Review of the Commission's Assessment and Collection of Regulatory Fees, 58297-58300 [2022-20711]

Download as PDF Federal Register / Vol. 87, No. 185 / Monday, September 26, 2022 / Proposed Rules ‘‘Large Municipal Waste Combustor Units Subject to 40 CFR part 60, subpart Eb,’’ which regulate emissions and emissions testing for large and small MWCs. The EPA has made, and will continue to make, these documents generally available through https:// www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). X. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a State Plan submission that complies with the provisions of the Act and applicable Federal regulations. See Clean Air Act sections 111(d) and 129(b); 40 CFR part 60, subparts B and Cb; and 40 CFR part 62, subpart A; and 40 CFR 62.04. Thus, in reviewing state plan submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action: • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would VerDate Sep<11>2014 16:19 Sep 23, 2022 Jkt 256001 be inconsistent with the Clean Air Act; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rulemaking is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). List of Subjects in 40 CFR Part 62 Environmental protection, Air pollution control, Administrative practice and procedure, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides, Waste treatment and disposal. Dated: September 15, 2022. David Cash, Regional Administrator, EPA Region 1. [FR Doc. 2022–20379 Filed 9–23–22; 8:45 am] BILLING CODE 6560–50–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [MD Docket 22–301; FCC 22–68; FRS ID 105135] Review of the Commission’s Assessment and Collection of Regulatory Fees Federal Communications Commission. ACTION: Request for comments. AGENCY: In this document, the Federal Communications Commission (Commission) seeks further comment on the Commission’s methodology for allocating indirect full-time equivalents (FTEs), previously raised in the Commission’s Fiscal Year (FY) 2022 Notice of Proposed Rulemaking (FY 2022 NPRM), FCC 22–39, MD Docket Nos. 21–190, 22–223, adopted on June 1, 2022 and released on June 2, 2022. DATES: Comments are due on or before October 26, 2022 and reply comments are due on or before November 25, 2022. ADDRESSES: Interested parties may file comments and reply comments SUMMARY: PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 58297 identified by MD Docket No. 22–301, by any of the following methods below. • Electronic Filers: Comments may be filed electronically using the internet by accessing ECFS: https://www.fcc.gov/ ecfs. • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. • Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554. For detailed instructions for submitting comments, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Roland Helvajian, Office of Managing Director at (202) 418–0444. SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s Notice of Inquiry (NOI), FCC 22–68, MD Docket No. 22–301, adopted on September 1, 2022 and released on September 2, 2022. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 45 L Street NE, Washington, DC 20554, and may also be purchased from the Commission’s copy contractor, BCPI, Inc., 45 L Street NE, Washington, DC 20554. Customers may contact BCPI, Inc. via their website, https://www.bcpi.com, or call 1–800– 378–3160. This document is available in alternative formats (computer diskette, large print, audio record, and braille). Persons with disabilities who need documents in these formats may contact the FCC by email: FCC504@fcc.gov or phone: 202–418–0530 or TTY: 202–418– 0432. Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID–19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20–304 (March 19, 2020). https://www.fcc.gov/document/fcccloses-headquarters-open-window-andchanges-hand-delivery-policy. During E:\FR\FM\26SEP1.SGM 26SEP1 58298 Federal Register / Vol. 87, No. 185 / Monday, September 26, 2022 / Proposed Rules the time the Commission’s building is closed to the general public and until further notice, if more than one docket or rulemaking number appears in the caption of a proceeding, paper filers need not submit two additional copies for each additional docket or rulemaking number; an original and one copy are sufficient. Ex Parte Rules. This proceeding shall be treated as a ‘‘permit-but-disclose’’ proceeding in accordance with the Commission’s ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule § 1.1206(b). In proceedings governed by rule § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules. I. Synopsis 1. In this document, the Commission seeks further comment on its methodology for allocating indirect FTEs, as raised in the FY 2022 NPRM (87 FR 38588, June 28, 2022). While we found above that the record supported a limited correction to the method used VerDate Sep<11>2014 16:19 Sep 23, 2022 Jkt 256001 for calculating the fees associated with certain indirect FTEs in the Universal Service Fund context, we seek to more broadly explore these issues outside of the short timeframe necessitated by the annual regulatory fee proceeding. The responses we receive will help us determine if there are lines of inquiry worth exploring in order to further revise our methodology. Finally, we hope that the comments and replies will allow interested parties to gain a better understanding of the regulatory fee process and the issues of importance to the various groups affected by our regulatory fee policies. 2. Historically, the Commission assesses the allocation of FTEs by first determining the number of non-auctions direct FTEs in each ‘‘core bureau’’ (i.e., the Wireless Telecommunications Bureau, the Media Bureau, the Wireline Competition Bureau, and the International Bureau) and then attributing all other non-auctions Commission FTEs as indirect. The direct FTEs within each core bureau are then attributed to regulatory fee categories based on the nature of the FTE work. We expect that the work of the non-auctions direct FTEs in the four core bureaus will remain focused on the industry segment regulated by each of those bureaus. For this reason, the Commission starts with direct FTE counts in the core bureaus and then potentially adjusts fees to reflect other factors related to the payor’s benefits. 3. We initially seek comment on whether we should expand the definition of ‘‘core bureau’’ to include other bureaus and offices within the Commission. Commenters should discuss the additional offices or bureaus we should consider ‘‘core’’ for regulatory fee purposes and why. We encourage commenters to review both the function and delegations of each office when considering this question. Is the work of the office or bureau focused on a specific industry segment regulated by that office or bureau? If so, what is the industry segment? Is the office or bureau responsible for regulating other work not related to a specific industry segment? Commenters should address whether expanding the Commission’s definition of ‘‘core bureau’’ is feasible, administrable, sustainable, and consistent with section 9 of the Communications Act of 1934 (Act). 4. Unlike the work of direct FTEs, the work of FTEs designated as indirect benefits the Commission and the industry as a whole and is not specifically focused on the regulatees and licensees of a core bureau. Thus, indirect FTEs generally work on a wide variety of issues which may include PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 services that are not specifically correlated with one core bureau, let alone one specific category of regulatees. Further, much of the work that could be assigned to a single category of regulatees is likely to be interspersed with the work that indirect FTEs perform on behalf of many entities that do not pay regulatory fees, e.g., governmental entities, non-profit organizations, and regulatees that have an exemption. In addition to the fact that indirect FTEs work on matters that are not specific to any regulatory fee category, many Commission attorneys, engineers, analysts, and other staff work on a variety of issues even during a single fiscal year. Due to the variety of issues handled by many indirect FTEs, analyzing the work of such indirect FTEs for regulatory fee purposes and basing regulatory fees on specific assignments during any snapshot or incremental period of time, such as a year or two, would result in significant unplanned shifts in regulatory fees as assignments change. 5. In calculating regulatory fees, the Commission allocates indirect FTEs proportionally based on the allocation percentage of direct FTEs of each core bureau. In essence, if a core bureau’s contribution to the regulatory fee burden is calculated to be 40%, then it is also responsible for 40% of the indirect costs. Commenters argue that this results in regulatory fee payors paying being unfairly burdened by costs of FTEs that do not directly provide oversight and regulation to such fee payors. We seek comment on whether the Commission should change its current methodology for calculating regulatory fees to minimize burdens on certain regulatory fee payors, while still collecting the entire appropriation, as required by section 9 of the Act. To the extent that commenters support amending the methodology, the proposals made must allow for the full collection of our annual appropriation. In other words, a proposed system that only provides that regulatees pay fees for the direct time of staff in the core bureaus would be per se contrary to our statutory mandate. Comments filed in the Notice of Inquiry docket proposing such amendments should provide full scale examples of the potential changes to the current methodology and explain how those changes would be consistent with section 9 of the Act. 6. As discussed above, we find that broadcasters should not be required to pay for a portion of the 38 indirect FTEs working on Universal Service Fund issues that are in the Wireline Competition Bureau but are designated as indirect FTEs. Although we affirmed E:\FR\FM\26SEP1.SGM 26SEP1 Federal Register / Vol. 87, No. 185 / Monday, September 26, 2022 / Proposed Rules the Commission’s previous finding in 2017 that these 38 FTEs were properly allocated as indirect FTEs for regulatory fee purposes, are there indirect FTEs that commenters believe should be considered direct FTEs for regulatory fee purposes? For example, in FY 2019, the Commission reassigned staff from other bureaus and offices to the Office of Economics and Analytics, effective December 11, 2018. This resulted in the reassignment of 95 FTEs (of which 64 were not auctions-funded) as indirect FTEs. The Commission also reassigned Equal Employment Opportunity enforcement staff from the Media Bureau to the Enforcement Bureau, effective March 15, 2019, resulting in a reduction of seven direct FTEs in the Media Bureau. These reassignments resulted in a reduction in direct FTEs in the Wireline Competition Bureau (from 123 FTEs to 100.8 FTEs), Wireless Telecommunications Bureau (from 89 FTEs to 80.5 FTEs), and Media Bureau (from 131 FTEs to 115.1 FTEs). In 2013, the Commission allocated all International Bureau FTEs except for 28 as indirect. Should we reconsider these assignments and now consider these FTEs direct FTEs in a core bureau instead of indirect? Commenters should discuss whether this allocation is still reasonable. Should we re-evaluate the number of direct and indirect FTEs in the International Bureau? For each category of FTE a commenter proposes to be reassigned, the commenter should explain how such reassignment is appropriate under both the Communications Act and also the body of precedent relating to federal agency fee setting. If these reassignments are still appropriate, should we consider other corrections to our fee calculation methodology, as we did in the Universal Service Fund context? 7. As indicated in the FY 2022 NPRM, early in each fiscal year, the Commission receives FTE data from its Human Resources Office, and identifies FTE data at the core bureau level (i.e., direct FTEs), which are then used to determine the FTE allocations for the four core bureaus. These FTE data are then filtered down to the various fee categories within each core bureau based on the fee category percentages for each bureau. We encourage commenters in looking at the question to consider how indirect FTE time devoted to work on one or more regulated services could be considered direct FTE time. How should time be calculated for purposes of regulatory fees if FTE time is devoted to issues involving different regulated services at the same time (e.g., voice services)? VerDate Sep<11>2014 16:19 Sep 23, 2022 Jkt 256001 8. Commenters should also consider that indirect FTEs may be difficult to disaggregate in a manner that is easy to administer and transparent with respect to how it applies to certain regulated services. For example, a complex enforcement investigation involving a space station operator could result in many Enforcement Bureau indirect FTEs working on space station issues on a temporary basis instead of on other issues. Would allocating those indirect FTEs as direct FTEs for the International Bureau unfairly increase the regulatory fees for all space station licensees or all International Bureau regulatees for that fiscal year? Is there a way to disaggregate the time indirect FTEs may spend on issues associated with core bureaus in a way that would not result in significant regulatory fee increases from year to year? Taking into consideration practical limits on what the Commission may accomplish using existing systems and also limited staff time, how frequently should FTE time be analyzed for reassessments of the work done by indirect FTEs? 9. Other indirect FTEs may not be able to disaggregate the issues that they handle or may work on matters that do not correlate with any particular regulated service. Commenters who advocate analyzing the indirect FTE time to determine if their time can be allocated to specific regulated services should explain how to address indirect FTE time that cannot be specifically disaggregated into work performed for certain regulated services. SIA observes that the current indirect FTE allocation method is appropriate for certain noncore bureaus and offices, such as the Office of the General Counsel. Are there other bureaus and offices that commenters consider to be more appropriately designated as indirect? State Broadcasters Associations suggest that the Commission adopt a third classification of intersectional FTEs to avoid unfair burdens on broadcasters. SIA suggests an alternative allocation mechanism for indirect FTEs in cases where the work is not always proportional. Commenters should also specifically address these alternatives to the Commission’s current methodology. Commenters should explain how we could implement these alternative suggestions, consistent with section 9 of the Act. Moreover, commenters should consider if such changes might result in a more complicated fee system that nevertheless results in the setting similar fee amounts but requires more time and Commission resources to manage. 10. One commenter, the State Broadcasters Associations, suggest that PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 58299 the Commission adopt a third classification of intersectional FTEs. SIA suggests an alternative allocation mechanism for indirect FTEs in cases where the work is not always proportional. Commenters should also specifically address these alternatives to the Commission’s current regulatory fee methodology. Commenters should explain how we could implement these alternative suggestions, consistent with section 9 of the Act. Moreover, commenters should consider if such changes might result in a more complicated fee system that nevertheless results in the setting similar fee amounts but requires more time and Commission resources to manage. 11. Commenters advocating allocating indirect FTEs as direct for regulatory fee purposes should explain how we should assess FTE time in order to make the reallocation. Commenters are encouraged to consider practical aspects of FTE time. For example, how should FTEs devoted to administrative matters, such as releasing and posting Commission and Bureau level items, be categorized? Should such FTE time be considered indirect, or should each released item be analyzed to determine to which core bureau it is associated? How should FTE time devoted to matters encompassing voice issues (i.e., wireless and wireline, including VoIP) be characterized? Is there a fair way to allocate such FTE time among or between bureaus or should that FTE time be considered indirect? We note that our regulatory fee methodology must be consistent with the requirements of section 9 of the Act that ‘‘fees reflect the full-time equivalent number of employees within the bureaus and offices of the Commission.’’ Commenters should recognize that cherry picking certain groups of FTEs from indirect bureaus and offices and reassigning them as direct FTEs for regulatory fee purposes could result in a less equitable methodology overall and achieve a result inconsistent with their intention of reducing their regulatory fees. Finally, commenters should recognize that any new methodology they propose must be consistent with section 9 of the Act, fair, administrable, and sustainable. II. Ordering Clause 12. Accordingly, it is ordered that, pursuant to the authority found in sections 4(i) and (j), 9, 9A, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, 159A, and 303(r), the Notice of Inquiry is hereby adopted. E:\FR\FM\26SEP1.SGM 26SEP1 58300 Federal Register / Vol. 87, No. 185 / Monday, September 26, 2022 / Proposed Rules Federal Communications Commission. Katura Jackson, Federal Register Liaison Officer. posted without change to https:// www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two-to-three days after submission to verify posting. FOR FURTHER INFORMATION CONTACT: Ms. Marissa Ryba, Procurement Analyst, at 314–586–1280 or by email at marissa.ryba@gsa.gov, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755 or GSARegSec@gsa.gov. Please cite FAR Case 2022–002. SUPPLEMENTARY INFORMATION: [FR Doc. 2022–20711 Filed 9–23–22; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 1 [FAR Case 2022–002; Docket No. 2022– 0002; Sequence No. 1] RIN 9000–AO39 Federal Acquisition Regulation: Exemption of Certain Contracts From the Periodic Inflation Adjustments to the Acquisition-Related Thresholds Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. AGENCY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a section of the National Defense Authorization Act for Fiscal Year 2022 that provides a statutory exception to the periodic inflation adjustments of acquisition-related thresholds for certain bond requirements. SUMMARY: Interested parties should submit written comments to the Regulatory Secretariat Division at the address shown below on or before November 25, 2022 to be considered in the formation of the final rule. ADDRESSES: Submit comments in response to FAR Case 2022–002 to the Federal eRulemaking portal at https:// www.regulations.gov by searching for ‘‘FAR Case 2022–002’’. Select the link ‘‘Comment Now’’ that corresponds with ‘‘FAR Case 2022–002’’. Follow the instructions provided on the ‘‘Comment Now’’ screen. Please include your name, company name (if any), and ‘‘FAR Case 2022–002’’ on your attached document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. Instructions: Please submit comments only and cite ‘‘FAR Case 2022–002’’ in all correspondence related to this case. Comments received generally will be DATES: VerDate Sep<11>2014 16:19 Sep 23, 2022 Jkt 256001 I. Background DoD, GSA, and NASA are proposing to amend the FAR at section 1.109 to implement section 861 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117–81), which provides a statutory exception to the periodic inflation adjustments of acquisition-related thresholds under 41 U.S.C. 1908. A. What is an acquisition-related threshold? 41 U.S.C. 1908 is applicable to ‘‘a dollar threshold that is specified in law as a factor in defining the scope of the applicability of a policy, procedure, requirement, or restriction provided in that law to the procurement of property or services by an executive agency, as the [Federal Acquisition Regulatory] Council determines.’’ B. What acquisition-related thresholds are not subject to escalation adjustment? 41 U.S.C. 1908 does not permit escalation of acquisition-related thresholds established by the Construction Wage Rate Requirements statute (Davis Bacon Act), the Service Contract Labor Standards statute, or the United States Trade Representative pursuant to the authority of the Trade Agreements Act of 1979. C. Revisions to 41 U.S.C. 1908 Section 861 of the NDAA for FY 2022 modifies 41 U.S.C. 1908(b)(2) to add performance and payment bond requirements for construction in 40 U.S.C. chapter 31 to the already established list of acquisition-related thresholds that are not subject to escalation. The list appears in the FAR at 1.109(c). 40 U.S.C. chapter 31, subchapter III, Bonds (formerly known as the Miller Act) requires certain performance and payment bonds for construction PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 contracts. Sections 3131 through 3134 are the subject of the changes required by section 861. • 40 U.S.C. 3131 requires performance and payment bonds for any construction contract exceeding $100,000, unless otherwise waived. • 40 U.S.C. 3132 requires alternatives to payment bonds as payment protections for certain types of construction contracts. For construction contracts greater than $25,000, but not greater than $100,000, the contracting officer must select one or more payment protections. • 40 U.S.C. 3133 requires agencies to provide a certified copy of the payment bonds referenced in section 3131 to any person (e.g., subcontractor) who has not been paid or is being sued on the bond. • 40 U.S.C. 3134 provides waivers from the subchapter for certain contracts issued by the Military Departments, Department of Transportation, and the National Oceanic and Atmospheric Administration. The FAR threshold for performance and payment bonds at 28.102 is currently $150,000 as a result of one escalation adjustment in accordance with FAR 1.109. FAR Case 2008–024, published on August 30, 2010, at 75 FR 53129, raised the threshold by $50,000 from the $100,000 reflected in 40 U.S.C. 3131. The threshold was added to 52.228–11, Individual Surety—Pledge of Assets, after the most recent escalation, by FAR case 2017–003, published on January 14, 2021, at 86 FR 3682. The FAR threshold for alternatives to payment bonds at 28.102 is currently $35,000, as a result of two escalation adjustments in accordance with FAR 1.109. FAR Case 2004–033, published on September 28, 2006, at 71 FR 57363 and 2014–022 published on July 2, 2015, at 80 FR 38293, each raised the threshold by $5,000 from the $25,000 reflected at 40 U.S.C. 3132. II. Discussion and Analysis The proposed rule adds the statutory exception provided by section 861 to the list of acquisition-related thresholds that are not subject to escalation under 41 U.S.C. 1908 at FAR 1.109(c). Section 1908 does not permit the escalation of acquisition-related thresholds established by the following: • 40 U.S.C. 31, subchapter IV, Wage Rate Requirements (Construction). • 41 U.S.C. 67, Service Contract Labor Standards. • The United States Trade Representative under the Trade Agreements Act. The rule proposes to restructure FAR 1.109(c), by consolidating the citation for 40 U.S.C. chapter 31, subchapter III, E:\FR\FM\26SEP1.SGM 26SEP1

Agencies

[Federal Register Volume 87, Number 185 (Monday, September 26, 2022)]
[Proposed Rules]
[Pages 58297-58300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20711]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[MD Docket 22-301; FCC 22-68; FRS ID 105135]


Review of the Commission's Assessment and Collection of 
Regulatory Fees

AGENCY: Federal Communications Commission.

ACTION: Request for comments.

-----------------------------------------------------------------------

SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks further comment on the Commission's methodology for 
allocating indirect full-time equivalents (FTEs), previously raised in 
the Commission's Fiscal Year (FY) 2022 Notice of Proposed Rulemaking 
(FY 2022 NPRM), FCC 22-39, MD Docket Nos. 21-190, 22-223, adopted on 
June 1, 2022 and released on June 2, 2022.

DATES: Comments are due on or before October 26, 2022 and reply 
comments are due on or before November 25, 2022.

ADDRESSES: Interested parties may file comments and reply comments 
identified by MD Docket No. 22-301, by any of the following methods 
below.
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing ECFS: https://www.fcc.gov/ecfs.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     Filings can be sent by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington, DC 20554.
    For detailed instructions for submitting comments, see the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Roland Helvajian, Office of Managing 
Director at (202) 418-0444.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Inquiry (NOI), FCC 22-68, MD Docket No. 22-301, adopted on September 
1, 2022 and released on September 2, 2022. The full text of this 
document is available for inspection and copying during normal business 
hours in the FCC Reference Center, 45 L Street NE, Washington, DC 
20554, and may also be purchased from the Commission's copy contractor, 
BCPI, Inc., 45 L Street NE, Washington, DC 20554. Customers may contact 
BCPI, Inc. via their website, https://www.bcpi.com, or call 1-800-378-
3160. This document is available in alternative formats (computer 
diskette, large print, audio record, and braille). Persons with 
disabilities who need documents in these formats may contact the FCC by 
email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432. 
Effective March 19, 2020, and until further notice, the Commission no 
longer accepts any hand or messenger delivered filings. This is a 
temporary measure taken to help protect the health and safety of 
individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy. During

[[Page 58298]]

the time the Commission's building is closed to the general public and 
until further notice, if more than one docket or rulemaking number 
appears in the caption of a proceeding, paper filers need not submit 
two additional copies for each additional docket or rulemaking number; 
an original and one copy are sufficient.
    Ex Parte Rules. This proceeding shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte 
rules. Persons making ex parte presentations must file a copy of any 
written presentation or a memorandum summarizing any oral presentation 
within two business days after the presentation (unless a different 
deadline applicable to the Sunshine period applies). Persons making 
oral ex parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule Sec.  1.1206(b). In proceedings governed 
by rule Sec.  1.49(f) or for which the Commission has made available a 
method of electronic filing, written ex parte presentations and 
memoranda summarizing oral ex parte presentations, and all attachments 
thereto, must be filed through the electronic comment filing system 
available for that proceeding, and must be filed in their native format 
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this 
proceeding should familiarize themselves with the Commission's ex parte 
rules.

I. Synopsis

    1. In this document, the Commission seeks further comment on its 
methodology for allocating indirect FTEs, as raised in the FY 2022 NPRM 
(87 FR 38588, June 28, 2022). While we found above that the record 
supported a limited correction to the method used for calculating the 
fees associated with certain indirect FTEs in the Universal Service 
Fund context, we seek to more broadly explore these issues outside of 
the short timeframe necessitated by the annual regulatory fee 
proceeding. The responses we receive will help us determine if there 
are lines of inquiry worth exploring in order to further revise our 
methodology. Finally, we hope that the comments and replies will allow 
interested parties to gain a better understanding of the regulatory fee 
process and the issues of importance to the various groups affected by 
our regulatory fee policies.
    2. Historically, the Commission assesses the allocation of FTEs by 
first determining the number of non-auctions direct FTEs in each ``core 
bureau'' (i.e., the Wireless Telecommunications Bureau, the Media 
Bureau, the Wireline Competition Bureau, and the International Bureau) 
and then attributing all other non-auctions Commission FTEs as 
indirect. The direct FTEs within each core bureau are then attributed 
to regulatory fee categories based on the nature of the FTE work. We 
expect that the work of the non-auctions direct FTEs in the four core 
bureaus will remain focused on the industry segment regulated by each 
of those bureaus. For this reason, the Commission starts with direct 
FTE counts in the core bureaus and then potentially adjusts fees to 
reflect other factors related to the payor's benefits.
    3. We initially seek comment on whether we should expand the 
definition of ``core bureau'' to include other bureaus and offices 
within the Commission. Commenters should discuss the additional offices 
or bureaus we should consider ``core'' for regulatory fee purposes and 
why. We encourage commenters to review both the function and 
delegations of each office when considering this question. Is the work 
of the office or bureau focused on a specific industry segment 
regulated by that office or bureau? If so, what is the industry 
segment? Is the office or bureau responsible for regulating other work 
not related to a specific industry segment? Commenters should address 
whether expanding the Commission's definition of ``core bureau'' is 
feasible, administrable, sustainable, and consistent with section 9 of 
the Communications Act of 1934 (Act).
    4. Unlike the work of direct FTEs, the work of FTEs designated as 
indirect benefits the Commission and the industry as a whole and is not 
specifically focused on the regulatees and licensees of a core bureau. 
Thus, indirect FTEs generally work on a wide variety of issues which 
may include services that are not specifically correlated with one core 
bureau, let alone one specific category of regulatees. Further, much of 
the work that could be assigned to a single category of regulatees is 
likely to be interspersed with the work that indirect FTEs perform on 
behalf of many entities that do not pay regulatory fees, e.g., 
governmental entities, non-profit organizations, and regulatees that 
have an exemption. In addition to the fact that indirect FTEs work on 
matters that are not specific to any regulatory fee category, many 
Commission attorneys, engineers, analysts, and other staff work on a 
variety of issues even during a single fiscal year. Due to the variety 
of issues handled by many indirect FTEs, analyzing the work of such 
indirect FTEs for regulatory fee purposes and basing regulatory fees on 
specific assignments during any snapshot or incremental period of time, 
such as a year or two, would result in significant unplanned shifts in 
regulatory fees as assignments change.
    5. In calculating regulatory fees, the Commission allocates 
indirect FTEs proportionally based on the allocation percentage of 
direct FTEs of each core bureau. In essence, if a core bureau's 
contribution to the regulatory fee burden is calculated to be 40%, then 
it is also responsible for 40% of the indirect costs. Commenters argue 
that this results in regulatory fee payors paying being unfairly 
burdened by costs of FTEs that do not directly provide oversight and 
regulation to such fee payors. We seek comment on whether the 
Commission should change its current methodology for calculating 
regulatory fees to minimize burdens on certain regulatory fee payors, 
while still collecting the entire appropriation, as required by section 
9 of the Act. To the extent that commenters support amending the 
methodology, the proposals made must allow for the full collection of 
our annual appropriation. In other words, a proposed system that only 
provides that regulatees pay fees for the direct time of staff in the 
core bureaus would be per se contrary to our statutory mandate. 
Comments filed in the Notice of Inquiry docket proposing such 
amendments should provide full scale examples of the potential changes 
to the current methodology and explain how those changes would be 
consistent with section 9 of the Act.
    6. As discussed above, we find that broadcasters should not be 
required to pay for a portion of the 38 indirect FTEs working on 
Universal Service Fund issues that are in the Wireline Competition 
Bureau but are designated as indirect FTEs. Although we affirmed

[[Page 58299]]

the Commission's previous finding in 2017 that these 38 FTEs were 
properly allocated as indirect FTEs for regulatory fee purposes, are 
there indirect FTEs that commenters believe should be considered direct 
FTEs for regulatory fee purposes? For example, in FY 2019, the 
Commission reassigned staff from other bureaus and offices to the 
Office of Economics and Analytics, effective December 11, 2018. This 
resulted in the reassignment of 95 FTEs (of which 64 were not auctions-
funded) as indirect FTEs. The Commission also reassigned Equal 
Employment Opportunity enforcement staff from the Media Bureau to the 
Enforcement Bureau, effective March 15, 2019, resulting in a reduction 
of seven direct FTEs in the Media Bureau. These reassignments resulted 
in a reduction in direct FTEs in the Wireline Competition Bureau (from 
123 FTEs to 100.8 FTEs), Wireless Telecommunications Bureau (from 89 
FTEs to 80.5 FTEs), and Media Bureau (from 131 FTEs to 115.1 FTEs). In 
2013, the Commission allocated all International Bureau FTEs except for 
28 as indirect. Should we reconsider these assignments and now consider 
these FTEs direct FTEs in a core bureau instead of indirect? Commenters 
should discuss whether this allocation is still reasonable. Should we 
re-evaluate the number of direct and indirect FTEs in the International 
Bureau? For each category of FTE a commenter proposes to be reassigned, 
the commenter should explain how such reassignment is appropriate under 
both the Communications Act and also the body of precedent relating to 
federal agency fee setting. If these reassignments are still 
appropriate, should we consider other corrections to our fee 
calculation methodology, as we did in the Universal Service Fund 
context?
    7. As indicated in the FY 2022 NPRM, early in each fiscal year, the 
Commission receives FTE data from its Human Resources Office, and 
identifies FTE data at the core bureau level (i.e., direct FTEs), which 
are then used to determine the FTE allocations for the four core 
bureaus. These FTE data are then filtered down to the various fee 
categories within each core bureau based on the fee category 
percentages for each bureau. We encourage commenters in looking at the 
question to consider how indirect FTE time devoted to work on one or 
more regulated services could be considered direct FTE time. How should 
time be calculated for purposes of regulatory fees if FTE time is 
devoted to issues involving different regulated services at the same 
time (e.g., voice services)?
    8. Commenters should also consider that indirect FTEs may be 
difficult to disaggregate in a manner that is easy to administer and 
transparent with respect to how it applies to certain regulated 
services. For example, a complex enforcement investigation involving a 
space station operator could result in many Enforcement Bureau indirect 
FTEs working on space station issues on a temporary basis instead of on 
other issues. Would allocating those indirect FTEs as direct FTEs for 
the International Bureau unfairly increase the regulatory fees for all 
space station licensees or all International Bureau regulatees for that 
fiscal year? Is there a way to disaggregate the time indirect FTEs may 
spend on issues associated with core bureaus in a way that would not 
result in significant regulatory fee increases from year to year? 
Taking into consideration practical limits on what the Commission may 
accomplish using existing systems and also limited staff time, how 
frequently should FTE time be analyzed for reassessments of the work 
done by indirect FTEs?
    9. Other indirect FTEs may not be able to disaggregate the issues 
that they handle or may work on matters that do not correlate with any 
particular regulated service. Commenters who advocate analyzing the 
indirect FTE time to determine if their time can be allocated to 
specific regulated services should explain how to address indirect FTE 
time that cannot be specifically disaggregated into work performed for 
certain regulated services. SIA observes that the current indirect FTE 
allocation method is appropriate for certain non-core bureaus and 
offices, such as the Office of the General Counsel. Are there other 
bureaus and offices that commenters consider to be more appropriately 
designated as indirect? State Broadcasters Associations suggest that 
the Commission adopt a third classification of intersectional FTEs to 
avoid unfair burdens on broadcasters. SIA suggests an alternative 
allocation mechanism for indirect FTEs in cases where the work is not 
always proportional. Commenters should also specifically address these 
alternatives to the Commission's current methodology. Commenters should 
explain how we could implement these alternative suggestions, 
consistent with section 9 of the Act. Moreover, commenters should 
consider if such changes might result in a more complicated fee system 
that nevertheless results in the setting similar fee amounts but 
requires more time and Commission resources to manage.
    10. One commenter, the State Broadcasters Associations, suggest 
that the Commission adopt a third classification of intersectional 
FTEs. SIA suggests an alternative allocation mechanism for indirect 
FTEs in cases where the work is not always proportional. Commenters 
should also specifically address these alternatives to the Commission's 
current regulatory fee methodology. Commenters should explain how we 
could implement these alternative suggestions, consistent with section 
9 of the Act. Moreover, commenters should consider if such changes 
might result in a more complicated fee system that nevertheless results 
in the setting similar fee amounts but requires more time and 
Commission resources to manage.
    11. Commenters advocating allocating indirect FTEs as direct for 
regulatory fee purposes should explain how we should assess FTE time in 
order to make the reallocation. Commenters are encouraged to consider 
practical aspects of FTE time. For example, how should FTEs devoted to 
administrative matters, such as releasing and posting Commission and 
Bureau level items, be categorized? Should such FTE time be considered 
indirect, or should each released item be analyzed to determine to 
which core bureau it is associated? How should FTE time devoted to 
matters encompassing voice issues (i.e., wireless and wireline, 
including VoIP) be characterized? Is there a fair way to allocate such 
FTE time among or between bureaus or should that FTE time be considered 
indirect? We note that our regulatory fee methodology must be 
consistent with the requirements of section 9 of the Act that ``fees 
reflect the full-time equivalent number of employees within the bureaus 
and offices of the Commission.'' Commenters should recognize that 
cherry picking certain groups of FTEs from indirect bureaus and offices 
and reassigning them as direct FTEs for regulatory fee purposes could 
result in a less equitable methodology overall and achieve a result 
inconsistent with their intention of reducing their regulatory fees. 
Finally, commenters should recognize that any new methodology they 
propose must be consistent with section 9 of the Act, fair, 
administrable, and sustainable.

II. Ordering Clause

    12. Accordingly, it is ordered that, pursuant to the authority 
found in sections 4(i) and (j), 9, 9A, and 303(r) of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, 159A, and 
303(r), the Notice of Inquiry is hereby adopted.


[[Page 58300]]


Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
[FR Doc. 2022-20711 Filed 9-23-22; 8:45 am]
BILLING CODE 6712-01-P
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