This action, pursuant to 5 U.S.C. 553, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 985, as amended (7 CFR part 985), regulating the handling of spearmint oil produced in the Far West. Part 985 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and comprises spearmint oil producers operating within the area of production, and a public member.

The Agricultural Marketing Service (AMS) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866 and 13563 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This proposed action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This proposed rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires Federal agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined that this proposed rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

This proposed rule has been reviewed under Executive Order 12988—Civil Justice Reform. This proposed rule is not intended to have retroactive effect. Under the Order now in effect, salable quantities and allotment percentages have been established for classes of spearmint oil produced in the Far West. This proposed rule would increase the quantity of Native Spearmint oil produced in the Far West that handlers may purchase from, or handle on behalf of, producers during the 2024-2025 marketing year, which began on June 1, 2024.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This proposal invites comments on revisions to the quantity of Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2024-2025 marketing year. Prior to this proposed rule, the salable quantity and allotment percentage for Native spearmint oil was initially established at 678,980 pounds and 26 percent, respectively, in a final rule published May 23, 2024 (89 FR 45557). This proposed rule would increase the Native spearmint oil salable quantity from 678,980 pounds to 731,220 pounds and the allotment percentage from 26 percent to 28 percent.

Pursuant to the requirements in § 985.50 of the Order, the Committee meets each year to consider supply and demand of spearmint oil and to adopt a marketing policy for the ensuing marketing year. In determining such marketing policy, the Committee considers several factors, including, but not limited to, the current and projected supply of oil, estimated future demand, production costs, and producer prices for both Class 1 (Scotch) and Class 3 (Native) spearmint oil. Input from spearmint oil handlers and producers are considered as well.

Pursuant to the provisions in § 985.51, when the Committee's marketing policy considerations indicate a need to establish or to maintain stable market conditions through volume regulation, the Committee subsequently recommends to AMS the establishment of a salable quantity and allotment percentage for such class or classes of oil for the upcoming marketing year. Recommendations for volume control are intended to ensure market requirements for Far West spearmint oil are satisfied and orderly marketing conditions are maintained.

Salable quantity represents the total quantity of each class of oil (Scotch or Native) which handlers may purchase from, or handle on behalf of, producers during a given marketing year. The allotment percentage for each class of spearmint oil is the salable quantity for that class of oil divided by the total of all producers' allotment base for the same class of oil. A producer's allotment base is their calculated share of the spearmint oil market based on a statistical representation of past spearmint production and sales. In order to account for changes in production and demand over time, the Committee periodically reviews and adjusts each producer's allotment base in accordance with a formula prescribed by the Committee and approved by AMS. Each producer's annual allotment of the salable quantity is calculated by multiplying their respective allotment base for each class of spearmint oil by the allotment percentage for that class of spearmint oil. The total allotment base is revised each year on June 1 to account for producer allotment base being lost because of the “bona fide effort” production provision of § 985.53(e) and additional base made available pursuant to the provisions of § 985.153.

The Committee met on October 11, 2023, to consider its marketing policy for the 2024-2025 marketing year. At that meeting, the Committee determined that, based on the current market and supply conditions, volume regulation for both classes of oil would be necessary. The Committee unanimously recommended salable quantities and allotment percentages for Native spearmint oil of 678,980 pounds and 26 percent, respectively. In addition, the Committee unanimously recommended a salable quantity and allotment percentage for Scotch spearmint oil of 663,648 pounds and 29 percent, respectively. A proposed rule to that effect was published in the Federal Register on January 25, 2024 (89 FR 4835). Comments on the proposed rule were solicited from interested persons until February 26, 2024. No comments were received. Subsequently, a final rule establishing the salable quantities and allotment percentages for Scotch and Native spearmint oil for the 2024-2025 marketing year was published in the Federal Register on May 23, 2024 (89 FR 45557).

Pursuant to authority contained in §§ 985.50, 985.51, and 985.52, the Committee met again on October 9, 2024, to evaluate the current year's volume control regulation. At the meeting, the Committee assessed the current market conditions for spearmint oil in relation to the salable quantities and allotment percentages established for the 2024-2025 marketing year. The Committee considered several factors, including the current and projected supply and the estimated future demand for all classes of spearmint oil. The Committee determined that the established salable quantity and allotment percentage in effect for Native spearmint oil for the 2024-2025 marketing year should be increased to provide an adequate buffer to ensure available supply would continue to meet demand.

At the October 9, 2024, meeting, the Committee recommended increasing the 2024-2025 marketing year Native spearmint oil salable quantity from 678,980 pounds to 731,220 pounds and the allotment percentage from 26 percent to 28 percent. The recommendation to increase the salable quantity and allotment percentage passed with a vote of 6 in favor with 2 opposed. The members voting against the recommendation supported volume control, but did not believe that additional supply would be necessary to meet 2024-2025 marketing year demand.

Accordingly, this proposed rule would make additional amounts of Native spearmint oil available to the market by increasing the salable quantity and allotment percentage previously established under the Order for the 2024-2025 marketing year. This proposed rule would increase the Native spearmint oil salable quantity by 52,240 pounds, to 731,220 pounds, and would raise the allotment percentage 2 percentage points, to 28 percent. Such additional oil could come from 2024-2025 marketing year production or from releasing Native spearmint oil held by producers in the reserve pool. As of May 31, 2024, the Committee records show that the reserve pool for Native spearmint oil contained 1,026,336 pounds of oil.

At the October 9, 2024, meeting, the Committee staff reported, as of the meeting date, there was an estimated 356,302 pounds of salable quantity of Native spearmint available for purchase in the 2024-2025 marketing year, ending May 31, 2025. The Committee considered this amount to be low for this early in the marketing year. Based on the Committee's estimated sales demand for Native spearmint oil for the remainder of the 2024-2025 marketing year, the Committee projected that approximately 125,000 pounds of Native spearmint oil may be carried into the 2025-2026 marketing year. However, the Committee was concerned that, without increasing the salable quantity and allotment percentage, the market for Native spearmint oil may be shorted if demand were to increase unexpectedly. The increased quantity of Native spearmint oil (52,240 pounds) that would be made available to the market because of this rulemaking would ensure that market demand is fully satisfied in the current year. Should the available supply of Native spearmint oil exceed 2024-2025 marketing year demand, any unsold quantity would remain available to the market in future marketing years as salable carry-in.

In making the recommendation to increase the salable quantity and allotment percentage of Native spearmint oil, the Committee considered all currently available information on the price, supply, and demand of Native spearmint oil. The Committee also considered reports and other information from handlers and producers in attendance at the meeting. Lastly, the Committee manager presented information and reports that were provided to the Committee staff by handlers and producers.

This proposal would increase the 2024-2025 marketing year Native spearmint oil salable quantity by 52,240 pounds to a total of 731,220 pounds. This amount, along with 446,420 pounds of salable carry-in, would result in available supply of 1,177,640 pounds. The Committee estimates 2024-2025 marketing year trade demand for Native spearmint oil to be 1,000,000 pounds. Actual sales of Native spearmint oil for the 2023-2024 marketing year totaled 987,041 pounds. The 5-year average of Native spearmint oil sales is 1,085,916 pounds.

The Committee estimates that this action would result in approximately 175,000 pounds of salable Native spearmint oil could be carried into the 2025-2026 marketing year which begins June 1, 2025. The Committee believes that this amount to be a sufficient buffer if demand exceeds the Committee's expectations for the remainder of the 2024-2025 marketing year. In addition, reserve pool oil could be released into the market under a future relaxation of the volume regulation should it be necessary to adequately supply the market prior to the beginning of the 2025-2026 marketing year. The Committee estimates that a total of 1,335,150 pounds of Native spearmint oil (1,026,336 currently in reserve and an estimated 308,814 pounds of excess oil produced during the 2024-2025 marketing year) would be available from the reserve pool, if needed.

The Committee's stated intent in the use of the Order's volume control regulation is to keep adequate supply available to meet market needs and to maintain orderly marketing conditions. With that consideration, the Committee developed its recommendation for increasing the Native spearmint oil salable quantity and allotment percentage for the 2024-2025 marketing year based on the information discussed above, as well as the summary data detailed below.

(A) Initial Estimated 2024-2025 Native Allotment Base—2,611,463 pounds. This figure is the allotment base estimate on which the original 2024-2025 salable quantity and allotment percentage was based.

(B) Revised 2024-2025 Native Allotment Base—2,611,500 pounds. This figure is 37 pounds more than the initial estimated allotment base of 2,611,463 pounds. The difference is the result of annual adjustments made to the allotment base at the beginning of the marketing year in accordance with the provisions of the Order.

(C) Initial 2024-2025 Native Allotment Percentage—26 percent. This percentage was unanimously recommended by the Committee on October 11, 2023.

(D) Initial 2024-2025 Native Salable Quantity—678,980 pounds. This figure is 26 percent of the original estimated 2024-2025 allotment base of 2,611,463 pounds.

(E) Adjusted Initial 2024-2025 Native Salable Quantity—678,990 pounds. This figure reflects the salable quantity available at the beginning of the 2024-2025 marketing year. This quantity is derived by applying the initial 26 percent allotment percentage to the revised allotment base of 2,611,500.

(F) Proposed Revision to the 2024-2025 Native Salable Quantity and Allotment Percentage:

(1) Proposed Increase in the Native Allotment Percentage—2 percent. The Committee recommended an increase of 2 percentage points over the initial Native allotment percentage.

(2) Proposed Revised 2024-2025 Native Allotment Percentage—28 percent. This percentage was derived by adding the increase of 2 percentage points to the initially established 2024-2025 Native allotment percentage of 26 percent.

(3) Proposed Revised 2024-2025 Native Salable Quantity—731,220 pounds. This figure is 28 percent of the revised 2024-2025 Native allotment base of 2,611,500 pounds.

(4) Computed Increase in the 2024-2025 Native Salable Quantity as a Result of the Proposed Revision—52,240 pounds. This figure represents the difference between the initial 2024-2025 Native salable quantity of 678,980 pounds and the proposed Native salable quantity of 731,220 pounds.

Scotch spearmint oil is also regulated by the Order. As mentioned previously, a salable quantity and allotment percentage for Scotch spearmint oil was established in a final rule published in the Federal Register on May 23, 2024 (89 FR 45557). At the October 9, 2024, meeting, the Committee considered the projected production, inventory, and marketing conditions for Scotch spearmint oil for the 2024-2025 marketing year. After receiving reports from the Committee staff and comments from the industry, the consensus of the Committee was that the previously established salable quantity and allotment percentage for Scotch spearmint oil was appropriate for the current market conditions. As such, the Committee took no further action with regards to Scotch spearmint oil for the 2024-2025 marketing year.

This proposed rule would relax the volume regulation requirements of Native spearmint oil and would allow producers to meet market demand while improving producer returns. The proposed increase in the Native spearmint oil salable quantity and allotment percentage would account for the anticipated market needs for that class of oil. In determining anticipated market needs, the Committee considered changes and trends in historical sales, production, and demand. In conjunction with the issuance of this proposed rule, AMS has reviewed the Committee's marketing policy statement for the 2024-2025 marketing year. The Committee's marketing policy statement, a requirement whenever the Committee recommends volume regulation, meets the requirements of §§ 985.50 and 985.51.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 89 producers of Native spearmint oil operating within the regulated production area. In addition, there are approximately 6 Native spearmint oil handlers subject to regulation under the Order. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of equal to or less than $34.0 million (Postharvest Crop Activities, NAICS code 11514). Small agricultural producers of spearmint oil are defined as those having annual receipts of equal to or less than $2.5 million (All Other Miscellaneous Crop Farming, NAICS code 111998) (13 CFR 121.201).

The National Agricultural Statistics Service (NASS) reported that the 2023 U.S. season average spearmint oil producer price per pound was $18.40 (both Scotch and Native). Native spearmint oil utilization for the 2023-2024 marketing year, as reported by the Committee, was 987,041 pounds for Native spearmint oil. Multiplying $18.40 per pound by 2023-2024 marketing year spearmint oil utilization of 987,041 pounds yields a crop value estimate of about $18.2 million.

Given the accounting requirements for the volume regulation provisions of the Order, the Committee maintains accurate records of each producer's production and sales. Using the $18.40 average spearmint oil price and Committee production data for each producer, the Committee estimates that all of the 89 Native spearmint oil producers could be classified as small entities under the SBA definition.

There is no third-party or governmental entity that collects and reports spearmint oil prices received by spearmint oil handlers. However, the Committee estimates an average spearmint oil handling markup at approximately 20 percent of the price received by producers. Twenty percent of the 2023 producer price ($18.40) is $3.68, which results in a handler Free on Board (f.o.b.) price per pound estimate of $22.08 ($18.40 + $3.68).

Multiplying this estimated handler f.o.b. price by the 2023-2024 marketing year total spearmint oil utilization of 1,536,364 pounds (987,041 pounds of Native + 549,323 pounds of Scotch) results in an estimated handler-level spearmint oil value of $33.9 million. Dividing this figure by the number of handlers (6) yields estimated average annual handler receipts of about $5.7 million, which is well below the $34.0 million SBA threshold for small agricultural service firms.

Furthermore, using confidential data compiled by the Committee on the pounds of spearmint oil handled by each handler and the abovementioned estimated handler price per pound, the Committee reported that it is not likely that any of the six handlers had 2023-2024 marketing year spearmint oil sales that exceeded SBA's threshold.

Therefore, in view of the foregoing, the majority of producers of spearmint oil may be classified as small entities, and all of the handlers of spearmint oil may be classified as small entities.

This proposed rule would increase the quantity of Native spearmint oil produced in the Far West, which handlers may purchase from, or handle on behalf of, producers during the 2024-2025 marketing year, which ends May 31, 2025. The 2024-2025 marketing year Native spearmint oil salable quantity was initially established at 678,980 pounds and the allotment percentage initially set at 26 percent. This proposed rule would increase the Native spearmint oil salable quantity to 731,220 pounds and the allotment percentage to 28 percent. The Committee recommended this proposed action to help maintain stability in the spearmint oil market by matching supply to estimated demand, thereby avoiding extreme fluctuations in supplies and prices. Establishing quantities that may be purchased from or handled on behalf of producers during the marketing year through volume regulation allows producers to coordinate their spearmint oil production with the expected market demand. Authority for this proposal is provided in §§ 985.50, 985.51, and 985.52 of the Order.

Based on the information and projections available at the October 9, 2024, meeting, the Committee considered several alternatives to this increase. The Committee considered leaving the salable quantity and allotment percentage unchanged, and also considered other potential levels of increase. The Committee reached its recommendation to increase the salable quantity and allotment percentage for Native spearmint oil after careful consideration of all available information and input from all interested industry participants and believes that the levels recommended would achieve the desired objectives. The recommendation to increase the salable quantity and allotment percentage passed with a vote of 6 in favor with 2 opposed. The members voting against the recommendation supported volume control, but did not believe that additional supply would be necessary to meet 2024-2025 marketing year demand. Without the increase, the Committee believes the industry may not be able to satisfactorily meet market demand.

The Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the October 9, 2024, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements would be necessary because of this proposed rule. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would relax the volume regulation requirements established under the Order. Accordingly, this action would not impose any additional reporting or recordkeeping requirements on either small or large Far West spearmint oil handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendations submitted by the Committee and other available information, AMS has determined that this proposed rule is consistent with and would effectuate the purposes of the Act.

A 15-day comment period is provided to allow interested persons to respond to this proposal. Fifteen days is deemed appropriate because handlers are aware of this proposed regulatory relaxation, which was recommended by the Committee at a public meeting, and the subject matter of this proposal is not complex. The 2024-2025 marketing year ends on May 31, 2025. For the additional salable quantity proposed in this rule to be available to the market, timely consideration of the proposal is essential to ensure orderly market conditions. AMS will consider all timely comments received before making a final determination on this matter.

Section 510(k) of Title V the Housing Act of 1949 [42 U.S.C. 1480(k)], as amended, authorizes the Secretary of the Department of Agriculture to promulgate rules and regulations as deemed necessary to carry out the purpose of that title. The Self-Help program is authorized under Section 523 of Title V the Housing Act of 1949 (42 U.S.C. 1490(c)), as amended, authorizes the Secretary of the Department of Agriculture to promulgate rules and regulations as deemed necessary to carry out the purpose of that title. The program is implemented under 7 CFR part 1944, subpart I.

The RHS offers a variety of programs to build or improve housing and essential community facilities in rural areas. RHS offers loans, grants, and loan guarantees for single- and multifamily housing, childcare centers, fire and police stations, hospitals, libraries, nursing homes, schools, first responder vehicles and equipment, housing for farm laborers. RHS also provides technical assistance loans and grants in partnership with non-profit organizations, Indian Tribes, state and federal government agencies, and local communities.

Well built, affordable housing is essential to the vitality of communities in rural America. RD SFH Programs give families and individuals the opportunity to buy, build, or repair affordable homes located in rural America. Eligibility for these loans, loan guarantees, and grants is based on income and varies according to the average median income for each area.

Section 510(k) of Title V the Housing Act of 1949 [42 U.S.C. 1480(k)], as amended, authorizes the Secretary of the Department of Agriculture to promulgate rules and regulations as deemed necessary to carry out the purpose of that title. The Self-Help program is authorized under Section 523 of Title V the Housing Act of 1949 (42 U.S.C. 1490(c)), as amended, authorizes the Secretary of the Department of Agriculture to promulgate rules and regulations as deemed necessary to carry out the purpose of that title. The RHS administers the Section 523 Self-Help Housing Technical Assistance Grant Program which is implemented under 7 CFR 1944, Subpart I and authorized by the Housing Act of 1949, as amended (42 U.S.C. 1490c). The purpose of the program is to provide grants to qualified organizations to help them carry out local self-help housing construction projects. Grant recipients supervise groups of very low- and low-income individuals and families as they construct or rehabilitate their homes in rural areas. The group members provide most of the construction labor on each other's homes, and rehabilitation project participants contribute construction hours based on the amount of work being completed, all with technical assistance from the organization overseeing the project. Eligible applicants include government nonprofit organizations, federally recognized Tribes, and private nonprofit organizations.

The SFH program undertook a systematic review of its current regulation at 7 CFR 1944 Subpart I and the procedures to administer its programs. It was determined that several technical corrections and program updates are needed.

The SFH program routinely meets with staff and partners to provide them with the opportunity to discuss suggestions for process improvement(s) to reduce the burden on grantees and borrowers, increase the flexibility of the program and improve overall customer satisfaction. As a result of these consultations, SFH has identified several processes and regulatory improvements which are described in the next section. Continued stakeholder input is vital to ensure the proposed changes would support the Self-Help Program's mission, while ensuring that regulation changes are reasonable and do not overly burden the Agency's staff and their customers.

The following information details the changes in the proposed rule:

(1) Make general revisions to streamline and update 7 CFR part 1944, subpart I:

a. Remove/replace outdated references (e.g., County Office, County Supervisor, and District Director).

State personnel and office locations have changed over the years, and the terms “County Office”, “County Supervisor”, and “District Director” are no longer used by the Agency. The Agency personnel assigned to review Self-help Program applications, and the person assigned to service the grant, could be different people in different parts of the State. The term “Authorized Agency Official” will be used to generalize assignments and allow states the flexibility to assign work for the program as needed.

b. Replace references to “FmHA or its successor agency under Public law 103-354” with “Rural Housing Service” or “Agency.”

In 2006, the FmHA was fully terminated, and its housing and community programs were transferred to the newly formed USDA Rural Development. The proposed rule intends to replace the term “Farmers Home Administration” with the terms “Agency” and “Rural Housing Service.”

c. Replace references to “SF-269A” with “SF-425.”

The Standard Form (SF 269A) was obsoleted several years ago. It will be replaced with the Federal Financial Report, Standard Form (SF)-425.

d. Remove paragraph (d) from 7 CFR 1944.406 “Prohibited use of grant funds.”

Removing 7 CFR 1944.406(d) will align the regulation with 2 CFR part 200 language which allows grant funds to be used for employee training.

e. Remove requirements to submit a preapplication or application in an original and one copy.

The Agency has moved to Electronic Customer Files (ECF) and no longer requires hard copy paper preapplication or applications. This update will streamline and modernize the program while also reducing environmental impact.

f. Revise 7 CFR 1944.424 “Dwelling construction standards.”

The Agency intends to update the paragraph to replace “local codes” with “State, Tribal, or local requirements.”

g. Remove requirement to submit an Affirmative Fair Housing Marketing Plan (AFHMP).

The Agency has determined that the AFHMP is unnecessary considering marketing materials are collected and reviewed along with a very-low outreach plan. The Agency does not have its own AFHMP form, and the Housing and Urban Development form being used by Single-Family Housing has not been kept updated. This action will cause the removal of 1944.410(a)(10) and 1944.410(b)(1)(iv). Self-help organizations are must still comply with all civil right laws as directed in the grant agreement.

(2) Revise 7 CFR 1944.401 “Objectives” to remove outdated and incorrect statements.

The Agency intends to update the introductory paragraph to reflect the program's current objectives and represent the population it is designed to serve.

(3) Revise 7 CFR 1944.403 “Definitions.”

Definitions will be added which are intended to provide additional clarity to stakeholders about the program.

(4) Revise 7 CFR 1944.404(d) to allow `Board of Directors' to be defined at 7 CFR 1944.403 “Definitions.”

SFH has determined that the language in this part of the regulation is out of place and should be moved to the definitions section. In addition, the requirement for all organizations to have a specific number of board members has been overly restrictive in some extremely rural areas. The Agency proposes to provide organizations with more flexibility related to the required number of board members in the regulatory definitions section.

(5) Revise 7 CFR 1944.407 “Limitations.”

This section of the regulation limits the amount of technical assistance (TA) an organization may apply for. The Agency proposes that the limitations in paragraphs (a), (b), (c), and (d) should be as follows:

Remove the following sentence in paragraph (a), “Upon request, the County Supervisor will provide the grantee the average cost of modest homes for the area.” The equivalent value of a modest home will be established by the Agency on an annual basis as described in the definition at 7 CFR 1944.403. The National Office will use a percentage of the area loan limit to establish the equivalent value of a modest home annually.

Revise paragraph (b) “An average TA cost per equivalent unit that does not exceed the difference between the equivalent value of modest homes in the area and the average mortgage of the participating families minus $1,000” to increase to `. . . minus $10,000' which will reduce the historically higher than necessary amount that can be charged to the grant.

Revise paragraph (c) and move to paragraph (d) to remove the State Director's approval of a technical assistance cost above the limits set in paragraphs (a) and (b) in favor of this approval being at the National Office level. Add other limitations may apply which will be released in an annual funding policy. As program funding remains unchanged or decreases annually, funding limitations may be necessary to manage program funds.

The revised paragraph (c) will add a maximum TA cost per equivalent unit for rehabilitation-type programs. The maximum TA cost per equivalent unit will be no more than a percentage of the cost of the equivalent value of modest homes built in the area. The levels will be set in the regulation as not to exceed 12 percent for acquisition rehab, and 9 percent for owner-occupied.

(6) Revise 7 CFR 1944.409 “Intergovernmental Consultation, Executive Order 12372.”

The Agency intends to update the title and paragraph language of this section.

(7) Revise 7 CFR 1944.410 “Processing preapplications, applications, and completing grant dockets.”

As a consequence of historically limited funding for the Self-help Program, funds have not been available for predevelopment grant awards. Proposed changes to the regulation will include items typically collected during the preapplication phase being incorporated into a part of the application docket.

Other proposed changes/clarifications to § 1944.410 include:

Add the requirement to submit the organization's previous years financial audit in paragraph (a)(3).

Remove the current requirement in paragraph (a)(5) “. . . living in houses that are deteriorated, dilapidated, overcrowded, and/or lacking plumbing facilities.”

Specify in paragraph (b) that a preapplication review will only be completed when preapplications are accepted by the Agency. Typically, the full application docket will be reviewed.

Remove references to Form AD 622, “Notice of Preapplication Review Action” in paragraphs (b)(4)(i), (ii), and (e) in favor of issuing a letter of conditions for eligible preapplications/applications or denial letter with appeal rights for those found to be ineligible.

Remove the $10,000 limit in paragraph (d), and the up to six-month period of performance stipulation for predevelopment grants. Should funding allow for predevelopment grants these limitations will be set in an annual funding policy or other public release announcing the acceptance of preapplications.

In paragraph (e)(2) at the time of application, specify that the first group can be determined eligible by the Agency or the organization; and in paragraph (3) lots do not need to be optioned; however, both will be a condition of closing. The Agency does not have funding for predevelopment grants to aid organizations in meeting these requirements, and in many cases, it is unreasonable to have a group ready to begin construction prior to the approval of the application.

In paragraph (e)(7) clarify that a detailed budget is required in addition to SF 424A.

Remove paragraph (c) and renumber paragraphs (d) and (e) accordingly.

(8) Update 7 CFR 1944.411 paragraphs (e) and (g) requirements for fidelity bonding and to establish an interest-bearing checking account.

The regulation currently prohibits Grantees from drawing funding beyond a 30-day advancement, thus fidelity bonding is not needed. The Agency proposes to revise this section to read “The grantee has established an interest-bearing checking account in accordance with 2 CFR 200.305(b)(8).”

(9) Remove 7 CFR 1944.412 “Docket preparation” chart in favor of an application checklist to be provided by the program office.

Remove the chart currently in this section and include a complete application checklist provided by the program office. Electronic applications will be accepted.

(10) Revise 7 CFR 1944.413 “Grant approval” to reflect the current practices.

The National Office reviews, approves, and obligates all funding for the Self-help Program. The current process for application review is the docket will first be reviewed by the Technical and Management Assistance (T&MA) Contractor before submission to the RD Office designated by the State. After the field review and recommendation, the docket is submitted to the National Office for final review, approval, and funding. In addition to outlining this process, paragraph (a)(2) will be edited to remove reference to the Finance Office, as the Finance Office no longer processes obligations or fund disbursements as described. Reference to and use of Form RD 440-57 will be removed.

(11) Revise 7 CFR 1944.415 “Grant approval and other approving authorities.”

Funding for the Self-help Program remains limited, and the National Office must retain grant approval authority to manage the allocation of funds. SFH proposes to remove the State Director grant approval limits in paragraphs (a) and (b), and to combine the new paragraphs into one paragraph (a).

Renumber paragraph (d) to be paragraph(c), and update the former paragraph (d), (1), (2) and (3) regarding the Agency official authorized to approve monthly expenditures when a grantee serves more than one county or state. The monthly expenditures should normally be approved by the Housing Program Director or designee and update the options for grantees working in multiple states. Should an organization propose to operate in more than one state the National Office will determine the appropriate approval official.

(12) Update 7 CFR 1944.416 “Grant closing.”

Revise the paragraph to replace `Agreement' with `Grant Agreement' and remove the reference to 7 CFR 1944.403(a);

Add that cost may not be allocated to the Grant Agreement prior to execution; and Authorize the State Director or designee to execute the Grant Agreement on behalf of the Agency.

(13) Update 7 CFR 1944.417 “Servicing actions after grant closing.”

Revise paragraph (a) to state that draws may be requested as needed but no more than monthly, and that funding requests must be accompanied by an actual or projected budget.

Update paragraph (a)(1) to remove references to Form RD 440-57, “Acknowledgment of Obligated Funds/Check Request” which is no longer in use. Form RD 440-57 “Acknowledgment of Obligated Funds/Check Request” will also be removed from paragraph (a) (2)(i) and (ii).

Revise paragraph (b) to specify quarterly reports are based on the grant start date instead of listing the 15th day of January, April, July, and October; change reference to Exhibit B to Subpart I of Part 1944 “Evaluation Report of Self-Help Technical Assistance (TA) Grants” to state that generally a `progress report' and/or `quarterly report' will be submitted to allow for automated reporting systems to be used instead of Exhibit B to Subpart I of Part 1944 “Evaluation Report of Self-Help Technical Assistance (TA) Grants” which will remain in the instruction as a guide where it can be easily updated as needed; replace `should' with `will' in reference to grant oversight quarterly meetings; and add language to allow the option to require more frequent reporting if problems are identified.

In paragraph (b)(1)(iv), remove specific reference to Exhibit B-2 to Subpart I of Part 1944 “Breakdown of Construction Development for Determining Percentage Construction Completed” in favor of the general term `construction development breakdown'.

Add paragraph (b)(1)(v) to reference the new grant goal proposed in 7 CFR 1944.419(a)(5).

Add paragraph (b)(1)(vi) to reference grant goal at 7 CFR 1944.419(a)(6).

(14) Update 7 CFR 1944.419 “Final grantee evaluation.”

The requirements for obtaining a grant rating of `successful' are minimal and do not accurately reflect rating a rehabilitation program. Update the grant goals to establish a minimum sweat equity/cost savings goal as part of the application process.

(15) Update 7 CFR 1944.420 “Extension or revisions of the grant agreement.”

This change updates the grant extension period from a ceiling of no more than one year to less restrictive language of a period that is “reasonable”. Reasonability will be determined based on consideration of grant goals completed, and the timeline to complete the remaining goals. Typically, this will be from one to two years.

(16) Update 7 CFR 1944.421 “Refunding of an existing grantee” to establish a process for `Carry-over' equivalent units.

High producing grantees often start homes in one grant cycle but finish them in another. Language is purposed to allow this practice with parameters.

(17) Revise and update 7 CFR 1944.422 “Audit and other reporting requirements.”

Remove special provisions for nonprofits, State and local governments, and Indian Tribes found at 7 CFR 1944.422 (a) and (b). 2 CFR part 200 does not have these exemptions listed which were previously authorized. All grantees will have the same reporting requirements as defined in 2 CFR part 200.

Add language regarding auditing requirements for 502/504 borrowers supervised or custodial accounts. Direction regarding the audit requirements for 502/504 borrowers supervised or custodial accounts when managed by the grantee is needed. While a separate audit is not necessary, these accounts should be reviewed under an agreed-upon procedures format, not a single audit, as the grantee only manages these funds in trust.

(18) Revise 7 CFR 1944.423 “Loan/grant packaging and application submittal.”

This change updates the title of the section and adds reference to Section 504.

(19) Revise 7 CFR 1944.424 “Dwelling construction standards”

This change adds State and Tribal requirements to the dwelling construction standards versus just local codes.

(20) Update 7 CFR 1944.425 “Handling and accounting for borrower loan funds.”

This section's updates include stating that the Agency is responsible for the administration of borrower loan funds. Grantee involvement such as holding a custodial or supervised account to manage these funds will be approved at the State level with minimum approval guidelines for staff to be defined in the program Instruction.

(21) Revise 7 CFR 1944.426 “Grant closeout.”

This change modifies the number of days, from 7 to 30, that the agency has to respond to the grantee regarding notification of termination and updates information on grant suspension appeal guidance.

(22) Remove Subpart I of Part 1944 Exhibits A, B, B-1, B-2, B-3, C, D, and E. Subpart I of Part 1944 Exhibits A, C, D, and E will be published as Forms.

References to Exhibits B, B-1, B-2, and B-3 will be eliminated from the CFR in favor of publishing them in the program Instruction with updates. These Exhibits will be provided to organizations by the program offices.

Exhibit A to Subpart I of Part 1944 “Self-Help Technical Assistance Grant Agreement” will be published as a Form and revised to include the new goals established with this proposed rule and add language to reference any closing conditions letter attached.

Exhibit C to Subpart I of Part 1944 “Amendment to Self-Help Technical Assistance Grant Agreement” and Exhibit D to Subpart I of Part 1944 “Self-Help Technical Assistance Grant Predevelopment Agreement” will be published as Forms and revised to update the year from `19_ to `20_.

Exhibit E to Subpart I of Part 1944 “Guidance for Recipients of Self-Help Technical Assistance Grants (Section 523 of Housing Act of 1949)” will be published as a Form and updated to remove outdated questions such as B.5. related to long distance phone call logs, B.8. regarding families being charged for the use of tools which is confusing given some grantees do rent tools to families when they are able to offer the best value, amongst other revisions.

(23) Revise instruction in Exhibit F to Subpart I of Part 1944 “Site Option Loan to Technical Assistance Grantees” and add it as a new section in 7 CFR 1944.428.

The limitations provided for in this exhibit are a barrier to applicants in the current market in which larger loan amounts and longer repayment terms are necessary. There has not been a Section 523 Site Loan awarded in many years because the program parameters are not feasible ( e.g. low loan limit, revolving loan fund requirements, interest rate disparity, and short repayment terms).

Revise Section IV. `Limitations' to remove the $10,000 loan limit in item (A) in favor of publishing limits as necessary (based on funding availability) in an annual funding policy and removing the loan limitation of fifteen percent of the purchase price in item (B); section V Rates and Terms to change item (A) so that the interest rate will be the lower of 3 percent or the current RHS monthly published rate, item (B) to revise the repayment period to allow for multiple payments.

The revision would align the program with current market trends and reference the Section 524 program requirements to ease the application process and promote the utilization of program funds. Program information will also be moved to the body of the regulation under 1944.428 as a new section.

Stakeholder input is vital to ensure the proposed changes in the proposed rule would support the Agency's mission, while ensuring that new regulations and policies are reasonable and do not overly burden the Agency's staff and their customers. Comments must be submitted on or before February 3, 2025 and may be submitted electronically by going to the Federal eRulemaking Portal: http://www.regulations.gov. Details on how to submit comments to the Federal eRulemaking Portal are in the ADDRESSES section of this proposed rule.

Intergovernmental Review of Federal Programs,” applies to this program. This E.O. requires that Federal agencies provide opportunities for consultation on proposed assistance with State and local governments. Many states have established a Single Point of Contact (SPOC) to facilitate this consultation. For a list of States that maintain a SPOC, please see the White House website: https://www.whitehouse.gov/omb/management/office-federal-financial-management/. If your State has a SPOC, you may submit a copy of the application directly for review. Any comments obtained through the SPOC must be provided to your State Office for consideration as part of your application. If your state has not established a SPOC, you may submit your application directly to the Agency. Applications from Federally recognized Indian Tribes are not subject to this requirement. RHS conducts intergovernmental consultations for each loan in accordance with 2 CFR part 415, subpart C.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget (OMB).

This proposed rule has been reviewed under Executive Order 12988. In accordance with this rule: (1) Unless otherwise specifically provided, all State and local laws that conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before suing in court that challenges action taken under this proposed rule.

The policies contained in this proposed rule do not have any substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government. This proposed rule does not impose substantial direct compliance costs on State and local Governments; therefore, consultation with States is not required.

This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Consultation is also required for any regulation that preempts Tribal law or that imposes substantial direct compliance costs on Indian Tribal governments and that is not required by statute.

The Agency has determined that this proposed rule does not, to our knowledge, have Tribal implications that require formal Tribal consultation under Executive Order 13175. If a Tribe requests consultation, the Rural Housing Service will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this proposed rule has been reviewed in accordance with 7 CFR part 1970 (“Environmental Policies and Procedures”). The Agency has determined that i) this action meets the criteria established in 7 CFR 1970.53(f); ii) no extraordinary circumstances exist; and iii) the action is not “connected” to other actions with potentially significant impacts, is not considered a “cumulative action” and is not precluded by 40 CFR 1506.1. Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required.

This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature on this document that this rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.

Title II of the UMRA, Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and Tribal Governments and on the private sector. Under section 202 of the UMRA, Federal Agencies generally must prepare a written statement, including cost-benefit analysis, for proposed and Final Rules with “Federal mandates” that may result in expenditures to State, local, or Tribal Governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires a Federal Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This proposed rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and Tribal Governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The information collection requirements contained in this regulation have been approved by OMB and have been assigned OMB control number 0575-0043. This proposed rulemaking contains new reporting requirements that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

In accordance with the Paperwork Reduction Act of 1995, the Agency announces its intention to request a revision to a currently approved information collection for the Self-Help Technical Assistance Grant program and hereby open a 60-day public commenting period.

Title: 7 CFR 1944-I, Self-Help Technical Assistance Grants.

OMB Docket Number: 0575-0043.

Expiration Date of Approval: May 31, 2027.

Type of Request: Revision of currently approved information collection.

Abstract: This subpart set forth the policies and procedures and delegates authority for providing technical assistance funds to eligible applicants to finance programs of technical and supervisory assistance for self-help housing loan program, as authorized under section 523 of the Housing Act of 1949 under 42 U.S.C. 1472. This financial assistance may pay part or all of the cost of developing, administering, or coordinating a program of technical and supervisory assistance to aid very low- and low-income families in carrying out self-help housing efforts in rural areas. The primary purpose is to locate and work with low-income families to secure decent, safe, and sanitary housing. RHS will be collecting information from non-profit organizations to enter into grant agreements. These non-profit organizations will give technical and supervisory assistance, and in doing so, they must develop a final application for section 523 grant funds. This application includes Agency forms that contain essential information for deciding eligibility.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average .99 hours per response.

Respondents: Public or private nonprofit organizations, State, Local or Tribal Governments.

Estimated Number of Respondents: 70.

Estimated Number of Responses per Respondent: 29.

Estimated Number of Responses: 2,046.

Estimated Reporting Burden Hours on Respondents: 1,865.

Estimated Recordkeeping Burden Hours on Respondents: 170.

Estimated Total Annual Burden on Respondents: 2,035.

Copies of this information collection can be obtained from Kimble Brown, Innovation Center—Regulations Management Division, at Kimble.Brown@usda.gov.

Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the RHS, including whether the information will have practical utility; (b) the accuracy of RHS's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.

RHS is committed to complying with the E-Government Act by promoting the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information, services, and other purposes.

Rural Development has reviewed this rule in accordance with USDA Regulation 4300-4, Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, or disability. After review and analysis of the rule and available data, it has been determined that implementation of the rule will not adversely or disproportionately impact very low, low- and moderate-income populations, minority populations, women, Indian Tribes, or persons with disability by virtue of their race, color, national origin, sex, age, disability, or marital or familiar status. No major civil rights impact is likely to result from this rule.

The program affected by this regulation is listed in the Assistance Listing Catalog (formerly Catalog of Federal Domestic Assistance) under number 10.420, Rural Self-Help Housing Technical Assistance.

In accordance with Federal civil rights laws and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information ( e.g., Braille, large print, audiotape, American Sign Language) should contact the responsible Mission Area, agency, staff office; or the 711 Federal Relay Service.

To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at https://www.usda.gov/sites/default/files/document/ad-3027.pdf, from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA. The letter must contain the complainant's name, address, telephone number, and a written description of the alleged discriminatory action in sufficient detail to inform the Assistant Secretary for Civil Rights (ASCR) about the nature and date of an alleged civil rights violation. The completed AD-3027 form or letter must be submitted to USDA by:

(1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; or

(2) Fax: (833) 256-1665 or (202) 690-7442; or

(3) Email: Program.Intake@usda.gov

USDA is an equal opportunity provider, employer, and lender.

For the reasons set forth in the preamble, the Rural Housing Service proposes to amend 7 CFR part 1944 as set forth below:

A notice of proposed rulemaking and a notice of public hearing that appeared in the Federal Register on September 17, 2024 (89 FR 75984) announced that a public hearing being held in person and by teleconference was scheduled for December 13, 2024, at 10 a.m. ET. The subject of the public hearing is under 26 CFR part 1.

The public comment period for these regulations expired on November 1, 2024. The notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to testify and an outline of the topics to be addressed. We did not receive a request to testify at the Public Hearing. Therefore, the public hearing scheduled for December 13, 2024, at 10 a.m. ET is cancelled.

A notice of proposed rulemaking and request for comments that appeared in the Federal Register on Friday, September 13, 2024 (89 FR 75062) announced that written or electronic comments must be received by December 12, 2024. The due date to receive comments has been extended to Thursday, January 16, 2025. The public hearing has not been extended and is still scheduled for January 16, 2025, at 10 a.m. ET. The deadline for submitting requests to speak at the hearing and submitting outlines for speaking at the hearing has not been extended and is still December 12, 2024, as originally stated in the notice of proposed rulemaking and notice of public hearing (REG-112129-23). Requests to speak at the public hearing must be made by email to publichearings@irs.gov and still must be received by December 12, 2024. Persons who wish to present oral comments at the public hearing must submit written or electronic comments and an outline of the topics to be discussed as well as the time to be devoted to each topic, not to exceed ten minutes in total, by December 12, 2024.

The Convention Concerning the Protection of the World Cultural and Natural Heritage (the Convention) was ratified by the U.S. Senate on October 26, 1973. The purpose of the Convention is to enhance worldwide understanding and appreciation of heritage conservation, and to recognize and preserve natural and cultural properties throughout the world that have outstanding universal value. The World Heritage List is an international list of cultural and natural properties judged to possess outstanding universal value. Properties are nominated by the signatories to the Convention. The United Nations Educational, Scientific, and Cultural Organization Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage (the Committee) is the governing body of the Convention. The Committee is composed of elected representatives of 21 nations and is responsible for implementing the Convention at the international level. Countries represented on the Committee are elected by participating nations. The Committee establishes criteria which properties must satisfy for inclusion on the World Heritage List. At its annual meeting, the Committee decides which properties to accept on the World Heritage List. Currently, there are 1,199 properties on the World Heritage List that are located in 168 of the 195 signatory countries. Twenty-five sites on the World Heritage List are located in the United States, including several units of the National Park System ( e.g., Mesa Verde National Park, Carlsbad Caverns National Park). Another property located in the United States has been nominated and is pending consideration by the Committee.

Title IV of the National Historic Preservation Act (NHPA) Amendments of 1980 (54 U.S.C. 307101) instructs the Department of the Interior (the Department) to direct and coordinate participation by the United States in the Convention. Regulations at 36 CFR part 73 implement the Convention pursuant to the 1980 NHPA Amendments. The Department, through the National Park Service (NPS), promulgated these regulations in 1982 (47 FR 23397) and made minor updates in 2001 (66 FR 57878). The regulations address (1) the U.S. World Heritage nomination process; (2) the criteria for inclusion on the World Heritage List and their application to nominated properties; (3) the role of the Federal Interagency Panel for World Heritage; (4) the protection of U.S. World Heritage properties; (5) International World Heritage activities; and (6) public information and education activities. The regulations also define key terms and explain the purpose and authority for the regulations and the role of the Assistant Secretary for Fish and Wildlife and Parks.

Since the NPS promulgated the regulations in 1982, the Committee has amended the Operational Guidelines for the Implementation of the World Heritage Convention (the Operational Guidelines) on numerous occasions, most recently in September 2023. The Operational Guidelines establish detailed procedures for (1) the inclusion of properties on the World Heritage List at the international level; (2) the protection and conservation of World Heritage properties; (3) the implementation of the World Heritage Fund; and (4) mobilization of support for the Convention.

In this rulemaking, the NPS proposes to bring the regulations in part 73 in line with the Operational Guidelines and the current practice of program implementation by the NPS on behalf of the United States. The changes also would streamline certain procedural steps and provide clarity that would benefit the Department and the public. The proposed changes to each section of the existing regulations are explained below. In addition to the changes described below, the NPS would make non-substantive, editorial changes to the regulations to improve their readability. The NPS welcomes public comments on these changes and hopes to receive meaningful input as it considers a final rule.

Section 73.1 explains the purpose of the regulations. The NPS proposes to revise this section to remove references to the statutory authority for promulgating the regulations. The authority for promulgating the regulations is stated in section 73.5 (Authority).

Section 73.3 defines terms used in part 73. The NPS proposes to reorganize the defined terms in alphabetical order and add definitions for the following terms: “Advisory Bodies,” “NPS,” “Operational Guidelines,” “Preliminary Assessment,” “Secretary,” “Tentative List,” and “State Party.” The NPS proposes to shorten the definition of “Committee” to remove explanatory information that does not need to be in the definition and an outdated reference to six-year terms. Governments that have signed or become a party to the Convention now voluntarily limit their terms to four years. The NPS proposes to revise the definition of “Owner” to remove unnecessary language about nominations and refer to property interests rather than ownership to avoid a circular definition. The NPS proposes to further revise the definition to clarify that an owner means an individual, entity, government, or Indian Tribe that has a fee simple interest in all or part of a property, or in the case of an Indian Tribe a restricted fee interest, or a less than fee simple interest that is integral to the entire property's outstanding universal value. The revised definition would specifically refer to property interests held by an Indian Tribe or held in trust by the United States for the benefit of an Indian Tribe. Although there has never been a prohibition on nominating Tribal properties, and Tribal properties have been nominated in the past, these changes would clarify that Tribal properties may be nominated and that Indian Tribes will be considered the owners of those lands for purposes of the regulations regardless as to whether the properties are held in trust by the United States. This means that when a Tribal property is held in trust by the United States, the United States is not an owner of the property for purposes of these regulations and, as a result, the concurrence of the United States is not required for nominations. The NPS proposes to remove the definition of “Owner concurrence” and instead explain in the regulatory text that all property owners must concur in writing to nominations. The NPS proposes to remove the definitions of “Cultural Heritage” and “Natural Heritage” because they would be used only once in the revised regulations. Instead, the NPS would refer to the Articles of the Convention where they are defined.

Section 73.5 identifies the statutory authority for the regulations. The NPS proposes to update the authority citation to reflect recodification of NPS statutory authorities from title 16 to title 54 of the U.S. Code.

The regulations in this section set forth the procedures governing the nomination process. The NPS proposes to remove the question-and-answer format and make the following substantive revisions:

1. Be more specific about the role of the Federal Interagency Panel for World Heritage in various stages of the nomination process.

The NPS proposes to revise paragraphs (a)(4) and (5), (d)(3), and (f) to state that the NPS may consult with individual members of the Panel about matters in which they have expertise. Although the existing regulations do not prohibit consultation, these changes would emphasize its value as part of the Panel's role by stating clearly that consultation is allowed.

2. Revise the process for adding sites to the U.S. World Heritage Tentative List for consistency with the Operational Guidelines.

The NPS proposes to change the process for adding sites to the U.S. World Heritage Tentative List so that it is consistent with the Operational Guidelines. Existing regulations in paragraph (a)(2) state that the Assistant Secretary initiates the nomination process by publishing a “First Notice” requesting suggestions for candidate sites for the World Heritage List in the Federal Register . The Operational Guidelines do not require that the process for adding sites to the Tentative List be part of the process for authorizing and submitting nominations to the World Heritage List. These processes now operate on separate schedules. This rule would revise paragraph (a)(2) to refer only to the process for adding properties to the Tentative List, which would include consultation with the NPS and appropriate members of the Panel, and the publication of a notice in the Federal Register seeking public comment. In paragraphs (c) and (d), the rule would add information about the purpose and scope of the Tentative List and remove the obsolete term “Indicative Inventory.” In paragraph (c)(2), the rule would include a complete list of factors the Assistant Secretary may consider when deciding which properties to include on the Tentative List, including requirements that also apply to the nomination process and other requirements in the Operational Guidelines. Paragraph (c)(4) would state that the Department may update the Tentative List when warranted, but generally every ten years. Lastly, the NPS proposes to remove a requirement in the existing regulations that the Assistant Secretary publish the Tentative List in the Federal Register whenever a new nomination is considered. Instead, the proposed rule would require the NPS to publish the Tentative List in the Federal Register when it has been comprehensively updated by the Assistant Secretary. Publication of other changes would be at the discretion of the NPS.

3. Require a Preliminary Assessment for properties on the Tentative List prior to nomination.

In 2021, the Committee adopted a decision that will require the advisory bodies to the Committee—the International Union for Conservation of Nature, for sites of natural heritage, and the International Council on Monuments and Sites, for sites of cultural heritage—to provide a Preliminary Assessment to the requesting state party to the Convention about the potential of a site to have outstanding universal value before it can be nominated for the World Heritage List. Preliminary Assessments will be phased in starting with optional requests in 2023. Preliminary Assessments will be required for all nominations submitted after February 1, 2026. Consistent with this new requirement, the rule would revise paragraph (a)(3) to require the NPS, if required by the Operational Guidelines, to submit a request to the UNESCO World Heritage Centre for a Preliminary Assessment before recommending any property on the Tentative List for nomination. Revisions to paragraph (a)(4) would require the Assistant Secretary, prior to authorizing the preparation of a nomination, to receive a Preliminary Assessment, if that report is required by the Operational Guidelines. Paragraph (b)(4) would state that, in ordinary circumstances, the Preliminary Assessment should conclude that the property has potential to demonstrate outstanding universal value before the Assistant Secretary may consider it for nomination. The Assistant Secretary may consider a property for nomination even if the Preliminary Assessment concludes that the property does not have potential to meet this standard, but this should rarely or never happen.

4. Require verification of property ownership and appropriate legal protections for properties to be nominated.

The NPS proposes to revise paragraph (d)(3) to require verification of ownership and a review of legal protections before a property can be authorized for nomination. These steps are part of the process now but have typically occurred after nominations have been authorized and drafted. This change would ensure that any questions about ownership or legal protections would be identified before the nomination is authorized.

5. Supplement qualifications for national significance.

The 1980 NHPA Amendments (54 U.S.C. 307101) require properties in the United States to be of national significance before they can be nominated to the World Heritage List. The existing regulations identify several ways that a property may be considered nationally significant, including properties that the U.S. Congress has established as nationally significant and areas the President has proclaimed as a National Monument under the Antiquities Act of 1906 (16 U.S.C. 433). The NPS proposes to expand these qualifications to include any property established by a Federal agency as nationally significant under an authority provided by the United States Congress, and units of the National Park System, National Wildlife Refuges, National Marine Sanctuaries, and National Forests. Inclusion on the National Register of Historic Places or in a National Heritage Area, alone, would not qualify a property as nationally significant.

6. Simplify owner concurrence requirements.

The NPS proposes to consolidate paragraphs (b)(2)(i)-(iii) into one paragraph that includes existing requirements for all property owners to concur in writing to any nomination, and for owners of private property also to certify the protection of the property as required elsewhere in the regulations. This rule would remove references in section 73.7 and 73.13 to private parties controlling property, rather than owning it, regarding the need to obtain concurrence prior to nominations and to satisfy protection requirements. The 1980 NHPA Amendments do not mention non-Federal property being controlled, but not owned, for obtaining concurrence prior to nominations or other purposes.

7. Authorizing preparation of a U.S. World Heritage nomination.

As discussed previously, the NPS is proposing to separate the process for adding properties to the Tentative List from the process for nominating properties to the World Heritage List, consistent with current practice. Accordingly, certain provisions that appear in existing paragraph (i) about the approval and submission of nominations would be moved to new paragraph (c) in the revised regulations, which would be dedicated to the process for the Tentative List. These provisions include ownership verification and review of the property's legal protections. The provisions governing nominations to the World Heritage List would be moved and consolidated into new paragraphs (d)-(g), which would address authorizing the preparation of a nomination, preparing a nomination, evaluating a nomination, and approving and submitting a nomination, respectively. The provisions in paragraph (d) about authorizing the preparation of a nomination would incorporate the need to obtain and consider the content of a Preliminary Assessment before the NPS prepares a recommendation for the Assistant Secretary.

In addition, the NPS proposes to eliminate a requirement in paragraph (f)(1) of the existing regulations to publish notice in the Federal Register that a property owner has been authorized to prepare a nomination document, which is referred to as a “Second Notice.” An authorization to prepare a nomination document does not guarantee that the property will be approved for nomination and therefore is not substantive enough to require formal notification to the public. The revised regulations would direct the NPS to notify the property owners and the U.S. Congress that the Assistant Secretary has decided to authorize a nomination, and also when the Assistant Secretary has decided to submit a nomination to the World Heritage Committee. Existing regulations in paragraphs (f)(1) and (j) require the Assistant Secretary to provide notice, but this authority has been delegated to the NPS in practice. The rule would update the name of the applicable Committee in the U.S. House of Representatives from the “House Resources Committee” to the “House Natural Resources Committee.” The rule would no longer refer to the notice of submitted nominations as the “Third Notice.”

The NPS proposes to revise this section to remove a recitation of the criteria used to assess whether a property has outstanding universal value. Instead, the rule would state that properties must meet at least one criterion that is published in the Operational Guidelines. The rule would state that the criteria are subject to revision by the Committee and refer to requirements in the Operational Guidelines about a property's integrity and authenticity, and legal protection and management. These proposed revisions would streamline the regulatory text and ensure that the criteria and other requirements that apply to U.S. properties are the same as stated in the Operational Guidelines at the time of assessment. These criteria are readily available on the website of the UNESCO World Heritage Centre which can be accessed directly or through a link on the website of the NPS Office of International Affairs. The criteria also are stated in brochures and other public information made available by the NPS.

This section of the regulations defines the responsibilities and composition of the Panel. The NPS proposes to change paragraph (a) to clarify that the Assistant Secretary may consult not only with the entire Panel, but also with individual members of the Panel on World Heritage matters. The NPS proposes to change paragraph (b)(1)(ii) to clarify that, in its role as a member of the Panel, the NPS represents Associate Directorships that are responsible for managing cultural and natural resources, which is separate from the NPS's administrative responsibilities stated elsewhere in the regulation. The NPS proposes to revise paragraph (b)(2) to clarify that additional representatives from other Federal agencies may have expertise in either natural or cultural heritage conservation.

This section of the regulations identifies in greater detail the protection measures that must be in place before the Assistant Secretary can nominate properties for inclusion on the World Heritage List. 54 U.S.C. 307101(c). The NPS proposes to revise paragraph (a)(1) to add language highlighting that the protection of World Heritage sites under the Convention is a government-wide obligation, to avoid an incorrect assumption that it is solely the responsibility of the Department. The NPS proposes to revise paragraph (c) to describe in more detail the protection measures required for private properties, including information about how the requirements may be satisfied. A statement at the end of paragraph (c) in the existing regulations, that protections are reviewed on a case-by-case basis, would become the first statement of the paragraph to make it clear that this approach governs the assessment. The rule would then provide examples of factors that the Assistant Secretary may consider when determining if protections are sufficient, such as the current and potential use of the property, the nature of its ownership, and the effectiveness of applicable legal instruments. The rule would move a statement describing the purpose of such legal instruments to the introductory language that appears before examples are given, to indicate that the statement applies to all of the examples. The stated purpose of such instruments is to sufficiently prohibit any use or physical alteration that is not consistent with, or which threatens or damages the property's universally significant value.

The existing regulations state that a written covenant or other trust or legal arrangement that prohibits in perpetuity any use that is not consistent with, or which threatens or damages the property's universally significant values, satisfy the protection requirements for private properties, provided there is an opinion of counsel on the legal status and enforcement of such a prohibition. Instead of identifying specific instruments that satisfy the protection requirements, the NPS proposes to provide examples of instruments that may satisfy the protection requirements. The rule would retain, as an example, a written covenant executed by the owner and continue to refer to other trusts or legal arrangements that may satisfy the protection requirements, with specific reference to easements and local historic preservation ordinances that include substantive protection for the property. Since the existing regulations were first promulgated in 1982, standards for local historic preservation ordinances have been established and widely adopted through the Certified Local Government Program authorized by the National Historic Preservation Act and implemented by the NPS. See 54 U.S.C. chapter 3025 and 36 CFR part 61. These ordinances may offer an effective means of long-term protection, subject to review by the Assistant Secretary that they offer sufficient protection for a property.

The NPS believes this approach is consistent with the 1980 NHPA Amendments that require legal protections as may be necessary to ensure preservation of the property and its environment. 54 U.S.C. 307101(c). The proposed rule would require the Assistant Secretary to determine, on a case-by-case basis, that the protections fulfill the mandate of the statute, giving consideration to what would constitute effective protection that is appropriate to the circumstances of the particular property. This approach is consistent with the intent of the 1980 Amendments and allows the Assistant Secretary to consider not just whether protections are in place, but also whether those protections are effective. The rule also would require private property owners to certify in writing to the protection measures for the property. The NPS believes that these revisions would provide the Assistant Secretary with more flexibility to determine that protections will “ensure preservation of the property and its environment” as required by the statute.

The NPS proposes to remove a requirement that there be an “opinion of counsel” about the status and enforcement of covenants. This provision is vague and unnecessary because the rule would require a determination by the Assistant Secretary that the protections are sufficient and comply with the standard for protection in the 1980 NHPA Amendments. Lastly, the NPS proposes to remove a reference to the property owner willingly providing a right of first refusal for the acquisition of private property because this has never been used in the program's 45-year history and therefore is unnecessary.

This section of the regulations addresses the development and distribution of information and materials regarding the U.S. World Heritage properties and the Convention in general. The NPS proposes one revision to paragraph (c) that would remove an obsolete and unnecessarily specific reference to the distribution of slideshows.

Executive Order 12866, as amended by Executive Order 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that the proposed rule is not significant.

Executive Order 14094 amends Executive Order 12866 and reaffirms the principles of Executive Order 12866 and Executive Order 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and be consistent with Executive Order 12866, Executive Order 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law.

Executive Order 13563 reaffirms the principles of Executive Order 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. Executive Order 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this proposed rule in a manner consistent with these requirements.

The NPS certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). A Regulatory Flexibility Analysis is not required. This proposed rule would revise regulations governing the NPS's coordination of U.S. participation in the Convention. The costs and benefits of a regulatory action are measured with respect to its existing baseline conditions. No changes are anticipated compared to baseline conditions because this regulatory action is procedural in nature with the purpose of changing existing regulations to reflect updates to the Operational Guidelines and current administrative practice. All property owners must concur in writing to nominations, which means the application of this rule to private entities is completely voluntary. Nomination and approval of properties for inclusion on the World Heritage List recognizes their universally significant value and enhances public understanding and appreciation of heritage conservation. Only a small number of select U.S. properties will be considered for World Heritage status. Small entities may provide information or assistance in the preparation of nominations, but such participation is completely voluntary on their part. In some instances, small entities may be reimbursed for providing detailed site information and analysis. Designation of a property as a World Heritage site may enhance its tourism value. Any effects would likely be of a very localized nature and may be beneficial to small entities in the surrounding area. This action will not impose restrictions on local businesses in the form of fees, training, record keeping, or other measures that would increase costs.

This rulemaking is not a major rule under 5 U.S.C. 804(2). This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This proposed rule does not impose an unfunded mandate on Tribal, State, or local governments or the private sector of more than $100 million per year. The proposed rule does not have a significant or unique effect on Tribal, State, or local governments or the private sector. It addresses public use of national park lands and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This proposed rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, the proposed rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This proposed rule addresses procedures governing the NPS's administration of the U.S. World Heritage Program and would not have substantial direct effects on the States, on the relationships between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. A Federalism summary impact statement is not required.

This proposed rule complies with the requirements of Executive Order 12988. This proposed rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. The NPS has evaluated this proposed rule under the criteria in Executive Order 13175 and under the Department's Tribal consultation policy and has determined that Tribal consultation is not required because the proposed rule would not have a substantial direct effect on federally recognized Indian Tribes.

This proposed rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. The NPS may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major federal action significantly affecting the quality of the human environment. A detailed statement under NEPA is not required because the rule is covered by a categorical exclusion. NPS NEPA Handbook (2015) Section 3.2.H allows for the following to be categorically excluded: “policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature.” This proposed rule addresses procedures governing the NPS's administration of the U.S. World Heritage Program. The NPS has also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This proposed rule is not a significant energy action under the definition in Executive Order 13211; the proposed rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and the proposed rule has not otherwise been designated by the Administrator of Office of Information and Regulatory Affairs as a significant energy action. A Statement of Energy Effects is not required.

The NPS is required by Executive Orders 12866 (section 1(b)(12)) and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule the NPS publishes must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

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

It is the policy of the Department, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in the ADDRESSES section of this document.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask the NPS in your comment to withhold your personal identifying information from public review, the NPS cannot guarantee that it will be able to do so.

In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 73 as set forth below:

The revisions read as follows:

This action withdraws a proposed rule published in the Federal Register on May 10, 2024 (89 FR 40439), to add a new requirement for an acceptable terminal disclaimer that is filed to obviate (that is, overcome) nonstatutory double patenting. The proposed rule's comment period was open from May 10, 2024, to July 9, 2024.

During the proposed rule's 60-day comment period, the USPTO received more than 300 comments from a variety of stakeholders, including commenters both supporting and opposing the proposal. The comments are publicly available at the Federal eRulemaking Portal at www.regulations.gov/document/PTO-P-2024-0003-0001. Of the comments received on the proposed rule, 256 comments were unique.

In light of resource constraints, the USPTO has decided not to move forward with the proposed rule at this time and to withdraw the proposed rule.

Despite the decision not to move forward with the proposed rule at this time, the USPTO appreciates and takes seriously the thoughtful perspectives raised by commenters. The USPTO will continue engaging with its stakeholders as it works to foster a balanced, robust, and reliable intellectual property system.

The proposed rule to add a new requirement for an acceptable terminal disclaimer that is filed to obviate nonstatutory double patenting, published in the Federal Register on May 10, 2024 (89 FR 40439), is hereby withdrawn.

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

EPA is holding a virtual public hearing to provide interested parties the opportunity to present data, views, or arguments concerning the proposal. EPA will hold a virtual public hearing to solicit comments on December 19, 2024. The hearing will convene at 9:00 a.m. Central Standard Time (CST) and will conclude at 1:00 p.m. CST, or 15 minutes after the last pre-registered presenter in attendance has presented if there are no additional presenters. EPA will announce further details, including information on how to register for the virtual public hearing, on the virtual public hearing website at https://www.epa.gov/mn/revision-taconite-regional-haze-federal-implementation-plan-mi-and-mn.

EPA will begin pre-registering presenters and attendees for the hearing upon publication of this document in the Federal Register . To pre-register to attend or present at the virtual public hearing, please use the online registration form available at https://www.epa.gov/mn/revision-taconite-regional-haze-federal-implementation-plan-mi-and-mn or contact Mayesha Choudhury at 312-886-5909 or by email at choudhury.mayesha@epa.gov. The last day to pre-register to present at the hearing will be December 16, 2024. On December 16, 2024, EPA will post a general agenda for the hearing that will list pre-registered presenters in approximate order at https://www.epa.gov/mn/revision-taconite-regional-haze-federal-implementation-plan-mi-and-mn. Additionally, requests to present will be taken on the day of the hearing as time allows.

EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule. Each commenter will have 5 minutes to provide oral testimony. EPA encourages commenters to provide EPA with a copy of their oral testimony electronically by including it in the registration form or emailing it to choudhury.mayesha@epa.gov. EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the virtual public hearing.

EPA is asking all hearing attendees to pre-register, even those who do not intend to present. This will help EPA prepare for the virtual hearing.

Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/mn/revision-taconite-regional-haze-federal-implementation-plan-mi-and-mn. While EPA expects the hearing to go forward as set forth above, please monitor our website or contact Mayesha Choudhury at 312-886-5909 or choudhury.mayesha@epa.gov to determine if there are any updates. EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the services of a translator or a special accommodation such as audio description/closed captioning, please pre-register for the hearing with Mayesha Choudhury at 312-886-5909 or choudhury.mayesha@epa.gov and describe your needs by December 11, 2024. EPA may not be able to arrange accommodations without advance notice.

In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas  1 which impairment results from manmade air pollution.” Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35714), codified at 40 CFR part 51, subpart P (herein after referred to as the “Regional Haze Rule”). The Regional Haze Rule codified and clarified the BART provisions in the CAA and revised the existing visibility regulations to add provisions addressing regional haze impairment and to establish a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR part 51, subpart P.

Section 169A of the CAA directs states, or EPA if developing a FIP, to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires that implementation plans contain such measures as may be necessary to make reasonable progress toward the natural visibility goal, including a requirement that certain categories of existing major stationary sources  2 built between 1962 and 1977 procure, install, and operate BART as determined by EPA.

Under the Regional Haze Rule, states (or in the case of a FIP, EPA) are directed to conduct BART determinations for such “BART-eligible” sources that may reasonably be anticipated to cause or contribute to any visibility impairment in a Class I area.

On July 6, 2005, 70 FR 39104, EPA published the Guidelines for BART Determinations Under the Regional Haze Rule at appendix Y to 40 CFR part 51 (hereinafter referred to as the “BART Guidelines”) to assist states and EPA in determining which sources should be subject to the BART requirements and in determining appropriate emission limits for each source subject to BART.

The process of establishing BART emission limitations follows three steps. First, states, or EPA if developing a FIP, must identify and list “BART-eligible sources.”  3 Once the state or EPA has identified the BART-eligible sources, the second step is to identify those sources that may “emit any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area. (Under the Regional Haze Rule, a source which fits this description is “subject to BART.”). Third, for each source subject to BART, the state or EPA must identify the level of control representing BART after considering the five factors set forth in CAA section 169A(g). The BART Guidelines provide a process for making BART determinations that states can use in implementing the BART requirements on a source-by-source basis. See 40 CFR part 51, appendix Y, at IV.D.

States, or EPA if developing a FIP, must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO 2 , NO X , and particulate matter (PM).

A state implementation plan (SIP) or FIP addressing regional haze must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state or EPA has made a BART determination, the BART controls must be installed and operated as expeditiously as practicable, but no later than five years after the date of the final SIP or FIP. See CAA section 169A(g)(4) and 40 CFR 51.308(e)(1)(iv). In addition to what is required by the Regional Haze Rule, general SIP requirements mandate that the SIP or FIP include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source. See CAA section 110(a).

EPA is proposing to finalize NO X and/or SO 2 limits for the indurating furnaces at five taconite facilities in accordance with the procedures set forth in the FIP addressing the requirement for BART at taconite facilities. These facilities include Tilden Mining Company (Tilden) located at 101 Cci Mine Road, Ishpeming, Michigan; Hibbing Taconite Company (Hibbing) located at 4950 Highway 5 North, Hibbing, Minnesota; Minorca Mine (Minorca) located at 5950 Old Highway 53, Virginia, Minnesota; Northshore Mining Company—Silver Bay (Northshore) located at 10 Outer Drive, Silver Bay, Minnesota, and United Taconite (UTAC) located at 8470 Townline Road, Forbes, Minnesota. Tilden, Minorca, Northshore, and UTAC are owned by Cleveland-Cliffs, Inc. (Cliffs), formerly known as Cliffs Natural Resources, and Hibbing is jointly owned by Cliffs and United States Steel. The primary units identified as being subject to BART at Tilden, Hibbing, Minorca, UTAC, and Northshore include the following pelletizing, or indurating, furnaces: Tilden Grate Kiln Line 1, Hibbing Straight-Grate Lines 1-3, Minorca Straight-Grate Line 1, UTAC Grate Kiln Lines 1 and 2, and Northshore Straight-Grate Furnaces 11 and 12. 4 The U.S. taconite iron ore industry uses two types of pelletizing machines or processes: straight-grate kilns and grate kilns. In a straight-grate kiln, a continuous bed of agglomerated green pellets is carried through different temperature zones with upward draft or downward draft blown through the pellets on the metal grate. The grate kiln system consists of a traveling grate, a rotary kiln, and an annular cooler. A significant difference between these designs is that straight-grate kilns do not burn coal and therefore have a much lower potential for emitting SO 2 . Further, even within the same kiln type or process, individual furnaces (referred to as indurating or pelletizing) or processes have distinct equipment and process characteristics that may affect the compatibility and performance of certain types of burners.

On February 6, 2013 (78 FR 8706), EPA promulgated a FIP that set BART limits for NO X and SO 2 emissions from furnaces at seven taconite facilities in Michigan and Minnesota (“Original FIP”). EPA took this action because Michigan and Minnesota had failed to meet a statutory deadline to submit their Regional Haze SIPs and subsequently failed to require BART at the taconite facilities within their borders. BART limits for NO X were based upon the performance of high stoichiometric (high-stoich) low-NO X burners (LNBs)  5 at two of the taconite furnaces at U.S. Steel's Minntac facility, while BART for SO 2 was established as no additional controls, apart from a limit on the sulfur content of coal used in co-firing furnaces.

In a related action, EPA published a final partial disapproval of Michigan's and Minnesota's Regional Haze SIPs on September 30, 2013 (78 FR 59825), due to the states' failure to require BART for taconite facilities within these states.

ArcelorMittal USA LLC (“ArcelorMittal”)  6 and Cliffs, owners of several taconite facilities affected by the FIP, along with the State of Michigan, filed timely petitions for review of the Original FIP. ArcelorMittal and Cliffs also filed a joint motion seeking a stay of the Original FIP, which was granted by the Eighth Circuit on June 14, 2013. 7 ArcelorMittal, Cliffs, the State of Michigan, and others also submitted petitions for reconsideration of the Original FIP, pursuant to CAA section 307(d)(7)(B). 42 U.S.C. 7607(d)(7)(B).

On October 22, 2015 (80 FR 64160), in response to the petitions for reconsideration and due to new information submitted to EPA after promulgation of the Original FIP, EPA proposed to revise the Original FIP to revise NO X and SO 2 emission limits for certain taconite facilities. On April 16, 2016 (81 FR 21672), EPA promulgated the final 2016 revised FIP (“2016 FIP”). With respect to NO X , the emission limits in the 2016 FIP were based on information submitted to EPA by Cliffs and ArcelorMittal that suggested high-stoich LNBs, which formed the basis for the NO X limits in the Original FIP, posed serious technical hurdles. In the 2016 FIP, EPA revised the NO X emission limits for Tilden, Hibbing, Minorca, and UTAC, and set forth a process to confirm or modify those emission limits using continuous emissions monitoring system (CEMS) data that was to be collected after the installation of the selected low-NO X technology. Under the 2016 FIP, the NO X emission limits do not become enforceable until EPA confirms or modifies the emission limits in accordance with procedures set forth in the FIP. The NO X emission limits in the 2016 FIP were based upon low-stoich LNBs (for grate kilns) and LNBs that utilize a combination of water and steam injection and pre-combustion technologies (for straight-grate kilns).

With respect to SO 2 , EPA granted reconsideration of the SO 2 limit for Tilden's grate kiln due to information that became available after the close of the public comment period on the 2013 FIP regarding Tilden's intent to burn mixed fuels. Cliffs' intent to burn mixed fuels at Tilden was not considered in the Original FIP and would have led to an inability to meet the established BART limit. The 2016 FIP limits the sulfur content of the coal combusted on Tilden Line 1 and sets an SO 2 emission limit for the furnace.

Cliffs and ArcelorMittal filed petitions for review of the 2016 FIP due to a dispute over the UPL equation in the final rule. The 2016 FIP requirements for each facility are set forth in 40 CFR 52.1183 for Michigan and 40 CFR 52.1235 for Minnesota and discussed further in the remainder of this action.

The 2016 FIP set emission limits in pounds (lbs) of NO X per million British Thermal Unit (MMBtu), based on a 30-day (720-hour) rolling average, and established a process to either confirm or modify the NO X emission limits within established ranges based on CEMS data that Tilden, Hibbing, Minorca, and UTAC were required to submit to EPA by dates specified in the 2016 FIP. 8 The FIP also specified that the NO X emission limits for these facilities would become enforceable only after EPA's confirmation or modification of the NO X emission limits reflecting EPA's expectation that the owner or operator of each facility would provide the requisite data to EPA by the dates specified in the FIP. EPA's efforts to finalize NO X emission limits for these facilities by the deadlines established in the FIP were complicated by several implementation issues, including challenges with installation of control technology, delays in receipt of requisite data, and emission limit modification requests not conforming to the requirements set forth in the FIP.

The NO X emission limits established for each furnace and the ranges of limits allowable under the limit modification process are set forth in Table 1. As indicated in Table 1, the emission limits for certain furnaces vary by the type of fuel being used (natural gas or “co-fire,” which is a combination of natural gas and coal).

For Tilden, Hibbing, Minorca, and UTAC, the process specified in the 2016 FIP to either confirm or modify the NO X emission limits within the established ranges included the installation of a CEMS, submission of an engineering report to EPA, installation of NO X reduction control technology, submission of pellet quality analyses to EPA, and submission to EPA of a report to either confirm or modify the limit. For any furnace without CEMS already installed, CEMS installation was required for each furnace by 6 months after May 12, 2016, and the owner or operator was required to submit quarterly CEMS data to EPA after May 12, 2016, for the time periods specified below in Table 2. Engineering reports containing detailed engineering analyses and modeling of the selected NO X reduction technology for each furnace demonstrating that the technology was designed to meet an emission limit equal to the lower bound of the established range were required to be submitted to EPA by the deadlines specified in Table 2. NO X reduction technology was required to be installed two months after the engineering report submission deadline. Beginning on the earlier of six months after the installation of NO X reduction technology or the deadline for installation of the NO X reduction technology, the owner or operator was required to submit quarterly pellet quality analyses to EPA, including an explanation of causes for pellet samples that failed to meet the acceptable range for any pellet quality analysis factor, for the time periods specified in Table 2. At the end of the CEMS and pellet quality data collection periods, the owner or operator of each furnace may submit a report to EPA to either confirm or modify the NO X limits within the bounds described in the 2016 FIP (and above in this section). The 2016 FIP also allows the owner or operator to submit a report proposing a single NO X limit for all fuels. The process for confirming or modifying limits detailed in the 2016 FIP specifies that EPA's determinations shall be based on the appropriate UPL equation, using CEMS data that meet pellet quality specifications and proper furnace/burner operation. For a more detailed description of the process set forth in the 2016 FIP to confirm or modify the emission limits, see 40 CFR 52.1183 and 40 CFR 52.1235.

The 2016 FIP incorporates two UPL equations to calculate emission limits. The appropriate equation is determined by the statistical distribution of the hourly CEMS data. If the data are normally distributed and statistically independent, the equation in 40 CFR 52.1183(p)(1) and 40 CFR 52.1235(f)(1) is used. If the data are not normally distributed or are normally distributed but not statistically independent, the non-parametric equation in 40 CFR 52.1183(p)(2) and 40 CFR 52.1235(f)(2) is used. None of the CEMS data submitted are normally distributed and statistically independent, therefore the non-parametric equation is the applicable equation for all limit setting in this action. 9

The non-parametric equation in the 2016 FIP calculates a 95th percentile UPL by ranking 720-hour averages of NO X emissions in lbs/MMBtu from lowest to highest and identifying the value at the 95th percentile of the data set as the UPL and emission limit. 10 While a 95th percentile UPL establishes an emission rate that a source is predicted to be below during at least 95 out of 100 averaging periods, it was not EPA's intent to set a limit that a source would be expected to exceed five percent of the time once the limit was in place. Rather, EPA used the 95th percentile UPL to ensure that the final emission limits would be consistent with the actual emission reduction capabilities of the BART controls, as required by 40 CFR 51.301, which defines BART as “the degree of reduction achievable.”  11 EPA expected that during the eight-month CEMS data collection period, furnace operators would be adjusting numerous variables to optimize control technology performance, which would result in higher emissions at times during the initial “shakedown” period. Once the eight-month data collection period was over, EPA expected that the operators would have gained sufficient experience to run the furnaces and control technologies with fewer adjustments, meaning less emission variations and lower emissions overall. EPA selected the 95th percentile UPL to ensure the elevated emissions expected during the initial shakedown period would not become the basis for final emission limits.

However, once continuous data collection began, the CEMS data did not show the expected elevated emissions levels during the shakedown period and emissions were not consistently lower toward the end of the data collection period as compared to the beginning of the period. 12 Therefore, EPA has determined that using the UPL equation at the 99th percentile is more appropriate to establish an emission limit consistent with the actual emission reduction capabilities of the BART controls and is proposing to modify the UPL equations used to calculate both the NO X and SO 2 emission limits to reflect use of the 99th percentile. The emission limits EPA is proposing in this action were calculated using the UPL equations at 40 CFR 52.1183(p) and 40 CFR 52.1235(f) at the 99th percentile. 13

For Tilden's indurating furnace, Tilden Line 1 (EUKILN1), the 2016 FIP established a specific NO X BART emission limit of 2.8 pounds of NO X /MMBtu when burning natural gas, while allowing for potential modification of the limit within the range of 2.8-3.0 lbs NO X /MMBtu. Similarly, the 2016 FIP established a specific NO X BART emission limit of 1.5 lbs NO X /MMBtu when co-firing coal and natural gas, with an allowance for potential modification of the limit within the range of 1.5-2.5 lbs NO X /MMBtu. 14 The 2016 FIP also allowed for the establishment of a single NO X limit for all fuels. 15

Tilden submitted a partially complete engineering report on May 21, 2020, and submitted the final engineering report on July 30, 2020. Tilden implemented low-stoichiometry LNBs designed to achieve an emission rate of 2.8 lbs NO X /MMBtu when firing exclusively natural gas and 1.5 lbs NO X /MMBtu when co-firing with coal, as described in the engineering report submitted to EPA.

On February 12, 2021, Tilden submitted a report requesting modification of the NO X limits for Line 1 pursuant to 40 CFR 52.1183 (k)(1)(vi). Tilden requested an emission limit of 3.0 lbs NO X /MMBtu for all fuels. Tilden's limit modification request was accompanied by CEMS data (in 30-day rolling averages) from September 12, 2020, to February 2, 2021. On May 21, 2021, Tilden provided hourly emission data for July 1, 2020, to February 11, 2021. Approximately half of these data were collected when Tilden was co-firing with coal and half were collected when Tilden was burning exclusively natural gas. Tilden demonstrated that when burning natural gas, NO X emission rates recorded were higher than the modeling results presented in the engineering report, and above the high end of the limit range established in the 2016 FIP (2.8-3.0 lbs/MMBtu). The CEMS data submitted to EPA when burning coal recorded emission rates within the range specified in the 2016 FIP (1.5-2.5 lbs/MMBtu). Tilden explained that the furnace is unable to achieve 3.0 lbs NO X /MMBtu when burning exclusively natural gas and would need to burn a minimum of 80% coal when co-firing to meet a limit of 2.0 lbs NO X /MMBtu. Tilden stated a preference to maximize natural gas usage and supplement with solid fuel as needed to meet NO X limits. 16

The 2016 FIP provides Tilden the option to propose, for EPA's consideration and approval, a single NO X emission limit for all fuels based on a 30-day rolling average. Citing the CEMS data, Tilden requested a revised NO X BART limit of 3.0 lbs NO X /MMBtu for all fuels that would apply on a rolling 30-day average, contending that this emission limit is the most stringent limit that can be met without substantial increases in coal usage, while maintaining pellet quality standards.

Based on the equation set forth at 40 CFR 52.1183(p)(2), EPA calculated a 720-hour average NO X emission limit of 3.8 lbs NO X /MMBtu when burning exclusively natural gas, and separately, an emission limit of 1.9 lbs NO X /MMBtu when burning mixed fuel. 17 While CEMS data show the installed emission control measures reduced NO X emissions, the selected technology failed to achieve emission rates within the specified FIP ranges when burning only natural gas (2.8-3.0 lbs NO X /MMBtu). Using the non-parametric equation with the full data set, unseparated by fuel type, EPA calculated a 720-hour average UPL of 3.7 lbs NO X /MMBtu. EPA evaluated these CEMS data and considered Tilden's requested single NO X emission limit of 3.0 lbs NO X /MMBtu for all fuels based on a 30-day rolling average, as allowed at 40 CFR 52.1183(k)(1)(viii). EPA has concluded that Tilden's requested emission limit of 3.0 lbs NO X /MMBtu for all fuels based on a 30-day rolling average is appropriate and reflects BART. It allows Tilden to select a fuel mix that maximizes natural gas usage and minimizes coal usage if the facility so chooses without exceeding the natural gas emission limit range established in the 2016 FIP. This has the duel environmental (visibility) benefit of minimizing NO X emissions by setting an emissions limit that is below the calculated natural gas-only rate, and also potentially minimizing the use of coal and the associated SO 2 emissions from coal burning. Therefore, based on these data and as provided at 40 CFR 52.1183(k)(1)(viii), EPA is proposing that a modified limit of 3.0 lbs NO X /MMBtu for all fuels, with compliance to be determined on a rolling 30-day average basis, reflects BART for the Tilden Line 1 indurating furnace.

For Hibbing Lines 1, 2, and 3, the 2016 FIP established NO X BART emission limits of 1.2 lbs NO X /MMBtu that applied to each furnace individually, with provisions allowing for potential modification of the limits within the range of 1.2-1.8 lbs NO X /MMBtu. 18

Hibbing implemented the NO X reduction measures described in its engineering report, submitted to EPA on May 11, 2018, identified as LNBs in conjunction with water injection, at Hibbing Lines 1, 2, and 3. Hibbing installed CEMS on Lines 1, 2, and 3 and provided EPA with hourly NO X emissions data on March 12, 2019, September 11, 2020, and February 12, 2021, for Lines 1, 2 and 3, respectively, documenting actual emissions after installation of LNB technology. Hibbing's submittals included CEMS data from July 12, 2018, to March 11, 2019, for Line 1; January 12, 2020, through September 1, 2020, for Line 2; and August 3, 2020, to February 11, 2021, for Line 3. The hourly CEMS data identified hours excluded from the limit-setting calculations because pellets failed to meet pellet quality specifications. Although the limit-setting period for Line 3 established in the 2016 FIP began August 3, 2020, Line 3 did not operate during the period between July 12 to August 3, 2020, due to COVID-related reasons. Line 2 did not operate from May 1, 2020, to July 31, 2020, during the limit setting period for similar reasons. On November 25, 2020, Hibbing provided additional information requested by EPA, including hourly CEMS data for Lines 1, 2, and 3 in Excel format to facilitate independent calculation of emission limits and identification of hours when the burner was not operated within the parameters modeled in the engineering report.

The requirements at 40 CFR 52.1235((b)(1)(ii)(A)(6), (B)(6), and (C)(6) set forth the process for submitting data to support limit modifications under the 2016 FIP. At the time of the initial CEMS data submissions, Hibbing requested NO X emission limits of 1.7, 1.5, and 1.6 lbs NO X /MMBtu on Lines 1, 2, and 3, respectively. The facility cited sub-zero temperatures and other factors that may have affected the calculated emission rates and restricted production. Further, Hibbing provided regression analyses assessing the relationship between furnace feed rates and NO X emission rates during the limit-setting periods to support the requested limit increases.

On October 22, 2021, Hibbing submitted a request to EPA to establish a crossline average emission limit for Lines 1, 2, and 3 of 1.6 lbs NO X /MMBtu, with compliance to be determined on a 30-day rolling average basis. The submittal included hourly CEMS data for the same time periods as Hibbing's initial limit modification submittals and a regression analysis assessing the relationship between furnace feed rates and NO X emission rates during the limit-setting periods to support the requested limit increases. The hourly CEMS data submitted to EPA included a description of the failure analyses identifying potential reasons for pellets failing to meet pellet quality specifications for hours excluded in the limit-setting calculation.

There is no basis in the FIP for adjusting emission limits to account for possible future production levels based upon an assumed correlation between feed rates and emissions. Therefore, in accordance with 40 CFR 52.1235(f)(2), EPA calculated 720-hour average NO X emission limits of 1.5 lbs NO X /MMBtu for Line 1, 1.4 lbs NO X /MMBtu for Line 2, and 1.5 lbs NO X /MMBtu for Line 3. 19 Under the BART Guidelines, a source may be permitted to “ `average' emissions across any set of BART-eligible emission units within a fenceline, so long as the emission reductions from each pollutant being controlled for BART would be equal to those reductions that would be obtained by simply controlling each of the BART-eligible units that constitute BART-eligible sources.”  20 EPA averaged the single line limits described above and calculated a crossline 720-hour average emission limit of 1.5 lbs NO X /MMBtu. The NO X controls have been installed and are being operated on all three lines. Based on EPA's analysis, this crossline average emission limit is equal to the reductions that would be obtained by controlling each line separately. Therefore, based on these data and as provided at 40 CFR 52.12335(b)(1)(ii)(A)(7), (B)(7), and (C)(7), and consistent with 40 CFR 51.308(e) and 40 CFR part 51, appendix Y, at V, EPA is proposing that a crossline average emission limit of 1.5 lbs NO X /MMBtu for Hibbing Lines 1, 2, and 3, with compliance to be determined on a 30-day rolling average basis, reflects NO X BART for Hibbing Lines 1, 2, and 3.

For Minorca's indurating furnace, the 2016 FIP established a NO X BART emission limit of 1.2 lbs NO X /MMBtu, while allowing for potential modification of the limit within the range of 1.2-1.8 lbs NO X /MMBtu. 21

On November 12, 2019, Minorca submitted an engineering report to EPA which identified the low NO X technology to be installed on Line 1 as an LNB, water injection, and utilization of specific operating parameters. The combined use of these measures was projected to meet an emission limit of 1.2 lbs NO X /MMBtu based on a 30-day average. On September 11, 2020, Minorca submitted CEMS data for the period January 12, 2020, to September 10, 2020, excluding the CEMS values that did not meet pellet quality specifications, consistent with the 2016 FIP. 22

On October 22, 2021, Minorca submitted supplemental information consisting of 720-hour averages of CEMS data from January 12, 2020, through September 30, 2021. Adding the data from September 10, 2020, through September 30, 2021, to the original data set, Minorca calculated an emission limit of 1.6 lbs NO X /MMBtu using the equation at 40 CFR 52.1235(f)(2). Minorca then performed a regression analysis assessing the relationship between furnace pellet production rates and NO X emission rates during the limit-setting period to support the requested limit increase. Minorca cited the climate in Minnesota and other factors that may have affected production rates in its explanation of why the emission limit should be adjusted to 1.7 lbs NO X /MMBtu.

Based on the non-parametric equation at 40 CFR 52.1235(f)(2), EPA evaluated the 720-hour average NO X emission data for the full data set submitted and calculated an emission limit of 1.6 lbs NO X /MMBtu. 23 There is no basis in the FIP for adjusting emission limits to account for possible future production levels based upon an assumed correlation between feed rates and emissions. Therefore, based on these data and as provided at 40 CFR 52.1235(b)(1)(v)(7), EPA is proposing that a modified limit of 1.6 lbs NO X /MMBtu, with compliance to be determined on a rolling 30-day average basis, reflects BART for the Minorca Line 1 indurating furnace.

For UTAC's indurating furnaces, Grate Kiln Line 1 (EU040) and Grate Kiln Line 2 (EU042), the 2016 FIP established specific NO X BART limits of 2.8 pounds of NO X /MMBtu when burning natural gas, while allowing for potential modification of the limits within the range of 2.8-3.0 lbs NO X /MMBtu. Similarly, the 2016 FIP established specific NO X BART limits of 1.5 lbs NO X /MMBtu when co-firing coal and natural gas, while allowing for potential modification of the limits within the range of 1.5-2.5 lbs NO X /MMBtu. 24 The 2016 FIP also allowed for the establishment of a single NO X limit for all fuels.

UTAC submitted an engineering report for Line 1 on May 11, 2018. UTAC installed and began operating the sub-stoichiometric staged combustion LNB designed to achieve an emission rate of 2.8 lbs NO X /MMBtu when firing exclusively natural gas and 1.5 lbs NO X /MMBtu when co-firing with coal, as described in the engineering report submitted to EPA. UTAC subsequently made modifications to the Line 1 LNB in September 2018. On March 12, 2019, UTAC submitted a report requesting modification of the co-firing NO X limit for Line 1 to 2.5 lbs NO X /MMBtu, based upon 720-hour averages from February 2019.

On November 12, 2019, UTAC submitted a report to EPA to address the requirement for an engineering report for Line 2. On November 12, 2021, UTAC submitted information on the LNB selected for Line 2, a modified version of the LNB installed on Line 1. This submittal included a report on computational fluid dynamics modeling demonstrating the burner was designed to achieve an emission rate of 2.8 lbs NO X /MMBtu when firing exclusively natural gas and 1.5 lbs NO X /MMBtu when co-firing with coal. On April 11, 2023, UTAC submitted an analysis of Line 1 and Line 2 NO X performance post LNB installations and requested a crossline average limit of 3.0 lb NO X /MMBtu for all fuels, based on a 30-day rolling average. Along with the analysis, UTAC submitted 720-hour averages of total lbs NO X /MMBtu for Lines 1 and 2 combined for the time period of January 25, 2022, to March 26, 2023. UTAC also submitted hourly CEMS and process information for this time period, which UTAC claimed as confidential business information, so that EPA could verify the calculations.

Based on the equation set forth at 40 CFR 52.1235(f)(2), EPA calculated 720-hour average NO X emission limits of 2.3 lbs NO X /MMBtu and 3.6 lbs NO X /MMBtu when burning exclusively natural gas for Lines 1 and 2, respectively. Separately, EPA calculated an emission limit of 3.1 lbs NO X /MMBtu when burning mixed fuel on Line 2. There were 475 hours of co-firing data for Line 1, which is not sufficient to calculate a 720-hour average NO X emission limit. EPA also calculated an emission limit of 3.1 lbs NO X /MMBtu when combining hourly emissions data for both lines and all fuels. 25 While CEMS data show the installed emission control measures reduced NO X emissions, the selected technology failed to achieve emission rates within the specified FIP ranges, particularly when evaluating separate limits for each fuel type.

As discussed in II. B., under the BART Guidelines, a source may be permitted to “ `average' emissions across any set of BART-eligible emission units within a fenceline, so long as the emission reductions from each pollutant being controlled for BART would be equal to those reductions that would be obtained by simply controlling each of the BART-eligible units that constitute BART-eligible sources.”  26 EPA evaluated the CEMS data and considered UTAC's requested crossline average NO X emission limit of 3.0 lbs NO X /MMBtu for all fuels, for Lines 1 and 2, with compliance to be determined on a 30-day rolling average basis. Based on EPA's analysis, this crossline average emission limit is equal to the reductions that would be obtained by controlling each line separately and is within the natural gas NO X emission limit range established in the 2016 FIP. A single fuel-neutral emission limit allows UTAC to select a fuel mix that maximizes natural gas usage and minimizes coal usage without exceeding the natural gas emission limit range established in the 2016 FIP. This has the dual environmental (visibility) benefit of minimizing NO X emissions by setting an emissions limit that is below the calculated natural gas-only rate, and also potentially minimizing the use of coal and the associated SO 2 emissions from burning coal. Therefore, based on these data and as provided at 40 CFR 52.1235(b)(1)(iv)(A)(8) and (B)(8), and consistent with 40 CFR 51.308(e) and 40 CFR part 51, appendix Y, at V, EPA is proposing that a crossline emission limit of 3.0 lbs NO X /MMBtu for all fuels for UTAC Lines 1 and 2, based on a rolling 30-day average, reflects BART for UTAC Lines 1 and 2.

As previously described, the Original FIP determined that existing controls reflected SO 2 BART for Minorca, Hibbing, and Northshore, and established SO 2 emission limits for each furnace, with the option or requirement, depending on the facility, that the owner or operator submit one year of CEMS data to EPA to set a revised SO 2 emission limit calculated using the appropriate UPL equation. The 2016 FIP limited the sulfur content of the coal burned at Tilden, set an SO 2 emission limit, and required Tilden to submit one year of CEMS data to EPA to set a revised SO 2 emission limit calculated using the appropriate UPL equation. For a more detailed description of the existing SO 2 emission limits and the process set forth to modify the emission limits, see 40 CFR 52.1235 (Hibbing, Minorca, and Northshore) and 40 CFR 52.1183 (Tilden). As discussed above in II., EPA has calculated the emission limits using the appropriate UPL equation at the 99th percentile.

For Tilden, the 2016 FIP established a specific SO 2 BART emission limit of 500 pounds of SO 2 per hour (lbs/hr) for Grate Kiln Line 1, with no more than 0.60 percent sulfur by weight based on a monthly block average for any coal usage. The 2016 FIP also required that the owner or operator of Tilden calculate an SO 2 emission limit based on one year of hourly CEMS emissions data using the appropriate UPL equation provided in 40 CFR 52.1183(p) and submit such calculations and data to EPA by 36 months after May 12, 2016. The 2016 FIP provides that EPA may revise the emission limit downward to reflect the calculated SO 2 emission rate; however, EPA may not increase the SO 2 limit above 500 lbs SO 2 /hr.

On October 1, 2018, Tilden submitted SO 2 emissions data to EPA reflecting Tilden burning exclusively natural gas during the period March 28, 2017, through March 27, 2018. Citing various production-related concerns, Tilden adjusted its calculated limit to account for expected higher production capacity and higher ore sulfur content, which resulted in an adjusted expected emission rate of 568 lbs SO 2 /hr. Tilden requested an SO 2 emission limit of 500 lbs/hour for all fuels, regardless of natural gas or coal fuel usage, as established in the 2016 FIP. On November 10, 2022, Tilden submitted hourly SO 2 data for Line 1 from the same time period of March 28, 2017, through March 27, 2018, during which time Tilden was exclusively burning natural gas. On March 1, 2023, Tilden provided hourly co-firing CEMS data for July 12, 2018, through July 11, 2019. On March 30, 2023, Tilden provided hourly CEMS data for the time period March 27, 2018, through March 26, 2019, which included both co-firing and natural gas-only operation.

The 2016 FIP established a single SO 2 emission limit to apply regardless of natural gas or coal fuel usage, which Tilden must meet at all times. Consistent with this approach, and because SO 2 emissions are higher when Tilden is co-firing and the emission limit must be met at all times, EPA is proposing to base the emission limit modification calculations on all co-firing data included in Tilden's March 1, 2023, and March 30, 2023, CEMS data submissions. Based on the equation set forth at 40 CFR 52.1183(p)(2), EPA calculated an emission limit of 189 lbs SO 2 /hour consistent with this approach. 27 There is no basis in the FIP for adjusting emission limits to account for possible future production levels or possible higher ore sulfur content. Therefore, based on these data and as provided at 40 CFR 52.1183(k)(3), EPA is proposing that an SO 2 limit of 189 lbs SO 2 /hr for the Tilden Line 1 indurating furnace, with compliance to be determined on a 30-day rolling average basis, reflects SO 2 BART for Tilden Line 1.

For Hibbing Lines 1, 2, and 3, the Original FIP set an aggregate emission limit of 247.8 lbs SO 2 /hr, based on a 30-day rolling average and excluding emissions resulting from the combustion of fuel oil, and provided Hibbing the option of calculating a revised SO 2 emission limit by 20 months after March 8, 2013, based on one year of hourly CEMS emissions data and the non-parametric UPL equation. If any fuel oil is burned after the first day that SO 2 CEMS were required to be operational, the 2016 FIP requires Hibbing to submit the gallons of fuel oil burned per hour, the sulfur content of the fuel oil, and the SO 2 emissions in pounds per hour, so that EPA can establish an SO 2 emissions limit for fuel oil. Hibbing chose not to calculate a revised SO 2 emission limit. 28

For Minorca, the Original FIP set an emission limit of 38.16 lbs SO 2 /hour, based on a 30-day rolling average and excluding emissions when Minorca is combusting fuel oil, with an allowance for potential modification of the limit based on one year of hourly CEMS data submitted to EPA by 20 months after March 8, 2013. If any fuel oil is burned after the first day that SO 2 CEMS were required to be operational, the 2016 FIP requires Minorca to submit the gallons of fuel oil burned per hour, the sulfur content of the fuel oil, and the SO 2 emissions in pounds per hour so that EPA can establish an SO 2 emissions limit for fuel oil.

On April 6, 2018, Minorca submitted a request to modify the SO 2 limit established in the 2016 FIP. Minorca ranked hourly data from the period March 1, 2017, through March 31, 2018, adjusted the calculated limit based on potential increased production rates, and requested an emission limit of 73.79 lbs SO 2 /hour. On October 14, 2019, Minorca submitted additional hourly SO 2 CEMS emission data for the time period of September 8, 2018, through September 7, 2019, revising their request to an emission limit of 208.66 lbs SO 2 /hr. Minorca adjusted the calculated limit based on potential increased production rates, maximum ore sulfur content based on a ratio of maximum percent sulfur, and pellet type.

Using the equation set forth at 40 CFR 52.1235(f)(2) and the most recent CEMS data from September 8, 2018, through September 7, 2019, EPA calculated an SO 2 emission limit of 68.2 lbs SO 2 /hour. 29 There is no basis in the FIP for adjusting emission limits to account for possible future production levels or possible higher ore sulfur content. Therefore, based on these data and as provided at 40 CFR 52.1235(b)(2)(v) and 40 CFR 51.308(e), EPA is proposing that an emission limit of 68.2 lbs SO 2 /hr, based on a 30-day rolling average, reflects SO 2 BART for the Minorca indurating furnace.

For Northshore, the Original FIP set an aggregate emission limit of 39.0 lbs SO 2 /hour for Furnace 11 (EU100/EU104) and Furnace 12 (EU110/EU114), based on a 30-day rolling average and excluding emissions resulting from the combustion of fuel oil, with a requirement that the owner or operator calculate a revised limit based on one year of hourly CEMS data and submit such data and calculations to EPA by 20 months after March 8, 2013.

On April 11, 2018, Northshore submitted an SO 2 emission limit modification request which included CEMS data from January 16, 2017, through January 15, 2018. Northshore adjusted the calculated emission limit based on potential increased production rates and requested a limit of 22.1 lbs SO 2 /hour.

On November 21, 2018, Northshore submitted a revised limit modification request of 49 lbs SO 2 /hr. This limit modification request included data for the time period of January 16, 2017, through January 15, 2018, and adjusted the calculated limit based on potential increased production rates and potential increases in ore sulfur content. On November 10, 2022, Northshore submitted hourly SO 2 CEMS data for the period of January 16, 2017, through January 15, 2018, as requested by EPA, to allow for EPA's independent calculation of emission limits.

Using the equation set forth at 52.1235(f)(2) and the hourly SO 2 CEMS data from January 16, 2017 through January 15, 2018, EPA calculated an aggregate SO 2 emission limit of 17.0 lbs SO 2 /hour for Furnaces 11 and 12. 30 There is no basis in the FIP for adjusting emission limits to account for possible future production levels or possible higher ore sulfur content. Therefore, based on these data and as provided at 40 CFR 52.1235(b)(2)(vi), EPA is proposing that an aggregate SO 2 emission limit of 17.0 lbs SO 2 /hr for Northshore Furnaces 11 and 12, based on a 30-day rolling average, reflects SO 2 BART for Northshore.

Under CAA section 110(l) (sometimes referred to as an “anti-backsliding” provision), EPA cannot approve a plan revision “if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 7501 of this title), or any other applicable requirement of this chapter.” Based on the following analysis, we find that our revisions to the 2016 FIP are consistent with CAA section 110(l) because they will not interfere with any applicable requirement concerning attainment or reasonable further progress or any other applicable requirements of the CAA.

When the 2016 FIP was promulgated, NO X control technology had not yet been installed on the furnaces at Tilden, Hibbing, Minorca, and UTAC. Therefore, EPA established initial emission limitations based on the modeled (estimated) performance of the proposed technology along with a procedure to refine and modify the emission limits within a specified range based upon CEMS data collected after installation of the NO X control technology. The 2016 FIP also allowed for the establishment of a single NO X limit for all fuels. However, the NO X emission limits in the 2016 FIP are not enforceable and final until EPA takes action to confirm or modify the initial emission limits established in the 2016 FIP. Because the NO X limits established in the 2016 FIP have not been confirmed and made enforceable through the procedures set forth in the 2016 FIP, and are not currently enforceable, the proposed NO X emission limits do not alter any existing enforceable limits, since there are no current enforceable limits. Therefore, approval of the proposed NO X limits would not interfere with any applicable requirement concerning attainment or reasonable further progress, or any other applicable requirement of the CAA.

Additionally, even if EPA were to evaluate the proposed NO X emission limits in relation to the relevant provisions of the 2016 FIP, we believe the FIP will not interfere with any applicable requirement concerning attainment or reasonable further progress, or any other applicable requirements of the CAA. 31 EPA's proposed action will complete the process set forth in the 2016 FIP to finalize enforceable NO X emission limits for Tilden, Hibbing, UTAC, and Minorca within ranges previously established. The NO X emission limits EPA is proposing reflect BART because they were calculated using the corrected UPL equation and actual emission data recorded by CEMS, after installation of the required low-NO X technology, pursuant to the procedures set forth in the 2016 FIP. While crossline averaging was not addressed in the 2016 FIP, under the BART Guidelines, a source may be permitted to “ `average' emissions across any set of BART-eligible emission units within a fenceline, as long as the emission reductions from each pollutant being controlled for BART would be equal to those reductions that would be obtained by simply controlling each of the BART-eligible units that constitute BART-eligible sources.”  32 Based on EPA's analysis, the crossline average emission limits proposed for Hibbing and UTAC are equal to the reductions that would be obtained by controlling each line separately.

The proposed NO X emission limits do not reflect a change in EPA's BART determination. Rather, the proposed limits were calculated using CEMS data and the corrected UPL equation, following the procedure set forth in the 2016 FIP, to more accurately reflect an emission limit consistent with the actual emission reduction capabilities of the BART controls and within the natural gas ranges established in the 2016 FIP. Therefore, there are no expected increases in NO X emissions compared to the ranges set in the 2016 FIP.

EPA is proposing to revise the SO 2 emission limits applicable to Minorca, Northshore, and Tilden. Minorca and Northshore are straight-grate furnaces that do not co-fire with coal; SO 2 emissions from these sources result from sulfur in the ore processed in the furnaces. As discussed previously, when the Original FIP was promulgated, SO 2 BART for Minorca and Northshore was established as no further controls. EPA set initial SO 2 emission limits based on limited stack test data and established a procedure to refine those limits when CEMS data became available. EPA is proposing to modify the Minorca emission limit from 38.16 lbs SO 2 /hour to 68.2 lbs SO 2 /hour and the Northshore emission limit from 39.0 lbs SO 2 /hour to 17.0 lbs SO 2 /hour. These proposed revised emission limits do not reflect a change in EPA's BART determination or in operations at the facilities that would lead to an increase or decrease in SO 2 emissions. Rather, the emission limits EPA is proposing establish emission limits that more accurately reflect BART because they were calculated using the corrected UPL equation and actual emission data recorded by CEMS, pursuant to the procedures set forth in the Original FIP.

Similarly, the 2016 FIP established SO 2 BART for Tilden as a limit on the sulfur content of the coal and no further controls, and set an SO 2 emission limit for Tilden along with a process to modify that limit when CEMS data became available. EPA is not proposing to revise any limits on the sulfur content of coal at Tilden. EPA is only proposing to modify Tilden's emissions limit from 500 lbs SO 2 /hour to 189 lbs SO 2 /hour. The revised emission limit was calculated using the corrected UPL equation and actual emission data recorded by CEMS, pursuant to the procedures set forth in the 2016 FIP.

In sum, as a result of the revised SO 2 emissions limits described above, EPA does not expect changes in SO 2 emissions from these sources. The limits do not reflect a change in EPA's BART determination or in operations at the facilities. Rather, the proposed limits more accurately reflect actual emissions that were calculated using newly available CEMS data and the corrected UPL equation.

On June 12, 2012 (77 FR 34801), EPA approved Minnesota's regional haze plan for the first implementation planning period as satisfying the applicable requirements in 40 CFR 51.308, except for BART emission limits for the taconite facilities. Among the regional haze plan elements approved were Minnesota's long-term strategy for making reasonable progress toward visibility goals. Minnesota's long-term strategy did not rely on the achievement of any particular degree of emission control from the taconite plants to achieve reasonable progress goals.

On December 3, 2012 (77 FR 71533), EPA approved Michigan's regional haze plan for the first implementation planning period as satisfying the applicable requirements in 40 CFR 51.308, except for BART emission limits for Tilden, St. Mary's Cement, and Escanaba Paper Company. Among the regional haze plan elements approved was Michigan's long-term strategy for making reasonable progress toward visibility goals. Michigan's long-term strategy did not rely on the achievement of any particular degree of emission control from the taconite plants to achieve reasonable progress goals.

On August 23, 2021, Michigan submitted a revision to their regional haze SIP for the second implementation planning period. Michigan's submittal provided a long-term strategy and reasonable progress goals that included 2028 emission projections for Tilden based on a 2016 modeling platform developed by LADCO that did not rely on emission limits or ranges in the 2016 FIP.

On December 20, 2022, Minnesota submitted a revision to its regional haze SIP for the second implementation period. Minnesota's long-term strategy included implementation of the current applicable limits and ranges in the Original FIP and 2016 FIP for Hibbing, Minorca, UTAC, and Northshore. However, in applying the long-term strategy to develop its reasonable progress goals, Minnesota used 2028 projected emissions modeling that relied on the 2016 FIP limits only for UTAC and not for Hibbing, Minorca, or Northshore. For Hibbing and Minorca, Minnesota's modeling utilized 2028 projected emissions provided by LADCO using the 2016 emissions modeling platform since CEMS data was not available at the time. For Northshore, Minnesota accounted for the facility being idled until 2031, which was incorporated into an enforceable agreement as an Administrative Order by Consent issued by the Minnesota Pollution Control Agency to Northshore and Cleveland-Cliffs, Inc. To project 2028 emissions for UTAC, Minnesota used 2017 CEMS data to convert NO X and SO 2 emissions and associated heat input into emission rates that allowed for a comparison to the limits and ranges in the 2016 FIP. Minnesota kept heat input rates the same and assumed compliance at the least stringent end of the emission limit ranges ( e.g., for an emission limit range of 2.8-3.0 lbs NO X /MMBtu, Minnesota assumed 3.0 lbs NO X /MMBtu in the emission calculations), resulting in conservative emission projections for 2028. Using a photochemical model based on the 2028 emission projections for all selected sources in their regional haze plan, including the taconite facilities, Minnesota estimated future visibility and established their reasonable progress goals.

Although EPA has not yet taken final action on the regional haze SIP revisions submitted by Michigan and Minnesota for the second implementation period, the assumptions used in the long-term strategies and reasonable progress goals were no more stringent than the currently applicable Original FIP and 2016 FIP emission limits and ranges or the revised limits we are proposing in this action. Therefore, the revised NO X emission limits for Tilden, Hibbing, UTAC, Minorca, and Northshore represent greater control overall than was assumed in Michigan's and Minnesota's long-term strategy and would not result in a degradation of the reasonable progress goals required by 40 CFR 51.308(d)(1).

With respect to requirements concerning attainment of the NAAQS and reasonable further progress, EPA is proposing to finalize NO X BART emission limits for seven subject-to-BART units at four facilities within the ranges established in the 2016 FIP. EPA is also proposing to finalize SO 2 emission limits for three facilities which will not result in an increase in SO 2 emissions. Thus, the proposed FIP revision will not interfere with attainment and reasonable further progress requirements.

We find that these revisions are consistent with CAA section 110(l). The previous sections of the notice explain how the proposed FIP revision will comply with applicable regional haze requirements and general implementation plan requirements and demonstrate that it will not interfere with any regional haze program requirements, attainment and reasonable further progress, or any other requirement of the CAA.

Executive Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice (EJ) part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on communities with EJ concerns.

EPA believes that the human health and environmental conditions that exist prior to this action do not result in disproportionate and adverse effects on communities with EJ concerns. To identify environmental burdens and susceptible populations in communities nearby the Tilden, Hibbing, Minorca, Northshore, and UTAC facilities, and to examine the implications of the proposed NO X and SO 2 emission limits, EPA utilized the EJScreen tool to evaluate environmental and demographic indicators within a 3-mile buffer, a 10-mile buffer, and the county that each facility is located in (Marquette County, Michigan for Tilden; St. Louis County, Minnesota for Hibbing, Minorca, and UTAC; and Lake County, Minnesota for Northshore).

EPA's screening-level analysis indicates that communities near the facilities affected by this action score below the national average for the EJScreen “Demographic Index”, which is the average of an area's percent minority and percent low-income populations, i.e., the two demographic indicators explicitly named in Executive Order 12898. Additionally, the results indicate that these areas score below the 80th percentile (in comparison to the nation as a whole) in the 13 EJ Indexes established by EPA, which include a combination of environmental and demographic information. EPA has provided that if any of the EJ indexes for the areas under consideration are at or above the 80th percentile nationally, then further review may be appropriate. As discussed in the EPA's EJ technical guidance, communities with EJ concerns often experience greater exposure and disease burdens than the general population, which can increase their susceptibility to adverse health effects from environmental stressors.

EPA believes that this action is not likely to result in new disproportionate and adverse effects on communities with EJ concerns. This action proposes to set final NO X and SO 2 emission limits which are not expected to result in new or increased burdens on residents, including those in communities of EJ concern, as specified in Executive Order 12898.

EPA invited the identification of EJ and other concerns during its Tribal consultations which occurred prior to proposing emission limits for all five taconite facilities. No EJ concerns were raised in the context of this action. We have determined that this rulemaking will not have disproportionately high and adverse human health or environmental effects on communities with EJ concerns. The information supporting this Executive Order review is contained in the docket for this action, including the EJSCREEN reports considering a 3-mile buffer, a 10-mile buffer, and the county that each taconite facility is in.

EPA is proposing to modify the UPL equations used to establish NO X and SO 2 emission limits and to finalize NO X and/or SO 2 limits for the indurating furnaces at five taconite facilities in accordance with the procedure set forth in the 2016 FIP. Specifically, EPA is proposing to approve the following NO X limits, with compliance to be determined on a rolling 30-day average: 3.0 lbs NO X /MMBtu for all fuels for Tilden Line 1; a crossline average limit of 1.5 lb NO X /MMBtu for Hibbing Lines 1, 2, and 3; a crossline average emission limit of 3.0 lbs NO X /MMBtu for all fuels for UTAC Lines 1 and 2; and 1.6 lbs NO X /MMBtu for Minorca's indurating furnace. EPA is proposing to approve the following SO 2 limits, with compliance to be determined on a rolling 30-day average: 189 lbs SO 2 /hr for all fuels for Tilden Line 1; an aggregate emission limit of 247.8 lbs SO 2 /hr for Hibbing Lines 1, 2, and 3; 68.2 lbs SO 2 /hr for Minorca's indurating furnace; and an aggregate limit of 17.0 lbs SO 2 /hr for Northshore Furnaces 11 and 12.

This action is not a significant regulatory action as defined in Executive Order 12866, as amended by Executive Order 14094, and was therefore not subject to a requirement for Executive Order 12866 review.

This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Because the FIP applies to just the taconite facilities in Michigan and Minnesota, the Paperwork Reduction Act does not apply. See 5 CFR 1320.3(c).

I certify that this proposed action will not have a significant economic impact on a substantial number of small entities under the RFA. This proposed action will not impose any requirements on small entities. This action, if finalized, will add additional controls to certain sources. None of these sources are owned by small entities, and therefore are not small entities.

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

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

This proposed action does not have Tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on Tribal governments. Thus, Executive Order 13175 does not apply to this action. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes, EPA did discuss this action in conference calls with the Michigan and Minnesota Tribes.

This action is not subject to Executive Order 13045 because it is not 3(f)(1) significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. To the extent this action, if finalized, will limit emissions of NO X and SO 2 emissions, the rule will have a beneficial effect on children's health by reducing air pollution.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

EPA believes that the human health and environmental conditions that exist prior to this action do not result in disproportionate and adverse effects on communities with Environmental Justice concerns. This proposed FIP limits emissions of NO X and SO 2 from five taconite facilities in Michigan and Minnesota. EPA believes that this action is not likely to result in new disproportionate and adverse effects on communities with environmental justice concerns.

EPA performed an EJ analysis, as is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. In addition, there is no information in the record upon which this decision is based inconsistent with the stated goal of E.O. 12898 of achieving EJ for communities with EJ concerns.

For the reasons stated in the preamble, EPA proposes to amend title 40 CFR part 52 as follows:

The revisions read as follows:

The revisions read as follows:

This is a summary of the Commission's FNPRM in WC Docket Nos. 10-90, 23-328, 16-271, 14-58, 09-197 and WT Docket No. 10-208; FCC 24-116, adopted on November 1, 2024 and released on November 4, 2024. The full text of this document is available at the following internet address: https://www.fcc.gov/document/fcc-adopts-alaska-connect-fund-further-address-broadband-needs. The Commission also concurrently adopted a Report and Order (Order) that takes important and necessary steps to ensure continued support for the advancement of modern mobile and fixed broadband service in Alaska.

Filing Requirements. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated in this document. Comments may be filed using the Commission's ECFS or by paper. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

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

Providing Accountability Through Transparency Act. Consistent with the Providing Accountability Through Transparency Act, Public Law 118-9, a summary of the FNPRM is available on https://www.fcc.gov/proposed-rulemakings.

In this FNPRM, the Commission seeks comment on a number of issues related to the implementation of the ACF.

As an initial matter, for ACF Mobile Phase II, the Commission seeks comment on a methodology to determine a support amount for areas where more than one mobile provider had been receiving support for overlapping service areas. This mechanism may also be used to determine support amounts to claw back for areas that the Commission deems ineligible for mobile support in the concurrently adopted Report and Order (Order) in the event that support is not shifted to a comparable area.

Additionally, the Commission seeks comment on ACF Mobile Phase II service requirements, as well as how to eliminate duplicative support in ACF Mobile Phase II so that only one provider would continue to receive funding in duplicate-support areas. First, the Commission seeks comment on a competitive mechanism for awarding support to one provider in duplicate-support areas. Second, the Commission seeks comment on an alternative mechanism to address duplicate-support areas that would designate one provider that would continue receiving support in the same area, and would allow other providers to choose different areas to serve to continue receiving the previous support levels.

In addition, the Commission seeks to update the record on how best to deploy mobile service to areas that remain unserved with the $162 million from the Alaska Plan that has been reallocated toward this purpose. Further, the Commission seeks comment on conducting a reverse auction to award support to competitive Eligible Telecommunication Carriers (ETCs) to deploy advanced communications networks in these areas.

The Commission seeks comment on additional issues for implementation of the mobile portion of the ACF, for both the two support-area plan established in the concurrently adopted Order and the ACF Mobile Phase II as described in this document. The Commission seeks comment on retail consumer conditions, including seeking comment on a proposal to impose a minimum subscriber requirement for ACF mobile participants, as well as seeking comment on marketing on Tribal lands. The Commission also seeks further comment on offering incentives to deploy networks with Open Radio Access Network (Open RAN). Finally, the Commission seeks further comment on Tribal consent under both the mobile and fixed portions of the ACF.

The Commission seeks comment on how to determine support amounts by area for purposes of the mobile portion of the ACF—for example, to determine the support amounts for duplicate-support areas and single-support areas, as well as previously supported areas that are no longer eligible. In the Alaska Plan, providers were awarded funding based on statewide commitments. Because the Commission adopts an area-based approach for the mobile portion of the ACF, it must establish a way to disaggregate total support across smaller geographic areas. Specifically, in order to address issues involving providers serving areas that are ineligible in the ACF but were eligible in the Alaska Plan ( e.g., areas which have an unsubsidized provider of 5G-NR at 7/1 Mbps in an outdoor stationary environment or three or more mobile providers offering at least 4G LTE at 5/1 Mbps in an outdoor stationary environment—with at least one of those providers being unsubsidized—based on Broadband Data Collection (BDC) coverage data as of December 31, 2024), the Commission must calculate how much support has been allocated to these ineligible areas. In the Alaska Connect Fund Notice, 88 FR 80238, November 17, 2023, the Commission asked if duplicate funds could be redistributed “by calculating the support that eligible providers are receiving per hexagon across all of that provider's service areas and subtracting the support that the provider receives per hexagon in a particular service area?” As no commenters directly addressed this question, the Commission seeks comment on the methodology in the following to calculate Alaska Plan support in specific areas, at the hex-9 level.

Because mobile providers have statewide buildout requirements under the Alaska Plan, calculating a provider's rate of support in any given area is particularly complicated, since providers that receive support to cover multiple areas are not required to spend that money in any particular area. A provider's average rate of support over all areas is likely not to reflect the amount of support it uses to cover any particular area. However, the average support rate for a provider that receives support for a more targeted area is more likely to reflect the amount of support that the provider needs to cover that area. Based on that assumption, the Commission seeks comment on whether to iterate through the Alaska Plan participants, from smallest footprint to largest, using the smaller providers' support as proxies for the support for larger providers in areas where they overlap.

To provide a detailed example of the information in this document, the Commission would first consider the support of the provider covering the fewest number of hex-9s located in Alaska Plan eligible census blocks (Provider A). Specifically, the Commission would divide Provider A's annual support by the total number of hex-9s that the provider covers in Alaska Plan eligible census blocks to calculate an average value for each covered hex-9. A hex-9 would be considered covered by a provider if 70% of the grandchild hex-11s were covered at the centroid, using the union of December 2024 BDC mobile broadband and mobile voice coverage for that provider. For example, if Provider A receives $100,000 in annual support and covers 1,000 hex-9s in Alaska Plan eligible blocks, each such hex-9 it covers would be said to receive $100 in annual support.

The Commission would then evaluate the support of the provider covering the second fewest hex-9s in Alaska Plan eligible census blocks (Provider B). The Commission would first determine if Provider B covered any of the same hex-9s as Provider A. If so, the value of those hex-9s would be the same as for Provider A; in this example, $100 per hex-9. The Commission would subtract the funding of these duplicate hex-9s from Provider B's total annual support, and divide the remaining annual support by the remaining covered hex-9s to calculate the funding for each hex-9 that is not duplicated by Provider A. To continue the example, suppose Provider B receives $150,000 in annual support and covers 2,500 hex-9s in Alaska Plan eligible blocks, and that 500 of these hex-9s are also covered by Provider A. In this case, the Commission would say that 500 of its hex-9s would each be assigned a value of $100, for a total of $50,000. The Commission would then calculate that the remaining $100,000 of support spread across the remaining 2,000 hex-9s results in each non-duplicate hex-9 receiving $50 of support. Alternatively, if there were no overlap between Providers A and B, the calculation for Provider B would follow the same process as Provider A, distributing $150,000 across the 2,500 hex-9s, resulting in each hex-9 covered by Provider B receiving $60 of support.

This process would be repeated with the provider covering the next largest area, or Provider C, such that its hex-9s that overlap with Provider A would be valued the same as for Provider A ($100 in the above example), the hex-9s that overlap with Provider B would be valued the same as for Provider B ($50 in the above example), and the remaining hex-9s as the average of the remaining support. (Note that if Providers A, B, and C all overlap in some hex-9s, the value would be at Provider A's average, or $100 in this example). The process would then iterate through the remaining providers, smallest to largest in terms of covered hex-9s in eligible Alaska Plan blocks, until a value has been assigned for every covered hex-9. Note that it would theoretically be possible for the largest of the eight Alaska Plan providers to have hex-9s valued at each of the smaller seven provider's averages, and then have its own average for its remaining hex-9s.

Further, the Commission would also use these values to determine the amount of ACF support at stake in areas no longer eligible in the ACF. Continuing the example in this document, if 100 of Provider B's non-duplicate hex-9s were no longer eligible, the value of those hex-9s would be $5,000. If Provider B were not able to commit to cover comparable hex-9s in its performance plan, its annual ACF support would be reduced by $5,000. Similarly, if the 100 ineligible hex-9s were covered by both Providers A and B, the value of each hex-9 would be $100, and the at-stake ACF support would be $10,000 for each provider.

The Commission seeks comment on the methodology in this document. Should hex-9s covered by more than one provider have the same value to each provider, or should the Commission adopt a different method that allows for heterogenous support levels for such hex-9s? Should the Commission instead apportion support based on another metric, such as covered BSLs or population? Should hex-9s within the same geographic area, such as a census tract or borough, all be assigned the same value, regardless of whether or not a given hex-9 is covered by more than one provider?

The Commission also seeks comment on whether to use this methodology to determine support amounts by area for use in a competitive—or alternative—mechanism for addressing duplicate support in ACF Mobile Phase II. The Commission seeks comment on whether this would be an effective methodology for determining duplicate support amounts. Additionally, the Commission seeks comment on the effectiveness of this methodology to calculate the amount of support to be clawed back in the event that a provider serving areas deemed ineligible for ACF, as set forth in the concurrently adopted Order, is not able to—or chooses not to—serve comparable areas. Further, the Commission asks whether it should use this or a similar hex-9-based methodology to calculate the value of ACF Phase I commitments. Are there other uses for this methodology in the mobile portion of the ACF? Finally, if commenters have concern about this methodology, the Commission seeks comment on alternative methodologies to calculate support amounts for these particular areas. The Commission seeks comment generally regarding how to determine the support amounts per area.

The Commission seeks comment on the level of service that it should expect from mobile providers that receive support under ACF Mobile Phase II of the ACF. Since the adoption of the Alaska Plan Order, 81 FR 69696, October 7, 2016, mobile wireless technologies have advanced significantly, and the Commission has moved toward supporting 5G-NR as the standard for high-cost mobile-wireless deployment. Despite this, the current Alaska Plan still supports 2G, 3G, and 4G LTE networks. While the Commission recognizes that Alaska presents unique challenges when deploying mobile networks, it also must recognize the advances in mobile wireless technologies that have been made since the adoption of the Alaska Plan; therefore the Commission tentatively concludes that continuing to fund such obsolete technologies would be both inefficient and contrary to the Commission's statutory mandate that consumers in rural and high-cost areas “should have access to” advanced communications “that are reasonably comparable to those services provided in urban areas.” As such, for ACF Mobile Phase II, the Commission seeks comment on whether to set a goal of 5G-NR 7/1 Mbps or whether to make this a requirement of ACF Mobile Phase II. Given that 4G LTE at 5/1 Mbps is already available in many parts of Alaska, particularly in areas with duplicate support, the Commission believes that this service level is achievable, and it seeks comment on this. However, the Commission provides a preference for higher deployment speeds when selecting winners in the competitive mechanisms, and therefore it expects that providers will be incentivized to offer 5G-NR 35/3 Mbps services in areas where it is technically and financially feasible. The Commission seeks comment on this approach. Alternatively, should the Commission make 5G-NR 35/3 Mbps the technology and speed goal (consistent with its approach for single-support areas by 2034, as in the concurrently adopted Order)? Should the Commission make this a requirement?

Additionally, if the Commission were to adopt a 5G-NR goal or minimum standard, should there be areas where providers are allowed to meet a lesser speed standard? For example, should areas with high middle-mile costs be required to deploy 5G-NR but only be required to meet a lower speed threshold, and if so, how would the Commission determine areas with high transport costs? Should the goal or minimum service requirements be lower for providers seeking to deploy in unserved areas? In the alternative, should the Commission continue to fund 4G LTE networks, and if so, under what conditions? If the Commission adopts 5G-NR 7/1 Mbps as the goal or minimum performance standard, how much time should it give carriers to upgrade their networks to meet this new standard? Should the adopted service goal or minimum deployment standard evolve over time to a higher standard so that it does not become outdated?

The Commission seeks comment on the appropriate mechanism to eliminate duplicate support in the mobile portion of the ACF. It is generally not the policy of the Universal Service Fund (USF) to subsidize competition in high-cost areas. Therefore, in the high-cost program, the Commission has sought to eliminate duplicate support—the provision of support to more than one competitive ETC in the same area. In the Alaska Connect Fund Notice, the Commission expressed concern that many areas were receiving duplicate support under the Alaska Plan. To address the issue of duplicate support, in this document, the Commission seeks comment on whether to adopt a competitive mechanism to decide which competitive ETC should be awarded the support for a given geographic area based on which provider proposes the best combination of coverage and service offerings for each community. Under this proposal, providers seeking to be chosen as the provider for a given community will submit proposed coverage maps for the areas where more than one provider currently receives support, as well as the surrounding community where no provider currently offers service ( i.e., unserved hex-9s within a larger geography that contains the duplicate support hex-9s). Based on these coverage map offers, the competitive mechanism would then determine which competitive ETC to support based on which provider proposes to deploy the 5G network with the best combination of speed and coverage to the duplicate-support areas and surrounding unserved areas. The Commission seeks comment on this approach.

As discussed in the concurrently adopted Order, in ACF Mobile Phase I, the Commission limits support to mobile ETCs that participated in the Alaska Plan, subject to other eligibility requirements. However, for ACF Mobile Phase II, in order to maximize competition in the competitive mechanism, the Commission seeks comment on whether to permit any competitive ETC, including competitive ETCs that do not already receive support for mobile service in remote Alaska, to be eligible to participate. The Commission believes that this approach would encourage new mobile providers to emerge in Alaska, including those that are not currently ETCs or that were not eligible for the Alaska Plan. The Commission sees no reason why a mobile provider that meets all other criteria to participate in a competitive process should be deemed ineligible solely because it is not currently receiving Alaska Plan support. The Commission tentatively concludes that this approach will stretch its scarce universal service dollars further and result in better service for Alaskans, and it seeks comment on this tentative conclusion. The Commission seeks comment on whether these are the appropriate eligibility criteria and whether any additional factors should be considered.

As mentioned in this document, several current participants in the Alaska Plan have failed to meet their commitments. In the concurrently adopted Order, the Commission determined that an Alaska Plan mobile provider participant may have its ACF support delayed, reduced, or may be deemed ineligible from the ACF, if the Wireless Telecommunications Bureau (WTB) determines that the provider has failed to comply with the public interest obligations or other terms and conditions of the Alaska Plan or its Alaska Plan commitments, or failed to meet a build-out milestone. This determination—and delegation to WTB—extends to eligibility to participate in the mechanisms the Commission discusses in this document. In short, Alaska Plan providers that have been deemed ineligible for ACF will be ineligible for ACF Mobile Phase II support. The Commission seeks comment on this approach. Should there be a process by which an ineligible provider under these criteria could be once again deemed eligible?

As discussed in the concurrently adopted Order, the Commission will determine whether an area is ineligible, a duplicate-support area, a single-support area, or unserved at the hex-9 level. The Commission seeks comment on whether only eligible duplicate support and unserved hex-9s should be eligible for support in the competitive mechanism. Under this proposal, single support hex-9s and ineligible hex-9s will both be ineligible for support in the competitive mechanism. The Commission also seeks comment on whether to aggregate eligible hex-9s into census tracts as the minimum geographic unit for which it will accept competing offers. Should the Commission use an alternative Census geography for accepting competing offers? Alternatively, should eligible hex-9s be aggregated into a lower resolution (larger) hexagon such as a hex-7? The Commission seeks comment on these proposals.

Based on the previously discussed methodology for determining the amount of support associated with each hex-9, the Commission seeks comment on whether to establish a budget for each census tract with duplicate support areas as follows. After determining the support for each duplicate support hex-9, based on the disaggregation of statewide support methodology the Commission adopts, it seeks comment on whether to establish a total duplicate support amount for each census tract with duplicate support areas that is equal to the sum, over all duplicate support hex-9s, of the calculated support amount for each duplicate support hex-9. If the duplicate support amount associated with each hex-9 is different by provider based on the adopted disaggregation methodology, the Commission seeks comment on whether the total support amount associated with a tract with duplicate support areas should be equal to the sum of the maximum amounts of duplicate support any provider receives for the eligible duplicate support hex-9s. In this case, the Commission seeks comment on whether to use the sum of these maximum amounts so that it ensures support is sufficient to maintain the existing available coverage within the duplicate support areas. Would this approach provide sufficient support to, at a minimum, maintain existing coverage? Would this level of support allow the awarded provider to enhance its coverage within the supported hex-9s to provide 5G-NR services? Would an alternative budget such as the total support associated with all supported providers in the duplicate support areas be a more appropriate amount, and if so, why?

For each census tract with duplicate support areas, the Commission seek comment on whether an eligible ETC could submit a proposal to be the sole recipient of the duplicate support amount for the census tract. Under this approach, a competitive ETC's proposal would consist of a proposed coverage map for a census tract that complies with the BDC mobile coverage data requirements and must predict 5G-NR coverage in an outdoor stationary environment. The Commission seeks comment on whether eligible ETCs may propose to cover a subset of the eligible areas within a tract with 5G-NR 7/1 Mbps service or 5G-NR 35/3 Mbps service, and that they would be required to submit separate coverage maps for each proposed service. The Commission seeks comment on these proposals. In order to ensure that coverage map proposals are comparable, should the Commission set uniform propagation model parameters for all submitted coverage maps? Alternatively, could an eligible ETC's bid be more general within a biddable area, such that it promises to deploy to a certain number of hex-9s with a specified level of service, but does not specify exactly which hex-9s?

For each census tract receiving coverage offers, the Commission seeks comment on whether to evaluate the proposals and determine a single winner for each area based on a combination of the scope of proposed geographic coverage and service levels to the eligible areas within the tract, as determined by submitted coverage maps. The Commission seeks comment on this approach. Specifically, based on the coverage maps submitted, the Commission seeks comment on whether it should calculate a weighted percent coverage of the eligible hex-9s in the census tract for each proposal received and award the entire duplicate support amount for the tract to the ETC that proposes the highest weighted percent coverage of eligible hex-9s. In this calculation, hex-9s would receive different weights depending on whether they would be covered with 7/1 Mbps or 35/3 Mbps 5G-NR service under a proposal. For the weights, the Commission seeks comment on whether 35/3 Mbps 5G-NR service should receive a weight equal to 1 and 7/1 Mbps 5G-NR service should receive a weight equal to .9 when calculating the weighted coverage percentage used to evaluate competing proposals.

For example, suppose that there are ten hex-9s in a tract with a total land area of approximately 1 square mile—eight eligible hex-9s and two ineligible hex-9s, one of which is served at 5G-NR at 7/1 Mbps minimum speed by an unsubsidized provider and one of which is a single support area. Suppose that two ETCs submit coverage maps for this tract and the first ETC proposes to serve 2 of the eligible hex-9s at 5G-NR 35/3 Mbps minimum speed service, and 3 of the eligible hex-9s at 5G-NR at 7/1 Mbps minimum speed service. In this case, under the weighting scheme, the weighted coverage percentage for this offer would be approximately equal to 47%. Further suppose that the second ETC proposes to serve 6 eligible hex-9s with 5G-NR at 7/1 Mbps minimum speed. The approximate score for this second proposal would be 54%, and therefore, this second ETC would be the winner of the budget assigned to this tract in the competitive mechanism.

Minimum Acceptable Offers. The Commission also seeks comment on the minimum acceptable weighted coverage percentage for an offer and whether it should be the weighted coverage percentage that would be implied by the current combined service areas of all the supported ETCs in the eligible hex-9s assuming 5G-NR 7/1 Mbps service in the hex-9s where such services are currently unavailable, and the actual 5G-NR deployed service in hex-9s where 5G-NR 7/1 Mbps or 35/3 Mbps services are deployed. For example, in the previous example, if two eligible hex-9s had 4G LTE 5/1 Mbps service, one had 5G-NR 7/1 Mbps and one had 5G-NR 35/3 Mbps, then the minimum acceptable coverage percentage for an offer would be approximately 37%. The Commission seeks comment on whether, if a provider submits an offer below the minimum coverage percentage or any other minimum criteria the Commission establishes, WTB should notify the provider and provide one opportunity for the provider to correct its bid. After this process, offers that remain below this minimum coverage percentage would be rejected. The Commission seeks comment on this approach.

Tie Breaker. Finally, in the event that more than one proposal should tie when calculating the highest weighted coverage percentage, the Commission seeks comment on what procedure should be used to break such a tie. Should the provider with the current highest weighted coverage percentage be awarded the support given that this provider has demonstrated a willingness and ability to serve the broader community with the most advanced mobile wireless services? Should the tie be broken at random? Should offers also include the lowest support amount below the available budget that the provider would be willing to accept in order to deploy the proposed service and, only in the case of ties for highest weighted coverage percentage, the provider with the lowest support amount would win and receive the support amount requested? To the extent a provider already receives support in the ACF, should the Commission consider the progress carriers have made in their single-support areas as indicated in the December 31, 2029 progress reports?

The Commission seeks comment on these proposals for accepting and evaluating competing offers in order to resolve duplicate support. Should the scoring of offers include other criteria besides proposed geographic coverage and service levels? For example, should the number of covered BSLs and road miles be explicitly included in the scoring formula? Are the weights the Commission seeks comment on for the two service levels appropriate? Should more weight be given to 5G-NR 35/3 Mbps service? Should other service levels be considered? Should providers be allowed to submit multiple offers that include a minimum support amount the provider would be willing to accept to deploy the proposed service level of the offer, and if so, how should the Commission trade off coverage and requested support when determining winners? Should the minimum coverage percentage in a census tract instead be set at the highest weighted coverage percentage of any single provider in the duplicate-support area under a minimum 5G-NR 7/1 Mbps service level assumption? Should the Commission also impose a minimum acceptable criterion on offers that all areas that currently have service ( e.g., a hex-9) would need to still have service under any proposal that it would accept as a valid proposal? Instead of only evaluating offers based on the eligible duplicate support and unserved areas within a tract, should the Commission also include ineligible single support areas within the tract when calculating the score in order to ensure that service is maintained to these areas? The Commission seeks comment on these questions and on any modifications that should be made to the methodology for evaluating competing offers and determining winners.

Support Phase-Down. The Commission seeks comment on whether providers that are not chosen as the sole recipient of the duplicate-support amount within a tract should have their support phased down over two years. Specifically, the Commission seeks comment on whether losing providers should receive two-thirds of their support for the first twelve months following the announcement of winners, one-third of their support for the next twelve months, and zero support for the tract thereafter. The Commission seeks comment on this approach and any alternatives. Is a phase-down of support appropriate? Is two years a sufficient length of time for the phase-down?

The Commission also seeks comment on an alternative mechanism that would assign support to only a single provider if an eligible area is covered by two or more Alaska Plan mobile provider participants. At a high level, this approach would take into consideration the existing coverage of each supported provider within a potentially larger area that includes the duplicate-support area—balancing various factors—and award support for the duplicate-support area to the provider that demonstrates the “best” coverage. Unlike the competitive mechanism, this approach would look at past service deployments rather than evaluating offers for future service deployments. For a currently supported provider that is not selected to continue receiving support for an area under the alternative mechanism, the Commission would make available an option to negotiate a revised plan with WTB that would allow it to continue to receive the same or similar level of support in exchange for serving different, but comparable, currently unserved areas. The Commission seeks comment on various aspects of this approach.

Evaluation Areas. In the concurrently adopted Order, the Commission defines duplicate-support areas as eligible areas covered by two or more Alaska Plan participants. For this alternative mechanism, the Commission seeks comment on criteria for deeming a potentially larger and more standardized area as the basis for evaluating the service provided by each of multiple supported carriers and selecting a single carrier to receive support for the eligible duplicate-support hex-9s within that area. Specifically, the Commission would consider a census tract as the evaluation area, and it seeks comment on whether census tracts would be large enough to provide sufficient scale for the selected provider but not so large as to create overlaps with areas where other providers may be receiving duplicate support. Would census blocks be a more reasonable size as evaluation areas? Alternatively, should the evaluation area be constructed based on the particular duplicate support situation, such as an aggregation of smaller adjacent census geographies, such as blocks? The Commission seeks comment on these options and generally on the criteria to be considered when determining an evaluation area that includes the hex-9s deemed to have duplicate support and the adjacent coverage areas of the supported providers.

Evaluating Mobile Technology. The Commission also seeks comment on how to evaluate a subsidized provider's service in a covered hex-9 with respect to mobile technology. For example, should the Commission differentiate among four categories of service in a hex-9: 2G and 3G service; 4G-LTE; 5G- NR at 7/1 Mbps; and 5G-NR at 35/3 Mbps or better? If the component hex-11s in a hex-9 indicate service of different mobile technologies, should the Commission deem the hex-9 as covered by the most frequently indicated technology in the covered hex-11s, or in the case of an equal split between mobile technologies, of the more advanced technology offered by the provider? Should the Commission instead not differentiate between mobile technologies in evaluating coverage, and consider an area either served or not? Alternatively, should the Commission differentiate among fewer than four mobile technologies, and if so, what should they be? Should the Commission use a different method to assign a technology to a hex-9 when the component hex-11s show different mobile technologies?

The Commission seeks comment on whether and, if so, how to weight differently the hex-9s in an evaluation area that are deemed to show coverage by different technologies. For example, if half of the hex-9s in a provider's footprint in an area show coverage at 3G speeds, and the other half receive 4G LTE service, should the Commission weight the 4G-LTE areas more heavily when evaluating the overall coverage of a supported provider? For this purpose, the Commission suggests weighting 2G and 3G service as .75, 4G LTE service at 1, 5G-NR at 7/1 Mbps at 1.15; and 5G-NR at 35/3 Mbps and higher speeds of service at 1.25. These weights would essentially use 4G LTE service as a benchmark, with slower service carrying less weight while faster service would count more heavily in the evaluation of a provider's existing coverage. If commenters disagree with this approach or with the suggested weights, the Commission asks that they suggest a different approach or different weights and explain why they believe their alternative approach is preferable. As an additional weight, should the Commission evaluate progress of upgraded deployments demonstrated in the December 31, 2029 progress reports for single-support areas, and if so, how should it do so?

Superior Coverage Calculation. In order to compare two or more supported providers that serve an area, this approach—on which the Commission seeks comment—would consider their technology-weighted service performance and the geographic extent of their footprint. The Commission would, for each provider, determine an area-specific score calculated as the sum of the weighted hex-9s that they serve. As a simple example, a provider that serves 1000 hex-9s in an evaluation area at 3G speeds would have a score of 1000*.75, or 750. Another provider that serves 800 hex-9s in the evaluation area with 4G-LTE would have a score of 800. The Commission suggests these two criteria—coverage within the geographic evaluation area and technology—because they provide for a simple, measurable, and transparent method for comparing coverage that captures essential components of a provider's service offering. How should the Commission select a single provider if two or more providers cover 100% of the evaluation area at the same technology, or otherwise have a tied score? Should the Commission then look to a broader area to evaluate the providers' coverage, such as the census block group, census tract level, or an alternate geographic area?

The Commission is mindful, however, that there are other aspects of a supported provider's performance that also matter to consumers. Should other factors, such as price or reliability, be considered in a supported provider's score? Would it be feasible to find standardized, measurable, and transparent ways to incorporate these or other factors? Would consideration of any such factors contribute significantly to the fairness of the comparison across duplicate supported providers? Will the requirements in ACF Mobile Phase I serve to ensure that a provider receiving support as of the start of ACF Mobile Phase II already meets basic price and/or reliability (or other) criteria, mitigating any need to incorporate the criteria explicitly into the scoring approach? The Commission seeks comment on these aspects of the approach.

Under this approach, the provider with the highest score in the evaluation area would be selected to continue to receive support for the previously duplicate support area. The Commission would calculate the support amount as set forth in this document, where generally support for a provider would be based on the support rate of the provider with the smaller footprint. Under this approach, the single winner of support for hex-9s that it and another provider both previously covered would receive a support amount based on the number of previous duplicate support hex-9s in the evaluation area. Its support amount for areas within the evaluation area for which it was a single-supported provider—for which it has guaranteed support through December 31, 2034—would not be affected. That is, the winning provider would receive support at a new rate for the previous duplicate support areas and continue to receive support at its existing rate for any hex-9s for which it has been receiving support as a single provider.

Alternative Evaluation Criteria. Rather than evaluate a provider's current performance based on the extent of coverage within the geographic evaluation area and the technology and speed that it offers, the Commission seeks comment on alternative means of evaluation that would select a single supported provider based solely on which of the duplicate support recipients offers service to the largest number of hex-9s within the evaluation area. The Commission seeks comment on this and other possible approaches that are consistent with the actions of the concurrently adopted Order.

Performance Requirements. Once selected as the winning provider for the evaluation area, the Commission would require that the provider meet the minimum standard of deployment for support under ACF Mobile Phase II of 5G-NR 7/1 Mbps measured in an outdoor stationary environment.

Loss of Support. Under this approach, on which the Commission seeks comment, providers that lose their support in a duplicate-support area would be subject to phase down of support. Providers would lose support subject to a phase down schedule of 2/3 support for the first twelve months, 1/3 support for the next twelve months, and zero support thereafter. In the alternative, the Commission seeks comment on allowing providers that lose duplicate support to deploy to comparable unserved hex-9s in other areas of Alaska. Under this approach, providers that have their performance plans approved by providing comparable service to hex-9s in an uncovered location would have their lost support resume from the date that the performance plan is approved. The Commission seeks comment on this approach. Should there be any differences in the loss of support approach depending on how the provider loses support between the competitive and alternative mechanism?

In the Alaska Plan Order, 81 FR 69696, October 7, 2016, the Commission reallocated funds going to support the provision of mobile service in unserved remote areas in Alaska and decided to distribute those reallocated funds through a reverse auction process. In the Alaska Plan Order, unserved areas were defined as “those census blocks where less than 15% of the population within the census block was within any mobile carrier's coverage area.” By December 31, 2026, that allocation will amount to $162 million. The Commission provided that support for unserved areas would be distributed through a reverse auction process, subject to the competitive bidding rules codified at Part 1 Subpart AA of the Commission's rules. The Alaska Plan Order stated that “[a]ny competitive ETC, including competitive ETCs that do not otherwise receive support for mobile service in remote Alaska, may bid in the auction to receive annual support through the remainder of the Plan term to extend service to areas that do not have commercial mobile radio service as of December 31, 2014.” The Commission wishes to refresh the record on this approach and update the definition of unserved areas. The Commission seeks comment on a potential auction mechanism for assigning support to provide service in areas that are currently unserved by any provider. The Commission first addresses several high-level program elements and then describe a reverse auction mechanism, which would use competitive bidding to determine how best to apportion the available budget to maximize new service to Alaskans in places where they live, work, and travel that have heretofore been ignored. The auction mechanism on which the Commission seeks comment would leverage competition across areas to determine the areas that will receive support through the auction and, in areas where more than one bidder is competing, the auction would additionally leverage competition between bidders to determine a single winner of support.

The Commission seeks comment on continuing with the prior decision to open up the unserved areas auction to any competitive ETC certified in Alaska at the commencement of the auction, including competitive ETCs that do not already receive support for mobile service in remote Alaska. The Commission suggests this broad eligibility requirement in order to attract a wide pool of potential service providers, recognizing that the technical and business approaches consistent with providing service to areas that have remained unserved may require expertise and technology different than that of the carriers that traditionally have provided service in Alaska. In addition, the potential availability of new middle-mile capacity may make it feasible for new entities to enter the market in these (and potentially other) eligible areas.

The Commission seeks comment on a term of support of eight years, which is the same period of time that mobile providers will receive support in single-support areas. This will allow time for mobile-support recipients to buildout and maintain a communications network for remote communities and reassess any ongoing support needs to these areas. After that eight-year period, the Commission would reassess any ongoing support needs.

The Commission also seeks comment on the public-interest obligations that a winning bidder will have in exchange for receiving ACF support for serving a previously unserved area. For example, the Commission would require the winning provider to offer 5G-NR service at 7/1 Mbps to at least 85% of the eligible unserved hex-9s in the area by December 31, 2034. The Commission seeks comment on these standards with respect to technology and speed, geographic coverage, and timing. Should the Commission instead establish performance obligations in stages, for example, requiring less geographic coverage at a 2- or 3-year benchmark, more coverage at 5 years, with full coverage required by year 6, or other staged requirements? Should the Commission require a greater or lower technology and speed, or allow a mix of such? Should obligations vary according to the type of service to be provided, such as requiring greater coverage if provided by satellite, or less coverage depending upon access to middle-mile?

The Alaska Plan Order defined an unserved area as “[a] census block [ ] where less than 15% of the population within the census block was within any mobile carrier's coverage area,” as of December 31, 2014. The Commission finds this definition to be out of date. The Commission seeks comment on an alternative approach whereby it would first determine an area's eligibility at the hex-9 level, rather than at the census-block level, consistent with the concurrently adopted Order regarding areas receiving support. In order to determine that a hex-9 is unserved for purposes of the auction, BDC data would have to indicate that no carrier provides mobile data service as shown at the centroids of 70% of the component hex-11s that comprise the hex-9. The Commission would also determine whether an area includes at least one BSL (as defined by the Fabric) for the hex-9. If a hex-9 is deemed uncovered, contains at least one BSL and is otherwise eligible for ACF support, then the hex-9 would be deemed unserved.

However, because hex-9s are very small relative to the size of mobile deployment areas, the Commission intends that participants in a reverse auction would bid at the level of a larger geographic area, such as a census block, census block group, or census tract. For the larger geographic area to be considered unserved, the Commission would require that 85% of the eligible hex-9s in the larger geographic area be deemed unserved. The Commission seeks comment on the use of census block, census block group, or census tract as the biddable area for the auction. Is there another well-defined geographic area that would be more appropriate for an auction to assign support to currently unserved areas in Alaska? Would a larger hexagonal area in the H3 system, such as a hex-5 (approximately 253 sq. kms) or hex-6 (approximately 36 sq. kms.) be preferred? Biddable areas based on a larger H3 system hexagon would be of a more uniform size than census tracts or blocks. Would potential bidders consider that an advantage? Is it important that the geographic areas used in this reverse auction be the same as those used for any support mechanism for areas that are currently served by at least one subsidized provider? Are there any classes of hex-9s without at least one BSL that should be considered eligible for support if uncovered?

Second, the Commission seeks comment on whether there is a minimum speed or technology level above which a hex-9 would be deemed served. In the 5G Fund Second Report and Order, an area is eligible if there is not an unsubsidized 5G provider of 7/1 Mbps service in an outdoor stationary environment; however, the 5G Fund Second Report and Order' s goal is to bring 5G to areas without 5G, instead of bringing 5G to unserved areas. Given that the Alaska Plan's goal was to get to 4G LTE, the Commission thinks a number of otherwise served areas will be defined as unserved if it uses the threshold from the 5G Fund Second Report and Order. Rather, the Commission suggests that eligible areas with no service, not even voice service, will be deemed unserved for the unserved areas auction in Alaska. The Commission seeks comment on the speed and technology threshold that, if unavailable, should be considered for an area to be deemed unserved.

Are there other approaches to determining eligible areas and biddable areas for the reverse auction that would allow for an accurate, transparent, and careful evaluation of an area's suitability to be considered for support through a reverse auction? Should the Commission consider criteria other than those it has laid out to determine whether an area is considered eligible for the unserved areas auction? More specifically, are there alternatives to certain elements of the means of defining eligible unserved areas that would be preferable?

In the Alaska Plan Order, the Commission reallocated funds for use in an auction for support to unserved areas. By December 31, 2026 that allocation will amount to approximately $162 million. The Commission seeks comment on whether this amount should be the maximum amount of support that can be assigned in the reverse auction. The reverse auction format that the Commission sets forth would assign support so as to maximize the additional coverage that can be supported with the budget. The Commission seeks comment on whether this amount will achieve the intended purpose. If commenters contend that additional support is needed, the Commission seeks comment on that amount and if there is support going to mobile wireless in Alaska that can be reallocated for unserved areas.

In the Alaska Plan Order, the Commission stated that the reverse auction will be subject to the competitive bidding rules codified at Part 1 Subpart AA of the Commission's rules. Consistent with this, under the competitive bidding approach, the Commission would use a multi-round, descending clock (reverse) auction to identify the areas that would receive support, the providers that would receive support and the amount of support that each winning bidder would be eligible to receive. The descending clock auction would consist of sequential bidding rounds according to an announced schedule providing the start time and closing time of each bidding round. The Commission would use a reverse auction format similar to that used for the Rural Digital Opportunity Fund and the Connect America Fund Phase II auctions.

Bidding and Support Metric. Under this approach, bids in the reverse auction would be accepted and winning bids would be determined based on a price per eligible hex-9. Accordingly, the price clock would be denominated in terms of dollars per eligible hex-9. Each biddable area would be associated with a number of eligible hex-9s, and support amounts would be determined by multiplying the number of eligible hex-9s in the area by the relevant price per hex-9. The opening clock price times the number of eligible hex-9s in a biddable area would indicate the highest support amount that a bidder could receive for the area. The same clock price would apply to all eligible areas.

The Commission also seeks comment on whether an alternative bidding and support metric, such as the number of BSLs in the eligible hex-9s in the biddable area, would be preferable to using the number of eligible hex-9s in the area. Under this approach, the Commission would use the number of hex-9s because hex-9s are a standard unit of area coverage (equal to .105 square kilometers) and are small enough to enable a granular evaluation of whether there are locations—indications that mobile coverage would be used—in the area. Moreover, using the number of hex-9s in a biddable area as a metric is consistent with the approach the Commission adopts in this document for ACF Mobile Phase I and also seeks comment on for other elements of the ACF.

Accepting Bids and Identifying Winning Bids. In the initial round of the auction mechanism, each bidder would indicate the biddable areas to which it is willing to provide service meeting the specified performance requirements in exchange for a support amount implied by the opening clock price. In each subsequent bidding round, the price clock would be decremented and each bidder would indicate the areas to which it is willing to provide service at the lower implied support amount.

Under this reverse auction mechanism on which the Commission seeks comment, after every bidding round, the bidding system would calculate the total requested implied support for the areas that have bids at the current clock price (counting each area with a bid only once). If this amount is greater than the budget, then the price clock would be decremented again, and another bidding round would follow. After the first bidding round in which the total requested support is equal to or less than the budget—that is, the budget “clearing round”—the bidding system would begin to assign support using a “second-price rule.” A second-price rule would ensure that each winning bidder receives a support amount for an area that is at least as great as the support amount implied by its bid price. Bidding would continue with a new bidding round at a decremented clock price for areas that receive more than one bid at the clock price in the clearing round, since at least two bidders are still competing for support to that area. Such rounds would continue until, for each such area, there is at most one bid at the clock price. The lowest bid for the area would be the winning bid, and support amounts again would be determined using a second-price rule.

The Commission seeks comment on this general approach to a multiple-round, descending clock auction to assign support to areas in Alaska that are currently deemed unserved. If the Commission moves forward with this approach, as is the typical procedure for Commission auctions, it would delegate authority to WTB and the Office of Economics and Analytics to release a further Public Notice specifying in more detail the proposed rules and procedures of an auction mechanism that follows the general format the Commission sets forth here. At that point, the Commission would seek comment on the specific elements of the reverse auction. After taking into account the submitted comments, the Commission would release another Public Notice that lays out the specific rules and procedures to be used in the auction and announces the availability of bidder education materials.

The Commission notes that the reverse auction could establish a level of support for unserved eligible areas through competition among bidders based on their assessment of the costs to deploy mobile service in these areas. Could the results of this reverse auction to assign support to unserved areas in Alaska help the Commission consider a more appropriate level of support for participants already serving existing areas in Alaska (single support areas or duplicative support areas), given that this support was initially established based on frozen costs of wireline deployment?

Noncompetitive Alternative. Is there a reason to deviate from this reverse auction approach? Are there considerations that would argue in favor of another approach, and if so, what are they and how would they affect the determinations of eligible areas?

Retail Consumer Subscribership. In the Alaska Plan, the Commission has found instances where some mobile provider participants had very few customers, and in one example, a provider claimed to have only one mobile data subscriber. In such instances, the Commission is concerned that it has been providing support in areas where subscribers are not subscribing to the services.

The Commission seeks comment on whether it should require that all ACF mobile providers receiving support must have a minimum of five mobile data subscribers per census designated place and be able to provide proof of those subscribers upon request by WTB, starting with the due date of the first milestone. For this purpose, each subscriber would be one person, not directly employed by the provider, paying the publicly advertised rate for the mobile data service. Providers unable to provide address-level data of these subscribers upon demand after December 31, 2029, may have a proportional amount of support withheld as not having effective service in the area. Providers may not take more than 14 days to satisfy any subscribership requests by WTB. Census designated places with fewer than 20 people, based on most recent census estimates, are exempt from this requirement. The Commission seeks comment on this proposal. Would this approach help guard against waste, fraud, and abuse in the mobile portion of the ACF? Would, and if so, how would this approach materially affect the goal to ensure that mobile providers are covering where Alaskans travel? How much of the census designated place would need to be covered before such a condition would be applicable?

In the Alaska Connect Fund Notice, the Commission sought comment on whether it should use the ACF to encourage the deployment of Open RAN in mobile networks, and if so how. The Commission has previously noted that networks deploying Open RAN “have the potential to address national security and other concerns that the Commission and other federal stakeholders have raised in recent years about network integrity and supply chain reliability.” In its comments, Alaska Telecom Association, the only commenter on this issue, argued that the Commission should avoid any mandates and that providers should have flexibility in deploying such network technologies in Alaska. The Commission has since concluded that it is in the public interest and serves national priorities to use universal service funds to incentivize the voluntary inclusion of Open RAN in mobile networks deployed with 5G Fund support. In the 5G Fund Second Report and Order, the Commission, recognizing the significant public interest benefits of Open RAN networks, and to encourage the voluntary inclusion of Open RAN in networks that are deployed with 5G Fund support, offered 5G Fund support recipients additional support and an extension of time to deploy networks with Open RAN technologies. The Commission seeks comment on whether it should consider similar incentives for ACF recipients deploying 5G networks. Based on what the Commission adopted in the concurrently adopted Order for single-support areas and duplicate-support areas under ACF Mobile Phase I and are proposing to adopt for ACF Mobile Phase II, should the Commission adopt similar incentives to provide additional funding and extension of build-out obligations for providers that voluntarily agree to deploy Open RAN in Alaska for all ACF mobile provider recipients?

In this document, the Commission seeks comment on whether ACF providers of mobile or fixed service must obtain the consent of the relevant Tribal government(s) for new deployments, prior to being authorized to receive support for those areas. The Tribal consent requirement is exclusively predicated on a government-to-government relationship, based on the Tribes recognized from the Tribe Act of 1994. To promote and support Tribal sovereignty and self-determination, the Commission tentatively concludes that adopting a Tribal consent requirement in ACF rules is consistent with its long-standing recognition that engagement between Tribal governments and communications providers, and the Commission recognizes particularly that early engagement is an important element to promote the successful deployment and provision of service on Tribal lands. The Commission seeks comment generally on this tentative conclusion and how it may be implemented.

In the Alaska Connect Fund Notice, the Commission reiterated its commitment to working with Tribes and Tribal leaders, and sought comment on considerations with respect to participation in the ACF by Indian Tribes, Tribal governments, and residents on Tribal lands. In recognition of the fact that engagement between Tribal nations and service providers “is vitally important to the successful deployment and provision of service,” the Commission has reaffirmed the importance of its obligation that all high-cost recipients serving Tribal lands demonstrate annually that they have meaningfully engaged with Tribal governments in their supported areas. Several commenters support additional Tribal consultation and Tribal engagement, and others argue the Commission should require Alaska high-cost recipients to obtain written authorizing resolutions from a Tribal government or Tribal entity under the Alaska Native Claims Settlement Act of 1971 (ANCSA) prior to receiving support for projects proposed to be built on Tribal lands.

In the recent 5G Fund Second Report and Order and Second Further Notice, 89 FR 76016, September 17, 2024, the Commission explored the idea of requiring a winning bidder in the 5G Fund Phase I auction to demonstrate during the long-form application process, and prior to being authorized to receive support, that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities using its 5G Fund support on Tribal lands within the area(s) of its winning bid(s). The Commission tentatively concluded that adopting a Tribal consent requirement in its 5G Fund rules is consistent with its long-standing recognition that engagement between Tribal governments and communications providers, particularly early engagement, is an important element to promote the successful deployment and provision of service on Tribal lands. The Commission envisioned a Tribal consent requirement for the 5G Fund as a continuation of its commitment to ensuring Tribal engagement by service providers that receive high-cost universal service support and in furtherance of the Commission's Policy Statement establishing a government-to-government relationship with Tribes. Additionally, in the 5G Fund Second Report and Order and Second Further Notice, the Commission looked to the Tribal consent requirements of its Tribal Lands Bidding Credit (TLBC) as a guide and discussed including a requirement that applicants for 5G Fund support to provide service on Tribal lands submit a certification from the Tribal government(s) that it has granted any required consent.

The Commission tentatively concludes that it should require Tribal consent for deployment of new facilities for mobile providers participating in the ACF and any new deployments that may be authorized under Fixed ACFs and seeks comment on how it could implement this requirement. The Commission seeks comment on what it should consider as deployment of new facilities for Tribal consent purposes. Should the Commission use any of the existing high-cost universal service Tribal engagement requirements to develop the criteria necessary to evidence Tribal consent in order to provide more consistency and predictability for both Tribal governments and service providers? The Commission seeks comment on any other consent requirements that will help provide equitable provision of ACF support for mobile and fixed broadband service using new facilities located on Tribal lands and that would benefit Tribal communities in Alaska.

In the Alaska Connect Fund Report and Order, 89 FR 25147, April 10, 2024, supra, the Commission reminded recipients of high-cost support serving Tribal Lands that they are required to have annual discussions with Tribal governments that include feasibility and sustainability planning and compliance with applicable Tribal requirements. The Commission seeks comment on whether it should consider additional or different Tribal engagement requirements under § 54.313(a)(5) of the Commission's rules for ACF fixed and mobile support recipients.

The Commission seeks comment on how compliance with a Tribal consent requirement may be demonstrated and verified by the Commission. In the 5G Fund Second Report Order and Second Further Notice, the Commission also sought comment on whether it should include parameters similar to the those that the Commission includes for a winning bidder that is applying for a TLBC to demonstrate its compliance with any Tribal consent requirement, including a requirement for submission of a certification from the Tribal government(s) that it has granted any required Tribal consent. Such a required certification of Tribal consent could include: the signature of an official of the Tribal Government and their title; a statement that the Tribal government has not and will not enter into an exclusive contract with the applicant to preclude entry by other carriers and will not unreasonably discriminate among wireless carriers seeking to provide service on the eligible Tribal land; and a statement that the Tribal government will, as applicable, permit the applicant to locate and deploy facilities on the Tribal land consistent with ACF public interest obligations and performance requirements. Would using the TLBC certification model adequately reflect the contours of Tribal government consent in this context? Under this model, once the certifications from the applicant and the consent of the Tribal government(s) being served are received and reviewed by the Commission and determined to be consistent with the ACF rules, support may be authorized. What adjustments to this model should be made if it is used? Should a process such as the TLBC certification process be adopted? The Commission seeks comment on how it might be able to incorporate flexibility in such a process.

If the Commission does adopt a Tribal consent requirement, when should that consent be obtained for the purposes of the ACF? How would the Commission's requirement be impacted by the Broadband Equity Access and Deployment (BEAD) requirement? Would the Commission need to adopt a specific Tribal consent dispute resolution process? How could the Commission assist in the Tribal consent dispute resolution process? Did any issues arise with respect to Tribal engagement or access to Tribal lands for deployments during the course of the Alaska Plan that can be improved upon? Given Tribal sovereignty, how should the Commission address circumstances in which a Tribal government neither declines nor provides consent? What are the costs and burdens of such requirements to providers? Should different requirements be made for mobile support in Alaska versus fixed support?

In terms of who must provide consent, the Commission recognizes that the question of Tribal land management and sovereignty in Alaska is unique in many respects. All of Alaska is considered Tribal land for purposes of the universal service fund programs. Unlike the lower 48 states, Alaska's Tribal lands are not held and managed by the Bureau of Indian Affairs (BIA). Rather, its Tribal lands are held and managed by Alaska Native Regional Corporations. Twelve years after Alaska was granted statehood in 1959, the ANCSA was passed into law. ANCSA sought to address the “immediate need for a fair and just settlement of all claims by Natives and Native groups of Alaska.” ANCSA did this by extinguishing all “aboriginal titles” and divided Alaska into twelve distinct regions and for-profit corporations. Each Native Alaskan was enrolled in one of the corporations; enrollment was determined in a tiered manner using the Native's region of residency as of 1970, region of birth, or region of ancestor birth; and through this enrollment the Native Alaskan was listed as a shareholder of a corporation. In other words, much of the land claims of the Alaska Native Villages are managed by the for-profit Alaska corporations, whose shareholders are often comprised by many different federally recognized Tribes. Deployment of advanced communications services provided by the ACF will cross and cover these lands, as they did in the Alaska Plan.

Given these unique aspects of Tribal land management in Alaska, the Commission tentatively concludes that an ACF recipient seeking to deploy new facilities on Tribal lands must obtain consent from the appropriate Tribal entity. Is the appropriate Tribal entity the relevant Alaska Native Village(s) recognized by the BIA? The Commission notes that federally recognized Tribes have a government-to-government relationship with the United States and are eligible to receive certain protections, services, and benefits by virtue of their federally recognized status. While the Commission's rules with respect to Tribal eligibility in various contexts vary somewhat, they universally limit eligibility to those Tribes that are “federally-recognized.” The Commission also seeks comment regarding the role of the Alaska Native Corporations as they relate to Tribal consent requirements of it.

In addition, the Commission seeks comment on how to address the fact that many Alaska Native Villages do not have defined boundaries but are assigned into Alaska Native Village Statistical Areas (ANVSA) by the Census Bureau, and that much of Alaska lies outside these areas, which opens the possibility to multiple claims of sovereignty. In § 54.5, the Commission defines Tribal lands for the purposes of the high-cost support as including “Alaska Native regions established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688).” However, Alaska Native regions often contain many different Tribal entities, and given the size of the Alaska Native regions, several of the Tribal entities in the respective Alaska Native region may not be physically located near the deployment in a region. Should the Tribal consent process be limited to new deployments or buildouts where the facilities placement occurs within the census boundaries of an ANVSA, as this situation would clearly identify that a particular Tribal entity is directly affected by a deployment? The Commission seeks comment generally on these issues.

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

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

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies in this document. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided in this document. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

In the FNPRM, the Commission seeks comment on several issues pertaining to the implementation of the ACF. In doing so, the Commission continues to work towards its objectives of providing service to rural and high-cost areas of Alaska, which historically are some of the most difficult and costliest areas to serve in the country and where many residents continue to lack access to the high-quality, affordable broadband service enjoyed by other parts of our nation. Specifically, the Commission seeks comment on ACF Mobile Phase II service goals or requirements, as well as on a methodology to determine a single support amount for areas where more than one provider had been receiving support for overlapping service areas, as well as for use in determining support amounts for areas that the Commission deems ineligible in the concurrently adopted Order. Additionally, the Commission seeks comment on how to resolve duplicative funding so that only one provider would continue receiving support in the area, in particular proposing two possible mechanisms to address this issue. Further comment is also sought to update the record on how best to deploy service to unserved areas using the approximately $162 million collected from the Alaska Plan. Finally, the Commission seeks comment on additional issues, such as retail consumer conditions, Open RAN, and Tribal consent under the ACF. In further developing the record in this proceeding, the Commission relies on the experiences of carriers with operations in Alaska, many of which are small business entities, to build a record on how best to implement the ACF.

The proposed action is authorized pursuant to sections 4(i), 214, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 201, 205, 214, 254, 303(r), 403, and §§ 1.1 and 1.421 of the Commission's rules, 47 CFR 1.1, 1.421.

Small entities potentially affected by the rules herein include Wired Telecommunications Carriers, LECs, Incumbent LECs, Competitive LECs, Interexchange Carriers (IXC's), Local Resellers, Toll Resellers, Other Toll Carriers, Prepaid Calling Card Providers, Fixed Microwave Services, Cable and Other Subscription Programming, Cable Companies and Systems (Rate Regulation), Cable System Operators (Telecom Act Standard), Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, Satellite Telecommunications, Wireless Telecommunications Carriers (except Satellite), All Other Telecommunications, Wired Broadband internet Access Service Providers (Wired ISPs), Wireless Broadband internet Access Service Providers (Wireless ISPs or WISPs), internet Service Providers (Non-Broadband), and All Other Information Services.

Potential rules resulting from comments in the FNPRM, could impose new or additional recordkeeping and reporting requirements for small and other entities, if adopted. Specifically, in the FNPRM, the Commission seeks comment on a number of issues related to the implementation of the ACF. For example, the FNPRM seeks comment on setting a minimum goal of deployment of 5G-NR 7/1 Mbps for all mobile providers participating in ACF Mobile Phase II, as well as whether any exemptions should be made for certain areas. Under the competitive mechanism, providers seeking to participate would submit proposals including coverage maps for the areas where more than one provider currently receives support, as well as the surrounding community where no provider or only a single provider may currently offer service. The coverage map would comply with BDC mobile coverage data requirements and would predict 5G-NR coverage in an outdoor stationary environment. An ETC may propose to cover a tract with 5G-NR 7/1 Mbps service or 5G-NR 35/3 Mbps service, but separate coverage maps must be submitted for each proposed service. For the alternative mechanism, the Commission seeks comment on whether to set a minimum goal of deployment for support under ACF Mobile Phase II of 5G-NR 7/1 Mbps measured in an outdoor stationary environment.

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

The FNPRM also takes the step of outlining an alternative mechanism that would allow a provider to retain its funding if it provides comparable service in a nonduplicate-support area, as well as consider alternative approaches from small and other entities on how best to achieve an outcome that dovetails both the Commission's policy goals and the minimization of substantial economic impact to small entities.

It is further ordered that, pursuant to the authority contained in sections 4(i), 201, 205, 214, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 201, 205, 214, 254, 303(r), 403, and §§ 1.1 and 1.421 of the Commission's rules, 47 CFR 1.1, 1.421, the FNPRM is adopted. The FNPRM will be effective upon publication in the Federal Register, with comment dates indicated therein.

FMCSA organizes this NPRM as follows:

If you submit a comment, please include the docket number for this NPRM (FMCSA-2024-0121), indicate the specific section of this document to which your comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so FMCSA can contact you if there are questions regarding your submission.

To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2024-0121/document, click on this NPRM, click “Comment,” and type your comment into the text box on the following screen.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing.

FMCSA will consider all comments and material received during the comment period.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to the NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to the NPRM, it is important that you clearly designate the submitted comments as CBI.Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. FMCSA will treat such marked submissions as confidential under the Freedom of Information Act, and they will not be placed in the public docket of the NPRM. Submissions containing CBI should be sent to Brian Dahlin, Chief, Regulatory Evaluation Division, Office of Policy, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 or via email at brian.g.dahlin@dot.gov . At this time, you need not send a duplicate hardcopy of your electronic CBI submissions to FMCSA headquarters. Any comments FMCSA receives not specifically designated as CBI will be placed in the public docket for this rulemaking.

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2024-0121/document and choose the document to review. To view comments, click this NPRM, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its regulatory process. DOT posts these comments, including any personal information the commenter provides, to www.regulations.gov as described in the system of records notice DOT/ALL 14 (Federal Docket Management System (FDMS)), which can be reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices . The comments are posted without edit and are searchable by the name of the submitter.

FMCSA proposes to amend the commercial driver's license (CDL) regulations to allow States additional flexibility to waive the hazardous materials (HM) endorsement  1 requirement for certain drivers transporting aviation fuel in furtherance of agricultural aviation operations. Many farm operations rely on aircraft to apply pesticides or fertilizers to their crops. Agricultural aviation companies often deliver aircraft fuel to staging areas some distance from their headquarters. These companies, particularly in remote, rural areas, have difficulty finding CDL holders with HM endorsements to complete these deliveries. Under the current regulations, most CDL holders must obtain an HM endorsement before transporting fuels. However, 49 CFR 383.3(i) provides a limited exception to this requirement and allows States to waive the requirement of an HM endorsement if the holder of a Class A CDL is transporting diesel fuel in the CDL holder's State of domicile as an employee of four specific agriculture-related businesses. FMCSA proposes to give States authority to waive the HM endorsement requirement for Class A CDL holders who transport up to 1,000 gallons of aviation grade jet fuel (often called Jet A, referred to as jet fuel for the purposes of this preamble) in the CDL holder's State of domicile and in support of agricultural aircraft operations.

This proposal could result in costs to States and their State driver licensing agencies (SDLAs) and may result in cost savings to drivers and to agricultural aviation operators. States and their SDLAs may incur costs for updating their websites and other informational materials to reflect the changes in requirements for Class A CDL holders transporting hazardous materials and for training roadside officers. The proposal would result in cost savings for agricultural aviation operators and the drivers these operators hire to mix, load, and transport jet fuel in quantities of 1,000 gallons or less in participating States. Class A CDL holders would avoid approximately $261 in costs associated with each driver obtaining an HM endorsement, and agricultural aviation operators would be able to run their businesses more efficiently by making use of satellite airstrips. FMCSA does not expect that this proposed rule would negatively impact CMV safety. For various reasons, drivers who transport jet fuel operate in low-risk safety conditions and rarely experience crashes. More in depth discussion of the potential impacts resulting from this rule are found in the regulatory analyses section below.

The CDL regulations are based on the authority of the Commercial Motor Vehicle Safety Act of 1986 (CMVSA). Section 12013 of the CMVSA allowed the Federal Highway Administration (FHWA), FMCSA's predecessor agency, to “waive, in whole or in part, application of any provision of this title or any regulation issued under this title with respect to class of persons or class of commercial motor vehicles if the Secretary of Transportation (the Secretary) determines that such waiver is not contrary to the public interest and does not diminish the safe operation of commercial motor vehicles” (Pub. L. 99-570, Title XII, 100 Stat. 3207-170, 3207-186, Oct. 27, 1986, codified at 49 U.S.C. app. 2711).

On the basis of section 12013, FHWA authorized the States to waive the knowledge and skills tests otherwise required to obtain a CDL for employees of custom harvesters, farm retail outlets and suppliers, agrichemical businesses, and livestock feeders (57 FR 13650, Apr. 17, 1992). CDL applicants in States that exercised this waiver option were required to meet certain conditions, including a prohibition on carrying any placarded quantities of HM, except for diesel fuel in quantities of 1,000 gallons or less (57 FR 13650, 13654). The 1992 CDL waiver option, with the 1,000-gallon restriction on the transportation of diesel fuel, was codified originally as 49 CFR 383.3(f)(3)(v) (61 FR 9546, March 8, 1996).

Following statutory amendments, 2 the language of the CMVSA's section 12013—that a waiver must be “not contrary to the public interest” and “not diminish the safe operation of commercial motor vehicles”—has been replaced by the standard that a waiver or exemption must “likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved in the absence of the waiver” (49 U.S.C. 31315(a)) or “absent such exemption” (49 U.S.C. 31315d(b)(1)).

Section 7208 of the Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94, Dec. 4, 2015, 129 Stat. 1312, 1593) allowed the States to waive the requirement that a holder of a Class A CDL obtain the HM endorsement required by 49 CFR 383.93(b)(4), provided the Class A CDL holder is an employee of one of the four categories of business specified in FHWA's 1992 waiver who transports diesel fuel in quantities of 1,000 gallons or less. As thus amended, the State waiver authority is now codified at 49 CFR 383.3(i).

FMCSA believes that the equivalent-level-of-safety (ELOS) standard required by the waiver and exemption provisions in 49 U.S.C. 31315 and 49 CFR part 381 is the appropriate standard for this NPRM. The 1992 rule required that the State waiver option not diminish the safe operation of CMVs, and all subsequent versions of the statute and regulation have retained that ELOS concept. Congress itself clearly embraced that standard when section 7208 was explicitly limited to the same four agriculture-related businesses covered by the 1992 exemption.

Pursuant to 49 U.S.C. 31305(a), which sets forth the general standards for the CDL rules, also provides that FMCSA “shall prescribe regulations on minimum standards for testing and ensuring the fitness of an individual operating a commercial motor vehicle.” Implicit in that provision is the authority to decide whether certain CDL holders may meet the “fitness” requirement without complying with every part of the CDL regulations. FMCSA believes that exempting employees of agricultural aviation companies who hold Class A CDLs and transport jet fuel from the requirement to obtain an HM endorsement is consistent both with the standard of the CMVSA's section 12013 and with the current ELOS and “fitness” standards enacted by Congress. A waiver granted by a State under this proposal, as under section 7208 of the FAST Act, would also exempt eligible drivers from the Transportation Security Administration's (TSA) background records check in 49 CFR part 1572, subpart B.

Since April 1, 1992, drivers have been required to obtain and hold a CDL if they operate in interstate, intrastate, or foreign commerce and drive a vehicle that meets one or more of the classifications of a CMV in 49 U.S.C. 31301(4). 3 The physical requirements and knowledge and skills testing are intended to help to ensure safe operations of CMVs. FHWA and, since 2000, FMCSA have developed and issued standards for State licensing and testing of CDL applicants. Under § 383.133(c)(6) of the FMCSRs, States must administer a three-part CDL skills test to CDL applicants in the following order: (1) pre-trip inspection, (2) basic vehicle control skills, and (3) on-road skills. Drivers who operate special types of CMVs, such as school buses, vehicles carrying HM, double/triple trailers, tank vehicles, and combination vehicles, must pass additional tests to obtain the relevant endorsement for their CDLs. Endorsement testing requirements are found in § 383.93(c). The HM endorsement requires a knowledge test.

The National Agricultural Aviation Association (NAAA) is a trade association that represents over 1,900 members in 46 States. NAAA member operators/pilots are licensed as commercial applicators who use aircraft to enhance food and fiber production and control health-threatening pests. According to NAAA's petition for rulemaking, aircraft operations are often the only, or the only economical, method to apply pesticides or fertilizers. Almost 28 percent of crop protection product applications to commercial farmland are made aerially. As a result, NAAA estimates that 127 million acres of cropland are treated via aerial application in the U.S. each year. 4

While fueling, mixing, and loading of crop-protection products ( e.g., fertilizers, insecticides, fungicides, or herbicides) are normally conducted at a location where agriculture aviation operators have permanent fuel tanks and mixing and loading facilities, at times operators and pilots work so far from their permanent facility that it is cost-effective to use a satellite landing strip and an on-site fuel truck. In such scenarios, fuel is pumped from the fixed-base tanks into the fuel truck that transports it to the satellite landing strip. Additional trips are made to the satellite strip as needed, and the CMV returns to the fixed-base location at the end of the day. Some CMVs may also be loaded with crop-protection products ( e.g., insecticides, fungicides, or herbicides). The driver may serve both as a “mixer loader” of the fertilizers or pesticides and of the aircraft fuel.

On June 17, 2005, NAAA requested an exemption  5 under 49 CFR 381.310 on behalf of its members. NAAA asked that CMV drivers supporting agricultural aircraft operations be exempted from the required knowledge and skills tests required for a CDL and that they be eligible to receive restricted CDLs allowed for certain drivers in farm-related service industries, as described in § 383.3(f). In addition, NAAA sought an exemption from § 383.3(f)(3)(v) to allow these restricted CDL holders to transport fuel used to power crop-sprayer aircraft, if transported in quantities of 1,000 gallons or less. NAAA argued that the exemptions would provide parity with the CDL regulations for other, nearly identical farm-related services. NAAA did not offer any countermeasures to ensure an ELOS, as required by 49 U.S.C. 31315(b)(5)(D), but it argued that compliance with all other DOT requirements would ensure safe CMV operations.

On July 5, 2007, FMCSA issued a Federal Register notice (72 FR 36748) soliciting comments on the NAAA application. The Agency received a total of 17 comments, 9 supporting and 6 opposing the exemption. Two comments were out of scope. All comments that supported the request were from agricultural entities. Opponents included a safety association and State safety agencies.

Supporters of the request noted that they were experiencing the same shortage of qualified CDL drivers as NAAA members, creating a hardship for the industry. Commenters also mentioned CMVs transporting jet fuel and pesticides operate primarily in rural areas, where low population and traffic density reduced crash risk. These trips usually occur within a 50-mile radius or less of their permanent facilities. One farmer indicated that agriculture relies on crop spraying operations.

The NAAA's application was opposed by Advocates for Highway and Auto Safety and safety agencies of Missouri, Virginia, and Ohio. The commenters pointed out that, if this exemption were in place, NAAA drivers would be transporting HM more dangerous than that permitted by § 383.3(f)(3)(v) and would be doing so without demonstrating basic competency in CMV operations. The drivers would also avoid two requirements for the HM endorsement: successful completion of the written HM test required by § 383.135, and a determination by the TSA pursuant to § 383.141(b) that the driver is “not a security threat.” The commenters also pointed out that NAAA failed to propose an alternative method of assessing the knowledge and skills of these CMV drivers, as required by § 381.415(c)(6) through (c)(8).

After reviewing NAAA's request for exemption and the public comments received, FMCSA concluded that NAAA had failed to demonstrate how it would ensure that the operations of its members under the exemption would achieve an ELOS. The Agency published the notice of denial in the Federal Register on June 10, 2010 (75 FR 32983).

Section 7208 of the FAST Act directed the Secretary to allow a State, at its discretion, to waive the requirement that a Class A CDL holder obtain an HM endorsement when that individual is transporting 3,785 liters (1,000 gallons) or less of diesel fuel, marked “flammable” or “combustible,” as appropriate, as an employee of a custom harvester operation, agrichemical business, farm retail outlet and supplier, or livestock feeder.

On July 22, 2016, FMCSA implemented this and other provisions of the FAST Act (81 FR 47714). The final rule amended § 383.3 by adding a new paragraph (i), providing that a State may waive the requirement that a driver obtain a HM endorsement to transport diesel fuel under certain circumstances.

In April of 2018, NAAA submitted a petition to amend § 383.3(i), which FMCSA treated as a petition for rulemaking under § 389.31. NAAA argued that expanding the exemption options allowed by section 7208 of the FAST Act to include an HM exception for drivers with a Class A CDL transporting 1,000 gallons or less of jet fuel would provide an economic benefit to agriculture aviation operators while keeping America's roads safe. NAAA asserted that the similar chemical properties of jet fuel and diesel fuel, along with infrequency of trips involving aviation fuel, the rural environments in which these trips typically occur, and exceptional weather conditions would provide an ELOS while reducing regulatory burdens on agriculture aviation operators.

NAAA emphasized the cost to agriculture aviation operators, almost all of them small businesses, of paying drivers to obtain an HM endorsement when they already have the knowledge and skills required to hold a CDL. NAAA noted that retaining drivers with an HM endorsement is extremely difficult due to the seasonal nature of agriculture aviation work. NAAA indicated that a shortage of available drivers with such an endorsement may block the transportation of jet fuel to a satellite airstrip closer to the application site. In December of 2022, after review of the petition and consultation with technical staff from the Pipeline and Hazardous Materials Safety Administration (PHMSA), FMCSA granted NAAA's petition for rulemaking to amend § 383.3(i). 6

Pursuant to §§ 383.93(a)(1) and (b)(4), a CDL holder may not drive a vehicle used to transport HM without obtaining a State-issued HM endorsement. The term hazardous materials is defined in § 383.5 to include materials for which placarding is required under subpart F of 49 CFR part 172. Current regulations generally require a CDL holder to obtain an HM endorsement in order to transport fuel, including jet fuel.

This NPRM would amend § 383(i) to allow States to waive the HM requirement for Class A CDL holders who are employed by agricultural aviation operators in their State of domicile and drive a vehicle transporting up to 3,785 liters (1,000 gallons) of jet fuel (clearly marked with a “flammable” or “combustible” placard) for use in agricultural aviation operations. The Agency also proposes to add a definition of jet fuel to mean “fuel, aviation, turbine engine” as listed in the Hazardous Materials Table in 49 CFR 172.101 that is reclassed as a combustible liquid in accordance with 49 CFR part 173.

FMCSA developed the proposal in this NPRM based on evaluation and review of available data relating to the similarity of jet fuel and diesel fuel, the safety of the trucking operations of the agricultural aviation industry, NAAA's petition content, existing exemptions to subpart H of 49 CFR part 383, potential impact on the States, and the ELOS for an addition of a jet fuel exemption. These topic areas are discussed individually below. In addition to the specific areas detailed below, FMCSA also requests comment on other questions regarding the agricultural aviation industry transport of fuel in general which can be found in Section VI.6. Issues on Which the Agency Seeks Further Comment.

Both diesel and jet fuel are kerosene-based fuels and have similar chemical characteristics, transportation requirements, and related exceptions. Under the HM regulations, both diesel fuel and jet fuel are classified as flammable liquids in the hazardous materials table (§ 172.101), but in most instances, may be reclassed as combustible liquids if they have a flash point at or above 100 °F (38°C). If properly reclassed as combustible liquids and transported in non-bulk packaging, as defined in § 171.8, diesel and jet fuel are not subject to the requirements of Subchapter C of the HM regulations unless the combustible liquid is a hazardous substance, a hazardous waste, or a marine pollutant. This exception allows drivers to potentially transport more than 1,000 gallons of diesel or jet fuel in multiple non-bulk packagings without an HM endorsement. However, when diesel or jet fuel are properly reclassed as combustible liquids but transported in a bulk packaging, as defined in § 171.8, they are subject to some of the HM regulations including the placarding requirements of subpart F of 49 CFR part 172 and the HM endorsement. Additionally, PHMSA's Emergency Response Guidebook provides emergency responders the same guidance on what to do during the initial stages of a HM transportation incident.

FMCSA reviewed the supporting evidence provided by NAAA in its petition. NAAA indicated that several factors support the safety of its proposed HM exemption, primarily the similarity of jet fuel to diesel fuel, for which an exemption option is already available. Additionally, agriculture aviation operations typically take place in rural areas with minimal traffic and during fair weather conditions. In many cases, driving occurs only once or twice a week to a satellite facility. These factors, in addition to the knowledge and skills required to obtain a Class A CDL, create low-risk safety conditions. FMCSA agrees diesel fuel is similar to jet fuel, as defined in this NPRM, and that agricultural aviation transport of jet fuel generally occurs in lower traffic areas which are linked to lower incident rates. In the FAST Act, Congress implicitly determined that allowing States the option to waive the HM endorsement for drivers transporting diesel fuel for the four agriculture-related businesses now listed in § 383.3(i), would not adversely affect safety. Because jet fuel is chemically very similar to diesel fuel and because agricultural aviation companies transport jet fuel in the same rural areas, on roads with low traffic density, as drivers transporting diesel fuel for the four agricultural businesses listed in the FAST Act, FMCSA concludes that the ELOS determination underlying the FAST Act waiver option is equally valid and applicable to the option for a State waiver of the HM endorsement proposed by this rulemaking.

FMCSA is aware that States may have concerns if the HM knowledge test were allowed to be waived. These concerns could include undermining the purpose of a CDL and its intended level of safety, opening the possibility for other industries to request such exemptions, and inconsistency across the States that exercise discretion with the proposed jet fuel exemption.

The Agency notes that, regardless of whether any State exercises its discretion, a driver may still be required to obtain an HM endorsement when operating a CMV in a State that has not opted to waive the requirement. This scenario could occur when jet fuel is transported across a State line. As detailed earlier in the section V. B. Background, most satellite locations utilizing exempted CMVs are expected to be within a 50-mile radius of the permanent facility. FMCSA therefore believes that such discrepancies in endorsement requirements would be uncommon.

The Agency's experience with SDLAs' responses to codification of the diesel fuel exemption indicate that 16 of 50  7 States choose to grant the exemption. FMCSA believes that States with economies heavily dependent on agriculture would be most likely to exercise a jet fuel exemption. The Agency expects a similar level of use if this proposal were to be made final, but requests comment on that assumption.

States utilizing the exemption would need to provide training to roadside officers on the application of the new rule. The added development cost of the training would be minimal, however, due to the similarity of the existing diesel fuel exemption.

As part of evaluating the NAAA petition, FMCSA considered whether granting the exemption for jet fuel would likely maintain a level of safety equivalent to, or greater than, the level achieved by the current regulations. The Agency reviewed available safety records, reports, and statistics to evaluate the safety of the proposal presented in this NPRM.

In addition to other analysis, FMCSA evaluated the existing diesel fuel exemption to determine if jet fuel has similar risk characteristics. FMCSA reviewed the conference report that accompanied the FAST Act, and found no indication that Congress intentionally excluded the transportation of kerosene-based fuels other than diesel fuels, such as fuels used in support of agriculture aviation operations. 8

FMCSA analyzed existing data sources available in the National Highway Traffic Safety Administration's (NHTSA) Fatality Analysis Reporting System and FMCSA's Motor Carrier Management Information System (MCMIS) as well completing a 47-question survey of Agency field staff directly involved in the enforcement of, and compliance with, Federal regulations. The study did not return evidence of safety or enforcement impacts directly attributable to the FAST Act provisions, which include the HM endorsement exemption for diesel fuel. 9

NAAA indicated that agricultural aviation fuel transportation occurs most commonly in rural agricultural areas where there is less traffic. This is supported by research which indicates, for example, that 16.4 percent of crashes are on roads with 10,000 vehicles/day or fewer, compared to 36.9 percent of crashes on roads with 10,000-50,000 vehicles, and 46.7 percent of crashes on roads with 50,000+ vehicles. 10 Likewise, the 2005 FMCSA Report to Congress on the Large Truck Crash Causation Study reviewed crashes by roadway type and indicated the following: Interstate (25.1 percent), U.S. highway (24.2 percent), State highway (30.3 percent), country road (9.1 percent), township (1.5 percent), municipality (6.8 percent), and other (2.6 percent). 11

Finally, the FAST Act addition of § 383.3(i) does not provide exemptions from additional regulatory requirements related to the transportation of diesel fuel and, for the purposes of this rulemaking, jet fuel. Because drivers transporting jet fuel are hazmat employees as defined in 49 CFR 171.8, hazmat training is still required under parts 172 and 177 for the agricultural aviation industry.

PHMSA initial and recurring HM training requirements, found in § 172.704, include general awareness/familiarization with HM, function specific training, safety training including emergency response, and security awareness. Additionally, § 177.816 requires driver training that is very similar to the training required to obtain the HM endorsement.

FMCSA finds that initiation of a rulemaking to provide States the option to grant relief from the HM endorsement for agriculture aviation operators seeking a Class A CDL to be reasonable, given the similarity of diesel fuel to jet fuel and the available research.

The Agency requests comment on certain aspects of the agriculture aviation industry and the use of CMVs to transport jet fuel.

a. FMCSA believes that States with economies heavily dependent on agriculture would be most likely to exercise a jet fuel exemption. Is this an accurate assumption?

b. Will this proposal lead to additional burden or costs to SDLAs and/or roadside officers and any other law enforcement officials responsible for enforcing CDL and HM endorsement compliance?

c. How many Class A CDL holders with HM endorsements are currently involved in transporting jet fuel in quantities of 1,000 gallons or less for agriculture aviation operations?

d. How many CMV drivers will enter the market for transporting jet fuel in quantities of 1,000 gallons or less in participating States due to relaxed requirements?

e. As part of the initial petition for rulemaking, the NAAA claimed that a shortage of available drivers may prevent the use of a satellite airstrip closer to the application site. How many satellite airstrips would be available for use if this proposal were to be finalized? How many refueling trips from application sites back to operational bases (mixing-loading sites) do aircraft currently make, and how much fuel do these trips require?

f. How much revenue do agriculture aviation operators lose as a result of not having an available CMV driver with a Class A CDL and HM endorsement? In a survey from 2005 cited in its initial petition for rulemaking, the NAAA mentioned that one operator claimed that he loses $2,500 to $5,000 per day as a result of not having an available CDL holder and loses work as a result of this shortage. FMCSA is seeking an estimate of the revenue the typical (average) agriculture aviation operator loses per day by not having an available CMV driver to transport jet fuel and therefore occasionally being unable to work.

Motor carriers and drivers are subject to the laws and regulations of the countries that they operate in, unless an international agreement states otherwise. Drivers and carriers should be aware of the regulatory differences between nations.

This section-by-section analysis describes the proposed changes in numerical order. Part 383 “Applicability” would be amended in five locations. Paragraph (i) of § 383.3 would be amended to add “or jet fuel” to the commodities States may exempt from the subpart H CDL requirement. Paragraph (i)(1) would be amended by adding “agriculture aviation operation” to the list of industries to which the hazardous material endorsement exemption applies. Paragraph (i)(2)(i) would be amended to add operators of vehicles transporting jet fuel in a quantity of 1,000 or less gallons to the conditions of the hazardous material exemption. Paragraph (i)(2)(ii) would be revised to indicate that jet fuel or diesel fuel transported under this hazardous material endorsement exemption must be clearly placarded in accordance with Part 172 subpart F and all other applicable HMRs.

Finally, section 383.5 “Definitions” would be amended to add a definition for jet fuel. The definition includes all classes of fuel, aviation, turbine engine as listed in the Hazardous Materials Table in 49 CFR 172.101, including Jet A, that are reclassed as a combustible liquid in accordance with 49 CFR part 173.

FMCSA has considered the impact of this NPRM under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and E.O. 14094 (88 FR 21879, Apr. 11, 2023) Modernizing Regulatory Review. The Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) determined that this NPRM is not a significant regulatory action under section 3(f) of E.O. 12866, as supplemented by E.O. 13563 and E.O. 14094, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. Accordingly, OMB has not reviewed it under that E.O.

This proposal would amend the CDL regulations to allow States additional flexibility to waive the HM endorsement requirement for holders of a Class A CDL who are transporting aviation fuel in quantities of 1,000 gallons or less in service of agricultural aviation operations. Under the current regulations, before undertaking this task, drivers working for agricultural aviation operators must obtain an HM endorsement, which requires training, testing, and a TSA background check. This proposal would allow flexibility for a limited population of drivers while operating within their State of domicile to provide services to agricultural aviation operations without obtaining an HM endorsement.

This proposed rule is voluntary in nature and does not require that States adopt any flexibilities contained herein. This proposed rule could impact States, SDLAs, agricultural aviation operators, and drivers. The analysis below discusses these affected entities, the need for the regulation, and the costs and benefits that could result from the proposed rule.

States could be impacted by this proposal; however, FMCSA does not know how many States would opt to waive the HM endorsement for agricultural aviation businesses and their drivers under this proposal. In response to Section 7208 of the FAST Act, 16 of 50 States chose to grant the exemption for diesel fuel, which is similar to the jet fuel exemption specified in this proposal. FMCSA assumes that there would be a similar level of adoption for this proposal, and that the majority of participating States would be those with agriculture-dependent economies.

This proposal would impact SDLAs in States that choose to waive the requirement for HM endorsements for Class A CDL holders employed by agricultural aviation operators. SDLAs are responsible for administering CDLs and endorsements for the motor carrier driver population. SDLAs in participating States would need to become familiar with these new requirements and update information on requirements for CDL holders.

This proposal would impact Class A CDL holders who are employed by agricultural aviation operators in participating States and are responsible for transporting jet fuel in quantities of 1,000 gallons or less. Drivers serve as “mixer-loaders” for crop protection products and load agricultural aircrafts with these products and fuel. Drivers pump fuel from fixed base tanks into the fuel truck then transport it to the satellite airstrip to load into agricultural aircraft. Under this proposal, drivers operating Group A vehicles would still need to hold a Class A CDL since this proposal would only allow States to waive the HM endorsement requirement. These drivers would still be required to obtain an HM endorsement when transferring jet fuel across State lines.

FMCSA anticipates that any impacted drivers would work in the same North American Industry Classification System (NAICS) industry as agricultural aviation operators; 11511—support activities for crop production. As of May 2023, Bureau of Labor Statistics (BLS) reports that there are 5,430 heavy tractor-trailer drivers working in the 1151 industry. 12 The 1151 industry is broader than agricultural aviation operations, and as such drivers impacted by this rule would be a subset of the 5,430 within this industry. Further, FMCSA does not know how many drivers are employed by agricultural aviation operators in the States that would waive the HM endorsement requirement. FMCSA requests comment on the size of this population.

According to the NAAA, there are approximately 1,560 agricultural aviation businesses and 3,400 agricultural pilots (approximately 2,000 are hired pilots and 1,400 are owner/operators) operating in the United States. 13 FMCSA does not know how many agricultural aviation businesses would be impacted by this rule.

While both fueling and mixing and loading of crop-protection products ( e.g., fertilizers, insecticides, fungicides, or herbicides) are normally conducted at a location where agriculture aviation operators have permanent fuel tanks and mixing and loading facilities, at times operators and pilots work so far from their permanent facility that it is cost-effective to use a satellite landing strip and an on-site fuel truck. When on-site fuel trucks or drivers are not available, pilots must fly agricultural aircraft back to their permanent mixing and loading facilities, which limits the amount of land pilots can spray on a given day and increases fuel costs, leading to reduced revenue for businesses.

Agricultural aviation businesses face a shortage of qualified drivers because for a Class A CDL an HM endorsement is a marketable asset, and these drivers are likely to find consistent, non-seasonal work. Furthermore, these businesses tend to operate in remote, rural areas that may be hundreds of miles away from the nearest SDLA. These factors limit agricultural aviation businesses from meeting their workforce needs.

This proposal could result in costs to States and their licensing agencies and may result in cost savings to drivers and to agricultural aviation operators. Under this proposal, States and their SDLAs may incur costs. SDLAs in participating States may need to update their websites to reflect the changes in requirements for Class A CDL holders transporting hazardous materials. Also, roadside officers in participating States would need to undergo training to be able to determine which drivers are operating under the waiver. FMCSA anticipates that States would update their biannual training to include a module on any changes to the CDL regulations and model any changes resulting from this rule after the training for the diesel fuel exemption. Because this training is ongoing, FMCSA anticipates that any additional costs related to this change would be de minimis. The Agency does not have data with which to estimate these potential State and SDLA costs and requests comments on the scope and magnitude of costs in participating States as a result of this proposal.

The proposal would result in cost savings for agricultural aviation operators and the drivers these operators hire to mix, load, and transport jet fuel in quantities of 1,000 gallons or less in participating States. Under the proposal, Class A CDL holders would not need to undergo the 4-step process of obtaining an HM endorsement: completing a theory training module, passing a written exam, passing a TSA Security Threat Assessment (STA), and paying an SDLA fee, if applicable. As outlined below, the total cost per driver to obtain an HM endorsement is $261.

Drivers must take theory training from training providers listed on the FMCSA Training Provider Registry (TPR). FMCSA anticipates that drivers impacted by this rule would opt to take online theory training because they live in remote areas. There are over 1,000 providers listed on the TPR that provide online HM endorsement training. FMCSA took a random sample of approximately 180 providers and researched websites to develop estimates of training cost and time. Based on those websites that provided information, FMCSA found that the theory training cost ranges from $16 to $200, with a mean cost of $96 and a median cost of $99. These trainings tend to be self-paced, so few companies advertise the average length of time to complete the training. From those companies that provided information, the time ranges from 1 hour to 16 hours, with a mean of 5 and a median of 2 hours. For estimation purposes, FMCSA anticipates that drivers impacted by this rule would save a $99 theory training fee and 2 hours of training, valued at $61.50. The opportunity cost of training time is valued at the rate at which drivers would accept in exchange for it, $30.75 per hour ($20.75 median hourly wage × 48.19 percent fringe benefit rate). 14 15

Drivers seeking an HM endorsement must complete a background investigation through the TSA HM Endorsement Threat Assessment Program on-line application, visiting an application center, and paying a non-refundable fee of $86.50. This process must be completed every 5 years in order to maintain the HM endorsement. Drivers operating under the waiver provided in the proposed rule would not be required to complete this process.

Lastly, Class A CDL holders operating under the waiver provided in the proposed rule would not need to return to the SDLA to obtain an HM endorsement and would not be required to pay the associated SDLA fee. The SDLA HM endorsement fee changes by jurisdiction, ranging from $0 to over $40. For illustrative purposes, FMCSA estimates the average SDLA fee to be $14. As displayed in the table below, the total per driver cost to obtain an HM endorsement is $261.

FMCSA does not expect this proposal would immediately impact drivers who currently hold a Class A CDL and HM endorsement. The proposal could impact these drivers at the time of renewal by eliminating the fees for the HM endorsement.

These estimates do not include the costs associated with traveling to a TSA appointment center for the STA or traveling to the SDLA to take an HM knowledge test or obtain the HM endorsement. In rural areas where aerial agricultural operations are based, an SDLA may be several hundred miles away. FMCSA does not have data on how far drivers must travel to a TSA appointment center or an SDLA to pass the requirements to operate a vehicle transporting jet fuel but welcomes comment on the costs associated with this process.

Agricultural aviation operators would gain efficiencies from this proposal because pilots working for operators in participating States would not need to expend time and fuel to travel back to their home bases to refuel. Instead, they would rely on CMV drivers with Class A CDLs to transport jet fuel and crop protection products from permanent facilities, which are often far from the agricultural fields, to satellite airstrips. According to an NAAA survey from 2005, operators shared that in many cases they could not work because drivers were not available. The NAAA maintains that a shortage of available drivers with HM endorsements prevents the use of satellite airstrips, limiting the amount of land that can be sprayed on a given day and resulting in increased jet fuel costs. FMCSA does not know the current fuel or time (opportunity) costs these trips entail. In addition, FMCSA does not know how many more satellite facilities would be available as a result of this proposal and how many trips to mixing-loading facilities would be avoided by agricultural pilots. As such, FMCSA cannot estimate the cost savings that could result from this provision but requests comment on the impact of this proposed change as well as any data that the Agency can use to quantify the impact of this provision.

FMCSA does not expect this proposed rule would negatively impact CMV safety. For various reasons, drivers who transport jet fuel operate in low-risk safety conditions and rarely experience crashes. According to the previously mentioned survey from 2005 cited in the NAAA's initial application for endorsement, 95.3 percent of agricultural aviation operations had never been involved in any type of accident, and 92.9 percent travel on rural roads with minimal traffic. The NAAA also noted in this survey that drivers transporting fuel and chemicals travel an average of 57.81 miles per day, although they drive only once or twice a week to a satellite facility. Furthermore, the NAAA currently provides highway safety education for a large portion of the small business owners of agricultural aircraft operations throughout the country through its Professional Agricultural Aviation Support System.

The Agency has not identified any other benefits to society that would result from the proposed change to § 383.3(i).

Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance notice of proposed rulemaking (ANPRM) or proceed with a negotiated rulemaking if a proposed rule is likely to lead to the promulgation of a major rule. 16 As this proposed rule is not likely to result in the promulgation of a major rule, the Agency is not required to issue an ANPRM or to proceed with a negotiated rulemaking.

The Regulatory Flexibility Act of 1980, Public Law 96-354, 94 Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121, 110 Stat. 857, March 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 124 Stat. 2504 September 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. Therefore, FMCSA is publishing this initial regulatory flexibility analysis (IRFA) to aid the public in commenting on the potential small business impacts of the proposals in this NPRM.

An IRFA must contain the following:

1. A description of the reasons why the action is being considered;

2. A succinct statement of the objectives of, and legal basis for, the proposed rule;

3. A description—and where feasible, an estimate of the number of small entities to which the rule will apply;

4. A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and

5. An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.

(1) A description of the reasons why the action is being considered.

FMCSA proposes to amend the CDL regulations to allow States additional flexibility to waive the HM endorsement  17 requirement for certain drivers transporting aviation fuel in furtherance of agricultural aviation operations. Many such operations rely on aircraft to apply pesticides or fertilizers to their crops. Agricultural aviation operators often deliver aircraft fuel to staging areas some distance from their headquarters. These companies, particularly in remote, rural areas, have difficulty finding CDL holders with HM endorsements to complete these deliveries.

(2) A succinct statement of the objectives of, and legal basis for, the proposed rule.

The CDL regulations are based on the authority of CMVSA. Section 12013 of the CMVSA allowed the FHWA, FMCSA's predecessor agency, to “waive, in whole or in part, application of any provision of this title or any regulation issued under this title with respect to class of persons or class of commercial motor vehicles if the Secretary determines that such waiver is not contrary to the public interest and does not diminish the safe operation of commercial motor vehicles” (Pub. L. 99-570, Title XII, 100 Stat. 3207-170, 3207-186, Oct. 27, 1986, codified at 49 U.S.C. app. 2711). Following statutory amendments, 18 the language of the CMVSA's section 12013—that a waiver must be “not contrary to the public interest” and “not diminish the safe operation of commercial motor vehicles”—has been replaced by the standard that a waiver or an exemption must “likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved in the absence of the waiver” (49 U.S.C. 31315(a) or “absent such exemption” (49 U.S.C. 31315(b)(1)).

FMCSA believes that the ELOS standard required by the waiver and exemption provisions is the appropriate standard for this NPRM. The 1992 FHWA rule authorized the States to waive the knowledge and skills tests otherwise required to obtain a CDL for employees of custom harvesters, farm retail outlets and suppliers, agrichemical businesses, and livestock feeders (57 FR 13650, Apr. 17, 1992) and required that the State waiver option not diminish the safe operation of CMVs, and all subsequent versions of the statute and regulation have retained that ELOS concept. Congress itself clearly embraced that standard when section 7208 was explicitly limited to the same four agriculture-related businesses covered by the 1992 exemption.

Pursuant to 49 U.S.C. 31305(a), which sets forth the general standards for the CDL rules, FMCSA “shall prescribe regulations on minimum standards for testing and ensuring the fitness of an individual operating a commercial motor vehicle.” Implicit in that provision is the authority to decide whether certain CDL holders may meet the “fitness” requirement without complying with every part of the CDL regulations. FMCSA believes that exempting employees of agricultural aviation companies who hold Class A CDLs and transport jet fuel from the requirement to obtain a HM endorsement is consistent, both with the standard of the CMVSA's section 12013 and with the current ELOS and “fitness” standards enacted by Congress. A waiver granted by a State under this proposal, as under section 7208 of the FAST Act, would also exempt eligible drivers from the TSA background records check in 49 CFR part 1572, subpart B.

(3) A description—and, where feasible, an estimate of the number—of small entities to which the proposed rule will apply.

Under the standards of the RFA, as amended by SBREFA, the participating States are not small entities. States are not considered small entities because they do not meet the definition of a small entity in section 601 of the RFA. Specifically, States are not considered small governmental jurisdictions under section 601(5) of the RFA, both because State government is not included among the various levels of government listed in section 601(5), and because, even if this were the case, no State or the District of Columbia has a population of less than 50,000, which is the criterion by which a governmental jurisdiction is considered small under section 601(5) of the RFA.

Drivers are not considered small entities because they do not meet the definition of a small entity in section 601 of the RFA. Specifically, drivers are considered neither a small business under section 601(3) of the RFA, nor are they considered a small organization under section 601(4) of the RFA.

The Small Business Administration (SBA) defines the size standards used to classify entities as small. SBA establishes separate standards for each industry, as defined by the NAICS. FMCSA expects that CMV drivers transporting jet fuel would largely be employed by aerial application operators that operate within the Agriculture, Forestry, Fishing and Hunting sector (NAICS sector 11), and more specifically, within NACIS industry 115110 (support activities for crop production). Industry groups within the 1151 NAICS industry have size standards based on the amount of annual revenue and ranging from $8.5 million in revenue to $34 million in revenue. There is not a specific NAICS national industry for aerial application operators, and therefore it is not possible to narrow down the Census data to determine the number of small entities that are potentially impacted by this rule. Based on the NAAA membership, FMCSA estimates that, if adopted in all jurisdictions, this rule could impact up to 1,900 aerial application operators. 19 FMCSA requests comment on how many of these entities would be considered small based on the SBA size standards.

(4) A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirements and the types of professional skills necessary for preparation of the report or record.

This proposal would not result in reporting, recordkeeping, or other compliance requirements. This proposed rule is voluntary in nature and does not require that States adopt any flexibilities provided in the proposed rule. Further, the Agency did not identify significant alternatives that would lessen the burden on small entities beyond the proposed exemption in § 383.3(i).

(5) An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.

FMCSA is not aware of any relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA wants to assist small entities in understanding this proposed rule so they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman (Office of the National Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman ) and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) requires Federal agencies to assess the effects of their discretionary regulatory actions. The Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $200 million (which is the value equivalent of $100 million in 1995, adjusted for inflation to 2023 levels) or more in any 1 year. Though this NPRM would not result in such an expenditure, and the analytical requirements of UMRA do not apply as a result, the Agency discusses the effects of this rule elsewhere in this preamble.

This proposed rule contains no new information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under section 1(a) of E.O. 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

FMCSA has determined that this rule would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.

The Consolidated Appropriations Act, 2005, 20 requires the Agency to assess the privacy impact of a regulation that will affect the privacy of individuals. This NPRM would not require the collection of personally identifiable information (PII).

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency that receives records contained in a system of records from a Federal agency for use in a matching program.

The E-Government Act of 2002, 21 requires Federal agencies to conduct a Privacy Impact Assessment (PIA) for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a PIA.

In addition, the Agency submitted a Privacy Threshold Assessment (PTA) to evaluate the risks and effects the proposed rulemaking might have on collecting, storing, and sharing personally identifiable information. The PTA has been submitted to FMCSA's Privacy Officer for review and preliminary adjudication and to DOT's Privacy Officer for review and final adjudication.

This rule does not have Tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

FMCSA analyzed this proposed rule pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq. ) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680), Appendix 2, paragraph (6)(t)(2). The categorical exclusion (CE) in paragraph (6)(t)(2) covers requirements ensuring that States have the appropriate regulations concerning the qualification and licensing of persons who apply and are issued a commercial driver's license. The proposed requirements in this rule are covered by this CE.

As required by 5 U.S.C. 553(b)(4), a summary of this rule can be found in the Abstract section of the Department's Unified Agenda entry for this rulemaking at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2126-AC59.

Accordingly, FMCSA proposes to amend 49 CFR chapter III, part 383 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.

The FMP and its implementing regulations require that NMFS, after consultation with the Council, specify annually the total allowable catch (TAC) for target species. The sum of TACs for all groundfish target species in the BSAI must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)(A) and 679.20(a)(2)). Section 679.20(c)(1) further requires that NMFS publish proposed harvest specifications in the Federal Register and solicit public comments on proposed annual TACs for each target species and apportionments thereof; prohibited species catch (PSC) allowances; prohibited species quota (PSQ) reserves established by § 679.21; seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC; American Fisheries Act allocations; Amendment 80 allocations; Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii); and acceptable biological catch (ABC) surpluses and reserves for CDQ groups and Amendment 80 cooperatives for flathead sole, rock sole, and yellowfin sole. The proposed harvest specifications set forth in tables 1 through 15 of this proposed rule satisfy these requirements.

In accordance with § 679.20(c)(3), NMFS will publish the final 2025 and 2026 harvest specifications after (1) considering comments received within the comment period (see DATES ), (2) consulting with the Council at its December 2024 meeting, (3) considering information presented in the 2025 SIR to the Final EIS that assesses the need to prepare a Supplemental EIS (see ADDRESSES ), and (4) considering information presented in the final 2024 SAFE report, including the 2024 Ecosystem Status Reports for both the Bering Sea and Aleutian Islands.

NMFS is developing a proposed rule to implement Amendment 125 to the FMP, which, if approved, would redefine the BSAI Pacific cod jig sector during the A-season (January 1-April 30) to include hook-and-line or pot catcher vessels (CV) less than or equal to 55 feet (ft) (16.8 meters (m)) length overall (LOA). All harvest from the redefined A-season jig sector would be deducted from the jig sector's 1.4 percent allocation currently set in regulation (§ 679.20(a)(7)(ii)). In addition, the current hook-and-line or pot CV less than 60 feet (ft) (18.3 m) LOA sector would be redefined from January 1 to April 30 so that harvest only from hook-and-line or pot CVs with a LOA of 55 ft (16.8 m) and less than 60 ft LOA (55-59 ft) (16.8-18.0 m) would be deducted from the hook-and-line or pot CV less than 60 feet (ft) (18.3 m) LOA sector's 2.0 percent allocation currently set in regulation (§ 679.20(a)(7)(ii)). If amendment 125 and its implementing regulations are approved by the Secretary of Commerce, NMFS would incorporate the changes in a future harvest specifications action, and any such changes are anticipated for the 2026 and 2027 harvest specifications.

For 2025 and 2026, the State of Alaska Board of Fisheries (BOF) established the guideline harvest level (GHL) for vessels using pot, longline, jig, and hand troll gear in State waters in the State's Aleutian Islands subarea (AI) State-waters sablefish registration area that includes all State waters west of Scotch Cap Light (164°44.72′ W longitude) and south of Cape Sarichef (54°36′ N latitude). The AI GHL is set at 5 percent of the combined proposed Bering Sea (BS) subarea and AI ABC (1,233 mt). The State's AI sablefish registration area includes areas adjacent to parts of the Federal BS subarea. Since most of the State's 2025 and 2026 GHL sablefish fishery is expected to occur in State waters adjacent to the Federal BS subarea, the Council and its BSAI Groundfish Plan Team (Plan Team), Scientific and Statistical Committee (SSC), and Advisory Panel (AP) recommended that the sum of all State and Federal sablefish removals from the BS and AI not exceed the proposed ABC recommendations for sablefish in the BS and AI. Accordingly, the Council recommended, and NMFS proposes, that the 2025 and 2026 sablefish TACs in the BS and AI be reduced by at least 5 percent to account for the State's GHLs for sablefish caught in State waters.

For 2025 and 2026, the BOF established the GHL for vessels using pot gear in State waters in the BS equal to 13 percent of the Pacific cod ABC in the BS. The BS GHL will increase by one percent if 90 percent of the GHL is harvested by November 15 of the preceding year for 2 consecutive years but may not exceed 15 percent of the BS ABC. If 90 percent of the GHL is not harvested by November 15 of the preceding year for 2 consecutive years, the GHL will decrease by 1 percent, but the GHL may not decrease below 10 percent of the BS ABC. Based on harvest in 2023 and 2024, the GHL will be 13 percent in 2025. 13 percent of the proposed BS ABC is 19,614 mt. NMFS will account for any adjustment to the 2026 GHL in the final 2026 and 2027 harvest specifications. Also, for 2025 and 2026, the BOF established an additional GHL for vessels using jig gear in State waters in the BS equal to 45 mt of Pacific cod in the BS. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal waters Pacific cod removals from the BS not exceed the ABC recommendations for Pacific cod in the BS. Accordingly, the Council recommended, and NMFS proposes, that the 2025 and 2026 Pacific cod TACs in the BS account for the State's GHLs for Pacific cod caught in State waters in the BS.

For 2025 and 2026, the BOF established the GHL in State waters in the AI equal to 35 percent of the Pacific cod ABC in the AI. The AI GHL will increase annually by 4 percent of the AI ABC if 90 percent of the GHL is harvested by November 15 of the preceding year but may not exceed 39 percent of the AI ABC or 15 million pounds (6,804 mt). If 90 percent of the GHL is not harvested by November 15 of the preceding year for 2 consecutive years, the GHL will decrease by 4 percent, but the GHL may not decrease below 15 percent of the AI ABC. Based on harvest in 2023 and 2024, the GHL likely will remain at 35 percent in 2025. Thirty-five percent of the proposed AI ABC is 4,350 mt. NMFS will account for any adjustment to the 2025 GHL in the final 2025 and 2026 harvest specifications. The GHL for 2026 may change based on harvest during the preceding fishing years, and NMFS will account for any adjustment to the 2026 GHL in the final 2026 and 2027 harvest specifications. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal waters Pacific cod removals from the AI not exceed the ABC recommendations for Pacific cod in the AI. Accordingly, the Council recommended, and NMFS proposes, that the 2025 and 2026 Pacific cod TACs in the AI account for the State's GHL for Pacific cod caught in State waters in the AI.

In October 2024, the Council's SSC, its AP, and the Council reviewed the most recent biological and harvest information on the condition of the BSAI groundfish stocks. The Plan Team compiled and presented this information in the final 2023 SAFE report for the BSAI groundfish fisheries, dated November 2023 (see ADDRESSES ). The final 2024 SAFE report, including individual stock assessments, will be available on the NMFS Alaska Region website (see ADDRESSES ).

The proposed 2025 and 2026 harvest specifications are based on the final 2025 harvest specifications published in March 2024 (89 FR 17287, March 11, 2024), which were set after consideration of the most recent 2023 SAFE report that was presented at the November 2023 Plan Team meeting.

The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and past, present, and possible future condition of the stocks and groundfish fisheries off Alaska. The SAFE report also contains an economic summary informed by the Economic SAFE and ecosystem information summarized from the Ecosystem Status Reports (ESR). The SAFE report provides information to the Council and NMFS for recommending and setting, respectively, annual harvest levels for each stock and documenting significant trends or changes in the resource, marine ecosystems, and fisheries over time.

The ESRs are combined into an appendix to the SAFE reports. The ESRs compile and summarize information about the status of the Alaska marine ecosystems for the Plan Team, SSC, AP, Council, NMFS, and the public, and they are updated annually. These ESRs include ecosystem report cards, ecosystem assessments, and ecosystem status indicators ( i.e., climate indices, sea surface temperature), which together provide context for ecosystem-based fisheries management in Alaska. The ESRs inform stock assessments and are integrated into the annual harvest recommendations, primarily through inclusion in stock assessment-specific risk tables that inform the specification of ABC for target species. Also, the ESRs provide context for the SSC's recommendations for overfishing levels (OFL) and ABCs, as well as for the Council's TAC recommendations. The SAFE reports and the ESRs are presented at the October and December Council meetings before the SSC, AP, and the Council make groundfish harvest recommendations, and they aid NMFS in implementing these annual groundfish harvest specifications. An ESR is prepared for both the Eastern BS ecosystem and the AI ecosystem (as well as for the Gulf of Alaska ecosystem).

In addition to the 2023 SAFE report, the Plan Team, SSC, and Council also reviewed preliminary survey data from 2024 surveys, updates on ecosystem and socioeconomic profiles (ESPs) for certain species, initial updates on climate and oceanography for Alaska ecosystems, and summaries of potential changes to models and methodologies. From these data and analyses, the Plan Team and SSC recommend the proposed OFL and ABC for each species and species group. The proposed 2025 and 2026 harvest specifications in this action are subject to change in the final harvest specifications to be published by NMFS following the Council's December 2024 meeting.

In November 2024, the Plan Team will update the 2023 SAFE report to include new information collected during 2024, such as NMFS stock surveys, revised stock assessments, and catch data. The Plan Team will compile this information and present the draft 2024 SAFE report at the December 2024 Council meeting. At that meeting, the SSC and the Council will review the 2024 SAFE report, and the Council will approve the 2024 SAFE report for use in informing the Council's final recommendations to NMFS. The Council will consider information in the 2024 SAFE report, recommendations from the November 2024 Plan Team meeting and December 2024 SSC and AP meetings, public testimony, and relevant written comments in making its recommendations to NMFS for the final 2025 and 2026 harvest specifications. Pursuant to § 679.20(a)(2) and (3), the Council could recommend that NMFS adjust the final TACs if warranted based on the biological condition of groundfish stocks or a variety of socioeconomic considerations, or if required to cause the sum of TACs to fall within the OY range.

In previous years, the most significant changes (relative to the amount of assessed tonnage of fish) to the OFLs and ABCs from the proposed to the final harvest specifications have been based on the most recent NMFS stock surveys. These surveys provide updated estimates of stock biomass and spatial distribution, and inform changes to the models or the models' results used for producing stock assessments. Any changes to models used in stock assessments will be recommended by the Plan Team in November 2024, reviewed by the SSC in December 2024, and then included in the final 2024 SAFE report. Model changes can result in changes to final OFLs, ABCs, and TACs. The final 2024 SAFE report will include the most recent information, such as catch data.

The final harvest specification amounts for these stocks are not expected to vary greatly from these proposed harvest specification amounts. If the 2024 SAFE report indicates that the stock biomass trend is increasing for a species, then the final 2025 and 2026 harvest specifications may reflect an increase from the proposed harvest specifications. Conversely, if the 2024 SAFE report indicates that the stock biomass trend is decreasing for a species, then the final 2025 and 2026 harvest specifications may reflect a decrease from the proposed harvest specifications. In addition to changes driven by biomass trends, there may be changes in TACs due to the constraint of the OY for the BSAI. Under regulations and the FMP, TAC may not exceed ABC, but can be set equal to ABC. The regulations require the sum of all TACs for target species in the BSAI to be set to an OY between 1.4 and 2 million mt. Thus, the Council may be required to recommend TACs that are lower than the ABCs recommended by the Plan Team and the SSC, if setting all TACs equal to ABCs would cause the sum of TACs to exceed an OY of 2 million mt. Generally, total ABCs greatly exceed 2 million mt in years with a large pollock biomass. For both 2025 and 2026, NMFS anticipates that the sum of the final ABCs will exceed 2 million mt, and therefore TACs for some species likely will have to be set lower than ABCs to ensure the sum of TACs is between 1.4 and 2 million mt. Historically, the sum of the final TACs has been close to or equal to 2 million mt.

The proposed 2025 and 2026 OFLs and ABCs are based on the best available biological and scientific information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. The FMP specifies a series of six tiers to define OFLs and ABCs based on the level of reliable information available to fishery scientists. Tier 1 represents the highest level of information quality available, while Tier 6 represents the lowest. The proposed 2025 and 2026 TACs are also based on the best available biological and socioeconomic information.

In October 2024, the SSC adopted the proposed 2025 and 2026 OFLs and ABCs recommended by the Plan Team for all groundfish. In making its recommendations, the Council adopted the SSC's OFL and ABC recommendations. The OFL and ABC amounts are unchanged from the final 2025 harvest specifications published in the Federal Register on March 11, 2024 (89 FR 17287). The sum of the proposed 2025 and 2026 ABCs for all assessed groundfish is 3,550,691 mt. The sum of the proposed TACs is 1,998,491 mt. NMFS has reviewed the recommendations of the SSC and Council for OFLs, ABCs, and TACs for target species and species groups in the BSAI as well as any other relevant information. Based on that review, NMFS is proposing the OFLs, ABCs, and TACs set forth in the tables of this proposed rule. NMFS concludes that these specifications are consistent with the Magnuson-Stevens Act, the FMP, and other applicable law, subject to further review and consideration after public comment.

The Council recommended proposed 2025 and 2026 TACs that are equal to the proposed ABCs for 2025 and 2026 BS and AI Greenland turbot, BSAI Kamchatka flounder, Central AI Atka mackerel, BS Pacific ocean perch, Central AI Pacific ocean perch, Eastern AI Pacific ocean perch, BS and Eastern AI blackspotted and rougheye rockfish, Central AI and Western AI blackspotted and rougheye rockfish, BSAI shortraker rockfish, and BS and AI “other rockfish.” The Council recommended proposed TACs less than the respective proposed ABCs for all other species and species groups. TACs for some species and species groups are reduced so that the overall TAC does not exceed the BSAI OY.

The proposed groundfish OFLs, ABCs, and TACs are subject to change pending the completion of the final 2024 SAFE report, public comment, and the Council's recommendations for the final 2025 and 2026 harvest specifications during its December 2024 meeting. These proposed amounts are consistent with the biological condition of groundfish stocks as described in the 2023 SAFE report. The proposed ABCs reflect harvest amounts that are less than the specified overfishing levels. The proposed TACs have been adjusted for other biological information and socioeconomic considerations, including maintaining the overall TAC within the required OY range. Pursuant to section 3.2.3.4.1 of the FMP, the Council could recommend that NMFS adjust the final TACs, if warranted on the basis of bycatch considerations, management uncertainty, or socioeconomic considerations; or if required in order to cause the sum of the TACs to fall within the OY range. Table 1 lists the proposed 2025 and 2026 OFL, ABC, TAC, initial TAC (ITAC), CDQ amounts, and nonspecified reserves for groundfish for the BSAI. The proposed apportionment of TAC amounts among fisheries and seasons is discussed below.

Section 679.20(b)(1)(i) requires NMFS to reserve 15 percent of the TAC for each target species (except for pollock, fixed gear allocation of sablefish, and Amendment 80 species) in a nonspecified reserve. Section 679.20(b)(1)(ii)(B) requires that NMFS allocate 20 percent of the fixed gear allocation of sablefish to the fixed gear sablefish CDQ reserve for each subarea. Section 679.20(b)(1)(ii)(D) requires that NMFS allocate 7.5 percent of the trawl gear allocation of sablefish for each subarea from the nonspecified reserve and 10.7 percent of BS Greenland turbot and BSAI arrowtooth flounder TACs to the respective CDQ reserves. Section 679.20(b)(1)(ii)(C) requires that NMFS allocate 10.7 percent of the TACs for Atka mackerel, AI Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod (the Amendment 80 allocated species) to the respective CDQ reserves.

Sections 679.20(a)(5)(i)(A) and 679.31(a) require allocation of 10 percent of the BS pollock TAC to the pollock CDQ directed fishing allowance (DFA). Sections 679.20(a)(5)(iii)(B)( 2 )( i ) and 679.31(a) require 10 percent of the AI pollock TAC be allocated to the pollock CDQ DFA. The entire Bogoslof District pollock TAC is allocated as an incidental catch allowance (ICA) pursuant to § 679.20(a)(5)(ii) because the Bogoslof District is closed to directed fishing for pollock by regulation (§ 679.22(a)(7)(B)). With the exception of the fixed gear sablefish CDQ reserve, the regulations do not further apportion the CDQ reserves by gear.

Pursuant to § 679.20(a)(5)(i)(A)( 1 ), NMFS proposes a pollock ICA of 46,000 mt of the BS pollock TAC after subtracting the 10 percent CDQ DFA. This allowance is based on NMFS's examination of the pollock incidentally retained and discarded catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock in recent years. Pursuant to § 679.20(a)(5)(iii)(B)( 2 )( i ) and ( ii ), NMFS proposes a pollock ICA of 3,000 mt of the AI pollock TAC after subtracting the 10 percent CDQ DFA. This allowance is based on NMFS's examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock in recent years.

After subtracting the 10.7 percent CDQ reserve and pursuant to § 679.20(a)(8) and (10), NMFS proposes ICAs of 2,000 mt of flathead sole, 3,000 mt of rock sole, 2,000 mt of yellowfin sole, 10 mt of Western Aleutian district Pacific ocean perch, 60 mt of Central Aleutian district Pacific ocean perch, 100 mt of Eastern Aleutian district Pacific ocean perch, 20 mt of Western Aleutian district Atka mackerel, 100 mt of Central Aleutian district Atka mackerel, and 800 mt of Eastern Aleutian district and BS Atka mackerel. These ICAs are based on NMFS's examination of the incidental catch in other target fisheries in recent years.

The regulations do not designate the remainder of the nonspecified reserve by species or species group. Any amount of the reserve may be apportioned to a target species that contributed to the nonspecified reserve during the year, provided that such apportionments are consistent with § 679.20(a)(3) and do not result in overfishing (see § 679.20(b)(1)(i)). In the final 2025 and 2026 harvest specifications, NMFS will evaluate whether any apportionments are necessary and may apportion from the nonspecified reserve to increase the ITAC for any target species that contributed to the reserve.

Section 679.20(a)(5)(i)(A) requires that BS pollock TAC be apportioned as a DFA, after subtracting 10 percent for the CDQ Program and 46,000 mt for the ICA, as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor (CP) sector, and 10 percent to the mothership sector. In the BS, 45 percent of the DFAs are allocated to the A season (January 20 to June 10), and 55 percent of the DFAs are allocated to the B season (June 10 to November 1) (§§ 679.20(a)(5)(i)(B)( 1 ) and 679.23(e)(2)). The AI directed pollock fishery allocation to the Aleut Corporation is the amount of pollock TAC remaining in the AI after subtracting 1,900 mt for the CDQ DFA (10 percent), and 3,000 mt for the ICA (§ 679.20(a)(5)(iii)(B)( 2 )). In the AI, the total A season apportionment of the pollock TAC (including the AI directed fishery allocation, the CDQ DFA, and the ICA) may not exceed 40 percent of the ABC for AI pollock, and the remainder of the pollock TAC is allocated to the B season (§ 679.20(a)(5)(iii)(B)( 3 )). Table 2 lists these proposed 2025 and 2026 amounts. Within any fishing year, any underharvest of a seasonal allowance may be added to a subsequent seasonal allowance (§ 679.20(a)(5)(i)(B)( 2 ) and 679.20(a)(5)(iii)(B)( 3 )( iii )).

Section 679.20(a)(5)(iii)(B)( 6 ) sets harvest limits for pollock in the A season (January 20 to June 10) in Areas 543, 542, and 541. In Area 543, the A season pollock harvest limit is no more than 5 percent of the AI pollock ABC. In Area 542, the A season pollock harvest limit is no more than 15 percent of the AI pollock ABC. In Area 541, the A season pollock harvest limit is no more than 30 percent of the AI pollock ABC.

Section 679.20(a)(5)(i)(A)( 4 ) includes several specific requirements regarding BS pollock allocations. First, it requires that 8.5 percent of the pollock allocated to the CP sector be available for harvest by American Fisheries Act (AFA) catcher vessels (CVs) with CP sector endorsements, unless the Regional Administrator receives a cooperative contract that allows the distribution of harvest among AFA CPs and AFA CVs in a manner agreed to by all members of the CP sector cooperative(s). Second, AFA CPs not listed in the AFA are limited to harvesting no more than 0.5 percent of the pollock allocated to the CP sector. Table 2 lists the proposed 2025 and 2026 allocations of pollock TAC. Tables 13, 14, and 15 list the AFA CP and CV harvesting sideboard limits. The BS inshore pollock cooperative and open access sector allocations are based on the submission of AFA inshore cooperative applications due to NMFS on December 1 of each calendar year. Because AFA inshore cooperative applications for 2025 have not been submitted to NMFS, and NMFS therefore cannot calculate 2025 allocations, NMFS has not included inshore cooperative tables in these proposed harvest specifications. NMFS will include the 2025 AFA inshore pollock cooperative and open access sector allocations in the final harvest specifications. NMFS also will post the 2025 AFA inshore pollock cooperative and open access sector allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/alaska-fisheries-management-reports prior to the start of the fishing year, based on the harvest specifications effective on that date.

Table 2 also lists proposed seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest of pollock within the SCA, as defined at § 679.22(a)(7)(vii), is limited to no more than 28 percent of the annual pollock DFA before 12 p.m. (noon), April 1, as provided in § 679.20(a)(5)(i)(C). The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA.

Section 679.20(a)(8) allocates the Atka mackerel TACs to the Amendment 80 and BSAI trawl limited access sectors, after subtracting the CDQ reserves, ICAs for the BSAI trawl limited access sector and non-trawl gear sector, and the jig gear allocation (table 3). The percentage of the ITAC for Atka mackerel allocated to the Amendment 80 and BSAI trawl limited access sectors is listed in table 33 to 50 CFR part 679 and in § 679.91. Pursuant to § 679.20(a)(8)(i), up to 2 percent of the Eastern Aleutian district and BS subarea Atka mackerel TAC may be allocated to vessels using jig gear. The percent of this allocation is recommended annually by the Council based on several criteria, including the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS proposes, a 0.5 percent allocation of the Atka mackerel TAC in the Eastern Aleutian district and BS subarea to the jig sector gear in 2025 and 2026.

Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel TAC, after subtraction of the jig gear allocation, into two equal seasonal allowances. Section 679.23(e)(3) sets the first seasonal allowance for directed fishing with trawl gear from January 20 through June 10 (A season), and the second seasonal allowance from June 10 through December 31 (B season). Section 679.23(e)(4)(iii) applies Atka mackerel trawl seasons to trawl CDQ Atka mackerel fishing. Within any fishing year, any underharvest or overharvest of a seasonal allowance may be added to or subtracted from a subsequent seasonal allowance (§ 679.20(a)(8)(ii)(B)). The ICA and jig gear allocations are not apportioned by season.

Sections 679.20(a)(8)(ii)(C)( 1 )( i ) and ( ii ) limit Atka mackerel catch within waters 0 nautical miles (nmi) to 20 nmi of Steller sea lion sites listed in table 6 to 50 CFR part 679 and located west of 178° W longitude to no more than 60 percent of the annual TACs in Areas 542 and 543, and equally divides that annual harvest limit between the A and B seasons as defined at § 679.23(e)(3). Section 679.20(a)(8)(ii)(C)( 2 ) requires that the annual TAC in Area 543 will be no more than 65 percent of the ABC in Area 543. Section 679.20(a)(8)(ii)(D) requires that any unharvested Atka mackerel A season allowance that is added to the B season be prohibited from being harvested within waters 0 nmi to 20 nmi of Steller sea lion sites listed in table 6 to 50 CFR part 679 and located in Areas 541, 542, and 543.

Table 3 lists the proposed 2025 and 2026 Atka mackerel seasonal allowances, area allowances, and the sector allocations. One Amendment 80 cooperative has formed for the 2025 fishing year. Because all Amendment 80 vessels are part of the sole cooperative, no allocation to the Amendment 80 limited access sector is required for 2025. The 2026 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2025. NMFS will post the 2026 Amendment 80 cooperatives and Amendment 80 limited access sector allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/sustainable-fisheries-alaska prior to the start of the fishing year, based on the harvest specifications effective on that date.

The Council separated the BSAI OFL, ABC, and TAC into BS and AI subarea OFLs, ABCs, and TACs for Pacific cod in 2014 (79 FR 12108, March 4, 2014). Section 679.20(b)(1)(ii)(C) allocates 10.7 percent of the BS TAC and the AI TAC to the CDQ Program. After CDQ allocations have been deducted from the respective BS and AI Pacific cod TACs, the remaining BS and AI Pacific cod TACs are combined for calculating further BSAI Pacific cod sector allocations and seasonal allowances. If the non-CDQ Pacific cod TAC is or will be reached in either the BS or the AI subareas, NMFS will prohibit directed fishing for non-CDQ Pacific cod in that subarea, as provided in § 679.20(d)(1)(iii).

Section 679.20(a)(7)(ii) allocates to the non-CDQ sectors the combined BSAI Pacific cod TAC, after subtracting 10.7 percent for the CDQ Program, as follows: 1.4 percent to vessels using jig gear, 2.0 percent to hook-and-line or pot CVs less than 60 feet (ft) (18.3 m) LOA, 0.2 percent to hook-and-line CVs greater than or equal to 60 ft (18.3 m) LOA, 48.7 percent to hook-and-line CPs, 8.4 percent to pot CVs greater than or equal to 60 ft (18.3 m) LOA, 1.5 percent to pot CPs, 2.3 percent to AFA trawl CPs, 13.4 percent to the Amendment 80 sector, and 22.1 percent to trawl CVs. The BSAI ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of BSAI Pacific cod TAC allocated to the hook-and-line and pot sectors (§ 679.20(a)(7)(ii)(B)). For 2025 and 2026, the Regional Administrator proposes a BSAI ICA of 500 mt, based on anticipated incidental catch by these sectors in other fisheries. During the fishing year, NMFS may reallocate unharvested Pacific cod among sectors, consistent with the reallocation hierarchy set forth at § 679.20(a)(7)(iii).

The BSAI ITAC allocation of Pacific cod to the Amendment 80 sector is established in table 33 to 50 CFR part 679 and § 679.91. One Amendment 80 cooperative has formed for the 2025 fishing year. Because all Amendment 80 vessels are part of the sole cooperative, no allocation to the Amendment 80 limited access sector is required for 2025. The 2026 allocations for Pacific cod between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2025. NMFS will post the 2026 Amendment 80 cooperatives and Amendment 80 limited access fishery allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/sustainable-fisheries-alaska prior to the start of the fishing year, based on the harvest specifications effective on that date.

The BSAI ITAC allocation of Pacific cod to the Pacific Cod Trawl Cooperative Program (PCTC) Program is established in § 679.131(b). Section 679.131(b)(1)(i) also requires NMFS to establish an ICA for incidental catch of Pacific cod by trawl CVs engaged in directed fishing for groundfish other than PCTC Program Pacific cod during the A and B seasons. In the annual harvest specification process, NMFS determines the Pacific cod trawl catcher vessel TAC and the annual apportionment of Pacific cod in the A and B seasons between the PCTC Program DFA and the ICA (§ 679.131(b)(2)) (table 4 below). The allocations to PCTC Program cooperatives are not included in these proposed harvest specifications. PCTC Program cooperative applications are not due to NMFS until November 1, 2024; therefore, NMFS cannot calculate 2025 and 2026 allocations in conjunction with these proposed harvest specifications (§ 679.131(b)). After receiving the PCTC Program applications, NMFS will calculate the 2025 allocations for PCTC Program cooperatives, as set forth in in § 679.131(b), and will include the 2025 PCTC Program cooperative allocations in the final harvest specifications. NMFS also will post the 2025 PCTC Program cooperative allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/alaska-fisheries-management-reports prior to the start of the fishing year, based on the harvest specifications effective on that date. The 2026 allocations for Pacific cod for PCTC Program cooperatives will not be known until eligible participants apply for participation in the program by November 1, 2025.

The sector allocations of Pacific cod are apportioned into seasonal allowances to disperse the Pacific cod fisheries over the fishing year (see §§ 679.20(a)(7)(i)(B) (CDQ), 679.20(a)(7)(iv)(A) (non-CDQ), and 679.23(e)(5) (seasons)). Table 4 lists the non-CDQ sector and seasonal allowances. In accordance with § 679.20(a)(7)(iv)(B) and (C), any unused portion of a non-CDQ Pacific cod seasonal allowance for any sector, except the jig sector, will become available at the beginning of that sector's next seasonal allowance. Section 679.20(a)(7)(i)(B) sets forth the CDQ Pacific cod gear allowances by season, and CDQ groups are prohibited from exceeding those seasonal allowances (§ 679.7(d)(6)).

Section 679.20(a)(7)(vii) requires that the Regional Administrator establish an Area 543 Pacific cod harvest limit based on Pacific cod abundance in Area 543 as determined by the annual stock assessment process. Based on the 2023 stock assessment, the Regional Administrator has preliminarily determined for 2025 and 2026 that the estimated amount of Pacific cod abundance in Area 543 is 15.7 percent of total AI abundance. To calculate the Area 543 Pacific cod harvest limit, NMFS first subtracts the State GHL Pacific cod amount from the AI Pacific cod ABC. Then NMFS determines the harvest limit in Area 543 by multiplying the percentage of Pacific cod estimated in Area 543 (15.7 percent) by the remaining ABC for AI Pacific cod. Based on these calculations, which rely on the 2023 stock assessment, the proposed Area 543 harvest limit is 1,269 mt. However, the final Area 543 harvest limit could change if the Pacific cod abundance in Area 543 changes based on the stock assessment in the final 2024 SAFE report.

Under the PCTC Program, PCTC cooperatives are required to collectively set aside up to 12 percent of the PCTC Program A-season allocation for delivery to an AI shoreplant established through the process set forth at § 679.132 in years in which an AI community representative notifies NMFS of their intent to process PCTC Program Pacific cod in Adak or Atka. A notice of intent to process PCTC Program Pacific cod for 2025 must be submitted in writing to the Regional Administrator by a representative of the City of Adak or the City of Atka no later than October 15. A notice of intent was not received in 2024, and accordingly the AI set-aside will not be in effect for 2025. The 2026 set-aside will be determined after the October 15, 2025, deadline in conjunction with the 2026 and 2027 harvest specifications process.

Based on the proposed 2025 and 2026 Pacific cod TACs, table 4 lists the 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).

Section 679.20(a)(4)(iii) and (iv) require allocation of sablefish TAC for the BS and AI between trawl gear and fixed gear. Gear allocations of the sablefish TAC for the BS are 50 percent for trawl gear and 50 percent for fixed gear. Gear allocations of the TAC for the AI are 25 percent for trawl gear and 75 percent for fixed gear. Section 679.20(b)(1)(ii)(B) requires that NMFS apportion 20 percent of the fixed gear allocation of sablefish TAC to the CDQ reserve for each subarea. Also, § 679.20(b)(1)(ii)(D)( 1 ) requires that 7.5 percent of the trawl gear allocation of sablefish TAC from the nonspecified reserve, established under § 679.20(b)(1)(i), be apportioned to the CDQ reserve. The Council recommended that only trawl gear allocations of sablefish TACs be established biennially and that fixed gear allocations of sablefish TACs be established for 1 year. NMFS concurs, and the proposed harvest specifications for the fixed gear sablefish Individual Fishing Quota (IFQ) fisheries are limited to the 2025 fishing year to ensure those fisheries are conducted concurrently with the halibut IFQ fishery. Concurrent sablefish and halibut IFQ fisheries reduce the potential for discards of halibut and sablefish in those fisheries. The sablefish IFQ fisheries remain closed at the beginning of each fishing year until the final harvest specifications for the sablefish IFQ fisheries are in effect. Table 5 lists the proposed 2025 and 2026 gear allocations of the sablefish TAC and CDQ reserve amounts.

Section 679.20(a)(10)(i) and (ii) require that NMFS allocate AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs between the Amendment 80 sector and the BSAI trawl limited access sector, after subtracting 10.7 percent for the CDQ reserves and amounts for ICAs for the BSAI trawl limited access sector and vessels using non-trawl gear. The allocation of the ITACs for AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole to the Amendment 80 sector is established in accordance with tables 33 and 34 to 50 CFR part 679 and in § 679.91.

One Amendment 80 cooperative has formed for the 2025 fishing year. Because all Amendment 80 vessels are part of the sole cooperative, no allocation to the Amendment 80 limited access sector is required for 2025. The 2026 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program and the deadline for applying for participation is November 1, 2025. NMFS will post the 2026 Amendment 80 cooperatives and Amendment 80 limited access sector allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/sustainable-fisheries-alaska prior to the start of the fishing year, based on the harvest specifications effective on that date. Table 6 lists the proposed 2025 and 2026 allocations of the AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs.

Section 679.2 defines the ABC surplus for flathead sole, rock sole, and yellowfin sole as the difference between the annual ABC and TAC for each species. Section 679.20(b)(1)(iii) establishes ABC reserves for flathead sole, rock sole, and yellowfin sole. The ABC surpluses and the ABC reserves are necessary to mitigate the operational variability, environmental conditions, and economic factors that may constrain the CDQ groups and the Amendment 80 cooperatives from fully harvesting their allocations and to improve the likelihood of achieving and maintaining, on a continuing basis, the optimum yield in the BSAI groundfish fisheries. NMFS, after consultation with the Council, may set the ABC reserve at or below the ABC surplus for each species, thus maintaining the TAC at or below ABC limits. An amount equal to 10.7 percent of the ABC reserves will be allocated as CDQ ABC reserves for flathead sole, rock sole, and yellowfin sole. Section 679.31(b)(4) establishes the annual allocations of CDQ ABC reserves among the CDQ groups. The Amendment 80 ABC reserves are the ABC reserves minus the CDQ ABC reserves. Section 679.91(i)(2) establishes each Amendment 80 cooperative ABC reserves to be the ratio of each cooperatives' quota share units and the total Amendment 80 quota share units, multiplied by the Amendment 80 ABC reserve for each respective species. Table 7 lists the proposed 2025 and 2026 ABC surplus and ABC reserves for BSAI flathead sole, rock sole, and yellowfin sole.

Sections 679.21(b), (e), (f), and (g) set forth the BSAI PSC limits. Section 679.21(b)(1) establishes three fixed halibut PSC limits totaling 1,770 mt, and assigns 315 mt of the halibut PSC limit as the PSQ reserve for use by the groundfish CDQ Program, 745 mt of the halibut PSC limit for the BSAI trawl limited access sector, and 710 mt of the halibut PSC limit for the BSAI non-trawl sector. Under amendment 123 to the FMP and implementing regulations (88 FR 82740, November 24, 2023), an additional amount for the halibut PSC limit for the Amendment 80 sector is determined annually based on the most recent halibut biomass estimates from the International Pacific Halibut Commission (IPHC) setline survey index and the NMFS Alaska Fisheries Science Center (AFSC) Eastern Bering Sea shelf trawl survey index. In accordance with § 679.21(b)(1)(i)(B), NMFS applies both halibut biomass estimates such that the value at the intercept of those survey indices from table 58 to 50 CFR part 679 is the Amendment 80 sector halibut PSC limit for the following year.

The 2024 AFSC Eastern Bering Sea shelf trawl survey index estimate of halibut abundance is 125,145 mt and is below the threshold level of 150,000 mt. The IPHC setline survey index is unknown at this time but is anticipated to be available by December 2024. Based on the 2024 AFSC Eastern Bering Sea shelf trawl survey index indicating a low biomass state, the final Amendment 80 sector halibut PSC limit will be one of the following—1,134 mt, 1,309 mt, 1,396 mt, or 1,745 mt—depending on the IPHC setline survey index. Since both survey indices are not yet available, NMFS is unable to calculate the Amendment 80 sector halibut PSC limit for next year in these proposed 2025 and 2026 harvest specifications and therefore proposes a roll-over from last year's 2024 and 2025 harvest specifications of 1,396 mt. NMFS will calculate the final Amendment 80 sector halibut PSC limit and the total halibut PSC limit for the BSAI in the final 2025 and 2026 harvest specifications.

Section 679.21(b)(1)(iii)(A) and (B) require apportionment of the BSAI non-trawl halibut PSC limit into PSC allowances among six fishery categories, and § 679.21(b)(1)(ii)(A) and (B), (e)(3)(i)(B), and (e)(3)(iv) require apportionment of the BSAI trawl limited access sector's halibut and crab PSC limits into PSC allowances among seven fishery categories. Tables 9 and 10 list the proposed fishery PSC allowances for the BSAI trawl limited access sector fisheries, and table 11 lists the proposed fishery PSC allowances for the non-trawl fisheries.

Pursuant to section 3.6 of the FMP, the Council recommends, and NMFS proposes, that certain specified non-trawl fisheries be exempt from the halibut PSC limit. As in past years, after consultation with the Council, NMFS proposes to exempt the pot gear fishery, the jig gear fishery, and the sablefish IFQ fixed gear fishery categories from halibut bycatch restrictions for the following reasons: (1) the pot gear fisheries have low halibut bycatch mortality; (2) NMFS estimates halibut mortality for the jig gear fleet to be negligible because of the small size of the fishery and the selectivity of the gear; and (3) the sablefish and halibut IFQ fisheries have low halibut bycatch mortality because the IFQ Program requires legal-size halibut to be retained by vessels using fixed gear if a halibut IFQ permit holder or a hired master is aboard and is holding unused halibut IFQ for that vessel category and the IFQ regulatory area in which the vessel is operating (§ 679.7(f)(11)).

As of November 8, 2024, total groundfish catch for the pot gear fishery in the BSAI was 13,278 mt, with an associated halibut bycatch mortality of 9 mt. The 2024 jig gear fishery harvested 0 mt of groundfish. Most vessels in the jig gear fleet are exempt from observer coverage requirements. As a result, observer data are not available on halibut bycatch in the jig gear fishery. As mentioned above, NMFS estimates a negligible amount of halibut bycatch mortality because of the selective nature of jig gear and the low mortality rate of halibut caught with jig gear and released.

Under § 679.21(f)(2), NMFS annually allocates portions of either 33,318, 45,000, 47,591, or 60,000 Chinook salmon PSC limits among the AFA sectors, depending on past bycatch performance, on whether Chinook salmon bycatch incentive plan agreements (IPA) are approved, and on whether NMFS determines it is a low Chinook salmon abundance year. NMFS will determine that it is a low Chinook salmon abundance year when abundance of Chinook salmon in western Alaska is less than or equal to 250,000 Chinook salmon. The State provides to NMFS an estimate of Chinook salmon abundance using the 3-System Index for western Alaska, based on the Kuskokwim, Unalakleet, and Upper Yukon aggregate stock grouping.

If an AFA sector participates in an approved IPA and has not exceeded its performance standard under § 679.21(f)(6), and if it is not a low Chinook salmon abundance year, then NMFS will allocate a portion of the 60,000 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(A). If no IPA is approved, or if the sector has exceeded its performance standard under § 679.21(f)(6), and if it is not a low abundance year, then NMFS will allocate a portion of the 47,591 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(C). If an AFA sector participates in an approved IPA and has not exceeded its performance standard under § 679.21(f)(6) in a low abundance year, then NMFS will allocate a portion of the 45,000 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(B). If no IPA is approved, or if the sector has exceeded its performance standard under § 679.21(f)(6), and if in a low abundance year, then NMFS will allocate a portion of the 33,318 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(D).

NMFS has determined that 2024 was a low Chinook salmon abundance year, based on the State's estimate that Chinook salmon abundance in western Alaska is less than 250,000 Chinook salmon. In addition, all AFA sectors are participating in NMFS-approved IPAs, and no sector has exceeded the sector's annual Chinook salmon bycatch performance standard in any three of seven consecutive years. Therefore, in 2025, the Chinook salmon PSC limit is 45,000 Chinook salmon, allocated to each sector as specified in § 679.21(f)(3)(iii)(B). In 2025, the Chinook salmon bycatch performance standard under § 679.21(f)(6) is 33,318 Chinook salmon, allocated to each sector as specified in § 679.21(f)(3)(iii)(D). If a sector exceeds its Chinook salmon bycatch performance standard in any three of seven consecutive years, that sector's allocation is reduced to the amount allocated under the Chinook salmon bycatch performance standard at § 679.21(f)(3)(iii)(C)-(D). The AFA sector Chinook salmon PSC limits are also seasonally apportioned with 70 percent for the A season pollock fishery and 30 percent for the B season pollock fishery (§§ 679.21(f)(3)(i) and 679.23(e)(2)). NMFS publishes the approved IPAs and the Chinook salmon PSC allocations and reports at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/sustainable-fisheries-alaska.

Section 679.21(g)(2)(i) specifies 700 fish as the 2025 and 2026 Chinook salmon PSC limit for the AI pollock fishery. Section 679.21(g)(2)(ii) allocates 7.5 percent, or 53 Chinook salmon, as the AI PSQ reserve for the CDQ Program and allocates the remaining 647 Chinook salmon to the non-CDQ fisheries.

Section 679.21(f)(14)(i) specifies 42,000 fish as the 2025 and 2026 non-Chinook salmon PSC limit for vessels using trawl gear from August 15 through October 14 in the Catcher Vessel Operational Area (CVOA). Section 679.21(f)(14)(ii) allocates 10.7 percent, or 4,494 non-Chinook salmon, in the CVOA as the PSQ reserve for the CDQ Program and allocates the remaining 37,506 non-Chinook salmon in the CVOA to the non-CDQ fisheries. Section 679.21(f)(14)(iv) exempts from closures in the Chum Salmon Savings Area trawl vessels participating in directed fishing for pollock and operating under an IPA approved by NMFS.

PSC limits for crab and herring are specified annually based on abundance and spawning biomass.

Based on the most recent (2024) survey data, the red king crab mature female abundance is estimated at 11.7 million red king crabs, and the effective spawning biomass is estimated at 22.47 million lbs (10,190 mt). Based on the criteria set out at § 679.21(e)(1)(i), the calculated 2025 and 2026 PSC limit of red king crab in Zone 1 for trawl gear is 97,000 animals. This limit derives from the mature female abundance estimate above 8.4 million mature red king crab and an effective spawning biomass between 14.5 and 55 million lbs (6,577 and 24,947 mt).

Section 679.21(e)(3)(ii)(B)( 2 ) establishes criteria under which NMFS must specify, after consultation with the Council, an annual red king crab bycatch limit for the Red King Crab Savings Subarea (RKCSS) if the State has established a GHL fishery for red king crab in the Bristol Bay area in the previous year. The regulations limit the RKCSS red king crab bycatch limit to 25 percent of the red king crab PSC limit, based on the need to optimize the groundfish harvest relative to red king crab bycatch. In October 2024, the Council recommended and NMFS proposes that the RKCSS red king crab bycatch limit for 2025 and 2026 be equal to 25 percent of the red king crab PSC limit (table 9).

Based on the most recent (2024) survey data from the NMFS annual bottom trawl survey, Tanner crab ( Chionoecetes bairdi ) abundance is estimated at 1,216 million animals. Pursuant to criteria set out at § 679.21(e)(1)(ii), the calculated 2025 and 2026 C. bairdi crab PSC limit for trawl gear is 980,000 animals in Zone 1 and 2,970,000 animals in Zone 2. The limit in Zone 1 is based on the total abundance of C. bairdi (estimated at 1,216 million animals), which is greater than 400 million animals. The limit in Zone 2 is based on the total abundance of C. bairdi (estimated at 1,216 million animals), which is greater than 400 million animals.

Pursuant to § 679.21(e)(1)(iii), the PSC limit for trawl gear for snow crab ( C. opilio ) is based on total abundance as indicated by the NMFS annual bottom trawl survey. The C. opilio crab PSC limit in the C. opilio bycatch limitation zone (COBLZ) is set at 0.1133 percent of the Bering Sea abundance index minus 150,000 crabs, unless a minimum or maximum PSC limit applies. Based on the most recent (2024) survey estimate of 13.37 billion animals, the calculated C. opilio crab PSC limit is 14,998,210 animals. Because 0.1133 percent multiplied by the total abundance is greater than 13 million animals, the maximum PSC limit applies and the PSC limit will be 12.85 million animals.

Pursuant to § 679.21(e)(1)(v), the PSC limit of Pacific herring caught while conducting any trawl operation for BSAI groundfish is 1 percent of the annual eastern Bering Sea herring biomass. Due to the lack of new information as of October 2024 regarding herring PSC limits and apportionments, the Council recommended, and NMFS proposes, basing the proposed 2025 and 2026 herring PSC limits and apportionments on the 2023 survey data. Based on the 2023 survey data, the best current estimate of 2025 and 2026 herring biomass is 253,511 mt. This amount was developed by the Alaska Department of Fish and Game based on biomass for spawning aggregations. Therefore, the herring PSC limit proposed for 2025 and 2026 is 2,535 mt for all trawl gear as listed in tables 8 and 9. The Council and NMFS will reconsider the herring PSC limit for the final harvest specifications when updated survey data and information on biomass becomes available.

Section 679.21(e)(3)(i)(A)( 1 ) apportions 10.7 percent of each trawl gear PSC limit specified for crab as a PSQ reserve for use by the groundfish CDQ Program. Section 679.21(e)(3)(i)(A) requires that crab PSQ reserves be subtracted from the total trawl PSC limits. The crab and halibut PSC limits assigned to the Amendment 80 and BSAI trawl limited access sectors are listed in table 35 to 50 CFR part 679. The resulting proposed 2025 and 2026 apportionments of crab and halibut PSC limits to CDQ PSQ, the Amendment 80 sector, and the BSAI trawl limited access sector are listed in table 8. Pursuant to §§ 679.21(b)(1)(i), 679.21(e)(3)(vi), and 679.91(d) through (f), crab and halibut trawl PSC limits assigned to the Amendment 80 sector are then further issued to Amendment 80 cooperatives as cooperative quotas. Crab and halibut PSC cooperative quotas assigned to Amendment 80 cooperatives are not assigned to specific fishery categories.

One Amendment 80 cooperative has formed for the 2025 fishing year. Because all Amendment 80 vessels are part of the sole cooperative, no PSC limit assigned to the Amendment 80 limited access sector is required for 2025. The 2026 PSC limits assigned between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by the deadline of November 1, 2025. NMFS will post the 2026 Amendment 80 cooperatives and Amendment 80 limited access sector limits on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/sustainable-fisheries-alaska prior to the start of the fishing year, based on the harvest specifications effective on that date.

The BSAI allocation of halibut and crab PSC limits to the PCTC Program is established in § 679.131(c) and (d). The halibut PSC apportioned to the trawl CV sector is 98 percent of the halibut PSC limit apportioned to the BSAI trawl limited access sector's Pacific cod fishery category, and the remaining 2 percent is apportioned to the AFA CP sector. The trawl CV sector apportionment is further assigned to the A and B seasons (95 percent) and the C season (5 percent), and the A and B season trawl CV halibut PSC limit is reduced by 25 percent to determine the overall PCTC Program halibut PSC limit. The crab PSC apportioned to the trawl CV sector is 90.6 percent of the crab PSC limit apportioned to the BSAI trawl limited access sector's Pacific cod fishery category, and the remaining 9.4 percent is apportioned to the AFA CP sector. The trawl CV sector apportionment is further assigned to the A and B seasons (95 percent) and the C season (5 percent), and the A and B season trawl CV crab PSC limit is reduced by 35 percent to determine the overall PCTC Program crab PSC limit.

Pursuant to § 679.131(c) and (d), the halibut and crab trawl PSC limits assigned to the PCTC Program are then further issued to PCTC Program cooperatives as cooperative quotas. The halibut and crab PSC limits issued to PCTC Program cooperatives are not included in these proposed harvest specifications. PCTC Program cooperative applications are not due to NMFS until November 1, 2024; therefore, NMFS cannot calculate 2025 PSC limits in conjunction with these proposed harvest specifications (§ 679.131(c) and (d)). After receiving the PCTC Program cooperative applications, NMFS will calculate the 2025 halibut and crab PSC limits for PCTC Program cooperatives, as set forth in in § 679.131(c) and (d), and will include the 2025 halibut and crab PSC limits for PCTC Program cooperatives in the final harvest specifications. NMFS also will post them on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/alaska-fisheries-management-reports prior to the start of the fishing year, based on the harvest specifications effective on that date. The 2026 allocations of halibut and crab PSC limits for PCTC Program cooperatives will not be known until eligible participants apply for participation in the program by the deadline of November 1, 2025.

Sections 679.21(b)(2) and (e)(5) authorize NMFS, after consulting with the Council, to establish seasonal apportionments of halibut and crab PSC amounts for the BSAI non-trawl, BSAI trawl limited access, and Amendment 80 limited access sectors to maximize the ability of the fleets to harvest the available groundfish TAC and to minimize bycatch. The factors considered are (1) seasonal distribution of prohibited species, (2) seasonal distribution of target groundfish species relative to prohibited species distribution, (3) prohibited species bycatch needs on a seasonal basis relevant to prohibited species biomass and expected catches of target groundfish species, (4) expected variations in bycatch rates throughout the year, (5) expected changes in directed groundfish fishing seasons, (6) expected start of fishing effort, and (7) economic effects of establishing seasonal prohibited species apportionments on segments of the target groundfish industry. Based on these criteria, the Council recommended, and NMFS proposes, the seasonal PSC apportionments in tables 10 and 11 to maximize harvest among gear types, fisheries, and seasons, while minimizing bycatch of PSC.