equipped with affected fire detectors. False engine fire warnings are an unsafe condition requiring urgent corrective action because, if a helicopter is equipped with two engines with an affected fire detector installed, an engine fire warning could occur on both engines during the same flight. This unsafe condition, if not addressed, could lead to commanded in-flight engine shut-down, possibly resulting in damage to the helicopter and reduced control of the helicopter. Replacement of the fire detectors for Model Arriel 1K1 engines requires compliance within 30 flight hours or 60 days from the effective date of this AD. Replacement of the fire detectors for Model Arriel 1C, Arriel 1C1, and Arriel 1C2 engines requires compliance before further flight. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 30 engines installed on helicopters of U.S. registry.

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

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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 airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E surface airspace and the Class E airspace extending upward from 700 feet above the surface at Devils Lake Regional Airport, Devils Lake, ND, to support instrument flight rule operations at this airport.

The FAA published an NPRM for Docket No. FAA-2023-1077 in the Federal Register (88 FR 29563; May 8, 2023) proposing to amend the Class E airspace at Devils Lake, ND. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraphs 6002 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71:

Modifies the Class E surface airspace to within a 4.3-mile (increased from a 4-mile) radius of Devils Lake Regional Airport, Devils Lake, ND; removes the Devils Lake VOR/DME and associated extensions from the airspace legal description; updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and replaces the outdated term “Notice to Airmen” with “Notice to Air Missions”;

Modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.8-mile (decreased from an 8.7-mile) radius of Devils Lake Regional Airport; removes the Devils Lake VOR/DME from the airspace legal description; removes the Class E airspace extending upward from 1,200 feet above the surface as it is now redundant with the Class E airspace extending upward from 1,200 feet above the surface over the State of North Dakota; and updates geographic coordinates of the airport to coincide with the FAA's aeronautical database.

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

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

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

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

The FAA published an NPRM for Docket No. FAA-2023-1009 in the Federal Register (88 FR 29566; May 8, 2023) proposing to amend the Class E airspace at Hartington, NE. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.9-mile (decreased from an 8.6-mile) radius of Hartington Municipal Airport/Bud Becker Field, Hartington, NE; and updates the name (previously Hartington Municipal Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautical database.

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the surface and Class E airspace extending upward from 1,200 feet above the surface at Whiteriver Airport, Whiteriver, AZ, to support instrument flight rule operations at this airport.

The FAA published an NPRM for Docket No. FAA-2023-1078 in the Federal Register (88 FR 29571; May 8, 2023) proposing to establish Class E airspace at Whiteriver, AZ. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71:

Establishes Class E airspace extending upward from 700 feet above the surface within a 37.8-mile radius of Whiteriver Airport, Whiteriver, AZ;

And establishes Class E airspace extending upward from 1,200 feet above the surface to within a 78.3-mile radius of Whiteriver Airport.

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

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

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

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

The FAA published an NPRM for Docket No. FAA-2023-0732 in the Federal Register (88 FR 30266; May 11, 2023) proposing to amend the Class E airspace at Sonora, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.4-mile (decreased from a 7.1-mile) radius of Sonora Municipal Airport, Sonora, TX.

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

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

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

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

The FAA published an NPRM for Docket No. FAA-2023-1007 in the Federal Register (88 FR 29575; May 8, 2023) proposing to amend the Class D and Class E airspace and remove Class E airspace at Kalamazoo, MI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E airspace designations are published in paragraphs 5000, 6004, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71:

Modifies the Class D airspace to within a 4.2-mile (increased from a 4.1-mile) radius of Kalamazoo/Battle Creek International Airport, Kalamazoo, MI; replaces the outdated terms “Notice to Airmen” with “Notice to Air Missions” and “Airport/Facility Directory” with “Chart Supplement”; and updates the geographic coordinates of Kalamazoo/Battle Creek International Airport to coincide with the FAA's aeronautical database;

Removes the Class E airspace designated as an extension to Class D airspace at Kalamazoo/Battle Creek International Airport as it is no longer required;

And modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.7-mile (increased from a 6.6-mile) radius of Kalamazoo/Battle Creek International Airport; updates geographic coordinates of Kalamazoo/Battle Creek International Airport and the name of Borgess Medical Center Helipad (previously Burgess Hospital), Kalamazoo, MI, to coincide with the FAA's aeronautical database; and removes the cities associated with the airports in the header of the airspace legal description to comply with changes to FAA Order JO 7400.2P, Procedures for Handling Airspace Matters.

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

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

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

Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.

On July 29, 2022, the EPA proposed a limited approval and limited disapproval of the following SJVAPCD rule into the California SIP. 1

In our July 29, 2022 action, we proposed a limited approval of Rule 2201 because we determined that it generally satisfies the applicable CAA and regulatory requirements for sources subject to nonattainment NSR permit program requirements for Extreme ozone nonattainment areas and Serious PM 2.5 nonattainment areas. 2 However, we also determined that Rule 2201 does not fully satisfy all these requirements, and identified the following deficiencies in the rule:

1. Missing definitions related to the definition of the term “major modification,” and deficiencies in the definitions for the terms: Major Source; Routine Maintenance, Repair and Replacement; PM 10 Emissions; Secondary Emissions; and Volatile Organic Compounds.

2. Provisions allowing the use of interprecursor trading (IPT) of ozone precursors to satisfy emission offset requirements, which are no longer permissible due to a 2021 D.C. Circuit Court of Appeals decision.

3. Exemptions from otherwise applicable offset requirements for the relocation of emission units or stationary sources, if certain conditions are met, and for the installation or modification of required control equipment.

4. The lack of public notice requirements for minor source permits addressing emissions of ozone precursors.

5. Failure of the federal offset equivalency tracking system to ensure equivalency with federal offset requirements.

6. Missing provisions for Temporary Replacement Units and Routine Replacement Emission Units.

7. Other minor deficiencies, including issues relating to stack height requirements at 40 CFR 51.164; enforceable procedures as provided at 40 CFR 51.165(a)(5)(i) and (ii); and permit issuance restrictions based on inadequate SIP implementation at CAA section 173(a)(4).

These deficiencies are the basis for the EPA's final limited approval and limited disapproval of Rule 2201. Our proposed action and the associated technical support document (TSD) contain more information on the basis for this rulemaking and on our evaluation of the submittal, including a detailed discussion of each deficiency.

The EPA's proposed action provided a 30-day public comment period. During this period, we received two comment letters, both of which are included in the docket for this action. The first is from an individual; it appears to be generally supportive of the action and does not raise any discernable issues that are adverse to our action as proposed. The second comment letter was submitted by the Central Valley Air Quality Coalition, Medical Advocates for Healthy Air, and Little Manila Rising. Issues raised in this comment are summarized with responses below.

Comment 1: The commenters express support for the EPA's proposed disapproval of the District's offset equivalency system, and for strengthening Rule 2201's automatic remedies for equivalency failure that would require the District to quantify and restore negative balances in the offset equivalency system. The commenters include information regarding the severity of ozone and PM 2.5 pollution in the San Joaquin Valley, the sources and conditions contributing to this pollution, and the health effects associated with exposure to these pollutants. The commenters also describe their previous work to raise concerns associated with the District's ERC system and offset equivalency demonstration tracking system.

Response: The EPA appreciates the commenters' interest and involvement in issues surrounding the District's use of ERCs and offsets in its equivalency demonstration tracking system, and their support for this action. As explained elsewhere in this notice, we are finalizing our proposed limited approval and limited disapproval of Rule 2201 for the reasons articulated in our proposed rule.

Comment 2: Notwithstanding their general support for the EPA's proposed action, including disapproval of the equivalency system, the commenters disagree with a statement in the EPA's proposed action that the Rule 2201 remedies do not provide a mechanism to require the District to quantify or restore a negative balance in the equivalency system, and therefore fail to ensure full federal offset equivalency in the event of a shortfall. The commenters state that the EPA has neglected to recognize the automatic remedies for a failure to submit annual reports meeting the Rule 2201 requirements, which they say can correct historical equivalency system failures.

Citing Rule 2201 and statements from the preamble to the EPA's 2004 approval of the rule, the commenters argue that sections 7.4.1.3 and 7.4.2.3 of the rule provide an enforceable mechanism to require the District to quantify and correct negative balances in the equivalency system. These provisions apply when the District fails to submit a report meeting the annual demonstration requirements of sections 7.2.1 or 7.2.2 (respectively), and require the District to apply specified federal offset requirements until it submits a report that meets the applicable requirements. According to the commenters, “[u]pon submission of corrected reports, automatic remedies for the period the system failed equivalency—the negative balance—would apply and those permits in that period would have to meet federal standards, thus correcting the negative balance.”

The commenters request that the EPA clarify that this remedial scheme applies and not foreclose potential action to enforce the existing SIP-approved rule to remedy asserted violations of Rule 2201.

Response: While we agree that Rule 2201 provides automatic enforceable remedies if the District fails to submit a required annual report containing the required information, we cannot provide the clarification requested by the commenters because we do not agree that these remedies are adequate to correct historical offset equivalency system failures as described by the commenter. As stated in our proposed action and cited by the commenters, even when the Rule 2201 remedies are fully implemented in response to an equivalency failure, the equivalency system will retain a historic deficit relative to the federal program, which is not made whole under the rule. 3 As the commenters note, the rule also applies federal offset requirement remedies when the District fails to submit a compliant annual equivalency report. In that case, the District would be required to adopt federal offset requirements as prescribed by section 7.4.1.3 or 7.4.2.3 (as applicable), which would remain in place until the District submits a report complying with the applicable requirements in section 7.2.1 or 7.2.2. Critically, however, the rule contains no requirement for the District to submit a corrected report or to restore any negative balance in the equivalency system. Should the District subsequently submit corrected reports showing an equivalency shortfall, the applicable federal offset requirements would remain in place, but the rule would not require the District to restore the negative balance.

As we explained in our proposed action, the Rule 2201 remedies are inadequate to ensure equivalency once available carryover offsets and additional creditable emission reductions are exhausted. 4 Our 2004 approval of the rule acknowledged that a deficit could remain even after all available emission reductions were exhausted, in which case the District would be required to implement federal offsetting requirements:

These federal offsetting requirements do not apply retroactively. Rule 2201 clearly establishes that the remedy shall be implemented prospectively through subsequent permitting actions, specifying that “all ATCs issued after the report deadline for that year shall comply” with the federal offsetting requirements. 6 Similar language appears in the rule's other federal offset remedy provisions. 7 Once the District has exhausted all creditable offsets and additional creditable emissions reductions under section 7.4.1.1 and implemented the federal offset remedies for new permitting actions under section 7.4.1.2, the rule provides no further corrective mechanisms to restore a prior shortfall. Specifically, there is no requirement for the District to collect any additional offsets from a source that was previously issued a permit under the rule. 8 Accordingly, as noted in our proposed action, the equivalency system may retain a historical deficit relative to the federal program even after all applicable remedies are fully implemented.

In reviewing the Rule 2201 text, we fail to see any provisions that would provide a mechanism to require the District to quantify and correct any negative balance in the equivalency system, as claimed by the commentors. In particular, we see nothing in the rule that would require the District to submit a corrected report once the remedies from sections 7.4.1.3 and 7.4.2.3 of the rule are imposed, as the commenters appear to suggest. As noted above, these remedies apply “until” the District submits a report that complies with the applicable requirements. But if the District does not submit any such correction, the federal offset remedy remains in place, and the District is not otherwise compelled to take any further action.

Comment 3: The commenters recount concerns associated with the creditability of emissions reductions from agricultural engine electrification (“Ag-ICE”) projects and orphan shutdowns, and argue that the District's provisional withdrawal of these reductions from the equivalency system means that all reports that relied on these reductions to show equivalency (beginning with the 2007-2008 report) violate sections 7.2.1 and 7.2.2 of the rule. Therefore, according to the commenters, the automatic remedies in sections 7.4.1.3 and 7.4.2.3 should apply until the District submits corrected annual reports for these periods. If the District corrects these reports and quantifies the equivalency system deficit, the commenters state, the corrected reports will indicate when the District first had negative balances in its equivalency system, and the automatic remedies for equivalency failure would take effect upon the due date for the first corrected annual report to show system failure, meaning that all permits issued from that date forward would need to meet the appropriate federal offset requirements.

Response: As explained in our response to the prior comment, we disagree that the Rule 2201 remedies would require the District to submit corrected reports or to retroactively apply federal offset requirements to permitting actions completed in prior reporting years. Further, while we acknowledge the commenters' concerns about the creditability of emissions reductions from Ag-ICE projects and orphan shutdowns, a determination of whether prior annual equivalency reports complied with the applicable requirements of the SIP-approved version of Rule 2201 is outside the scope of this rulemaking action.

Comment 4: The commenters state that the EPA should revisit the technical basis for our proposed approval of the District's nonattainment area NSR precursor demonstration for ammonia. The commenters assert that the EPA has failed to consider two significant issues related to the 2025 NO X inventory used to assess the contribution of major sources of ammonia on ambient air quality. In particular, the commenters say that the 50% reduction in NO X emissions between 2013 and 2025 cited in the TSD may be overstated because the EPA has not yet approved several of the strategies to achieve over 33 tons per day (tpd) of reductions in CARB's “aggregate commitment” in the 2018 San Joaquin Valley PM 2.5 Plan. In addition, the commenters say that the NO X emissions inventory used in the modeling fails to fully account for NO X emissions from soil. The commenters cite Almarez et al. (2018) and Sha et al. (2021), which they say show that including NO X emissions from soil could increase total NO X in the emissions inventory by 50%.

The commenters request that the EPA require the District to perform a precursor demonstration without the 2025 NO X inventory which relies on reductions from the aggregate commitments, suggesting that it would be more appropriate to use the current year inventory adjusted to conservatively account for soil NO X data.

Response: The EPA does not agree that the technical basis for the NSR precursor demonstration is improper for the reasons suggested by the commenter. The projected 50% emissions reduction between 2013 and 2025, cited in the TSD  9 and precursor demonstration, 10 comes from the 2018 San Joaquin Valley PM 2.5 Plan. 11 Table B-2 of the Plan's Appendix B shows the baseline emissions inventory for NO X , which projects emissions reductions expected due to existing control measures. This baseline inventory does not include additional reductions from new control measures or aggregate commitments in the Plan. During the 2013 to 2025 period, baseline annual average NO X emissions are projected to decrease from 317.2 tons per day (tpd) to 143.7 tpd, a decrease of 54.7%. Similarly, for the same time period, baseline winter season emissions are projected to decrease from 300.5 tpd to 134.5 tpd, a decrease of 55.2%. Over 90% of the decrease is due to NO X emissions reductions from the existing motor vehicle control program. 12 Thus, NO X emissions are projected to decrease by over 50%, independent of any NO X reductions required for District's attainment plan for the 2012 annual PM 2.5 NAAQS.

The precursor demonstration's 2025 modeling includes reductions from the aggregate commitments, and therefore shows lower NO X emissions than the 2025 baseline. With these lower NO X emissions, modeling of PM 2.5 formation would tend to be more NO X -limited and less ammonia-limited than the higher baseline inventories, and therefore less responsive to the addition of hypothetical new ammonia point sources. With or without the aggregate commitment reductions, the model response to adding hypothetical new ammonia sources is small enough to sustain the conclusion that these sources would not contribute significantly to PM 2.5 levels exceeding the NAAQS. As we noted in our evaluation of the precursor demonstration:

Thus, without the aggregate commitment NO X reductions, the atmosphere would have to be nearly four times as sensitive to ammonia increases for the model responses to exceed the contribution thresholds. The EPA does not believe that is credible. As an approximate check, the EPA estimated the effect of including the aggregate commitments; that is, the effect of increasing the model emissions input by 33.88 tpd of NO X . 14 The aggregate commitments represent a reduction of 23.6% from 2025 baseline emissions of 143.7 tpd. For comparison, baseline annual NO X emissions decreased by 26.8% between 2020 and 2024 (203.3 tpd down to 148.9 tpd). 15 The comprehensive ammonia precursor demonstration in the 2018 San Joaquin Valley PM 2.5 Plan  16 estimates the effect of a 30% reduction in ammonia emissions for both 2020 and 2024 baseline emissions, using the same underlying 2013 base case as the NSR precursor demonstration. In going from the 2024 to the 2020 results, the response increased by 100%, a factor of two, for the Bakersfield-Planz site (0.12 up to 0.24 µg/m 3 ), which is the most responsive site, and by an average of 62% over all sites. This shows that a NO X emissions increase comparable to that from the aggregate commitments increased the sensitivity to ammonia by at most a factor of two. That is far less than the factor of four increase that would be needed for hypothetical new ammonia sources to exceed the contribution threshold. Therefore, the NSR precursor demonstration results support the conclusion that new major sources and major modifications would not contribute significantly to PM 2.5 levels exceeding the NAAQS even when NO X reductions from the aggregate commitments are included.

With respect to the amount of NO X emitted by soil in the San Joaquin Valley, there is conflicting research. The commenters cite conclusions of Almaraz et al. (2018) and Sha et al. (2021) that soil NO X emissions are underestimated in the CARB emissions inventory system, 17 and that they comprise 30-40% of total NO X emissions in California. While higher levels of soil NO X (or NO X more generally) would tend to increase the modeled sensitivity of ambient PM 2.5 to ammonia, we maintain that there is not a sufficient basis to conclude that higher soil NO X emissions should be used in the air quality modeling for the San Joaquin Valley. 18 In contrast to the studies cited by the commenters, Guo et al. (2020)  19 does not find such a discrepancy in emissions estimates, concluding that soil NO X is about 1% of anthropogenic NO X emissions. Almaraz et al. estimates the fraction of nitrogen applied as fertilizer and released as NO X to the atmosphere to be 15%, while seven other studies reviewed by Guo et al. estimate it to be 2% or less. Almaraz et al., Sha et al., and Guo et al. all report high agreement between their modeled and observed soil NO X emissions. Almaraz et al. acknowledges the limited number of surface measurements that were available for purposes of comparing the model results and the difficulty in comparing the model results to the observations and notes the need for more field measurements. Guo et al. states that obtaining an emission factor correlating NO X emissions to fertilizer application from the data available in various studies (including Almaraz et al.) would be “difficult or impossible” due to the sparsity of data collected in terms of sampling length, sampling frequency, and the episodic nature of nitrogen gas emissions from soil.

In light of the uncertainties and disagreements among studies, at this time the EPA does not believe that available research provides sufficient certainty about the magnitude and proportion of soil NO X emissions attributable to agricultural fertilizer application to require substantial revisions in either the NO X emissions inventory or the PM 2.5 modeling at this time.

In summary, the EPA disagrees with the commenters that the District's ammonia precursor demonstration is insufficient. The EPA believes that the modeling in the precursor demonstration adequately shows that new and modified major sources of ammonia would not contribute significantly to PM 2.5 levels above the NAAQS. The EPA therefore affirms our approval of the District's nonattainment area NSR precursor demonstration for ammonia, and our approval of Rule 2201 without including ammonia as a PM 2.5 precursor. 20

No comments were submitted that change our assessment of Rule 2201 as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a limited approval and limited disapproval of Rule 2201. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient.

This approval is limited because the EPA is simultaneously finalizing a limited disapproval of the rule under section 110(k)(3). Our limited disapproval action triggers an obligation for the EPA to promulgate a federal implementation plan (FIP) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months of this final action. Additionally, because the deficiency relates to nonattainment NSR requirements under part D of title I of the Act, the offset sanction in CAA section 179(b)(2) will be imposed in the San Joaquin Valley nonattainment area 18 months after the effective date of this action, and the highway funding sanction in CAA section 179(b)(1) will be imposed in the area six months after the offset sanction is imposed, unless the EPA approves subsequent SIP revisions that correct the rule deficiencies prior to the implementation of the sanctions. The EPA intends to work with the District to correct the deficiencies in a timely manner.

Note that Rule 2201 has been adopted by the SJVAPCD, and the EPA's final limited disapproval does not prevent the local agency from enforcing it. The limited disapproval would also not prevent any portion of the rule from being incorporated by reference into the federally enforceable SIP. 21

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of SJVAPCD Rule 2201, “New and Modified Stationary Source Review Rule,” amended on August 15, 2019, which implements the District's NSR permitting program for new and modified sources of air pollution under section 110(a)(2)(C) and part D of title I of the CAA. The EPA has made, and will continue to make, these materials available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Additional information about these statutes and Executive orders can be found at https://www.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.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 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 impose additional requirements beyond those imposed by state law.

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

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to review state choices, and approve those choices if they meet the minimum criteria of the Act. Accordingly, this action is finalizing a limited approval and limited disapproval of Rule 2201 as meeting federal requirements and does not impose additional requirements beyond those imposed by state law.

The State did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

This action is subject to the CRA, and the 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 8, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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)).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

On February 27, 2023, EPA proposed to approve revisions to OAC Chapter 3745-112. The revised rules include OAC 3745-112-01 (Definitions); 3745-112-02 (Applicability); 3745-112-03 (Standards); 3745-112-04 (Exemptions); 3745-112-05 (Administrative Requirements); 3745-112-06 (Reporting Requirements); 3745-112-07 (Variances); and 3745-112-08 (Test Methods), effective on June 20, 2022. These revised rules are intended to assist in achieving and maintaining the 2015 ozone NAAQS through the regulation of VOCs in consumer products. We find that these rules are approvable because they are SIP strengthening measures. 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 (88 FR 12303) and will not be restated here. The public comment period for this proposed rule ended on March 29, 2023. EPA received no adverse comments on the proposal.

EPA is approving rule revisions to Chapter 3745-112 of the OAC. The revised rules include OAC 3745-112-01 to OAC 3745-112-08 and are intended to assist in achieving and maintaining the 2015 ozone NAAQS through the regulation of VOCs in consumer products. EPA finds that these rules are approvable because they strengthen the VOC control portion of Ohio's SIP.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Ohio Administrative Code Regulations described in section I of this preamble and set forth in the amendments to 40 CFR part 52 below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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 14094 (88 FR 21879, April 11, 2023);

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

• 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.

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).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The Ohio Environmental Protection Agency did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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 8, 2023. 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, title 40 CFR part 52 is 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 Federal Register Office's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0646 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 8, 2023. 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-2021-0646, 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/contacts.html.

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 February 25, 2022 (87 FR 10760) (FRL-9410-01-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 1E8949) by Nichino America, Inc. 4550 Linden Hill Road, Suite 501, Wilmington, DE 19808. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the insecticide benzpyrimoxan, including its metabolites and degradates, in or on the raw agricultural commodity rice, grain at 0.9 parts per million (ppm). The requested tolerance is for food imported into the U.S. and it is not registered for use in the U.S. That document referenced a summary of the petition prepared by Nichino America, Inc., the registrant, which is available in the docket, https://www.regulations.gov. One comment was received on the notice of filing. EPA's response to the comment is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA is revising the tolerance commodity definition for the requested tolerance in/on rice, grain and is also establishing tolerances for rice, polished rice and rice, bran. The reason for these changes is explained in Unit IV.D.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The toxicology database for benzpyrimoxan is complete for the establishment of a tolerance without U.S. registration. The affected target organs following the administration of benzpyrimoxan are the kidney and urinary tract. Crystals were observed in the kidneys and urinary tract along with tissue damage in both mice and rats following subchronic and chronic oral administration. The rat appeared to be the most sensitive species tested, with mouse and dog having similar toxicity. There did not appear to be a difference in toxicity by sex in any species.

Increased quantitative susceptibility was seen in the rabbit preliminary developmental study where decreases in fetal body weight were observed in the absence of adverse maternal toxicity. There was no evidence of increased quantitative or qualitative lifestage susceptibility in the definitive rat or rabbit developmental toxicity or in the preliminary rat developmental toxicity. Increased qualitative susceptibility in the form of mortality (post-implantation loss and decreased viability index) was seen in the reproductive toxicity study in rats. The concern for increased susceptibility is low as there were clear lowest-observed-adverse-effect-levels (LOAELs) and no-observed-adverse-effect-levels (NOAELs) in the developmental and reproductive toxicity studies and the points of departure (PODs) are protective of the increased susceptibility. There was no evidence of treatment-related tumors in the rat or mouse carcinogenicity studies and all of the mutagenicity studies were negative.

Benzpyrimoxan is classified as: “Not likely to be carcinogenic to humans” based on lack of treatment-related tumors in long-term dietary studies in the rat and mouse and low concern for genotoxicity. No treatment-related increase in the incidence of tumors was observed in carcinogenicity studies in rats or mice. Additionally, there is no evidence of mutagenicity in vivo or in vitro.

Toxicity data were submitted for the benzpyrimoxan metabolite DH-04 in the form of a 90-day oral toxicity study in rats. In this study, kidney effects and urine effects were observed in males and females at 65 and 78 mg/kg/day, respectively. Mortality was observed at the highest dose tested (168/181 mg/kg/day [M/F]), and histopathological evaluation revealed various cardiovascular and/or renal lesions. By comparing the effects at the LOAEL for this study to the parent 90-day oral rat study, it is estimated that DH-04 is approximately 3X more toxic than the parent compound. Consequently, a 3X potency factor for DH-04 will be used when conducting the dietary exposure assessment.

Specific information on the studies received and the nature of the adverse effects caused by benzpyrimoxan as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at https://www.regulations.gov in document “Benzpyrimoxan: First Food Use; Human Health Risk Assessment to Support the Establishment of a Tolerance without U.S. Registration in/on Rice” hereinafter “Benzpyrimoxan Human Health Risk Assessment” at page 24 in docket ID number EPA-HQ-OPP-2021-0646.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for benzpyrimoxan used for human risk assessment can be found in the Benzpyrimoxan Human Health Risk Assessment on pages 15-16.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to benzpyrimoxan, EPA considered exposure under the petitioned-for tolerances. EPA assessed dietary exposures from benzpyrimoxan in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for benzpyrimoxan; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used 2005-2010 food consumption data from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA used tolerance-level residues (or higher to account for additional residues of concern), default processing factors, and 100 percent crop treated (PCT) assumptions.

iii. Cancer. EPA determines whether quantitative cancer exposure and risk assessments are appropriate for a food-use pesticide based on the weight of the evidence from cancer studies and other relevant data. Based on the data summarized in Unit III.A., EPA has concluded that benzpyrimoxan does not pose a cancer risk to humans due to absence of treatment-related tumors or evidence of mutagenicity in the available studies. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for benzpyrimoxan. Tolerance level residues (or higher to account for additional residues of concern), default processing factors, and 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. EPA assumes that there is no exposure through drinking water because benzpyrimoxan is not registered for use in the United States. Because residues are not expected in drinking water, dietary risk estimates include exposures from food only.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Benzpyrimoxan is not registered for any specific use patterns that would result in residential exposure.

4. Cumulative effects from substances with a common mechanism of toxicity. 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 benzpyrimoxan and any other substances. In addition, benzpyrimoxan does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that benzpyrimoxan has a common mechanism of toxicity with other substances.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. There was no evidence of increased quantitative or qualitative lifestage susceptibility in the definitive rat or rabbit developmental toxicity or in the preliminary rat developmental toxicity. However, in the preliminary rabbit developmental study, which tested up to a higher dose than the definitive study (30 mg/kg/day), decreased fetal body weights were observed at 60 mg/kg/day in the absence of adverse maternal effects. Marginal body-weight decreases associated with marked food consumption decreases were observed in the maternal animals in this study, but they did not reach adversity.

In the two-generation reproduction study, the parental animals had gross (depressed areas) and histopathological (pelvic crystals and obstructive nephropathy) effects in the kidneys of P and F1 generation males. Degenerative necrosis and hepatocyte centrilobular hypertrophy associated with increased liver weights were also observed in the parental generation. In the offspring F1 and F2 generations, increased incidences of mortality and decreases in pup body weight were observed. Increased incidence of post-implantation loss and decreased viability indices early during lactation at the same dose as that eliciting parental effects were considered to be both offspring and reproductive effects and indicated increased qualitative susceptibility.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced from 10X to 1X. That decision is based on the following findings:

i. The toxicity database for benzpyrimoxan is complete for evaluating and characterizing toxicity, assessing pre- and postnatal susceptibility under FQPA, and selecting endpoints for the anticipated exposure pathways. Developmental toxicity studies in the rat and rabbit and a two-generation reproductive toxicity study in the rat are available, in addition to an acute neurotoxicity study.

ii. There is no evidence of neurotoxicity in the benzpyrimoxan database including an acute neurotoxicity study which tested up to the limit dose and functional observation batteries and motor activity observations performed in the 90-day and combined chronic/carcinogenicity rat studies. EPA has waived both the subchronic neurotoxicity and immunotoxicity studies at this time.

iii. As stated above, no evidence of increased quantitative or qualitative lifestage susceptibility was seen in the definitive rat and rabbit developmental studies, as there were no maternal or developmental adverse effects in those studies. In the preliminary rabbit developmental study, which tested up to a higher dose (60 mg/kg/day) than the definitive study (30 mg/kg/day), adverse fetal body weights were observed in the absence of adverse maternal effects, suggesting quantitative susceptibility at ≥60 mg/kg/day. Transient body-weight decreases and marked decreases in food consumption during treatment were observed in maternal animals at this dose but were not considered to reach adversity; however, based on the findings at the highest dose tested (60 mg/kg/day) it is unlikely that the maternal animals could have tolerated much higher dosing given those observations. In the two-generation reproduction toxicity study, parental toxicity (kidney and liver effects) was observed at the same dose as offspring (mortality, decreases in body weight, post-implantation loss, and decreased viability indices) and reproductive (post-implantation loss and decreased viability indices) effects. The concern for susceptibility observed in the preliminary developmental study in rabbits is low as the effects in the maternal animals approached adversity. Additionally, there is a clear NOAEL established for developmental effects in that study and the offspring and reproductive effects in the two-generation reproduction study, and the PODs selected for risk assessment are protective of the observed quantitative and qualitative susceptibility in those two studies.

iv. There are no residual uncertainties identified in the exposure databases. An unrefined dietary exposure assessment was completed (tolerance level residues (or higher to account for additional residues of concern), default processing factors, and 100 PCT were assumed). In addition, there are no proposed or registered uses that would result to residential exposures. These assessments will not underestimate the exposure and risks posed by benzpyrimoxan.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing dietary exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). Short-, intermediate-, and chronic-term aggregate risks are evaluated by comparing the estimated total food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, benzpyrimoxan is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to benzpyrimoxan from food only will utilize less than (<) 1% of the cPAD for all infants (<1 year old), the subpopulation with the highest risk estimate. There are no residential uses for benzpyrimoxan.

3. Short- and intermediate- term risk. Short- and intermediate-term aggregate exposure takes into account short- and intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because benzpyrimoxan is not registered in the United States, the only exposures will be dietary from residues in or on imported rice; therefore, no short-term or intermediate-term residential exposure is expected. Because there is no short- or intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short- or intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short- and intermediate-term risk for benzpyrimoxan.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, benzpyrimoxan is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to benzpyrimoxan residues.

Adequate enforcement methodology (Smithers Method 14078.6140, a QuEChERS based liquid chromatography with tandem mass spectrometry (LC-MS/MS) multi-residue method) is available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for benzpyrimoxan.

One comment was received in response to the Notice of Filing. The comment stated that “there is still a lot we do not know about many of the chemicals we utilize and ingestion of these chemicals is not likely beneficial. Gathering that we should limit potential exposure to these by consumers as much as possible, why was the petition made to grant an exemption or tolerance? What is the user's or manufacturer's reasoning to request the allowance of more of these chemicals to remain on produce and potentially be ingested, and should more long-term information be acquired on the chemicals before allowing such a decision to be made?”

Although the Agency recognizes that some individuals believe pesticides should be more restricted on agricultural crops, the existing legal framework provided by section 408 of the FFDCA authorizes EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that benzpyrimoxan tolerances are safe. The commenter has provided no information indicating that a safety determination cannot be supported.

Although the petitioner requested a tolerance for “rice, grain”, EPA is establishing tolerances for “rice, husked”, “rice, polished rice”, and “rice, bran”. Each of these commodities is a processed form of the “rice, grain” raw agricultural commodity that was requested. Consistent with its authority to establish tolerances that vary from what was requested under section 408(d)(4)(A)(i) of the FFDCA, EPA is establishing tolerances that align better with the Agency's current preferred commodity vocabulary and with the actual form of the commodities that may be imported into the United States. In addition, the available residue data indicate that separate tolerances are needed for the processed commodities of “rice, polished rice” and “rice, bran” due to the concentration of residues.

Therefore, tolerances are established for residues of benzpyrimoxan, including its metabolites and degradates, in or on rice, husked at 0.9 ppm; rice, polished rice at 0.15 ppm; and rice, bran at 3 ppm.

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 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, 40 CFR chapter I is amended as follows:

This is a summary of the Commission's Report and Order, in CG Docket No. 17-59 and WC Docket 17-97, FCC 23-37, adopted on May 18, 2023, and released on May 19, 2023. The Further Notice of Proposed Rulemaking and Notice of Inquiry that was adopted concurrently with the Report and Order is published elsewhere in this issue of the Federal Register . The document is available for download at https://docs.fcc.gov/public/attachments/FCC-23-37A1.pdf.

To request this document in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530. The amendments to 47 CFR 64.6305(d)(2)(ii) and (e)(2)(ii) do not themselves contain information collection requirements subject to approval. However, substantive changes made to those rules in the 2023 Caller ID Authentication Order, 88 FR 40096 (June 21, 2023), and that are delayed indefinitely, pending approval of information collection requirements associated with that order, must become effective at the same time as or before the changes to 47 CFR 64.6305(d)(2)(ii) and (e)(2)(ii) adopted herein. Therefore, the changes in 47 CFR 64.6305(d)(2) and (e)(2) are delayed indefinitely pending the effective date of the changes to those rules from the 2023 Caller ID Authentication Order.

This document may contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. This document will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding.

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

1. In this item, the Commission extends some of the requirements it adopted in the Gateway Provider Order, 87 FR 42916 (July 18, 2022), to other voice service providers in the call path. First, the Commission requires all voice service providers, rather than only gateway providers, to respond to traceback requests within 24 hours. Second, the Commission extends the requirements to block calls following Commission notification. Finally, the Commission expands the know-your-upstream-provider requirement to cover all voice service providers. The Commission also makes other changes to voice service providers' Robocall Mitigation Database filing and mitigation obligations to be consistent with these new rules. Taken together, the expansion of these rules protects consumers from illegal calls, holds voice service providers responsible for the calls they carry, and aids in the identification of bad actors.

2. The Commission requires all voice service providers, regardless of their position in the call path, to fully respond to traceback requests from the Commission, civil and criminal law enforcement, and the industry traceback consortium within 24 hours of receipt of such a request. This extends the rule the Commission previously adopted for gateway providers to all voice service providers and replaces the existing requirement to respond “fully and in a timely manner.” While some commenters opposed the 24-hour requirement in general, none argued that non-gateway providers are less capable of complying with such a requirement.

3. Rapid traceback is essential to identifying both callers placing illegal calls and the voice service providers that facilitate them. Time is of the essence in all traceback requests, including domestic-only tracebacks. While gateway providers play a critical role, they are not the only voice service providers with an important role to play. As one commenter noted, voice service providers do not retain call detail records for a consistent period of time, so the traceback process must finish before any voice service providers in the call path seeking to shield bad actors dispose of their records. The Commission therefore agrees with commenters that argue a general 24-hour traceback requirement is a prudent measure, with benefits that outweigh the burdens. In particular, the Commission finds that the benefits of having a single, clear, equitable rule for all traceback requests outweigh the burdens of requiring a response within 24 hours. Further, the Commission made clear in adopting the existing requirement to respond “fully and in a timely manner” that it expected responses “within a few hours, and certainly not more than 24 hours absent extenuating circumstances.” As a result, this modification is primarily a matter of codifying the Commission's existing expectation, rather than significantly modifying the standard.

4. Out of an abundance of caution, the Commission initially limited the strict 24-hour requirement to gateway providers, based on their particular position in the call path and the need for especially rapid responses in the case of foreign-originated calls. Many calls, however, transit multiple U.S.-based intermediate providers' networks after passing through a gateway provider's network, and delay by any of the intermediate providers in responding to traceback requests has the same impact as delay by the gateway provider. When an intermediate provider receives a traceback request, it may not know if the call originated from outside the United States, making it impossible to apply different standards to foreign-originated calls versus domestic calls through the entire call path.

5. The Commission disagrees with commenters that argue against a strict 24-hour requirement. While the Commission understands that some smaller voice service providers that have not received previous traceback requests may be unfamiliar with the process, they will have ample time to become familiar before the requirements take effect. Additionally, the Commission adopted rules that require a response from all voice service providers “fully and in a timely manner” in December 2020, more than two years ago. In adopting that rule, the Commission made clear its expectation that responses would be made “within a few hours, and certainly in less than 24 hours absent extenuating circumstances.” Voice service providers have therefore had a significant amount of time to improve their processes so that they can respond within 24 hours in the vast majority of cases. Similarly, voice service providers can identify a clear point of contact for traceback requests and provide it to the entities authorized to make traceback requests. The Commission will consider limited waivers where a voice service provider that normally responds within the 24-hour time frame has a truly unexpected or unpredictable issue that leads to a delayed response in a particular case or for a short period of time. This may, in some instances, include problems with the point of contact or other delays caused by the request not being properly received. Voice service providers for which this requirement poses a unique and significant burden may apply for a waiver of this rule under the “good cause” standard of § 1.3 of the Commission's rules. Under that standard, for example, waivers may be available in the event of sudden unforeseen circumstances that prevent compliance for a limited period or for a limited number of calls. By doing so, voice service providers can significantly reduce the risk that traceback requests will be missed or delayed. For those voice service providers for which requests outside of business hours pose a problem, the Commission adopts the same restrictions on the 24-hour clock that it imposed for gateway providers. The 24-hour clock, consistent with the Commission's proposal to adopt the clock as adopted for gateway providers, does not start outside of business hours of the local time for the responding office. Requests received outside of business hours as defined in the Commission's rules are deemed received at 8 a.m. on the next business day. Similarly, if the 24-hour response period would end on a non-business day, either a weekend or a Federal legal holiday, the 24-hour clock does not run for the weekend or the holiday in question, and restarts at 12:01 a.m. on the next business day following when the request would otherwise be due. “Business day” for these purposes is Monday through Friday, excluding Federal legal holidays, and “business hours” are 8 a.m. to 5:30 p.m. on a business day, consistent with the definition of office hours in the Commission's rules.

6. Consistent with that finding, the Commission declines INCOMPAS' request that the Commission double the response time to 48 hours or allow voice service providers to submit a response indicating that responding requires additional time along with assurances that it will complete the traceback request “in a timely manner.” INCOMPAS offers little in the way of support for this proposed doubling of the traceback response time and the Commission is not persuaded that the narrow reasons it does offer cannot be adequately addressed through the Commission's waiver process. Additionally, allowing for a “request received” response to obtain further time could allow bad-actor providers to simply delay traceback responses. The Commission is also unpersuaded by other commenters opposing the 24-hour requirement whose arguments were vague. Other objections to the requirement were vague and unsupported, e.g., the requirement “will likely result in increased enforcement activity and expenses for good actors who for legitimate reasons (and on an infrequent basis) may not respond in a timely manner” or is “unnecessary and unwarranted.”

7. The Commission further declines to adopt the tiered approach that it sought comment on in the Gateway Provider Further Notice of Proposed Rulemaking (FNPRM), 87 FR 42670 (July 18, 2022). The Commission finds that the tiered approach is too complicated; voice service providers and other entities would not easily know when each response is due with a tiered approach. A uniform rule for all types of voice service providers is significantly easier to follow and enforce. While a tiered approach might benefit some smaller voice service providers that receive few requests, the benefits do not outweigh the overall burdens of administering such a complex system. This 24-hour requirement is a clear standard that the Commission believes all voice service providers will be able to implement because for several years they have already complied with the “timely manner” requirement.

8. The Commission is similarly unpersuaded by arguments that the current efficiency of the traceback system, where many voice service providers do respond rapidly, indicates that a strict rule is inappropriate. The Commission applauds the industry for its work at improving traceback and recognizes that many, if not most, voice service providers already respond in under 24 hours. There are, however, a large number of voice service providers, and experience indicates that some may not be incentivized to respond without delay. The failure of any one voice service provider to do so presents a potential bottleneck. For those voice service providers that already respond within 24 hours, this requirement presents no new burden; those voice service providers can simply continue what they have been doing. It is voice service providers that do not respond within that timeframe that present a problem, and this requirement puts them clearly on notice that any delaying tactics will not be tolerated in a way that a “timely” requirement does not.

9. Finally, the Commission declines INCOMPAS' request to remove the Commission and civil and criminal law enforcement from the list of entities authorized to make a traceback request under the Commission's rules. The Commission has included these entities on the list since it adopted the initial rule in 2020, and voice service providers have not provided evidence that requests from these entities present problems. The mere fact that “many companies have established processes” to respond to these entities does not justify excluding them in the rule.

10. The Commission next extends two of the mandatory blocking requirements adopted in the Gateway Provider Order to a wider range of voice service providers. First, the Commission modifies the existing requirement for voice service providers to effectively mitigate illegal traffic; the Commission now requires all originating providers to block such traffic when notified by the Commission, consistent with the existing requirement for gateway providers. Second, the Commission makes it clear that, while terminating and non-gateway intermediate providers are not generally required to block, they are required to respond and provide accurate information regarding the source from which they received the traffic. Finally, the Commission requires voice service providers immediately downstream from a bad-actor voice service provider that has failed to meet these obligations to block all traffic from the identified provider when notified by the Commission that the upstream provider failed to meet its obligation to block illegal traffic or inform the Commission as to the source of the traffic.

11. Consistent with the rules the Commission adopted in the Gateway Provider Order, the Commission ensures that all voice service providers are afforded due process; the rule the Commission adopts here includes a clear process that allows ample time for a notified voice service provider to remedy the problem and demonstrate that it can be a good actor in the calling ecosystem before the Commission directs downstream providers to begin blocking. This process, adopted for gateway providers in the Gateway Provider Order, includes the following steps: (1) the Enforcement Bureau shall provide the voice service provider with an initial Notification of Suspected Illegal Traffic; (2) the provider shall be granted time to investigate and act upon that notice; (3) if the provider fails to respond or its response is deemed insufficient, the Enforcement Bureau shall issue an Initial Determination Order, providing a final opportunity for the provider to respond; and (4) if the provider fails to respond or that response is deemed insufficient, the Enforcement Bureau shall issue a Final Determination Order, directing downstream voice service providers to block all traffic from the identified provider. In the Gateway Provider FNPRM, the Commission sought comment on extending this process to all voice service providers.

12. Blocking Following Commission Notification of Suspected Illegal Traffic. The Commission first extends the requirement to block and cease carrying or transmitting illegal traffic when notified of such traffic by the Commission through the Enforcement Bureau; in extending the rule, the Commission applies it to originating providers as well as gateway providers. To comply with this requirement, originating providers must block or cease accepting traffic that is substantially similar to the identified traffic on an ongoing basis. Any voice service provider that is not an originating or gateway provider and is notified by the Commission of illegal traffic must still identify the upstream voice service provider(s) from which it received the identified traffic and, if possible, take lawful steps to mitigate this traffic. The Commission finds that, in most instances, blocking is the most effective means of mitigating illegal traffic and nothing in the record contradicts this conclusion. Further, this modification eliminates potential ambiguity and provides certainty to voice service providers that may otherwise be unsure how to comply.

13. In expanding this requirement, the Commission makes clear that nothing in this rule precludes the originating provider from taking steps other than blocking the calls to eliminate this traffic, provided it can ensure that the method has the same effect as ongoing blocking. For example, if the originating provider stops the calls by terminating the customer relationship, it must ensure that it terminates all related accounts and does not permit the customer to open a new account under the same or a different name in order to resume originating illegal calls.

14. The record supports extending this rule and creating a uniform process, rather than treating gateway and originating providers differently. A single, clear standard requiring blocking by the first domestic voice service provider in the call path eliminates possible confusion, better aligns with industry practices, and provides greater certainty to voice service providers while also protecting consumers. Because voice service providers further down the call path from the originator may find it challenging to detect and block illegal traffic, the Commission limits the blocking requirement to originating and gateway providers but still requires non-gateway intermediate providers to play their part by identifying the source of the traffic and taking steps, if possible, to mitigate that traffic. By requiring blocking by originating and gateway providers, the Commission properly balances the burden of identifying and blocking substantially similar traffic on an ongoing basis with the benefit to consumers.

15. With these modifications to the Commission's rules, all traffic that transits the U.S. network will be subject to its blocking requirements, even if non-gateway intermediate providers are not generally required to block. While the Commission agrees with the 51 State attorneys general (AGs) that no traffic should be exempt from its blocking mandate, it does not agree that there should be no variation “across provider types or roles.” The Commission believes the key is to ensure that all traffic is subject to the rule so that bad actors can be identified and stopped. The rule the Commission adopts in this document holds originating providers responsible for the traffic their customers originate.

16. The Commission further declines to remove the requirement to block “substantially similar traffic” as one commenter asks. A rule that only requires an originating provider to block the traffic specifically identified in the initial notice would arguably block no traffic at all, as the Enforcement Bureau cannot identify specific illegal traffic before it has been originated. The requirement to block substantially similar traffic is therefore essential to the operation of the rule.

17. Obligations of a Terminating or Non-Gateway Intermediate Provider When Notified by the Commission. Any terminating or non-gateway intermediate provider that is notified under this rule must promptly inform the Commission that it is not the originating or gateway provider for the identified traffic, specify which upstream voice service provider(s) with direct access to the U.S. public switched telephone network it received the traffic from, and, if possible, take lawful steps to mitigate this traffic. Voice service providers that fail to take available steps to effectively mitigate illegal traffic may be deemed to have knowingly and willfully engaged in transmitting unlawful robocalls. The Commission notes that one clearly available tool is its safe harbor that, once the upstream provider has been notified of the identified illegal traffic by the Commission, permits the downstream provider to block all traffic from that upstream provider if the upstream provider fails to effectively mitigate the illegal traffic within 48 hours or fails to implement effective measures to prevent new and renewing customers from using its network to originate illegal calls. Voice service providers are already required to take these steps under the Commission's existing rules, reflecting their affirmative obligations to identify and mitigate traffic when notified by the Commission. However, the Commission is concerned that some voice service providers may provide inaccurate information, avoid responding, or continue to facilitate illegal traffic. The Commission makes clear that failing to respond or providing inaccurate information is unacceptable; in such cases, the Enforcement Bureau may make use of the downstream provider blocking requirement and move to the Initial Determination Order and Final Determination Order, consistent with the process the Commission discusses further below. The Commission has determined that a uniform set of procedures for all voice service providers reduces the burden of compliance with these rules and ensures due process in the event the Commission pursues enforcement action against providers carrying suspected illegal robocall traffic. Nothing in the record opposes this conclusion.

18. Downstream Provider Blocking. The Commission also requires blocking by voice service providers immediately downstream from any voice service provider when notified by the Commission that the voice service provider has failed to satisfy its obligations under these rules. This expands the Commission's requirement for voice service providers immediately downstream from a gateway provider to block all traffic from the identified provider when notified by the Commission that the gateway provider failed to block. If the Enforcement Bureau determines a voice service provider has failed to satisfy § 64.1200(n)(2), it shall publish and release an Initial Determination Order as described below, giving the provider a final opportunity to respond to the Enforcement Bureau's initial determination. If the Enforcement Bureau determines that the identified provider continues to violate its obligations, the Enforcement Bureau shall release and publish a Final Determination Order in EB Docket No. 22-174 to direct downstream providers to both block and cease accepting all traffic they receive directly from the identified provider starting 30 days from the release date of the Final Determination Order.

19. The record supports extending this requirement. The Commission agrees with commenters that urge it to limit this requirement to voice service providers immediately downstream from the identified provider. This limitation is consistent with the rule adopted in the Gateway Provider Order, and the Commission sees no reason to take a different approach here. If the voice service provider immediately downstream from the identified provider complies with the Commission's rules, then the calls should never reach any voice service providers further downstream. Further, voice service providers more than one step downstream from the identified provider may not know in real time that the call came from the identified provider, making it unreasonable to require them to block the calls. The Commission also agrees that this requirement should include the blocking of all traffic from the identified provider, rather than requiring the immediate downstream voice service provider to determine which calls to block. Because the Commission requires the blocking of all traffic from the identified provider, it sees no reason to provide detailed information regarding what traffic must be blocked.

20. Process for Issuing a Notification of Suspected Illegal Traffic. The Enforcement Bureau shall make an initial determination that the voice service provider is originating, carrying, or transmitting suspected illegal traffic and notify the provider by issuing a written Notification of Suspected Illegal Traffic. The Notification of Suspected Illegal Traffic shall: (1) identify with as much particularity as possible the suspected illegal traffic; (2) provide the basis for the Enforcement Bureau's reasonable belief that the identified traffic is unlawful; (3) cite the statutory or regulatory provisions the suspected illegal traffic appears to violate; and (4) direct the provider receiving the notice that it must comply with § 64.1200(n)(2) of the Commission's rules.

21. The Enforcement Bureau's Notification of Suspected Illegal Traffic shall specify a timeframe of no fewer than 14 days for a notified provider to complete its investigation and report its results. Upon receiving such notice, the provider must promptly investigate the traffic identified in the notice and begin blocking the identified traffic within the timeframe specified in the Notification of Suspected Illegal Traffic unless its investigation determines that the traffic is legal.

22. The Commission makes clear that the requirement to block on an ongoing basis is not tied to the number in the caller ID field or any other single criterion. Instead, the Commission requires the notified provider to block on a continuing basis any traffic that is substantially similar to the identified traffic and provide the Enforcement Bureau with a plan as to how it expects to do so. The Commission does not define “substantially similar traffic” in any detail here because that will be a case-specific determination based on the traffic at issue. The Commission notes that each calling campaign will have unique qualities that are better addressed by tailoring the analytics to the particular campaign on a case-by-case basis. The Commission nevertheless encourages originating providers to consider common indicia of illegal calls including, but not limited to: call duration; call completion ratios; large bursts of calls in a short time frame; neighbor spoofing patterns; and sequential dialing patterns. If the notified provider is an originating provider, the identity of the caller may be a material factor in identifying whether the traffic is substantially similar. However, an originating provider may not assume, without evidence, that the caller only has one subscriber line from which it is placing calls and must maintain vigilance to ensure that the caller does not use different existing accounts or open new accounts, under the same or a different name, to continue to place illegal calls. Additionally, the Commission strongly encourages any voice service provider that has been previously notified of illegal traffic as an originating provider to notify the Commission if it has reason to believe that the caller has moved to a different originating provider and is continuing to originate illegal calls. If the notified provider is a terminating or non-gateway intermediate provider, it must promptly inform the Commission that it is not the originating or gateway provider for the identified traffic, specify which upstream voice service provider(s) with direct access to the U.S. public switched telephone network it received the traffic from and, if possible, take lawful steps to mitigate this traffic.

23. Each notified provider will have flexibility to determine the correct approach for each particular case, but must provide a detailed plan in its response to the Enforcement Bureau so that the Bureau can assess the plan's sufficiency. If the Enforcement Bureau determines that the plan is insufficient, it shall provide the notified provider an opportunity to remedy the deficiencies prior to taking further action. The Commission will consider the notified provider to be in compliance with the Commission's mandatory blocking rule if it blocks traffic in accordance with its approved plan. The Enforcement Bureau may require the notified provider to modify its approved plan if it determines that the provider is not blocking substantially similar traffic. Additionally, if the Enforcement Bureau finds that the notified provider continues to allow suspected illegal traffic onto the U.S. network, it may proceed to an Initial Determination Order or Final Determination Order, as appropriate.

24. Provider Investigation. Each notified provider must investigate the identified traffic and report the results of its investigation to the Enforcement Bureau in the timeframe specified in the Notification of Suspected Illegal Traffic, as follows:

• If the provider's investigation determines that it served as the originating provider or gateway provider for the identified traffic, it must block the identified traffic within the timeframe specified in the Notification of Suspected Illegal Traffic (unless its investigation determines that the traffic is not illegal) and include in its report to the Enforcement Bureau: (1) a certification that it is blocking the identified traffic and will continue to do so; and (2) a description of its plan to identify and block substantially similar traffic on an ongoing basis.

• If the provider's investigation determines that the identified traffic is not illegal, it shall provide an explanation as to why the provider reasonably concluded that the identified traffic is not illegal and what steps it took to reach that conclusion. Absent such a showing, or if the Enforcement Bureau determines based on the evidence that the traffic is illegal despite the provider's assertions, the identified traffic will be deemed illegal.

• If the provider's investigation determines it did not serve as an originating provider or gateway provider for any of the identified traffic, it shall provide an explanation as to how it reached that conclusion, identify the upstream provider(s) from which it received the identified traffic, and, if possible, take lawful steps to mitigate this traffic. If the notified provider determines that the traffic is not illegal, it must inform the Enforcement Bureau and explain its conclusion within the specified timeframe.

25. Process for Issuing an Initial Determination Order. If the notified provider fails to respond to the notice within the specified timeframe, the Enforcement Bureau determines that the response is insufficient, the Enforcement Bureau determines that the notified provider is continuing to originate, carry, or transmit substantially similar traffic onto the U.S. network, or the Enforcement Bureau determines based on the evidence that the traffic is illegal despite the provider's assertions, the Enforcement Bureau shall issue an Initial Determination Order to the notified provider stating its determination that the provider is not in compliance with § 64.1200(n)(2). This Initial Determination Order must include the Enforcement Bureau's reasoning for its determination and give the provider a minimum of 14 days to provide a final response prior to the Enforcement Bureau's final determination as to whether the provider is in compliance with § 64.1200(n)(2).

26. Process for Issuing a Final Determination Order. If the notified provider does not adequately respond to the Initial Determination Order or continues to originate substantially similar traffic, or the Enforcement Bureau determines based on the evidence that the traffic is illegal despite the provider's assertions, the Enforcement Bureau shall issue a Final Determination Order. The Enforcement Bureau shall publish the Final Determination Order in EB Docket No. 22-174 to direct downstream providers to both block and cease accepting all traffic they receive directly from the identified provider starting 30 days from the release date of the Final Determination Order. The Final Determination Order may be adopted up to one year after the release date of the Initial Determination Order and may be based on either an immediate failure to comply with § 64.1200(n)(2) or a determination that the provider has failed to meet its ongoing obligation to block substantially similar traffic under that rule.

27. Each Final Determination Order shall state the grounds for the Enforcement Bureau's determination that the identified provider has failed to comply with its obligation to block illegal traffic and direct downstream providers to initiate blocking 30 days from the release date of the Final Determination Order. A provider that chooses to initiate blocking sooner than 30 days from the release date may do so, consistent with the Commission's existing safe harbor in § 64.1200(k)(4).

28. Safe Harbor. The Commission extends the limited safe harbor from liability under the Communications Act or the Commission's rules, which it adopted in the Gateway Provider Order, to include any voice service provider that inadvertently blocks lawful traffic as part of the requirement to block substantially similar traffic in accordance with the originating provider's approved plan. The record supports extending this safe harbor to protect voice service providers that take steps to prevent illegal calls from reaching consumers and the Commission sees no reason not to provide this protection.

29. Protections for Lawful Callers. Consistent with the Commission's existing blocking rules, voice service providers must never block emergency calls to 911 and must make all reasonable efforts to ensure that they do not block calls from public safety answering points (PSAPs) and government emergency numbers. The Commission declines to adopt additional transparency and redress requirements at this time or extend any other existing requirements that would not already apply to the blocking mandates it adopts in this document. These rules require the Commission to direct which types of calls voice service providers should block, so the blocking provider is not in a position to provide redress. The Commission did not receive specific comment on the need for additional protections for lawful calls.

30. The Commission requires all voice service providers accepting traffic from an upstream provider to take steps to “know” that immediate upstream provider. This extends its existing requirement for gateway providers to all voice service providers; it holds all voice service providers in the call path responsible for the calls that transit their networks. Specifically, the Commission requires every voice service provider to take reasonable and effective steps to ensure that the immediate upstream provider is not using it to carry or process a high volume of illegal traffic. The Commission therefore agrees with commenters urging it to adopt a rule that would hold all providers in the call path responsible for the traffic that transits their network. The Commission agrees with USTelecom that the best method to do so is by adopting a know-your-upstream-provider requirement.

31. The Commission finds that, while intermediate providers may be unable to identify the calling customer with sufficient accuracy to know whether they are placing illegal calls, the Commission cannot permit them to “intentionally or negligently ignore red flags from their upstream providers.” As YouMail noted, “the goal of every network should be to transit only legal calls.” Extending this requirement to every voice service provider that receives traffic from an upstream provider, rather than solely to gateway providers, ensures that all voice service providers in the call path are responsible for keeping illegal traffic off the U.S. network. Consistent with the Commission's existing rules, the Commission does not require voice service providers to take specific, defined steps to meet this requirement, and instead allows each voice service provider flexibility to determine the best approach for its network, so long as the steps are effective. In general, the Commission expects voice service providers will need to exercise due diligence before accepting traffic from an upstream provider, and may want to collect information such as “obtaining the [voice service provider's] physical business location, contact person(s), state or country of incorporation, federal tax ID (if applicable), and the nature of the [voice service provider's] business.” The Commission does not find that collecting this information is either uniformly necessary or sufficient, and voice service providers may need to take additional steps, such as adopting contract terms that allow for termination and acting on those terms in the event that the upstream provider attempts to use the network to carry or process a high volume of illegal traffic. As the Commission made clear in the Gateway Provider Order and Gateway Provider FNPRM, it does not expect perfection. However, all voice service providers must take effective steps, and if a voice service provider carries or transmits a high volume of illegal traffic that primarily originates from one or more specific upstream providers, the steps that provider has taken are not effective and must be modified for that provider to be in compliance with the Commission's rules. The Commission encourages voice service providers to regularly evaluate and adjust their approach so that that it remains effective.

32. Lastly, in the 2023 Caller ID Authentication Order, 88 FR 40096 (June 21, 2023), the Commission adopted a requirement that originating, terminating, and intermediate providers describe any procedures in place to know their upstream providers in their robocall mitigation plans. Now that all voice service providers, including intermediate providers, will be required to take reasonable and effective steps to know their upstream providers, all such providers will also be required to describe those steps in their robocall mitigation plans filed in the Robocall Mitigation Database, pursuant to the requirement adopted in the 2023 Caller ID Authentication Order.

33. Updating Robocall Mitigation Database Certifications to Include Traceback Compliance. In this document, the Commission modifies § 64.1200(n)(1) to require all voice service providers to respond to traceback requests within 24 hours. Consistent with its rule applicable to gateway providers, which already were required to respond to traceback requests within 24 hours, the Commission now requires voice service providers to commit to responding fully and within 24 hours to all traceback requests consistent with the requirements it adopts in this document in § 64.1200 of its rules, and to include a statement in their Robocall Mitigation Database filings certifying to this commitment. The Commission concludes that these limited rule modifications will ensure that voice service providers' mitigation and filing obligations are in line with their underlying compliance duties, enhance the usefulness of the Robocall Mitigation Database to both the Commission and voice service providers, and promote rule uniformity and administrability. While no party commented on these specific changes, there was significant support to adopt Robocall Mitigation Database filing and mitigation obligations for all voice service providers in the call path. The Commission also updates cross-references to § 64.1200 in its Robocall Mitigation Database certification rules to account for the amendments it adopts in the Report and Order.

34. Effective Measures to Prevent New and Renewing Customers from Originating Illegal Calls. The Commission declines to further clarify its existing requirement for voice service providers to take affirmative, effective measures to prevent new and renewing customers from using their networks to originate illegal calls, as some commenters request. The Commission agrees with commenters that support its existing flexible approach under this rule. Flexibility to adapt to changing calling patterns is necessary to avoid giving the “playbook” to bad actor callers, thus an outcomes-based standard is most appropriate. The Commission thus decline to be more prescriptive on the steps voice service providers should take to block, as requested by some commenters.

35. The Commission further declines a commenter's request that it clarify that “adopting a know-your-customer or upstream-provider standard for new or renewing customers satisfies the effective measures standard.” The commenter did not define “know-your-customer” and the Commission is not aware of any universally accepted minimum standard in the industry. Without such a definition or minimum standard, there is no guarantee that a process that an individual voice service provider describes as “know-your-customer” would be sufficient. The rule requires “effective” measures; blanket approval of measures voice service providers deem “know-your-customer” clearly does not satisfy this requirement and could lead to voice service providers adopting ineffective processes. The Commission also declines to remove the “new and renewing customer” language, as one commenter requests. This limitation will have less impact the longer the rule is in effect; more contracts will include the new provision as they are renewed over time. This limitation recognizes the challenge of modifying existing, in-force contracts.

36. Differential Treatment of Non-Conversational Traffic. The Commission declines to adopt a requirement that originating voice service providers ensure that customers originating non-conversational traffic only seek to originate lawful calls. While many illegal calls are of short duration, it does not follow that all calls of short duration are inherently suspect. The Commission agrees with commenters that argue against such requirements and are persuaded that this sort of traffic segmentation is likely to harm wanted, or even essential, traffic. In fact, only one commenter urged us to adopt a rule treating non-conversational traffic differently from conversational traffic, and even that commenter acknowledged that not all non-conversational traffic is illegal. Such a rule could, for example, make it impossible for medical centers or schools in rural areas with few voice service providers to find a provider willing to carry their traffic, which may include emergency notifications, appointment reminders, or other important notifications; the Commission will not throw the baby out with the bathwater.

37. Moreover, the Commission does not believe that a strict rule for non-conversational traffic would lead to any real benefit. To do so, the Commission would need to adopt standards for whether calls are “non-conversational” or “conversational,” which bad actors could use ensure that their traffic does not meet the criteria for stricter treatment. As a result, not only is the risk of such a rule unacceptably high, but the potential benefit is low.

38. Strict Liability. The Commission similarly declines to adopt a strict liability standard for an originating provider when its customer originates illegal calls. The Commission asked about a strict liability standard in the Gateway Provider FNPRM in the context of differential treatment of non-conversational traffic, which it has declined to adopt. The Commission disagrees with commenters that ask it to adopt this standard more broadly and agree with those who argue strict liability is inappropriate. Protecting consumers from illegal calls cannot come at the cost of blocking high volumes of lawful traffic in order to avoid the possibility that some of those calls might be illegal—which is the behavior many voice service providers would have to undertake if the Commission imposed strict liability.

39. Public Traceback. The Commission declines to require that the industry make traceback information publicly available, as one commenter asks. The Commission believes this approach places too much weight on receipt of traceback requests as an indicator that a voice service provider is a bad actor. Voice service providers that handle a large volume of calls, especially as intermediate providers, are likely to receive a high volume of traceback requests even if they are not bad actors. A general rule requiring the publication of traceback information could hamper industry efforts by discouraging voice service providers from initiating traceback requests without law enforcement intervention. Publication of traceback information may be appropriate and beneficial in certain instances, particularly when the information is published in aggregate, rather than tied to individual, specific requests. Nothing here limits the ability of the Commission or another entity to publish such information.

40. The record in this proceeding supports the Commission's conclusion in the Gateway Provider FNPRM that the Commission's proposed rules and actions, some of which it addresses in this document, “will account for another large share of the annual $13.5 billion minimum benefit we originally estimated” and that the benefits “will far exceed the costs imposed on providers.”

41. In this document, the Commission reaffirms that all voice service providers are responsible for all calls they originate, carry, or transmit. In doing so, the Commission expands several of its rules to cover a wider group of voice service providers. First, the Commission codifies its existing expectation that voice service providers respond to traceback requests within 24 hours by expanding the strict 24-hour requirement it adopted for gateway providers to all providers in the call path. Requiring rapid response to traceback complements the Commission's STIR/SHAKEN caller ID authentication rules by making it easier to identify bad actors even where caller ID authentication information is unavailable. This codification is a key piece of the Commission's comprehensive approach to combating illegal calls and supports the benefits of that approach without incurring a significant practical cost when compared to its existing requirements.

42. Second, the Commission extends its requirement to block following Commission notification to originating providers and makes clear that any voice service provider that receives such a notification is required to respond to the Commission and, if it is not an originating or gateway provider, inform the Commission where it got the traffic. If any voice service provider refuses to comply with this requirement, all voice service providers immediately downstream from the non-compliant provider may be required to block all traffic from that provider. Voice service providers must comply with Commission rules, and this rule provides clear, immediate consequences for voice service providers that refuse to do so, even if that voice service provider would be unable to pay a forfeiture. The Commission does not expect that originating providers will incur significant costs as a result of this rule because action by providers is required only when the Commission notifies the provider. Further, because providers generally adhere to Commission rules, the Commission expects that downstream providers will receive Commission notification to block only rarely. If the Commission were to issue such a blocking notification to a downstream provider, it would benefit consumers by stopping illegal calls while causing disruption to provider relationships and possibly stopping some legal calls. While the disruption of legal calls would harm consumers, the Commission expects this scenario to arise infrequently. The power of this aspect of the rule is that it gives providers strong incentives to comply with the Commission's blocking rules. Because illegal calls cause large harms to consumers, stopping even a small share of illegal calls benefits consumers significantly and, as explained above, the Commission expects this rule to have minimal costs. Therefore, the Commission finds that the benefits of this rule outweigh its costs.

43. Finally, the Commission expands the know-your-upstream-provider requirement to all voice service providers. This expanded requirement codifies that all voice service providers, regardless of their position in the call path, are responsible for preventing illegal calls. Because voice service providers should already be exercising due diligence by knowing their upstream call providers, this new rule has small costs. It has greater benefits in deterring providers from shirking their due-diligence responsibility.

44. These expanded rules will ultimately prevent illegal calls from ringing consumers' phones, both by deterring callers from placing them in the first instance and by stopping the calls before they reach the consumer. The rules also make bad actors, whether callers or voice service providers, easier to identify. Taken together, these new and expanded rules increase the effectiveness of all of the Commission's efforts to combat illegal calls, including its existing affirmative obligations and Robocall Mitigation Database filing requirements. These rules, together with the Commission's existing rules, make it easier to identify and stop illegal calls before they reach consumers. As the Commission found previously, an overall reduction in illegal calls will lower network costs by eliminating both unwanted traffic congestion and the labor costs of handling numerous customer complaints, and these new rules contribute to this overall reduction. This reduction in illegal calls will also help restore confidence in the U.S. telephone network and facilitate reliable access to emergency and healthcare services.

45. Although sparse in quantitative estimates, the record in this proceeding supports the Commission's conclusion that the benefits of these rules exceed their costs. A more uniform blocking standard will “provide additional benefits and reduce the overall burden” on providers. Extending these rules, originally adopted for gateway providers, to all voice service providers will not be overly costly or burdensome. The incremental costs of compliance with the Commission's new rules is “relatively small.” Given that robocalls reduce public welfare by billions of dollars annually, even a small percentage reduction in robocalls implies benefits that exceed the costs of the Commission's new rules.

46. The Commission's legal authority to adopt these requirements stems from sections 201(b), 202(a), and 251(e) of the Communications Act of 1934, as amended (the Act) as well as from the Truth in Caller ID Act and the Commission's ancillary authority. Sections 201(b) and 202(a) grant the Commission broad authority to adopt rules governing just and reasonable practices of common carriers.

47. The Commission's section 251(e) numbering authority provides independent jurisdiction to prevent the abuse of North American Numbering Plan (NANP) resources; this particularly applies where callers spoof caller ID for fraudulent purposes and therefore exploit numbering resources, regardless of whether the voice service provider is a common carrier. Similarly, the Truth in Caller ID Act grants the Commission authority to prescribe rules to make unlawful the spoofing of caller ID information with the intent to defraud, cause harm, or wrongfully obtain something of value. Taken together, section 251(e) of the Communications Act and the Truth in Caller ID Act grant the Commission authority to prescribe rules to prevent the unlawful spoofing of caller ID and abuse of NANP resources by all voice service providers.

48. The Commission further finds that these rules reduce the chance of unlawfully spoofed calls reaching consumers and thus are within its authority under the statutes referenced above. In particular, the requirement to respond to traceback requests within 24 hours directly impacts a caller's ability to unlawfully spoof caller ID by making it easier to detect the originator of the call. The other requirements are aimed at curbing the use of NANP numbers (whether spoofed or not) for unlawful purposes as they are focused on mitigating and preventing illegal calls.

49. While the Commission concludes that its direct sources of authority provide an ample basis to adopt its proposed rules for all voice service providers, the Commission's ancillary authority in section 4(i) provides an independent basis to do so with respect to providers that have not been classified as common carriers. The Commission may exercise ancillary jurisdiction when two conditions are satisfied: (1) the Commission's general jurisdictional grant under Title I of the Communications Act covers the regulated subject; and (2) the regulations are reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities. The Commission concludes that the regulations adopted in this document satisfy the first prong because providers that interconnect with the public switched telephone network and exchange IP traffic clearly offer “communication by wire and radio.”

50. With regard to the second prong, requiring voice service providers to comply with the Commission's proposed rules is reasonably ancillary to the Commission's effective performance of its statutory responsibilities under sections 201(b), 202(a), and 251(e) of the Communications Act and the Truth in Caller ID Act as described above. With respect to sections 201(b) and 202(a), absent application of the Commission's proposed rules to providers that are not classified as common carriers, originators of illegal calls could circumvent the Commission's proposed scheme by sending calls only via providers that have not yet been classified as common carriers.

51. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Further Notice of Proposed Rulemaking adopted in May 2022 and published at 87 FR 42670 on July 18, 2022 ( May 2022 FNPRM ). The Commission sought written public comment on the proposals in the May 2022 FNPRM, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

52. The Report and Order takes important steps in the fight against illegal robocalls by extending certain requirements to a broader range of voice service providers. First, the Report and Order requires all domestic voice service providers to respond to traceback requests within 24 hours of the request, extending the previous rule applicable to gateway providers to all providers. Second, it requires originating providers to block illegal traffic when notified of such traffic by the Commission and, if they fail to do so, requires all voice service providers in the U.S. to block all traffic from the bad-actor voice service provider, consistent with the existing rule for gateway providers. This modification eliminates potential ambiguity as to how providers should effectively mitigate illegal traffic and provides certainty to voice service providers that may otherwise be unsure how to comply. Finally, it requires all voice service providers accepting traffic from an upstream provider to take reasonable and effective steps to ensure that the immediate upstream provider is not using them to carry or process a high volume of illegal traffic. The expansion of these rules protects consumers from illegal calls, holds voice service providers responsible for the calls they carry, and aids in the identification of bad actors.

53. While no comments specifically addressed the May 2022 FNPRM IRFA, the Commission did receive some comments that addressed the impact of the proposed rules on small providers. Some commenters raised concerns about the 24-hour traceback requirement. In particular, commenters noted that the Commission recognized that smaller providers may struggle to respond quickly and result in “significant burdens” to small entities. Still other comments urged us to adopt a tiered approach to provide flexibility for smaller providers that receive infrequent traceback requests. The Commission acknowledges these concerns in the Report and Order, and discusses steps taken to address these concerns in Section F of this FRFA. The rule the Commission adopts in the Report and Order codifies the expectation of the existing rule and provides flexibility to address requests received on evenings, weekends, and holidays. The Commission further considered the potential impact of the rules proposed in the IRFA on small entities and took steps where appropriate and feasible to reduce the compliance and economic burden for small entities.

54. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

55. 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.

56. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes 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.

57. 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.

58. 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, the Commission estimates that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

59. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers.

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

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

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

63. 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.

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

65. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, contains a size standard for a “small cable operator,” which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” For purposes of the Telecom Act Standard, the Commission determined that a cable system operator that serves fewer than 677,000 subscribers, either directly or through affiliates, will meet the definition of a small cable operator based on the cable subscriber count established in a 2001 Public Notice. Based on industry data, only six cable system operators have more than 677,000 subscribers. Accordingly, the Commission estimates that the majority of cable system operators are small under this size standard. The Commission notes however, that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Therefore, the Commission is unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

66. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. Wired Telecommunications Carriers is the closest industry with 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 115 providers that reported they were engaged in the provision of other toll services. Of these providers, the Commission estimates that 113 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

67. 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.

68. Satellite Telecommunications. This industry comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The SBA small business size standard for this industry classifies a business with $38.5 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 275 firms in this industry operated for the entire year. Of this number, 242 firms had revenue of less than $25 million. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 71 providers that reported they were engaged in the provision of satellite telecommunications services. Of these providers, the Commission estimates that approximately 48 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, a little more than of these providers can be considered small entities.

69. Local Resellers. Neither the Commission nor the SBA have developed a small business size standard specifically for Local Resellers. Telecommunications Resellers is the closest industry with a SBA small business size standard. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA small business size standard for Telecommunications Resellers classifies a business as 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 for the entire year. Of that number, 1,375 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 293 providers that reported they were engaged in the provision of local resale services. Of these providers, the Commission estimates that 289 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.

70. Toll Resellers. Neither the Commission nor the SBA have developed a small business size standard specifically for Toll Resellers. Telecommunications Resellers is the closest industry with a SBA small business size standard. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA small business size standard for Telecommunications Resellers classifies a business as 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 for the entire year. Of that number, 1,375 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 518 providers that reported they were engaged in the provision of toll services. Of these providers, the Commission estimates that 495 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.

71. Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. Telecommunications Resellers is the closest industry with a SBA small business size standard. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA small business size standard for Telecommunications Resellers classifies a business as 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 for the entire year. Of that number, 1,375 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 58 providers that reported they were engaged in the provision of payphone services. Of these providers, the Commission estimates that 57 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.

72. 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.

73. The Report and Order requires voice service providers to meet certain obligations. These changes affect small and large companies and apply to all the classes of regulated entities identified above. First, all voice service providers must fully respond to traceback requests from the Commission, civil and criminal law enforcement, and the industry traceback consortium within 24 hours of receipt of such a request. The voice service provider should respond with information about the provider from which it directly received the call. Small entity voice service providers may need to identify dedicated staff of other professionals to act as a clear point of contact to respond to traceback requests in a timely manner.

74. Second, originating voice service providers, and any intermediate or terminating provider immediately downstream from the originate provider, must block calls in certain instances. Specifically, the originating provider must block illegal traffic once notified of such traffic by the Commission through its Enforcement Bureau. In order to comply with this requirement, small entities that are originating providers must block traffic that is substantially similar to the identified traffic on an ongoing basis. When an originating provider fails to comply with this requirement, the Commission may require small entity providers immediately downstream from an originating provider to block all traffic from the identified provider when notified by the Commission. As part of this requirement, a notified small entity originating provider must promptly report the results of its investigation to the Enforcement Bureau within 14 days, including, unless the originating provider determines it is either not an originating or gateway provider for any of the identified traffic or that the identified traffic is not illegal, both a certification that it is blocking the identified traffic and will continue to do so and a description of its plan to identify the traffic on an ongoing basis. In order to comply with the downstream provider blocking requirement, all providers must monitor EB Docket No. 22-174 and initiate blocking within 30 days of a Blocking Order being released.

75. The RFA requires an agency to provide, “a description of the steps the agency has taken to minimize the significant economic impact on small entities . . . including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.”

76. Generally, the decisions the Commission made in the Report and Order apply to all providers. Treating small providers differently from larger providers would have a significant impact on the success of the rules the Commission adopts in this document, meaning that fewer consumers would be protected from illegal calls and bad-actor callers would have more opportunities to find ways around these restrictions. However, the Commission did take steps to ensure that small entity and other providers would not be unduly burdened by these requirements. Specifically, the Commission allowed flexibility where appropriate to ensure that small providers, can determine the best approach for compliance based on the needs of their networks. For example, providers have the flexibility to determine their proposed approach to blocking illegal traffic when notified by the Commission and to determine the steps they take to “know the upstream provider.”

77. The Commission will send a copy of the Gateway Provider Report and Order and Order on Reconsideration, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Gateway Provider Report and Order and Order on Reconsideration, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Gateway Provider Report and Order and Order on Reconsideration (or summaries thereof) will also be published in the Federal Register .

78. It is ordered that, pursuant to sections 4(i), 201, 202, 217, 227, 227b, 251(e), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 201, 202, 217, 227, 251(e), 303(r), 403, the Report and Order is adopted.

79. It is further ordered that the Report and Order shall be effective 180 days after publication in the Federal Register , except that the amendments to § 64.6305(d)(2)(iii) and (f)(2)(iii), 47 CFR 64.6305(d)(2)(iii) and (f)(2)(iii), which may contain new or modified information collection requirements, will not become effective until the later of: (i) 180 days after publication in the Federal Register ; or (ii) 30 days after the Office of Management and Budget completes review of any information collection requirements that the Consumer & Governmental Affairs Bureau determines is required under the Paperwork Reduction Act. In addition, the amendments to § 64.6305(d)(2)(ii) and (e)(2)(ii), 47 CFR 64.6305(d)(2)(ii) and (e)(2)(ii), will not become effective until the later of: (i) 180 days after publication in the Federal Register ; or (ii) 30 days after the Office of Management and Budget completes review of any information collection requirements that the Wireline Competition Bureau determines is required under the Paperwork Reduction Act for the changes made to these paragraphs in the 2023 Caller ID Authentication Order. The Commission directs the Consumer & Governmental Affairs Bureau and the Wireline Competition Bureau, as appropriate, to announce the effective dates for § 64.6305(d)(2)(ii) and (iii), (e)(2)(ii), and (f)(2)(iii) by subsequent Public Notice.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 0 and 64 as follows:

This is a summary of the Commission's Order in GN Docket No. 22-352 included in the Report and Order and Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking and Order, FCC 23-36, adopted on May 18, 2023 and released on May 19, 2023. The full text this document is available at https://docs.fcc.gov/public/attachments/FCC-23-36A1.pdf. The Report and Order and the Further Notice of Proposed Rulemaking (WT Docket No. 20-443), and the Notice of Proposed Rulemaking and the Order (GN Docket No. 22-352), i.e., the four FCC actions in FCC 23-36, are published separately in the Rules and Regulations and the Proposed Rules sections, as applicable, of this issue of the Federal Register .

Paperwork Reduction Act: The Order in GN Docket No. 22-352 does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, the Order 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).

1. In the 12.7 Notice of Inquiry (12.7 NOI), the Commission noted that to the extent it considers relocation of incumbents, or even future sharing between incumbents and new entrants, it will be important to have clear information about the nature and density of incumbent use. 1 Accordingly, the Commission sought comment on whether to require incumbents in the 12.7 GHz band to submit information detailing their current use of the band, and if so, what such information it should require to be submitted. 2

2. In response, several commenters urge the Commission to require incumbents to confirm that they are actually operating in the band and to provide detailed information about their operations including transmitter and receiver characteristics. 3 For the 23 uplink Earth stations authorized in the band, and for the fixed point-to-point links authorized under parts 78 and 101, the operator or licensee must file a separate renewal application for each authorization. 4 All of the fixed links under part 101, however, were first authorized relatively recently (2017 or later) and typically consist of paired transmitters and receivers providing a communications link between two fixed locations. By contrast, many of the Broadcast Auxiliary Services (BAS) and Cable Television Relay Services (CARS) incumbents were first authorized decades ago to use channels throughout the 12.7 GHz band over geographic areas for operations typically consisting of a collection of receive sites, mobile equipment, and control equipment, 5 which heightens the need to ensure that these authorizations in the Universal Licensing System (ULS)  6 and the Cable Operations and Licensing System (COALS)  7 still accurately reflect current operations.

3. Accordingly, to improve the data that the public and the Commission have to make informed comments and decisions about the proposals discussed in the notice of proposed rulemaking ( see FCC 23-36, paras. 58-142) (FR 2023-13500), published elsewhere in this issue of the Federal Register , the Commission directs fixed and mobile BAS and CARS licensees under parts 74 and 78, to certify the accuracy of all information reflected on each license that includes authority to operate in the 12.7 GHz band, including whether the facilities are operating as authorized. If a licensee is unable to make such a certification for a given license, it must cancel or modify the license in accordance with the Commission's rules. 8 The Commission exempts from this Order BAS and CARS licensees that have filed separate applications, on or after January 1, 2021, for new or modified licenses in the 12.7 GHz band. The Commission notes that for purposes of implementing the Paperwork Reduction Act of 1995 (PRA), these certifications are not “information” collections that require approval from the Office of Management and Budget (OMB). 9 The Commission directs the Wireless Telecommunications Bureau, in coordination with the Media Bureau, to issue a Public Notice that will: (1) provide detailed instructions for BAS and CARS licensees to file certifications regarding existing information in ULS and COALS, respectively; and (2) establish a window for the filing of certifications. The Commission also directs the Bureaus, in coordination with the Office of Economics and Analytics, to consider whether additional information should be collected from some or all 12.7 GHz band incumbents to seek comment regarding the need to initiate an information collection if such additional information is necessary to supplement the information submitted in this proceeding, and to comply with all requirements associated with any such information collection under the PRA. 10

4. The Commission acknowledges that several comments recommend also seeking information from all incumbent licensees in the 12.7 GHz band, as well as in the bands adjacent to the 12.7 GHz band. 11 As noted in the notice of proposed rulemaking (FCC 23-36) (FR 2023-13500), the Commission's rules require all in-band incumbents to operate in accordance with their authorizations. In the notice of proposed rulemaking, 12 the Commission specifically seeks detailed information on the receiver, antenna, and operational characteristics for services operating in the adjacent bands from incumbents in adjacent bands, including Direct Broadcast Satellite (DBS), Fixed Satellite Service (FSS) (space-to-Earth) limited to non-geostationary orbit systems (NGSO FSS), Multi-Channel Video and Data Distribution Service (MVDDS), active spaceborne sensors, and aeronautical radionavigation services (ARNS), that contend that provisions beyond the existing 12.7 GHz band fixed service protection levels for adjacent bands would be necessary for mobile broadband or other expanded-use operations in the 12.7 GHz band to prevent harmful interference to operations in those adjacent bands.

5. Although the Commission does not require incumbents to provide additional information on their existing operations at this time, the Commission proposes in the Notice of Proposed Rulemaking to protect only those BAS and CARS stations licensed in ULS and COALS, respectively, for which the licensee timely files the certification required in this Order (to the extent they have not filed a new or modification application in ULS or COALS for the station on or after January 1, 2021) and to protect FS incumbents based on licensing data. For the 23 incumbent Earth stations in the band, the Commission also proposes in the Notice of Proposed Rulemaking to use the International Bureau Filing System (IBFS) data in defining the scope of the grandfathered status of these stations. Because the Commission may use these data to inform its deliberations regarding the future use of the 12.7 GHz band, including possible interference avoidance coordination or relocation of facilities, or grandfathered status that could require future licensees to accept harmful interference from existing operations, the Commission encourages all licensees to timely submit their data and to update their information in the event of a change in any of the operational parameters.

6. It is ordered that, pursuant to sections 1, 2, 4, 5, 301, 302, 303, 304, 307, 309, 310, and 316 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154, 155, 301, 302a, 303, 304, 307, 309, 310, 316, and § 1.411 of the Commission's rules, 47 CFR 1.411, the Report and Order and Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking, and Order in the captioned dockets is adopted.

7. The inquiry in Expanding Flexible Use in Mid-Band Spectrum Between 3.7-24 GHz, GN Docket No. 17-183, is terminated as to the mid-band spectrum between 12.2 GHz and 13.25 GHz.

8. It is further ordered that, pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comment on the Further Notice of Proposed Rulemaking in WT Docket No. 20-443 and the Notice of Proposed Rulemaking in GN Docket No. 22-352 on or before the number of days shown on the first page of this document after publication in the Federal Register , and reply comment on or before the number of days shown on the first page of this document after publication in the Federal Register .

9. It is further ordered that the Commission's Office of the Secretary, Reference Information Center, shall send a copy of the Report and Order and Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking, and Order, including the associated Initial Regulatory Flexibility Analyses to the Chief Counsel for Advocacy of the Small Business Administration.

This a summary of the Commission's Report and Order (R&O) in WT Docket No. 20-443 included in the Report and Order and Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking and Order, FCC 23-36, adopted on May 18, 2023 and released May 19, 2023. The full text of this document is available at https://docs.fcc.gov/public/attachments/FCC-23-36A1.pdf. The R&O and the Further Notice of Proposed Rulemaking (WT Docket No. 20-443), and the Notice of Proposed Rulemaking and the Order (GN Docket No. 22-352), i.e., the four FCC actions in FCC 23-36, are published separately in the Rules and Regulations and the Proposed Rules sections, as applicable, of this issue of the Federal Register .

People with Disabilities: To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

Regulatory Flexibility Act: 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.” In the Report and Order, the Commission declines to adopt rule changes and, therefore a Final Regulatory Flexibility Analysis has not been performed.

Congressional Review Act: The Commission will not send a copy of the Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A), because it does not adopt any rule as defined in the Congressional Review Act, 5 U.S.C. 804(3).

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

1. In this R&O, the Commission takes steps to ensure current and future satellite services relied upon by millions of people across the country are preserved and protected in the 12.2-12.7 GHz band (12.2 GHz band)  1 The Commission finds that authorizing two-way, high-powered terrestrial mobile service in the 12.2 GHz band would impose a significant risk of harmful interference to existing and emergent services in the band, including satellite services. Such interference could undermine investments made by incumbent licensees and jeopardize their potential to provide new services to underserved communities, including rural communities. The 12.2 GHz band is allocated on a primary basis for non-Federal use for Broadcasting Satellite Service (BSS) (referred to domestically as Direct Broadcast Satellite (DBS)), Fixed Satellite Service (FSS) (space-to-Earth) limited to non-geostationary orbit systems (NGSO FSS), and Fixed Service. 2 While the three services are co-primary, NGSO FSS and Fixed Service are allocated on a non-harmful interference basis to DBS. 3 Currently there are three services operating in the band: DBS providers operating under the primary BSS allocation, NGSO FSS licensees operating under the co-primary NGSO FSS allocation, and Multi-Channel Video and Data Distribution Service (MVDDS) licensees operating under the co-primary Fixed Service allocation. 4

2. While DBS service began in 1994, and NGSO FSS systems were authorized in the early 2000s, the Commission permitted MVDDS to operate in the 12.2 GHz band starting in 2004 under technical rules to ensure that MVDDS stations do not cause harmful interference to DBS or earlier-in-time NGSO FSS fixed subscriber receivers. 5 To that end, MVDDS service was limited to a relatively low power, one-way, digital fixed non-broadcast service, including one-way direct-to-home/office wireless service with each proposed transmitter subject to detailed prior coordination requirements. 6 In April 2016, a coalition of MVDDS licensees filed a Petition for Rulemaking requesting reforms to the 12.2 GHz band rules, including permitting MVDDS licensees to use the band for two-way mobile broadband services. 7

3. Later in 2016, the International Bureau opened a processing round to accept NGSO FSS applications and petitions for market access in several frequency bands  8 and the Commission reformed its NGSO FSS rules. 9 In 2017, the Commission granted the first of the new generation NGSO FSS requests—a petition for market access by WorldVu Satellites Limited (OneWeb) for a planned Low Earth Orbit (LEO) NGSO FSS satellite system of 720 satellites authorized by the United Kingdom in the 10.7-12.7 GHz Band (in addition to several other bands). 10 The Commission concluded that “the pendency of the MVDDS 5G Coalition's Petition for Rulemaking was not a sufficient reason to delay or deny these requests to use the band under the existing NGSO FSS allocation and service rules.”  11 In granting this request, however, the Commission conditioned access to the 12 GHz band on the outcome of the MVDDS 5G Coalition's Petition and any other rulemaking initiated on the Commission's own motion. 12 The Commission also agreed with comments of the MVDDS 5G Coalition that MVDDS should not have to protect any NGSO FSS earth stations in motion operations in the band, if authorized in the future, because such operations had not been contemplated under the longstanding first-in-time MVDDS/NGSO FSS sharing approach. 13 The NGSO FSS Report and Order adopted, among other things, spectrum sharing rules and a more flexible milestone schedule for NGSO FSS systems. 14 The Commission subsequently granted five additional NGSO FSS requests to use bands that include the 12.2 GHz band (among others). 15

4. NGSO FSS systems have continued to deploy. In particular, SpaceX received modified authority for its first generation (Gen 1) system to decrease the altitude from the 1,100-1,300 km to the 540-570 km range for 2,814 satellites as well as approval of its updated orbital debris mitigation plan. 16 To date, SpaceX has deployed approximately 4,000 satellites. 17 The Commission also recently issued a partial grant to SpaceX to begin deploying its second generation (Gen 2) system, with a grant approving up to 7,500 satellites to operate in the Ka- and Ku-frequency bands. 18 OneWeb also recently received modified authority for its constellation  19 and, to date, it has deployed over 580 satellites. 20 On June 30, 2022, the International Bureau authorized SpaceX and Kepler to serve earth stations in motion (ESIMs) in the 12.2 GHz band on an unprotected, non-harmful interference basis. 21

5. On January 15, 2021, the Commission released a notice of proposed rulemaking ( 12.2 NPRM ) to allow interested parties to address whether it could add a mobile allocation and make other changes to expand terrestrial use of the 12.2 GHz band without causing harmful interference to incumbent licensees and, if so, whether such action would promote or hinder the delivery of next-generation services in the 12.2 GHz band given the existing and emergent services offered by incumbent licensees. 22

6. By this R&O, the Commission finds that it is not in the public interest to add a mobile allocation to permit a two-way terrestrial 5G service in the 12.2 GHz band based on the current record. 23 The Commission finds that a new ubiquitous terrestrial 5G service introduced throughout the band would create a significant risk of harmful interference to Direct Broadcast Satellite (DBS) and Fixed Satellite Service (FSS) (space-to-Earth) limited to non-geostationary orbit systems (NGSO FSS) operators. Although the Commission declines to authorize two-way, high-powered terrestrial mobile use, the Commission seeks further comment in its related further notice of proposed rulemaking in WT Docket No. 20-443 ( see FCC 23-36, paras. 48-57) (FR 2023-13501), published elsewhere in this issue of the Federal Register , on how best to maximize use of this 500 megahertz of mid-band spectrum. The Commission takes these actions with respect to the 12.2-12.7 GHz band in conjunction with its related action to issue a notice of proposed rulemaking in GN Docket No. 22-352 ( see FCC 23-36, paras. 58-142) (FR 2023-13500), published elsewhere in this issue of the Federal Register , proposing to expand the use of the 12.7-13.25 GHz band for mobile broadband or other expanded use.

7. In April 2016, the MVDDS 5G Coalition, which included eleven of the twelve Multi-Channel Video and Data Distribution Service (MVDDS) licensees at that time, filed a Petition for Rulemaking requesting reforms to the 12.2 GHz band rules, including permitting MVDDS licensees to use the band for two-way mobile 5G broadband services. 24 In support of the Petition, the Coalition also provided two Coexistence Studies that it claimed illustrated that a new 5G service could coexist with DBS operators in the band but would be incompatible with NGSO FSS. 25 Subsequently, however, some members of the MVDDS 5G Coalition suggested the possibility of 5G terrestrial use and NGSO FSS sharing in the band. 26

8. On January 15, 2021, the Commission released its 12.2 NPRM to allow interested parties to address whether it could add a mobile allocation and make other changes to expand terrestrial use of the 12.2 GHz band without causing harmful interference to incumbent licensees and, if so, whether such action would promote or hinder the delivery of next-generation services in the 12.2 GHz band given the existing and emergent services offered by incumbent licensees. 27 In the 12.2 NPRM, the Commission stated that it would proceed mindful of the significant investments made by incumbents and that it valued the public interest benefits that could flow from investments made to provide satellite broadband services, particularly in rural and other underserved communities that might be more expensive to serve through other technologies. The Commission initiated the instant 12.2 GHz band proceeding to allow interested parties to address whether additional operations can be accommodated in the band while protecting incumbent operations from harmful interference and to provide an opportunity for the Commission to assess the public interest considerations associated with adding a new mobile allocation. 28 In particular, the Commission sought information on the status of technologies that have been developed or are currently in development that would allow for two-way mobile communications in the 12.2 GHz band; whether standards have been set related to such technologies; whether there are any international agreements on a band plan or air interface for the 12.2 GHz band; and the impact (if any) on international rights for U.S.-licensed systems that might be affected as a result of the U.S. providing for expanded shared use of the band. 29 Comments were due May 7, 2021, reply comments were due July 7, 2021, and interested parties have added many ex parte filings to the rulemaking dockets since the comment deadlines. 30

9. In response to the 12.2 NPRM, several of the MVDDS licensees, and one DBS provider that is also a major MVDDS licensee, contend that 5G terrestrial and incumbent services can coexist in the band, the other DBS provider and the NGSO FSS commenters contend that such coexistence is not yet technically feasible. Multiple technical analyses were submitted into the record that purport to model the potential interference between a new 5G mobile terrestrial service and incumbent satellite services in the band. 31 These models rely on various technical assumptions about which the parties greatly disagree.

10. Based on the record in this proceeding, the Commission finds that a new ubiquitous 5G terrestrial mobile service cannot coexist with DBS operations in the band without a significant increase in the risk of harmful interference. The Commission is not persuaded by the assurances of one of the two nationwide DBS providers that DBS will be protected, 32 particularly given that the other nationwide DBS provider raises significant concerns. 33 The Commission finds that the study submitted by the 5G advocates is based on unsupported assumptions that undermine its reliability. As explained below, the 5G proponents have not demonstrated that a new 5G service will be able to meet the Equivalent Power Flux Density (EPFD) limits required to protect DBS receivers in the 12.2 GHz band. Also, the Commission finds that the 5G proponents have not adequately addressed the issues raised both in the 12.2 NPRM and by commenters regarding the applicability of burden-shifting protection obligations, lower earth-station elevation angles, power limits, EPFD limits and receiver location information.

11. Further, the Commission also finds that ubiquitous two-way mobile broadband 5G service is likely to create a significant risk of harmful interference to ubiquitous NGSO FSS operations. The 5G terrestrial advocates' analysis rests on the speculative assumption that 5G and NGSO FSS operations will not be geographically near each other ( i.e., 5G advocates offer studies that assume NGSO FSS will largely serve rural areas, and 5G will serve urban/suburban markets) without pointing to any basis for this assumption. The Commission finds that this unsupported assumption, which is not in line with current deployment practices and plans, renders the technical studies offered by the 5G advocates unpersuasive, and therefore such studies cannot serve as a basis on which to conclude that the public interest would be best served by allowing a new, ubiquitous 5G service into the band at this time. The Commission specifically asked whether geographic sharing could allow higher-power terrestrial operations in certain areas, and if so, how such geographic sharing should be structured. 34 But apart from studies based on non-binding, hypothetical assumptions, the Commission notes that 5G proponents did not offer any rules to limit their proposed 5G operations to less than all of the geographic areas authorized by their MVDDS licenses.

12. As a threshold matter, the Commission finds that a new ubiquitous 5G terrestrial mobile service cannot coexist with DBS operations in the band without a significant increase in the risk of harmful interference. As noted above, pursuant to the Table of Allocations, both terrestrial and NGSO FSS services are obligated to protect DBS from harmful interference. 35 The Commission has long recognized the public interest benefits that incumbent DBS services provide to millions of subscribers, and has required the other co-primary services in 12.2 GHz band to operate on a non-harmful interference basis with respect to DBS. 36 Congress, too, sought to ensure that DBS would not be subject to harmful interference from any new terrestrial service by requiring that the Commission “provide for an independent technical demonstration of any terrestrial service technology proposed by any entity that has filed an application to provide terrestrial service in the direct broadcast satellite frequency band to determine whether the terrestrial service technology proposed to be provided by that entity will cause harmful interference to any direct broadcast satellite service.”  37 The Commission ultimately adopted rules for MVDDS based on the extensive record of a multi-year rulemaking proceeding, 38 which included the statutory mandates to avoid harmful interference to DBS  39 and an independent analysis  40 of potential MVDDS interference to DBS. 41 These rules include detailed frequency coordination procedures that require an MVDDS licensee to ensure that the EPFD  42 from a proposed transmitting antenna does not exceed the applicable EPFD limit  43 at any DBS receiving antenna of a “customer of record.”  44 The MVDDS rules also include other limitations on signal emissions, transmitter power levels, and transmitter locations. 45 When an MVDDS licensee proposes a new station, coordination with DBS is necessary to demonstrate that the relevant EPFD limit will not be exceeded at the DBS antenna of any DBS subscriber of record. 46 Once an MVDDS station has been successfully coordinated, however, the burden to ensure that DBS subscribers do not suffer interference from that MVDDS station shifts to the DBS operator—immediately for new subscribers  47 and after one year for customers of record. 48 The Commission determined that shifting this burden to DBS from MVDDS—only after successful coordination by the MVDDS operator in the first instance—was reasonable in light of the one-way, relatively low-power limit on MVDDS. In doing so, the Commission did not alter its previous finding that allowing two-way MVDDS operations in the band “would unnecessarily complicate the sharing scenario” and “significantly raise the potential for instances of interference among the operations” sharing the band. 49

13. In its 2016 Petition for Rulemaking, the MVDDS 5G Coalition proposed that a new 5G mobile terrestrial service could also share with existing DBS in the 12.2 GHz band. 50 The Coalition provided two Coexistence studies that—through careful selection of mobile deployment areas, adjustments to radio frequency design parameters, use of geographic separation, clutter loss, and transmitter power constraints on terrestrial operations—purported to show that sharing with DBS would be possible. 51 In the first Coexistence Study, which studied three potential 5G use cases including point-to-point communications, mobile broadband, and indoor mobile use, the Coalition asserted that these potential uses could be engineered such that terrestrial users would not exceed the existing EPFD limit for MVDDS. 52 In its subsequent Coexistence 2 study, the Coalition studied a different building environment to show that even in a “more challenging” sharing environment, a new 5G service could protect DBS up to the level it “enjoys today from MVDDS licensees.”  53 In the 12.2 NPRM, the Commission sought comment on whether the approach proposed by the MVDDS 5G Coalition in the 2016 Coexistence studies was feasible and the costs and benefits of such an approach. 54 The Commission sought comment on whether, and to what extent, the MVDDS 5G Coalition's proposals to license two-way, mobile operations in the band, and to eliminate the equivalent isotropic radiated power (EIRP) limit, would substantially redefine the scope of DBS operators' obligations and potential burdens under the current regime. 55 Additionally, the Commission asked how other factors—such as geographic separation, transmitter power constraints on terrestrial operations, and other siting parameters for flexible-use base stations—could minimize the risk of interference to DBS users. 56

14. The advocates for a new 5G service in the band did not directly address the 12.2 NPRM questions but instead continued to rely on the 2016 Coexistence studies. Specifically, DISH stated that “the feasibility of sharing between DBS and 5G is demonstrated by two studies commissioned by the MVDDS 5G Coalition and prepared by [an] expert satellite engineer.”  57 Similarly, RS Access stated that, “the coexistence studies submitted in the petition for rulemaking proceeding demonstrated that coexistence between DBS and terrestrial 5G is possible, even under a worst-case scenario.”  58

15. Opponents of the Coalition's proposals responded to the 12.2 NPRM by criticizing the Coexistence studies. AT&T, which owned DIRECTV, the only current DBS operator that does not hold MVDDS licenses, argued that the 2016 Coexistence studies, “too narrowly and simplistically defined the areas in which a DBS receiver could establish a direct line-of-sight path with DBS satellite orbital locations.”  59 Moreover, AT&T argued that “these studies made inaccurate baseline assumptions regarding the nature of deployments and relied upon cherry-picked use cases that are not representative of real-world deployments.”  60 Subsequently, DIRECTV, which AT&T spun off in 2021, 61 argued that the 2016 Coexistence studies are “outdated or irrelevant, and thus do not accurately reflect the characteristics of either a ubiquitous, modern, high-power terrestrial mobile service or DIRECTV's DBS service.”  62 Moreover, SAVID LLC (SAVID), an engineering firm that DIRECTV hired to analyze 5G-DBS coexistence, found that, even if it made favorable assumptions of the terrestrial mobile systems, 5G service in the band would “cause extensive harmful interference to DIRECTV receivers, exceeding the limits currently in place to protect DBS customers by a factor of 100 to 100,000 over areas extending well beyond the intended coverage area of the mobile base stations.”  63

16. Based on the record in this proceeding, the Commission finds that a new ubiquitous 5G terrestrial mobile service cannot coexist with DBS operations in the band without a significant increase in the risk of harmful interference to the DBS operations. In particular, 5G advocates have not shown how such new mobile operations could meet or exceed the metric upon which the Commission based regional EPFD limits (ranging from −172.1 to −168.4 dBW/m 2 /4kHz) that the FCC adopted to protect DBS from a fixed, lower power MVDDS service at every existing DBS subscriber's dish. In addition, because MVDDS is a fixed service, the rules were able to take advantage of the discrimination between southern facing DBS antennas and MVDDS antennas; a mobile service does not provide for such accommodations and results in a much more challenging interference environment than MVDDS. Moreover, to meet the existing EPFD limits, it appears that a mobile terrestrial service would need to be restricted to such low power levels that it is unlikely that any given base station could provide substantial geographic coverage or significant 5G service. 64 According to the Coexistence 1 study, 5G services could meet these EPFD limits only when using “newly available spectrum planning tools, and careful engineering of MVDDS systems” to isolate them from DBS receivers, either through geographic separation or terrain blocking. 65 Given the careful and exacting engineering that would be needed to meet these conditions, it is not apparent that terrestrial mobile systems, if installed, could be expanded by adding new base station locations in the future to meet increased consumer demands without significantly impacting DBS service. It is not reasonable to assume that ubiquitous two-way 5G mobile terrestrial service would meet these conditions consistently with respect to ubiquitous DBS which serves millions of customers in all areas of the United States where the location of 5G mobile units could be anywhere in the operator's service area, including right next to the DBS antenna. 66

17. When DIRECTV commissioned a study from SAVID using what it deemed more reasonable assumptions than those of the 5G advocates, that study found that at power levels of 69 dBm/100 MHz  67 “mobile operations in the band would cause extensive and harmful interference to DIRECTV receivers.”  68 DISH raises several criticisms of the SAVID study, 69 but even the MVDDS 5G Coalition's own study found that at 48 dBm/100 MHz in certain small areas actual harmful interference could occur if a DBS receive antenna were present. 70 The Commission notes that the power levels used in the Coexistence studies are substantially lower than the 62 dBm/MHz (82 dBm/100 MHz) generally permitted in most other terrestrial mobile bands which operate at lower frequencies with more favorable propagation characteristics and even less than the maximum 47 dBm/10 MHz (57 dBm/100 MHz) permitted in the Citizens Broadband Radio Service (CBRS) service designed specifically for small cell coverage. While the Coexistence studies and the SAVID study do not reach identical conclusions due to differing assumptions, collectively they illustrate that two-way mobile terrestrial 5G operations could not ubiquitously meet the regional EPFD limits that the FCC adopted to protect DBS. As DBS receivers may be located anywhere (and can be either roof-mounted or installed on the ground), and as the Coalition's own Coexistence studies shows the potential for harmful interference from 5G into DBS in some instances, the Commission finds that a new 5G service cannot adequately protect incumbent DBS operators in the band from a significant risk of harmful interference. Moreover, the Commission notes that DISH and other 5G advocates have not proposed or agreed to rules or limits on 5G operations (such as horizon nulling) that DISH suggests might reduce some risk of harmful interference into DBS. However, even if the 5G advocates agreed to use advanced techniques for interference mitigation, that would not solve the underlying problem that a new ubiquitous 5G terrestrial service poses a significant risk of harmful interference to DBS given the ubiquitous nature of both the existing DBS service and the proposed 5G service.

18. The 5G advocates do not address the increased coordination and DBS interference mitigation burdens that would be placed on DIRECTV and its tens of millions of subscribers if the Commission was to permit mobile 5G operations in the 12.2 GHz band. 71 The original Coexistence study proposed to eliminate the MVDDS EIRP limit as duplicative of the EPFD limits, suggesting that keeping terrestrial signals below the applicable EPFD limit at all DBS antenna locations generally could avoid harmful interference to existing DBS subscribers regardless of the EIRP or whether the terrestrial operations were fixed or mobile, or one- or two-way. 72 However, the proposal to eliminate the EIRP limit would substantially redefine the scope of the burden on DBS operators, particularly for the deployment of additional DBS antennas in the future. While the current rules place the burden to ensure that new DBS subscribers do not suffer interference from previously coordinated MVDDS stations on DBS operators, the Commission is not convinced that similarly shifting this burden from 5G to DBS, going forward, would be reasonable because protecting DBS receivers installed in the future from previously coordinated higher-power, two-way, 5G base and mobile stations would be significantly more burdensome—and in some scenarios impossible—than protecting new DBS receivers from previously coordinated, one-way, low-power, fixed MVDDS transmitters. Due to the mobile nature of the proposed 5G service, the location of devices cannot be determined and therefore cannot be avoided through coordination. Also, a two-way service requires the DBS operator to consider both incoming and outgoing signals. Finally, at higher powers, even using advanced techniques, a DBS receiver might not be able to coordinate operation near a 5G base station.

19. Additionally, given that all DBS earth stations look toward the southern sky for communication with geostationary orbit (GSO) space stations orbiting at the equatorial plane, and given that high-gain antennas are necessary for base stations, the 12.2 NPRM sought comment on whether base station location or antenna orientation can be adjusted to provide greater protection to DBS earth stations. 73 The 5G advocates did not address this issue in their comments, replies, or additional studies, though DIRECTV, in its SAVID study, pointed out that lower earth-station elevation angles generally increase the potential for harmful interference from line-of-sight terrestrial transmitters while higher angles generally result in off-axis attenuation. 74 5G terrestrial advocates did not address how DBS subscribers in the far northern U.S. could be protected from 5G interference, given the relatively low elevation angles required for subscriber dishes in these regions to point at DBS GSO satellites over the equator. For example, to point a dish in Fairbanks, AK, at a DIRECTV satellite at 95.1° W, an elevation angle of 6.47° is required. Even if the Commission excluded Alaska (as it did in addressing the 3.7 GHz band), an elevation angle of 12.21° is required to point a customer's dish in Bangor, ME, at a DISH satellite at 129° W, and an elevation angle of 17.67° is required in Seattle, WA, to point at a DISH satellite at 72.7° W. That failure of the 5G advocates to acknowledge or address the challenge of adequately protecting DBS customers whose location may render them uniquely susceptible to interference from 5G adds weight to the Commission's conclusion that the record does not support a finding that 5G can coexist with ubiquitous DBS dishes.

20. RS Access and DISH contend that concerns about interference to DBS should be given little weight because DISH is one of the country's two DBS providers and one of the advocates of a new 5G terrestrial service in the band. As such, RS Access and DISH state, “DISH would not join a proposal that endangers its own service to about 14 million households.”  75 Admittedly, DISH expresses willingness to accept any resultant increase in coordination and DBS interference mitigation burdens in return for new authority to use its 82 MVDDS licenses for two-way mobile broadband. 76 This is not a case, however, where the Commission can conclude—as with DISH's position as the sole licensee with respect to both services in connection with Advanced Wireless Services (AWS)-4 service—that the concerns about harmful interference are capable of resolution by one party. Here, as previously noted, DISH is not the only DBS provider in the band. 77 DISH's support for a new 5G service in the band does not address the potential for harmful interference to DIRECTV's tens of millions of subscribers. For instance, the Commission notes that DISH and DIRECTV dishes may not have an equal susceptibility to harmful interference in any given locale, because their respective subscribers may use different types of dishes ( e.g., varying in size) aimed at one or several satellites at different orbital slots in the GSO arc. In short, DISH's DBS system architecture and structure, not to mention its motivations and business plans, may be very different from DIRECTV's. Thus, DISH's lack of concern about and/or willingness to work around potential harmful interference from 5G service in the band cannot be viewed as probative of the question of likely interference to DBS service. 78

21. Finally, DISH argues that DIRECTV does not use the 12.2 GHz band extensively and mostly relies on other spectrum bands to provide service to its customers. Specifically, DISH claims that “[a] review of DIRECTV's satellites and orbital slots suggests that DIRECTV has more bandwidth outside the 12 GHz band than DISH has in the 12 GHz band.”  79 DISH goes on to claim that DIRECTV serves its customers mainly using the Ka-band and Reverse Band working Broadcasting-Satellite Service payloads on its satellites at 99°, 101°, and 103° W.L. slots. 80 DIRECTV responds to this claim by pointing out that it “continues to rely heavily on the 12 GHz band” for delivery of its video service to a majority of its DBS customers throughout all fifty states, including customers receiving services on aircraft, boats and RVs, as well as through set-top boxes. 81 The record reflects that DIRECTV continues to use the 12.2 GHz band, having deployed a “12 GHz payload on a relatively new T16 satellite at 101° W.L.”  82 Similarly, the Commission finds DISH's arguments about the recent decline of DBS subscribers—both DISH and DIRECTV—unavailing. 83 Regardless of overall subscription trends, each DBS operator continues to add new subscribers that can be located anywhere in the United States, and there continue to be millions of existing DBS customers whose service is entitled to protection from harmful interference.

22. The Commission also finds that ubiquitous two-way mobile broadband 5G service is likely to create a significant risk of harmful interference to ubiquitous and increasing NGSO FSS operations. 84 While deployment of NGSO FSS service in the 12.2 GHz band is still developing, terrestrial 5G service in the band is hypothetical. For this reason, the 5G advocates supported their arguments by submitting Monte Carlo simulation analyses that attempt to model the coexistence of the two services. 85 However, 5G advocates did not then use the assumptions underlying their models as a basis for proposing specific rules that would enable coexistence. NGSO FSS operators responded by submitting their own Monte Carlo analyses which sought to correct various assumptions they claim to be erroneous. While the studies provided by the opposing sides contain many contradictory assumptions, ultimately they all agree on the fundamental point that there will be a significant risk of harmful interference to NGSO FSS operations without some geographic separation between a new two-way mobile broadband 5G service and NGSO FSS. The 5G advocates, however, do not propose to limit such new 5G terrestrial service geographically, nor is it clear how such limitations could be consistent with the nature of the 5G service for which they seek authorization. Neither are the authorizations granted to existing NGSO FSS operators limited to specific geographic areas. The Commission therefore finds it would not be in the public interest to allow for a new 5G service in the band as it would cause a significant risk of harmful interference to NGSO FSS where these services are deployed ubiquitously.

23. Significantly, the Commission notes that initially, the MVDDS 5G Coalition ( i.e., the petitioners for a new 5G service in the 12.2 GHz band) argued that coexistence with NGSO FSS was not possible. Specifically, the Coexistence studies concluded that 5G terrestrial operations and NGSO FSS operations could not co-exist in the 12.2 GHz band and therefore, the MVDDS 5G Coalition Petition proposed to delete or demote the NGSO FSS allocation to a lower regulatory status with respect to 5G. 86 5G advocates subsequently shifted their argument to claim that co-existence is possible with the new generation of NGSO FSS systems. 87 When the Commission issued the 12.2 Notice in response to the Petition, it noted the public interest in protecting the significant investments made by NGSO FSS operators in the band. To determine whether NGSO FSS operations could coexist with a new 5G service, the 12.2 Notice sought comment on what technical criteria would be necessary to protect NGSO FSS from harmful interference from high-powered, two-way mobile operations. 88 Specifically, the 12.2 NPRM asked which maximum power levels could be granted to new terrestrial operations within a framework of service-rule sharing that would still protect incumbents from harmful interference. 89 The 12.2 NPRM further inquired as to whether applying the existing MVDDS interference criteria  90 to new terrestrial systems would be sufficient to protect NGSO FSS operations. 91 Notably, it specifically inquired about whether subscribers of satellite services were typically located in more rural areas, the propagation characteristics and cell coverage areas that could be expected from 5G base stations in the band, and whether smaller-sized cells could mitigate potential interference from terrestrial services into DBS and NGSO FSS services. 92

24. In response to the questions raised in the 12.2 NPRM, RS Access commissioned RKF, a systems engineering firm, to conduct a nationwide simulation of how NGSO FSS and terrestrial 5G systems might interact. 93 Ultimately, RKF provided two studies, both probabilistic Monte Carlo analyses meant to show that terrestrial 5G can coexist with NGSO FSS. In its first study, submitted in May 2021, RKF used the 406 Partial Economic Area (PEA) geographic license areas  94 in the contiguous United States (“CONUS”) to define where the 5G network will be deployed, and broke these into urban, suburban, and rural based on their population density thresholds. 95 Because the May 2021 RKF Monte Carlo analysis assumed the new 12.2 GHz terrestrial 5G service was likely to be deployed in the most densely populated areas with high demand for broadband service, RKF modeled deployment of 5G in census tracts with a population density greater than 7,500 people per square mile in each PEA. It explained, however, that if deployment in these “urban” density census tracts did not result in deployment to areas that encompassed 10% of a market's population, it added the most densely populated census tracts in each PEA until the area of deployment covered 10% of the market population. 96 RKF's terrestrial model assumed a 5G network of 49,997 terrestrial macro-cell base stations, 97 89,970 fixed small-cell base stations, 98 1,949,760 simultaneously active mobile devices  99 and 6,999 point-to-point backhaul links across CONUS. 100

25. RKF then modeled the distribution of only SpaceX's NGSO FSS satellite terminals, although there are multiple NGSO FSS operators in the band. RKF's satellite model assumed SpaceX would deploy 2,500,000 satellite user terminals in both urban and rural areas, 101 but for this model, it used a different definition of rural and urban areas than it did for modeling terrestrial 5G operations. 102 RKF assumed the majority of NGSO FSS systems, or 1.65 million Starlink user terminals, would be dropped in random locations in non-metropolitan Rural Digital Opportunity Fund (RDOF) blocks  103 either won by Starlink or won by another bidder, 104 and that the remaining 850,000 Starlink terminals would be deployed in non-RDOF but also `rural areas.'  105 Starlink terminals were allowed to be within 5 meters of 5G base stations, and the possibility technically exists that RKF's modeling could place NGSO FSS user terminals near 5G terrestrial base stations. 106 However, such proximity appears unlikely because the study endeavored to separate terrestrial 5G and satellite equipment.

26. In RKF's study, the potential for harmful interference to NGSO FSS from multiple elements of 5G systems is aggregated. 107 With respect to each of the NGSO FSS terminals modeled, RKF computed the aggregate interference power from all 5G emitters within 50 km, and compared the result to the interference-to-noise ratio (I/N) threshold to determine the extent to which the threshold would be exceeded. 108 RKF asserted the objective of the simulation was to model a large number of statistically significant interference paths to evaluate the risk of interference to the Starlink terminals. 109 Initially, RKF found that about 0.888% of Starlink user terminals over CONUS could experience an event that exceeded a nominal ITU threshold of −8.5 dB. 110

27. NGSO FSS operators, especially SpaceX, criticized many of the assumptions underlying RKF's 2021 study. As a result, in May 2022, RS Access submitted a revised study from RKF that modified certain parameters and specific assumptions to respond to the criticism. 111 RKF's revised study still relied heavily on geographic separation to find that a new 5G service could avoid causing harmful interference to incumbent NGSO FSS operations. The study still assumed that new 12.2 GHz 5G deployment and satellite terminals would have limited geographic overlap due to RKF's assessment of their respective use-cases—namely, that 12.2 GHz 5G services will be deployed most heavily in denser population centers, while satellite services are most useful in lower density population centers. 112 RKF's second study modeled the same number of base stations, mobile devices and point-to-point links, 113 and reached the conclusion that there would be no impact to 99.85% of NGSO FSS terminals by the terrestrial deployment it modeled. In particular, it asserted its study now found that only 0.15% of Starlink terminals which might hypothetically be deployed in the future throughout CONUS experienced an exceedance of the ITU's I/N threshold of −8.5 dB I/N from 5G operations in the 12.2-12.7 GHz portion of the NGSO FSS downlink band. 114 RKF asserted that several other factors contributed to the “highly favorable environment” for the coexistence of NGSO FSS and 5G systems, including the large antenna discrimination resulting from NGSO FSS antennas pointing with high elevation angle and the 5G base stations down tilted; interference mitigation achieved through 5G base station sidelobe suppression and antenna nulling toward the horizon; and, relatively localized 5G coverage due to the 12.2 GHz band's propagation characteristics. 115

28. Both SpaceX and OneWeb submitted Monte Carlo analyses in response to the May 2022 RKF study commissioned by RS Access. SpaceX's Monte Carlo study modified certain key assumptions including basing buildout in an actual SpaceX market area in Las Vegas, Nevada upon its own asserted user data, 116 and buildout requirement for terrestrial mobile services of 70 percent of population, among other assertions. 117 SpaceX asserted its study showed an impact from interference from terrestrial mobile service that would degrade service to SpaceX's Starlink broadband terminals operating in the 12.2 GHz band more than 77 percent of the time, resulting in full outages 74 percent of the time. 118 Furthermore, SpaceX stated its study showed the impact of this harmful interference would extend at least 21 km (more than 13 miles) from the macro base station in unobstructed conditions even for best-case far-sidelobe-to-far-sidelobe coupling. 119 SpaceX used an antenna receiver pattern based upon the applicable ETSI standard (ETSI_EN_303_981 Class B WBES), 120 and the SpaceX analysis is based on seven 240 megahertz channels with 250 megahertz spacing from 10.95-12.7 GHz. 121 OneWeb's study similarly concluded that NGSO FSS user terminals cannot be deployed within the coverage area of a suburban macro-cell base station deployment without suffering from very high probability of harmful interference. 122

29. While the analyses submitted by SpaceX and OneWeb have very little accord with the RKF analyses, all of these analyses agree, on some level, on one point: NGSO FSS user terminals will suffer harmful interference if they are operating in close proximity to 5G transmissions in the 12.2 GHz band. The RKF analyses come to this conclusion tacitly because rather than providing a calculation of the separation distance that would be necessary to protect NGSO FSS terminals from harmful emissions from 5G transmitters, these RKF analyses simply assume that in most situations 5G and NGSO FSS services will not be used by consumers in the same locations. Specifically, the RKF studies assume that 5G will most likely operate only in denser, more urban markets and NGSO FSS services will most likely serve only more rural subscribers. Satellite operators, and other parties in the record, have provided more express analyses than RKF of the potential for harmful interference to NGSO FSS operations from 5G operations in close proximity. For example, Google noted in its reply comments that although RKF's report did not separately present the potential interfering impact of a single UE (handset) located in the vicinity of a satellite terminal—because it assumed it was unlikely a handset would be near a satellite terminal—Google's calculations showed that when such a situation inevitably occurs, harmful interference can be expected out to a distance of as much as 0.2-1 km under realistic propagation assumptions, and as far as 3 km under worst-case conditions. 123 For its part, SpaceX asserted that satellite user terminals would be subjected to significant interference whenever located in the line of sight of a 5G base station. Further, SpaceX states that even for best-case far-sidelobe-to-far-sidelobe coupling, the effect of harmful interference (I/N > −12.2dB) between these two operations will extend up to 21.4 km (more than 13 miles) from the macro base station in unobstructed conditions. 124 According to SpaceX, its satellite user terminal is about 16 dB more sensitive to the interfering signal coming into its far sidelobes than the mobile UE is for its desired signal. 125 As a result, if a SpaceX user terminal is located in an area where a mobile device can receive a signal from the base station, the interfering signal its terminal receives will be much stronger than the desired signal received by the user device. 126 Because of their sensitivity, SpaceX states that even if its satellite terminal antennas are pointing only at high elevation angles so that terrestrial mobile signals are only received at large off-axis angles, interference will be overwhelming within the coverage area of a terrestrial base station. 127 SpaceX asserts that RKF recognized this point when it admitted that “Starlink terminals within the 5G coverage area typically suffered an exceedance.” 128

30. Although RKF did not provide specific analysis of the separation distances necessary to protect NGSO FSS user terminals from 5G transmissions, it argued that there would be a natural geographic separation between the two services, based on constraints on the number of user terminals an NGSO FSS system can deploy to one area. For example, the RKF study asserted that while an NGSO FSS licensee can deploy terminals in metropolitan areas, such as New York City or Los Angeles, satellite capacity constraints limit the total number of terminals NGSO FSS licensees can support in any one of these densely populated zones. 129 To illustrate this point, RKF has pointed to statements by Starlink's CEO that its service is not well suited to urban areas. 130 SpaceX does not directly address RKF's capacity argument but it responds that in the very few areas where RKF does consider terrestrial and NGSO FSS systems operating in close proximity, its model finds I/N ratios of 50 dB or more. 131 Furthermore, SpaceX argues that, by assuming only 1.07 percent of SpaceX user terminals would be deployed in urban areas, RKF significantly underestimated the effect of the proposed system on the existing Starlink customers. 132 OneWeb agrees that terrestrial separation of NGSO FSS and 5G terminals is an unrealistic assumption, 133 and states that it intends to focus its initial service on enterprise, government, and mobile network operator customers, which will require connectivity across metropolitan, suburban, and rural areas. 134

31. The Commission finds that the 5G proponents' arguments that a new 5G service could adequately protect NGSO FSS operations from harmful interference rely too heavily on the unsupported assumption that there will be geographic separation between the services. Neither the FCC's rules governing NGSO FSS operations in the band nor the authorizations that the FCC has granted to NGSO FSS operators place any limitations of the sort assumed by 5G proponents on where these NGSO FSS services may operate. 135 NGSO FSS systems are not restricted to rural areas; indeed, SpaceX is currently authorized to deploy satellites throughout CONUS and for an unlimited number of its second-generation user terminals anywhere within the United States. 136 At this time, satellite operators' plans for, and rollout of service using, this band are still in the early stages, and operators have stated their intentions to serve urban and suburban areas. 137 Based on the current record, and the Commission's experience, the Commission concludes that authorizing separate, ubiquitous satellite and terrestrial mobile systems in the same band would be significantly likely to result in harmful interference. Although the technical analyses that 5G advocates submitted made a number of hypothetical assumptions about how both a new 5G service and NGSO FSS service would be deployed, including 5G operating parameters that could reduce or mitigate interference, 5G proponents did not propose or agree to be bound by any specific rules to codify these assumptions. Given the Commission's conclusion that NGSO FSS terminals will experience harmful interference if placed in close proximity to terrestrial 5G deployment, and the lack of apparent disagreement by 5G advocates, the Commission declines to authorize a new terrestrial 5G service in the 12.2 GHz band based on the current record.

32. As noted, the Monte Carlo analyses provided by the 5G advocates incorporate a set of assumed operating parameters intended, in addition to geographic separation, to reduce the possibility of harmful interference to NGSO FSS user terminals. These assumptions have become objects of criticism from NGSO FSS interests who argue that their adjustment can skew the interference picture away from showing the significant risk of harmful interference NGSO FSS systems would suffer. Below, the Commission discusses some of the major disagreements on assumptions the parties have raised in the record. The Commission cautions, however, that these assumptions do not change the Commission's bottom-line decision declining to permit 5G operations in the 12.2 GHz band, due to the risks of harmful interference into NGSO FSS user terminals when the two services are in close proximity. Accordingly, other than in a few instances where the Commission has pointed out that certain debates about assumptions may be missing critical information, the Commission declines to weigh in concerning the relative merits of particular assumptions.

33. Ignoring Access to Other Bands and Other NGSO Deployments. The RKF study assumed that Starlink is assigned eight 250 MHz channels from 10.7-12.7 GHz. 138 SpaceX argues its model did not incorporate use of the 10.7-10.95 GHz portion of the band due to regulatory constraints imposed to protect Radio Astronomy activity in the adjacent 10.6-10.7 GHz band. 139 Accordingly, the SpaceX analysis is based on seven 240 MHz channels with 250 MHz spacing from 10.95-12.7 GHz, whereas RKF appears to assume access to all bands. RS Access argues SpaceX's failure to incorporate the entire 10.7-12.7 GHz range into its calculations, and its use of only the 12.2-12.7 band for downlink increases the probability of interference exceedance experienced by Starlink terminals by a factor of four. RS Access finds this one of the most critical assumptions causing SpaceX's interference results to differ from its own. Furthermore, SpaceX argues RKF only models SpaceX terminal deployments and omits studies of any interference created by deployment of other NGSO FSS operations. 140

34. Height of Fixed Subscriber Antennas. The height at which users mount their SpaceX user terminals has a dramatic effect on the interference to which they are subject—higher placement also means that they are more likely to receive more direct interference from mobile system base stations and UEs. 141 The May 2021 RKF Study assumed a distribution of NGSO FSS fixed subscriber terminals more heavily weighted toward ground installations—80% of Starlink terminals would have an HAGL at 1.5m, and 20% would have an HAGL of 4.5m. RKF's May 2022 study modified this assumption and instead assumed that 45% of Starlink terminals would be installed near ground level with an HAGL of 1.5m, and 55% of Starlink terminals would be installed on rooftops with an HAGL of 4.5m. 142 In response, SpaceX argued this modification still failed to reflect that the majority of SpaceX's customers deployed their antennas on rooftops to avoid obstructions, which significantly increases the likelihood of an unobstructed path for interference from a mobile service base station. 143 SpaceX argued its own informal customer surveys showed that most consumers mounted their antennas on a roof, and accordingly, SpaceX argued that 10% of its user terminals would be deployed at a height of 1.5m and 90% would be deployed at a height of 4.5m. 144 OneWeb agrees most NGSO FSS user terminals are expected to be deployed on rooftops and that such installation practices are consistent with decades of satellite infrastructure deployments. 145

35. Number of Macro Cells Deployed. RKF's May 2022 study models 49,997 5G macro base stations throughout CONUS, distributed in the most densely populated areas of each PEA, comprising at least 10% of the population of the PEA. 146 SpaceX has criticized RKF's 10% coverage, contending that RKF's 10% minimum buildout assumption falls far below the 70% to 80% population coverage requirement the Commission has routinely applied to other recently allocated flexible use spectrum, and it asserts the lower percentage buildout results in less interference, thus skewing the results of RKF's study. 147 SpaceX assumed 3,215 macro base stations in the Las Vegas market in its study, 148 which RKF criticized as being a vast overestimation of typical 5G deployment. 149 However, SAVID, which SpaceX hired to review the RKF studies, later argued that the number of macro base stations assumed in the SpaceX analysis did not have a material impact on the interference analysis results. 150 The Commission notes that looking at the Upper Microwave Flexible Use Service (UMFUS) requirements for bands such as 24 GHz and above, licensees may fulfill their performance requirements in various ways, including providing mobile service to 40% of the population of the license area or by demonstrating coverage of at least 25% of their license's geographic area, or by showing the presence of equipment transmitting or receiving on the licensed spectrum in at least 25% of census tracts within the license area. 151 Accordingly, the relevant percentage buildout that would be required at 12 GHz may be different than either side's assumptions. 152

36. Technical Advancements. SpaceX argues that the RKF studies incorporated unreasonable technical advancements into their models of 5G handsets, lowering the estimated interference received. For example, the May 2022 RKF study incorporated horizon nulling into the performance of 5G macro-cell base stations whereby 5G antennas can null the gain pattern at the horizon at all azimuth angles to mitigate ground-based interference to NGSO FSS terminals. 153 SpaceX argued “[this] is a neat trick when the terrestrial operator does not know where the NGSO FSS antennas are located.”  154

37. Transmitter Power and Path Loss. As noted previously, RKF changed its transmitter power from 75 dBm to 65 dBm in its second study. 155 SpaceX has supplied its own engineering report arguing that ITU WP 5D which studied terrestrial mobile in the 10-11 GHz bands also assumes 72.6 dBm/100 MHz as a typical base station EIRP value, making 75 dBm the more likely number. 156 OneWeb agrees that 75 dBm/100 MHz is more realistic. 157 Furthermore, the OneWeb study uses the probabilistic clutter model found in Recommendation ITU-R P.2108, which provides a clutter assumption that is expected to be greater than predicted in 10% of the cases, and applies clutter only at the user terminals and only for those terminals deployed at ground level (as opposed to those presumed to be clutter-free on rooftops). Tailored in this manner, OneWeb can temper the recommendation's potentially overly aggressive prediction of clutter losses, yet model expected clutter losses at a range of geographic locations. 158

38. Furthermore, both the RKF and SpaceX analyses model path loss using 3rd Generation Partnership Project (3GPP) Specification 38.901, applying the Urban Macro-Cell model for both urban and suburban macro-cells at 30 meters to 1 km distance, the Rural Macro-Cell model for rural macro-cells at 30 meters to 5 km, and the Micro-Cell (“Umi”) model for small-cells at 30 meter to 1 km distance. 159 However, SpaceX argues, RKF subtly understates the high interference line of sight cases in the 3GPP 38.901 model by using a single weighted average between NLOS (non-line of sight) and LOS (line of sight) path loss to represent both cases. 160 SpaceX argues RKF's approach of employing a weighted average to represent two distinctly different cases dramatically understates the line of sight cases that would actually occur under the 3GPP 38.901 model. 161 SAVID asserts that while the parties debate either −8.5 dBm or −12.2 dBm I/N, an alternative interference protection criterion based on the Power Flux Density (PFD) limit set by 47 CFR 101.105(a)(4)15 should be considered. 162 In this regard, SAVID points out that the FCC specifically set the maximum PFD limit from an MVDDS service transmitting antenna in NGSO FSS stations at 12.2-12.7 GHz at −135 dBW/m2 in 4 kHz at 3 km, which is the equivalent of an I/N threshold of −10.8 dB. 163 SAVID asserts this means that even for Starlink terminals in the most favorable location in the BS antenna pattern, there must be at least 25.5 dB of clutter loss to meet the FCC MVDDS PFD limit at 3 km separation. 164

39. The parties' disagreements about the above assumptions underlying how two-way 5G mobile broadband and NGSO FSS user terminals should be modeled does not change the Commission's fundamental conclusion that there will be a significant risk of harmful interference to NGSO FSS where these services are deployed without adequate geographic separation. Even if the parties could agree about the values that should be assigned to each of the models' more minor assumptions, it would not change the models' more fundamental flawed assumption that the 5G and NGSO FSS services will be geographically separated. Rather, these disagreements present even more evidence of the difference in opinion between the parties as to the envisioned technical specifications of their respective operations. NGSO FSS continues to evolve and there is not enough data in the record on how these systems are currently configured and how the technical parameters will change over time as NGSO FSS systems add additional subscribers and continue to refine satellite technology. Furthermore, this band is not internationally harmonized for terrestrial 5G use and there is significant disagreement about what an operable 5G system would look like in this band. 5G terrestrial advocates have not demonstrated that it is in the public interest to restrict or impact NGSO FSS operations in urban/suburban markets—especially given that NGSO FSS systems are already serving customers. At this time, the Commission does not see a path forward for adding a terrestrial mobile allocation to the band that adequately protects the incumbent satellite operators.

40. While the Commission declines to adopt service rules to allow 5G terrestrial use of the 12.2 GHz band as originally proposed by the MVDDS coalition, the Commission recognizes that many of the MVDDS licensees in the band have filed the required buildout showings for the licenses they hold under the current framework. In the accompanying further notice of proposed rulemaking (WT Docket No. 20-443) (FR 2023-13501) in FCC 23-36, the Commission seeks comment, among other things, on the possibility of changes to the existing framework. The Commission finds it's appropriate at this juncture to address any uncertainty as to the status of the existing MVDDS licenses under the current rules.

41. Eight companies (10 legal entities) hold 191 MVDDS licenses: two DISH subsidiaries hold 82 licenses; RS Access, a subsidiary of a Dell investment fund, holds 60 licenses; two Go Long Wireless entities hold a total of 25 licenses; and five smaller companies hold a total of 24 licenses. 165 As a construction requirement, MVDDS licensees must make a showing of substantial service at the end of five years into the license period and ten years into the license period. 166 The Commission is aware of only one current commercial MVDDS deployment, 167 and most MVDDS licensees received two extensions of the MVDDS buildout requirement, which resulted in final deadlines in 2019. 168 All of the existing licensees have had buildout showings pending since 2019 for each of their licenses, which are available to view in the Commission's Universal Licensing System (ULS). 169 In the 191 pending filings, each licensee reports that it met the 2019 buildout requirement for each license, mostly by satisfying the safe harbor that the Commission established for MVDDS in 2002 of operating at least four transmitters per one million pops in each license area. 170 The Wireless Telecommunications Bureau staff's preliminary review of these construction filings is that they likely meet the safe harbor standard. Accordingly, the Commission directs the Wireless Telecommunications Bureau to finalize the determination of whether the construction filings meet the safer harbor standard and if so to accept each of the pending MVDDS construction filings subject to the following condition: the Commission reserves the right to adopt additional buildout requirements for MVDDS if appropriate based on any revisions to the MVDDS rules adopted in response to the further notice of proposed rulemaking.

42. The Commission further directs the Bureau to reconsider its denials of 2016 requests to extend buildout deadlines for 22 MVDDS licenses, and to extend the buildout deadlines for these licenses for 18 months from the effective date of this item, subject to the same condition above. 171 The Commission believes that the unique circumstances of this proceeding, namely the uncertainty created by the MVDDS 5G Coalition's request for 5G terrestrial use, makes strict application of the buildout deadlines contrary to the public interest. 172 Eliminating the uncertainty over these 22 MVDDS licenses will best serve the public interest by promoting fuller participation in the record to be developed in response to the Further Notice of Proposed Rulemaking as well as by providing additional certainty regarding the status of these MVDDS licenses.

43. It is ordered that, pursuant to sections 1, 2, 4, 5, 301, 302, 303, 304, 307, 309, 310, and 316 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154, 155, 301, 302a, 303, 304, 307, 309, 310, 316, and § 1.411 of the Commission's rules, 47 CFR 1.411, the Report and Order and Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking and Order in the captioned dockets is adopted .

44. The inquiry in Expanding Flexible Use in Mid-Band Spectrum Between 3.7-24 GHz, GN Docket No. 17-183, is terminated as to the mid-band spectrum between 12.2 GHz and 13.25 GHz.

45. It is further ordered that, pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comment on the Further Notice of Proposed Rulemaking in WT Docket No. 20-443 and the Notice of Proposed Rulemaking in GN Docket No. 22-352 on or before the number of days shown on the first page of this document after publication in the Federal Register , and reply comment on or before the number of days shown on the first page of this document after publication in the Federal Register .