Federal Register Vol. 81, No.22,

This rule is issued under Marketing Order No. 920, as amended (7 CFR part 920), regulating the handling of kiwifruit grown in California, hereinafter referred to as the “order.” 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 Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California kiwifruit handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein would be applicable to all assessable kiwifruit beginning on August 1, 2015, and continue until amended, suspended, or terminated.

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 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 rule increases the assessment rate for the 2015-16 and subsequent fiscal periods from $0.025 to $0.040 per 9-kilo volume-fill container or equivalent of kiwifruit.

The California kiwifruit marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers of California kiwifruit. They are familiar with the Committee's needs and with the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2013-14 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on July 17 and September 16, 2015, and unanimously recommended 2015-16 fiscal year expenditures of $132,725 and an assessment rate of $0.040 per 9-kilo volume-fill container or equivalent of kiwifruit handled to fund Committee expenses. In comparison, last year's budgeted expenditures were $120,925. The assessment rate of $0.040 is $0.015 more than the rate currently in effect. The Committee's recommended 2015-16 expenditures are $11,800 higher than last year's budgeted expenditures. The primary reason for the increase is to provide funding for research. When applied to the Committee's crop estimate for the 2015-16 fiscal year of 2,297,000 9-kilo volume-fill containers or equivalent, the current assessment rate of $0.025 would not generate sufficient assessment income to anticipated expenses. The assessment rate of $0.040 per 9-kilo volume-fill container or its equivalent should generate assessment income of $91,880. Anticipated assessment income combined with financial reserve and interest income, should provide sufficient funds for the Committee to meet its budgeted expenses while maintaining its financial reserve within the limit authorized under the order. (§ 920.42)

The major expenditures recommended by the Committee for the 2015-16 fiscal period include $80,000 for management expenses; $14,000 for two financial audits, $14,330 for research; $7,500 for International Kiwifruit Organization (IKO) travel; $2,500 for a membership fee to Buy California; and $2,500 for a membership fee to the IKO. Major budgeted expenses for the 2014-15 fiscal period were $80,000 for management expenses; $7,500 for a financial audit, $5,000 for handler audits; $2,500 for a membership fee to Buy California; $2,500 for IKO membership; and $12,500 for IKO travel.

The assessment rate recommended by the Committee was derived by considering the amount of revenue needed to meet anticipated expenses divided by expected shipments of California kiwifruit. As previously mentioned, kiwifruit shipments for the 2015-16 fiscal period are estimated at 2,297,000 9-kilo volume-fill containers, which should provide $91,880 in assessment income. Anticipated assessment income derived from handler assessments, along with interest income and $40,756 from the Committee's authorized financial reserve, should provide sufficient funds for the Committee to meet its budgeted expenses. It is anticipated that $29,119 would remain in the financial reserve at the end of July 2016, which would be within the maximum amount permitted by the order of approximately one fiscal year's expenses (§ 920.42).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2015-16 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final 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 178 kiwifruit growers in the production area and approximately 28 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000 (13 CFR 121.201).

The National Agricultural Statistical Service (NASS) reported total California kiwifruit production for the 2014 season at 27,400 tons, with an average price of $1,190 per ton. Based on the average price and shipment information provided by NASS and the Committee, it could be concluded that the majority of kiwifruit handlers would be considered small businesses under the SBA definition. Based on kiwifruit production and price information, as well as the total number of California kiwifruit growers, average annual grower revenue is less than $750,000. Thus, the majority of California kiwifruit growers may also be classified as small entities.

This rule increases the assessment rate collected from handlers for the 2015-16 and subsequent fiscal periods from $0.025 to $0.040 per 9-kilo volume-fill container or equivalent of kiwifruit. The Committee unanimously recommended 2015-16 expenditures of $132,725 and an assessment rate of $0.040 per 9-kilo volume-fill container. The assessment rate of $0.040 is $0.015 higher than the 2014-15 rate. The quantity of assessable kiwifruit for the 2015-16 fiscal period is estimated at 2,297,000 9-kilo volume-fill containers. Thus, the $0.040 rate should provide $91,880 in assessment income. Anticipated assessment income derived from handler assessments, along with financial reserve funds and interest income, should provide sufficient revenue for the Committee to meet its budgeted expenses, while maintaining its financial reserve within the maximum amount permitted by the order of approximately one fiscal year's expenses (§ 920.42).

The major expenditures recommended by the Committee for the 2015-16 fiscal period include: $80,000 for management expenses; $14,000 for two financial audits; $14,330 for research; $7,500 for IKO travel; $2,500 for a membership fee to Buy California; and $2,500 for IKO membership. Major budgeted expenses for the 2014-15 fiscal period were: $80,000 for management expenses; $7,500 for a financial audit; $5,000 for handler audits; $2,500 for a membership fee to Buy California; $2,500 for IKO membership; and $12,500 for IKO travel.

Prior to arriving at this budget and assessment rate, the Committee considered alternative expenditure levels, to include maintaining the current assessment rate, but ultimately determined that the current assessment rate would generate insufficient revenue to meet its expenses.

According to data from NASS, the seasonal average producer price was $11.09 per 9-kilo volume-fill container in 2013 and $11.78 per 9-kilo volume-fill container in 2014. A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for 2015-16 could range between $11.09 and $11.78 per 9-kilo volume-fill container of assessable kiwifruit. Therefore, estimated assessment revenue for the 2015-16 fiscal year as a percentage of total producer revenue could be between 0.34 percent and 0.36 percent.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. However, these costs would be offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meetings were widely publicized throughout the California kiwifruit industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. The July 17 and September 16, 2015, meetings were public meetings. All entities, both large and small, were able to express views on this issue.

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 the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This rule imposes no additional reporting or recordkeeping requirements on either small or large California kiwifruit 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. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

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.

A proposed rule concerning this action was published in the Federal Register on November 5, 2015 (80 FR 68473). Copies of the proposed rule were also mailed or sent via facsimile to all California kiwifruit handlers. Finally, the proposal was made available through the internet by USDA and the Office of the Federal Register. A 15-day comment period ending November 20, 2015, was provided for interested persons to respond to the proposal. One comment in support of the rule was received, with the commenter requesting more information on the type of research the committee was conducting. The research the Committee recommended involves two field trials during the first year of a research proposal to study the beneficial effects of Nimitz nematicide on the Root-knot nematode. This type of production research is authorized under § 920.47 of the marketing order and will benefit growers. Accordingly, no changes will be made to the rule as proposed, based on the comment received.

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

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2015-16 fiscal year began on August 1, 2015. Handlers began shipping kiwifruit in September and the marketing order requires that the rate of assessment apply to all assessable kiwifruit handled during the fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; and (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years. Also, a 15-day comment period was provided for in the proposed rule, and one supportive comment was received.

For the reasons set forth in the preamble, 7 CFR part 920 is amended as follows:

This rule makes changes to the existing list of institutions in Appendix B of 7 CFR part 3434. The list of institutions is amended to reflect the institutions that are granted HSACU certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2015, and ending September 30, 2016.

As stated in 7 CFR 3434.4, an institution must meet the following criteria to receive HSACU certification: (1) Be a Hispanic-Serving Institution (HSI), (2) offer agriculture-related degrees, (3) not appear on the Excluded Parties List System (EPLS), (4) be accredited, and (5) award at least 15% of agriculture-related degrees to Hispanic students over the two most recent academic years.

NIFA obtained the latest report from the U.S. Department of Education's National Center for Education Statistics that lists all HSIs and the degrees conferred by these institutions (completion data) during the 2013-14 academic year. NIFA used this report to identify HSIs that conferred a degree in an instructional program that appears in Appendix A of 7 CFR part 3434 and to confirm that over the 2012-13 and 2013-14 academic years at least 15% of the degrees in agriculture-related fields were awarded to Hispanic students. NIFA further confirmed that these institutions were nationally accredited and were not listed in the System for Award Management (https://www.sam.gov) with exclusions.

The updated list of HSACUs is based on (1) completions data from 2012-13 and 2013-14, and (2) enrollment data from Fall 2014. NIFA identified 101 institutions that met the eligibility criteria to receive HSACU certification for FY 2016 (October 1, 2015 to September 30, 2016).

As set forth in Section 7101 of the Agricultural Act of 2014 (Pub. L. 113-79), which amends 7 U.S.C. 3103, an institution that is eligible to be designated as an HSACU may notify the Secretary of its intent not to be considered an HSACU. To opt out of designation as an HSACU, an authorized official at the institution must submit a declaration of intent not to be considered an HSACU to NIFA by email at [email protected]. In accordance with Section 7101, a declaration by an institution not to be considered an HSACU shall remain in effect until September 30, 2018. Institutions that opt out of HSACU designation will have the option to apply for designation as a Non-Land Grant College of Agriculture (NLGCA) institution. To be eligible for NLGCA designation, institutions must be public colleges or universities offering baccalaureate or higher degrees in the study of food and agricultural sciences, as defined in 7 U.S.C. 3103. An online form to request NLGCA designation is available at http://nifa.usda.gov/webform/request-non-land-grant-college-agriculture-designation.

In FY 2014 and FY 2015, six institutions opted out of their HSACU designation and received NLGCA designation, hence they are excluded from the FY 2016 HSACU list.

As set forth in 7 CFR 3434.8, NIFA will permit HSIs that are not granted HSACU certification to submit an appeal within 30 days of the publication of this notice.

This rule relates to internal agency management. Accordingly, pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity for comment are not required, and this rule may be made effective less than 30 days after publication in the Federal Register. This rule also is exempt from the provisions of Executive Order 12866. This action is not a rule as defined by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq., or the Congressional Review Act, 5 U.S.C. 801 et seq., and thus is exempt from the provisions of those Acts. This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Title 7, part 3434, of the Code of Federal Regulations is amended accordingly as set forth below:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPs, Takeoff Minimums and/or ODPs. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

The Delaware River Basin Commission (“DRBC” or “Commission”) is a federal-interstate compact agency charged with managing the water resources of the Delaware River Basin on a regional basis without regard to political boundaries. Its members are the governors of the four basin states—Delaware, New Jersey, New York and Pennsylvania—and the North Atlantic Division Commander of the U.S. Army Corps of Engineers, representing the federal government.

Specifically, this final rule amends subchapter A—Administrative Manual, part 401—Rules of Practice and Procedure, subpart C—Project Review Under Section 3.8 of the Compact by the addition of a new section 401.42, providing for DRBC and each of the parties to the Delaware River Basin Compact (United States Pub. L. 87-328, Approved September 27, 1961, 75 U.S. Statutes at Large 688; 53 Delaware Laws, Chapter 71, Approved May 26, 1961; New Jersey Laws of 1961, Chapter 13, Approved May 1, 1961; New York Laws of 1961, Chapter 148, Approved March 17, 1961; and Pennsylvania Acts of 1961, Act No. 268, Approved July 7, 1961 (“the Compact”))—Delaware, New Jersey, New York, Pennsylvania and the federal government (“Signatory Parties”)—to coordinate and collaborate in the administration of a single process for the review and adjudication of certain projects, including, where appropriate, issuance of a single permit or other approval instrument.

Currently, the sponsors of many water resource-related projects in the Delaware River Basin are required to apply to both the DRBC and a state agency, among others, for approvals. New section 401.42 provides for the DRBC and the administrative agencies of the Signatory Parties to identify regulatory programs that by mutual agreement will be managed through a single process that may result in one decision or approval. The program, known as One Process/One Permit (hereinafter, “the Program or “One Permit”) is intended to promote interagency cooperation and collaboration on shared mission objectives, achieve regulatory program efficiencies, avoid unnecessary duplication of effort, and reduce the potential for confusion on the part of regulated entities and the public regarding regulatory requirements applicable to projects. Importantly, the rule expressly preserves the authorities of the DRBC and each of its Signatory Parties and effects no change to federal, state or DRBC substantive standards and requirements.

In accordance with this final rule, administrative agreements between DRBC and Signatory Party agencies to implement the Program may be approved by the Commission after each such agreement undergoes a duly noticed public hearing. In accordance with Resolution No. 2015-4 of the Commission, which was adopted on March 11, 2015 following a public hearing on March 10, 2015, an administrative agreement between the DRBC and the New Jersey Department of Environmental Protection (NJDEP) was executed, in part to demonstrate how the Program would operate in New Jersey. With adoption of the final rule, DRBC and NJDEP will fully implement their March 2015 agreement.

Notably, each Signatory Party may choose whether and when to initiate an agreement or agreements with DRBC under the Program. No draft agreements with Signatory Party agencies other than the NJDEP to implement the Program have yet been published for comment.

The Commission introduced One Permit to the basin community during meetings with regulated entities, environmental organizations and other stakeholders on February 12 and March 3, 2015 and through publication on the DRBC Web site of a press release and a set of FAQs on February 27, 2015. During the Commission's quarterly public meeting on March 10-11, 2015, the Commission approved Resolution No. 2015-4, in part authorizing and directing the Executive Director to initiate rulemaking to amend DRBC's Rules of Practice and Procedure to provide specific authorization for and define the scope of the Program. Notice of the proposed amendments was published on the Commission's Web site on May 17, 2015.

Notice of the proposed amendments also appeared in the Federal Register at 80 FR 28567, May 19, 2015; in the Delaware Register of Regulations, 18 DE Reg. 1002, June 1, 2015; New Jersey Register, 47 N.J.R. 1256, June 1, 2015; New York State Register, May 27, 2015 (page 4); and Pennsylvania Bulletin, 45 Pa. B. 2611, May 30, 2015. The Commission held a public hearing on the proposal on June 9, 2015 and accepted written comments on the rule through July 1, 2015.

Notable aspects of the final rule include the following:

• Section 401.42(b) provides that applications for approvals required by the Compact and Commission regulations, but not within the scope of the Program, must continue to be submitted to the Commission.

• To ensure continued public access to information on the status of all projects under review pursuant to the Delaware River Basin Compact, including those administered under One Permit, § 401.42(d)(2) establishes that participating Signatory Party agencies will notify DRBC at least once monthly of applications received under the Program; and § 401.42(d)(5) establishes that the list that the Commission will maintain of projects being administered under One Permit will be posted on the Commission's Web site.

• Section 401.42(h) provides that DRBC's current Project Review Fee Schedule as set forth in Resolution No. 2009-2 will be the operative fee schedule for projects reviewed under the Program.

• Section 401.42(i) provides mechanisms for the efficient disposition of Commission dockets during the transition to One Permit. Section 401.42(i)(1) provides that for projects covered by the Program, the most recent docket will be deemed administratively continued when a renewal application is timely submitted to the Signatory Party Agency. Section 401.42(i)(2) provides that unless the Executive Director or the Commission otherwise directs, upon the Signatory Party Agency's final action on an application for a project subject to the Program, (a) any existing or administratively continued docket will terminate as to all of its provisions and conditions within the scope of the Signatory Party Agency approval; and (b) such docket will continue in effect as to any provisions and conditions outside the scope of the Signatory Party Agency approval, including for example, addition of a project to the Comprehensive Plan.

• The rule authorizes Signatory Party agencies, in accordance with an applicable administrative agreement, to issue in their approvals for projects to be administered under the Program the finding and determination required by section 3.8 of the Compact that a project subject to section 3.8 review does not substantially impair or conflict with the Commission's Comprehensive Plan (“the finding”). Section 401.42(d)(4) makes clear that where in accordance with an applicable administrative agreement implementing One Permit the finding continues to be made by the Commission, the Signatory Party agency may include the Commission's finding in the agency's approval, together with any conditions identified by the Commission as necessary to support it, thereby achieving a unified permit.

• The final rule also makes clear (1) that participation in the program by Signatory Party agencies is voluntary; and (2) that the scope of a Signatory Party Agency's participation is defined by an administrative agreement between DRBC and the agency that has been duly adopted in accordance with § 401.42(d).

Additional materials can be found on the Commission's Web site at www.drbc.net. These include DRBC Resolution No. 2015-9 approving the final rule, at http://www.nj.gov/drbc/library/documents/Res2015-09_OPOPwith-final-rule-text.pdf; and the Commission's detailed comment and response document, which identifies commenters, summarizes comments received on the proposal, and sets forth the Commission's responses, at http://www.nj.gov/drbc/library/documents/OPOP/comment-and-response_OPOP.pdf. The version of the Rules of Practice and Procedure that is currently posted on DRBC's Web site at http://www.nj.gov/drbc/library/documents/admin_manual.pdf uses DRBC's original numbering system, which is different from that of the CFR. In the original system, the One Permit Program rules are set forth at new section 2.3.11. A list of the CFR units and corresponding DRBC units follows. A complete stand-alone version of the Rules of Practice and Procedure using the CFR system will be available on the DRBC Web site shortly.

For the reasons set forth in the preamble, the Delaware River Basin Commission amends part 401 of title 18 of the Code of Federal Regulations as follows:

Various regulations pertaining to human food have incorporated materials by reference. In general, the regulations have identified a library at the Center for Food Safety and Applied Nutrition (CFSAN), which was (at the time the regulations were published) located in Washington, DC, or in College Park, MD. We recently consolidated our library holdings at our main campus in Silver Spring, MD. Consequently, we are making technical amendments to our regulations at parts 73, 101, 118, 165, 172, 173, 177, 178, 184, 189, 589, and 700 (21 CFR parts 73, 101, 118, 165, 172, 173, 177, 178, 184, 189, 589, and 700) to state that the materials can be found at the FDA Library in Silver Spring, MD. We also are updating certain regulations to reflect the current names for specific FDA offices. The amendments are as follows:

• We are revising §§ 73.165, 73.585, 165.110, and 173.300 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising §§ 101.4, 101.81(c)(2)(ii)(A) introductory text and (B)(1) and (2), 101.83, 165.110, 172.155, 172.785, 172.833, 173.25, 173.45, 173.340, 173.357, 173.370, 177.1350, 177.1360, 177.1390, 177.1520, 177.2600, 178.3297, 184.1063, 184.1148, 184.1150, 184.1250, 184.1387, 184.1420, 184.1444, 184.1866, 189.5, 589.2001, and 700.27 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 101.80 to update the library address from “Center for Food Safety and Applied Nutrition's Library, Harvey W. Wiley Federal Building, 5100 Paint Branch Pkwy., College Park, MD” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 101.81(c)(2)(ii)(A)(5) to update the library address from “Center for Food Safety and Applied Nutrition Library, 5100 Paint Branch Pkwy., College Park, MD 20740” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising §§ 118.8 and 165.110 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD, 301-436-2163” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 165.110 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 200 C St. NW., Washington DC” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising §§ 165.110, 172.723, 172.736, 172.804, 172.809, 172.864, 172.886, 173.375, 177.1345, 177.1585, 177.1637, 178.1010, 184.1007, 184.1257, 184.1259, 184.1282, 184.1293, 184.1472, 184.1530, 184.1699, 184.1979, 184.1979a, 184.1979b, and 184.1979c to update the library address from “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising §§ 172.167 and 173.356 to update the library address from “Center for Food Safety and Applied Nutrition's Library, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-2163” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 172.736 to update the library address from “in the library at the Center for Food Safety and Applied Nutrition, 5100 Paint Branch Pkwy., College Park, MD 20740” to “at the Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 172.829 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., rm. 1C-100, College Park, MD 20740” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 173.325 to update the library address from “Center for Food Safety and Applied Nutrition's Library, 5100 Paint Branch Pkwy., College Park, MD 20740 20204-0001” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 184.1311 to update the library address from “Center for Food Safety and Applied Nutrition's library, 5100 Paint Branch Pkwy., College Park, MD 20740” to “Food and Drug Administration's Main Library, 10903 New Hampshire Ave., Bldg. 2, Third Floor, Silver Spring, MD 20993, 301-796-2039”.

• We are revising § 101.83(c)(2)(ii)(A)(2) and (c)(2)(ii)(B)(2), to remove the words “Office of Nutritional Products, Labeling, and Dietary Supplements, Division of Nutrition Science and Policy,” and in their place add “Office of Nutrition, Labeling and Dietary Supplements, Nutrition Programs Staff”.

• We are revising § 118.8 to replace “The FDA” with “FDA”.

• We are revising § 173.300 to add the words “Office of Food Additive Safety”.

• We are revising § 173.340 to remove the words “Division of Petition Control” and “(HFS-215)” and in their place adding “Office of Food Additive Safety (HFS-200)”.

• We are revising § 173.357 to remove the words “Division of Petition Control” and “(HFS-215)” and in their place adding “Office of Food Additive Safety (HFS-200)”.

• We are updating §§ 177.1520 and 177.1585 to remove the words “Office of Premarket Approval” and in their place adding the “Office of Food Additive Safety”.

Publication of this document constitutes final action of these changes under the Administrative Procedure Act (5 U.S.C. 553). These amendments are merely updating the address of CFSAN references and the names of CFSAN offices. FDA, therefore, for good cause, finds under 5 U.S.C. 553(b)(3)(B) and (d)(3) that notice and public comment are unnecessary.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR parts 73, 101, 118, 165, 172, 173, 177, 178, 184, 189, 589, and 700 are amended as follows:

This document identifies updates to the product lists, which appear as 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule. Publication of the updated product lists in the Federal Register is addressed in the Postal Accountability and Enhancement Act (PAEA) of 2006.

Authorization. The Commission process for periodic publication of updates was established in Docket Nos. MC2010-21 and CP2010-36, Order No. 445, April 22, 2010, at 8.

Changes. The product lists are being updated by publishing a replacement in its entirety of 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule. The following products are being added, removed, revised, or moved within the product lists:

The following negotiated service agreements have expired and are being deleted from the Mail Classification Schedule:

Updated product lists. The referenced changes to the product lists are incorporated into 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule.

For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0263 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 4, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0263, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

In the Federal Register of May 20, 2015 (80 FR 28925) (FRL-9927-39), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of two pesticide petitions: One by ISK Biosciences Corporation, 7470 Auburn Road, Suite A, Concord, Ohio 44077 (PP 5F8352) that requested to establish tolerances in 40 CFR 180.601 for residues of the fungicide cyazofamid and its metabolite (4-chloro-5-(4-methylphenyl)-1H-imidazole-2-carbonitrile) in or on bulb vegetables (crop group 3-07) at 2.0 parts per million (ppm); and one by IR-4, 500 College Road East, Suite 201W, Princeton, NJ 08540 (PP 5E8350) that requested to establish tolerances in 40 CFR 180.601 for residues of the fungicide cyazofamid in or on the herb subgroup 19A at 90 ppm and also to remove the existing tolerances for residues of cyazofamid and its metabolite in or on basil, dried leaves at 90 ppm and basil, fresh leaves at 30 ppm upon approval of the herb subgroup 19A tolerances. That document referenced summaries of the two petitions prepared by ISK Biosciences, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notices of filing.

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

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

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

The target organ for cyazofamid in rats is the kidney, with an increased incidence of basophilic tubules, increased urinary volume, pH, and protein noted in male rats after subchronic exposure. Female rats were less sensitive, with only a marginal increase in urinary volume, and pH. These findings were noted in a 90-day oral toxicity study, and similar findings were noted in the 28-day oral toxicity range-finding study in rats. In the two-generation reproductive study in rats, there was an increased incidence of inflammation and nephropathy in the high-dose male rats as compared to the controls. Basophilic tubules are indicative of a regenerative process, but they can be more difficult to identify in older animals (i.e., tubular basophilia can be obscured by nephropathy or included as part of the nephropathy constellation). No kidney effects were observed in the chronic oral toxicity study in rats; however, this study did not test up to doses as high as those eliciting kidney effects in the subchronic and two-generation reproduction toxicity studies. The only relevant finding in the dog was an incidence of parathyroid cysts in males at the limit dose in the chronic study.

The pre- and post-natal toxicology database for cyazofamid includes rat and rabbit developmental toxicity studies and a two-generation reproduction toxicity study in rats. The prenatal developmental study in rats showed evidence of increased quantitative susceptibility following in utero exposure as a marginally increased incidence of bent ribs was noted in fetuses at the limit dose, whereas no maternal toxicity was noted.

No adverse effects were seen in a route-specific dermal toxicity study. Skin lesions were observed in males following oral exposure in the mouse carcinogenicity study, and are thought to be caused by an allergic reaction to systemic exposure because they did not occur following exposure via the dermal route. Cyazofamid is classified as “not likely to be carcinogenic to humans” based on the lack of evidence for carcinogenicity in mice and rats and a lack of mutagenic potential.

Specific information on the studies received and the nature of the adverse effects caused by cyazofamid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled, “Cyazofamid. Human Health Risk Assessment for Proposed New Uses on Use on Crop Subgroup 19A, Peppers and Tomatoes Grown in Greenhouses, and on Bulb Vegetables Crop Group 03-07” on pp. 32 in docket ID number EPA-HQ-OPP-2015-0263.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for cyazofamid used for human risk assessment is shown in Table 1 of this unit.

Table 1—Summary of Toxicological Doses and Endpoints for Cyazofamid for Use in Human Health Risk Assessment Exposure/Scenario Point of departure and uncertainty/safety factors RfD, PAD, LOC for risk assessment Study and toxicological effects Acute dietary (All Populations) No appropriate toxicological effect attributable to a single dose was observed. Therefore, a dose and endpoint were not identified for this risk assessment. Chronic dietary (All populations) NOAEL= 94.8 mg/kg/day

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to cyazofamid, EPA considered exposure under the petitioned-for tolerances as well as all existing cyazofamid tolerances in 40 CFR 180.601. EPA assessed dietary exposures from cyazofamid in food as follows:

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

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA assumed tolerance-level residues and 100 percent crop treated (PCT) for all commodities.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that cyazofamid does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue or PCT information in the dietary assessment for cyazofamid. Tolerance-level residues and 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. Available environmental fate studies suggest cyazofamid is not very mobile and quickly degrades into a number of degradation products under different environmental conditions. The highest estimated chronic drinking water concentrations resulted from modeling which assumed application of 100% molar conversion of the parent into the terminal degradate CTCA. EPA used these estimates of CTCA (4-chloro-5-p-tolylimidazole-2-carboxylic acid) in its dietary exposure assessments, a conservative approach that likely overestimates the exposure contribution from drinking water.

The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for cyazofamid and its degradates in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of cyazofamid and its degradates. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of the degradate CTCA for chronic exposures are estimated to be 133.5 parts per billion (ppb) for surface water and 211 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 211 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticide, and flea and tick control on pets).

Cyazofamid is currently registered for use on turf at golf courses, sod farms, seed farms, college and professional sports fields, residential and commercial lawns, and on ornamental plants in landscapes and those grown in commercial greenhouses and nurseries. EPA assessed residential exposure using the following scenarios:

• Adult handlers. The worst-case scenario was determined to be short-term inhalation exposures from mixing, loading, and applying cyazofamid to turf; and

• Children. The worst-case scenario was determined to be short-term post-application incidental oral exposure from hand-to-mouth activities on turf.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found cyazofamid to share a common mechanism of toxicity with any other substances, and cyazofamid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that cyazofamid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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

2. Prenatal and postnatal sensitivity. The developmental rabbit and two-generation reproduction toxicity study in rats did not show any evidence of increased susceptibility developmental or offspring, respectively. However, there was increased quantitative susceptibility in the rat developmental study; concentrations up to the limit dose did not cause maternal systemic toxicity, but there was an increased incidence of bent ribs. Concern is low based on the following: (1) The increase was marginal, (2) bent ribs are considered a variation rather than a malformation, (3) the effect was only seen at the limit dose, (4) there is a clear NOAEL for the effect, and (5) the selected endpoints address any concerns for this effect.

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

i. The toxicity database for cyazofamid is complete.

ii. There is no indication that cyazofamid is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity.

iii. As noted in Section D.2., there was increased quantitative susceptibility in the rat developmental study, however, concern is low due to the reasons cited.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to cyazofamid and its degradates in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by cyazofamid.

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

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

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to cyazofamid from food and water will utilize 2% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of cyazofamid is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Cyazofamid is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to cyazofamid.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 14,000 for adults and 6,100 for children 1-2 years old. Because EPA's level of concern for cyazofamid is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

An intermediate-term adverse effect was identified; however, cyazofamid is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for cyazofamid.

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

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

An enforcement method for non-fatty commodities is available, FDA's Multi-residue Protocol D (without cleanup). The method completely recovers (>80% recovery) cyazofamid and its metabolite (4-chloro-5-(4-methylphenyl)-1H-imidazole-2-carbonitrile). In addition, the high-performance liquid chromatography method with ultraviolent light detection (HPLC/UV) method is acceptable for use as a single analyte enforcement method provided a confirmatory method such as the liquid chromatography method with tandem mass-spectrometric detection (LC/MS/MS) method is used.

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

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

There are no Codex MRLs established for cyazofamid in/on the commodities included in this action.

Therefore, tolerances are established for residues of cyazofamid (4-chloro-2-cyano-N,N-dimethyl-5-(4-methylphenyl)-1H-imidazole-1-sulfonamide) and is metabolite (4-chloro-5-(4-methylphenyl)-1H-imidazole-2-carbonitrile) in or on the herb subgroup 19A at 90 ppm; and bulb vegetables, group 3-07 at 2.0 ppm. In addition, the existing tolerances for residues of cyazofamid and its metabolite (4-chloro-5-(4-methylphenyl)-1H-imidazole-2-carbonitrile) in or on basil, dried leaves and basil, fresh leaves are removed as unnecessary.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

This is a summary of the Commission's Order on Reconsideration in GN Docket No. 09-51, WC Docket No. 07-245, and FCC 15-151, adopted November 17, 2015 and released November 24, 2015. The full text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It is available on the Commission's Web site at http://www.fcc.gov.

1. In this Order on Reconsideration (Order), the Commission builds on its prior efforts to harmonize pole attachment rates that cable and telecom service providers pay utility pole owners. The Communications Act of 1934, as amended (Act), contains two formulas for calculating pole attachment rates, a formula adopted in 1978 applicable to cable television systems solely providing cable service, and a formula adopted in 1996 applicable to telecommunications carriers providing telecommunications service. Following the implementation of the 1996 Act through 2011, rates calculated using the telecom rate formula have typically been higher than rates calculated using the cable formula in similar circumstances. In 2011, the Commission revised the formulas as described in greater detail below to improve efficiency, reduce potentially excessive costs of network deployment and accelerate broadband buildout, and eliminate the wide disparity between the telecom and cable rate formulas. The 2011 revisions sought to bring the telecom and cable rates into parity. In the intervening time, the Commission has seen that its revisions did not fully achieve that objective. Today, the Commission takes the next logical step in achieving the goals set forth in 2011.

2. As detailed below, the Commission takes these actions in response to a Petition for Reconsideration or Clarification in this proceeding. The rule revisions that the Commission adopts amend the Commission's rules by defining “cost,” for the purpose of calculating the rates that telecommunications carriers pay for pole attachments, as a percentage of fully allocated costs that will depend on whether the average number of attaching entities in a service area is 2, 3, 4, or 5. The rates that attachers pay to attach to poles are currently determined, among other things, by whether the attacher is a “cable television system solely . . . provid[ing] cable service” or a “telecommunications carrier providing telecommunications services.” The Commission, in its 2011 Report and Order and Order on Reconsideration in this proceeding (2011 Pole Attachment Order) 80 FR 27626-01, May 14, 2015, sought to bring parity to pole attachment rates calculated using the telecom or cable rate formula so that all attachments rates would be at or near the cable rate formula level. The 2011 Pole Attachment Order adopted cost allocators in the telecom rate formula that closely approximate the treatment of cost in the cable rate formula. However, these allocators applied only in situations where poles have 5 attaching entities (0.66 percent of cost) or 3 attaching entities (0.44 percent of cost). On June 8, 2011, the National Cable and Telecommunications Association (NCTA), COMPTEL, and tw telecom inc. (Petitioners) filed a petition for reconsideration or clarification of the rules adopted in the 2011 Pole Attachment Order, asking the Commission either to clarify that 66 percent and 44 percent are “illustrations” of the new rule, or to revise the rules to “provide corresponding cost adjustments to other entity counts.”

3. In response to NCTA's petition, and to the record developed in this proceeding, Commission now introduces new cost allocators for poles with 2 attaching entities (0.31 percent of costs) and 4 attaching entities (0.56 percent of cost). When the average number of attaching entities is a fraction, the percentage cost allocator will be located between the whole numbers at the point where it most closely approximates the cost used in the cable rate formula. This flexible series of cost allocators should more fully realize the intent of the Commission in its 2011 Pole Attachment Order to bring parity to pole attachment rates at the cable rate formula level. The Commission also adopts this definition of cost to prevent pole owners from charging cable operators that also provide telecommunications service (including broadband Internet access service) pole attachment rental rates that can be approximately 70 percent higher than the cable rate under its existing rules.

4. The Commission additionally acts to support incentives for deployment of broadband facilities, particularly in rural areas, and to harmonize regulatory treatment between states where the Commission regulates the rates, terms, and conditions for pole attachments and states where such matters are regulated by the state. Subjecting cable operators to higher pole attachment rates merely because they also provide telecommunications services, such as broadband Internet access, could deter investment in states subject to Commission pole regulation, which would undermine the Commission's broadband deployment policy. By keeping pole attachment rates unified and low, the Commission furthers its overarching goal to accelerate deployment of broadband by removing barriers to infrastructure investment and promoting competition.

5. On April 7, 2011, in its 2011 Pole Attachment Order, the Commission comprehensively revised its rules governing the attachment of cable and telecommunications facilities to utility poles. The 2011 Pole Attachment Order contains a comprehensive background section outlining pole attachment policy developments through 2011. Commission does not repeat that material herein. Instead, Commission incorporates that history by reference here, and preserves a brief background section outlining and describing the provisions, orders, and cases germane to this Order on Reconsideration.

6. In 1978, Congress added section 224 to the Act. As established in 1978, section 224 directed the Commission to ensure that the rates, terms, and conditions of attaching cable television systems' facilities to utility-owned poles were just and reasonable. Section 224 also identified the maximum rate for pole attachments as a percentage of fully-allocated costs. In 1987, the U.S. Supreme Court found that the cable rate formula adopted by the Commission provides pole owners with adequate compensation, and thus does not result in an unconstitutional taking.

7. The 1996 Act expanded the definition of pole attachments to include attachments by providers of telecommunications service, and granted both cable operators and telecommunications carriers an affirmative right of access to utility poles. The 1996 Act also included a separate provision for calculating a cost-based rate paid by telecommunications carriers—the telecom rate formula—which incorporates “the cost of providing space on a pole.” As implemented by the Commission, the telecom rate formula generally resulted in significantly higher pole rental rates than rates derived from the cable rate formula. The Commission concluded that cable systems that provided Internet access in addition to video services should continue to pay the cable rate; that conclusion was reversed on appeal but later upheld by the Supreme Court.

8. In the intervening years, the Commission considered a variety of possible reforms to its pole attachment regulations in light of their importance to the deployment of communications networks. The Commission issued a Notice of Proposed Rulemaking in 2007, to respond to petitions for rulemaking regarding pole access and incumbent LEC pole attachment issues, and to seek comment on pole rate issues. In 2010, in response to a directive in the American Recovery and Reinvestment Act of 2009, the Commission released the National Broadband Plan (NBP), identifying access to rights-of-way—including access to poles—as having a significant impact on the deployment of broadband networks. Accordingly, the NBP included several recommendations regarding pole attachment access, enforcement, and pricing policies to further advance broadband deployment. Following on the recommendations in the NBP, in its 2010 Further Notice the Commission sought comment on a variety of measures to speed access to poles and make pole rental rates as low and close to uniform as possible consistent with section 224 of the Act.

9. In the 2011 Pole Attachment Order, the Commission sought, in pertinent part, to significantly reform its telecom rate regulations by reinterpreting the ambiguous term “cost” in the telecom rate formula in section 224(e) of the Act to yield telecom attachment rates “lowered to more effectively achieve Congress' goals under the 1996 Act to promote competition and `advanced telecommunications capability' by both wired and wireless providers by `remov[ing] barriers to infrastructure investment.' ” In particular, the Commission sought to “balance the goals of promoting broadband [deployment] . . . with the historical role that pole rental rates have played in supporting the investment in pole infrastructure.”

10. In order to promote broadband while ensuring that attaching entities continue to support the poles on which they depend, the 2011 Pole Attachment Order adopted alternative methods for measuring cost, and provided that the method producing the higher rate is the one the parties use. Utilities thus receive the benefit of any difference between the methods. In this way, the Commission recognizes that telecommunications attachers have historically contributed to the capital costs of the pole network, and that the new telecom rate should not “unduly burden [utility] ratepayers.” Balancing the Commission decided under the first of two acceptable methodologies to “allow the pole owner to charge a monthly pole rental rate that reflects some contribution to capital costs” while also reducing the telecom rate. The Commission settled on an approach that defines costs “in terms of a percentage of the fully-allocated costs” of the pole—specifically, 66 percent of fully-allocated costs in urban areas and 44 percent in non-urban areas. This measure of cost produces a rate that the Commission expected, based on the premise that the Commission's presumptive number of attachers would not be rebutted, “[would], in general, approximate the cable rate” and thereby promote network investment and broadband deployment.

11. The Commission also established a second, alternative measure of cost that utilities may use. This alternative approach is based on the principle of “cost causation,” under which the “customer—the cost causer—pays a rate that covers” the costs for which it is “causally responsible.” Under this approach, a pole owner may recover its administrative and maintenance costs through the telecom rate, but not capital costs other than those associated with make-ready expenses. The Commission also noted that capital costs caused by a telecommunications attacher have long been recovered through make-ready charges, which “the utility itself sets” without regard to “any mandatory rate formula set by the Commission.” Other capital costs (i.e., rate of return, taxes, and depreciation) are properly excluded under a cost-causation approach because the pole owner would have incurred those costs “regardless of the demand for attachments.” Although the “percentage of fully-allocated costs” measure of cost discussed above will produce a higher telecom rate “in most cases,” if the cost causation-based approach yields a higher rate, utilities are allowed to charge up to that rate.

12. On February 26, 2013, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) rejected utilities' challenge to the Commission's action to bring the traditionally higher telecom rate more in line with the cable rate, concluding that “[b]ecause the Commission's methodology is consistent with the unspecified cost terms contained in section 224(e), and the Commission's justifications are reasonable, the revision [to the telecom rate formula] warrants judicial deference.” In particular, the court observed that section 224(e) is “less specific” than section 224(d) in prescribing how the statutory rate formula should be implemented. The court agreed with the Commission that “the term `cost' in section 224(e)(2) and (3) is necessarily ambiguous, and could thus `yield a range of rates from the existing fully-allocated cost approach at the high end to a rate closer to incremental cost at the low end.'” The D.C. Circuit thus affirmed the Commission's interpretation and implementation of section 224(e).

13. On June 8, 2011, Petitioners filed the NCTA Petition, seeking reconsideration or clarification of the newly adopted cost allocation rule. The NCTA Petition points out that, when paired with the Commission's presumptive numbers of attachers (5 in urbanized and 3 in non-urbanized areas), the 66 percent and 44 percent cost allocators almost exactly reproduce the 7.4 percent of costs used as an input in the cable rate formula. The Petitioners report, however, that pole owners in fact often rebut the Commission's presumptions with much lower average numbers. For example, if the owner rebuts the urban presumption (5 attaching entities) with an actual count average of 2.6 attaching entities, the telecom rate can be as much as 70 percent higher than the cable rate. To “achieve the Commission's goal of providing pole attachment rates that are close to uniform as possible, and to ensure that all attachers contribute similar costs to pole owners,” the Petitioners ask the Commission to address this gap between the intended effect of the cost allocators and their function as applied by ceasing to distinguish between urbanized and non-urbanized areas.

14. Specifically, the Petitioners ask the Commission either to clarify that 66 percent and 44 percent are mere illustrations of the new rule, or to revise the rule to “provide corresponding cost adjustments to other entity counts.” The NCTA Petition presents a model rule with additional cost allocators for 4 and 2 attachments, each of which aligns costs with the Commission's cable rate formula as effectively as the current rule does for the Commission's presumptive averages of 5 urbanized and 3 non-urbanized attachments. In service areas where the number of attaching entities is not a whole number, petitioners' proposed cost allocator would be interpolated from the allocators of the nearest whole numbers of attaching entities. On June 20, 2011, the Commission sought comment on the NCTA Petition.

15. On February 26, 2015, the Commission adopted the Open Internet Order, which, among other things, concluded that “retail broadband Internet access service is best understood today as an offering of a `telecommunications service.' ” The Open Internet Order made clear that it did “not itself require any party to increase the pole attachment rates it charges to attachers providing broadband Internet access service.” A possible interpretation of the Order, however, could be that cable systems that also provide broadband Internet access service and previously were subject to the cable rate formula are now subject to the telecom rate formula. In the Open Internet Order, the Commission noted that Petitioners had already expressed concern that revisions to the telecom formula only fulfilled the Commission's expressed intent in the limited circumstances when there are either 5 or 3 attaching entities on a pole. The Commission stated in the Open Internet Order that, “[t]o the extent that there is a potential for an increase in pole attachment rates for cable operators that also provide broadband Internet access service, we are highly concerned about its effect on the positive investment incentives that arise from new providers' access to pole infrastructure.” In short, the Commission made plain that it took seriously parties' concerns that reclassification could have unintended consequences for pole attachment rates, and that this Petition might present an effective vehicle for giving the issue a closer look. In light of this development, parties were asked to refresh the record with regard to the NCTA Petition.

16. The Commission adopts the Petitioners' proposal to broaden the use of cost allocators in the telecom rate formula. Specifically, the Commission adds cost allocators for poles with 2 and 4 attaching entities to augment the current cost allocators that target poles with 3 and 5 attaching entities. The Commission also provides that, for fractional attaching-entity averages, cost allocators are to be interpolated from the whole-number cost allocators. The Commission takes this step to further its goal of promoting consistent, cross-industry attachment rates that encourage deployment and adoption of broadband Internet access services by fulfilling the Commission's intent, expressed clearly in 2011 and upheld in court in 2013, to bring cable and telecom rates for pole attachments into parity at the cable-rate level.

17. The Petitioners maintain, and the Commission agrees, that the cost allocators adopted in the 2011 Pole Attachment Order perform as intended, but only if the actual average numbers of attaching entities coincide with the Commission's presumptive average numbers of attaching entities. As NCTA recognizes, the cost allocators in the 2011 Pole Attachment Order reflect and embody these presumptive averages. When 0.66 percent and .044 percent of fully-allocated costs are applied in tandem with the Commission's presumptions of 5 and 3 attaching entities in urban and non-urban areas, respectively, the results approximate cable rate formula outcomes, as intended.

18. There is widespread agreement that the real average number of attaching entities is regularly far lower than the Commission's presumptions, and that this disparity causes rates calculated with the telecom rate formula to be around 70 percent higher than rates calculated with the cable rate formula. NCTA also reports that, in reality, pole owners routinely rebut the Commission's presumptions with averages such as 2.6 attaching entities. No commenter disputes NCTA's claim or alleges that the number “2.6” is an outlier. Verizon reports several similarly frequent rebuttals to attacher numbers below three. Averages of 2.6 attaching entities rebut both the urban and non-urbanized presumptions, which casts doubt not only on the credibility of the presumptions, but on the validity of the underlying urbanized/non-urbanized distinction as well. Rebuttals that consistently show lower average numbers based on tracking actual attachments may reflect the fact that, under its rules, service territories count as “urban” if any part of them is urban. This approach dilutes the density of these nominally urban areas, and undercuts the Commission's original assumption that such areas would likely have a higher average of attaching entities.

19. Recognizing that the rate reforms of 2011 have failed to align the results of the two pole attachment rate formulas as fully as intended, the Commission adopts the Petitioners' proposal as a template for corrective measures. By introducing new cost allocators of 0.31 percent and 0.56 percent for poles with 2 and 4 attaching entities respectively, with interpolated allocators between the closest whole numbers for fractional averages, the Commission brings parity to pole attachment rates at the cable rate formula level. The Petitioners' proposed solution does not require us to revisit the presumptions themselves; these continue to perform as intended with the 66% and 44% cost allocators that the Commission adopted in 2011. The Commission therefore retains the presumptions for the same reasons the Commission adopted them in 2011: to “expedite the process” and to help utilities “avert the expense” of applying demographic categories. Broadening the effect of the cost allocation system as the NCTA Petition proposes will greatly reduce the effect of, and the need for, the rebuttals. This approach to defining “cost” for purposes of the telecom rate formula achieves results that are consistently close to the cable rate. The new system also satisfies the fundamental purposes for using presumptions: To reduce reporting and recordkeeping requirements, to minimize administrative burdens, and to provide a level of predictability and efficiency in calculating the appropriate rate.

20. The Commission adopts this multiple cost-allocator approach for the same reasons that motivated the initial (but ultimately incomplete) reforms in 2011: To advance the deployment and adoption of broadband Internet access, which remains a fundamental policy goal that guides its implementation of the telecom rate formula. The Commission recognizes that pole rental rates are but one of many considerations underlying marketplace deployment decisions. That said, the Commission promotes broadband deployment on numerous fronts, and has sought public comment and advice on other measures to advance this overarching policy. When discussing pole attachments policy, the Commission refers consistently to incentives for investment. By the same token, it remains the Commission's policy to minimize disincentives to investment, including artificially high pole attachment rates. Lower pole rental rates serve to encourage broadband investment, and Commission continues to use its section 224 authority as one of the tools it brings to bear to on its broadband goals. The Commission also continues to support and subsidize deployment of broadband Internet access in high-cost areas. In contrast, increased pole attachment rates would ultimately be recovered from consumers, and could lead some consumers to cut back or even discontinue their service. Thus, the Commission views pole attachment rate reform as part of the Commission's fundamental mission to advance the availability and adoption of broadband in America.

21. The Commission also intends this action to avoid the unintended consequence of higher pole attachment rates for cable providers that also offer broadband Internet access service, in those cases where the utility rebuts the Commission's attaching party presumptions. Comcast, for example, asserts that “[a]bsent grant of the NCTA/COMPTEL Petition, a costly and time consuming process will ensue whereby utilities will seek to rebut the Commission's attaching entity presumptions, and cable operator attachers will then seek to refute the utilities' attachment studies.” And NCTA observes that, because most cable operators may become subject to the telecom rate, and large numbers of associated attachments are implicated, utilities would have increased incentives to rebut the Commission's presumed number of attachers in areas where they had not done so previously. As a result, this could lead to pole rate increases for both cable operators and pre-existing telecommunications carriers in those areas. In the Open Internet Order, the Commission acknowledged that reclassification could lead to attempted increases in pole attachment rates, and stated its intention to avoid such an increase. Aligning rates produced by the two rate formulas forestalls this potential increase.

22. The Commission also is concerned that unless it closes what one commenter refers to as the “telecom formula loophole,” the resulting rate disparity would, more broadly, frustrate the Commission's policy goals by artificially and incrementally deterring investment in states subject to Commission pole regulation in favor of investment in areas with more favorable state-regulated pole attachment regimes. As the Commission previously has observed, “[c]ommenters report that many [states that have elected to exercise jurisdiction over pole attachments in lieu of the Commission] apply a uniform rate for all attachments used to provide cable and telecommunications services, and have done so by establishing a rate identical or similar to the Commission's cable rate formula.” Thus, if the Commission's telecom rate frequently yielded rates materially above the cable rate, telecommunications service providers that operate in multiple states or are deciding where to enter the marketplace, would have an artificial disincentive to invest in states governed by the Commission's 2011 telecom rate rule relative to states that established a uniform rate identical or similar to the Commission's cable rate formula. Although the Commission's action in this Order will not guarantee complete state-to-state uniformity, seeking to address artificial marketplace distortions in the manner that it does here, rather than via a higher telecom rate, accords with the Commission's broadband mandate and its overall policy balancing in this context.

23. Moreover, the record developed here demonstrates that pole owners routinely rebut the Commission presumptions with averages close to 2.6 attachers. This means that the Commission's standard examples of telecom rates, which presuppose fully-allocated costs and use the Commission's presumptions, have seriously underestimated the pre-reform disparity between cable- and telecom-rate outcomes. In this proceeding, the Commission has compared estimated telecom costs of 11.2 percent in urban areas and 16.9 percent in non-urban areas with fixed cable costs of 7.4 percent. Applying the 2.6 cost allocator that the record supports shows that the telecom rate formula cost estimate would have been 19.1 percent for both urban and rural areas. The discrepancy between the presumed numbers of attachers (5 in urban areas and 3 in rural areas) and actual numbers of attachers used in pole owner rebuttals and reported in the record (often at or close to 2.6) illustrates the substantial problem attachers face when applying the rate reform of the Commission's 2011 Pole Attachment Order.

24. Along with the forgoing policy considerations, the Commission continues to seek to balance the “legitimate concerns of pole owners and other parties” by preserving incentives to invest in poles and avoiding the imposition of an undue burden on utility ratepayers. In 2011, the Commission ultimately concluded that the level of recovery provided by the cable rate best balanced its broadband deployment mandates and the concerns of pole owners and utility ratepayers. Consistent with that analysis, the Commission explains above that the cable rate frequently is lower than the telecom rate as it previously had been implemented by the Commission, and reducing the telecom rate to cable rate level would further numerous policy goals. The Commission further observed that the cable rate had not produced a “shortage of pole capacity,” and, therefore, approximating that rate in the telecom formula likely would not diminish pole owners' “incentives to invest in poles.” The Commission also found “persuasive the views of consumer advocates . . . recommend[ing] that the cable rate `should be used for all pole attachments.' ”

25. The Commission thus remains persuaded that utility cost recovery at the level of the cable rate best balances the relevant policy considerations. Consequently, the Commission rejects arguments that the rule revision, which will more consistently and accurately ensure that the Commission's policy goals are achieved, will somehow upset the Commission's intended balance, unfairly burden utility ratepayers, or undermine the sharing of infrastructure costs. Likewise, while some commenters observe that other aspects of the 2011 Pole Attachment Order put downward pressure on the revenues electric utilities receive from incumbent LEC attachers, the Commission already accounted for that likelihood in its weighing of policies and conclusion that it was appropriate to permit capital cost recovery at the same level as under the cable rate.

26. Utilities dismiss this policy balancing on several grounds, none of which persuade the Commission. The Utilities Telecom Council (UTC) argues that pole attachment rental is insignificant compared to other operating costs of large cable companies. Electric Utilities state that capital expenditure, and not pole attachment rental, drives deployment, and that pole attachment rental accounts for less than 2 percent of the cost of deploying fiber optic cable. UTC argues that there has been only a slow rate of broadband deployment since the telecom rate was adjusted in 2011, which proves the futility of lowering pole attachment rates, and that any cost savings from lower pole attachment rates have not been passed on to consumers, but rather, as a result of industry consolidation, have been pocketed by providers instead.

27. The Commission is skeptical that sums alleged to “unfairly and negatively impact utilities and their ratepayers” are “insignificant” in the context of broadband deployment. While the record does not include quantifiable information regarding the exact effect on deployment of pole attachment rates, insofar as keeping attachment rates reasonable for cable companies prevents them from shelving even a small number of projects, the Commission would not consider that result “insignificant.” There remains room for improvement in the rate of broadband expansion, and the Commission cannot afford to dismiss the importance of even potentially small increments. Commenters state that cable companies continue to deploy facilities, and Commission intend to avert any destabilization of those plans that might arise from a large and sudden pole attachment rate increase. The Commission is particularly mindful of the potential for harm to rural areas, which are the least served areas in the nation, and where the most additional pole attachments are needed to reach additional customers.

28. Utilities further argue that granting the NCTA Petition would unfairly reduce their revenue from pole attachments. They argue that the 2011 Pole Attachments Order has already reduced their recovery from the telecommunications rate, and expect that their revenue from broadband-only Internet service providers will also decline. The Commission finds these arguments unpersuasive. Telecommunications carriers account for only a little more that 10 percent of attaching entities. Leveling their rate down to the cable rate disrupts settled expectations far less than leveling up the rental rate for the much greater number of cable attachments. Although it is true that the new system will tend to lower rates negotiated under the telecom rate formula, they will settle at the level the Commission aimed for in 2011, when its stated goal was to “minimize the difference in rental rates paid for attachments that are used to provide voice, data, and video services.”

29. Utilities argue that increasing demand for pole space should lead to increased prices, and that any downward rate adjustment runs counter to economic principles. The Commission attaches no significance to this assertion. The express reason for the statutory imposition of cost-based, regulated rates is to bypass the economic principle that “ `public utilities by virtue of their size and exclusive control over access to pole lines, are unquestionably in a position to extract monopoly rents . . . in the form of unreasonably high pole attachment rates.' ” By enacting cost-based rate formulas, Congress has already accounted for the economics of scarcity that so favor pole owners. Attachment rates agreed to by broadband-only providers before reclassification may indeed be called into question, but that is because these entities are now within the ambit of Section 224, and not because the Commission revises the method of cost allocation used in the telecom rate formula.

30. Utilities claim that “downward pressure” on rates “weakens the predictability and timeliness of the access process” but this argument makes little sense. Attachers pay (and owners recover) the entire cost of access through make-ready fees paid before the attacher's facilities are mounted on poles. Because access costs have already been recovered through make-ready fees, pole attachment rental rates are concerned solely with the pole owner's recovery of operating costs; they should have nothing to do with the “predictability and timeliness” of access. In any case, a “downward pressure” on rates to a parity with the cable rate formula level is precisely the outcome that the 2011 Pole Attachment Order sought to achieve and that the Commission intends this new cost allocation system to implement.

31. The modified telecom rate rule adopted in this Order is consistent with section 224(e) of the Act. The fundamental purpose of section 224(e) is to “ensure that a utility charges just, reasonable, and nondiscriminatory rates for pole attachments” by telecommunications carriers used to provide telecommunications services. As described above, in regulating cost-based telecom attachment rates under section 224(e), Congress granted the Commission substantial discretion to implement section 224(e) based on the agency's policy expertise by leaving the definition of the relevant costs ambiguous. Employing that policy expertise, the Commission builds upon the underpinnings of the statutory interpretation relied upon by the Commission in 2011 in the telecom rate rule adopted here.

32. The 2011 Pole Attachment Order began by identifying a range of reasonable rates that could result from different definitions of “cost” for purposes of section 224(e). Within that range of permissible outcomes, the telecom rate rule ultimately adopted in 2011 involved the comparison of the rate yielded by two calculations, with utilities permitted to charge the higher of the two. Section 1.1409(e)(2)(i) specifies the first calculation, which the Commission anticipated would approximate the cable rate. Section 1.1409(e)(2)(ii) specifies the second calculation, based on a cost-causation approach.

33. As a threshold matter, this Order leaves unaltered the section 1.1409(e)(2)(ii) `cost-causation'-based calculation. That calculation still will be performed whenever the Commission's telecom rate rule is used, and even utility commenters concede that it does “not do away with apportioning the costs among all attaching entities” in accordance with section 224(e). The definition of cost for purposes of that provision excludes capital costs and was designed to yield a rate that approached the incremental cost of attachment.

34. The question of whether, and to what extent, to allow utilities to go beyond the recovery permitted by the section 1.1409(e)(2)(ii) telecom rate calculation and recover some capital costs ultimately depends on a further policy evaluation. As the Commission explained in 2011, and as the Commission reiterates above, its implementation of section 224 is guided in significant part by its mandate to encourage the deployment of broadband. That policy, if overriding other considerations, might counsel in favor of relying solely on the rate yielded by the `cost-causation' calculation in section 1.1409(e)(2)(ii), rather than permitting higher rates as just and reasonable under section 224(e). But the Commission also sought—and continues to seek—to balance the “legitimate concerns of pole owners and other parties” by preserving incentives to invest in poles and avoiding the imposition of an undue burden on utility ratepayers.

35. As described above, in 2011 the Commission adopted rules that it anticipated would result in a telecom rate that generally approximated the cable rate. In practice, however, the rule the Commission adopted has only poorly reflected the balancing of policy interests that the Commission anticipated attaining in 2011 because the facts on the ground differed significantly from the Commission presumptions upon which the 2011 rule was predicated. As a result, telecom rates calculated based on the Commission's rules frequently were higher than the levels the Commission generally sought to achieve as just and reasonable under section 224(e)—i.e., materially in excess of the cable rate. The reclassification of broadband Internet access service as a telecommunications service brings this shortcoming into greater focus. Adopting the changes to section 1.1409(e)(2)(i) proposed by Petitioners will bring the balance that the Commission anticipated achieving in 2011, which the Commission is likewise persuaded is the appropriate outcome today.

36. Thus, the Commission adopts the Petitioners' proposal and modifies section 1.1409(e)(2)(i) of the rules by redefining the ambiguous term “cost” as a percentage of fully allocated costs that depends on whether the average number of attaching entities in an area is 2, 3, 4, or 5. The specific percentage of fully allocated costs that Commission adopts in each of those instances will yield a rate under section 1.1409(e)(2)(i) that more closely and consistently approximates the cable rate.

37. Although this definition of cost is based on an integer average number of attachers in an area, consistent with the Commission's efforts to ensure that it implements section 224(e) in a “readily administrable” manner, the proposal the Commission adopts incorporates a mechanism to allow parties, should they so choose, to continue to rely on non-integer average numbers of attachers in a service area by interpolating from the specified cost allocators in section 1.1409(e)(2)(i) of the rules in a manner that does not undermine the definition of cost adopted above. In pertinent part, section 224(e)(2) is focused on allocating the “cost”—however defined—of providing space on a pole other than useable space. Although a given pole only will have an integer number of attaching entities, for administrability the Commission has long permitted pole attachment rates to be calculated based on surveys or averages of the number of attaching entities in the relevant service area, which has the potential to yield an average number of attachers that is not an integer number. The use of a non-integer number of attaching entities in conjunction with the new definition of cost adopted for areas with 2, 3, 4, or 5 average attaching entities in revised section 1.1409(e)(2)(i) of the rules would result in similar, even if not always as extensive, deviations from the cable rate as the Commission found to result under the version of the rule adopted in 2011. The Commission concludes that such deviation is at odds with the balancing of policy interests it seeks to achieve through its revisions to section 1.1409(e)(2)(i) and also anticipates that it would increase the likelihood of disputes. The Commission thus adopts the interpolation mechanism in Petitioners' proposal, which will leave parties free to continue using non-integer average number of attachers should they choose to do so, without undermining its ability to ensure just and reasonable rates under section 224(e) in an administrable manner.

38. Insofar as the reclassification of broadband Internet access service results in most Commission-regulated attachments becoming subject to the telecom rate, that counsels in favor of its redefinition of cost, contrary to the claims of some commenters. The Commission recognizes that the 2011 Pole Attachment Order cited the marketplace distortions resulting from disparate telecom and cable rates as part of the policy rationale for the telecom rate change adopted there. As identified there, these distortions led to competitive disparities arising from telecommunications carriers paying higher pole attachment rates than their cable operator competitors. The distortions also created disincentives for cable operators to begin offering advanced services that could newly subject them to the telecom rate. Some commenters argue that reclassification of broadband Internet access service, insofar as it results in most cable operators now being subject to the telecom rate, resolves concerns about marketplace distortions and leaves the Commission with little or no policy basis for revisiting the definition of “cost” to better ensure that the telecom rate is as low and close to uniform with the cable rate as possible. The Commission rejects such claims for the reasons already explained above. In particular, the current telecom rate could lead to a windfall for utilities by increasing rates for many attachments without any offsetting benefits to cable attachers. This not only would harm cable operators and their customers, but more broadly would undermine the Commission's broadband policies by creating artificial marketplace distortions and disincentives for investment. Indeed, the Commission made this point clear in the Open Internet Order when it stated, “[t]o the extent that there is a potential for an increase in pole attachment rates for cable operators that also provide broadband Internet access service, the Commission is highly concerned about its effect on the positive investment incentives that [otherwise] arise from new providers' access to pole infrastructure.”

39. The Commission also disagrees with the suggestions of some commenters that only certain types of policy considerations can form the basis for its interpretation and implementation of the ambiguous term “cost” in section 224(e). As the D.C. Circuit recognized in AEP, the Commission reasonably can rely on policy rationales in giving meaning to the term “cost.” The Commission explains above the specific policy rationales for the approach the Commission adopts here, and finds no basis to conclude that those considerations cannot form a sufficient justification for the interpretation of the term cost in its implementation of section 224(e). For example, certain commenters assert that there is no “economic reason” for the adopted approach to defining cost, but do not explain what they mean by an “economic reason,” or why the policy considerations discussed above, including the economic effects of alternative approaches to defining cost, would not fall within that scope. Some commenters also criticize the Petitioners' proposal for failing to provide a more favorable outcome for attachers in rural areas, but fail to explain why that is a necessary basis for interpreting the term “cost.” To the extent that those comments are premised on certain policy arguments relied upon by the Commission in 2011 as part of its explanation of the specific definitions of cost adopted there, the Commission finds them unpersuasive. The Commission finds for the reasons explained above that the version of section 1.1409(e)(2)(i) adopted in 2011 only poorly advanced the Commission's more fundamental policy objectives, and to better advance those fundamental policy objectives, and for the other policy reasons relied on in this Order, the Commission departs from its prior approach that relied on historical rules tied to urban/rural distinctions. Moreover, the Commission is not revisiting how cost is defined under section 1.1409(e)(2)(i) to more consistently and accurately yield a rate the same or very similar to the cable rate as an end unto itself, but because that reflects the Commission's intended policy balancing, and the Commission rejects suggestions that that is not a valid justification. More broadly, because the Commissions explain in detail the legal and policy basis for its adoption of Petitioners' proposed revision to section 1.1409(e)(2)(i) of the rules, it rejects general claims that adopting that proposal would be arbitrary and capricious.

40. Nor does modification of the telecom rate rule render section 224(e)(2) of the Act a nullity, as some allege. For one, the Commission's telecom rate rule requires a comparison of the output of two calculations, and as explained above, even utilities appear to concede that the cost-causation-based calculation in section 1.1409(e)(2)(ii) gives meaning to section 224(e)(2). Moreover, under revised section 1.1409(e)(2)(i) the apportionment specified in section 224(e)(2) is given meaning because it is only by applying that apportionment to the definition of “cost” adopted above that the resulting rate will closely approximate the cable rate, and thus be just and reasonable under the analysis above.

41. The Commission also rejects claims that its approach to interpreting “cost” otherwise is at odds with Congressional intent and the text and structure of section 224. The 2011 Pole Attachment Order explained why the statute does not require the telecom rate necessarily to be higher than, or otherwise different from, the cable rate and the Commission finds nothing in the record here to undercut that analysis. The Commission acknowledges some commenters' arguments that section 224(e)(2) could be read to suggest that Congress envisioned the telecom rate varying with the number of attachers, in contrast to its revised approach to defining cost in section 1.1409(e)(2)(i) of the rules, under which the resulting rate will be the same or very similar regardless of the number of attaching entities. At the same time, although section 224(e)(2) provides for costs to be apportioned in a manner that depends on the number of attachers, it left undefined what costs should be so apportioned. This is in contrast to section 224(d)(1), which specifies both a cost-based rate methodology and the defined scope of costs to be used for purposes of the cable rate. In particular, although, as some commenters observe, Congress did not simply mandate the cable rate for all attachments, neither did it specify a definition of cost that would require an outcome under section 224(e)(2) that would, in practice, always vary with the number of attaching entities. Congress thus permitted the Commission to implement section 224(e) in a manner that yielded rates that vary with the number of attachers—an outcome that would depart from the cable rate, notwithstanding the requirement in section 224(e)(1) that the rate be not only just and reasonable but also “nondiscriminatory.” But while permitting such an outcome, the Commission also concludes that Congress did not require such an outcome as mandatory given its use of the ambiguous term “cost.”

42. In implementing section 224(e), the Commission considers the broader purposes of section 224, as also informed by other statutory goals and mandates. As in the 2011 Pole Attachment Order, the Commission finds that its interpretation and implementation of section 224(e) here advances those objectives. The Commission has concluded that “[t]he purpose of Section 224 of the Communications Act is to ensure that the deployment of communications networks and the development of competition are not impeded by private ownership and control of the scarce infrastructure and rights-of-way that many communications providers must use in order to reach customers.” This also is borne out by the text of section 224, which emphasizes that the Commission's fundamental role is to ensure just and reasonable rates, terms, and conditions of access. Other statutory provisions likewise counsel in favor of such an understanding of section 224, as discussed in greater detail in the 2011 Pole Attachment Order and above. For the reasons explained in the preceding discussion, the Commission concludes that the revised telecom rate rule it adopts is necessary to ensure just and reasonable rates for pole access as a backstop for when private negotiations fail. Because the Commission can achieve that outcome by how it defines “cost” under section 224(e), while still formally giving meaning to all the language of that provision, the Commission concludes that its adopted approach reasonably implements that provision as understood in the context of section 224 as a whole.

43. The Commission also is not persuaded by arguments that section 224(e)(2) limits the costs to be borne by pole owners. As described above, the Commission's fundamental responsibility under section 224(e) is to ensure that regulated rates “for pole attachments used by telecommunications carriers to provide telecommunications services” are just, reasonable, and nondiscriminatory. Read in that context, the Commission interprets section 224(e)(2) only to govern the apportionment of the “cost”—however defined—of unusable space in the rates pole owners charge to telecom attachers. It is true that the methodology used to calculate the apportionment of “cost” to a telecom attacher under section 224(e)(2) involves a calculation of what “all attaching entities” would bear assuming hypothetically that they all bore an equal apportionment of such cost. But it does not actually govern the cost to be borne by entities other than telecom attachers—whether the pole owner or other attachers.

44. Adopting this change to section 1.1409(e)(2)(i) of the rules is procedurally proper. Following the Commission's 2010 Further Notice seeking comment on “establish[ing] rental rates for pole attachments that are as low and close to uniform as possible, consistent with section 224 of the Act,” the 2011 Pole Attachment Order revised the telecom rate rule in a manner that the Commission anticipated would reflect its balancing of policy concerns. The timely filed Petition for Reconsideration identified flaws in the Commission's factual assumptions underlying section 1.1409(e)(2)(i) of the rules as adopted in the 2011 Pole Attachment Order that would cause that rule, in practice, to only poorly reflect the Commission's intended balancing of policy objectives. The Petitioners thus proposed that the Commission, on reconsideration, revise that rule in a manner that “increases the certainty that pole rates will be as close as possible to the cable rate, meets the Commission's intended purposes, and makes the calculation more readily administrable by eliminating the need to distinguish urbanized and non-urbanized areas.” Given that clear nexus to the 2011 Pole Attachment Order, the Commission finds the request in the Petition for Reconsideration to be squarely within the scope of the order from which reconsideration is sought, and the Commission rejects arguments to the contrary. Furthermore, for the reasons discussed in the preceding section, the Commission finds merit in the Petitioners' arguments, and thus concludes that it is in the public interest not only to consider their Petition but also to grant their requested reconsideration.

45. The Commission also rejects claims that additional notice and comment is needed before it can proceed under the theory that the action in this Order effectively would modify sections 1.1417(c) and (d) of the rules. Section 1.1417(c) specifies the Commission's rebuttable presumptions of 5 attaching entities in urbanized areas and 3 attaching entities in non-urbanized areas. Section 1.1417(d) describes how a utility can instead establish its own presumptive average number of attaching entities, subject to rebuttal. As a threshold matter, the Commission is not persuaded by commenters' claims that the Petitioners' proposed revision to section 1.1409(e)(2)(i) would render those rules “moot.” Under the utilities' own theory, the Commission-specified presumptions in section 1.1417(c) would have increased, rather than diminished, significance when performing the section 1.1409(e)(2)(i) calculation because it would obviate the need for utilities to expend the effort to develop their own presumptive average numbers of attachers if they believe that variation in the number of attachers would not matter. Further, although the result of the calculation in section 1.1409(e)(2)(i) frequently will be higher than that yielded by the cost-causation-based calculation in section 1.1409(e)(2)(ii), its rules provide for both to be performed, with the possibility that there will be cases where the section 1.1409(e)(2)(ii) calculation is controlling. The outcome under section 1.1409(e)(2)(ii) unquestionably does vary with the number of attaching entities, and thus the utilities' ability to develop their own presumptive number of attaching entities under section 1.1417(d) remains important where the cost-causation-based calculation would be, or could be, controlling.

46. Although the Commission is not persuaded that any implications of its change to section 1.1409(e)(2)(i) of the rules for sections 1.1417(c) and (d) constitute substantive rule changes, even assuming arguendo that they were viewed in that manner, the Commission finds there was adequate notice and opportunity to comment. As noted above, the Commission's 2010 Further Notice sought comment on “establish[ing] rental rates for pole attachments that are as low and close to uniform as possible, consistent with section 224 of the Act,” seeking comment on particular alternative approaches and variations that might be adopted consistent with the Commission's statutory responsibilities. For example, the Further Notice included requests for comment on a proposal to revise the telecom rate rule so that it was the higher of a rate equal to the cable rate or a cost-causation-based rate, including regarding the administrability of such an approach and how it would relate to other Commission policies. Flowing from that Further Notice, the 2011 Pole Attachment Order adopted revisions to the telecom rate rule, and the Petition for Reconsideration requested reconsideration of the resulting rule in various respects, all within the scope of the underlying Order. The Commission sought comment on the Petition for Reconsideration at the time it was filed, and provided a further opportunity to comment on the requested rule changes subsequent to the Open Internet Order. The Commission concludes that any implications for the continuing significance of section 1.1417(c) and (d) resulting from its adoption of the Petitioners' proposal should have been understood to be within the scope of issues subject to comment—indeed, commenters themselves appear to suggest that the implications for section 1.1417(c) and (d) are a necessary and unavoidable consequence of the adoption of that proposal. As a result, the Commission concluded that even assuming arguendo that notice and comment were required regarding the effects of a change in section 1.1409(e)(2)(i) on the presumption rules in section 1.1417(c) and (d), that was satisfied here.

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

48. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission includes in Appendix B a Supplemental Final Regulatory Flexibility Analysis (FRFA) relating to this Order on Reconsideration.

49. The Commission will send a copy of the Order on Reconsideration, including the FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1).

50. As required by the Regulatory Flexibility Act of 1980, as amended (RFA).

51. An Initial Regulatory Flexibility Analysis (IRFA) was included in the Order and Further Notice in WC Docket No. 07-245 and GN Docket No. 09-51. The Commission sought written public comment on the proposals in these dockets, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

52. In this Order on Reconsideration, the Commission further implements its policy of bringing parity to pole attachment rates at or near the 47 CFR 1.1409(e)(1) cable rate formula level, including rates that are calculated using the 47 CFR 1.1409(d)(2) telecom rate formula. The 2011 Pole Attachment Order adopted cost allocators in the telecom rate formula that were intended to closely approximate the treatment of cost in the cable rate formula. However, these allocators perform successfully only where poles have 5 attaching entities (0.66 percent of cost) or 3 attaching entities (0.44 percent of cost). To build on that limited success, the Commission now adds cost allocators for poles with 2 attaching entities (0.31 percent of costs) and 4 attaching entities (0.56 percent of cost). When the average number of attaching entities is a fraction, the applicable cost allocator will be interpolated from the two closest whole numbers. In this way, this Order on Reconsideration spares cable operators that also provide a telecommunications service (e.g., broadband Internet access service) from having to pay attachment rates that would be approximately 70 percent higher than the rate they pay under the existing rules. Pole attachment rate parity at the cable rate level also harmonizes regulatory treatment between Commission-regulated states and states that set their own pole attachment rates, which prevents any deterrence to investment in Commission-regulated states. By keeping pole attachment rates unified and low, the Commission furthers its overarching goal to accelerate deployment of broadband by removing barriers to infrastructure investment.

53. No comments relating to any of the IRFAs have been filed since the 2011 Pole Attachment Order. In making the determinations reflected in the Order on Reconsideration, the Commission has considered the impact of its actions on small entities.

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

55. Small Businesses. As of 2011, there are a total of approximately 28.2 million small businesses, according to the SBA.

56. Small Organizations. As of 2007, there are approximately 1.6 million small organizations. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”

57. Small Governmental Jurisdictions. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 90,056 local governmental jurisdictions in the United States. The Commission estimates that, of this total, 89,327 entities were “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.

58. The Commission has included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small incumbent local exchange carriers in this RFA analysis, although it emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

59. Incumbent Local Exchange Carriers (“ILECs”). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,311 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,311 carriers, an estimated 1,024 have 1,500 or fewer employees and 287 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by its proposed action.

60. Competitive Local Exchange Carriers (“CLECs”), Competitive Access Providers (“CAPs”), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1005 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 1005 carriers, an estimated 918 have 1,500 or fewer employees and 87 have more than 1,500 employees. In addition, 16 carriers have reported that they are “Shared-Tenant Service Providers,” and all 16 are estimated to have 1,500 or fewer employees. In addition, 89 carriers have reported that they are “Other Local Service Providers.” Of the 89, all have 1,500 or fewer employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by its proposed action.

61. Interexchange Carriers (“IXCs”). Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 300 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 268 have 1,500 or fewer employees and 32 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by its proposed action.

62. Wireless Telecommunications Carriers (except satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The appropriate size standard under SBA rules is for the category Wireless Telecommunications Carriers (except satellite). For that category, a business is small if it has 1,500 or fewer employees. For this category, census data for 2007 show that there were 1,383 firms that operated for the entire year. Of this total, 1368 firms had employment of fewer than 1000 employees. The Census data about firms employing more than 1000 employees does not identify the number of firms that employed 1500 employees or less. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by rules proposed in the Notice.

63. Wireless Telecommunications Carriers (except Satellite). Since 2007, the Census Bureau has placed wireless firms within this new, broad, economic census category. Prior to that time, such firms were within the now-superseded categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees. Because Census Bureau data are not yet available for the new category, the Commission will estimate small business prevalence using the prior categories and associated data. For the category of Paging, data for 2002 show that there were 807 firms that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. For the category of Cellular and Other Wireless Telecommunications, data for 2002 show that there were 1,397 firms that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, the Commission estimates that the majority of wireless firms are small.

64. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted, the SBA has developed a small business size standard for Wireless Telecommunications Carriers (except Satellite). Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Trends in telephone Service data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Therefore, more than half of these entities can be considered small.

65. Broadband Personal Communications Service. The broadband personal communications services (“PCS”) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. For Block F, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 “small” and “very small” business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. In 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders.

66. In 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. In 2005, the Commission completed an auction of 188 C block licenses and 21 F block licenses in Auction 58. There were 24 winning bidders for 217 licenses. Of the 24 winning bidders, 16 claimed small business status and won 156 licenses. In 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction 71. Of the 14 winning bidders, six were designated entities. In 2008, the Commission completed an auction of 20 Broadband PCS licenses in the C, D, E and F block licenses in Auction 78.

67. Advanced Wireless Services. In 2008, the Commission conducted the auction of Advanced Wireless Services (“AWS”) licenses. This auction, which as designated as Auction 78, offered 35 licenses in the AWS 1710-1755 MHz and 2110-2155 MHz bands (“AWS-1”). The AWS-1 licenses were licenses for which there were no winning bids in Auction 66. That same year, the Commission completed Auction 78. A bidder with attributed average annual gross revenues that exceeded $15 million and did not exceed $40 million for the preceding three years (“small business”) received a 15 percent discount on its winning bid. A bidder with attributed average annual gross revenues that did not exceed $15 million for the preceding three years (“very small business”) received a 25 percent discount on its winning bid. A bidder that had combined total assets of less than $500 million and combined gross revenues of less than $125 million in each of the last two years qualified for entrepreneur status. Four winning bidders that identified themselves as very small businesses won 17 licenses. Three of the winning bidders that identified themselves as a small business won five licenses. Additionally, one other winning bidder that qualified for entrepreneur status won 2 licenses.

68. Narrowband Personal Communications Services. In 1994, the Commission conducted an auction for Narrowband PCS licenses. A second auction was also conducted later in 1994. For purposes of the first two Narrowband PCS auctions, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission awarded a total of 41 licenses, 11 of which were obtained by four small businesses. To ensure meaningful participation by small business entities in future auctions, the Commission adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards. A third auction was conducted in 2001. Here, five bidders won 317 (Metropolitan Trading Areas and nationwide) licenses. Three of these claimed status as a small or very small entity and won 311 licenses.

69. Cellular Radiotelephone Service. Auction 77 was held to resolve one group of mutually exclusive applications for Cellular Radiotelephone Service licenses for unserved areas in New Mexico. Bidding credits for designated entities were not available in Auction 77. In 2008, the Commission completed the closed auction of one unserved service area in the Cellular Radiotelephone Service, designated as Auction 77. Auction 77 concluded with one provisionally winning bid for the unserved area totaling $25,002.

70. Fixed Microwave Services. Fixed microwave services include common carrier, private operational-fixed, and broadcast auxiliary radio services. At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for the category Wireless Telecommunications Carriers (except Satellite), which is 1,500 or fewer employees. The Commission does not have data specifying the number of these licensees that have no more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are 22,015 or fewer common carrier fixed licensees and 61,670 or fewer private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies proposed herein. The Commission notes, however, that the common carrier microwave fixed licensee category includes some large entities.

71. Local Multipoint Distribution Service. Local Multipoint Distribution Service (“LMDS”) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. The auction of the 986 LMDS licenses began and closed in 1998. The Commission established a small business size standard for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. An additional small business size standard for “very small business” was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards in the context of LMDS auctions. There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. In 1999, the Commission re-auctioned 161 licenses; there were 32 small and very small businesses winning that won 119 licenses.

72. Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (“BETRS”). In the present context, the Commission will use the SBA's small business size standard applicable to Wireless Telecommunications Carriers (except Satellite), i.e., an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies proposed herein.

73. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (“MDS”) and Multichannel Multipoint Distribution Service (“MMDS”) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (“BRS”) and Educational Broadband Service (“EBS”) (previously referred to as the Instructional Television Fixed Service (“ITFS”)). In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (“BTAs”). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, the Commission estimates that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, the Commission finds that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) will receive a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) will receive a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) will receive a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

74. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, the Commission estimates that at least 1,932 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services the Commission must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.

75. Cable Television Distribution Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services the Commission must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.

76. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 6,635 systems nationwide, 5,802 systems have fewer than 10,000 subscribers, and an additional 302 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small.

77. Cable System Operators. The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. The Commission notes that it neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore the Commission is unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard.

78. Open Video Systems. The open video system (OVS) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers. The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA small business size standard covering cable services, which is “Wired Telecommunications Carriers.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for such services the Commission must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of cable firms can be considered small. In addition, the Commission notes that the Commission has certified some OVS operators, with some now providing service. Broadband service providers (“BSPs”) are currently the only significant holders of OVS certifications or local OVS franchises. The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, again, at least some of the OVS operators may qualify as small entities.

79. Cable Television Relay Service. This service includes transmitters generally used to relay cable programming within cable television system distribution systems. This cable service is defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for cable services the Commission must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.

80. Multichannel Video Distribution and Data Service. MVDDS is a terrestrial fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. These definitions were approved by the SBA. On January 27, 2004, the Commission completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders won a total of 192 MVDDS licenses. Eight of the ten winning bidders claimed small business status and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed small business status.

81. Internet Service Providers. The 2007 Economic Census places these firms, whose services might include voice over Internet protocol (VoIP), in either of two categories, depending on whether the service is provided over the provider's own telecommunications connections (e.g. cable and DSL, ISPs), or over client-supplied telecommunications connections (e.g. dial-up ISPs). The former are within the category of Wired Telecommunications Carriers, which has an SBA small business size standard of 1,500 or fewer employees. The latter are within the category of All Other Telecommunications, which has a size standard of annual receipts of $25 million or less. The most current Census Bureau data for all such firms, however, are the 2002 data for the previous census category called Internet Service Providers. That category had a small business size standard of $21 million or less in annual receipts, which was revised in late 2005 to $23 million. The 2002 data show that there were 2,529 such firms that operated for the entire year. Of those, 2,437 firms had annual receipts of under $10 million, and an additional 47 firms had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of ISP firms are small entities.

82. Electric Power Generation, Transmission and Distribution. The Census Bureau defines this category as follows: “This industry group comprises establishments primarily engaged in generating, transmitting, and/or distributing electric power. Establishments in this industry group may perform one or more of the following activities: (1) operate generation facilities that produce electric energy; (2) operate transmission systems that convey the electricity from the generation facility to the distribution system; and (3) operate distribution systems that convey electric power received from the generation facility or the transmission system to the final consumer.” This category includes Electric Power Distribution, Hydroelectric Power Generation, Fossil Fuel Power Generation, Nuclear Electric Power Generation, and Other Electric Power Generation. The SBA has developed a small business size standard for firms in this category: “A firm is small if, including its affiliates, it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours.” According to Census Bureau data for 2002, there were 1,644 firms in this category that operated for the entire year. Census data do not track electric output and the Commission has not determined how many of these firms fit the SBA size standard for small, with no more than 4 million megawatt hours of electric output. Consequently, the Commission estimates that 1,644 or fewer firms may be considered small under the SBA small business size standard.

83. Natural Gas Distribution. This economic census category comprises: “(1) establishments primarily engaged in operating gas distribution systems (e.g., mains, meters); (2) establishments known as gas marketers that buy gas from the well and sell it to a distribution system; (3) establishments known as gas brokers or agents that arrange the sale of gas over gas distribution systems operated by others; and (4) establishments primarily engaged in transmitting and distributing gas to final consumers.” The SBA has developed a small business size standard for this industry, which is: all such firms having 500 or fewer employees. According to Census Bureau data for 2002, there were 468 firms in this category that operated for the entire year. Of this total, 424 firms had employment of fewer than 500 employees, and 18 firms had employment of 500 to 999 employees. Thus, the majority of firms in this category can be considered small.

84. Water Supply and Irrigation Systems. This economic census category “comprises establishments primarily engaged in operating water treatment plants and/or operating water supply systems.” The SBA has developed a small business size standard for this industry, which is: all such firms having $6.5 million or less in Annual receipts. According to Census Bureau data for 2002, there were 3,830 firms in this category that operated for the entire year. Of this total, 3,757 firms had annual sales of less than $5 million, and 37 firms had sales of $5 million or more but less than $10 million. Thus, the majority of firms in this category can be considered small.

85. The new rule concerns a cost allocation method that parties use in a formula when negotiating just and reasonable pole attachment rental rates. Application of the cost allocation rule is expanded but not altered from the cost allocation rule that parties currently use. The Commission expects the cost of complying with the revised cost allocation rule to be minimal, and compliance costs do not significantly differ from requirements in place before the adoption of this Order on Reconsideration.

86. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. Cost allocation methodologies used in pole attachment rate formulas are by nature the same for all entities that use them, regardless of size. No party suggested that the Commission develop alternative approaches to cost allocation based on entity size.

87. None.

88. Accordingly, it is ordered that pursuant to sections 1, 4(i), 4(j), 201(b), 224, 251(b)(4), and 303(r), of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 201(b), 224, 251(b)(4), 303(r), this Order on Reconsideration IS ADOPTED.

89. It is further ordered, pursuant to sections 1, 4(i), 4(j), 201(b), 224, and 303(r), of the Communications Act, as amended, as amended, 47 U.S.C. 151, 154(i), 154(j), 201(b), 224, 303(r), that the Petition for Reconsideration or Clarification filed by the National Cable and Telecommunications Association, COMPTEL, and tw telecom inc., is GRANTED to the extent indicated herein, and otherwise is DISMISSED.

90. It is further ordered that Part 1 of the Commission's rules IS AMENDED as set forth in Appendix A.

91. it is further ordered that, pursuant to sections 1.4(b)(1) and 1.103(a) of the Commission's rules, 47 CFR 1.4(b)(1), 1.103(a), this Order on Reconsideration shall be effective 30 days after publication of a summary in the Federal Register.

92. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 Subpart J as follows:

The American Samoa large vessel prohibited area (LVPA) extends seaward approximately 30-50 nm around the various islands of American Samoa (see 50 CFR 665.806(b)). Federal regulations restrict vessels 50 ft and longer from fishing for pelagic management unit species within the LVPA. The Council and NMFS established the LVPA in 2002 to prevent the potential for gear conflicts and catch competition between large and small fishing vessels. You may read more about the LVPA in the 2001 proposed rule (66 FR 39475, July 31, 2001) and 2002 final rule (67 FR 4369, January 30, 2002).

Since 2002, the American Samoa pelagic fisheries have changed such that the conditions that led the Council and NMFS to establish the LVPA are no longer present. The LVPA may be unnecessarily reducing the efficiency of the larger American Samoa longline vessels by displacing the fleet from a part of their historical fishing grounds.

To address the current fishery conditions, the Council recommended that NMFS allow federally permitted U.S. longline vessels 50 ft and longer to fish in portions of the LVPA. Specifically, this action allows large U.S. vessels that hold a Federal American Samoa longline limited entry permit to fish within the LVPA seaward of 12 nm around Swains Island, Tutuila, and the Manua Islands. NMFS will continue to prohibit fishing in the LVPA by large purse seine vessels. The fishing requirements for the Rose Atoll Marine National Monument also remain unchanged.

This action allows fishing in an additional 16,817 nm2 of Federal waters, allowing large longline vessels to distribute fishing effort over a larger area. This may reduce catch competition among the larger vessels and promote economic efficiency by reducing transit costs. This action is intended to improve the efficiency and economic viability of the American Samoa longline fleet, while ensuring that fishing by the longline and small vessel fleets remains sustainable on an ongoing basis. NMFS will continue to prohibit fishing by large longline vessels within the U.S. Exclusive Economic Zone (EEZ) from 3-12 nm around the islands, thus maintaining non-competitive fishing opportunities for the small-vessel longline fleet. You may find additional background information on this action in the preamble to the proposed rule published on August 25, 2015 (80 FR 51527).

The Council and NMFS will annually review the effects of this final rule on catch rates, small vessel participation, and sustainable fisheries development initiatives. Any future changes would be subject to additional environmental review and opportunity for public review and comment.

On August 25, 2015, NMFS published the proposed rule and draft environmental assessment (EA) for public comment (80 FR 51527). The comment period ended September 24, 2015. NMFS received comments from over 270 individuals, commercial and recreational fishermen, businesses, Territorial government offices (including the Governor of American Samoa and the American Samoa Department of Marine and Wildlife Resources), Federal agencies, and non-governmental organizations. NMFS responds to these comments below.

Comment 1: One commenter requested that NMFS extend the public comment period until after the Western Pacific Fishery Management Council's October 20-22, 2015, meeting in American Samoa.

Response: Under Section 304(b) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS is required to make regulations proposed through the Council process available for public review and comment for a period of 15 to 60 days. NMFS is satisfied that the public comment period of 30 days for this action provided the public with adequate notice and opportunity to be heard. In addition to this public comment period, NMFS and the Council also provided several other opportunities for public input prior to publication of the proposed rule through the Council process. Specifically, the Council provided public input opportunities at its 159th Council meeting held in Guam in March 2014, and at a public hearing in American Samoa in May 2014 (79 FR 22100, April 21, 2014). The Council also provided an opportunity for public input at its 160th Council meeting held in Honolulu in June 2014. At that meeting, the Council deferred action on the issue to hold additional public meetings, in January 2015, with representatives of the American Samoa government, Swains Island, Tutuila, Manua Islands, and American Samoa fishermen. At its 162nd Council meeting held in Honolulu in March 2015, the Council considered prior public input, provided another opportunity for public input, and made its final recommendation to NMFS as described in the proposed rule and implemented by this final rule. Thus, NMFS is satisfied that three full Council meetings, the January 15, 2015, public meetings, and the 30-day public comment period on the proposed rule provided the public with adequate notice and opportunity to be heard, and that granting an extension to the public comment period until after the Council's October 2015 meeting would yield no new comment or information not previously received.

Comment 2: Several commenters said that the American Samoa longline fishery provides food, jobs and supports local businesses and is important to the American Samoan economy.

Response: NMFS agrees that the American Samoa longline fishery is important to the American Samoa economy. According to information presented in the EA, the fishery contributed between $7.2 million and $13.7 million to the American Samoa economy between 2003 and 2013. The primary source of the fishery's economic contributions to the territory was from sales of fish to the two canneries in Pago Pago. Although estimates are not currently available, the fishing activity also supports the American Samoa economy by providing wages for captains, crew members and income for the vessel owners. Moreover, the preparations for each trip include the purchase of supplies, including fuel, food for crew, and other items, which are bought locally. Additionally, each vessel requires a variety of local services including but not limited to, electrical engineering, hydraulics, engine maintenance, and vessel repair, all of which contribute to the local economy.

Comment 3: Several commenters said that the large longline vessels are all vessels of the United States and should have the same right to fish in American Samoa waters as the small alia vessels.

Response: NMFS agrees that all federally permitted American Samoa longline vessels are vessels of the United States. Furthermore, NMFS believes that all fishing sectors should be treated equally, unless there is a legitimate conservation and management need to treat them differently. Here, NMFS is approving an action that exempts large longline vessels from an area that is currently restricted to them, but open to other fishing vessels, because the conditions that originally led to the restriction for the large longline vessels no longer exists. Specifically, NMFS and the Council established the LPVA in 2002 to separate small longline vessels from large longline and purse seine vessels, and reduce the potential for gear conflict and catch competition between small and large vessels. At that time, the American Samoa longline fishery consisted of about 40 small alia (small fishing catamarans less than 50 ft long) and 25 large conventional mono-hull longline vessels. However, since 2006, fewer than three alia have been operating on a regular basis; and of these, only one was active in 2013 and 2014.

As described in the EA, fewer than 50 other small commercial and recreational vessels fish for yellowfin and skipjack tunas and billfishes in nearshore waters and on offshore banks around American Samoa. Therefore, even accounting for the potential for competition with pelagic troll and recreational vessels, the conditions that led to the establishment of the LVPA in 2002 no longer support the full extent (30-50 nm) of the original prohibited area for longlining.

While the LVPA may benefit a few small alia vessels and these other fishing sectors, the LVPA may be further reducing the fishing efficiency of large longline vessels in combination with reduced catch per unit of effort (CPUE), lower sale price of fish, and increasing operational costs.

This action would allow large longline vessels in American Samoa to fish within the LVPA to as close as 12 nm of shore around Tutuila, Aunuu, the Manua Islands, and Swains. Waters from the shoreline to 12 nm around these islands, and within the Rose Atoll Marine National Monument, will remain closed to large longline vessels. This would continue to afford all other vessels and fishing sectors adequate spatial separation from the large vessel longline fleet and minimize the potential for catch competition and potential for gear interactions. This exemption applies only to large longline vessels of the United States that hold an American Samoa limited entry longline permit under 50 CFR 665.801.

Comment 4: Several commenters said they work and earn wages on longline vessels to support their families.

Response: Comment noted. See response to Comment 2.

Comment 5: Several commenters said the LVPA closure areas have been under-utilized by the alia longline fleet for more than 10 years.

Response: See response to Comment 3.

Comment 6: Several commenters noted that because fuel prices are now at an all-time low, reducing the cost of trips, including fuel cost is no longer a justification for this action.

Response: NMFS is approving an action to exempt large longline vessels from a portion of the existing LVPA because the conditions that led to the establishment of the closure are no longer present or necessary to prevent gear conflict and catch competition. Additionally, this action could improve efficiency in fishing activities by large longline vessels. While fuel price may currently be lower than in the past, it is subject to fluctuation due to multiple global and economic factors. Further, the success of longline fishing depends on being able to follow the fish, especially if they are abundant within the LVPA or pass into the LVPA. Because cost of fuel continues to be the principal expense for longline fishing, this action could improve trip profits by lowering fuel costs as large longline vessels could fish closer to port than currently allowed.

Comment 7: Several commenters noted that fuel prices fluctuate and allowing the large longline vessels to fish closer to home would result in a small cost savings in fuel.

Response: See response to Comment 6.

Comment 8: Several commenters said that the action would improve safety at sea for small fishing vessels because large vessels would now be in the vicinity to assist small vessels that get into trouble.

Response: Comment noted.

Comment 9: Several commenters said that there are higher catches and better catch rates of pelagic fish by recreational sectors in American Samoa compared to neighboring countries that do not have a LVPA and, therefore, opposed the action.

Response: Within the national waters of neighboring South Pacific countries, NMFS has no available information on the catch rates of pelagic species other than by longline and purse seine vessels. The available information for these fisheries indicates that catch rates for albacore have declined across most of the South Pacific, and the poor economic conditions faced by the American Samoa fleet were also experienced by most of the other longline fishing nations in the South Pacific. Through this action, NMFS expects that longline vessels will have the opportunity to improve catch rates that have been steadily declining, and to achieve optimum yield, while still maintaining a reduced area closure to protect the needs of other fishery participants, including recreational fishers.

Comment 10: Several commenters said that under the action, longline vessels would destroy coral reef ecosystem resources and breeding grounds for other fish species.

Response: While the commenter did not specify how longline vessels would destroy such marine resources, NMFS assumes that the commenter was referring to the potential for entanglement on coral reefs. NMFS notes that longline fishing in American Samoa does not occur over coral reefs, but rather much farther offshore and at depths (100-400 m) well below the photic zone where most coral reefs occur. Waters from the shoreline to 12 nm from shore will remain closed to large longline vessels, and there is little, if any, coral reef habitat beyond 12 nm. In addition, longliners actively avoid shallow coral reef habitat, including fish breeding grounds, in order to prevent gear loss through entanglement with the bottom substrate. The American Samoa longline fishery does not target nor incidentally catch coral reef fish species.

Comment 11: Several commenters said that longline fishing has dramatically reduced fish populations around American Samoa and that this action would result in overfishing and deplete fish stocks.

Response: NMFS disagrees. While the commenters did not identify the fish populations that have been reduced or would become subject to overfishing because of the action, the American Samoa longline fishery primarily targets albacore. The most recent stock assessment summarized in the EA indicates that this population is not subject to overfishing and is not overfished. Additionally, stock assessments for most species incidentally harvested in the fishery, including yellowfin, skipjack, and billfish indicate that these species are also not subject to overfishing or overfished. Bigeye tuna is incidentally harvested, and is subject to overfishing. Nevertheless, because tunas, billfish, and other species caught by the American Samoa longline fishery are comprised of larger highly migratory populations, NMFS does not expect this action to contribute to overfishing or localized depletion of these stocks. See also response to Comment 12.

Comment 12: Several commenters said that there are no data to support claims that the action would result in overfishing or have a detrimental effect on alia longline vessels or recreational sport fishing vessels.

Response: NMFS does not expect this action to result in overfishing of any pelagic species nor have a detrimental effect on alia longliners or sport fishing vessels. Skipjack and yellowfin together comprise about 95 percent of the troll catch, the primary fishing method of sport fishing vessels. Furthermore, catch rates of these two species show no signs of decline over a 30-yr period, which encompasses the period of expansion of the American Samoa longline fleet. South Pacific albacore, the primary target of both alia and large longline vessels, is not subject to overfishing and is not overfished. Similarly, skipjack and yellowfin are not subject to overfishing nor overfished, and NMFS does not expect this action to result in a change in the status of these species. Bigeye tuna in the western and central Pacific Ocean, which is incidentally harvested in the American Samoa fishery, is currently subject to overfishing, but is not overfished, and is managed under conservation and management measures adopted by the Western and Central Pacific Fisheries Commission, and implemented by NMFS. The American Samoa longline fishery annually landed fewer than 200 mt of bigeye tuna since 2005 with 85 mt landed in 2013.

Comment 13: Several commenters said that the action would result in a higher risk for oil spills and marine debris, but did not explain why.

Response: Based on available information presented in the EA, NMFS does not expect a change in the level of risk for oil spills or marine debris through this action. Allowing large longline vessels to fish within a portion of the LVPA will not lead to an increase in the number of vessels participating in the fishery or change vessel operations in a manner that would lead to greater discharge of oil or fuel into ocean waters. Further, the action does not present any greater danger of longline vessels grounding, or habitat damage compared to the status quo because there are no areas in the EEZ seaward of 12 nm shallow enough for a vessel to run aground.

Comment 14: One commenter felt that the action would endanger the survival of newly born humpback whale calves through entanglement and drowning.

Response: NMFS disagrees. Humpback whale calving and mother and calf pairs occur in shallow coastal waters within 12 nm, which would remain closed to large longline vessels. Beyond 12 nm, the movement of longline vessels will not change the amount of fishing effort or vessel operations and would not elevate the risk of entanglement. There have been no recorded or observed interactions with humpback whales in the American Samoa longline fishery.

Comment 15: Several commenters expressed the concern that public submissions on the action provided incorrect and/or misleading information regarding the regulatory protections for sea turtles and marine mammals in the action area, as well as impacts to these species by the American Samoa longline fishery. The commenters noted that NMFS has implemented regulations to protect marine resources, and they supported the action.

Response: Comment noted.

Comment 16: One commenter said that the action could affect the composition and character of the marine environment around American Samoa, including marine populations protected by the National Marine Sanctuary of America Samoa.

Response: While the commenter did not specify how the action would affect the composition and character of the marine environment, longline fishing by large longline vessels has been occurring since the mid-1990s within the area where the LVPA now exists. NMFS has no observed or reported information indicating that longline fishing from large longline vessels has resulted in negative impacts to the composition and character of the marine environment around American Samoa, either before or after the establishment of the LVPA in 2002. Because the action would continue to prohibit longline fishing by large vessels from occurring within 12 nm of American Samoa, NMFS does not expect the action would result in such changes.

The American Samoa longline fishery does not operate within the boundaries of the National Marine Sanctuary of America Samoa, which extends from the shoreline out to a distance of approximately 3 nm. The American Samoa longline fleet targets highly migratory pelagic species such as albacore at considerable distances from the shoreline seaward of the outer-boundary of the American Samoa sanctuary. Because the action continues to prohibit longline fishing by large vessels from occurring within 12 nm of American Samoa and within the Sanctuary, NMFS does not expect the action would affect marine populations protected by the sanctuary.

Comment 17: Several commenters said that although there are only a few active alia longline vessels, the action would make it even more difficult for small alia vessels to re-enter the fishery because they would not be able to compete economically with the large longline vessels.

Response: Alia fishing vessels operated for years before and after the arrival of large longline vessels in American Samoa in the 1990s. Based on information available, NMFS believes the reduced participation of the small alia vessels in the fishery was driven primarily by low catch rates of albacore experienced across the South Pacific region combined with high economic and other operating costs. See EA section 3.1.4.1.

The Council has been working with the American Samoa government on several fishery development initiatives, including the design of a new multi-purpose alia fishing vessel and training in fresh fish handling for local and export markets. Smaller, alia-type vessels are likely better suited to conduct fresh fish operations targeting yellowfin and bigeye tunas and, as such, would minimize the potential economic competition with larger longline vessels targeting albacore. Data indicates that gear competition between large longline and alia vessels has not been a contributing factor to the decline of alia vessels. Accordingly, NMFS has no reason to believe that the action will adversely affect reentry of fishery participants into the alia fishery. See also response to Comments 3 and 24.

Comment 18: Several commenters expressed concern that the action would be detrimental to the recreational fishery and the growing sportfish tourism industry in American Samoa.

Response: NMFS has no information to suggest that the action would adversely affect other fishery participants. NMFS and the Council established the LPVA in 2002 to separate small longline vessels from large longline and purse seine vessels, and reduce the potential for gear conflict and catch competition. At that time, the American Samoa longline fishery consisted of about 40 small alia and 25 large conventional mono-hull longline vessels. Since then, there has been an increase in participation by the recreational and sport fishing fisheries, which target species such as skipjack tuna, yellowfin tuna, mahimahi, wahoo and billfish. These species are only a minor component of the catch by American Samoa longline vessels. Information in the EA does not indicate longline fisheries are negatively affecting troll CPUE. Specifically the data showed that increased longline catches of skipjack and yellowfin are coincident with higher CPUEs of the same two species in the troll fishery. This suggests that the CPUEs for both fisheries are dependent on regional availability of skipjack and yellowfin tuna. Similar studies from other parts of the region and referenced in the EA showed no evidence of interactions and catch competition between troll and longline vessels. See also response to Comment 9.

Sport fishing vessels generally operate within 12 nm from shore and in offshore areas around banks and seamounts, which longline vessels actively avoid to reduce the potential for longline gear tangling on bottom substrates. Furthermore, sport fishing and subsistence fishing beyond 12 nm from shore does not occur at sufficient frequency or concentration to justify the continued restriction of large longline vessels out to the full 50 nm to control the potential for gear conflict or catch competition. Although NMFS allows recreational and non-commercial fishing within the Rose Atoll Marine National Monument beyond 12 nm with a federal permit, all commercial fishing, including longline fishing is prohibited throughout the monument out to a distance of approximately 50 nm around the atoll.

Comment 19: Several commenters thought that the action would affect the ability of recreational and subsistence fishermen to catch fish and feed their families.

Response: The commenters did not explain how the proposed action would affect their ability to catch fish. There is a wide variety of reef fish, deep bottomfish, and various pelagic species that will remain accessible exclusively for all fishermen with vessels smaller than 50 ft. NMFS does not expect the action would negatively impact the ability of these fishing sectors to catch fish for recreation or subsistence, as large longline vessels would continue to be prohibited from fishing within 12 nm around American Samoa.

Comment 20: Several commenters thought that allowing large longline vessels to fish on the banks and seamounts within the LVPA including South Bank, East Bank, Two Percent Bank, South East Bank, and North East Bank would deplete fish stocks and result in damage to bottom habitat.

Response: NMFS disagrees. See responses to Comments 10 and 11.

Comment 21: Several commenters said that existing federal regulations require American Samoa longline vessels to deploy all hooks below 100 m in depth to minimize interaction with sea turtles. Because of this existing gear regulation, longliners will avoid shallow banks and seamounts used by small vessels to minimize potential for gear loss.

Response: NMFS agrees. Federal regulations governing the American Samoa longline fishery at 50 CFR part 665 Subpart F require all longline hooks to be set at least 100 m deep. This is accomplished by requiring a minimum float line length of 30 m, together with a minimum of 70 m of blank mainline (no hooks) between each float line and the first branch line in either direction along the mainline. Both small and large longline vessels actively avoid bottom substrates to prevent gear entanglement and loss. See also response to Comment 10.

Comment 22: Several commenters said that albacore and other tuna species caught by the American Samoa longline fleet are highly migratory species and do not remain within the confines of the existing LVPA or the proposed exempted area and, therefore, there are no data to support public comments saying the longline fishery is detrimental to alia and sport fishing fleet.

Response: NMFS agrees. Not only do these pelagic species have an extensive migratory range, there are seasonal abundance trends that influence the catchability of these species throughout the year. This affects both large and small longliners. See also responses to Comments 11 and 18.

Comment 23: Several commenters felt that the action would result in gear conflicts between large longline vessels and small longline, troll, and recreational fishing vessels because NMFS and the Council underestimated the number of small vessels currently operating within the LVPA.

Response: A purpose in establishing the LVPA in 2002 was to separate small longline vessels from large longline and purse seine vessels to reduce the potential for gear conflict and catch competition. NMFS believes that the information presented by the Council and in the EA indicates that the conditions for the conservation and management need in establishing the LVPA no longer exist to the degree that requires its continuation. NMFS, moreover, believes that the 12 nm prohibition applied to large longline vessels provides adequate separation between small fishing vessels from the large longline and purse seine vessels, while still allowing for optimum yield for all fishing sectors.

Furthermore, the frequency and concentration of small alia longline vessels and small non-longline vessels fishing seaward of 12 nm is lower than that of the large longline vessels. Many of these small vessels are recreational and do not operate on a daily basis. The EA discusses the potential impacts of fishery participants, including impacts to the small vessel fleets and indicates this action will continue to provide for sufficient spatial separation between small and large vessels. The Council and NMFS used the best available information provided by the American Samoa Department of Marine and Wildlife Resources (DMWR) creel survey to estimate the number of vessels operating in the LVPA. See also response to Comment 18.

Comment 24: One commenter noted that two large local U.S. longliners already have permission to fish in the LVPA, and so there is nothing new about larger longline vessels fishing in the area.

Response: Comment noted. As part of the establishment of the LVPA regulations, NMFS exempted two individuals and their vessels from the LVPA restrictions on the basis that these individuals had made at least one landing of pelagic management unit species (MUS) with those vessels in the LVPA area on or prior to November 13, 1997. See 50 CFR 665.818. NMFS has no information that the activity of these two vessels has created gear conflicts or affected the catches of smaller vessels within the LVPA.

Comment 25: Several commenters thought that the action would negatively affect the American Samoan Government's plan to build a fleet of 40 ft super alia intended to increase local indigenous Samoan participation in fishing in the LVPA.

Response: Based on information provided in comments submitted by the Government of American Samoa, the government has received a technical assistance grant from the U.S. Department of the Interior for the development of a prototype-fishing vessel called a super alia. Because the vessel has yet to be designed, constructed, or tested, and because additional capital would be required to build a fleet of these super alia envisioned under the Government's plan, NMFS cannot predict what changes, if any, may occur in the commercial fisheries because of this grant. However, the Council and NMFS are prepared to work with the Government of American Samoa to address potential regulatory and other impediments to sustainable fisheries development initiatives, once a super alia fleet is fully developed and the Government of American Samoa's alia program is implemented.

Comment 26: Several commenters said that a super alia fishing fleet is not realistic because fishermen will run into the same problems the previous alia fleet experienced, including high operation costs for longline gear, fuel, and bait.

Response: Comment noted. See responses to Comments 17 and 25.

Comment 27: Several commenters noted that in the Deed of Cession with the chiefs of the islands of Tutuila, Aunuu, and Manua Islands, the United States promised to protect the lands, preserve the traditions, customs, language and culture, Samoan way of life, and the waters surrounding the islands, and that all the science and environmental analysis should not supersede the rights of the people of these islands.

Response: NMFS' decision to approve the Council's recommendation to modify the LVPA is consistent with its authority under the Magnuson-Stevens Act to manage fishery resources in the U.S. EEZ. This action relieves an area restriction that applied to certain large commercial fishing operators within a portion of the US EEZ (generally 12 to 50 nm from shore), based on NMFS' determination that the restriction no longer serves the conservation and management purposes for which it was developed. Importantly, this action preserves full access to these waters by smaller vessels, including alias, sport fishers, and artisanal fishing vessels, throughout the EEZ, as authorized under the existing American Samoa Archipelagic Fishery Ecosystem Plan and implementing regulations. Further, this action does not alter the authority of American Samoa to manage its coastal fisheries to the extent authorized under the Magnuson-Stevens Act, 16 U.S.C. 1856.

NMFS took particular care to ensure that the views of American Samoa stakeholders, including fishermen, fishing communities, and the American Samoa government, were solicited and taken into account throughout the development of this action. Consistent with the Magnuson-Stevens Act, the Council and NMFS provided a number of opportunities for American Samoa's participation during all material phases of the development of this measure, including Council meetings to discuss the amendment, the Coastal Zone Management Act (CZMA) process, and public meetings held in American Samoa (see response to Comment 1).

Comment 28: One commenter expressed support for the purse seine fleet.

Response: Comment noted. This action does not change the existing prohibitions against purse seine fishing in the LVPA.

Comment 29: One commenter felt that the action is based on incomplete data because the Council based its decision solely on the decrease of the alia longline fishing activities, and did not consider fishing activities by troll and bottomfish vessels.

Response: NMFS disagrees that the Council did not consider troll and bottomfish vessels. The EA contains detailed description of fishing sectors of American Samoa, including catch and effort by the troll and bottomfish fisheries, and other small boat fisheries. See response to Comment 23.

Comment 30: One commenter said the Council did not adequately consult with stakeholders prior to recommending the proposed action at its 162nd meeting in March 2015.

Response: See response to Comment 1.

Comment 31: One commenter thought that the proposed action ignores the fact that there are significant fishing activities in the exemption areas, especially in the vicinity near the banks.

Response: NMFS disagrees. The EA identifies the types of fisheries that occur within the LVPA around American Samoa, including the alia longline fishery, troll and bottomfish fishery, and recreational fisheries. The EA also describes the number of vessels in each fishery, and provides catch and effort information and fishing location, where data is available. Moreover, the EA also provides an estimate of troll catch from the offshore banks as a percentage of total troll catch of American Samoa and analyzes the effects of the action on those fishing sectors.

Comment 32: One commenter felt that NOAA should increase the collection of information about seabirds and other protected species, by expanding current observer coverage as this fishery expands in size and area.

Response: NMFS strives to maintain an annual observer coverage rate of at least 20 percent in the American Samoa longline fishery, and has steadily increased observer coverage from approximately 6 percent in 2006 to nearly 20 percent in 2014. In some years, NMFS has been able to cover over 33 percent of all longline trips in the American Samoa longline fishery. However, NMFS' ability to increase and maintain observer coverage greater than 20 percent will be subject to available funding. NMFS also notes that the fishery may not increase in the total number of vessels because the number of available fishing permits is limited.

Comment 33: One commenter thought that, although the action would not alter fishing activities within the Rose Atoll Marine National Monument, the change may result in greater likelihood and frequency of derelict fishing gear washing ashore and recommends NMFS include measures to minimize derelict fishing gear.

Response: NMFS is unaware of any instances where such an event has occurred. Based on information provided in the USFWS Rose Atoll National Wildlife Refuge Comprehensive Conservation Plan (May 2014), the most significant derelict fishing gear is from the grounding of a Taiwanese vessel, which occurred in 1993, over 20 years ago. The plan also notes that observations of other forms of marine debris at Rose Atoll are rare, and do not constitute a significant visual presence in the atoll. NMFS does not expect this action to change the amount of fishing effort or other vessel operations, and is unlikely to increase frequency of derelict gear. For these reasons, NMFS is satisfied that additional measures to minimize derelict fishing gear from American Samoa longline fisheries are unnecessary at this time.

Comment 34: One commenter said that NMFS should not open a currently closed area without a full environmental impact statement and additional sea turtle mitigation measures, including increased observer coverage and hard interaction limits.

Response: Based on the analysis presented in the EA, NMFS has determined that the proposed action would not result in significant impacts affecting the quality of the human environment and, therefore, does not warrant the preparation of an environmental impact statement. The analysis presented in the EA incorporates the best available scientific and commercial information on the fishery and its impacts on the environment, including sea turtles. Specifically, along with other relevant information, the EA considers the analysis from an October 30, 2015, biological opinion (2015 BiOp) that NMFS developed as part of a formal consultation under the Endangered Species Act. (See also responses to Comments 35-37).

Although participation and effort in the American Samoa longline fishery has varied and declined in recent years, NMFS expects that the level of participation, in terms of fleet-wide sets and hooks deployed, likely will return to historic levels. For this reason, the analysis in the 2015 BiOp anticipated the American Samoa longline fishery operating up to the level seen in 2007 when 29 vessels deployed 5,920 sets and approximately 17,554,000 hooks, and evaluated the potential environmental effects of the fishery operating at these levels. Additionally, NMFS anticipates the continued placement of observers on approximately 20 percent of all longline trips.

In the 2015 BiOp, NMFS concluded that the continued operation of the American Samoa longline fishery under existing federal regulations, and effort levels expected under the proposed action, is not likely to jeopardize the continued existence of any ESA-listed species, including sea turtles. NMFS based this conclusion on a thorough assessment of the effects of the action, together with the environmental baseline and the cumulative effects. The EA analysis considered the information presented in the 2015 BiOp and found that the expected level of fishery interactions under the proposed action would not result in significant population level effects for any ESA-listed species or their habitats, including sea turtles.

Comment 35: One commenter said that, based on its calculations from information contained in the draft EA, the American Samoa longline fishery has killed approximately three adult female leatherback sea turtles each year for four years.

Response: NMFS disagrees with the commenter's conclusion about leatherback mortality in the action. At the time that NMFS published the proposed rule, the agency was undergoing consultation pursuant to Section 7 of the ESA for the American Samoa pelagic longline fishery. As part of the consultation process, NMFS prepared a memorandum dated May 8, 2015, (amended July 21, 2015) under the authority of sections 7(a)(2) and 7(d) of the ESA for the proposed continued operation of the fishery while consultation was ongoing. The draft EA incorporated information on the estimated leatherback take from this memorandum, and projected that, by the completion of consultation in October 2015, the longline fishery could be expected to interact with 27 leatherbacks, the equivalent of one adult nesting female mortality every 1.566 years. Since publication of the proposed rule, NMFS completed the 2015 BiOp, which considered all relevant commercial and scientific information available on sea turtles, and which supersedes the information in the May 8, 2015 memorandum as amended on July 21, 2015. NMFS' final EA considers the information found in the 2015 BiOp.

In the 2015 BiOp, NMFS estimated anticipated future interactions between the fishery and leatherbacks sea turtles. NMFS used previous, observed interactions and anticipated effort in the fishery to predict the future level of take. NMFS then used a discounting methodology to analyze the impact of this level of take on the leatherback population.

NMFS based the interaction estimates in the BiOp on a random sample of longline trips on which scientific observers are deployed. Relying on Table 7 of the 2015 BiOp, NMFS estimates 36 total leatherback interactions between 2011 and mid-2015 (based on eight observed interactions). NMFS used these interactions to calculate an average rate of interaction. That was then multiplied by the anticipated annual effort in the fishery to determine that 23 leatherback interactions are anticipated annually. NMFS then applied a leatherback mortality rate of 70.6, based on observed mortalities, injuries, and applying the NMFS post-hooking mortality criteria (Ryder et al. 2006).

Accordingly, NMFS anticipates 23 interactions to result in 16.28 (23 × 0.76 = 16.28) leatherback sea turtle mortalities. However, many of these interactions occur with juvenile sea turtles that already experience low survival rates even in the absence of fishing. Therefore, NMFS must apply a discount to the expected rate of annual interactions in order to estimate the risk that the proposed action would pose to the western Pacific leatherback sea turtle population.

NMFS first estimated the number of adult females or adult nester equivalents (ANE) harmed through injury or death related to the fishery. The American Samoa longline fishery interacts with male and female leatherback sea turtles, and they are predominantly juveniles (Van Houtan 2015). To estimate the number of adult females that could potentially be killed by 23 interactions, two adjustments were applied to the calculation above: (1) The proportion of females in the adult population (using a ratio of 65 percent females to 35 percent males); and (2) the adult equivalent represented by each juvenile interaction. The adult equivalent was determined using the discounting method (Van Houtan 2013, 2015). This discounting method summarized in the 2015 BiOp incorporates an exact demographic match to the observed interactions, and relies on length measurements by fishery observers of bycaught turtles, and conversion of these recorded lengths to ages. Therefore, of the estimated 16.28 leatherback sea turtle mortalities, NMFS estimates 10.58 would be females (16.28 × 0.65 = 10.58). Applying the adult equivalent discounting method (Van Houtan 2013, 2015), NMFS estimates 23 leatherback interactions would result in the mortality of 0.55 adult females annually, or one adult female mortality every 1.8 years from a nesting population of 2,739 females (Van Houtan 2015). This represents less than 0.0002, or 0.02 percent of the nesting population in the region. NMFS considers this level of impact to the population to be negligible, and it will not adversely affect the species' ability to survive, successfully reproduce, and recover.

NMFS believes that the commenter made several assumptions in the calculations that led to a flawed conclusion on sea turtle mortality. The commenter assumed, for instance, an observer coverage rate of 20 percent over the four-year period, and then apparently multiplied the observed number of injured and killed since 2010 by a factor of five. The commenter incorrectly applied the NMFS post-hooking mortality criteria of 70.6 percent (Ryder et al. 2006) to the expanded number of injured turtles.

The mortality rate is an average rate where mortality is 100 percent and injuries are assessed at a rate between 0 and 100 percent, based on the observed hooking or entanglement injuries and using the NMFS post-hooking mortality criteria (Ryder et al. 2006). Therefore, the mortality rate of 70.6 percent already accounts for all observed mortalities. Thus, applying this rate to the expanded, injured turtle count is an incorrect use of the mortality rate. Furthermore, the mortality rate of 70.6 percent is a conservative mortality rate because NMFS did not separate out the larger turtles from the younger, smaller turtles that have a much higher mortality rate. The five smaller turtles were boarded dead (a mortality rate of 100 percent) and the three larger turtles that were not boarded had a mortality rate of 21.7 percent. When using these individual mortality rates in the ANE calculation, the ANE is 0.33 rather than 0.55. While NMFS provided exact measurements for two turtles, it is incorrect to assume the other turtles were adults. In fact, the fishery predominantly interacts with juvenile turtles; of the eight observed interactions with leatherbacks in this fishery, five were juveniles and three were adults.

NMFS, therefore, believes that the data and analysis contained in the 2015 BiOp and EA are the best available science on which to base determinations of the impact by the fishery to protected marine species.

Comment 36: One commenter said that the draft EA does not adequately discuss the impacts to endangered leatherback sea turtles from the fishery and its expansion into the LVPA.

Response: The analysis presented in the final EA incorporates the best available scientific and commercial information on the fishery and considers the 2015 BiOp, which NMFS developed as part of a formal consultation under the Endangered Species Act. The analysis in the 2015 BiOp indicates that under the proposed action the fishery could potentially interact with 23 leatherback sea turtles each year. Genetic analysis of three leatherback turtles caught incidentally in the American Samoa longline fishery indicate that they are from the Western Pacific genetic stock, which is comprised of nesting populations in Papua-Barat, Indonesia, Papua New Guinea and Solomon Islands.

Based on the analysis in the 2015 BiOp, NMFS estimates the longline fishery would cause 0.55 adult female mortalities annually. This is the equivalent of one adult female mortality every 1.8 years from a nesting population of 2,739 females in the Western Pacific population. (Van Houtan 2015). This represents less than 0.0002 (0.02 percent) of the nesting population in the region. In the 2015 BiOp, NMFS concluded that this anticipated level of interactions and associated adult female mortalities under the proposed action is not likely to jeopardize the continued existence of leatherback sea turtle populations. The analysis in the EA further indicates that 0.55 adult female mortalities annually or 1.65 adult female mortalities over a 3-yr period is not likely to pose an appreciable risk or result in significant impacts to leatherback sea turtle populations in the Western Pacific region.

Comment 37: One commenter said that the draft EA failed to assess adequately the proposed action and several upcoming actions all of which will increase risk of interactions with sea turtles. First, the proposed action will allow large longline vessels into pelagic habitat around American Samoa most likely occupied by leatherback sea turtles. Second, the proposed rule will increase fishing effort as measured by area of the activity and by hooks deployed. Finally, the proposed action's risk of increasing interactions must be considered with the Council approved amendments that create a shallow-set longline fishery by eliminating the depth requirement for hooks and increasing the swordfish retention trip limit.

Response: As discussed in response to comment 34, the final EA considers analysis presented in the 2015 BiOp, which estimates population level impacts to sea turtle populations resulting from the proposed action and in anticipation of increased fishing effort in coastal areas. After analyzing the proposed action, including the environmental baselines and cumulative effects, and its impact on protected species, NMFS concluded in the 2015 BiOp that the action is not expected to cause an appreciable reduction in the likelihood of both the survival and recovery of leatherback sea turtles in the wild, or other protected species in the action area. The final EA includes this information. In addition to impacts on protected resources, the final EA also analyzed whether the action would significantly affect the human and natural environment. Based on the analysis, NMFS determined that the impacts of the action were not significant (see Section 4 of the final EA). NMFS has no information to believe that the partial reopening of an area currently closed to longlining will result in unacceptable impacts to sea turtles or other protected species.

The targeting of swordfish generally requires deployment of hooks shallower than 100 meters. However, as described in the draft EA, current federal regulations require all hooks set by the fishery to be set deeper than 100 meters in order to minimize the risk of sea turtle interaction. Thus, current federal regulations prohibit American Samoa longline vessels from targeting swordfish with hooks set shallower than 100 meters in the American Samoa EEZ.

NMFS notes that the Council has taken action to recommend creating a shallow-set longline fishery in American Samoa. The Council, however, has not yet developed an amendment or associated environmental impact analyses describing such a fishery. Should the Council propose that action as an amendment, NMFS would conduct all necessary analyses to determine whether the action complies with the Magnuson-Stevens Act and all applicable laws. At this time, however, NMFS is satisfied that the final EA adequately assesses the cumulative impact of the Council action and all reasonably foreseeable actions.

In this final rule, NMFS made minor housekeeping changes in the tables of boundary coordinates in § 665.818(b). In the proposed rule, NMFS had labeled the points for each coordinate with simple numbers. Using the same numbers for each table could lead to confusion among fishermen and enforcement officials, so in this final rule, NMFS added prefixes for boundary point labels that are different for each island or island group. Specifically, the Tutuila coordinates carry the prefix “TU-,” the Manua coordinates carry the prefix “MA-,” and the Swains coordinates carry the prefix “SW-.”

Also in the proposed rule, in the table of boundary coordinates for Swain's Island at § 665.818(b)(3), NMFS only listed degrees and minutes in defining the latitude and longitude for each coordinate, and inadvertently omitted the seconds. In this final rule, NMFS corrects that omission by including degrees, minutes, and seconds for each boundary coordinate.

The final rule also corrects the first instance of the coordinate for MA point 1. The proposed rule listed the W. long. coordinate as 169°53′7″. The final rule corrects the seconds so that the W. long. coordinate is now 169°53′37″.

This final rule also clarifies that the datum used to define the boundary coordinates in § 665.818(b) is the World Geodetic System 1984 (WGS84).

The Regional Administrator, Pacific Islands Region, NMFS, has determined that this final rule is necessary for the conservation and management of the pelagic fisheries of American Samoa, and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. NMFS published the factual basis for the certification in the proposed rule and does not repeat it here. NMFS received no comments on this certification; as a result, a regulatory flexibility analysis is not required, and none has been prepared.

Because this rule relieves a restriction by increasing the geographical area where fishing is allowed, it is not subject to the 30-day delayed effectiveness provision of the APA pursuant to 5 U.S.C. 553(d)(1). Since 2002, NMFS has prohibited pelagic longline fishing by large U.S. vessels in the LVPA, which extended seaward approximately 30-50 nm around the various islands of American Samoa. At that time, the Council and NMFS intended the LVPA to prevent gear conflicts and catch competition between large and small fishing vessels. Since 2002, however, the conditions that led to the establishment of the LVPA in 2002 no longer support the full extent (30-50 nm) of the original prohibited area for longlining. The LVPA may be unnecessarily reducing the efficiency of the larger vessels by displacing them from a part of their historical fishing grounds. This action will allow large vessels to fish within the LVPA to as close as 12 nm around the islands. The action adds about 16,817 nm2 of Federal waters that are accessible to these vessels. By allowing access to some of the previously restricted area, the action will improve the efficiency and economic viability of the American Samoa longline fleet.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

For the reasons set out in the preamble, NMFS amends 50 CFR part 665 as follows:

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season allowance of the 2016 total allowable catch (TAC) of pollock in Statistical Area 610 of the GOA is 3,827 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015) and inseason adjustment (81 FR 188, January 5, 2016).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2016 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,727 mt and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 28, 2016.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season apportionment of the 2016 Pacific cod total allowable catch (TAC) specified for vessels using jig gear in the BSAI is 1,887 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and inseason adjustment (81 FR 184, January 5, 2016).

The 2016 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 meters(m)) length overall (LOA) using hook-and-line or pot gear in the BSAI is 4,476 mt as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and inseason adjustment (81 FR 184, January 5, 2016).

The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 1,750 mt of the A season apportionment of the 2016 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(1). Therefore, in accordance with § 679.20(a)(7)(iv)(C), NMFS apportions 1,750 mt of Pacific cod from the A season jig gear apportionment to the annual amount specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

The harvest specifications for Pacific cod included in the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and inseason adjustment (81 FR 184, January 5, 2016) are revised as follows: 137 mt to the A season apportionment and 1,394 mt to the annual amount for vessels using jig gear, and 6,226 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from jig vessels to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 28, 2016.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The A season allowance of the 2016 Pacific cod total allowable catch (TAC) apportioned to vessels using pot gear in the Central Regulatory Area of the GOA is 6,528 metric tons (mt), as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015) and inseason adjustment (81 FR 188, January 5, 2016).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2016 Pacific cod TAC apportioned to vessels using pot gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 6,518 mt and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Central Regulatory Area of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod for vessels using pot gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 28, 2016.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.