Under most circumstances, individuals who are serving (or served) under time-limited appointments are not eligible to compete under merit promotion procedures for permanent positions in the competitive service. Generally, positions filled under merit promotion procedures are only open to current career or career conditional employees to include certain veterans who are eligible under the Veterans Employment Opportunities Act (VEOA) of 1998, as amended. Because time-limited employees are not career or career conditional employees, they may never be considered for permanent positions under merit promotion procedures. To remedy this situation, Congress enacted the Land Management Workforce Flexibility Act (“the Act”) under 5 U.S.C. 9601 and 9602 to better assist certain time-limited employees in Federal land management agencies to compete for vacant permanent positions in the competitive service under merit promotion procedures.

To implement the Act, OPM published proposed regulations in the Federal Register at 85 FR 29348 on May 15, 2020. Specifically, OPM proposed to allow certain current and former land management employees who are serving (or served) under time-limited appointments and have not received a permanent position in the Federal government to compete for permanent positions under merit promotion procedures in 5 CFR parts 316 and 335. After considering the comments received, OPM is finalizing the proposed amendments with modifications as discussed in the next section. OPM is also adopting several non-substantive modifications from the proposed to the regulatory text to improve clarity.

OPM received five comments on the proposed rule: four from individuals and one from a Federal employee union. One individual commented that the rule does not address whether a land management eligible with competitive status is subject to time-in-grade (TIG) restrictions when using this authority. The commenter also asked whether a land management eligible who already held a permanent job could use his or her eligibility multiple times when applying for positions under promotion and internal placement ( i.e., merit promotion) procedures. The commenter suggested that OPM state clearly in the regulation whether these situations are allowed.

Agencies cannot use this authority to circumvent TIG requirements. TIG exists to prevent excessively rapid promotions in competitive service General Schedule positions and to protect competitive principles. In accordance with 5 CFR 300.603, TIG applies to an individual who served on a non-temporary appointment within the 52-week period prior to advancement. Based on the scenario described above, the permanent employee, who was formerly a time-limited employee, would be subject to time-in-grade if seeking a higher-graded position. In accordance with 5 U.S.C. 9602, eligibility under these regulations applies to certain individuals serving, or who served, under a time-limited appointment and have not received a permanent position in the Federal government. OPM will address this and other scenarios pertaining to TIG requirements in supplemental guidance.

One individual expressed concern over the hiring practices at the Bureau of Land Management (BLM) and dissatisfaction with the current BLM leadership. This individual did not have any objections to or suggestions on the proposed regulation. OPM will not address this comment because it is beyond the scope of the proposed regulations.

Two individuals provided positive comments and expressed strong support for the proposed regulation. A retired National Park Ranger stated that he strongly supports the proposed regulation because it greatly benefits the National Park Service in the recruitment and retention of new and diverse employees. Another individual stated that this regulation will help temporary employees find full-time permanent employment and hiring managers to attract experienced workers. OPM appreciates this support.

One individual suggested that OPM amends the proposed rule to allow employees who previously served on a temporary appointment have that time credited toward the probationary or trial period. OPM is not adopting this suggestion because it is not necessary. The governing statute at 5 U.S.C. 9602(c)(2) states that individuals appointed under this authority acquire competitive status upon appointment. Competitive status is acquired after completion of a probationary period in accordance with 5 CFR 212.301. The statute deems a land management eligible who is selected to have completed a probationary period upon appointment under this authority. The proposed regulation at 5 CFR 315.613(d) states this.

The same individual suggested that OPM modifies proposed § 335.107 to make clear that a land management eligible may compete for a permanent position at any agency when the position is being filled under merit promotion procedures. OPM is not adopting this suggestion. The Act at 5 U.S.C. 9602 established the conditions and criteria under which certain current or former land management employees may compete for a permanent position under merit promotion procedures. The suggested language is not in accordance with this statute. The language in the proposed rule is consistent with the governing statute and reflects the conditions under which a land management employee may compete when a job is advertised under merit promotion procedures and open to candidates from outside an agency's workforce or under merit promotion procedures and open to candidates from within an agency's workforce.

A Federal employee union commented that its primary concern is to ensure the regulation and supplementary information reflect the statutory requirement that agencies must allow all land management eligibles to compete for vacancies filled under their merit promotion procedures. This Federal employee union submitted several specific comments that are discussed throughout the remainder of the Supplementary Information section of this preamble.

The employee union stated:

The employee union also asserted the sentence quoted above (“. . . an agency may use this authority to allow a current or former land management eligible . . . to compete for a permanent position . . .” (emphasis in original)) had to be “a simple drafting error” because in the same section the supplementary information stated: “an agency must consider a land management eligible (also under “Description of the Flexibility, ” p. 29349).” Nevertheless, the presence of the first sentence remained “problematic as it introduces ambiguity that could lead to flawed implementation.”

OPM thanks the Federal employee union for the comment. No modification to the regulatory text is needed as it already reflects that agencies have the discretion whether to fill their positions under promotion and internal placement ( i.e., merit promotion) procedures (5 CFR part 335) or through another hiring authority. OPM further notes that the difference in the sentences was not a drafting error, but rather reflect different points in the hiring process. OPM's use of “must” in the second reference under “Description of the flexibility” modifies the phrase “consider a land management eligible . . .” It relates to when a land management eligible applies for a permanent position. That is, once an agency makes the determination to use its discretion to advertise for a permanent position under Promotion and Internal Placement procedures at 5 CFR 335, certain land management eligibles must be considered.

The employee union further objected to the phrase—“. . . will be expected to consider land management eligibles . . . (under “Land Management Workforce Flexibility Act, as Amended,” [sic] p. 29349)” in two places because that phrase did not create requirements and was not a term of art. In the alternative, the employee union again recommended revising the language “to clearly articulate the statutory requirement that agencies must to consider [sic] land management eligibles.”

OPM agrees and clarifies that agencies who use their discretion to hire for positions under proposed parts 315 and 335 must consider eligible land management applicants who apply for permanent positions.

The employee union recommended revising the language at § 335.107 to make it clear that land management eligibles are entitled to compete for permanent positions. It asserted “[t]he statement that they `may compete' is not, in our view, sufficiently prescriptive in this regard.”

OPM does not believe this change is necessary because `may' and `are entitled' have the same meaning in this context. The law does not require individuals to compete, it allows them to, hence our use of “may.” Further, this formulation parallels language currently in § 335.106 pertaining to individuals eligible under the Veterans Employment Opportunities Act of 1998, as amended. We retained “may compete” for consistency in part 335.

The employee union further commented that the proposed § 335.107, “Special selection procedures for certain land management eligibles under merit promotion” (emphasis added) is problematic because it implies some but not all land management eligibles are eligible to compete for permanent positions. The employee union added “In fact, the section applies to all land management eligibles, as defined in the statute and in the proposed regulation, not only to certain ones . . . [and] could lead practitioners to wrongfully exclude subsets of land management eligibles.” The employee union recommended deleting the word “certain” from the heading.

OPM notes this section applies only to those land management employees who meet the eligibility requirements of the statute ( i.e., current and former time-limited land management employees). OPM agrees, however, the original title may cause confusion by suggesting greater limitations beyond meeting the eligibility requirements. Consequently, OPM has revised the section heading for proposed § 335.107 to read, “§ 335.107. Special selection procedures for land management eligibles under merit promotion.”

The employee union further stated that § 335.107 should be revised to reflect that the section was not about selection procedures and the Act established an “entitlement to compete.” Consequently, it recommended changing the heading to “Entitlement of land management eligibles to compete for permanent positions under merit promotion.”

OPM disagrees with this comment. This section is about selection procedures, as it encompasses eligibility for selection as well as how selected individuals will be appointed ( i.e., given a career or career-conditional appointment in accordance with 5 CFR 315.613). This formulation parallels language currently in § 335.106 pertaining to individuals eligible under the Veterans Employment Opportunities Act of 1998, as amended. We retained “selection procedures” for consistency in part 335.

The employee union disagrees with the phrase “if otherwise qualified” in the regulatory language at § 335.107 and states the phrase suggests some but not all land management employees are eligible. The employee union further states that the statute and the proposed definition at § 315.613(b)(3) makes all land management employees eligible to compete for a permanent position and fears it could lead human resources specialists to wrongfully exclude subsets of eligible land management employees. The employee union recommends replacing “if otherwise qualified” with “if they properly apply and otherwise meet qualifications for the position.”

OPM is not adopting this suggestion. The phrase “if otherwise qualified” describes who may compete under merit promotion procedures in part 335 and entails more general considerations, such as whether an applicant meets the qualifications for the position being filled, satisfies any applicable time-in-grade requirements, etc.

The employee union also provided a list of additional recommended edits to the proposed language at § 335.107 as follows:

OPM agrees and removed the extraneous parenthesis in § 335.107.

OPM agrees and has revised the text in § 335.107 to the following: “. . . may compete, if otherwise qualified:”

OPM agrees with both comments immediately above and has modified § 335.107(a) to include similar language to what appears in paragraph (b).

OPM agrees and has revised the text by removing the reference to “in the competitive service” at § 335.107(a). The reference to the “competitive service” at § 335.107(a) is superfluous because, by definition, merit promotion procedures can only be used to fill positions in the competitive service. We also revised the text at § 335.107(b) to coincide. Further, the sentence added to § 315.613(a) based on earlier comments notes the types of appointments available, which also are only available in the competitive service.

OPM is not adopting the suggestion to replace “or” with “and” between § 335.107(a) and (b). OPM's use of “or” conveys that a land management eligible may compete in either of two instances: if a job is advertised under merit promotion procedures outside the agency's workforce, or if a job is advertised under merit promotion procedures within the agency's workforce. The use of “and” may confuse readers to think a land management eligible may only apply when a job is advertised both ways.

OPM notes that the employee union also commented above at #4 that this sentence only appeared in § 335.107(b) but also applied to § 335.107(a). OPM accepted the change requested at comment #4 and added the language to paragraph (a). However, OPM disagrees with comment #7. We believe describing the type of appointment a land management eligible may receive is appropriate under this section heading, as it is an aspect of selection. We note this reference to the type of appointment parallels language currently in § 335.106 pertaining to individuals eligible under the Veterans Employment Opportunities Act of 1998, as amended. We retained this formulation in proposed § 335.107 for consistency with part 335.

To effectuate these requested changes, the employee union recommended that OPM redraft § 335.107 as follows:

A current or former time-limited employee of a land management agency who is a land management eligible, as defined in § 315.613(b)(3), is entitled to compete in accordance with the provisions of § 315.613:

(a) for a permanent position in the competitive service at any agency (including, but not limited to, a land management agency) when that agency is accepting applications from individuals outside its own workforce under its merit promotion procedures; and

(b) for a permanent position in the competitive service at the land management agency at which they were most recently an employee when that agency is accepting applications from individuals within the agency's workforce under its merit promotion procedures.

OPM responded to each bulleted issue individually above and is not adopting the recommended language in its entirety. As previously noted, we are making many of the recommended revisions to § 335.107 based on the concerns expressed by the employee union. OPM also notes that a former time-limited employee of a land management agency who is a land management eligible is considered “within the [land management] agency's workforce” as long as the employee was most recently an employee of that agency (date of separation was not more than 2 years prior to application), even if the time-limited appointment has ended. See 5 U.S.C. 9602(d).

OPM is issuing this final rule to implement statutory changes that allow certain current and former time-limited employees of a land management agency to compete for permanent positions at a land management agency, when the agency is accepting applications from individuals within the agency's workforce under merit promotion procedures; or at any agency when the agency is accepting applications from individuals from outside its own workforce under merit promotion procedures. These changes are in response to the enactment of the Act, Public Law 114-47, 5 U.S.C. 9601 and 9602.

This final rule provides a pathway for certain current and former land management employees currently serving (or who have served) under time-limited appointments at 5 CFR part 316 to compete for vacant permanent Federal positions in the competitive service under merit promotion procedures. Prior to enactment of the Act, these individuals competed for Federal jobs open to U.S. citizens through an open competitive process (unless the Land Management eligible had previously acquired competitive status). These employees now have statutory eligibility to compete under merit promotion procedures under certain circumstances. Thus, the law treats these individuals as if they had competitive status for purposes of applying for permanent Federal jobs advertised under an agency's merit promotion procedures. A potential impact may be that the demand for jobs advertised under these procedures could increase, as measured by an increase in the number of applicants vying for positions advertised under these procedures. This may result in longer processing times or “time to hire” periods than was previously the case.

Another potential impact could be on job-seeking veterans whose eligibility derives from the Veterans Employment Opportunities Act (VEOA) of 1998, as amended. The VEOA provides eligible veterans with the right to apply for positions advertised under merit promotion procedures when the hiring agency seeks applicants outside the hiring agency's workforce. Prior to enactment of the Act, VEOA eligible veterans were the only group with a statutory entitlement to compete for positions being filled by an agency from outside its own workforce under merit promotion procedures. In general, this may increase competition for these positions in general, and thus may reduce the chances of a VEOA eligible being selected for one of these positions.

Lastly, this rule could impact current employees of land management agencies serving in career-ladder positions. An employee in a career ladder position may be non-competitively promoted to the next highest grade-level, provided the next highest grade-level is within the career-ladder, the employee meets time-in-grade requirements, and is otherwise qualified for the duties at the next highest grade level. Because the Act extends eligibility to individuals outside the agency's or the Federal government's workforce, employees in career-ladder positions may now find themselves pitted against these external candidates.

OPM cannot quantify the size of these potential impacts (including the impact on VEOA eligible) because we have no way of knowing the volume or frequency with which land management eligibles may apply for a position under these rules.

There is no regulatory alternative to the final rule because OPM is required by the Act to implement the statute through regulations (see 5 U.S.C. 9602(e)).

The costs associated with the final rule are minimal and include: the costs associated with the resources needed to process a potentially higher volume of job applicants for certain Federal jobs and the usual learning curve of implementing a regulatory change. To help minimize the latter cost, OPM intends to issue supplemental, explanatory guidance as well as provide technical assistance upon request to any agency that may require such assistance. Because agency resources and the potential volume of increased job applicants vary, OPM cannot monetize the costs of these rules.

The final rule will benefit certain employees and former employees of land management agencies and may benefit hiring agencies as well. These rules allow current and former time-limited employees of land management agencies who are otherwise ineligible ( i.e., they have not acquired competitive status nor do they have reinstatement eligibility) to compete for permanent jobs under merit promotion procedures to do so. Time-limited employees are ineligible to compete for vacant permanent positions advertised under merit promotion procedures because, by definition, they do not acquire competitive status on the basis of the time-limited appointment. Generally, positions filled under merit promotion procedures are open to current or former career or career-conditional employees, certain veterans eligible under the VEOA and other individuals with special appointment eligibilities who are treated as if they have competitive status ( i.e., former peace corps volunteers or certain military spouses). Because many agencies fill non-entry level positions using merit promotion procedures, qualified time-limited employees may never be considered for these positions under merit promotion procedures. To remedy this circumstance, Congress enacted the Act to provide a pathway for certain time-limited employees in Federal land management agencies to permanent positions. These provisions allow eligible current and former time-limited land management employees to compete for permanent positions in the competitive service under merit promotion procedures that previously were closed to them.

Hiring agencies may benefit from having an additional source of experienced land management employees to consider under their merit promotion procedures who otherwise may not have been within reach for selection when applying through the competitive examining process. This potential benefit must be balanced with the costs associated with processing a potentially higher volume of job applicants (including longer time-to-hire processing times) under merit promotion procedures.

OPM has examined the impact of this rule as required by Executive Orders 12866, 13563, and 14094, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). This rule is considered a “significant regulatory action” under section 3(f) of Executive Order 12866.

The Director of OPM certifies that this rule will not have a significant economic impact on a substantial number of small entities because it applies only to Federal agencies and employees.

The Office of Personnel Management has examined this rulemaking in accordance with Executive Order 13132, Federalism, and have determined that this rulemaking will not have any negative impact on the rights, roles, and responsibilities of State, local, or tribal governments.

This regulation meets the applicable standard set forth in Executive Order 12988.

This rulemaking will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 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.

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act) (5 U.S.C. 801 et seq. ) requires rules (as defined in 5 U.S.C. 804) to be submitted to Congress before taking effect. OMB's Office of Information and Regulatory Affairs has determined this is not a major rule as defined by the Congressional Review Act (5 U.S.C. 804(2)).

This rulemaking does not impose any reporting or record-keeping requirements subject to the Paperwork Reduction Act.

Accordingly, OPM amends 5 CFR parts 315 and 335 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Honeywell Model AS907-1-1A and AS907-2-1G engines. The NPRM published in the Federal Register on May 23, 2023 (88 FR 32980). The NPRM was prompted by several reports that Honeywell Model AS907-1-1A and AS907-2-1G engines experienced compressor surge, including an AS907-1-1A dual engine compressor surge, during takeoff climb out through a steep temperature inversion, which resulted in loss of engine thrust control. The FAA determined that the installed ECU software version logic locked the engine inlet total temperature (Tt2) at 60 knots on a takeoff roll and that reference Tt2 remained locked until the aircraft reached 400 feet above ground level (AGL) or the pilot moved the throttle before reaching 400 AGL. The locked Tt2 is mathematically adjusted by the ECU software for altitude and Mach number changes as the takeoff progresses. During a climb to 400 feet AGL with a thermal inversion, the actual engine Tt2 can increase above the Tt2 that is being calculated by the ECU, which causes the compressor guide vanes' (CGVs) and surge bleed valves' (SBVs) positions to be off-schedule for the actual ambient conditions. Significant off-scheduling of the CGVs and the SBVs can lead to a compressor surge event. The compressor surge margin is decreased when scheduling is based on a colder Tt2 temperature than what the engine is actually running. Engine deterioration impacts compressor surge margin and can increase the likelihood of a dual engine compressor surge as the AS907-1-1A and AS907-2-1G engine fleets age. Dual engine power loss due to a temperature inversion may result in significant loss of airplane thrust, which could reduce the climb gradient and result in the airplane's inability to clear obstacles. As a result, the manufacturer updated the software.

In the NPRM, the FAA proposed to require either the replacement of a certain ECU software version installed on AS907-1-1A engines with an updated software version eligible for installation or the replacement of certain ECUs installed on AS907-1-1A engines with ECUs eligible for installation. The NPRM also proposed to require the replacement of certain ECUs installed on AS907-2-1G engines with ECUs eligible for installation. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from three commenters. The commenters were Bombardier Inc. (Bombardier), Duncan Aviation, and Honeywell. All three commenters requested changes to the proposed AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

Bombardier requested that the FAA update the NPRM so that references to software are consistent. Bombardier noted that in the NPRM SUMMARY section, the phrase “updated software” was used, while other portions of the AD refer to the “software version eligible for installation.”

The FAA acknowledges the inconsistency and has provided detail about the updated software in the Background of this final rule.

Bombardier requested that the FAA include language in the Background paragraph of this AD to explain the effect of Tt2 locking on the SBVs.

The FAA agrees. As a result, the FAA has added language to the Background paragraph of this AD to explain the effect of Tt2 locking and clarify the surge bleed valves that affect surge margin.

Bombardier requested that the FAA update the language in the unsafe condition of the NPRM Background and paragraph (e) of the proposed AD to the following: “may result in significant loss of overall airplane thrust which can lead to inability of the airplane to clear the AFM OEI net flight path (risk of obstacle collision).”

The FAA partially agrees. The unsafe condition description in Background of this final rule was clarified to include “which could reduce the climb gradient and result in the airplane's inability to clear obstacles.” However, paragraph (e) of this AD was not changed as a result of this comment because the consequence remains consistent with the end-level effect if the unsafe condition is not addressed.

Honeywell suggested a change to the second sentence of the Cost of Compliance to remove an erratum.

The FAA agrees and has changed the second sentence of the Costs of Compliance of this final rule to refer to AS907-2-1G engines installed on airplanes of U.S. registry.

Bombardier questioned why the work-hours for removing the ECU for the AS907-1-1A engine are less than the work-hours for removing the ECU for the AS907-2-1G engine.

The FAA acknowledges that the estimated work-hours should be the same for removing an ECU from both engine models. However, the FAA estimated one ECU will need to be replaced in the AS907-1-1A fleet. Therefore, the FAA estimated 1 work-hour to replace the ECU and 1 work-hour to complete the power assurance run for one engine. The FAA did not change this AD as a result of this comment.

Honeywell noted that the structure of the Estimated Costs table is such that the total or individual engine model fleet cost to the U.S. registered operators is not clearly presented.

The FAA agrees and has clarified the Costs of Compliance of this final rule. The cost per product columns reflect the estimated costs per engine. The AS907-1-1A cost to replace ECU software was moved to the Estimated Costs table to show a total fleet cost assuming all ECUs receive the software upgrade. The cost to replace the AS907-1-1A ECU remains unchanged. The FAA has no way of knowing how many AS907-1-1A engine operators will replace the ECU instead of the software.

Duncan Aviation and Honeywell requested that the FAA change the expression of compliance times throughout Tables 1 and 2 of the NPRM to be more concise. Each of the two commenters suggested slightly different phrasing of compliance times. Each suggested removal of the terms “before exceeding” and “hours time-in-service (TIS).” Duncan Aviation and Honeywell requested the order of “whichever occurs first” and “after the effective date of this AD” be reversed. Duncan Aviation stated that “hours TIS” could be misinterpreted as time since new.

The FAA agrees that the expression of compliance times should be clear. The FAA clarifies that “hours TIS” is equivalent to flight hours. The FAA changed the compliance times in Table 1 to paragraph (g)(1) and Table 2 to paragraph (g)(2) of this AD to read as follows: Within X months/years or Y flight hours after the effective date of this AD, whichever occurs first.

Honeywell requested that the FAA change the ECU software version number in paragraph (g)(1) of the proposed AD from “AS907_1011” to “AS907_1001.” Bombardier requested that the FAA change the ECU software part version number in paragraph (g)(1) of the proposed AD from “AS907_1011” to “AS907-1001.”

The FAA agrees with changing the ECU software version number in paragraph (g)(1) to “AS907_1001” because “AS907_1001” is the correct nomenclature.

Bombardier requested that the FAA change the part/version numbers defined as eligible for installation. Bombardier requested that the definitions change from excluding certain part/version numbers to requiring certain part/version numbers because older versions of software will not address the unsafe condition.

The FAA partially agrees. While these items may be the only items currently eligible for installation, the definitions also allow future approved items. This mitigates the need for an alternative method of compliance (AMOC) for future software versions or ECU P/Ns. There is no version of software older than AS907_1001 for the AS907-1-1A engine. The FAA did not change this AD as a result of this comment.

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

The FAA estimates that this AD affects a total of 853 engines installed on airplanes of U.S. registry. The FAA estimates that 175 AS907-2-1G engines installed on airplanes of U.S. registry will require replacing two ECUs per engine.

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

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by removing AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (AD 2010-26-05). The NPRM was published in the Federal Register on August 29, 2023 (88 FR 59471). AD 2010-26-05 applied to certain Dassault Aviation Model Falcon 10 airplanes; Model FAN JET FALCON, FAN JET FALCON SERIES C, D, E, F, and G airplanes; Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes; and all Model FALCON 2000 and FALCON 2000EX airplanes; Model MYSTERE-FALCON 200 airplanes; Model MYSTERE-FALCON 50 and MYSTERE-FALCON 900 airplanes, and Model FALCON 900EX airplanes. AD 2010-26-05 was prompted by AD 2008-0072, dated April 18, 2008, issued by the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union (EASA AD 2008-0072) (also referred to as the MCAI). The NPRM was prompted by a determination that AD 2010-26-05 is no longer necessary, because the actions specified in the MCAI have been included in the airworthiness limitations section of the existing maintenance manual. EASA issued AD 2008-0072-CN, dated October 5, 2020, which cancels EASA AD 2008-0072. Additionally, the FAA has issued the following ADs to address the unsafe condition by revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations, including the actions specified in AD 2010-26-05.

• AD 2021-04-20, Amendment 39-21442 (86 FR 12802, March 5, 2021), which addresses the unsafe condition for Model Falcon 10 airplanes.

• AD 2020-02-13, Amendment 39-19827 (85 FR 6744, February 6, 2020), which addresses the unsafe condition for Model FAN JET FALCON, FAN JET FALCON SERIES C, D, E, F, and G airplanes on which the supplemental structural inspection program (SSIP) has been incorporated into the airplane's maintenance program.

• AD 2020-03-24, Amendment 39-19848 (85 FR 11289, February 27, 2020), which addresses the unsafe condition for Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes on which the SSIP (Dassault Service Bulletin 730) has been embodied into the airplane's existing maintenance or inspection program.

• AD 2020-03-19, Amendment 39-19843 (85 FR 11280, February 27, 2020), which address the unsafe condition for Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes, except those on which the SSIP (Dassault Service Bulletin 730) has been embodied into the airplane's existing maintenance or inspection program.

• AD 2020-01-13, Amendment 39-19819 (85 FR 5313, January 30, 2020), which addresses the unsafe condition for Model MYSTERE-FALCON 200 airplanes.

• AD 2023-05-15, Amendment 39-22384 (88 FR 22374, April 13, 2023), which addresses the unsafe condition for Model MYSTERE-FALCON 50 airplanes.

• AD 2023-04-10, Amendment 39-22357 (88 FR 20743, April 7, 2023), which addresses the unsafe condition for Model MYSTERE-FALCON 900 airplanes.

• AD 2023-02-13, Amendment 39-22320 (88 FR 8740, February 10, 2023), which addresses the unsafe condition for Model FALCON 900EX airplanes.

• AD 2023-04-18, Amendment 39-22365 (88 FR 15607, March 14, 2023), which addresses the unsafe condition for Model FALCON 2000 airplanes.

• AD 2023-04-13, Amendment 39-22360 (88 FR 20741, April 7, 2023), which addresses the unsafe condition for Model FALCON 2000EX airplanes.

The NPRM proposed to remove AD 2010-26-05. The FAA is issuing this AD to remove AD 2010-26-05.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

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 30 days, upon a finding of good cause. Since the FAA issued AD 2010-26-05, the actions specified in the MCAI have been included in the airworthiness limitations section of the existing maintenance manual, and the FAA has issued ADs to require the incorporation of those airworthiness limitations. Therefore, the FAA is issuing this AD to remove AD 2010-26-05, and the FAA did not receive any adverse comments or useful information about this AD from U.S. operators that necessitates waiting 30 days for relief from this requirement. Accordingly, 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.

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

This AD removes all actions of AD 2010-26-05. Therefore, the requirements of AD 2010-26-05 are terminated.

This AD adds no costs. This AD removes AD 2010-26-05 from 14 CFR part 39; therefore, operators are no longer required to show compliance with that 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

The FAA published a final rule in the Federal Register for Docket No. FAA-2023-2220 (88 FR 78636; November 16, 2023), that amended restricted area R-2512 in the vicinity of Holtville, CA. The section of 14 CFR part 73 to be amended by the final rule was incorrectly stated as 73.22. The correct section of 14 CFR part 73 to be amended is 73.25. This rule corrects this typographical error.

Accordingly, pursuant to the authority delegated to me, the airspace amendment reflected in Docket No. FAA-2023-2220, as published in the Federal Register of November 16, 2023 (88 FR 78636), FR Doc. 2023-25347, is corrected as follows:

FDA is amending the animal drug regulations to reflect approval actions for NADAs, ANADAs, and CNADAs during July, August, and September 2023, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOIA Summaries) under the Freedom of Information Act (FOIA). These documents, along with marketing exclusivity and patent information, may be obtained at AnimalDrugs@FDA: https://animaldrugsatfda.fda.gov/adafda/views/#/search.

Oasmia Pharmaceutical AB, Vallongatan 1, Uppsala, 75228 Sweden requested that FDA withdraw conditional approval of CNADA 141-422 for PACCAL VET-CA1 (paclitaxel for injection) because the product is no longer manufactured or marketed. Also, Med-Pharmex, Inc., 2727 Thompson Creek Rd., Pomona, CA 91767-1861 requested that FDA withdraw approval of the eight abbreviated applications listed in table 2 because the products are no longer manufactured or marketed. As provided in the regulatory text of this document, the animal drug regulations are amended to reflect these actions.

The sponsors of the approved applications listed in table 3 have informed FDA that they have transferred ownership of, and all rights and interest in, these applications to another sponsor. As provided in the regulatory text of this document, the animal drug regulations are amended to reflect these actions.

As provided in the regulatory text of this document, the animal drug regulations cited in table 3 are amended to reflect these actions.

Heska Corp., 1825 Sharp Point Dr., Fort Collins, CO 80525 has informed FDA that it has changed its address to 3760 Rocky Mountain Ave., Loveland, CO 80538-7084. The entries in § 510.600(c) are amended to reflect this action.

FDA is making the following amendments to improve the accuracy of the animal drug regulations.

• 21 CFR 510.600 is amended to reflect sponsors of approved applications by adding entries for Domes Pharma S.A., Genus Lifesciences, Inc., and Noble Pharma, LLC, by revising the entry for Heska Corp., and by removing the entries for Jurox Pty. Ltd. and Oasmia Pharmaceutical AB.

• 21 CFR 520.23 is amended to reflect approved strengths of acepromazine maleate tablets for dogs and cats.

• 21 CFR 522.460 is amended to reflect current labeling for cloprostenol injectable solution for use in cattle.

• 21 CFR 522.2640 is amended to reflect the approved strengths of generic tylosin injectable solutions.

• 21 CFR 558.330 is amended to reflect the sponsors of drugs approved for use in combination medicated feeds containing lubebegron and monensin.

• 21 CFR 558.355 is amended to reflect the classes of pasture cattle approved for use of a monensin free-choice block.

• 21 CFR 558.625 is amended to reflect the sponsors of drugs approved for use in combination medicated feeds containing lubebegron, monensin, and tylosin.

This final rule is issued under section 512(i) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360b(i)). Although deemed a rule pursuant to the FD&C Act, this document does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a “rule of particular applicability” and is not subject to the congressional review requirements in 5 U.S.C. 801-808. Likewise, this is not a rule subject to Executive Order 12866.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 510, 516, 520, 522, 524, and 558 are amended as follows:

This final rule makes purely technical, clarifying revisions to the Agency's existing regulations at 36 CFR 212.8, 214.4, 251.50, 251.51, 251.53, 251.54, 251.55, 251.57, 251.58, 251.59, 251.60, 251.64, and 251.124 governing administration of the forest transportation system, administrative appeal of certain written decisions pertaining to written authorizations for occupancy or use of NFS lands and resources, and issuance and administration of special use authorizations for use and occupancy of NFS lands. The purely technical, clarifying revisions update citations and enhance consistency of the existing regulations with governing statutes. These purely technical, clarifying revisions do not formulate standards, criteria, or guidelines applicable to Forest Service programs and therefore do not require public notice and opportunity to comment under section 14(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1612(a)).

The Department is revising text in § 212.8(d)(5)(i) to track revisions being made to § 251.60(a)(2)(i) and to provide that a formal adjudicatory hearing is required for revocation for nonuse of an easement issued under the National Forest Roads and Trails Act (FRTA).

The Department is revising § 214.4(c)(1)(i) to provide that suspension or revocation of permits as well as easements issued under the Mineral Leasing Act (MLA) and revocation for nonuse of an easement issued under FRTA are not subject to administrative appeal under 36 CFR part 214. In contrast to the Federal Land Policy and Management Act (FLPMA) addressed in 36 CFR 251.53(l), the MLA addressed in 36 CFR 251.53(e) requires a formal adjudicatory proceeding for suspension or revocation of permits as well as easements (30 U.S.C. 185(o)(1)(C)). Therefore, suspension or revocation of permits as well as easements issued under the MLA must be exempt from the informal administrative appeal process under 36 CFR part 214. FRTA provides for a formal hearing for revocation of an easement for nonuse (16 U.S.C. 534).

The Department is removing paragraph (c)(3) of § 251.50, which requires a special use authorization for a noncommercial recreational activity if required by an order issued under 36 CFR part 261, subpart B, or by a regulation issued under 36 CFR part 261, subpart C. There is no basis for issuance of such an order under 36 CFR part 261, subpart B. Moreover, there is no need for issuance of such an order or regulation because the Forest Service has the authority to require a noncommercial special recreation permit under the Federal Lands Recreation Enhancement Act and its implementing directives in Forest Service Handbook (FSH) 2309.13, Chapter 30.

The Department is revising the definitions for “outfitting” and “guiding” by replacing the phrase “pecuniary remuneration” with the word “monetary.” The revised language is more contemporary and easier to understand.

The Department is revising § 251.53(a) by changing the phrase “group events” to “noncommercial group use” and deleting the phrase “and distribution of noncommercial printed materials” for authorizations issued under the Organic Administration Act (16 U.S.C. 551). The term of art per the definitions for special uses in 36 CFR 251.51 is “noncommercial group use.” The distribution of noncommercial printed materials does not require a special use authorization under 36 CFR 251.50(c).

The Department is adding paragraph (o) to § 251.53 to include the Forest Service's authority under section 111 of the National Historic Preservation Act of 1966 (54 U.S.C. 306121) to issue leases for Federally owned historic properties on NFS lands.

The Department is revising § 251.54(d) through (g) to use appropriate terminology when referring to a proponent or a proposal and to enhance clarity.

The Department is revising § 251.54(e)(1)(iv), which precludes consideration of proposals for a permanent use and occupancy of NFS lands, to add an exception for permanent easements issued under FRTA (16 U.S.C. 533).

The Department is revising § 251.54(f)(1)(i) regarding who may apply for an oil or gas pipeline right-of-way authorization for greater consistency with the MLA (30 U.S.C. 181).

The Department is revising § 251.54(g)(3)(iii) to replace the citation to 36 CFR part 215 with a citation to 36 CFR part 218. The postdecisional administrative appeal process in 36 CFR part 215 has been replaced with the predecisional objection process in 36 CFR part 218.

The Department is revising the second sentence of § 251.55(a) to replace the word “sublet” with the word “lease.” The word “sublet” is appropriate only when the issued authorization is a lease. Many special use authorizations are not leases. The Department is making other minor clarifications to the wording of § 251.55(a).

The Department is changing the heading of § 251.57 from “Rental fees” to “Land use fees.” The term “rent” is associated with leases, and many special use authorizations are not leases.

The Department is revising § 251.57(a)(2), consistent with section 504(g) of FLPMA (43 U.S.C. 1764(g)), to authorize the Forest Service to require either annual land use fee payments or annual land use fee payments covering more than one year, regardless of the amount of the land use fee.

The Department is revising § 251.57(a)(3) by replacing the language from and citation to the Cabin User Fee Fairness Act with language from and citation to the Cabin Fee Act. The Cabin Fee Act (16 U.S.C. 6214) has supplanted the Cabin User Fee Fairness Act (16 U.S.C. 6201-6213) as the authority for land use fees for recreation residence permits.

The Department is revising § 251.57(b) governing land use fee waivers by adding text and removing the word “or” at the end of paragraphs (1) through (5) to clarify, consistent with Forest Service directives, that if a holder is ineligible for a land use fee waiver under one criterion, the holder is ineligible for a land use fee waiver under any of the other criteria.

The Department is removing § 251.57(i). Paragraph (i) of § 251.57 addresses implementation of the Cabin User Fee Fairness Act, which has been superseded by the Cabin Fee Act of 2014.

The Department is revising § 251.58(d)(1) by replacing the phrase “scheduled inspections” with the phrase “routine on-site reviews” to distinguish between inspections, which are the holder's responsibility, and monitoring, which is the Forest Service's responsibility.

The Department is revising § 251.58(i)(1) by changing the first sentence from, “The Forest Service shall maintain schedules for processing and monitoring fees in its directive system (36 CFR 200.4),” to “The Forest Service shall maintain schedules for processing and monitoring fees on its website.” It is more efficient to update a website than a directive, and other Forest Service land use fee schedules such as the communications use rental fee schedule are maintained on the Forest Service's website.

The Department is clarifying § 251.59 by revising the first sentence, “If the holder, through death, voluntary sale, transfer, or through enforcement of a valid legal proceeding or operation of law, ceases to be the owner of the authorized improvements, the authorization terminates upon change of ownership,” to read, “If the holder through death, voluntary sale, transfer, or enforcement of a valid legal proceeding or operation of law ceases to be the owner of the authorized improvements, the special use authorization terminates upon change of ownership and issuance of a new special use authorization to another party for the authorized use and occupancy.” This revision clarifies that the existing holder is responsible for the authorized use and occupancy until a new authorization is issued. In addition, the Department is revising § 251.59 to clarify that an application and new authorization are not necessary for leases and easements issued under the MLA, FRTA, or FLPMA and that assignments of leases and easements are subject to the terms of the applicable authorization.

In § 251.60, the Department is revising paragraphs (a)(2)(i), (a)(2)(ii), and (c); removing paragraph (d); designating existing paragraphs (e) and (f) as paragraphs (d) and (e); revising existing paragraph (g) and redesignating it as paragraph (f); removing paragraph (h); and redesignating existing paragraph (i) as paragraph (g), as discussed below.

The Department is revising paragraph (a)(2)(i) by removing the exception for permits and easements issued under the MLA and easements issued under FLPMA, adding an exception for authorizations issued under FRTA, and including separate bases for revocation and suspension for authorizations issued under FRTA. FLPMA and the MLA provide for revocation and suspension of land use authorizations issued under those statutes, but the current language in the regulations does not include any bases for revocation or suspension of authorizations issued under FLPMA or the MLA. FRTA provides for revocation only with the grantee's consent, by condemnation, or after a 5-year period of nonuse (16 U.S.C. 534).

The Department is revising paragraph (a)(2)(ii) to provide that suspension or revocation of permits as well as easements issued under the MLA and revocation for nonuse of easements issued under FRTA are not subject to appeal under 36 CFR part 214. In contrast to FLPMA, the MLA requires a formal adjudicatory proceeding for suspension or revocation of permits as well as easements. Therefore, suspension or revocation of permits as well as easements issued under the MLA must be exempt from the informal administrative appeal process under 36 CFR part 214. FRTA provides for a formal hearing for revocation of an easement for nonuse (16 U.S.C. 534).

The Department is revising § 251.60(c) by removing references to limiting and terminating a right-of-way authorization issued to a Federal entity. The reference to limiting a right-of-way is redundant, and the reference to terminating a right-of-way is incorrect. Termination of an authorization occurs by operation of law or by operation of a fixed or agreed-upon condition, event, or time as specified in an authorization, without any action of the authorized officer (36 CFR 251.51). The correct term is revocation, which occurs by action of the authorized officer (36 CFR 251.51). The Department is also revising § 251.60(c) to state that a special use authorization issued to a Federal agency under 36 CFR 251.53(l) may be suspended or revoked only with the concurrence of the head of that Federal agency. Only authorizations issued to a Federal agency under FLPMA are subject to this restriction (43 U.S.C. 1767(b)). By statute, the consent must be from the agency head. The Department is also removing the word “termination” because it is defined in the special use regulations to mean an action that occurs by operation of law or by operation of a fixed or agreed-upon condition, event, or time as specified an authorization, without any action of the authorized officer.

The Department is removing § 251.60(d), which provides for notice to and consultation with a Federal agency before suspending or revoking a special use authorization issued to that agency, as this provision is unnecessary. Preceding § 251.60(c) provides that an authorization issued to a Federal entity under FLPMA may be suspended or revoked only with the Federal holder's consent. A Federal holder would not consent to suspension or revocation of an authorization issued under FLPMA without notice and consultation.

The Department is revising and redesignating existing § 251.60(g) as § 251.60(f) to clarify the requirements for a formal adjudicatory proceeding for revocation or suspension of an authorization consistent with FLPMA (43 U.S.C. 1766) and the MLA (30 U.S.C. 185(o)(1)) and to require a formal adjudicatory proceeding for revocation for nonuse of an easement issued under FRTA (16 U.S.C. 534). The language in existing § 251.60(g) is not entirely consistent with FLPMA and the MLA. FRTA provides for a formal hearing for revocation for nonuse of an easement upon request within 60 days of receipt of notice (16 U.S.C. 534).

The Department is removing existing § 251.60(h) in its entirety and including its contents in § 251.60(a)(2)(i). The Department is redesignating existing § 251.60(i) as § 251.60(g).

The Department is revising the title and text of § 251.64 to track statutes governing issuance of special use authorizations and special use authorization forms approved by the Office of Management and Budget, which provide for reauthorization of the use and occupancy, not renewal of the authorization, and which require reauthorization of the use and occupancy, subject to conditions, only for authorizations issued under the MLA (43 U.S.C. 185(n)) and priority use outfitting and guiding permits (FSH 2709.14, Ch. 50, sec. 53.1m, para. 4). Only permits and easements issued under these authorities require reauthorization of the use and occupancy, subject to specified conditions. Reauthorization of any other type of use and occupancy is at the sole discretion of the authorized officer.

The Department is updating the citation in the second sentence of § 251.124(b) by replacing “Forest Service Handbook 2709.11, chapter 40,” with “Forest Service Handbook 2709.14, Chapter 50.”

Consistent with Executive Order (E.O.) 12866, the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will determine whether proposed, interim, and final rules that impose, eliminate, or modify requirements on non-Forest Service parties are significant and will review any proposed, interim, or final rules that OIRA has designated as significant. This final rule does not impose, eliminate, or modify requirements on non-Forest Service parties and therefore does not require a significance determination by OIRA. E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Department has developed this final rule consistent with E.O. 13563.

Since this final rule does not impose, eliminate, or modify requirements on non-Forest Service parties, it is not a major rule as defined by the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act, 5 U.S.C. 804(2)).

This final rule will make only technical, clarifying revisions to existing Forest Service regulations at 36 CFR part 212, subpart A, part 214, and part 251, subparts B and E. Forest Service regulations at 36 CFR 220.6(d)(2) (73 FR 43093) exclude from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish service-wide administrative procedures, program processes, or instructions.” The Department has concluded that this final rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement.

The Department has considered this final rule under the requirements of the Regulatory Flexibility Act (5 U.S.C. 602 et seq. ). This final rule will not have any direct effect on small entities as defined by the Regulatory Flexibility Act. The final rule will not impose recordkeeping requirements on small entities; will not affect their competitive position in relation to large entities; and will not affect their cash flow, liquidity, or ability to remain in the market. Therefore, the Department has determined that this final rule will not have a significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act.

The Department has considered this final rule under the requirements of E.O. 13132, Federalism. The Department has determined that the final rule conforms with the federalism principles set out in this E.O.; will not impose any compliance costs on the states; and will not have substantial direct effects on the states, on the relationship between the Federal Government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Department has concluded that the final rule does not have federalism implications.

The Department has reviewed this final rule in accordance with the requirements of E.O. 13175, Consultation and Coordination with Indian Tribal Governments. The Department has determined that national Tribal consultation is not necessary for the final rule. The final rule, which will make only technical, clarifying revisions to existing Forest Service regulations in 36 CFR part 212, subpart A, part 214, and part 251, subparts B and E, does not impose, eliminate, or modify requirements on non-Forest Service parties and therefore does not have any direct effects on Tribes.

The Department has considered the final rule under the requirements of E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. The final rule, which will make only technical, clarifying revisions to existing Forest Service regulations in 36 CFR part 212, subpart A, part 214, and part 251, subparts B and E, does not impose, eliminate, or modify requirements on non-Forest Service parties and therefore will not result in disproportionately high and adverse impacts on minority or low-income populations or the exclusion of minority and low-income populations from meaningful involvement in decision making.

The Department has analyzed the final rule in accordance with the principles and criteria in E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The Department has determined that the final rule will not pose the risk of a taking of private property.

The Department has reviewed the final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Department has determined that the final rule will not constitute a significant energy action as defined in E.O. 13211, and OIRA has not otherwise designated the final rule as a significant energy action.

The Department has analyzed the final rule in accordance with the principles and criteria in E.O. 12988, Civil Justice Reform. Upon issuance of the final rule, (1) all state and local laws and regulations that conflict with the final rule or that impede its full implementation will be preempted, (2) no retroactive effect will be given to this final rule, and (3) it will not require administrative proceedings before parties may file suit in court challenging its provisions.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), signed into law on March 22, 1995, the Department has assessed the effects of the final rule on state, local, and Tribal governments, and the private sector. The final rule will not compel the expenditure of $100 million or more by any state, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.

The final rule does not contain information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and its implementing regulations at 5 CFR part 1320 do not apply.

Therefore, for the reasons set forth in the preamble, the Department is amending chapter II of title 36 of the Code of Federal Regulations as follows:

In FR Doc. 2023-26122, appearing on page 83354 in the Federal Register of Wednesday, November 29, 2023, the following corrections are made:

Because the EPA received adverse comment on specific amendments, through this correction, we are withdrawing only those specific amendments from the direct final rule, Hazardous Waste Generator Improvements Rule, the Hazardous Waste Pharmaceuticals Rule, and the Definition of Solid Waste Rule; Technical Corrections, published on August 9, 2023 (88 FR 54086). We stated in that direct final rule that if we received adverse comment by the close of the comment period on October 10, 2023, the specific amendments in the direct final rule that are the subject of adverse comment would not take effect, and we would publish a timely withdrawal in the Federal Register . Because the EPA subsequently received adverse comment on eight amendments in that direct final rule, we are withdrawing only the eight affected amendments. All other amendments in that direct final rule will go into effect on the effective date (December 7, 2023). The eight specific amendments that are being withdrawn are:

1. Section 261.4(e)(1) introductory text related to sample waste generated or collected for the purpose of conducting treatability studies.

2. Section 262.11(d) introductory text related to identifying hazardous characteristics for listed hazardous wastes when the characteristic is already addressed by the listing.

3. Section 262.11(g) related to identifying hazardous characteristics for listed hazardous wastes when the characteristic is already addressed by the listing.

4. Section 262.16(b)(1) related to the accumulation limit for small quantity generators generating acute hazardous waste.

5. Section 262.17(a)(8)(i) introductory text related to LQG closure notification when closing a waste accumulation unit but not the whole facility.

6. Section 262.17(a)(8)(i)(A) related to LQG closure notification when closing a waste accumulation unit but not the whole facility.

7. Section 262.232(b)(6)(iv) related to adding “RCRA-” to the term “designated facility” to match the language of parallel provisions in this section.

8. Section 266.508(a)(2)(ii) related to allowing applicable EPA hazardous waste numbers (also known as waste codes) in addition to the required PHARMS code in item 13 of the hazardous waste manifest for shipments of hazardous waste pharmaceuticals from a healthcare facility subject to 40 CFR part 266 subpart P. We are also withdrawing language from this provision that allows the use of PHRM in lieu of PHARMS in item 13 of the hazardous waste manifest.

Except for the amendment to § 262.11 at instruction 25, which is withdrawn in full, because the provisions we are withdrawing appear in amendatory instructions affecting other provisions, we are correcting the corresponding amendments in full minus those provisions withdrawn.

The EPA published a parallel proposed rule on the same day as the direct final rule. The proposed rule invited comment on the substance of the direct final rule. We will address those comments in any subsequent final action, which will be based on the parallel proposed rule also published on August 9, 2023. As stated in the direct final rule and the parallel proposed rule, we will not institute a second comment period on this action.

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to view public comments. CMS will not post on Regulations.gov public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm an individual. CMS continues to encourage individuals not to submit duplicative comments. We will post acceptable comments from multiple unique commenters even if the content is identical or nearly identical to other comments.

Section 1902(tt)(2) of the Social Security Act (the Act) (added by section 5131(b) of Subtitle D of Title V of Division FF of the Consolidated Appropriations Act, 2023 (CAA, 2023), Public Law 117-328, enacted December 29, 2022) includes new enforcement authority for CMS to use if it determines that a State is not in compliance with the reporting requirements under section 1902(tt)(1) of the Act, Federal eligibility redetermination requirements, 1 or both.

First, if CMS determines that a State is not in compliance with the reporting requirements under section 1902(tt)(1) of the Act for any fiscal quarter that occurs during the period that begins on July 1, 2023, and ends on June 30, 2024, section 1902(tt)(2)(A) of the Act requires CMS to reduce the Federal Medical Assistance Percentage (FMAP) as determined for the State for the quarter under section 1905(b) of the Act by the number of percentage points (not to exceed 1 percentage point) equal to the product of 0.25 percentage points and the number of fiscal quarters during such period for which the State has failed to satisfy such requirements. Per section 1902(tt)(2)(A) of the Act, the FMAP reduction is for fiscal quarters occurring in the period beginning on July 1, 2023, and ending on June 30, 2024. Therefore, CMS will not apply the FMAP reduction under section 1902(tt)(2)(A) of the Act to the quarter from April 1, 2023, to June 30, 2023, and CMS will not evaluate State-reported data reflecting activities during these months for purposes of the FMAP reduction.

Second, if CMS determines that a State is not in compliance with Federal eligibility redetermination requirements, the reporting requirements under section 1902(tt)(1) of the Act, or both, section 1902(tt)(2)(B) of the Act authorizes CMS to require a State to submit a corrective action plan (CAP) to address the noncompliance. If the State fails to submit or implement an approved CAP in accordance with section 1902(tt)(2)(B)(ii) of the Act, then, under section 1902(tt)(2)(B)(iii) of the Act, CMS may require the State to suspend some or all terminations of Medicaid eligibility that are for procedural reasons (hereinafter referred to as “procedural disenrollments”) and may also impose civil money penalties (CMPs) of up to $100,000 for each day a State is not in compliance. In this rule, CMS defines procedural disenrollments in § 430.5 to mean, for the purposes of § 430.49 and 45 CFR part 16, a termination of a beneficiary's Medicaid eligibility after providing advance notice required under 42 CFR part 431, subpart E for reasons that are unrelated to a State's determination of whether the individual meets eligibility criteria to qualify for coverage, including for failure to return a renewal form or documentation needed by the State to make a determination of eligibility. This new authority under section 1902(tt)(2)(B) of the Act is in addition to any FMAP reduction that may also be applicable under section 1902(tt)(2)(A) of the Act or any other enforcement authority available to the Secretary. This new enforcement authority under section 1902(tt)(2)(B) of the Act relates to State conduct occurring during the period that began on April 1, 2023, and ends on June 30, 2024.

Both the new enforcement authorities in section 1902(tt)(2)(A) of the Act and in section 1902(tt)(2)(B) of the Act took effect on April 1, 2023. As noted above, the enforcement authority in section 1902(tt)(2)(A) of the Act does not apply to State conduct during the period from April 1, 2023, to June 30, 2023.

Section 1902(tt) of the Act applies during a period when States are conducting an unprecedented volume of Medicaid eligibility redeterminations. Under section 6008(b)(3) of the FFCRA (Pub. L. 116-127, originally enacted March 18, 2020), States were able to claim a temporary 6.2 percentage point increase in their FMAP provided that they met several conditions, including that they not disenroll most persons enrolled in Medicaid as of or after March 18, 2020, until the last day of the month in which the COVID-19 Public Health Emergency (PHE) ended. This provision is known as the Medicaid continuous enrollment condition. As of April 1, 2023, 50 States, the District of Columbia, and the five U.S. Territories (referred to as “States” throughout, consistent with section 1101(a) of the Act), were claiming the FFCRA FMAP increase, so this condition applied to all States.

Section 5131(a) of Subtitle D of Title V of Division FF of the CAA, 2023 made several changes to section 6008 of the FFCRA. As relevant here, section 5131(a)(2)(C) of Subtitle D of Title V of Division FF of the CAA, 2023 separated the end of the continuous enrollment condition from the end of the COVID-19 PHE by amending section 6008(b)(3) of the FFCRA to end continuous Medicaid enrollment as a condition for claiming the FFCRA temporary FMAP increase on March 31, 2023. 2 This means that, beginning April 1, 2023, all 56 States claiming the temporary FMAP increase were no longer required to comply with the continuous enrollment condition. Accordingly, States must conduct a full renewal of eligibility for each beneficiary (as part of a process referred to as “unwinding”), in accordance with 42 CFR 435.916 and as described in State Health Official (SHO) letter #22-001, “RE: Promoting Continuity of Coverage and Distributing Eligibility and Enrollment Workload in Medicaid, the Children's Health Insurance Program (CHIP), and Basic Health Program (BHP) Upon Conclusion of the COVID-19 Public Health Emergency” (March 2022 SHO letter). 3

CMS previously released guidance describing specific requirements and recommendations for States related to unwinding from the continuous enrollment condition. As a result of the policies described in these guidance documents, State unwinding periods vary and do not necessarily overlap with the compliance period for the new enforcement tools created under section 1902(tt) of the Act. As discussed in SHO letter # 23-002, “RE: Medicaid Continuous Enrollment Condition Changes, Conditions for Receiving the FFCRA Temporary FMAP Increase, Reporting Requirements, and Enforcement Provisions in the Consolidated Appropriations Act, 2023” (January 2023 SHO letter), 4 beginning as early as February 1, 2023, States have up to 12 months to initiate, and 14 months to complete, a renewal for all individuals enrolled in Medicaid, a period commonly referred to as a State's “unwinding period.”  5 Starting on or after April 1, 2023, States claiming the temporary FFCRA FMAP increase may disenroll persons determined to be ineligible by a renewal initiated during the State's unwinding period. Likewise, the March 2022 SHO letter outlines CMS' expectations for renewals during unwinding. As also discussed in the January 2023 SHO letter, States had the option to initiate the first cohort of renewals to begin their unwinding period in February, March, or April 2023. 6

Section 1902(tt) of the Act took effect on April 1, 2023, the day after the continuous enrollment condition expired. It imposes new reporting requirements on States during a period that generally overlaps with States' unwinding periods. It also provides CMS with new authority to take enforcement action if States fail to comply with Federal requirements related to eligibility redetermination or the new reporting requirements. Notably, these new reporting requirements and CMS' authority to enforce redetermination and data reporting requirements apply to all 56 States, regardless of whether a State is continuing to claim the FFCRA FMAP increase. This rule implements the new reporting requirements in section 1902(tt)(1) of the Act and the enforcement authorities in section 1902(tt)(2) of the Act (which are further discussed in the section II).

Section 1902(tt) of the Act authorizes CMS to closely monitor and enforce Federal redetermination requirements during a period that generally aligns with States' unwinding periods, and thus, these authorities better position CMS to take actions to prevent unauthorized disenrollments during this critical period. Section 1902(tt)(1) of the Act requires that, for each month occurring during the period beginning on April 1, 2023, and ending on June 30, 2024, States must submit on a timely basis to CMS, and CMS must make public, certain monthly data about activities related to eligibility redeterminations conducted during that same period. The January 2023 SHO letter discussed these reporting requirements under section 1902(tt)(1) of the Act in further detail and explained that all the data States must report under these new reporting requirements are included in existing data sources, including the Unwinding Data Report and State-based Exchanges (SBE) priority metrics. 7

Based on the timeframe when the reporting requirements under section 1902(tt)(1) of the Act apply, and the title of section 1902(tt)(1) of the Act, which refers to the “transition from [the FFCRA] FMAP increase,” CMS interprets the statutory data collection and reporting requirements to be a means to help CMS monitor States' work unwinding from the Medicaid continuous enrollment condition and returning to regular eligibility and enrollment operations. Under our interpretation, the reporting requirements under section 1902(tt)(1) of the Act will help us monitor whether States are compliant—during a timeframe that generally aligns with their return to regular eligibility and enrollment operations—with Federal eligibility redetermination requirements (including renewal requirements at 42 CFR 435.916, strategies authorized under section 1902(e)(14) of the Act, or alternative strategies authorized by CMS, including alternative or mitigation strategies CMS has authorized States to implement under section 6008(f)(2)(A) of the FFCRA, which was added by section 5131 of Subtitle D of Title V of Division FF of the CAA, 2023). Additionally, because section 1902(tt) of the Act also includes the new enforcement authorities in section 1902(tt)(2)(B) of the Act, CMS interprets the data collection and reporting requirements under section 1902(tt)(1) to be a tool CMS can use to monitor State compliance with Federal eligibility redetermination requirements during a period that generally aligns with States' unwinding periods.

CMS has also been monitoring States' implementation of other amendments made by section 5131 of Subtitle D of Title V of Division FF of the CAA, 2023, which create new conditions for States seeking to receive the FFCRA temporary FMAP increase through December 31, 2023. These new conditions for receiving the FFCRA temporary FMAP increase also give CMS ways to incentivize States to minimize the disruption in coverage resulting from procedural disenrollments during States' unwinding periods. Specifically, the CAA, 2023 added to the FFCRA new section 6008(f)(2)(A), which conditions receipt of the FFCRA FMAP increase after April 1, 2023, on State compliance with Federal redetermination requirements, including renewal strategies authorized under section 1902(e)(14)(A) or other alternative processes and procedures approved by the Secretary. New FFCRA section 6008(f)(2)(B) conditions receipt of the FFCRA FMAP increase after April 1, 2023, on States' maintaining up-to-date contact information for a beneficiary before redetermining eligibility for such beneficiary, and new section 6008(f)(2)(C) conditions receipt of the FFCRA FMAP increase after April 1, 2023, on States' undertaking a good faith effort to contact an individual using more than one modality prior to terminating their enrollment on the basis of returned mail. The January 2023 SHO letter outlines these new conditions for receiving the FFCRA FMAP increase in greater detail. Because the same section of the CAA, 2023 that added new section 1902(tt) to the Act also included both these conditions for receiving the FFCRA FMAP increase, CMS interprets the entirety of the changes made in section 5131 of subtitle D of division FF of the CAA, 2023 to give CMS a range of enforcement mechanisms and incentives that, taken together, can be used to help minimize the disenrollment of people who otherwise continue to meet the substantive eligibility criteria and whose enrollment would be retained but for their failure to meet a procedural requirement during States' unwinding periods. One key purpose of section 1902(tt) is thus to enhance CMS' ability to take enforcement action against noncompliant States during this critical timeframe.

CMS takes seriously its responsibility to hold States accountable for resuming routine eligibility and enrollment operations and plans to fully exercise the new authorities at section 1902(tt) of the Act when appropriate to do so. Since the FFCRA was enacted, CMS has been preparing for the eventual unwinding of the FFCRA continuous enrollment condition. CMS has explained to States the conditions of the FFCRA FMAP increase, gauged States' ability to resume redeterminations on an unprecedented scale, and provided States with technical assistance to address challenges that might lead to preventable loss of coverage for procedural reasons among beneficiaries. If CMS identifies a violation of Federal redetermination requirements, then, consistent with section 6008(f)(2)(A) of the FFCRA, CMS will communicate to the State that its FFCRA FMAP increase will be withheld if the State does not ensure the issue is fully resolved or does not implement appropriate mitigations until full compliance can be achieved.

The new enforcement tools outlined at section 1902(tt) of the Act, which allow CMS to enforce existing Federal redetermination requirements as well as the reporting requirements at section 1902(tt)(1) of the Act, are a key part of the suite of CMS enforcement mechanisms and incentives added through the CAA, 2023 to minimize the disenrollment of eligible individuals during States' unwinding periods. These new enforcement tools are critical to enabling CMS to effectively monitor for, and take action to protect against, States conducting renewals that do not adhere to Federal redetermination requirements and to support continued enrollment for those individuals who remain eligible. Nothing in this rule affects other authorities that exist outside of this new enforcement framework or precludes CMS from pursuing additional enforcement action under section 1904 of the Act, including withholding Federal financial participation (FFP), or limiting payments, for States that fail to comply with requirements of the Medicaid statute.

When CMS becomes aware of a potential violation of Federal requirements, we first attempt to work collaboratively with the State to understand the nature and scope of the problem and to identify appropriate alternative processes and procedures that the State can adopt to avoid or minimize beneficiary harm until the State can fix the problem and come into full compliance with Federal requirements, consistent with our authority to enforce compliance with section 1902 under section 1904 of the Act and 42 CFR 430.35. Consistent with this practice, as discussed in section II.A of this rule, CMS will provide technical assistance to States facing unusual circumstances that interfere with their ability to comply fully with section 1902(tt)(1) of the Act reporting requirements and will consider approving alternative timelines and processes for meeting those requirements. The statute does not give CMS the discretion to avoid taking an FMAP reduction under section 1902(tt)(2)(A) of the Act for a quarter in the period beginning July 1, 2023, and ending June 30, 2024, if a State ultimately fails to report each of the metrics required under section 1902(tt)(1) of the Act for that quarter. However, CMS will consider mitigating circumstances before taking additional enforcement action under section 1902(tt)(2)(B) of the Act if a State fails to meet the reporting requirements under section 1902(tt)(1) of the Act during the period from April 1, 2023, to June 30, 2024.

If CMS' efforts to work collaboratively with States are successful, and the State takes necessary steps to address beneficiary harm and prevent future harm (such as reinstating eligibility for affected beneficiaries and suspending procedural disenrollments, where appropriate), CMS might not initiate compliance action under section 1902(tt)(2)(B) of the Act. However, if CMS determines that a State violated the section 1902(tt)(1) of the Act reporting requirements or Federal redetermination requirements, CMS will consider exercising the enforcement authorities in section 1902(tt)(2)(B) of the Act, as implemented in this rule.

This rule adds new 42 CFR 430.49 and 435.927 and 435.928 to the CFR and amends §§ 430.3, 430.5, and 45 CFR part 16. New § 430.49 of this rule interprets and implements section 1902(tt)(2)(B) of the Act, which authorizes CMS to do the following: (1) require States to submit and implement a CAP for noncompliance with Federal requirements applicable to eligibility redeterminations and the reporting requirements described in section 1902(tt)(1) of the Act; and (2) if the State fails to submit or implement an approvable CAP in accordance with section 1902(tt)(2)(B)(ii), require the State to suspend some or all disenrollments from Medicaid for procedural reasons until the State takes appropriate corrective action, impose CMPs of not more than $100,000 for each day the State is not in compliance, or both. New § 435.927 interprets and implements section 1902(tt)(1) of the Act, which requires that, for each month occurring during the period beginning on April 1, 2023, and ending on June 30, 2024, States must submit on a timely basis to CMS, and CMS must make public, certain monthly data about activities related to eligibility redeterminations conducted during that same period.

New § 435.928 specifies how CMS will implement the FMAP reduction required under section 1902(tt)(2)(A) of the Act. If a State does not satisfy the reporting requirements described in section 1902(tt)(1) of the Act for any fiscal quarter in the period that begins on July 1, 2023 and ends on June 30, 2024, section 1902(tt)(2)(A) of the Act requires CMS to reduce the FMAP determined for the State for the quarter under section 1905(b) of the Act by the number of percentage points (not to exceed 1 percentage point) equal to the product of 0.25 percentage points and the number of fiscal quarters during such period for which the State has failed to satisfy such requirements.

The provisions of this rule apply to the States, District of Columbia, and all 5 territories—Guam, Puerto Rico, the Virgin Islands, the Northern Mariana Islands, and American Samoa. While the regulations in part 435 apply only to the States, the District of Columbia, the Northern Mariana Islands and American Samoa, § 436.901 provides that with one exception (not relevant here), the requirements of part 435, subchapter J, which includes §§ 435.927 and 435.928 through this rulemaking, apply to Guam, Puerto Rico, and the Virgin Islands.

The new enforcement authority granted to CMS under section 1902(tt)(2)(A) and (B) of the Act will improve State accountability for complying with Federal renewal requirements while also minimizing disruptions to coverage for eligible people during a period that generally aligns with States' unwinding activities. The additional enforcement activities authorized in section 1902(tt)(2) of the Act will reinforce and augment the routine monitoring and compliance action that CMS is already undertaking to promote State compliance with Federal enrollment and eligibility requirements, described in section I.C and D of this rule. These authorities will also help ensure that States remain accountable to CMS by requiring them to submit certain data to CMS and will increase public transparency about eligibility redeterminations between April 1, 2023, and June 30, 2024, by requiring CMS to publicly report the data.

Finally, the rule amends § 430.5 to add new definitions of the terms Federal redetermination requirements and procedural disenrollment for purposes of § 430.49, and (with respect to the definition of procedural disenrollment only) for purposes of 45 CFR part 16. And this rule creates reconsideration and appeal rights for States under new § 430.49(f) and corresponding amendments to § 430.3 and 45 CFR part 16, to ensure States have clear avenues for appealing CMS decisions to require suspension of procedural disenrollments and/or impose CMPs under the new authorities in section 1902(tt)(2)(B)(iii) of the Act.

We have also included severability clauses at new §§ 430.49(g), 435.927(e), and 435.928(c) to emphasize our intent that, to the extent a reviewing court holds that any provision of these rules is unlawful, the remaining provisions should take effect and be given the maximum effect permitted by law. The severability clauses provide that any provision of these sections that is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, or stayed pending further agency action, shall be severable from the relevant section and shall not affect the remainder thereof or the application of the provision to persons not similarly situated or to dissimilar circumstances.

Section 1902(tt)(1) of the Act requires that, for each month occurring during the period that begins on April 1, 2023, and ends on June 30, 2024, each State submits to CMS, and that CMS make public, a report on the activities of the State relating to eligibility redeterminations conducted during such period.

New § 435.927 implements and interprets the reporting requirements in section 1902(tt)(1) of the Act. The required reporting will help CMS and others to monitor State actions during the unwinding period and beyond because it includes reporting on metrics such as the number of individuals disenrolled from Medicaid or CHIP and certain information about transitions from Medicaid or CHIP coverage to coverage through an Exchange. Reviewing and publishing these monthly data will give CMS and the public information to help hold States accountable for following redetermination requirements and will promote transparency.

CMS interprets section 1902(tt)(1) of the Act to require that States report data representing the activities conducted during each month of the designated time period. 8 However, CMS does not believe the provision requires that States must submit all the required monthly reports by June 30, 2024, because it will take States time to assemble, review, and submit data from the months for which they are reporting. For example, States must report on activities occurring in June 2024, but the submission of that monthly report could occur after June 30, 2024, to allow the State time to collect, review, and submit the data. 9 This is reflected in new § 435.927(c), which requires States to report certain data representing activities conducted by a State during the time period beginning April 1, 2023, and ending June 30, 2024.

To help ensure that CMS and the public can use and understand the data, avoid redundancy, and for purposes of practicality, CMS is interpreting the data elements required under section 1902(tt)(1) of the Act differently in § 435.927(d) depending on the element. Section 1902(tt)(1) of the Act directs the Secretary to make public reports with data “relating to eligibility redeterminations,” but CMS is not interpreting all the reporting elements listed in the subsequent subparagraphs to be limited to data related to such redeterminations. Specifically, CMS is interpreting the reporting elements listed in section 1902(tt)(1)(A), (B) and (D) of the Act to represent only those individuals who are subject to Medicaid or CHIP redeterminations but is not interpreting the elements listed in section 1902(tt)(1)(C) or (E) of the Act to be limited to reporting on such individuals.

Paragraphs (A) and (B) of section 1902(tt)(1) of the Act require States to report on certain data elements for persons with coverage for medical assistance, child health assistance, or pregnancy-related assistance, which CMS interprets to refer to people with Medicaid or CHIP coverage, including pregnancy-related coverage in both programs. The data elements required under paragraphs (A) and (B) are as follows: the number of eligibility renewals initiated, beneficiaries renewed on a total and ex parte basis (that is, based on available reliable information without contacting the individual consistent with § 435.916(a)(2)), individuals who were disenrolled for any reason, and the number of individuals disenrolled for procedural reasons. These data points are all the direct result of Medicaid or CHIP eligibility redetermination actions and thus new § 435.927(d)(1) through (5) require States to report this information only for people undergoing Medicaid or CHIP redeterminations.

Similarly, paragraph (D) of section 1902(tt)(1) of the Act requires States to report the number of individuals whom a Federal or State-based Exchange determined eligible for a qualified health plan or a Basic Health Program (BHP), 10 as well as the number of individuals who selected a qualified health plan or enrolled in a BHP (section 1902(tt)(1)(D)(i) and (ii) of the Act specifically require data related to BHPs). Paragraph (D) of section 1902(tt)(1) of the Act does not specify that these data be limited only to numbers of individuals whose eligibility had been redetermined by the Medicaid program. However, these data elements are only useful to CMS in understanding “the activities of the State relating to eligibility redeterminations,” as directed by section 1902(tt)(1) of the Act if the data are limited to Medicaid and CHIP beneficiaries who have undergone an eligibility redetermination. These data will help demonstrate if beneficiaries found ineligible for Medicaid and CHIP during the redetermination process are able to find other coverage on Exchanges or BHPs and will also help CMS and other interested parties identify States in which transitions to Exchange coverage are relatively successful and States in which such transitions may not be as successful. These data will be most useful for oversight of States' redetermination processes if they are limited to the numbers of individuals' accounts that were transferred to an Exchange or BHP because of a redetermination under Medicaid or CHIP. To include other transfers (those of consumers who were not enrolled in Medicaid or CHIP at the time and who newly apply directly with their State agency and are determined ineligible) would not help to illuminate “eligibility redeterminations,” because new applicants are not in a position to lose Medicaid or CHIP coverage. Therefore, in new § 435.927(d)(10) and (11), we require the reported data described in section 1902(tt)(1)(D) of the Act to reflect Medicaid/CHIP redeterminations.

In previous guidance, 11 we listed the reporting elements under section 1902(tt)(1) of the Act related to Exchanges and the anticipated data sources for obtaining the data for these elements. Specifically, in the January 2023 SHO letter, in the first column of “Table 2: Reporting Elements Under Section 1902(tt)(1) for the Period from April 1, 2023, through June 30, 2024, and Corresponding Data Sources,” we stated that for States with Exchanges that use the Federal Exchange eligibility and enrollment platform (including Federally-facilitated Exchanges (FFEs) and SBEs on the Federal platform (SBE-FPs)) we anticipated that CMS would report these data on behalf of States and that we intended to limit the data to information that is the result of a Medicaid or CHIP redetermination (which would exclude data resulting from a new Medicaid or CHIP application). In contrast, for SBEs with their own platforms that use either a non-integrated or integrated eligibility system, we inadvertently did not make such a distinction. 12 Rather, column one in Table 2 of the January 2023 SHO letter suggests that the reporting elements would apply to Exchange activity resulting from all Medicaid or CHIP applications. However, in the “SBE Priority Metrics: Medicaid/Children's Health Insurance Program (CHIP) Continuous Enrollment Condition Unwinding Overview and Template 1.0 User Guide (version 1.0, 5/19/2023),” which is cited in guidance that we released on June 30, 2023, 13 we specified that SBEs will report only those required data elements that result from Medicaid or CHIP redeterminations. As a result, although the labeling in the first column of the table in the January 2023 SHO letter is inconsistent, the definitions of the required State data are consistent across types of Exchanges, and therefore the data collected and reported will be consistent across types of Exchanges, and in all cases, including for SBEs not using the Federal platform, will be limited to information related to Medicaid or CHIP redeterminations. Section 435.927(d)(10) and (11) reflect this.

As noted, in the January 2023 SHO letter, CMS identified the reporting requirements under section 1902(tt)(1) of the Act that relate to Exchanges. Consistent with CMS' stated expectations in that SHO letter, CMS will report data on behalf of States with Exchanges that use the Federal eligibility and enrollment platform (including FFEs and SBE-FPs) since CMS operates the Federal eligibility and enrollment platform. Therefore, States do not have to report the data, and we are not including in this rule any provisions implementing the requirements under section 1902(tt)(1) of the Act that apply to States with Exchanges that use the Federal eligibility and enrollment platform. Section 435.927(d)(10) and (11) describe the reporting requirements that apply to States with SBEs that do not use the Federal platform.

Section 435.927(d)(10) and (11) also reflect certain practical and operational differences between SBEs based on whether the Exchange eligibility system is integrated with the State's Medicaid and/or CHIP eligibility systems. Specifically, some SBEs have integrated eligibility systems but others do not. As Congress recognized in section 1902(tt)(1)(D)(i) and (ii) of the Act, there is no need for an Exchange with an integrated eligibility system to report account transfers from the Medicaid and/or CHIP agency to the Exchange, whereas that data point is relevant for Exchanges without integrated eligibility systems.

In contrast to how we are interpreting section 1902(tt)(1)(A), (B), and (D) of the Act, we are not interpreting section 1902(tt)(1)(E) of the Act to be limited to describing only information about a Medicaid or CHIP redetermination. States are required under section 1902(tt)(1)(E) of the Act to report data on total call center volume, average wait times, and average abandonment rate. For these reporting elements, it is impractical to limit the measures only to data related to eligibility redeterminations. States do not always identify the purpose of individual calls to call centers, calls can address multiple purposes and beneficiaries, and reprogramming call trees and retraining staff could take months for States to operationalize, if required. As the period for which States are required to report these data under section 1902(tt)(1)(E) of the Act has already begun and is time-limited, it is impractical to limit the collection of the call center data required under 1902(tt)(1)(E) of the Act to only those calls related to individuals' eligibility redeterminations. Furthermore, these call center metrics are useful because they illustrate the extent to which all beneficiaries, including those whose eligibility is being redetermined, can access assistance. Accordingly, new § 435.927(d)(7) through (9) are not limited to just call center information related to redeterminations.

CMS is also not interpreting section 1902(tt)(1)(C) of the Act to be limited to describing only information about a Medicaid or CHIP redetermination. Section 1902(tt)(1)(C) of the Act requires States to report on the number of individuals enrolled in a separate CHIP program under section 2101(a)(1) of the Act. Broadening the data collected under paragraph (C) to include the total number of enrollees in a separate CHIP, not just those enrolling subject to a Medicaid or CHIP eligibility redetermination, provides useful information. In addition to being new data that is not publicly reported elsewhere, the data helps CMS and others identify whether separate CHIP programs' total enrollment levels are changing during the applicable period, which might indicate whether individuals are transitioning to CHIP from the Medicaid program. New § 435.927(d)(6) therefore refers to reporting on total enrollment in separate CHIPs.

Despite not being limited to information on redeterminations, data elements reported under section 1902(tt)(1)(C) and (E) of the Act are still useful for purposes of providing transparency on States' activities to conduct redeterminations. State Medicaid agency operational data on call center activity—call volume, average wait times, and average abandonment rates—help illuminate beneficiaries' access to information and ability to receive assistance from the State, as well as the eligibility process generally. Information on the enrollment levels for separate CHIP programs helps identify trends in enrollment that could signal whether a State is not performing redeterminations or transitioning eligible individuals from Medicaid to CHIP.

All the data States must report under the requirements of section 1902(tt)(1) of the Act are already being reported through existing data reports collected by CMS. For efficiency and to improve standardization (and hence, comparability) of the data, and because the applicable statutes, regulations, and other guidance governing CMS' use of the data collected through those existing data sources permit this, CMS is not requiring States to submit separate or additional reports to CMS to comply with section 1902(tt)(1) of the Act. 14 Rather, CMS believes the requirements of section 1902(tt)(1) of the Act can be met through compliance with the following existing, CMS-approved data reporting processes: the Unwinding Eligibility and Enrollment Data Reporting (also referred to as the Unwinding Data Report), Medicaid and CHIP Eligibility and Enrollment Performance Indicator Data (PI data), the Transformed Medicaid Statistical Information System (T-MSIS), and SBE Priority Metrics. 15 Additionally, as described previously, the required data under section 1902(tt)(1) of the Act that apply to States with Exchanges that use the Federal eligibility and enrollment platform will be reported by CMS. Under section 1902(tt)(1) of the Act, CMS will publish all required data after a period of time to allow for data quality and validation reviews.

Section 1902(tt)(1) of the Act requires States to submit the required monthly data on a timely basis but does not include a definition of timely or standards for completeness and accuracy. CMS already collects the required data via existing processes, and the timeliness, completeness, and quality specifications for data submitted via those existing processes have generally been defined previously. 16 Under this regulation, States will generally submit data in accordance with these existing timelines and specifications unless CMS has approved an alternative process or timeline for reporting, in which case the State must submit the data according to any alternative specifications CMS approved as part of the alternative process or timeline.

As specified in § 435.927(b)(1), CMS will consider data to be timely when it is submitted by the deadline outlined in the applicable existing reporting process specifications, with some variations for T-MSIS data and to permit States to submit data according to alternative processes and timelines approved by CMS. CMS will approve these alternative processes and timelines when, as discussed below, a State is making a good faith effort to meet the requirements despite facing significant challenges that interfere with its ability to do so. As an example of how a deadline outlined under other existing reporting process specifications might apply here, the specifications for PI data generally require States to submit data by the 8th of each month;  17 thus under § 435.927(b)(1), States would report these PI data on a timely basis under section 1902(tt)(1) of the Act if they reported them by the 8th of each month. The rule also, however, includes a variation on how the existing T-MSIS reporting timeline would apply for purposes of section 1902(tt)(1) of the Act data because, in order for T-MSIS data to be useful for section 1902(tt)(1) of the Act purposes, these data must be reported under a different timeline. Specifically, to publicly report data under section 1902(tt)(1)(D)(i) of the Act, CMS will use T-MSIS data to match the records of Medicaid and CHIP beneficiaries to data from the FFEs and SBEs-FPs and identify the number of accounts that are received at these Exchanges due to a Medicaid/CHIP redetermination. Using these data, CMS can determine the other metrics listed under section 1902(tt)(1)(D)(i) of the Act, such as the total numbers of these individuals who apply for and are determined eligible for a qualified health plan. CMS will also use T-MSIS data to publicly report data on the number of separate CHIP enrollees for each State, as required under section 1902(tt)(1)(C) of the Act. CMS already requires that States maintain current data submissions by submitting T-MSIS data monthly before the last day of the subsequent month, although States are not considered to be out of compliance for T-MSIS reporting until data submissions are behind by 2 or more months. As reflected in § 435.927(b)(1)(ii), due to the time-sensitive nature of these calculations and the need for up-to-date data, States that do not submit T-MSIS data monthly by the last day of the subsequent month may be subject to the FMAP reduction under section 1902(tt)(2)(A) of the Act or other corrective action under section 1902(tt)(2)(B) of the Act. For example, T-MSIS data reflecting March 2024 activities will be due by the end of April 2024, under § 435.927(b)(1)(ii).

CMS recognizes that some States might encounter unusual circumstances that interfere with reporting using existing CMS-approved processes or that impede a State's ability to meet the deadlines in § 435.927(b)(1)(i) and (ii). For example, States may experience unforeseeable or unavoidable challenges such as a natural disaster or unplanned systems outages, or may be working to resolve significant foreseeable challenges, such as a known and reported major operational or systems issue that impacts the State's ability to submit timely and accurate data and that the State is working to remediate but needs additional time to fix. As reflected in § 435.927(b)(1)(iii), (b)(3)(ii), (b)(4), and (c)(2), CMS would consider approving alternative timelines and processes for reporting required data if a State is making a good faith effort to submit the required data. For example, CMS would consider allowing such a State to submit certain summary data via email. As specified in § 435.927(b)(4), a good-faith effort means that (1) the State is experiencing significant, unforeseeable, or unavoidable challenges in complying with the reporting requirements of § 435.927(c), or is experiencing significant foreseeable challenges in complying and is working to remediate these challenges but needs additional time to address them; (2) the State requested and obtained approval from CMS to submit the data via an alternative process or timeline, and (3) the approved alternative process for submitting the data or timeline is sufficient to ensure CMS can obtain and use the data to meet CMS' obligations to report the data publicly per section 1902(tt)(1) of the Act. CMS will work with such a State to ensure that CMS has all the data it needs in order to meet its requirement to publicly report data under section 1902(tt)(1) of the Act and will only approve alternative timelines or reporting processes that permit CMS to meet this requirement.

States that are ultimately unable to submit required data or that submit data via an unapproved process or according to an unapproved timeline will be subject to the enforcement actions in section 1902(tt)(2) of the Act. Because section 1902(tt)(2)(A) requires CMS to take an FMAP reduction if States fail to meet the section 1902(tt)(1) of the Act reporting requirements for a quarter in the period beginning July 1, 2023, and ending June 30, 2024, CMS does not have the authority to exempt States from FMAP reductions for failure to meet the section 1902(tt)(1) of the Act reporting requirements during that timeframe. However, as indicated in § 430.49, CMS will consider certain mitigating circumstances before taking the various additional enforcement actions described in section 1902(tt)(2)(B) of the Act.

The regulation also provides in § 435.927(b)(2) that in order to be considered “complete” for purposes of public reporting under section 1902(tt)(1) of the Act, States must submit every data element (although in some cases, as noted above, certain elements may be submitted on a different or later timeframe than others, subject to CMS approval). A State that ultimately fails to report one or more required data elements would be subject to the FMAP reduction under section 1902(tt)(2)(A) of the Act if the State's noncompliance was for a quarter during the period from July 1, 2023, through June 30, 2024. Such a State might also be subject to other enforcement actions under section 1902(tt)(2)(B) of the Act; these are discussed in section II. of this rule.

Furthermore, in § 435.927(b)(3), the regulation provides that to be considered of “sufficient quality,” the State must report data that adheres to specifications outlined in previously existing regulation or guidance for each of the CMS-approved processes, or data that adheres to the specifications outlined in an alternative process approved by CMS. Existing reporting processes are governed by detailed instructions that outline how and what States should report and help ensure that States are reporting consistent data that CMS can publicly report, consistent with requirements under section 1902(tt)(1) of the Act.

New section § 435.927(c) implements the reporting requirements in section 1902(tt)(1) of the Act in light of the interpretations that are discussed above and reflected in the other paragraphs of § 435.927. Section 435.927(c) specifies that States must submit to CMS the data described in § 435.927(d), and those data must be timely, complete, and of sufficient quality (as those terms are defined in § 435.927(b)). It further provides that States must submit the required data via existing CMS-approved processes or through alternative processes approved by CMS when a State is making a good faith effort as defined in § 435.927(b)(4).

If a State does not satisfy the reporting requirements in section 1902(tt)(1) of the Act for any fiscal quarter that occurs during the period that begins on July 1, 2023, and ends on June 30, 2024, section 1902(tt)(2)(A) of the Act requires CMS to reduce the FMAP determined for the State for the quarter under section 1905(b) of the Act by the number of percentage points (not to exceed 1 percentage point) equal to the product of 0.25 percentage points and the number of fiscal quarters during such period for which the State has failed to satisfy such requirements. We are implementing this FMAP reduction along with our interpretation of how it is to be applied in new § 435.928. 18 In § 435.928(b)(1), CMS interprets the statutory reference to the FMAP determined for the State under section 1905(b) of the Act to mean the State-specific FMAP defined in the first sentence of section 1905(b) of the Act. 19 In § 435.928(b)(4), CMS interprets the statutory language regarding the amount of the reduction to mean that when States are noncompliant in multiple quarters, the FMAP reduction will increase by 0.25 percentage points for each successive quarter of noncompliance, regardless of whether the noncompliant quarters are consecutive. For example, if a State were out of compliance for three quarters, the reduction would be: a 0.25 percentage point FMAP reduction in the first quarter of noncompliance; a 0.50 percentage point FMAP reduction in the second quarter of noncompliance; and a 0.75 percentage point FMAP reduction in the third quarter of noncompliance. In no case, however, would the FMAP reduction for any single quarter exceed 1 percentage point.

We acknowledge that the language of the statute would allow for an alternative interpretation that would require CMS to apply the same percentage point reduction to all of the quarters in which a State failed to comply with the reporting requirements. For example, if a State were out of compliance for three quarters, CMS could apply a 0.75 percentage point reduction to the State's FMAP in all three of the applicable quarters. To come to that conclusion, CMS would have to interpret the statute as requiring CMS either to apply the reduction to the relevant quarters multiple times, or to wait until the end of the period to apply the reduction. Neither of these alternative approaches supports transparency, as the total amount of the reduction would not be known until up to three quarters after the State is found to be noncompliant, making it difficult for States to budget for the amount of State share they would need for the four-quarter period.

As specified in § 435.928(b)(3), States that fail to report data according to the requirements in § 435.927 for a single month within a quarter will be subject to the FMAP reduction for the entire quarter. Section 1902(tt)(1) of the Act specifies that the FMAP reduction should be applied for each fiscal quarter. As such, the statute does not give CMS the authority to reduce a State's FMAP for a single month. 20

As noted in section I.A. of this rule, section 1902(tt)(2) of the Act includes new enforcement authority for CMS to use if it determines that a State is not in compliance with the reporting requirements in section 1902(tt)(1) of the Act, Federal eligibility redetermination requirements, or both. New § 430.49(b) provides guidelines for how CMS will exercise the CAP authority created by section 1902(tt)(2)(B) of the Act. Specifically, § 430.49(b)(1) provides that if CMS determines that, during the period between April 1, 2023, and June 30, 2024, a State has been out of compliance with the reporting requirements in section 1902(tt)(1) of the Act (as implemented in § 435.927 of this rule) or Federal eligibility redetermination requirements (as defined at § 430.5, as amended by this rule), then, after considering whether mitigating circumstances (discussed in section II.E. and § 430.49(d) of this rule) apply, CMS will determine whether to require the State to submit and implement a CAP.

New § 430.49(b)(2) specifies that CMS will issue a written notice to the State informing the State of CMS' finding of noncompliance and the requirement to submit and implement a CAP, or to revise and resubmit an existing approved CAP to address newly identified violations of the Federal reporting and/or redetermination requirements, unless consideration of certain mitigating circumstances has led CMS to delay or forgo requiring a CAP. The notice will: (1) explain the violation of Federal redetermination or reporting requirements that CMS has identified and the basis for CMS' finding; (2) inform the State of the requirement to submit and implement a new CAP or to revise and resubmit an existing CAP, with instructions on the method and deadline by which the State must submit a CAP to CMS; and (3) explain the additional enforcement actions that CMS may pursue if the State fails to submit or implement the CAP, including if CMS disapproves the State's submitted CAP or if the State fails to meet the requirements set forth in the approved CAP, in accordance with the requirements at section 1902(tt)(2)(B)(ii) of the Act, as interpreted in this rule and discussed in section II.D. and at § 430.49(b) of this rule.

As set forth in new § 430.49(b)(3), a CAP must include specific content to be approved by CMS. First, the CAP must identify actions the State will take immediately, which means as soon as feasible, if needed to prevent further harm or risk of harm to beneficiaries while it implements the CAP. Harm to beneficiaries in this context includes increased burden for beneficiaries in completing the renewal process, loss of coverage at renewal for individuals who continue to meet the substantive eligibility criteria and whose eligibility should otherwise be retained but for failure to meet a procedural requirement, and delays in access to coverage or care. Actions to prevent harm, or risk of harm, to beneficiaries could include, if needed and appropriate, reinstatement of coverage for impacted individuals, suspension of procedural disenrollments, and adoption of alternative processes or procedures under section 1902(e)(14)(A) of the Act or other alternative strategies approved by CMS.

Next, the CAP must detail steps the State will take to ensure compliance with Federal redetermination and/or reporting requirements, such as new policies, procedures, operational processes, or systems changes it will implement. The CAP must also include key milestones and a detailed timeline for achieving compliance, as well as a plan for communicating the steps in the CAP to: (1) State staff, including State Medicaid agency staff and staff of any agency or other entity that is determining eligibility under a delegation of authority under § 431.10(c)(1)(i), (2) CMS, and (3) beneficiaries, as applicable. CMS believes that an approvable CAP must include these elements because they will allow CMS to assess at the outset whether the State's CAP appears sufficient to resolve the noncompliance and to monitor whether the State is making sufficient progress in its implementation. Additionally, these elements are consistent with those that CMS has historically required when requesting CAPs under section 1904 of the Act and § 430.35 for failure to administer the State Plan in compliance with the provisions in section 1902 of the Act, violations of which may result in withholding of FFP.

New § 430.49(b)(4) of this rule implements section 1902(tt)(2)(B)(ii) of the Act by requiring the following timeline for submission, approval, and implementation of a CAP after the State receives notice that CMS is requiring it to implement a CAP:

(1) The State must submit a CAP that includes the minimum elements described in § 430.49(b)(3) to CMS not later than 14 calendar days after receiving CMS' written notice.

(2) CMS must approve or disapprove the proposed CAP within 21 calendar days of the date the CAP is submitted by the State. If CMS does not approve or disapprove the CAP within 21 calendar days of submission, the CAP will be deemed approved.

(3) The State must begin implementation of the CAP not later than 14 calendar days after receiving CMS approval or after the CAP is deemed approved.

We interpret the statute to refer to calendar days and to authorize CMS to provide that CAPs not expressly approved or disapproved within 21 calendar days will be deemed approved. (Henceforth in this rule, “days” refers to calendar days unless otherwise noted.) CMS is providing for deemed approval so that CMS and States can take quick action to implement any strategies or system changes needed to correct identified violations of the reporting or redetermination requirements to promote sustained compliant operations and beneficiary coverage.

Section 430.49(b)(5) provides that CMS will consider the following in determining whether to approve a CAP submitted by a State: (1) whether the CAP will promptly eliminate or minimize any harm or risk of harm to beneficiaries, including increased burden for beneficiaries in completing the renewal process, loss of coverage at renewal for individuals who continue to meet the substantive eligibility criteria and whose eligibility should otherwise be retained but for failure to meet a procedural requirement, and delays in access to coverage or care, due to the noncompliance to be addressed by the plan; and (2) whether the CAP will result in the State achieving compliance in a reasonable time, taking into account systems challenges and circumstances faced by the agencies involved. Systems challenges that could impact the timeframe in which a State can achieve compliance could include, for example, the timeframe needed to update coding for a State's eligibility system, the need to create policy manuals to guide workers on use of new system functionality, training workers on new system changes, and/or the creation and implementation of new forms or functions to receive or track information in the renewal process.

As discussed further in section II.E. and § 430.49(d)(1) and (2), CMS will consider certain mitigating circumstances before issuing a notice directing a State to submit a CAP in accordance with the requirements at § 430.49(b).

Under section 1902(tt)(2)(B)(iii) of the Act, as implemented at § 430.49(c) of this rule, if a State fails to submit or implement an approved CAP, including if CMS disapproves the State's submitted CAP or if the State fails to meet the requirements set forth in the approved CAP, in accordance with section 1902(tt)(2)(B)(ii) of the Act, the Secretary may, after consideration of any mitigating circumstances described in section II.E. of this rule and at new § 430.49(d)(3), and in addition to any reduction applied to the FMAP under section 1902(tt)(2)(A) of the Act, take either or both of the following actions: (1) require the State to suspend making some or all disenrollments from Medicaid that are for procedural reasons until the State takes appropriate corrective action; (2) impose CMPs of not more than $100,000 for each day a State is not in compliance.

Under new § 430.49(c)(2), prior to taking either or both of these enforcement actions, CMS will issue a notice to the State. Such notice will include: (1) a description of the enforcement actions CMS is taking and the basis for such action(s); (2) whether CMS is requiring suspension of some or all procedural disenrollments, and in the case of a partial suspension, the affected populations; (3) the date on which the State must begin suspending procedural disenrollments, if applicable; (4) the daily amount of any CMPs imposed, the date that assessment of the CMPs will begin, the timeline for payment (including information on how the timeline for payment would be affected by an appeal), and instructions on how to submit payment; (5) the steps the State must take to cure its noncompliance and for CMS to lift the enforcement action(s); (6) information on the State's appeal rights as described in section II.G and at new § 430.49(f) of this rule, including the deadline to submit an appeal request and the effect of requesting an appeal on the applicability of any enforcement actions pending the decision in such appeal. The notice must also provide that the decision outlined in the notice is final unless it is timely appealed as described in § 430.49(f). Section 430.49(c)(2)(ii) also provides that CMS may issue additional notices to take additional actions (for example, increasing CMPs or adding or increasing the scope of a suspension of procedural disenrollments) if CMS identifies additional violations of a CAP's provisions. Such notices will meet the requirements outlined in § 430.49(c)(2)(i).

Suspension of Procedural Disenrollments. As noted in this rule, if CMS finds that a State has failed to submit or implement an approved CAP in accordance with the requirements in section 1902(tt)(2)(B) of the Act, section 1902(tt)(2)(B)(iii) of the Act provides that CMS may require the State to suspend either some or all procedural disenrollments of Medicaid eligibility. We believe it is appropriate to target any procedural disenrollment suspension to protect those beneficiaries impacted by the State's noncompliance. If CMS requires the State to suspend procedural disenrollments, the scope of that requirement will be based upon the impact of the noncompliance that led to the requirement for the CAP. Accordingly, under § 430.49(c)(3)(i), if the impact of the noncompliance requiring a CAP affects a substantial number of (meaning all or nearly all) individuals in the State who are or should have been found eligible for Medicaid, CMS may require the State to suspend all procedural disenrollments. If the impact of the noncompliance is limited, for example to a specific population or geographic area, CMS may limit the suspension only to the affected population(s). In cases where CMS initially limits the requirement to suspend procedural disenrollments to an affected population or area, CMS may later opt to require the State to suspend all procedural disenrollments if CMS subsequently determines that the impact of the noncompliance is greater than was initially determined or if the State fails to comply with the initial requirement to suspend procedural disenrollments for a targeted population or area in accordance with the notice issued under § 430.49(c)(2). In these circumstances, CMS will issue a subsequent notice under § 430.49(c)(2).

CMS believes that suspension of procedural disenrollments is an effective and necessary enforcement tool to protect beneficiaries from harm due to a State's noncompliance and, except in one limited circumstance discussed in section II.E of this rule, will always require States that have failed to submit an approvable CAP or to implement an approved CAP to suspend some or all procedural disenrollments.

After CMS requires a State to suspend procedural disenrollments, the State must continue suspending procedural disenrollments until CMS determines that the State has taken appropriate corrective action. Once CMS is satisfied that the State has taken appropriate corrective action, CMS will inform the State of the date on which it may resume procedural disenrollments. See section II.F of this rule for a discussion of the circumstances under which CMS will lift enforcement actions taken pursuant to an enforcement notice issued in accordance with § 430.49(c).

Civil Money Penalties. If CMS finds that a State has failed to submit or implement an approved CAP, including if CMS disapproves the State's submitted CAP or if the State fails to meet the requirements set forth in the approved CAP, in accordance with the requirements in 1902(tt)(2)(B)(ii) of the Act and as interpreted at § 430.49(b) of this rule, CMS may also issue notice to the State in accordance with § 430.49(c)(2) indicating that CMS will impose CMPs.

The CMPs authorized under section 1902(tt)(2)(B)(ii) are a tool to compel State compliance with corrective action as quickly as possible, given the urgency of preventing unauthorized loss of coverage for beneficiaries during a period that generally aligns with States' unwinding periods. For this reason, CMS is adopting a penalty formula that will impose a lower penalty for States with a shorter timeframe of noncompliance and increase the penalty over time for States that do not return to compliance. CMPs will start accruing 5 days after the date of the notice and become payable 60 days after the date of the notice, if not timely appealed, or 60 days after issuance of a final determination at the conclusion of any appeals pursuant to § 430.49(f). Under § 430.49(c)(3)(ii)(B) of this rule, CMS will impose CMPs for failure to submit or implement an approved CAP according to the following formula: Days 1-30 (after 5-day delay as specified in the enforcement notice): $25,000/day; Days 31-60: $50,000/day; and Days 61-until State comes into compliance with CAP requirements: $100,000/day. All CMP amounts provided in this rule will be adjusted annually in accordance with 45 CFR part 102.

New § 430.49(c)(2)(ii) provides that CMS may issue additional notices to take additional actions (including increasing CMPs or imposing or broadening the scope of a suspension of procedural disenrollments) if CMS identifies additional violations of CAP provisions. Such notices will meet the requirements in 430.49(c)(2)(i).

Noncompliant States will be charged CMPs daily until the State takes appropriate action to cure the noncompliance with the CAP requirements as outlined in § 430.49(e) and discussed in section II.F. of this rule. Under § 430.49(e)(2), once CMS is satisfied that the State has taken appropriate action to cure the noncompliance with the CAP requirements, CMS will inform the State of the total amount of CMPs that have accrued, the balance owed if the State has already begun payment, and the last day CMPs under the enforcement notice were imposed.

As provided in § 430.49(c)(4), if the State fails to suspend procedural disenrollments as required pursuant to a notice described in § 430.49(c)(2) or to pay CMPs as specified in that notice, or both, CMS may issue a subsequent notice under § 430.49(c)(2) to increase the CMPs to the maximum allowable daily amount, if not already reached, or may pursue additional enforcement action under section 1904 of the Act, including withholding some or all FFP for the period of noncompliance.

CMS intends to issue additional guidance following the issuance of this rule providing additional information regarding the process CMS will use to collect CMPs and any operational requirements for States to remit payment of CMPs.

As described previously, section 1902(tt)(2)(B) of the Act, as implemented in new § 430.49, gives CMS the authority to require States to submit a CAP for failure to meet reporting or Federal redetermination requirements and, if the State fails to submit or implement such CAP, including if CMS disapproves the State's submitted CAP or if the State fails to meet the requirements set forth in the approved CAP, in accordance with section 1902(tt)(2)(B)(ii) of the Act, to suspend procedural disenrollments, impose CMPs of up to $100,000 per day, or take both actions. While section 1902(tt)(2)(B) of the Act empowers CMS to require CAPs, suspend procedural disenrollments, and impose CMPs, the statute also gives the Secretary discretion to use this authority or not and to determine the amount of CMPs up to the statutory maximum. 21

This is a summary of the Commission's Report and Order, FCC 23-73, adopted September 21, 2023, and released September 22, 2023. The document is available for download at https://docs.fcc.gov/public/attachments/FCC-23-73A1.pdf. To request materials in accessible formats for people with disabilities, ( e.g., Braille, large print, electronic files, audio format, etc.) send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), or 202-418-0432 (TTY). A proposed rule relating to further expediting satellite and earth station application processing is published elsewhere in this issue of the Federal Register .

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

This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C. 3501-3520). In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

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

1. In this document, the Federal Communications Commission (Commission) advances opportunities for innovation in the new space age by taking measures to expedite the application processes for space stations and earth stations, consistent with the Commission's objective to “promote a competitive and innovative global telecommunications marketplace via space services.” Applications for space services before the Commission continue to increase in complexity and number. Concrete measures to expedite the initial processing of applications for authority to operate space and earth stations under part 25 of the Commission's rules are vital to supporting U.S. leadership in the growing space economy. Accordingly, the rule updates and policy changes the Commission adopts today will: (1) improve the process that Commission staff uses to review space and earth station applications for acceptability for filing and to place the applications on public notice; (2) eliminate processing rules that are no longer necessary; (3) establish timeframes for placing space and earth stations on public notice; and (4) advance other initiatives to expedite the processing of applications. In addition, as part of the Space Innovation agenda, the Space Bureau will undertake a Transparency Initiative. The goal of this initiative is to provide information and guidance, in a variety of forms, to interested parties so they can understand the Commission's procedures and what is needed to obtain authorization for their proposed space station and earth station operations. The Commission believes that this initiative will reduce administrative burdens on both applicants and staff and will further expedite the processing of applications.

2. To facilitate application filing and processing, the Commission has improved the standard forms for satellite and earth station applications (FCC Form 312, 312R, and Schedules A and S) and is currently working on improvements to its online filing system for such applications, the International Communications Filing System (ICFS). In addition, the Commission has regularly taken steps to streamline its part 25 rules. As part of previous streamlining efforts, the Commission adopted a 45-day expected period for placing on public notice applications both for initial space station authorizations and for modification of a space station authorization. The Commission also adopted an expected time of 60 days for acting on space station applications after the close of the comment period. For applications for special temporary authority (STA) for a space station, the Commission expected the application would be placed on public notice within 14 days of receipt (if public notice is required) and acted on within 30 days after the close of the comment period, or within 30 days of receipt if public notice is not required. In addition, expected processing times were also announced for earth station applications. These times were 45 days from confirmation of receipt of payment for placing applications for initial earth station authorizations or modifications on public notice, and 60 days after close of the comment period for action; 30 days from confirmation of receipt of payment for placing initial registrations of receive-only earth stations or modifications on public notice, and 45 days after close of comment period for action; and 14 days from confirmation of receipt of payment for applications for special temporary authority for earth stations, and 30 days after close of comment period for action, unless the application does not require public notice before action, in which case the expected time for action is 30 days of receipt. In all cases, the Commission's expectations applied to “straightforward applications that are not contested” and were set “barring any complication.”

3. As we enter the new space age, applications for space services before the Commission continue to increase in complexity and number. In response to this unprecedented era of growth in the space industry, the Commission launched the Space Bureau on April 11, 2023. Space activities are increasing in almost every industry sector. The Commission must, therefore, make expediting the processing of applications a priority of its Space Innovation Agenda. If the current rate of filings for applications continues in 2023, the Commission will receive approximately four times the number of space station applications and three times the number of earth station applications than it received in 2015. In addition, the complexity of applications continues to increase as new and novel space technologies are presented for consideration. The commercial space industry is evolving at a rapid pace, and it is critical that the Commission keeps up with the cadence of applications and complexity of regulatory issues presented.

4. The Notice of Proposed Rulemaking (NPRM) sought comment broadly on changes to Commission rules, policies, or practices to facilitate the acceptance for filing of space and earth station applications under part 25. In particular, the NPRM proposed to remove a procedural rule that formally prevents consideration of waiver requests for operations not in conformance with the International Table of Frequency Allocations. It also sought comment on whether the limits on applications for NGSO systems and unbuilt NGSO systems should be amended, and whether the Commission should provide greater transparency or certainty with respect to its expected application processing timelines. In response to the NPRM, 24 comments, 11 reply comments, and multiple ex parte notifications were filed.

5. An essential element of expediting the application process is to make it easier for applicants to understand what is required to have an application accepted for filing and to avoid the dismissal of an application. Accordingly, the Commission discusses the steps it takes today, and will take in the future, to provide transparency and guidance regarding Commission licensing procedures, as well as to reduce the risk of an application being dismissed, without considering the merits of the application, due to filing requirements that the Commission deems are no longer needed to serve the public interest.

6. The NPRM sought comment on whether there is additional guidance or other assistance that the Commission should provide to applicants to avoid required information being omitted in their initial filings. Omission of required information can result in delays in processing an application, or even in the dismissal of an application. Commenters who responded to the Commission's procedural and technical inquiries overwhelmingly support the proposal of the Commission issuing guidance on the application process.

7. The Commission believes that the licensing process for space and earth station applications can be expedited by making it more transparent and providing applicants with further guidance on the initial application stages, as several commenters have suggested. The Commission agrees with commenters that clarity and guidance on what is required for an application to be acceptable for filing will result in an increase in complete filings that can be swiftly accepted for filing, which will in turn expedite the processing of space and earth station applications. Clear and transparent guidance to the applicant will aid in expediting application processing for both the applicants and staff. Accordingly, the Space Bureau will undertake a Transparency Initiative to provide such guidance. The goal of this initiative is to provide information and guidance, in a variety of forms, to interested parties so they can understand the Commission's procedures and what is needed to obtain authorization for their proposed space station and earth station operations. The Commission believes that this initiative will reduce administrative burdens on both applicants and staff and will further expedite the processing of applications. The guidance will take a variety of forms, including “frequently asked questions” or helpful links on the FCC's website. In other cases, public workshops may be held to explain certain requirements.

8. The initiative will cover a variety of topics, for example, application completeness and orbital debris requirements. Additionally, when the Commission releases the updated International Communications Filing System (ICFS), the system will include multiple forms of guidance for users, including training videos for the ICFS application process and a helpful links page. The Commission believes that this Transparency Initiative will address many of the specific requests that commenters have identified in this record, facilitate new entrants into the space economy, and further expedite the Commission's processes to meet the needs of the innovative and expanding space sector.

9. In addition, the Commission will continue to consider various ways in which the Space Bureau can provide more clarity and guidance on the application process moving forward, including, for example, various methods for increasing transparency around the inter-bureau and inter-agency coordination process. The Commission expects this to be a continuing process and believes that this investment of time and resources will pay off in reducing staff time in reviewing and correcting incomplete applications and applicant time responding to staff requests for missing information, which will in turn expedite the processing of space and earth station applications. The Commission encourages stakeholders to discuss their needs for information and guidance directly with Space Bureau staff in order that they may be considered and addressed in ways that do not require a change in Commission rules.

10. The Commission received a wide variety of comments related to the NPRM's various procedural and technical streamlining questions including suggestions to provide certifications or fill-in template forms in lieu of narratives to the extent possible and SpaceX suggests this could be done as a way of standardizing orbital debris showings. The Commission declines to change showings that require a narrative to certifications at this time, noting that the Commission has recently taken additional steps to utilize certifications where appropriate, such as in the 2020 unified licensing proceeding, which included new certification options for earth station operators. Moreover, as EchoStar noted in its comments, certain showings require a more thorough and nuanced explanation than what could be contained in a certification. But the Commission agrees that providing applicants with more clarity and guidance on orbital debris plans will aid in Commission review, as SpaceX points out, and plans to incorporate such guidance into the Commission's Transparency Initiative.

11. The Commission finds that expediting the processing of space and earth station applications requires reducing the risk that an application will be dismissed before full consideration of the merits of the application, thereby necessitating refiling the application and restarting the application process anew. The Commission takes several actions below to address these issues in light of existing reasons for dismissal.

12. Existing rules provide that a space or earth station application is considered unacceptable for filing if the application is defective with respect to completeness of answers to questions, informational showings, internal inconsistencies, execution, or other matters of a formal character. The requirement that applications be “substantially complete” when filed has been in place since 1998 and ended the practice of reviewing the accuracy or merits of specific information in an application before placing it on public notice. Under the “substantially complete” standard, an application is reviewed to ensure that it contains all information required by the Commission's rules and, if an application fails to include any of the required information, the application is returned without prejudice as being unacceptable for filing.

13. The NPRM noted that in recent years, Commission staff have worked with applicants to correct omissions or inconsistencies in their applications in order for an application to be deemed acceptable for filing under Commission rules. The NPRM sought comment on this practice and potential alternatives that might speed up application review, such as dismissing applications that contained internal inconsistencies or omissions without prejudice to refiling or, conversely, loosening the standards for acceptability of filing.

14. After consideration of the record, the Commission will maintain the practice of not immediately dismissing applications that contain omissions or internal inconsistencies and instead working with applicants to correct such omissions or inconsistencies so that the application may be acceptable for filing. Most comments encourage the continuation of the practice of communicating with applicants and allowing them opportunities to cure small mistakes or omissions, instead of issuing dismissals. The Commission finds that dismissing space and earth station applications for even minor omissions and inconsistencies, without an opportunity to correct the deficiencies, is inconsistent with the Commission's goal of expediting the processing of space and earth station applications, since substantial time is required to dismiss and refile a corrected application. The Commission agrees that the same result can be achieved in less time by promptly reviewing the application for any deficiencies and communicating these deficiencies to the applicant, and by giving a limited time for the applicant to make corrections or to provide missing information.

15. In order to achieve the goal of expediting application processing, the Commission expects the Space Bureau will provide applicants with limited timeframes to respond to requests for additional information or to promptly rectify inconsistencies or omissions in the application. Limiting the time to respond will encourage applicants to file applications that are as complete and accurate as possible, with only minor errors or omissions that require correction in the limited timeframe for responding and will help ensure that a request for information does not result in unnecessary delay of processing the application if the applicant does not respond in a timely manner. Several comments support time limits for applicants to respond to Commission staff with additional information or corrections so as to avoid a drawn-out initial review process. Failure to respond within those timeframes will risk dismissal of the application under existing rules. Although some comments proposed specific deadlines for applicants to respond to staff inquiries, the Commission declines to adopt specific deadlines at this time. Space and earth station applications can vary greatly depending on the nature of the operations or whether the activities are novel or involve new technology. As such, it is important to allow some flexibility and case-by-case determinations on setting time limits for responses from applicants. The deadline for response will be communicated clearly to applicants as part of requests for additional information or notices to the applicant that there are errors, omissions, or inconsistencies that need to be resolved before finding the application to be acceptable for filing.

16. The Commission finds that it is unnecessary to change its rules in order to implement this practice. Although the existing rules state that an applicant will be dismissed for various omissions or internal inconsistencies, it does not preclude staff from allowing applicants the opportunity to cure omissions or internal inconsistencies before accepting the application for filing. The Commission expects that there will be prompt communications between staff and applicants in order to expedite the application process.

17. The Commission also received several comments on whether to loosen the standard for accepting applications for filing. AWS and OneWeb put forth what they deem to be faster processes for placing applications on public notice. AWS suggests that, at least for earth station applicants, applications could be automatically placed on public notice after a designated period and applicants could work to cure any errors or omissions during the public notice period. OneWeb advocates for a “check box” determination method for placing applications on public notice and proposes revisions to § 25.112(a)(1) to enable quicker determination. Boeing also suggests that the Commission could place applications on public notice without necessarily first finding them to be acceptable for filing. Conversely, Viasat asserts that loosening the acceptability for filing standards would not lead to streamlining, but rather, would result in larger numbers of deficient or incomplete applications being reviewed by Commission staff and third parties, wasting limited resources. Similarly, Verizon/AT&T assert that more stringent standards would reduce processing times by incentivizing applicants to submit complete and accurate applications in the first instance if they believe the Commission is more likely to dismiss an application if it is not complete. Kuiper asserts that applications should be complete at the time of filing to avoid inefficiencies in review and suggests that the Commission require applicants to include a checklist table in their application demonstrating completeness and compliance with all relevant rules. Others do not advocate for strengthening or loosening standards, but rather assert that the Commission could streamline the acceptability for filing process through guidance, by more clearly articulating the Commission's “substantially complete” threshold.

18. The Commission finds that it is not necessary to loosen its acceptability for filing standards in order to expedite the processing of space and earth station applications. The Commission has previously explained what is meant by “substantially complete,” and continues to hold to this understanding: “[t]he applications must be complete in substance, and must provide all the information required in the application form.” This is a reasonable standard for finding that an application is acceptable for filing, and acceptance for filing has legal consequences for a GSO-like space station's place in the queue or an NGSO-like space station's place in a processing round. As such, the Commission continues to find that there is merit to holding applications to a “substantially complete” standard and to review an application to ensure that it complies with this standard before accepting the application for filing. The Commission is not convinced that looser standards will result in an expedited process, and agrees with commenters who note that looser standards on the front end of application review will likely lead to a more burdensome review of incomplete applications at later stages of the application process. Although the Commission recognizes the interest in straightforward review, such as via a “check box” determination, part 25 applications cover many types of operations, which makes it infeasible to capture all elements of such diverse operations in a “check box” format. The Commission is also not convinced that more stringent acceptability for filing standards will expedite application processing. Rigidity in the initial application review can lead to premature dismissals, which in turn will take more of staff and applicants' resources. Instead, the Commission believes that the process can be expedited by providing applicants at the initial application stages with greater transparency and guidance, which applicants will be able to access on the Commission's website as part of the Space Bureau's Transparency Initiative.

19. Finally, numerous commenters support changes to the license application forms that would reduce duplication and the need to manually input technical information in various locations, which would reduce the risk of missing or inconsistent information being submitted. Likewise, commenters generally support the inclusion of compliance checks into the application process. Specifically, numerous commenters have suggested that the Commission consider these types of updates to specific licensing forms, including the Form 312, the Schedule S, and the Schedule B. Additionally, although the Commission did not specifically ask about updates to ICFS, several commenters suggest that the Commission consider updates or a general overhaul of the filing system.

20. The Commission observes that the electronic filing system used for space and earth station applications, ICFS, is already being updated in ways that respond to many of the issues that commenters raise regarding the technicalities of the application process. As a result of these updates, ICFS will have several new features for application forms, including automatic error notifications in the Form 312, data entry alerts to misinformation, and an overall validation prior to submitting a filing. There also will be some pre-filled sections of the application form based on previously entered data. With regard to modification or amendment applications, applicants will be presented with a pre-filled form including the information from their current authorization or pending application that they seek to modify or amend. This pre-filled form can then be adjusted in the areas that the applicant seeks to modify or amend. Additionally, the Schedule B and Form 312 will allow users to delete or remove sections or data that are no longer needed. The Commission is also updating the fields in the Schedule S to better align with technical rules. The Commission finds that these updates address many, but not all, of the changes recommended by the comments. The Space Bureau expects to continue dialogue with system users about possible further improvements after the initial modifications of ICFS are introduced.

21. Currently, with the exception of applications for streamlined small satellite and small spacecraft applications, applications will be dismissed if they request authority to operate a space station in a frequency band that is not allocated internationally for such operations under the Radio Regulations of the International Telecommunication Union. The Commission adopted this rule in 2003, with the purpose of eliminating premature applications filed prior to the ITU adopting a necessary frequency allocation, which can take several years. At the time, the Commission had reasoned that applications that were filed far in advance of adoption of an ITU allocation had a likelihood of being placeholder applications for purposes of warehousing spectrum.

22. The Commission adopts the NPRM's proposal to amend the license application acceptability for filing criteria to place waiver requests for satellite operations not in conformance with the International Table of Frequency Allocations on an equal procedural footing with other requests for waiver of substantive Commission rules. Comments widely support adoption. Furthermore, the limitation on acceptance of applications has caused delay in review of applications for acceptability for filing and has complicated review of space station applications, which is contrary to the goal of expediting the space station application process. In addition, as the Commission observed when it adopted streamlined rules for the processing of applications for small satellites, there may be benefits associated with operations not consistent with the current International Table of Frequency Allocations in certain circumstances. Finally, Commission experience over the last twenty years since the rule was adopted supports the finding that the concerns about warehousing of spectrum and orbital resources through placeholder applications have been effectively addressed through the Commission's milestone and bond requirements, which makes this rule unnecessary. The Commission finds that adoption of this proposal will help avoid the dismissal of an application for failure to meet a rule that is no longer needed to protect against placeholder applications that warehouse spectrum resources.

23. Accordingly, the Commission amends § 25.112 of Commission rules to delete subparagraph (a)(3) and will no longer immediately dismiss applications that request authority to operate a space station in a frequency band that is not allocated internationally for such operations under the ITU Radio Regulations when the applications include a request for waiver of the allocation. Section 25.112(b) also is revised accordingly to remove reference to paragraph (a)(3) of § 25.112. The Commission emphasizes that this decision to allow the Commission to review such applications is not intended to alter the allocation status of these bands. In considering the merits of such requests, the Commission recognizes its obligations as a ratifying member of the ITU, and as the regulatory body that allocates spectrum for commercial use in the United States. Accordingly, any application that includes waiver requests for satellite operations not in conformance with the International Table of Frequency Allocations would need to demonstrate sufficient justification to support the waiver request in light of Article 4.4 of the International Telecommunication Union Radio Regulations (ITU R.R.), which states that Administrations shall not assign frequencies to a station in derogation of the International Table of Frequency Allocations, except on the express condition that the station's use of the frequencies shall not cause harmful interference to, and shall not claim protection from harmful interference caused by, a station operating in accordance with the ITU R.R. For example, the Commission agrees with comments that urge, to the extent that there are co-channel operations that might be the subject of potential interference, the request for waiver should address those operations. The Commission may also consider, on a case-by-case basis, as some have suggested, opening rulemaking proceedings and accounting for any relevant ITU process to address potential related allocation issues if appropriate. Moreover, the Commission expects that such applicants would be engaged contemporaneously in activities to work toward modification of the International Table of Allocations at the ITU, and the applicants should consider describing the status of such efforts in their application. The Commission also encourages entities that are considering making a request for authorization for a non-conforming operation to discuss the request with Commission staff prior to filing.

24. A few commenters suggest that the Commission adopt specific requirements related to these non-conforming operations beyond the Commission's rules for considering waivers, and propose other limitations, including for protecting against potential interference to operations in the radioastronomy service (RAS) and earth exploration-satellite service (EESS). Other commenters argue that interference concerns to such services can be managed through coordination. The Commission declines to adopt such proposals and is not convinced that adopting strict engineering protocols is a necessary or appropriate means for preventing interference for every operation, or for operations in certain services. Further, it will not result in expediting the licensing process for applicants or the Commission. Instead, the Commission can process such requests on a case-by-case basis, taking into account the facts and circumstances of individual waiver requests and the potential for harmful interference in specific cases. Based on the Commission's experience in instances where applicants have been granted limited non-conforming operations, such as in the small satellite context, any waivers that the Commission determines to grant would include non-interference conditions and coordination conditions as necessary.

25. Furthermore, the Commission is not convinced that caps on the number of waivers it grants or on the duration of operations will prevent the potential for harmful interference, and such caps will not further Commission goals to streamline the licensing process. Rather, the Commission emphasizes its review on technical showings of non-interference and on coordination requirements, which will better prevent harmful interference in these circumstances. Similarly, the Commission will not exclude entire bands from consideration for non-conforming use, as some commenters suggested. To preemptively exclude certain bands from possible waiver request consideration would undercut goals of fostering innovation in the satellite industry since the Commission cannot predict what bands will support future development. The Commission believes that the requirements for demonstrating non-interference and coordination, along with the Commission's waiver standards, will provide sufficient protections to existing services.

26. Commission rules currently contain procedural safeguards against applications that are considered more likely to be speculative or intended to warehouse spectrum resources, including the prohibition on one party having multiple NGSO-like applications or licensed but unbuilt NGSO systems in the same frequency band. This prohibition prevents a party from applying for an additional NGSO-like satellite system license in a particular frequency band if that party already has an application for an NGSO-like satellite system license on file or a licensed-but-unbuilt NGSO-like satellite system in the band. The Commission adopted the unbuilt systems rule, in addition to bond and milestone requirements, as a means to restrain speculation without restricting applicants' business plans and to give licensees an incentive to surrender licenses for satellite systems that they do not intend to build. Recognizing that the unbuilt NGSO systems rule can lead to delays in processing applications by adding complexity to the review in determining whether an applicant has violated the rule, and, considering the current rapid state of development of NGSO systems, the Commission sought comment on whether the limit on unbuilt NGSO systems may be a hinderance to the acceptability of legitimate satellite applications and if so, whether the Commission should amend or eliminate such limitation.

27. After review of the record, the Commission concludes that the goal of expediting the initial processing of space station applications will be advanced by eliminating the part of the Commission's rules in §§ 25.159(b) and 25.137(d)(5) that prohibits a licensee or market access grantee respectively from applying for another NGSO license or grant of market access where the party has an already licensed-but-unbuilt NGSO system for the same frequencies. The Commission finds that it is often time consuming to determine whether the relevant applicant violates this prohibition, for example when there are disputes in the record regarding whether a system is “unbuilt,” and the need to make this determination prior to accepting an application for filing can delay placing an application on public notice to permit consideration of the application on the merits. In situations where it was not clear whether the prohibition has been violated by the proposed application, the Space Bureau (and the former International Bureau) has accepted the application for filing, without prejudice to a determination And the Commission is not convinced, as some commenters suggest, that its elimination will lead to speculative license applications or spectrum hoarding. The Commission's current bond and milestone requirements, which were also put in place to deter speculative license applications and spectrum warehousing, remain in place, and the Commission agrees with many commenters who note that these requirements serve as adequate deterrents. The Commission's experience has been that the restriction on unbuilt NGSO systems is unnecessary to deter warehousing of spectrum and orbital resources, in light of the bond and milestone requirements and other safeguards, and the restriction on unbuilt NGSO systems could delay processing times without a corresponding benefit to the public. However, the Commission retains and revises the portion of the rule that prohibits operators from filing multiple applications in the same frequency band where such applications are subject to NGSO-like processing round rules, which require that in the event there is insufficient spectrum in the requested frequency band or there is harmful interference between NGSO FSS licensees, the available spectrum is divided equally among licensees.

28. Several commenters suggested that instead of eliminating the prohibition on licensed-but-unbuilt systems, the Commission could “soften” the rule, amend it, more broadly interpret the meaning of “unbuilt”, or issue waivers on a case-by-case basis. The Commission finds that these suggested changes for nuanced, case-by-case approaches in interpretation would not result in an expedited review process on the whole. Rather additional review, and therefore a more-lengthy application processing timeframe, would be required. Kuiper suggests that the Commission amend the rule to focus on investment and progress. The Commission's current bond and milestone requirements are set up for such purpose. When the Commission adopted the bond requirements in 2003, the Commission reasoned that requiring satellite licensees to make a financial commitment to construct and launch their satellites would help deter speculative applications and thus prevent valuable spectrum resources from lying fallow. When the Commission adopted a revised escalating methodology for bond and milestone rules in 2015, which increases operators' liability over time, the Commission aimed to further incentivize satellite operators to construct and launch spacecraft expeditiously or surrender their authorization early. The Commission agrees with comments that state that the Commission's bond and milestone rules have been effective in deterring speculative applications, and the Commission finds that the licensed-but-unbuilt NGSO-like systems prohibition on filing an application for another NGSO-like satellite system license in that frequency band in § 25.159(b) has become redundant, while also creating an additional hurdle to the application process for NGSO operators. While the Commission agrees that a focus on investment and progress towards completing a system is prudent, it does not agree that amending the unbuilt systems rule to focus on investment is necessary. Rather, the most effective method for streamlining the application process is to eliminate the prohibition on applying for another NGSO system license when an applicant already has a licensed-but-unbuilt NGSO-like system and rely on the Commission's longstanding bond and milestone requirements.

29. Several commenters suggest that at the very least EESS operators should be exempt from the unbuilt NGSO systems rule given their views that EESS operators often have the ability to share spectrum without causing interference. This point is moot given the decision to eliminate the prohibition on licensed-but-unbuilt systems and therefore there is no longer any need to expressly exempt EESS operators from it. However, the Commission agrees with commenters that EESS NGSO operators provide a relevant example for why the one-size-fits-all unbuilt NGSO systems rule did not account for the nuance of certain NGSO satellite operations, or the way NGSO systems have developed in the 20 years since the rule was implemented. As both Spire and a group of EESS operators point out, EESS operations licenses are routinely granted outside of processing rounds, which the unbuilt systems rule was designed for. Again, the Commission's experience and the record demonstrate that eliminating the prohibition on licensed-but-unbuilt systems is the most efficient method for streamlining, and because of the bond and milestone requirements, the Commission can do so without jeopardizing its goals to prevent spectrum warehousing and speculative applications. Additionally, by revising the remaining language in §§ 25.159(b) and 25.137(d)(5) to clarify that the prohibition on filing multiple applications in the same frequency band is tied to being subject to the Commission's “modified processing round rules,” found in § 25.157, EESS operators who are granted licenses or market access outside of processing rounds will not be subject to §§ 25.159(b) or 25.137(d)(5) at all.

30. Several commenters suggest that the Commission take into account how to ensure that elimination of the unbuilt systems rule does not result in the potential for interference for other operators and ensure that ITU Equivalent Power Flux Density (EPFD) limits are adhered to. ViaSat cautions that, if this rule were eliminated, applicants might “propose to operate multiple NGSO `systems' that would use the same frequency bands as a way of circumventing the Commission's substantive EPFD limits” or “attempt to game the default `band-splitting' mechanism set forth in § 25.261 of the Commission's rules (which divides spectrum equally among the `systems' involved in an inline interference event).” Intelsat raises a similar concern regarding EPFD limits and suggests that the Commission clarify that NGSO systems must continue to adhere to the EPFD limits incorporated in § 25.146(c) of the Commission's rules. This decision to eliminate the unbuilt systems rule does not alter § 25.146(c), which remains in place. Moreover, applicants will continue to be held to Commission and ITU rules on EPFD limits. And, as stated above, the Commission is retaining the portion of the rule that prohibits operators from filing multiple applications in the same frequency band in specific circumstances to avoid the possibility of a single operator receiving unequal division of spectrum in cases where band-splitting is required.

31. SES, while supporting the removal of the unbuilt systems prohibition in § 25.159 so long as other protections are in place, suggests that the Commission ensure that NGSO operators must be limited to one application per processing round. SES argues that “[p]ermitting an applicant to submit two or more system designs in a [processing] round would multiply the burden on Commission staff and other round participants, who would be forced to evaluate each possible configuration, even if it is clear that the applicant only intends to build and launch one of its proposed options.” EchoStar disagrees and suggests that applicants might plan to use different NGSO systems for different applications, and given the financial commitments that are necessary, companies are unlikely to file applications frivolously. EchoStar appears to go even further and suggest that the Commission eliminate § 25.159(d), which states, among other things, that “[i]n the event that a licensee misses three or more milestones within any three-year period, the Commission will presume that the licensee obtained one or more of those licenses for speculative purposes.” The Commission declines to consider this suggestion further as it is beyond the scope of the Commission's queries related to paragraph (b), and the Commission finds that paragraph (d) in § 25.159 plays a distinct and important role in deterring speculative applications. The Commission agrees with SES that there are different considerations related to its rules on the number of applications per applicant per processing round versus whether the applicant has a licensed-but-unbuilt system. Although NGSO systems have evolved and an operator may have two distinct purposes for seeking multiple applications in the same processing round, the Commission is not convinced that doing away with this aspect of the rules will expedite the application or review process for processing rounds, but rather would require heightened review and consideration that might delay the processing of the application. Additionally, this aspect of the rule serves to ensure that in the event there is insufficient available spectrum in a frequency band, the available spectrum will truly be shared equally among the licensees, as required by § 25.157(e) of Commission rules on NGSO processing rounds. Although commenters state that an applicant could have a legitimate reason to apply for separate systems in the same processing round, the commenters do not provide any concrete examples of what these reasons might be or how, as a general matter, the benefits of allowing multiple applications in the same processing round outweigh the identified potential harms. As a result, there is no basis in the record to determine that the potential harms identified by the Commission in adopting the rule, and identified by comments in this proceeding, could be outweighed by unspecified potential benefits. In sum, the Commission adopts revisions to § 25.159(b) and its equivalent for market access grantees in § 25.137(d)(5) by eliminating the prohibition on licensed-but-unbuilt systems in these rules, but the Commission retains the limitation on the number of applications per NGSO operator per processing round. The Commission has also clarified the text related to the number of applications to demonstrate this limit is tied directly to being subject to the procedures in §§ 25.157 and 25.261. The Commission notes that it has eliminated references to §§ 25.122 (small satellites streamlined licensing procedure) and 25.123 (small spacecraft streamlined licensing procedure) as exceptions to § 25.159(b) and § 25.137(d)(5) because licenses granted under these streamlined procedures are made outside of a processing round and thus not subject to §§ 25.157 and 25.261. Additionally, the Commission revises § 25.159(c) of the rules for clarification and to reflect these changes.

32. Current rules state that an application will be unacceptable for filing and will be returned to the applicant if it is defective, internally inconsistent, or incomplete, or if it does not substantially comply with the Commission's rules, regulations, specific requests for additional information, or other requirements. Current rules also, however, specifically allow the Commission to accept for filing an application that is defective for these reasons if the application contains a request for waiver of any rule, regulation, or requirement with which the application is in conflict. Alternatively, the Commission may accept the application if the Commission, upon its own motion, waives (or allows an exception to), in whole or in part, any rule, regulation or requirement. Thus, the current rules allow an otherwise defective application to be accepted for filing if it contains a request for waiver of a rule that it is in conflict with, or the Commission waives the rule on its own motion.

33. The NPRM asked whether applications omitting necessary waiver requests should be dismissed, and how well-supported should a waiver request need to be to overcome the acceptability for filing requirements, including waivers of filing deadlines or waivers that raise novel issues. This is an important question, given the risk of an application being delayed from being accepted for filing while the applicant and opposing parties argue whether an application complies with Commission rules, where the application did not explicitly request a waiver of the rule in question. As a result of this argument, a decision on the merits of the application instead becomes a procedural question that inhibits accepting the application for filing and placing the application on public notice for comment, which is a prerequisite for acting on the application.

34. The Commission finds that no change to its rules is necessary to address the potential delay of an application being accepted for filing because of a failure to request a waiver of Commission rules. Instead, the Commission encourages applicants to remember to request any necessary waivers of Commission rules or policies in order to avoid dismissal of applications or delay in accepting applications for filing. By filing a waiver request, the applicant removes a potential obstacle to accepting the application for filing and placing the application on public notice. Likewise, the Commission does not need to change any rules in order to answer the question of how well-supported a waiver request needs to be to overcome the acceptability for filing requirements. The current rules simply state that a defective application can be accepted for filing if it is “accompanied by a request which sets forth the reasons in support of a waiver of (or an exception to), in whole or in part, any specific rule, regulation, or requirement with which the application is in conflict.” Because the waiver request must seek a waiver of a “specific rule, regulation, or requirement,” an application cannot satisfy § 25.112(b)(1) with a blanket request for waiver of any unspecified rule that the Commission might find the application in conflict with. The rule does not impose any separate requirements on how well-supported the waiver request needs to be, so the general requirement for any waiver request to show “good cause” under Commission rules applies.

35. Some comments suggest that the Commission adopt requirements for, or limitations on, requests of waivers of specific rules. The Commission finds that these suggestions go beyond the generalized goal of expediting the processing of space and earth station applications and are better addressed in the context of specific applications and rulemakings. Accordingly, the Commission will not address them here.

36. The Commission establishes timelines for Space Bureau staff to either: (1) determine that an application for authority to operate a space or earth station is acceptable for filing and place it on public notice; or (2) notify the applicant that staff has identified questions, errors, or omissions, and that the application will not be placed on public notice until after these questions, errors, or omissions are addressed by the applicant to the satisfaction of the Bureau. For all earth stations and GSO space station applications, the Commission concludes that a 30-day timeline is appropriate. For all NGSO space station applications, the Commission concludes a 60-day timeline is appropriate. In all cases, the timeline is measured in calendar days, starting on the day after the application is filed in ICFS. The Commission finds that expressing clear goals for accepting an application for filing or notifying the applicant of deficiencies will establish expectations for expedited processing of applications for both staff and applicants.

37. The NPRM asked whether the Commission should have deadlines for accepting certain space or earth station license applications for filing or dismissing them as unacceptable for filing. It also sought comment on what a reasonable deadline might be and whether deadlines should depend on the type of application filed. Additionally, it asked whether there should be limitations on any acceptability for filing deadline the Commission might adopt, such as for applications requesting operations not consistent with the International Table of Frequency Allocations, or where the application could involve initiation of a new NGSO processing round, or for contested applications. Finally, it queried whether instituting a deadline would result in more dismissals.

38. Most comments welcome the establishment of timeframes for placing applications on public notice, however, commenters differ on whether the timelines should be definitive deadlines, such as “shot clocks,” or more flexible goalposts. Commenters are generally wary of automatic dismissals. AWS explains that a shot clock resulting in automatic dismissal if not approved before the deadline would not streamline the process, rather it would require an additional review burden on both the applicant and the Commission staff. Instead of an automatic dismissal approach, AWS suggests that earth station applications could be automatically placed on public notice after 30 days if the Commission does not deem them acceptable for filing sooner. Inmarsat and SIA also suggest a 30-day shot clock for placing earth station applications on public notice. Boeing puts forth a similar suggestion, proposing that all earth station applications be placed on public notice after 30 days of filing and space stations after 90 days of filing, except in the event the staff determines that the application is incomplete or defective (thus requiring additional time for inquiry to the applicant). EchoStar also generally suggests a 30-day timeline for placing applications on public notice, unless they are deemed incomplete. However, EchoStar disagrees with the notion of making this timeline a shot clock and suggests that extensions to the timeline should be allowed when staff identify genuine issues that require more time to address. Globalstar and Viasat also advocate against firm shot clocks for placing applications on public notice, especially for space station license applications. Globalstar suggests that Commission staff will likely require at least 90 days for making the necessary technical assessments to find space station licenses acceptable for filing. SpaceX advocates for the Commission to adopt the anticipated timeframes the Commission contemplated in 2015 and 2016 for placing applications on public notice as firm shot clocks.

39. The Commission believes that establishing specific timeframes for finding applications to be acceptable for filing and placing them on public notice will aid in expediting the licensing process. Additionally, the Commission agrees with those comments that highlight the need for the Commission to have sufficient time to review applications and notify and engage in dialogue with applicants whose applications may require additional communication between Commission staff and the applicant due to the novel nature or complexity of the application. Given these considerations, the Commission concludes that maintaining a level of flexibility for dialogue with applicants is necessary when the Space Bureau staff discover errors, omissions, or unclear information. In these cases, the Commission includes an alternative to the specified timelines for determining acceptability for filing. However, in the spirit of transparency, the Commission directs the staff to notify applicants regarding their application status if those applications will not go on public notice within the specified timelines and offer the reasons why the application is not acceptable for filing. Applicants can expect, therefore, that they will receive some form of application status confirmation within the specified timelines, either with the application appearing on an accepted for filing public notice, or with a communication notifying the applicant that the application requires the submission of missing information. The Commission anticipates that the most common form of this communication will be a letter to the applicant from Space Bureau staff, but does not preclude the use of other forms of communication that provide adequate notice to the applicant of the need to submit missing information. The Commission also notes that it has a weekly schedule for placing applications that are accepted for filing on public notice: the earth station public notice is released each Wednesday, and the space station public notice is released each Friday. Therefore, in some circumstances, Space Bureau staff might determine an application is acceptable for filing within the 30- or 60-day timeframe, yet the application might not appear on public notice until the next possible public notice release date following the determination.

40. Notably, the Commission does not require that an application be automatically dismissed if Space Bureau staff does not find it acceptable for filing within the specified timelines. Such a requirement could result in more applicants having to resubmit dismissed applications simply because of expiration of time, which would delay, rather than expedite, the earth and space station application process. The Commission also does not require automatically placing an application on public notice as acceptable for filing if Space Bureau staff does not act within the specified timelines. Although the Commission expects Space Bureau staff to act on applications consistent with the specific timelines established today, the Commission recognizes that unusual circumstances may prevent such timely action. For example, new information may be placed into the record at a very late date that calls into question whether the application is acceptable for filing and does not allow time for Space Bureau staff to notify the applicant that the application is not accepted for filing. It would not serve the public interest to automatically accept the application for filing in such circumstances, simply because of expiration of time.

41. The Commission is mindful that different applications have different levels of complexity, and Commission rules require various considerations depending on the type of application. The Commission appreciates observations that space station applications in particular can require significant time to review, even for acceptability for filing. For NGSO applications, there is often a need for a longer time-period of initial review to reflect the greater complexity related to those applications. For example, deciding whether to accept an application as the lead application in a processing round requires a more substantive review than GSO applications which are not subject to a processing round because opening a new processing round affects not only the lead applicant, but also any other applicants that would apply in that processing round as well as applicants and grantees from prior processing rounds and, potentially, future processing rounds; further, potential lead applicants have often requested waiver of the processing round requirement altogether, which, if granted, would obviate the need to open a new round. Similarly, an application for NGSO space stations can include thousands of satellites in a single application, which greatly increases the amount of information that Space Bureau staff will need to review for acceptability for filing. Additionally, in the Commission's experience, NGSO applicants typically request a larger range of frequencies and utilize more complex and numerous beam patterns than GSO applicants, which again necessitates a longer review period than that for GSO and earth station applications.

42. The Commission also recognizes that the timelines it establishes today differ from some previously established, which did not distinguish between applications for GSO and NGSO space stations, and were for applications considered to be “straightforward”, “not contested”, and “barring any complications.” The Commission finds that applying these new timelines across application types will provide greater certainty to applicants, and that the initial review timelines for GSO space stations of 30 days and initial review timeline for NGSO space stations of 60 days, reflects the differences identified above in the amount of time required to review the different types of applications. By establishing timelines for initial review that the Commission believes it can consistently meet, the Commission helps to mitigate regulatory uncertainty.

43. The Commission also finds that it is unnecessary to limit these timelines to applications for initial authorizations and for modifications. The remaining categories of filings—amendments, transfers of control, and assignments—to the extent that they require public notice, are not inherently more complex or review intensive than applications for initial authorizations and for modification with respect to determining acceptability. The Commission also applies these timeframes across the board, rather than limiting them to a smaller category such as “straightforward” applications. The decision to accept an application for filing need not consider the underlying merits of the application and is generally done prior to receiving comments and objections from other parties, which results in a simpler process than deciding whether to grant or deny an application. In any event, the Commission believes that any staff time spent on determining whether an application is straightforward or not, for example, would be better spent on reviewing the application for public notice and resolving issues that prevent it from being accepted for filing.

44. Although some commenters suggest that the Commission consider longer timeframes for initial space station review, the Commission notes that the initial review, while thorough, is focused on an acceptability for filing determination, not on the merits of the application, and generally does not require the evaluation of comments and oppositions to the application, and the Commission believes that the revised timelines adopted here can be achieved. These new timelines strike a balance between the need to place applications for earth and space station operations on public notice expeditiously, and the time needed for staff to make the determination of whether an application is acceptable for filing under Commission rules.

45. The NPRM sought comment generally on whether the Commission should adopt broader shot clocks for ultimate “action taken” on certain types of space station or earth station applications. The Commission received a wide variety of comments and suggestions on this issue and the record is divided on support for “action taken” shot clocks. Some commenters approve of shot clocks for certain types of applications (for example, just for earth station applications), while others argue that all types of space and earth station applications should have shot clocks for Commission action taken. Suggested shot clock timeframes range from 45 days after the close of public notice to one year for “action taken” on an application.

46. A number of commenters oppose shot clocks for actions taken, cautioning that the institution of shot clocks for taking action on licenses could jeopardize the thorough review of complex technical issues that the Commission's rules require. Some commenters point out that considering action taken shot clocks is “premature” or that the Commission could consider the possibility of shot clocks in the future, after the Space Bureau has been well-established and resourced, but that implementing them should at least be deferred for the time being. As with the acceptability for filing issue, some commenters suggest that the Commission issue timelines instead of shot clocks, which would serve more as goals than obligations for action taken, or that the Commission can toll the shot clocks as needed. Several commenters offer specific suggestions for alternatives to action-taken shot clocks. Intelsat argues for an “auto grant” procedure for straightforward applications, and AWS suggests that uncontested earth station applications could begin operations on a non-inference basis after six months, if action is not yet taken on their application.

47. Consistent with several of the commenters' views, the Commission recognizes the need to process applications promptly after accepting them for filing. Nevertheless, the Commission declines at this time to adopt a general, one-size-fits-all shot clock for taking action on license applications. At this point in the proceeding, the record does not show that any timeframe in particular would accommodate these complexities while also accelerating action on more straightforward applications. However, the Commission is dedicated to fostering innovation in the satellite industry and to preserving the United States as an attractive and competitive licensing destination for satellite services. The Commission believes it is important to further consider and address issues raised by commenters regarding timelines for taking action on the merits of an application. The Commission therefore seeks further comment in the FNPRM on proposals regarding action on the merits such as shot clocks and/or timeframes for action.

48. The Commission also finds that certain earth station applications are suitable for a more streamlined application review process, and the Commission discusses in more detail below its decision to expand the category of applications that may be deemed granted after a specific period of time.

49. Within the scope of the inquiry regarding whether the Commission should consider adopting any shot clocks or processing deadlines, the Commission sought comment on which types of license applications the Commission should consider “straightforward” and whether to implement processing timelines for such applications in particular. The Commission pointed to its 2016 public notice that identified expected processing timelines for straightforward, uncontested earth station applications, barring any complication, and asked whether these guidelines should be codified, whether a more flexible approach and considerations of other factors was warranted, or whether given the pace of change in space activities and corresponding number of applications presenting unique or complex issues, the Commission should limit the scope of “straightforward” applications. After considering the record, the Commission declines at this time to further identify or otherwise separate out processing timelines for “straightforward” applications.

50. The record was divided on this issue. Numerous commenters generally support the notion of identifying “straightforward” applications and creating processing timeframes for those applications. However, only a few commenters specifically propose examples of applications that the Commission consider as “straightforward.” RBC Signals suggests including: (1) applications for earth stations operating with a U.S.-licensed satellite and consistent with standard technical characteristics for the relevant bands; (2) earth station modification applications when it is an application to add a U.S.-licensed satellite or market access grantee operating in previously authorized bands; and (3) a new earth station license that is at a site within a defined distance of similar earth station operations ( e.g., 1 mile) and operating within same parameters as pre-existing earth stations within the “straightforward” category. Intelsat proposes that uncontested earth or space station applications that pose minimal interference risk should be considered “straightforward.” Boeing, TechFreedom, and SpaceX suggest that the Commission should not make such a distinction, and rather should apply shot clocks to all types of applications, regardless of whether they are “straightforward.”

51. The Commission does not believe the divided record supports the creation of a category of “straightforward” applications at this time. The Commission recognizes the potential benefit to creating such categories so long as they are well-defined, and so long as their development and application in specific cases do not hinder the goal of processing applications promptly. At the same time, the Commission recognizes the points made by SpaceX and TechFreedom that creating a carve-out for only “easy” or uncontested applications might incentivize the filing of oppositions and increase the number of contested applications. In the same vein the Commission agrees with commenters that the Commission can streamline its rules to expedite processing of routine and novel or complex applications. The Commission is currently faced with an unprecedented influx of earth station and space station applications. The Commission finds that the other concrete steps it is taking today, including removing no longer necessary rules that slow down the application process, committing to issue numerous forms of guidance for streamlining application filing, and creating a 30 and 60-day timeframe for determining acceptability for filing, are the types of practical and necessary processing improvements that the Commission can quickly implement. Additionally, the Commission notes that it will further consider timeframes and/or shot clocks for actions taken on the merits of applications in the FNPRM. Taking into account the divided record on this issue, the Commission concludes that it would not serve the Commission's goals to further identify or carve-out certain types of applications as “straightforward” at this time.

52. The Commission takes action to expedite the processing of a common category of earth station applications: applications to modify existing earth station licenses by adding new space stations as points of communication. Specifically, the Commission adopts a new rule, under which applications to add space station points of communication to existing earth station licenses will be deemed granted 35 days after being placed on public notice, under certain conditions described below and provided that no objection to the application is filed. This rule is added as a new paragraph, (i) in § 25.117, which governs modifications of station licenses that require Commission authorization. While the Commission declines to draw lines based on whether to consider this type of application to be “straightforward,” the Commission finds that, under a specific set of conditions, the process of adding space station as additional points of communication to existing earth station licenses can be significantly expedited.

53. Commission rules allow earth stations to transmit to any space station in the same radio service that is listed as a point of communication in the earth station license, provided that permission has been received from the space station operator to access that space station. The NPRM specifically asked whether applications to add points of communication to existing earth station licenses should qualify as “straightforward” so long as the space station to be added is: (1) either U.S.-licensed, or (2) has been granted U.S. market access within the parameters requested in the earth station application, and the applicant identifies either the call sign of or the earth station license(s) in which the space station was granted market access. The NPRM sought comment on whether these types of applications should be automatically deemed granted 60 days after they are filed, absent other Commission action.

54. Numerous commenters support the consideration of earth station operators' applications to add previously authorized space stations as points of communication as “straightforward” and to allow for applications to be deemed granted after 60 days, absent other Commission action. AWS suggests that the Commission consider various benchmark shot clocks within the 60-day period for placing the application on public notice and coordination. Several commenters suggest that the Commission go even further and allow the addition of previously authorized points of communication through notification, such as via § 25.118 of Commission rules, instead of through a license application process. SpaceX proposes that notification, instead of authorization, should be allowed when a space station operator is also the earth station licensee and is requesting to add one of its own previously authorized space stations as a point of contact. Microsoft suggests that earth station operators could add any space station as a point of communication, so long as a certain set of conditions are met. EchoStar suggests that the Commission should permit earth station operators to specify in their application that they will communicate with all FCC-authorized NGSO systems (just as is done with GSO systems currently), which will reduce the number of modifications requiring filing.

55. In contrast, several commenters suggest the Commission proceed with caution on this proposal. For example, Iridium cautions that in the case of earth stations subject to § 25.203(k) of the Commission's rules, applicants must either complete coordination or demonstrate that they will not cause unacceptable interference and therefore proposes that given these requirements, such applications should not be considered “straightforward” or subject to the proposed 60-day timeline for being deemed granted. Viasat asserts that adding NGSO systems as points of communication could “upset” the EPFD limit calculations and coordination agreements in NGSO system authorizations. Viasat proposes that if the Commission allows for streamlining in adding points of communication, earth station operators should be required to include a certification that the addition will not result in operations or impacts inconsistent with the EPFD analysis or coordination agreements of the NGSO operator.

56. After consideration of the record, the Commission concludes that, in a specific set of instances, it is feasible and appropriate to adopt a licensing procedure by which an application to add a point of communication can be deemed granted 35 days after the application has been found acceptable for filing and also placed on public notice if no sooner action is taken by the Commission. The Commission notes that in some instances an application might be found acceptable for filing within 30 days, but might not be placed on public notice exactly within 30 days due to the weekly schedule of releasing public notices. This timeline takes into account the Commission's new timeframe for finding earth stations to be acceptable for filing within 30 days (or notifying the applicant of the need for further information). Therefore, a substantially complete application to add a point of communication would be found acceptable for filing and placed on public notice within 30 days, starting on the day after the application is filed in ICFS, and then would be deemed granted 35 days after public notice, a total of 65 days for processing. The Commission agrees with commenters that applications requiring coordination, including Federal coordination, require additional time.

57. Initially, this expedited process is premised on the following conditions, which are necessary to balance faster processing for adding points of communication and protecting other spectrum users from interference. First, the Commission notes that Commission staff will retain discretion to remove the application from the deemed-granted process if merited. Additionally, the Commission requires that these modifications be limited in nature, and not part of a larger set of modifications, which might require more lengthy review. Therefore, the modification can be only to add space stations as points of communication. Next, applications will need to demonstrate that the addition of a new point of communication will not cause earth station transmissions to exceed the highest equivalent isotropically radiated power (EIRP), EIRP density, and bandwidth prescribed for any already authorized emission. Finally, this option will only be available in frequency bands that are not shared with Federal or terrestrial wireless users and are not subject to coordination requirements with other non-Federal satellite services. The Commission does, however, seek comment in the FNPRM regarding some additional circumstances in which an earth station modification to add a point of communication could be expedited.

58. The Commission is not convinced, as some have suggested, that all applications for adding a point of communication are appropriate for notification-only consideration. The Commission observes that applications to add space stations as points of communication are only required for space stations that are not on the Permitted List, and for operations that fall outside “routine” earth station technical parameters. If a GSO space station is licensed by the Commission, or has been granted access to the U.S. market, and operates in specified frequency bands where GSO FSS has primary status, then the space station is a Permitted List space station and is automatically included as a point of communication for all U.S.-licensed earth stations that list the Permitted List as a point of communication, provided that the earth station operations with the space station fall within the existing technical parameters and conditions of the earth station license. The Permitted List already represents the Commission's judgment as to which space stations can be added as points of communications to an earth station's license without requiring an application and approval by the Commission. Allowing the addition of any space station as a point of communication, without prior application or approval, in any orbit or service or frequency band, and without regard to whether the operations fall within existing technical parameters would essentially render the Permitted List meaningless, which is an outcome outside the scope of this proceeding to expedite the processing of space and earth station applications. The Permitted List is limited to GSO space stations providing fixed-satellite service, and the Commission has not so far determined that it is possible to include NGSO space stations within the definition of the Permitted List. In the accompanying FNPRM, however, the Commission seeks comment on commenter proposals to create a process for allowing U.S.-licensed earth stations to have automatic authority to communicate with certain approved NGSO space stations, in a manner similar to the how the Permitted List functions for approved GSO space stations.

59. The NPRM sought comment generally on the issues the Commission identified for streamlining and on other guidance that may assist applicants and speed application processing. In response to the Commission's general questions, some commenters advocate for additional rule changes that they believe will reduce the need to file modification applications, but which are either outside of the scope of this proceeding or which the Commission declines to take action on at this time. Additionally, some of the comments and suggestions more appropriately align with other ongoing Commission proceedings and, as such, are not further considered in this document. Finally, several comments can be addressed by clarifying and explaining existing Space Bureau practices. The Commission values the input that it received in response to the NPRM, and the absence of action today or inclusion in the accompanying Further Notice of Proposed Rulemaking in no way precludes consideration of these ideas as part of other existing proceedings or as part of future rulemaking proceedings.

64. Suggestions for Modifications without Prior Authorization. Spire proposes that the Commission adopt a new provision in § 25.118 for EESS spacecraft, permitting operators to notify the Commission of these set of changes. SpaceX suggests that the Commission expand Spire's proposal to include all NGSO systems, not just EESS. The Commission declines to adopt Spire's proposal at this time. While the Commission believes expanding notification-only modifications could have merit, the Commission remains concerned that this proposal in particular would leave important determinations, such as the evaluation of interference risk, solely to the applicant. The Commission notes that it is not creating a new requirement here, rather the Commission is declining to adopt a proposal to amend § 25.118 to include certain additional changes to satellites. Commission rules on modifications remain the same. The Commission notes, however, that some satellite design changes may not require Commission review or notification at all if they create no change to radio frequency, do not affect orbital debris mitigation plans, or otherwise affect the parameters or terms and conditions of the station authorization.

65. Spire additionally proposes that discrepancies related to whether an applicant can make a minor modification through notification or via prior authorization can be alleviated to some degree if the Commission codifies a broad definition of the term “technically identical.” Spire proposes that “[t]he Commission should formally codify the explanation it provided in the 1994 MSS Order that `technically identical' spacecraft are those that have `identical satellite antenna footprints and transmission parameters' but which may have de minimis variation among them—including the physical structure or microelectronics.” Additionally, Spire suggests that the Commission should expressly exempt “technically identical” components from modification rules. The Commission declines to adopt a specific definition of “technically identical” in the rules at this time because such a definition may become outdated as technology advances. The Commission aims to amend its rules in technologically-neutral and performance-based ways, and in light of this framework the Commission finds it inappropriate to adopt such a definition in the rules based on the current record.

66. Suggested Changes to the Space Bureau's Special Temporary Authority Process. Several commenters suggest various approaches to further streamline the license application process for STAs. SpaceX proposes, and other commenters agree, that STAs with an underlying request for full authorization should renew automatically while the underlying application is pending. RBC Signals suggests that the Space Bureau adopt a procedure which allows STA operations to continue while a license application with identical parameters to the STA is under review. And Intelsat suggests that the Commission “adopt the [§ ] 1.62 policies previously employed” for Earth station applications “wherein operators were not required to file a new STA extension request prior to the grant of the previous STA extension request.”

67. Here the Commission finds that an explanation of the Space Bureau's STA process is merited when considering these comments. Commission rules for special temporary authorizations under part 25 allow operators to apply for STAs for various amounts of time, and state that STAs expire at the end of those allotted terms. These rules stem from the Communications Act, which allows the Commission to grant STAs for up to 180 days if they are placed on public notice per section 309(f) of the Act, and allows the Commission to grant up to 30 and 60-day STAs in certain circumstances without public notice per section 309(c)(2)(G) of the Act. The reasoning behind these rules is simple: special temporary authorizations are meant to be used under exceptional or “extraordinary” circumstances, as the Act states and as Commission rulemakings have emphasized. The Space Bureau has applied § 1.62 to special temporary authorizations in that if an applicant with an STA files a new STA application to extend its temporary authorization three days prior to the end of its current license term, it may continue its temporary operations while the new STA application is pending. As such, an operator with an STA may continue its temporary operations while a new application to extend the time period for their authorization is under review and the Commission acknowledges this in its license grants. The Commission notes that the rules allow for STAs for up to 180 days at a time. Despite this, many applicants still file shorter-term STA applications for up to 30 days, which the Commission can issue without placing on public notice, or 60-day durations, which the Commission has the discretion to not place on public notice if the applicant plans to file an underlying request for regular authority of the service. Additionally, because requests for special temporary authority are meant to be granted under exceptional circumstances and for relatively short duration, any coordination that is needed for the temporary authorization is generally limited to the time period requested by the applicant, or no more than up to 180 days. Additional requests then require additional coordination for the new time period.

68. For all these reasons, the Commission declines to adopt the suggested changes to the STA rules at this time. The Commission recognizes that STA applications are often accompanied by an underlying license or modification application for regular operations, and it can be difficult for applicants to determine the full timeframe for which they might require special temporary authorization. However, the Commission notes that applicants may consider a variety of time frames for their STA needs, including the 180-day STA. The Commission also notes that it does not wish to circumvent the 180-day STA requirements, which is distinguished by the 30 and 60-day STAs only in so far that the Act requires the Commission to place applications for STAs beyond 60 days and up to 180 days on public notice. Therefore, the Commission has discretion to place 30 and 60-day STA applications on public notice, and may choose to do so in the event an individual applicant files numerous shorter-term STA requests that result in longer than a 180-day use. Ultimately, the Commission is hopeful that the Commission's continued streamlining efforts will lead to faster processing of underlying applications and a reduction in the need for extensions to STAs.

69. Additional Suggestions for Streamlining of Modifications. SpaceX suggests that the Commission should permit and encourage operators to submit a single modification application that applies an identical change across multiple Earth station licenses. SpaceX proposes, as part of its suggestion, that for any modification that would require re-coordination with other commercial or Federal users, “the Commission could require the modification application to attach coordination information for each separate site.” TechFreedom suggests “a hybrid licensing approach under which the common elements (technical parameters, points of communications, etc.) of a network of earth stations could be licensed on a network basis under a single license with only the individual elements ( e.g., location) licensed separately.” Both SpaceX and TechFreedom assert that these types of changes would dramatically cut down on the amount of modification applications that would require filing and review.

70. The Commission is conscious of commenters' points regarding large numbers of modification applications being filed for common changes, and will consider this issue for future updates to the filing system, which currently cannot support this modification. In response to TechFreedom's suggestion, the Commission notes that it has made similar efforts to streamline common changes, such as through C-band earth station network licensing in § 25.115(c)(2) of Commission rules and the unified licensing system for space stations and blanket earth stations adopted in 2020. In the 2020 order creating the unified licensing system, the Commission declined to include individually licensed earth stations in the process, finding that adding them would “create more complexity than its streamlining benefit,” given the need for site-specific information and coordination. This reasoning remains valid. However, the Commission may consider similar suggestions such as TechFreedom's “hybrid licensing” approach as the Commission gains more experience with some of the streamlining rules the Commission has more recently put in place, such as the unified licensing system, that have not yet been widely utilized. The Commission may consider further streamlining in a future proceeding.

71. Emission Designators. Intelsat and SIA both suggest that the Commission do away with requiring emission designators in earth station applications. SIA asserts that requiring applicants to include emission designators causes confusion, delay, and complexity to the application process “without providing any meaningful information.” The Commission declines to consider changes to the emission designator requirements. Emission designators provide a variety of necessary information to inform the licensing process and to make a determination to authorize an operation under Part 25. For example, they provide technical information that Commission staff use to verify and calculate the power spectral density, occupied bandwidth, whether transmissions are analog or digital, etc. Additionally, this information is typically requested as part of the Federal coordination process with NTIA. The Commission also notes that emission designators are required by OET in their license applications as well for similar reasons.

72. Market Access and Orbital Debris Mitigation Showings. In response to the NPRM, a few commenters suggest that the Commission ensure market access operators and U.S. licensees are subject to the same rules, in particular they suggest the Commission amend its rules related to orbital debris showings. TechFreedom asserts that applicants for market access are treated more favorably than U.S. licensees in part because “domestic applications are vetted at the acceptance stage to determine whether their orbital debris showings are sufficient, whereas such showings in market access petitions are not reviewed until a later stage.” Conversely, OneWeb notes that market access applicants are effectively required to provide the same orbital debris showings as license applicants, but because this is often done through requests for information from Commission staff, OneWeb asserts the determination process is delayed as compared with the process for U.S. licensees.

73. As an initial matter, the Commission notes that § 25.114(d)(14)(v) of the Commission's rules, which addresses orbital debris showings for market access grantees, is the subject of a pending petition for reconsideration filed by SpaceX for the same reasons raised by SpaceX in this proceeding. Therefore, the Commission will consider any changes to that rule in the other proceeding. However, the Commission takes this opportunity to emphasize that the Commission applies the same scrutiny to orbital debris showings for market access grantees and U.S.-licensees, and ultimately determines whether to grant market access based on the same technical information that a U.S.-licensee would provide for orbital debris considerations. The Commission's current rules allow market access applicants to satisfy the requirement to describe the design and operational strategies to minimize orbital debris risk by demonstrating that their debris mitigation plans are subject to direct and effective regulatory oversight by the national authority that licensed their space station operations. Such a showing requires market access applicants to provide supporting documentation and respond to inquiries from Commission staff in order for the staff to compare the foreign rules and determine whether there is an effective regulatory regime in place. This includes submitting an English language version of the debris mitigation rules or regulations of the authority and indicating the current status of the national licensing authority's review. However, while this provision allows the Commission to accept such equivalent regulatory oversight showings, it does not preclude applicants from alternatively providing the same orbital debris mitigation showings that are detailed elsewhere in § 25.114 of the rules. And, except for a few cases, applicants have generally found it preferable to just provide the Commission with a description of the design and operational strategies for orbital debris mitigation instead of presenting all of the showings necessary to demonstrate the effective regulatory oversight of another national authority.

74. UMFUS Pre-Application Coordination. Verizon/AT&T assert in their comments that the Commission could streamline the license application process by requiring earth station operators in bands shared with the Upper Microwave Flexible Use Service (UMFUS) to engage in additional pre-application coordination and certify conformance with § 25.136 of the Commission's rules and Space Bureau guidance in addition to the Part 101 coordination requirements. Additionally, they suggest that the Commission require earth station operators to provide more than visual information about proposed earth station contours, including the antenna gain at the horizon or the maximum equivalent isotropically radiated power at the horizon to validate how the contours were developed. OneWeb, Viasat, Intelsat, and EchoStar disagree with this proposal. The Commission agrees with commenters' assertions that these proposals fall outside the scope of this rulemaking. Similarly, the Commission finds that Viasat's proposal to amend the review process under § 25.136 is also beyond the scope of this rulemaking. The Commission agrees that operators must fully engage in the coordination process identified for specific applications, but does not believe this proceeding, which focuses on expediting the license application process, is the pertinent forum for considering additions to pre-application coordination requirements.

75. Redefining NGSO systems and EESS Licensing. Spire suggests that the Commission consider expanding and altering its NGSO licensing framework beyond the streamlined procedure carve out for small satellites in § 25.122. The Commission notes that Spire's suggestions, which concern the overall licensing framework, operator definitions, and NGSO processing rounds, are beyond the scope of this rulemaking. Similarly, Spire's proposals related to amending the U.S. Table of Frequency Allocations for space-to-space transmissions in the S-Band and considering other frequencies for intersatellite links is beyond the scope of this rulemaking. The Commission may consider these suggestions when contemplating future rulemaking proceedings.

76. Other Ongoing Commission Proceedings. Several other commenters raise issues that are beyond the scope of this proceeding but may be more appropriate for consideration in other ongoing Commission proceedings. For example, Kuiper suggests that the Commission can streamline its licensing procedures in part by finishing its rulemaking to revise § 25.261 of the Commission's rules. SpaceX asserts these issues are beyond the scope of this rulemaking. We agree and we note that the Commission adopted new rules for satellite system spectrum sharing and issued a further notice of proposed rulemaking on April 20, 2023. Turion Space proposes that In-space Servicing, Assembly, and Manufacturing (ISAM) operations should be authorized by service category and the Commission should develop a new framework for space stations that deploy third-party payloads. The Commission has issued a Notice of Inquiry on ISAM operations and proposals related to these novel operations are more appropriate for consideration in that proceeding and are beyond the scope of this rulemaking. Myriota's suggestions related to Space-as-a-service (SaaS) and licensing antennas hosted at third-party facilities are also beyond the scope of this proceeding, however the Commission notes that similar suggestions have been raised in response to the Commission's ISAM NOI.

77. Station-keeping Requirements. Intelsat suggests that the number of modification and STA requests could be cut down by revising § 25.210(j) of the Commissions' rules to permit maintaining GSO satellites within 0.1° of their assigned orbital longitude, which is consistent with the ITU's east-west station-keeping requirements as opposed to the Commission's current rules, which require maintaining satellites within 0.05° of their assigned orbital longitude. Intelsat suggests that this change would give operators increased flexibility for conducting fleet management maneuvers and obviate the need for requests for modifications or STAs in that situation. This suggestion falls outside the scope of this proceeding, which is focused on expediting the application process and not a review of all of the Commission's technical rules. Nonetheless, the Commission notes that it has amended the rule in the past to allow exceptions for end-of-life operations, and has considered waiver requests to this rule for applicants in the past. The Commission believes its current rules and practice are prudent, while allowing operators to apply for a waiver if needed under unique conditions.

78. Bureau Practices. Several commenters raise issues that can be clarified by pointing commenters to current Space Bureau practices, procedures, and policies. One commenter suggests that the Commission waive, for good cause, NGSO-like processing rules for EESS operators. This type of waiver has been granted where justified given the nature of EESS operations and the ability for operators to share spectrum. Similarly, requests for email notification when licenses are granted and contact information for Bureau staff are already a part of Space Bureau practice. However, the Commission notes that FCC emails are sent to the designated point of contact on applications and, the Commission reminds applicants to notify the Commission of any updates to their designated point of contact details.

79. Timing of Orbital Debris Showings. The Swedish Space Corporation asserts that the Commission should allow applicants to address space debris mitigation plans and deorbiting strategy after a license is granted because these matters require obtaining data from manufacturers and may cause delay before licensing. The commenter could raise this in the Commission's Orbital Debris Mitigation proceeding. While orbital debris assessments are a key component in determining whether to grant a license or market access, in some instances the Commission has authorized licenses on the condition that the applicant must submit its orbital debris plan through a modification and meet the requirements in the Commission's rules prior to commencing operations.

80. License Conditions. A number of commenters raise suggestions and observations about the Commission's practices related to license conditions. Commenters suggest, for example, that the Commission could cut down on the license processing time by also limiting the number of conditions applied to each license. TechFreedom suggests this could be achieved in part by adding a new rule to part 25 “making clear that all licenses are issued subject to any rule changes later adopted.” Similarly, Intelsat asserts that current license grants are more lengthy than needed due to restatements of various of FCC rule requirements. SpaceX asserts that the Commission should avoid imposing any conditions that conflict with § 25.118. SpaceX also asserts that the Commission has inconsistently applied conditions to similarly situated applicants in the past and suggests that the Commission should adopt “consistent conditions—ideally with identical language—that reduce the incentive for operators to claim heightened conditions for their competitors and reduce the need for operators to contest their competitors' applications to ensure equitable treatment.”

81. The Commission finds these comments to be outside the scope of the queries on expediting application processing, and rather directly concern the specifics of license operations. However, the Commission recognizes that authorization conditions do at times include restatements of Commission rules. As commenters point out, all operators are subject to the rules in part 25, unless granted a waiver of a specific rule section. Additionally, it is already well established that licenses are subject to changes in rules that are the result of Commission rulemaking proceedings. Nonetheless, the Space Bureau may consider these suggestions when crafting future license conditions. Regarding SpaceX's suggestion, the Commission notes that certain conditions may apply generally, for example if applications are requesting a particular frequency or waiver of a particular section of Commission rules. In such instances, effort is made to have standardized conditions that are placed in license grants where possible, and the Commission expects the Space Bureau will continue to review license conditions accordingly. Beyond that, however, the Commission notes that each application presents individualized circumstances and operations, and conditions will reflect those differences. For example, the conditions placed on an applicant requesting to launch and operate one NGSO satellite will be different from an applicant requesting to launch and operate a fleet of satellites. In turn, the number of satellites, the size and location of the fleet, and other factors will all play a role in what conditions are placed on an operator.

82. Experimental Licensing. Turion Space suggests that the Commission's experimental licensing rules under part 5 of Commission rules should be updated and that the Space Bureau, not OET, should administer the experimental licenses. OET has delegated authority to administer experimental licenses under part 5, in coordination with the Space Bureau when necessary. The Commission notes that part 5 rules cover all manner of experimental licenses and OET has the delegated authority and expertise related to experimental licenses generally. When OET receives experimental license applications for satellite operations, OET and the Space Bureau coordinate given the Bureau's subject-matter expertise on satellite operations.

83. Physical Characteristics of Spacecraft. SpaceX suggests that the Commission should cease requiring operators to provide specific dimensions for satellites, claiming requests for such information is inconsistent with Commission rules and policy. The Commission disagrees with SpaceX's interpretation of Commission rules and policy. In a past licensing streamlining proceeding the Commission deleted a specific requirement in § 25.114(c)(10) requiring space station applications to provide, among other things, specific dimensions and mass because the Commission found that the information was either collected elsewhere or was unnecessary. In the case of specific dimensions, this information is often pertinent to the design and operational strategy that operators submit to demonstrate compliance with orbital debris mitigation under § 25.114(d)(14). Although the Commission removed the blanket requirement under § 25.114(c)(10) in 2013, the Commission retains authority under § 25.114(d)(14) to ensure that applicants submit sufficient showings to ensure compliance with orbital debris mitigation requirements concerns and therefore may request or expect operators to provide such information in individual cases.

84. Public Participation in the Application Process, Informal Complaints, and Commission Discretion on Considering Comments. TechFreedom and SpaceX suggest that the Commission can further streamline the application process by dismissing any late-filed informal complaints related to an application. Additionally, TechFreedom suggests that the Commission hold informal complaints to the standards set forth in § 1.41 of the Commission's rules. Both commenters suggest that the informal complaint procedure has been used to frustrate and slow down application processing.

85. As commenters suggest, the Commission's rules offer multiple avenues for public participation related to Commission licensing actions: for example, through filing objections or petitions to deny under § 25.154(a), through informal objections under § 25.154(b), as well as other avenues such as § 1.1307 (actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared). Formal pleadings, such as petitions to deny, must generally be made within the 30-day public comment period, however, the Commission has authority to extend the opportunity for public comment. Under FCC rules, pleadings that are not filed in accordance with § 25.154(a), including those not meeting the 30-day deadline, are classified as informal objections under subsection (b). The Commission recognizes that allowing informal objections that are not subject to the 30-day public notice timeframe may slow down the pace of application processing in some instances, especially when a significant number of comments are generated due to an application for innovative services and novel operations. However, allowing public comment under the Commission's existing processes and rules benefits the review process, especially when comments are well thought out, and factually supported. TechFreedom cites to NetworkIP, LLC v. Federal Communications Commission, 548 F.3d 116 (D.C. Cir., 2008) and proposes that the Commission should extend the court's reasoning in that case “to the informal complaint procedures for satellite applications” and hold “all parties to strict filing deadlines”. The Commission finds the court's decision in NetworkIP to be inapposite. In that case, the court found that the FCC's failure to apply its six-month filing deadline by granting a waiver was arbitrary and capricious. 548 F.3d at 128. Unlike the situation in NetworkIP, here, by accepting a filing after the 30-day period and classifying it as an informal objection, the Commission is complying with its rules, not waiving them. The Commission believes the benefit of robust debate and input as part of the record outweighs the concerns about delay, and therefore decline to change the informal objection process. However, in those cases where parties file frivolous pleadings, or pleadings meant solely to delay the process, the Commission reminds them that such filings are prohibited under § 1.52 of the Commission's rules.

60. In the NPRM, the Commission noted its continuing efforts to advance digital equity for all, consistent with the Communications Act and with Executive Order 13985. Specifically, the Commission asked how its streamlining proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well as the scope of the Commission's relevant legal authority. Both SIA and EchoStar assert that efforts to expedite the licensing process will advance digital equity. EchoStar notes that a simpler, more efficient application process supports the Commission's digital equity and inclusion goals and will make it easier for satellite operators to offer services and lower costs to users across the country, including members of historically disadvantaged groups. Additionally, EchoStar notes that a streamlined process makes it more likely that a wide range of applicants will be able to participate in space business. SIA similarly emphasizes the effect of satellite broadband services in closing the digital divide for rural communities in particular and highlights the important role that satellite remote sensing services can play in natural and cultural resource management on Tribal lands. SIA also urges the Commission to “continue to adopt rules that remain neutral with respect to the business models of the satellite systems that the Commission authorizes . . . [which] will ensure that the benefits of broadband satellite services will continue to be available to all end user groups, including underserved consumers, and the business, industries, and government infrastructure that support them and their communities.”

61. The Commission agrees with commenters that its efforts to expedite the application process and increase transparency for applicants will aid in lowering barriers to new entrants into the satellite communications industry. The Commission also agrees that supporting efforts to increase connectivity to historically underserved communities is in line with the Commission's mandate under the Communications Act and Commission efforts to comply with Executive Order 13985. With this in mind, the actions the Commission takes today to increase transparency and guidance for applicants are aimed at increasing accessibility, supporting innovation, and furthering the Commission's goal of increasing connectivity for all.

62. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Expediting Initial Processing of Satellite and Earth Station Applications Notice of Proposed Rulemaking (NPRM) released in December 2022. The Federal Communications Commission (Commission) sought written public comment on the proposals in the NPRM, including comment on the IRFA. No comments were filed addressing the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

63. In recent years, the Commission has received an unprecedented number of applications for earth and space station licenses. The final rule facilitates and expedites the acceptance for filing of satellite and earth station applications under 47 CFR part 25 and adopts other streamlining measure to keep pace with growing demand for satellite services and innovative satellite operations. This rulemaking continues to and will promote competition and innovation among satellite and earth station operators, including the market entry of new competitors by removing barriers to applying for licenses.

64. This document changes to Commission rules aimed at reducing barriers and burdens on satellite operators. Specifically, the document removes and reserves § 25.112(a)(3) thus allowing operators to seek a waiver for operations not in conformance with the international table of allocations. Additionally, the document removes the prohibition on licensed-but-unbuilt systems for NGSO operators by amending §§ 25.159(b) and 25.137(d)(5), and creates a new, streamlined processing framework for earth station operators to add satellite points of communication under certain circumstances. Finally, the document lays the groundwork for a broader transparency initiative led by the Space Bureau to provide clarity and access to applicants when interfacing with the Commission's license application processes and filing system.

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

66. Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments the Chief Counsel for Advocacy of the Small Business Administration (SBA) filed in this proceeding, 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 or policies in this proceeding.

67. 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 Small Business Administration (SBA).

68. Below, the Commission describes and estimate the number of small entities that may be affected by the adoption of the final rules.

69. 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 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 65 providers that reported they were engaged in the provision of satellite telecommunications services. Of these providers, the Commission estimates that approximately 42 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, a little more than half of these providers can be considered small entities.

70. The final rule amends rules that are applicable to earth and space station operators requesting a license or authorization from the Commission, or entities requesting that the Commission grant a request for U.S. market access. The changes adopted in the final rule, as described below, will decrease the burden for small entities and other business operators. Specifically, this final rule eliminates the rule requiring automatic dismissal of applications requesting operations not in conformance with the international table of allocations, eliminates the NGSO unbuilt systems rule, and creates an expedited licensing process for certain earth station operators to add points of communication. Further, in light of these limited changes and rule reductions, the Commission does not believe that small entities will have to hire professionals to comply with the final rule.

71. 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.

72. The final rule amends the Commission's rules governing acceptability for filing by removing and reserving § 25.112(a)(3), which led to automatic dismissals of applications that proposed frequency operations not in conformance with the international table of frequency allocations. By removing this barrier, applicants may now apply for a waiver of the international table, just as operators applying under the small satellite or small spacecraft streamlined procedures have been able to do and just as all operators have been able to apply for waivers of the U.S. table of frequency allocations.

73. As an alternative, the Commission could have left 25.112(a)(3) in place. This would have potentially created a barrier to innovative uses of spectrum and stifled the development of the industry, including for small entities. The Commission allowed waivers of the international table of frequency allocations for small satellites and small spacecraft through its streamlined rulemaking processes, found at §§ 25.122 and 25.123 respectively. However, small entities as defined for purposes of the RFA do not always align with the requirements to apply for a license under the small satellite or small spacecraft streamlined process. By removing 25.112(a)(3), all applicants may now seek a waiver for nonconforming use instead of risking automatic dismissal of an application that required time and resources to file.

74. In addition, the final rule removes the prohibition on applicants from applying for an additional NGSO-like satellite system license in a particular frequency band if that party already had a licensed-but-unbuilt NGSO-like satellite system in the band. By removing this prohibition the Commission eliminates an additional barrier to applicants in moving forward with their satellite operations while maintaining safeguards against speculative license applications through the Commission's bond and milestone requirements.

75. As an alternative, the Commission could have allowed applicants to seek waivers of the prohibition on a case-by-case basis. This alternative would have been more costly to small entities, requiring additional resources to craft a request for waiver as part of their application or to engage with outside counsel to assist with crafting the waiver request. Leaving the rule as is would have potentially created a barrier to small entities to apply for a license and expand their operations.

76. The final rule creates a new, streamlined review process under § 25.117 (Modification of station licenses) for earth station operators to add points of communication under specific circumstances. The Commission identified a set of circumstances under which the review process can be expedited and applications for this modification can be deemed granted 35 days after being placed on public notice. This new process will allow applicants to add points of communication to their operations at a quicker pace, thus creating an economic benefit to operators as well as a benefit to the public who will be able to access the services being provided sooner.

77. The Commission will send a copy of the Report and Order, 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 Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

78. It is ordered , pursuant to Sections 4(i), 7(a), 301, 303, 307, 309, 310, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 301, 303, 307, 309, 310, 332, that this Report and Order is adopted , the policies, rules, and requirements discussed herein are adopted , Part 25 of the Commission's rules is amended as set forth in Appendix A.

79. It is further ordered that Part 25 of the Commission's Rules is amended as set forth in Appendix A and such rule amendments will become effective 30 days after publication in the Federal Register .

80. It is further ordered that the Office of the Secretary, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with Section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

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

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 25 as follows:

Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the BSAI. The Council prepared the FMP, and NMFS approved it, under the Magnuson-Stevens Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

On August 8, 2023, NMFS published a final rule to implement Amendment 122 to the FMP (Amendment 122), which establishes a limited access privilege program to harvest Pacific cod in the BSAI trawl catcher vessel (CV) sector (the PCTC Program). The PCTC Program allocates Pacific cod quota share to qualifying groundfish License Limitation Program license holders and qualifying processors and requires participants to form cooperatives to harvest the quota. A complete description of the purpose and background of Amendment 122 is in the proposed rule for that action (88 FR 8592, February 9, 2023), as well as the final rule (88 FR 53704, August 8, 2023).

In order to effectively manage the BSAI Pacific cod trawl CV fisheries in the beginning of 2024, NMFS must revise the final 2023 and 2024 harvest specifications (88 FR 14926, March 10, 2023) for 2024 to be consistent with Amendment 122 and implementing regulations. The final rule to implement Amendment 122 revised the Pacific cod trawl CV allocations in the BSAI by implementing the PCTC Program in the BSAI. Additionally, the final rule revised the crab and halibut PSC limits for the BSAI trawl limited access sector to implement the PCTC Program in the BSAI. These regulatory revisions, as well as additional revisions necessary to be consistent with Amendment 122 and implementing regulations (such as groundfish and halibut PSC sideboard limits), will be incorporated into future harvest specifications for the BSAI groundfish fisheries, starting with the proposed 2024 and 2025 harvest specifications, which should be published in December 2023. The final 2024 and 2025 harvest specifications should be published by March 2024.

Based on the approval of Amendment 122 and its implementing regulations at 50 CFR part 679 (effective September 7, 2023), NMFS is revising the final 2023 and 2024 harvest specifications for 2024 for trawl CV Pacific cod in the BSAI. With this final rule, NMFS revises tables 9 and 16 and adds table 16a in the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023) to be consistent with the final rule implementing Amendment 122. Tables 9 and 16 were originally published in the final 2023 and 2024 harvest specifications for the BSAI. This final rule uses the same table numbers and titles for tables 9 and 16 that were used in the final 2023 and 2024 harvest specifications and adds table 16a. However, the title of table 16 is revised to remove the term “AND 2024” and the reasons for this revision are addressed in the next section.

Table 9 lists the final 2024 Pacific cod Community Development Quota (CDQ) and non-CDQ TAC amounts; non-CDQ seasonal allowances by gear; the sector allocations of Pacific cod; and the seasons set forth at § 679.23(e)(5). The table published in the final 2023 and 2024 harvest specifications reflects the trawl CV sector allocation and seasonal allowances, consistent with the regulations in effect when the final 2023 and 2024 harvest specifications were published. Table 9 must be revised to reflect the trawl CV Incidental Catch Amounts (ICAs) and PCTC Program allocations for the A and B seasons in accordance with regulatory changes made under Amendment 122. Pursuant to § 679.131(b), the A and B season trawl CV Pacific cod TAC specified for the BSAI is now allocated between the ICA and the PCTC Program. This is a change from 2023 and prior years, when the trawl CV A and B Pacific cod seasons were not further allocated. This final action revises table 9 to incorporate the correct sector allocations and seasonal allowances for 2024 Pacific cod in the BSAI.

Table 16 lists the seasonal allocations of the 2023 and 2024 crab and halibut PSC limits in the BSAI for the BSAI trawl limited access sector by fishery category and season. These allocations are made pursuant to § 679.21(b) and (e) (as revised). The table published in the final 2023 and 2024 harvest specifications incorporates fishery categories and seasonal apportionments for the trawl CV sector and American Fisheries Act (AFA) catcher/processor (CP) sector. NMFS is removing “AND 2024” from the title for table 16 and is adding table 16a to incorporate the correct 2024 PCTC Program allocations to trawl CVs and AFA CPs in accordance with regulatory changes made under Amendment 122. For the PCTC Program, NMFS will apportion the crab PSC limit assigned to the BSAI trawl limited access sector Pacific cod fishery to the trawl CV sector at 90.6 percent and to the AFA CP sector at 9.4 percent (§ 679.131(d)). NMFS will apportion the halibut PSC limit assigned to the BSAI trawl limited access sector Pacific cod fishery to the trawl CV sector at 98 percent and to the AFA CP sector at 2 percent (§ 679.131(c)). NMFS will then apportion the crab and halibut PSC limit to the trawl CV sector for the A and B seasons combined (January 20 through June 10), and C season (June 10 through November 1). Of the crab and halibut PSC limit apportioned to the trawl CV sector, 95 percent will be available for the PCTC Program in the combined A and B seasons and 5 percent is available for the C season.

To implement the crab and halibut PSC reductions under the PCTC Program, NMFS will annually apply a fixed percentage reduction to the combined A and B seasons PSC apportionment derived from the Pacific cod trawl CV sector halibut PSC apportionment because the specific percentage of the total halibut PSC limit assigned to the BSAI trawl limited access sector (§ 679.21(b)(1)(ii)), as well as the total crab PSC limit assigned to the BSAI trawl limited access sector (§ 679.21(e)(3)(i)), may change annually. The total crab PSC reduction under the PCTC Program is 35 percent, and NMFS is fully implementing this reduced PSC limit in the 2024 harvest specifications. The total halibut PSC reduction under the PCTC Program is 25 percent, which will be phased in over 2 years, consistent with the PCTC Program regulations (§ 679.131(c)(1)(iii)). In the first year of the PCTC Program, NMFS is applying a 12.5 percent reduction to the combined A and B seasons trawl CV sector halibut PSC apportionment in the 2024 harvest specifications. In the second year and every year thereafter, NMFS will apply the 25 percent reduction to the combined A and B season trawl CV sector halibut PSC apportionment. This final action revises table 16 to remove “AND 2024” because this revision action requires a new table for 2024.

This final rule is necessary to ensure that appropriate Pacific cod allocations and crab and halibut PSC limits will be in effect for the beginning of the 2024 fishing year for those fishery participants affected by the PCTC Program changes that were established under Amendment 122 and its implementing regulations. These changes to the Pacific cod allocations and crab and halibut PSC limits also will be incorporated in future harvest specifications for the BSAI groundfish fisheries.

NMFS issues the groundfish harvest specifications pursuant to 305(d) of the Magnuson-Stevens Act. Through previous actions, the FMP and regulations authorize NMFS to issue the groundfish harvest specifications. See 50 CFR part 679. The NMFS Assistant Administrator has determined that these revisions to the final 2023 and 2024 harvest specifications for 2024 are consistent with the FMP, the Magnuson-Stevens Act, and other applicable laws.

This action is authorized under 50 CFR 679.20 and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), the NMFS Assistant Administrator finds good cause to waive prior notice and opportunity for public comment on this action as notice and comment would be unnecessary and contrary to the public interest. Through this action, NMFS revises the final 2024 BSAI harvest specifications to be consistent with the final rule implementing Amendment 122 to the FMP and to ensure that the 2024 trawl CV Pacific cod allocation and PSC limit changes implemented under Amendment 122 and its final rule will be effective at the beginning of the 2024 fishing year. Prior notice and opportunity for public comment on this action is unnecessary because the revisions from this action merely update the 2024 BSAI harvest specifications to reflect allocations and PSC limits implemented and required by the final rule for Amendment 122: the 2023 and 2024 groundfish harvest specifications have already been subject to notice and comment, and the final rule and Amendment 122 were also already subject to notice and comment. This action does not revise the final 2023 and 2024 BSAI harvest specifications in any substantive manner not previously the subject of notice and comment during the development of Amendment 122 and implementing regulations.

In addition, it is important and necessary that the Pacific cod allocations and PSC limits revised under Amendment 122 and its implementing regulations are effective at the beginning of the 2024 fishing year, rather than waiting to implement the revisions in the final 2024 and 2025 BSAI harvest specifications, which will not be effective until after the start of the 2024 fishing year. The current 2023 and 2024 BSAI harvest specifications became effective before Amendment 122 was published. The Pacific cod fisheries in the BSAI are intensive, fast-paced fisheries. U.S. fishing vessels have demonstrated the capacity to catch the Pacific cod TAC allocations in these fisheries. This fleet in particular targets much of their annual catch early in the year when fish school up to spawn. Much of this fishing will be over by when the final 2024 and 2025 BSAI harvest specifications publish in February or March of 2024. The harvest specifications rely upon annual surveys and analyses to set the following year's allocations. Such surveys were not available in time to assess the data and publish this rule any sooner. Any delay in allocating the 2024 Pacific cod trawl CV TACs under Amendment 122 and its implementing regulations would cause confusion to the industry and potential economic harm through unnecessary discards.

Determining which fisheries may close is impossible because these fisheries are affected by several factors that cannot be predicted in advance, including fishing effort, weather, movement of fishery stocks, and market price. Furthermore, the closure of one fishery has a cascading effect on other fisheries by freeing up fishing vessels, allowing them to move from closed fisheries to open fisheries, increasing the fishing capacity in those open fisheries, and causing them to close at an accelerated pace. Accordingly, waiver of prior notice and opportunity for public comment and publication of this final rule is necessary to ensure that the allocations and limitations required under the final rule to implement Amendment 122 will be effective at the beginning of the 2024 fishing year and to provide the regulated community with timely, adequate, and accurate information necessary to allow the industry to plan for the 2024 fishing season, to conduct orderly and efficient fisheries, and to avoid potential disruption to the fishing fleet and processors.

For the same reasons, NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in the effective date.

NMFS prepared a Final EIS for the Alaska groundfish harvest specifications and alternative harvest strategies (see ADDRESSES ) and made it available to the public on January 12, 2007 (72 FR 1512). On February 13, 2007, NMFS issued the ROD for the Final EIS. In January-February 2023, NMFS prepared a SIR for the 2023 and 2024 harvest specifications and determined that a supplemental EIS is not necessary to implement the 2023 and 2024 harvest specifications. Copies of the Final EIS, ROD, and annual SIRs for this action are available from NMFS (see ADDRESSES ). NMFS also prepared an EA and FONSI in conjunction with Amendment 122 to the BSAI FMP (See ADDRESSES ).

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act are inapplicable. This rule modifies the final 2023 and 2024 harvest specifications to be consistent with Amendment 122 and implementing regulations, for both of which NMFS prepared a FRFA. A FRFA was prepared to evaluate the impacts on small entities resulting from establishing the final 2023 and 2024 harvest specifications, in accordance with Section 604 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 604). The FRFA was published with the harvest specifications final rule (88 FR 14926, March 10, 2023) and is not repeated here. Additionally, an initial regulatory flexibility analysis (IRFA) and FRFA were prepared for Amendment 122. The FRFA for Amendment 122 incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS's responses to those comments, and a summary of the analyses completed to support the action.

This action does not modify recordkeeping or reporting requirements, or duplicate, overlap, or conflict with any Federal rules.

This rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. A FRFA was not required to implement this rule.

NMFS, however, provides the following information as a plain language guide to assist small entities in complying with this final rule. This final rule is necessary to revise final 2023 and 2024 harvest specifications for 2024 Pacific cod allocations and crab and halibut PSC limits in the BSAI so that the allocations and PSC limits are consistent with new fishery allocations and PSC limits established under the final rule to implement Amendment 122. This action affects all fishermen who participate in the trawl CV and AFA CP sectors Pacific cod fisheries in the BSAI. The specific amounts of Pacific cod TAC apportionments and PSC limit allocations are provided in tabular form to assist the reader. NMFS will announce closures of directed fishing in the Federal Register and in information bulletins released by the Alaska Region. Affected fishermen should keep themselves informed of such closures. Additional information on the PCTC Program, including a small entity compliance guide, can be found on the NMFS Alaska Region website at https://www.fisheries.noaa.gov/s3/2023-08/PCTC-Small-Entity-Compliance-Guide-FAQ.pdf.