The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it updates airspace descriptions. This update is an administrative change and does not change the airspace boundaries or operating requirements.

Class D and Class E airspace are published in paragraphs 5000, 6002, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class D airspace, Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface at Beaufort Marine Corps Air Station (MCAF)/Merritt Field, Beaufort, SC, by updating the airport's geographic coordinates. This action also updates the name of Beaufort Executive Airport (formerly Beaufort County Airport). It removes unnecessary verbiage, referring to Hilton Head Island, from the Class E airspace extending upward from 700 feet above the surface, as it is unnecessary. In addition, this action makes the editorial changes replacing the term Notice to Airmen with Notice to Air Missions and replacing the term Airport/Facility Directory with Chart Supplement. This action is an administrative change and does not affect the airspace boundaries or operating requirements; therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

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

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

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

Airport sponsors that have accepted grants under the Airport Improvement Program (AIP) or other Office of Airport grants have agreed to comply with certain Federal laws and policies included in each grant agreement as sponsor assurances. The Airport and Airway Improvement Act of 1982 (AAIA) (Pub. L. 97-248), as amended and recodified at 49 U.S.C. 47107(a)(1), and the contractual airport sponsor assurances require that the sponsor make the airport available for aviation use. Title 49 U.S.C. 47107(a)(8) requires grant agreements to include an assurance that “a proposal to close the airport temporarily for a nonaeronautical purpose must first be approved by the Secretary [of Transportation].” This requirement is implemented by Grant Assurance 19, Operation and Maintenance, which incorporates the requirement that a temporary airport closure for a nonaeronautical purpose be first approved by the Secretary. The Secretary's approval authority has been delegated to the FAA as part of the administration of the AIP. It is the longstanding policy of the FAA that airport property be available for aeronautical use unless a particular nonaeronautical use is approved by the FAA.

Each year many sponsors of federally obligated airports request temporary closures of a ramp, taxiway, runway or an entire airport for a nonaeronautical event, typically for a period of one to three days. The FAA must approve any such request in advance before the event can take place. While the FAA offices generally applied similar criteria to the evaluation of requests for temporary closure, the agency has not provided uniform guidance for sponsors on the process to request a temporary closure. The FAA believes that a more detailed description of what is needed to support a request for temporary closure of airport facilities, and a clear listing of the obligations of an airport sponsor before, during and after a closure, will benefit both the airport sponsors and the FAA offices handling these requests. Conducting an event on airport property is a complex undertaking. Whether the purpose is an aeronautical event ( e.g., air show) or nonaeronautical event, and whether the event requires a full closure of the airport or simply a closure of a ramp or taxiway, the event will require detailed planning and preparation that should not be taken lightly. The airport sponsor's primary responsibility is to operate a safe airport providing access to aviation community.

The FAA affirms in this Notice that federally assisted airports should remain open for aviation use. Where an airport sponsor does request a temporary closure of airport facilities for a nonaeronautical event, this Notice describes the required contents of a request, and the criteria for the FAA's approval.

The policy statement provides a standard request process for approval of nonaeronautical events at a federally obligated airport, and a detailed explanation of the measures an airport sponsor will need to take in order to protect the airport and comply with the terms of the FAA grant agreements. In summary:

• The airport sponsor should meet with the local FAA office no later than 120 days before the event to discuss their plans and develop a timetable for FAA review and approval.

• The airport sponsor must file Form 7460 Notice of Proposed Construction or Alteration at least 90 days before the event.

• The airport sponsor should submit at least 60 days in advance a written request for temporary closure to the FAA that addresses justification, the benefit to civil aviation, timetable, map, safety, communications with airport users, environmental review, and financial issues for review and approval.

• The airport sponsor must follow the Process for Notification of Airport Users including Notice to Air Missions (NOTAM).

The FAA received public comments on the proposed policy from National Business Aviation Association, National Air Transportation Associations (NATA), San Carlos Airport & Pilots Association, the California Pilots Association, Georgia Department of Transportation, City of Manassas Airport Department, Manassas, Virginia and airport operators and airport users. In general, most commenters support the FAA's proposed policy regarding approval of the temporary closure of a federally obligated airport for a nonaeronautical purpose; however, one commenter objected to any approval of closing an entire airport for nonaeronautical events.

Manassas Regional Airport representative indicated that the entire application process for “Temporary Airport Closure” seems very cumbersome. While some airports may become familiar with the process, smaller airport may have difficulty completing the process, which may ultimately dissuade them from hosting events. The commenter also inquired about the possibility of using a temporary event permit process rather than an agreement with the event promoter.

The Final Policy: The primary purpose of this policy is to outline a more defined process that sponsors can follow to comply with the law, 49 U.S.C. 47107(a)(8) requiring the Secretary of Transportation (delegated to the FAA) to approve the closure of an airport for nonaeronautical event. In implementing the requirements of this statute, the FAA has several objectives: first, the airport sponsor will continue to operate the airport safely. The airport sponsor has a plan identifying the necessary labor and resources to ensure that this objective is met. Second, the airport sponsor has taken the necessary steps to notify the airport users including air carriers, fixed base operators, and tenants of the impending event and, when possible, take steps to alleviate the impact of the event on airport users. Fixed base operators and tenants rely on uninterrupted airport access to conduct business and earn a livelihood. When airport access is denied or restricted, it can have a detrimental impact on airport users. Third, that the Federal investment in the airport is protected. The Federal Government invests over $3.8 billion annually to maintain the Nation's airports and ensure that these assets are available for the purpose for which they were designed.

Regarding the suggestion of a permit versus a written agreement, the airport sponsor is responsible for licensing and procurement. Whether it is a permit or agreement, the document between a sponsor and the event promoter must assign responsibility for essential tasks, ensure safety, and contain indemnification and hold harmless provisions to protect the sponsor for damages, liabilities, and judgments. The document must protect the airport from damage and ensure that the airport be repaired or restored at the promoter's cost.

National Business Aviation Association recommends the FAA clarify the term “federally obligated” airports, to identify the sources of an airport sponsors Federal obligations.

The Final Policy: FAA Order 5190.6B, Airport Compliance Manual, September 30, 2009 indicates that a sponsor's Federal obligations can include: (a) Grant agreements issued under the FAA administered airport development grant programs including the Airport Improvement Program (AIP) under 49 U.S.C. 47101, et seq.; (b) Instruments of surplus property transfer issued under the provisions of section 13(g) of the Surplus Property Act of 1944, as amended 49 U.S.C. 47151-47153; (c) Instruments of nonsurplus conveyance issued under section 16 of the 1946 Airport Act, as amended; under section 23 of the 1970 Airport Act, as amended; or under section 516 of the AAIA, as amended following recodification as 49 U.S.C. 47125.

National Business Aviation Association stated that the FAA “cannot allow closure of an entire airport”. The FAA can only allow a partial closure for nonaeronautical purpose.

The Final Policy: Although closures of entire airports for nonaeronautical purposes should be rare and allowed only when there is a benefit to civil aviation, Congress clearly anticipated the possibility of requests for airport closures. Title 49 U.S.C. 47107(a)(8) requires grant agreements to include an assurance that “a proposal to close the airport temporarily for a nonaeronautical purpose must first be approved by the Secretary [of Transportation].” Further, FAA Order 5190.6B, Section 7.21(b)(1) states: “An airport developed or improved with federal funds may not be closed to use the airport facilities for special outdoor events, such as sports car races, county fairs, parades, car testing, model airplane events, etc., without FAA approval.” Closures of any portion of an airport for nonaeronautical purposes must receive FAA approval. Impacts to aviation need to be thoroughly assessed and considered. Therefore, closing the only runway at an airport should be avoided, if possible.

National Air Transportation Association recommends the FAA require an emergency response plan (beyond the safety plan), scalable to the event and activities planned. This plan should include incident command structure, responsible agencies, emergency contacts, and mutual aid and evacuation routes.

The Final Policy: The airport operator is responsible for care, control, and protection of property and people on an airport. Whether it is a small general aviation airport or a major air carrier airport. The services can range from a dedicated on-airport fire department or first responder services in the community that respond to accidents at the airport. Best management practices dictate that support services are engaged and participate in the planning of the event. Each airport should already have emergency procedures for handling incidents and accidents at the airport. The FAA encourages airport sponsors to conduct emergency response planning and develop a plan based upon their needs and scope of the event. An “emergency plan” requiring an incident command structure is too prescriptive; local officials are in the best position to decide the resources required.

National Air Transportation Association recommends the FAA adopt a schedule of submission setting a deadline for submitting documents for approval—similar to the 120-day period required for construction events on the airport by FAA Form 7460—Notice of Alteration and Construction. NATA also suggests that the application for an event follow a prescribed timetable with FAA approval due dates.

Manassas Regional Airport representative suggested a 90-Day review period in lieu of 100-Days. Manassas Regional Airport representative mentioned that there is a clear lead-time for a 7460 form, there is no mention of a lead-time for submitting a proposal to the Region or ADO. Manassas Regional Airport representative requested that the FAA consider allowing a single proposal submission for recurring events, rather than requiring a new application every year.

The Final Policy: Regarding the schedule for submission, as a first step in planning a public event at an airport, the airport operator should meet with the local FAA Airports District Manager or Regional Office (RO) as soon as possible. An initial meeting should occur at least 120 days before the planned event. Airport managers know that the closure of the airport, a runway or aircraft movement area will result in an impact to airport users. The Airport manager's objectives must be, first, determine if it is possible to conduct the event safely with the minimum disruption to the airport users. Second, identify what steps the airport can take to ensure minimum disruption and impact to airport users. Airport managers know that in certain cases FAA Form 7460, Notice of Proposed Construction or Alteration must be filed and a Notice to Air Missions must be issued. The event constitutes a Federal Action; therefore, the FAA will review the airport manager's environmental submission and provide an approval. FAA examines a temporary closure request on a case-by-case basis.

FAA acknowledges single proposal submission for recurring events repeat are typically easier to review and less of an administrative burden for promoters. The FAA will leave this decision to the discretion of the local FAA office for nonaeronautical events that do not require closure of aircraft movement ( e.g., promotes uninterrupted aeronautical use of airports and airport facilities). For situations involving a closure of aircraft movement areas, each event will be treated as a new event.

San Carlos Airport Pilots and California Pilots Association (Pilots Association) believes the airports should remain available for aviation purposes. A “proposed nonaeronautical use of an airport should not prevent the airport from realizing its economic potential. The Pilots Association also urges FAA to consider the collective impact of multiple short closures on airport operations. The Pilots Association recommends better coordination between the airport sponsor and aeronautical tenants and users; tenants and users should have an opportunity to give feedback on potential closures. The Pilots Association asks that FAA require certification of notifications to stakeholders of the event and provide an opportunity to give feedback. The Pilots Association also recommends the airport sponsor should post all airport funds and resources used to subsidize the event and any physical damages or personnel injuries the direct result of the event.

The Final Policy: FAA's Policy and Procedures Concerning the Use of Airport Revenue (64 FR 7704) February 16, 1999 permits the use of airport property for public recreational purposes and addresses the use of airport funds to support community activities and for participation in community events. The expenditures are directly and substantially related to the operation of the airport. The airport sponsor may consider the “directly and substantially related to air transportation” standard to be met if the contribution has the intangible benefit of enhancing the airport's acceptance in local communities impacted by the airport. The use of airport property and the expenditure of airport revenue for a nonaeronautical event must be performed in accordance with an airport sponsor's grant assurance obligations. Airport revenue cannot be used toward conducting the event ( e.g., use of airport staff must be reimbursed, equipment rental, and advertisement of the event cannot be funded in part or whole by the airport). The FAA acknowledges the airport sponsor should keep records of any inspection and repair costs, resulting from a nonaeronautical event. While the FAA will not require an airport sponsor to post event expenditures, this information is an integral part of an airport sponsor's request and should be publicly available.

Regarding the impact of multiple short closures on airport operations, the Federal government makes a capital investment in a local airport to address the needs of aeronautical users and improve the airport's access to the National Airport System. An airport sponsor's justification for capital improvements does not include justifying the need for facilities to support auto races, fun runs or other nonaeronautical events. These events are treated as rare occurrences or as incidental events. When federally funded assets intended to support access to the National Airport System are regularly used for nonaeronautical events, it raises questions about the need for a Federal investment in the airport.

Regarding the suggestion that the FAA require certification of notifications to stakeholders of the event and provide an opportunity to give feedback, the FAA recognizes airport sponsors are in the best position to understand airport users' specific needs for airport access and generally act in the airport's best interest. The FAA expects airport sponsors to work with airport users to minimize the impact on airport users. The FAA encourages more intensive outreach to ensure safety and efficiency during the review process. The policy currently provides a baseline requirement to notify tenants and users. Airport users have redress through the Part 13 informal complaint process or the formal Part 16 complaint.

Georgia Department of Transportation recommends that sponsors in Block Grant states coordinate with the Block Grant Agency by submitting an application in writing, in advance, and provide a schedule for various steps in the application process.

The Final Policy: Airport sponsors in Block Grant states should submit Temporary Closure requests to Block Grant State agencies who will work with the FAA to complete the review.

Theodore Gablin asked for a method for pilots to object to the request to perform nonaeronautical activities and suggested penalties for a sponsor that fails to comply with the policy.

The Final Policy: FAA Policy requires airport sponsors to consult with airport users and tenants regarding planned nonaeronautical events that may result in airport closures or a restriction on airport operations. The FAA expects that airport sponsors will work with airport users to resolve differences and develop a plan to minimize impacts to airport users. Airport users have redress to the FAA through the Part 13 informal complaint process or the formal Part 16 complaint.

Manassas Regional Airport representative asked for clarity on how airports obtain fair market value for runways and taxiways.

The Final Policy: Airport operators can obtain comparable land rental values from on-airport ground lease rates for nonaeronautical use, adjacent airport land or information rental rates from local commercial realtors or the city's community economic development agency.

Manassas Regional Airport representative suggested that Form 7460 include temporary closures for nonaeronautical activities and create a separate form to prevent confusion among crane/construction companies and event sponsors.

The Final Policy: The FAA believes that Form 7460 is adequate for identifying obstructions connected with nonaeronautical activities on an airport. The FAA cannot create a separate notice for cranes. FAA Form 7460 is required by regulation to evaluate the effect of proposed construction or alteration on air navigation. Notice is required by 14 Code of Federal Regulations, part 77 pursuant to 49 U.S.C. 44718. The FAA Form 6000-26 (08/13) Airport Sponsor Strategic Event Submission is used by airport sponsors to notify the FAA of projects or events, which will result in runway or taxiway closures, or navigational aid outages etc. This form should be submitted 60 days prior to the event to the FAA Air Traffic Organization (ATO).

Manassas Regional Airport representative suggested that airport sponsors should require nonprofit charitable organizations submit proof of their status.

The Final Policy: The FAA agrees that the airport sponsor's examination of a promoter's nonprofit status is good business practice.

Manassas Regional Airport representative asked that the FAA consider addressing temporary closures of airports for nonaeronautical purposes associated with aeronautical events (example: closing down a taxi lane for vehicle parking for an airshow). Basic guidelines for temporary closures for aeronautical purposes are described in FAA Order 5190.6B, Section 7.21(b)(2).

The Final Policy: FAA Order 5190.6B, paragraph 7.21 Temporary Closing an Airport for Special Event discusses both aeronautical and nonaeronautical events. Aeronautical events can include air shows, fly-ins, and aviation conventions. These events are normally used to promote some aspects of aviation. Airport funds can be used to support community activities if the expenditures are “directly and substantially related to air transportation” standard to be met if the contribution has intangible benefit of enhancing the airport's acceptance in local communities impacted by the airport. Expenditures that are directly and substantially related to the operation of the airport qualify inherently as operating costs of the airport. The FAA's Policy Concerning the Use of Airport Revenue (Revenue Use Policy) (64 FR 7704) February 16, 1999. Nonaeronautical events, such as auto races, carnivals, fun runs, are events that could be conducted off-airport and are not promoting aviation. Air Shows require a certificate of waiver authorization from the FAA Flight Standards. The FAA considers the event aeronautical if the majority of activities are aeronautical and promote aviation. However, if the majority of the events are nonaeronautical, this policy applies. Airport sponsors should consult the Revenue Use Policy and FAA Order 5190.6B, paragraph 17.14 Property for Community Purpose and paragraph 17.15, Exception for Community Use.

The FAA believes that the primary purpose of public airports is to serve aeronautical users and therefore, airports should remain open and available for aviation use. However, under certain circumstances, an airport sponsor may request the FAA's approval of temporary closures for nonaeronautical activities or purposes, such as car shows, county fairs, parades, model airplane events, running events and fireworks. The FAA will not approve a closure if it would result in a negative impact to civil aviation.

In most cases, the impact to aviation, safety, security, liability, and other risks will outweigh the financial and community goodwill benefits promised to the airport for nonaeronautical activities. Closures of entire airports or closures of the only runway at an airport should be highly scrutinized, and only allowed when there is a net benefit to the airport. A nonaeronautical use of an airport should not prevent the airport from realizing its economic potential nor diminish its role in the system of airports.

Moreover, airport sponsors must not allow any nonaeronautical activity that will damage or impact the useful life of airport pavements, signs, markings, lighting or other infrastructure. Under Grant Assurance 11, airport sponsors are required to implement a pavement preventative maintenance program to ensure the useful life of the pavement is protected. As a result, car racing events should not be approved on recently rehabilitated (resurfaced or reconstructed) pavements. Moreover, airports are generally unsuitable locations for high velocity auto events, such as drag racing, and are likely to require additional liability insurance and crowd protection. These high-risk events should be highly scrutinized by both the sponsor and the ADO or region.

This policy provides procedures for airport sponsors who choose to submit a request for such closures and establishes benchmarks for safety for a nonaeronautical event.

To request a temporary airport closure for a nonaeronautical event, an airport sponsor must meet with the FAA at least 120 days to discuss their plans and develop a timetable for FAA review and approval. Within 60 days of the event, the airport sponsor must submit a written request for the even that includes the information outlined below. In Block Grant states, the airport sponsor must submit the request to the State Block Grant Agency with a copy to the FAA Regional Airports Office or Airport District Office (ADO). The airport sponsor must provide sufficient information and assurances to indicate that each requirement has been or will be satisfied. The written request must address:

1. Impact on aeronautical activities. An estimate of the number of impacted aircraft operations (scheduled services, commercial, general aviation, military) and how this number was determined.

2. Justification. A written statement describing the nonaeronautical event and a justification for the event at the airport. If an event would require that aircraft operations be suspended during the event, a proposal must identify why closure of the airport is necessary, and how the proposed nonaeronautical use justifies loss of the use of the airport for the duration of the event. The statement should address alternative off-airport locations considered, and why these locations are not viable. The justification must also clearly identify the net benefit of the event to civil aviation.

3. Timing. The dates of the proposed closure periods including set up and take down period. Identify whether this is an annual or one-time event.

4. Map. A map depicting:

a. Location of nonaeronautical activity on airport ( e.g., spectator areas, parking areas, staging areas, fueling, concession areas, closed areas),

b. Areas to be used for the nonaeronautical activity that have been developed or improved with Federal funds (identify the grant number and anticipated impact to the Federal investment),

c. Impacted Navigational Aids (NAVAIDs),

d. Location and description of elements that may affect the National Airspace System (NAS), and

e. Structures or other elements that may require a form 7460 application.

5. Communications. The request must document the airports sponsor's communications with airport users to discuss the details of the event, and address concerns and mitigate the impact of the event on users to the extent possible. The following contacts should be notified:

a. Tenants, fixed base operators (FBO), airlines, and local users,

b. Air traffic control tower,

c. Local aviation organizations,

d. Airport security and local law enforcement agencies, and

e. FAA Flight Standards District Office.

6. Safety. For a proposed closure of the airport to operations or a closure of any part of the airfield movement area or proposed obstructions to movement area associated safety clearances, the sponsor must prepare a Safety Plan, in coordination with local or state public safety officials, to include at least the following items:

a. Special markings for the event, and removal and restoration of markings after the event.

b. Notice to tenants and pilots, including appropriate NOTAMs and other methods.

c. Reporting and marking of any structures affecting protected zones or surfaces.

e. If applicable, a description of the mutual aid fire and rescue agreements and whether there needs to be a presence of mutual aid safety services during the event.

d. Safe separation between aircraft operations and the public. These may include: special taxi routes, restricted access to terminal gates, crowd control, designated vehicular routes, staging areas, and structural barriers to protect the viewing public. The Sponsor and the event promoter are responsible for the safety of attendees; Sponsor will ensure that the event promoter provides sufficient barricades to ensure the public is protected.

e. Sponsor's determination and analysis that there is no adverse effect on the airport's approved security plan.

f. Where necessary to maintain the safety, security and efficiency of airport operations, Regions or ADOs should use applicable elements from the FAA Advisory Circular 150/5370-2, Operational Safety on Airports during Construction.

g. The airport sponsor must provide timely advance notice of the nonaeronautical event to pilots and airport tenants, and to the Air Traffic Control (ATC) tower if applicable. The sponsor must issue appropriate NOTAMs to advise itinerant pilots of any limited availability of the airport during the event. The sponsor must provide advance notice to airport businesses and other tenants of any effect on use of airport property during the event. The sponsor should provide a Draft of the NOTAM(s) to be issued for the event.

h. Filing of a Form 7460 may be necessary to obtain the FAA review of any temporary structures on the airport and use of airport property. The Form 7460 can be filed prior to or with the request for approval of closure, but must be filed no later than 90 days prior to the event to allow time for the FAA to review, comment and response from proponent.

i. Post-event inspection and repair of any damage to airport property to assess the airport property prior to re-opening for aeronautical uses to identify and fix:

1. Damage to pavements, lighting, signs, markings and other airport infrastructure.

2. Temporary markings HAZMAT issues (if applicable).

3. Conduct Foreign Object Debris (FOD) sweep.

4. Identification of the party who will be responsible for funding any repairs and a timeframe within which the repairs will be made.

5. Indicate impacts to NAVAIDs and procedures for taking these out and in service.

6. Procedures and equipment to delineate closed areas ( e.g., X on runways, fencing, gates, barricades).

7. Financial. The airport must recover fair market value (FMV) payment for the nonaeronautical use of airport property to the extent required by the Revenue Use Policy. Therefore, the airport sponsor must document how the airport will be compensated for the use of the airport for nonaeronautical events. The airport sponsor should assess the condition of airfield facilities and airport property in the event areas before the event, and have the event proponent acknowledge that condition in writing. The airport sponsor's agreement with the event sponsor must include the event proponent's binding written agreement to restore airport property to its pre-event condition and repair all damage to airport facilities resulting from the event. All repairs and restoration of property must be completed at the expense of the event proponent in a timely manner and in conformance with FAA standards. The sponsor should understand the following:

a. The airport sponsor must receive full compensation for the time of airport personnel and the use of airport resources for the event ( e.g. police/airport operations overtime pay), but not necessarily staff time for review of the event.

b. Airport funds and resources may not be used to subsidize the event, except insofar as the event will be staged by the airport sponsor itself. Use of airport property for a nonaeronautical purpose at below fair market value payment is considered a subsidy.

c. The airport sponsor's agreement with the event promoter should contain the event promoter's binding written agreement to indemnify and hold harmless the airport sponsor for any damages, liabilities or judgments against the airport sponsor relating to the use of the airport for the event.

d. For an event proposed by a commercial/for-profit party:

1. Financial benefits must be equal to at least the fair market value of the subject property use.

2. In-kind services or benefits must be equivalent to FMV compensation.

3. Airport revenue cannot be used toward conducting the event ( e.g., use of airport staff must be reimbursed, equipment rental, advertisement of the event cannot be funded in part or whole by the airport).

4. The event should also generate intangible benefits for the airport such as community goodwill and community interest.

e. For an event organized by a non-profit/charitable organization or by the airport sponsor itself on its own behalf. In all non-profit nonaeronautical cases there needs to be a benefit to the airport that clearly outweighs the loss or displacement of aeronautical activities. Examples of benefits to the airport may include:

1. Advertising for the airport included in the event advertising at no cost to the airport.

2. A percentage of ticket sales paid to the airport.

3. Intangible benefits ( e.g., community goodwill, increasing local awareness of the airport, encouraging local and community support of the airport, generating an interest in airport use).

While 49 U.S.C. 47107(a)(8) and Grant Assurance 19 do not require Office of Airports approval of the temporary closure of an airport for aeronautical events in the processes of issuing an airshow waiver Flight Standards Service (AFS) will describe the safety conditions for the FAA's approval of the event. However, the AFS waiver relates to aircraft operations and the separation between aircraft operations and the viewing public. AFS will coordinate the ground operations plan with Regions and ADOs as appropriate. Events that are primarily nonaeronautical with an air show or other aeronautical event as an incidental activity should be reviewed by the Region or ADO.

Approval of the closure of airport facilities for a nonaeronautical event is a Federal action that requires environmental review, under the National Environmental Policy Act (NEPA). The level of review will vary depending on the nature of the proposed event and should be coordinated with the RO/ADO for review and approval.

On November 11, 2022, the Kent Narrows Racing Association (KNRA) notified the Coast Guard that it will be conducting the Harford County Spring Nationals Inboard Hydroplane Race on May 13, 2023 and May 14, 2023 from 9 a.m. to 7 p.m. on both days. The high-speed power boat racing event consists of approximately 60 participating racing boats—including composite and wood hull inboard hydroplanes—12 to 28 feet in length. In response, on March 23, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulation; Bush River and Otter Point Creek; Between Perryman, MD and Edgewood, MD (88 FR 17467). There, we stated why we issued the NPRM and invited comments on our proposed regulatory action related to the high-speed power boat race. During the comment period that ended April 24, 2023, we received no comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with the high-speed power boat race scheduled to take place on May 13, 2023 and May 14, 2023.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port, Sector Maryland-National Capital Region (COTP) has determined that potential hazards associated with the power boat races would be a safety concern for anyone intending to participate in this event and for vessels that operate within the specified waters of the Bush River and Otter Point Creek. The purpose of this rule is to protect event participants, non-participants, and transiting vessels before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published March 23, 2023. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a regulated area from 9 a.m. on May 13, 2023 through 7 p.m. on May 14, 2023. The regulated area will cover all navigable waters of the Bush River and Otter Point Creek, shoreline to shoreline, bounded to the north by a line drawn from the western shoreline of the Bush River at latitude 39°21′15″ N, longitude 076°14′39″ W and thence eastward to the eastern shoreline of the Bush River at latitude 39°27′03″ N, longitude 076°13′57″ W, and bounded to the south by the Amtrak Railroad Bridge, across the Bush River at mile 6.8, between Perryman, MD and Edgewood, MD. These boundaries are based on a detailed course map for the event which the Coast Guard received from the sponsor on March 7, 2023. The COTP, and the Coast Guard Event Patrol Commander (or “Event PATCOM,” a commissioned, warrant, or petty officer of the U.S. Coast Guard who has been so designated by the COTP) will have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area. When hailed or signaled by an official patrol, a vessel or person in the regulated area will be required to immediately comply with the directions given by the COTP or Event PATCOM. If a person or vessel fails to follow such directions, the Coast Guard may expel them from the area, issue them a citation for failure to comply, or both.

Except for Harford County Spring Nationals participants and vessels already at berth, a vessel or person will be required to get permission from the COTP or Event PATCOM before entering the regulated area. Vessel operators will be able to request permission to enter and transit through the regulated area by contacting the Event PATCOM on VHF-FM channel 16. Vessel traffic will be able to safely transit the regulated area once the Event PATCOM deems it safe to do so. A vessel within the regulated area must operate at a safe speed that minimizes wake. A person or vessel not registered with the event sponsor as a participant or assigned as official patrols will be considered a spectator. Official Patrols are any vessel assigned or approved by the COTP with a commissioned, warrant, or petty officer onboard and displaying a Coast Guard ensign. Official Patrols enforcing this regulated area can be contacted on VHF-FM channel 16 and channel 22A.

If permission is granted by the COTP or Event PATCOM, a person or vessel will be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels will be required to operate at a safe speed in a manner that minimizes wake while within the regulated area and that would not endanger event participants or any other craft. A spectator vessel must not loiter within the navigable channel while present within the regulated area. Only participant vessels and official patrol vessels will be allowed to enter the race area. The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF-FM marine band radio announcing specific event dates and times.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size and duration of the regulated area, which will impact a small, designated area of the Bush River for a total of 20 enforcement hours. Although this regulated area extends across a large portion of the waterway, the rule will allow vessels and persons to seek permission to enter the regulated area, and vessel traffic able to do so safely will be able to transit the regulated area as instructed by the Event PATCOM. Such vessels must operate at a safe speed that minimizes wake and not loiter within the navigable channel while present within the regulated area. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area for 20 total enforcement hours. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor notified the Coast Guard with insufficient time to publish an NPRM and immediate action is necessary to protect personnel, vessels, and the marine environment in the Detroit River. It is impracticable and contrary to the public interest to publish a NPRM because we must establish this safety zone by May 20, 2023.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with a fireworks display.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Detroit (COTP) has determined that potential hazards associated with fireworks displays will be a safety concern for anyone within a 200-yard radius of the launch site. The likely combination of recreational vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. This rule is necessary to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

This rule establishes a safety zone from 9 p.m. through 10:30 p.m. on May 20, 2023. The safety zone will encompass all U.S. navigable waters of the Detroit River within a 200-yard radius of the fireworks launch site located near the public launch site, in Detroit, MI. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. The Captain of the Port Detroit or his designated representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small, designated area of the Detroit River one hours during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM Marine Channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 1 and a half hours that will prohibit entry within 200-yard radius of where the fireworks display will be conducted. It is categorically excluded from further review under paragraph L[60] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On February 1, 2023, the FS Series organization notified the Coast Guard that it will be hosting the Crystal Coast Triathlon in Beaufort, NC. The swim portion of this event will take place from 8 a.m. to 10 a.m. on the waters of Gallants Channel each year, on the second Saturday in May. The swim portion of the Crystal Coast Triathlon will consist of approximately 400 participants. The racecourse will be on the waters of Gallants Channel and will run from the Route 70 Bridge in Beaufort, NC, then North-West to Russel Slough Channel Day-Beacon 10 (LLNR34860).

In response, on March 30, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Gallants Channel, Beaufort, NC” (88 FR 19027). There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this swimming event. During the comment period that ended May 1, 2023, we received no comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to protect non-participating persons, vessels, and participants against the hazards associated with restricted waterway during the swim portion of this triathlon.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 70034. The Captain of the Port, Sector North Carolina (COTP) has determined the presence of vessels, and anyone else in or transiting the designated area of Gallants Channel in Beaufort, NC during the swim portion of the triathlon would pose a safety concern to the swimmers, and to the vessels and others within the designated area, due to the large number of swimmers on the waterway during the swim portion of the triathlon. This rule is necessary to protect non-participating persons, vessels, and participants from the hazards associated with the event.

As noted above, we received no comments on our NPRM published March 30, 2023. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM. The safety zone will be enforced from 8 a.m. through 10 a.m., every second Saturday in May, although the enforcement period would be subject to change. The safety zone will include all navigable waters of Gallants Channel from the Route 70 Bridge in Beaufort, NC, at N 34°43′38″, W 076°40′04″ then North-West to Russel Slough Channel Day-Beacon 10 (LLNR34860) at N 34°43′58″, W 076°40′27.5″. This area is typically used by recreational boaters. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. To request permission to transit the area, mariners can contact Coast Guard Sector North Carolina Command Center at telephone number (910) 343-3882 or on-scene representatives on VHF-FM marine band radio channel 16 (156.8 MHz).

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will not be able to safely transit around this safety zone, which will impact a designated area of Gallants Channel in Beaufort, NC. The two-hour enforcement period should not be overly burdensome to any vessel or entity because it is not an area normally used for commercial vessel traffic. The Coast Guard will issue a Broadcast Notice to Mariners about the safety zone and about this rule, to notify vessels in the region of the establishment of this regulation. The rule will allow vessels to request permission from the COTP or a designated representative to enter the zone if necessary.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that does not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting two hours that prohibits entry into portions of Gallants Channel in Beaufort, NC. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

On December 13, 2022 (87 FR 76171), the EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation. On the same day, we also made an interim final determination (87 FR 76107) that the submittal from the California Air Resources Board on behalf of the Yolo-Solano Air Quality Management District corrected the SIP deficiency from a previous submittal, allowing us to defer the imposition of sanctions resulting from our previous disapproval action concerning the District's rule.

The EPA's proposed action provided a 30-day public comment period. During this period, we received four comments. Three of the submitted comments were supportive of our assessment of the rule as described in our proposed action. One comment was irrelevant and outside the scope of this specific rulemaking action.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP. The July 14, 2021 version of Rule 2.31 will replace the previously approved version of this rule in the SIP.

As a result of this action, the sanctions that were deferred in our interim final determination are now rescinded, and a federal implementation plan to resolve the deficiency is no longer required under section 110(c) of the Act.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Yolo-Solano AQMD, Rule 2.31, Solvent Cleaning and Degreasing, revised on July 14, 2021, which regulates VOC emissions from solvent cleaning and degreasing operations. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 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); and

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

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

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 11, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the Environmental Protection Agency amends part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

This is a synopsis of the Commission's Report and Order, in MB Docket Nos. 03-185, 22-261; FCC 23-25, adopted on April 17, 2023, and released on April 17, 2023. The full text of this document is available for download at https://www.fcc.gov/document/fcc-adopts-amendments-lptv-and-tv-translator-rules . To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

This document contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, see 44 U.S.C. 3507. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document in a separate Federal Register Notice, as required by the PRA. These new or modified information collections will become effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date.

In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

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

When the Commission initially adopted rules for digital LPTV/translators in 2004, it did not apply all of the part 74 rules to digital LPTV/translators. Instead, it adopted eleven rules specifically for digital LPTV/translator stations, and also identified in § 74.789 which of the part 74 rules applicable to analog LPTV/translator operations would also apply to digital LPTV/translator operations. NPRM at para. 10, citing 47 CFR 74.786 through 74.796; Amendment of Parts 73 and 74 of the Commission's Rules to Establish Rules for Digital Low Power Television, Television Translator, and Television Booster Stations and to Amend Rules for Digital Class A Television Stations, MB Docket No. 03-185, Report and Order, 19 FCC Rcd 19331 (2004) ( 2004 Order ) (subsequent history omitted). Now that the LPTV/translator digital transition is completed, we tentatively concluded in the NPRM that it is necessary and appropriate to eliminate the analog version of our rules, and update all of the part 74 rules as necessary for digital operations. NPRM at para. 10. We tentatively concluded that the transition to digital operation did not provide any basis to relieve LPTV/translator stations of these obligations and that their continued applicability is in the public interest. Id. No commenters opposed our proposal and ATBA offered support. See Comments of the Advanced Television Broadcasting Alliance, MB Docket Nos. 03-185 and 22-261 (filed Oct. 24, 2022) (ATBA Comments) at 2. We therefore now adopt the proposals.

Specifically, we adopt the following unopposed proposals, for the reasons discussed in the NPRM . First, we conclude that a revised § 74.702(b) (Channel assignments), which describes LPTV/translator stations' secondary status with respect to a primary station's proposal to change the Table of TV Allotments, should apply to digital LPTV/translator stations, consistent with existing practice. In addition, § 74.702(a) and § 74.786 (Digital channel assignments) reflect the same information pertaining to channel assignments. We therefore retain the requirements in § 74.702(a) and delete § 74.786. Similarly, we also delete §§ 74.789 (Broadcast regulations applicable to low power television and television translator stations) and 74.787(a)(5)(viii) (Licensing). For the reasons discussed in the NPRM, we conclude that there is no need to have rules specifying which part 74 rules apply to digital LPTV/translators, as, with the elimination of the analog rules, all rules in part 74 will apply to digital. We also adopt and apply to digital LPTV/translator stations a new § 74.737 regarding antenna location, which tracks and replaces a corresponding rule that has previously applied to analog LPTV/translator stations, and a new § 74.762 regarding frequency measurements. We adopt new station identification requirements in 47 CFR 74.783 that apply to digital operations, as discussed infra.

We also adopt two proposals, with some modification, that did receive comment. In the NPRM, we proposed that § 74.750 (Transmission system facilities), regarding the certification of equipment, should continue to apply to digital LPTV/translator stations. Section 74.750(c)(5), which we proposed to move to new § 74.795(b)(6) in the NPRM at paragraph 10, requires that an LPTV/translator station's transmission equipment be capable of automatically placing the station in a “non-radiating condition” if the station's input channel is lost, either due to the absence of a transmitting signal or failure of the receiving portion of the facilities used for rebroadcasting the signal of another station. Canyon TV/Cannaliato suggests this rule is no longer relevant after the digital transition, because the transmitter would not be transmitting white noise if it were to lose its input channel. Comments of Canyon TV, MB Docket No. 03-185 (filed Aug. 17, 2022) (Canyon TV/Cannaliato Comments) at 1. Canyon TV/Cannaliato states that it is the licensee of one translator in the State of Montana. Canyon TV/Cannaliato Comments at 1. Canyon TV/Cannaliato asserts that the requirement exists “to prevent the transmission of out of band and spurious energy” and offers that a better rule might be to require licensees to ensure a translator which loses its input channel “does not radiate any spurious or out of band energy that is less than 60db [sic] below the amplitude of the pilot carrier.” Id. We disagree. We do not believe it is in the public interest for a station to transmit null packets in the event it loses its input channel and can no longer provide over-the-air programming to viewers. This practice would occupy spectrum that may be used by other entities to provide service to the public and may cause interference to other stations, even if the station that has lost its input channel is otherwise operating in accordance with the rules. See 47 CFR 74.763(c) (Time of operation) (“Failure of a low power TV or TV translator station to operate for a period of 30 days or more, except for causes beyond the control of the licensee, shall be deemed evidence of discontinuation of operation and the license of the station may be cancelled at the discretion of the FCC.”). See also ATBA Comments at 2 (supporting a number of the Commission's proposed changes, including “[m]odifying Section 74.750 regarding the certification of equipment to reflect the completion of the LPTV/translator analog to digital transition”). We also note that transmitting null packets would not constitute “broadcasting” as that term is defined in the Communications Act of 1934, as amended, and that LPTV/translator stations that fail to broadcast a signal meant to be received by the general public must notify the Commission that they are silent, and are subject to automatic cancellation under section 312(g) of the Communications Act if they are silent for more than a consecutive 12-month period. See 47 U.S.C. 153(7) (BROADCASTING.—“The term `broadcasting' means the dissemination of radio communications intended to be received by the public, directly or by the intermediary of relay stations.”). See also 47 CFR 74.701(a) and (j) (Definitions). See 47 CFR 73.1740(a)(4) (Minimum operating schedule) and 74.763(b) (Time of operation). 47 U.S.C 312(g); see also ETC Communications, Inc., Letter, 25 FCC Rcd 10686, 10688 (MB 2010) (transmitting an equipment test pattern was insufficient to establish a break in a station's silence for the purpose of section 312(g)), citing A-O Broadcasting Corporation, Memorandum Opinion and Order, 23 FCC Rcd 603 (2008). We therefore adopt our proposed changes to § 74.750 (Transmission system facilities), including retaining certain aspects of technical requirements contained in § 74.750(c) (subsections (c)(5) and (c)(8)) and move them to digital rule § 74.795(b)(6) through(b)(7).

We also adopt new § 74.762 regarding frequency measurements, as proposed in the NPRM, with some modification. Canyon TV/Cannaliato objects to this proposal, which would require LPTV/translator stations to measure the frequency of their output channel as often as necessary to ensure operation consistent with the Advanced Television Systems Committee (ATSC) standard in § 73.682 of the rules. Consistent with the prior analog rule, these measurements would be required to be made during specified intervals not exceeding 14 months. In the event a station was found to be operating in a manner inconsistent with the standard, it would be required to promptly suspend operation and not resume operation until the transmitter is restored to its assigned frequency. Canyon TV/Cannaliato claims that this process would require removing modulation, which cannot be done with most transmission equipment currently in use, and that replacing such equipment would be costly and untimely with ATSC 3.0 on the horizon. See Canyon TV/Cannaliato Comments at 1, which state that “replacing these processors/exciters would be a financial burden at $3,000+ for each translator station, but also an untimely one with ATSC 3.0 on the horizon.” Canyon TV/Cannaliato instead suggests that we employ a similar requirement to what is imposed on full power television stations in § 73.1540 (Carrier frequency measurements). Id. at 1-2. We would note that in September 2022, after Canyon TV/Cannaliato filed its comments, the Commission proposed to strike such language from 47 CFR 73.1540 because this technical engineering term related to analog television operation and is now obsolete. See Part 73 NPRM at n.12. By contrast, ATBA supports our proposed frequency measurement requirement. ATBA Comments at 2. No other comments were received regarding this proposal. We disagree with the premise of Canyon TV/Cannaliato's argument. We believe that LPTV/translator stations can meet the proposed frequency measurement requirement without replacing existing equipment. Stations can comply with the rule by reviewing the station's signal on a spectrum analyzer and determining that the pilot carrier (for ATSC 1.0) and the overall signal (for ATSC 1.0 and ATSC 3.0) appear correctly and are properly contained within their assigned spectrum, consistent with the standard in use and our rules. This approach would not be burdensome, even on an annual basis, and would ensure the station is operating in a manner consistent with the standard. We believe the rule as proposed is able to preemptively correct potential equipment issues and does not impose the cost of additional equipment on stations. However, for the sake of clarity, we identify the specific portions of § 73.682 that contain the information needed to conduct frequency measurements, rather than citing to the entire broadcast standard (§ 73.682 as a whole), which includes audio and video transmission standards irrelevant to frequency measurements, as well as the PSIP standard, which does not apply to LPTV/translators. Therefore, the rule we adopt today in § 74.762 replaces a reference to § 73.682 with references to § 73.682(d), A/53 Part 2 (for ATSC 1.0), and § 73.682(f)(2) (for ATSC 3.0).

We adopt the proposals set forth in the NPRM relating to LPTV/translator protection of the Land Mobile Radio Service (LMRS). Sections 74.709(a) and (b) (Land mobile station protection) of the Commission's rules require LPTV/translator stations to protect certain channels for use by the LMRS in thirteen U.S. cities listed in the rule, which specifies a 130 kilometer radius from the coordinates for these cities as a threshold for determining interference. 47 CFR 74.709 (Land mobile station protection). The 130 kilometer radius around each set of coordinates was calculated based on the 1927 North American Datum (NAD 27). As a result of improvements in technology and measuring capabilities, NAD 27 has been superseded by the 1983 North American Datum (NAD 83). The Commission's Office of Engineering and Technology and Office of the Managing Director have previously explained that “[g]eodetic datum is a set of constants specifying the coordinate system used for calculating the coordinates of points on the Earth. NAD 83 was developed based on satellite and remote-sensing measurement techniques, and provides greater accuracy than the older NAD 27.” Amendment of Parts 1, 2, 25, 73, 74, 90, and 97 of the Commission's Rules to Make Non-Substantive Editorial Revisions to the Table of Frequency Allocations and to Various Service Rules, Memorandum Opinion and Order, 23 FCC Rcd 3775, 3796, para. 61, n.101 (OET/OMD 2008) ( 2008 OET/OMD Order ). Because it provides greater accuracy and the older NAD 27 is outdated, we proposed in the NPRM to amend the rule to use NAD 83 for purposes of specifying these coordinates. NPRM at para. 12; 2008 OET/OMD Order, 23 FCC Rcd at 3796, para. 61, n.101. We further tentatively concluded that updating the coordinates in the rule to NAD 83 would serve the public interest by conforming the values with the coordinate system used in the Commission's LMS database and with those found in § 90.303(b) (Availability of frequencies) of the rules, which define the service that § 74.709 protects. Id. Section 90.303(b) defines the specific center points used to permit land mobile operations, which represent the specific locations that § 74.709(a) is designed to protect. See 47 CFR 90.303(a) (stating that “coordinates are referenced to the North American Datum 1983 (NAD83)”) and (b) (listing coordinates of geographic centers and TV channels of thirteen urbanized areas). As such, conforming the values in § 74.709(a) to those of § 90.303(b) would help to ensure that land mobile operations are appropriately considered and protected from LPTV/translator operations. There is no equivalent to § 74.709(b) in the Part 90 rules, so we therefore proposed to convert these values to NAD 83 by conforming them to the as-filed coordinates for the associated television station if the associated station still exists at the same location, or if it does not, converting them directly to NAD 83.

Commenters generally agree with our proposal to replace the NAD 27 coordinates with the more current NAD 83, but some commenters express specific concerns. See, e.g., ATBA Comments at 2 (“ First, the FCC proposes to replace the use of the near century old NAD 27 geodetic datum with the more current NAD 83 to determine land mobile protections. ATBA agrees that the use of NAD 83 will improve accuracy and consistency with the Commission's other databases.”) (internal references omitted). The National Association of Broadcasters (NAB) points out, and the Society of Broadcast Engineers (SBE) agrees, that a few of the coordinates we proposed are different from those derived if the existing coordinates are converted to NAD 83 via the North American Datum Conversion program (NADCON). See Comments of the National Association of Broadcasters, MB Docket Nos. 03-185 and 22-261 (filed Oct. 24, 2022) (NAB Comments) at 2-3; Reply Comments of the Society of Broadcast Engineers, Inc., MB Docket Nos. 03-185 and 22-261 (filed Nov. 7, 2022) (SBE Reply) at 3-4. As NAB notes, NADCON was superseded by the NGS Coordinate Conversion and Transformation Tool (NCAT). NAB Comments at 2. We note that the coordinates we proposed are the ones found in Part 90 of the Commission's rules, and differ by 25 meters at most (approximately 82 feet). Given that the values in this table are designed to protect the Part 90 service, we believe the most consistent approach is to make the values in § 74.709 match those found in Part 90. Staff discovered after the NPRM was issued that the proposed Miami longitude seconds value contained a typographical error, which is being corrected in this Report and Order.

NAB also encourages us to add a note to § 74.709(a) for Cleveland, Ohio and Detroit, Michigan that is consistent with the notes found in Part 90 indicating that these channels are not available for land mobile use and thus do not require protection. NAB Comments at 4. See 47 CFR 90.303(b), nn. 2 and 3. See also SBE Reply at 6. We also note that there are full power and Class A television stations assigned to some of these channels already, making them unusable for land mobile operations at the present time. In addition, NAB urges the Commission to consider using this docket to “remove land mobile assignments that have remained unused for more than 50 years,” citing Cleveland, Ohio and Detroit, Michigan. NAB Comments at 4. We note that a pending petition for rulemaking submitted by the Land Mobile Communications Council (LMCC) also addresses this issue. In that petition, LMCC proposed removing the Cleveland, Ohio and Detroit, Michigan rows entirely from the relevant rule section in Part 90. See Consumer & Governmental Affairs Bureau Reference Information Center Petition for Rulemakings Filed, Land Mobile Communications Counsel (LMCC), Petition for Rulemaking in the Matter of Subpart L of Part 90 of FCC Rules: Updated Method to Determine Potential Interference Between Land Mobile Stations and Digital Television Stations Operating in the 470-512 MHz Band (“T-Band”), Public Notice, Report No. 3186 (rel. Jan. 12, 2022); Petition for Rulemaking of Land Mobile Communications Council, RM-11915 (filed June 24, 2021). Due to the pendency of that petition, we decline at this time to add a note to § 74.709(a). We do not believe that this will create confusion for licensees, as the note in Part 90 already indicates that the Cleveland, Ohio and Detroit, Michigan channels are not available and thus those areas do not require protection.

NAB also requests that this update to the coordinates not result in stations having to relocate. NAB Comments at 4. We note that the coordinates in the rule are used only to determine whether an LPTV/translator application's interfering contour is outside of the relevant LMRS protected zone for the potentially affected channel and community for purposes of granting an application. We are not aware of any actual instance in which a station would have to relocate and we believe it is unlikely that these minor corrections will result in any stations suddenly finding themselves no longer compliant with § 74.709. But in response to NAB's concern, we clarify that absent any actual interference, we do not anticipate requiring an LPTV/translator station to make changes solely due to these coordinate updates. See 47 CFR 74.703(e) (Interference) provides that “[LPTV/translator] stations are being authorized on a secondary basis to existing land mobile uses and must correct whatever interference they cause to land mobile stations or cease operation.” LPTV/translator stations are required to protect land mobile operations even if they otherwise comply with the rules.

We decline to adopt the NPRM proposal to delete the rule implementing the LPTV Pilot Project Digital Data Services Act (DDSA). NPRM at para. 14. See LPTV Digital Data Services Act (Pub. L. 106-554, 114 Stat. 4577, Dec. 21, 2000 (DDSA), codified at 47 U.S.C. 336(h)); 47 CFR 74.785 (Low power TV digital data service pilot project). The DDSA mandated that the Commission issue regulations establishing a pilot project pursuant to which twelve specified LPTV stations could provide digital data services to demonstrate the feasibility of using LPTV stations to provide high-speed wireless digital data service, including internet access, to unserved areas. When the Commission implemented the DDSA in 2001, the Commission had not yet authorized Class A or LPTV/translator stations to operate digital facilities. The DDSA was implemented by the Commission in Implementation of LPTV Digital Data Services Pilot Project, Order, 16 FCC Rcd 9734 (2001); Order on Reconsideration, 17 FCC Rcd 2988 (2002); 47 CFR 74.785. In 2004, the Commission authorized all LPTV/translator stations to operate in digital. See 2004 Order. Currently, all LPTV stations must operate in digital and may offer ancillary and supplementary services, including the services contained in the pilot project of the DDSA. See 47 CFR 74.790(i) and (m) (Permissible service of TV translator and LPTV stations); 73.624(c) and (e) (Digital television broadcast stations). The Commission's ancillary and supplementary rules provide that broadcasters may offer services that “include, but are not limited to computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and any other services that do not derogate DTV broadcast stations' obligations under paragraph (b) of this section.” 47 CFR 73.624(c). One difference between the Commission's ancillary and supplementary rules and the DDSA is that the rules require that ancillary and supplementary services may not derogate the station's required signal to viewers, while the DDSA does not. We stated in the NPRM that none of the stations identified in the statute are currently providing service pursuant to an experimental authorization issued under the DDSA, and that some of the stations have been cancelled. NPRM at para. 14. At the time the statute was enacted, the LPTV stations to which it applied were KHLM-LP, Houston, Texas; WTAM-LP, Tampa, Florida; WWRJ-LP, Jacksonville, Florida; WVBG-LP, Albany, New York; KHHI-LP, Honolulu, Hawaii; KPHE-LP (K19DD), Phoenix, Arizona; K34FI and K65GZ, Bozeman, Montana; WXOB-LP, Richmond, Virginia; WIIW-LP, Nashville, Tennessee; WSPY-LP (now WLPD-CD), Plano, Illinois; W24AJ (now WPVN-CD), Aurora, Illinois; and “[a] station and repeaters . . . [to provide] service to communities in the Kenai Peninsula Borough and Matanuska Susitna Borough.” According to LMS, three of these stations (K34FI, K44GE (formerly K65GZ), and WXOB-LP) have been cancelled. In addition, two of the stations (WLPD-CD and WPVN-CD) are now Class A television stations, and the DDSA only applies to LPTV stations. As a result, in the NPRM, we tentatively concluded that this rule served no useful purpose. NPRM at para. 14.

Three comments were submitted in response to this proposal in the NPRM, all urging the retention of the DDSA rule. These commenters question the Commission's authority to modify the Congressional directive, and seek to preserve the program. Comments of U.S. Television LLC, MB Docket Nos. 03-185 and 22-261 (filed Oct. 24, 2022) (U.S. Television LLC Comments) at 1-2; Comments of Wireless Access, LLC, MB Docket Nos. 03-185 and 22-261 (filed Oct. 24, 2022) (Wireless Access Comments) at 1, 4; Reply Comments of the LPTV Broadcasters Association, MB Docket Nos. 03-185 and 22-261 (filed Nov. 3, 2022) (LPTV Broadcasters Association Reply) at 3. Based on the interests set forth by these commenters, we conclude that retaining the DDSA digital pilot program rule may serve a useful purpose, and therefore, we decline to adopt the proposal in the NPRM and will retain the DDSA digital pilot program rule.

After evaluation of the record, we are persuaded to adopt our LPTV station identification proposals, but we decline to adopt our proposed changes to identification requirements for TV translator stations at this time. In the NPRM, we examined § 74.783(a) (Station identification), which requires analog LPTV/translator stations to provide station identification. NPRM at para. 15. See 47 CFR 74.783(a) through (c) (Station identification). When the Commission adopted its rules for digital LPTV/translator operations in 2004, it declined to adopt a separate rule for digital stations, choosing instead to allow such LPTV/translator stations the flexibility to identify themselves in different manners, including following the analog station identification provisions in § 74.783(a). See 2004 Order, 19 FCC Rcd at 19337-38, paras. 15-18 (noting that Commission was unable to award second channels to LPTV/translator or Class A stations to facilitate their digital transitions due to the lack of sufficient spectrum. To prevent the disruption of service to viewers, the Commission determined that the low power television digital transition should be completed at some fixed time after the deadline for full power television stations, which would allow viewers to transition to digital service without loss of their existing service). See id. at 19394, para. 192 (declining to establish identification requirements for digital LPTV and TV translator stations). While the Commission declined to adopt such a requirement, it explained that it believed that digital TV translator and LPTV stations could be practically identified by other means. The Commission encouraged “operators of digital LPTV and TV translator stations to experiment with possible means for identifying their stations” and “plan[ned] to revisit this issue in a future periodic review proceeding.” See id. at 19395, para. 194. Thus, we disagree with the National Television Association's (NTA) assertion that “18 years ago the Commission decided that digital translators would not be subject to a station identification requirement.” Comments of the National Television Association, MB Docket Nos. 03-185 and 22-261 (filed Oct. 24, 2022) (NTA Comments) at 1. These provisions allow identification via (1) transmitting the call sign in International Morse Code at least once every hour, or (2) arranging for the primary station whose signal is being rebroadcast to identify the translator station by transmitting an easily readable visual presentation or a clearly understandable aural presentation of the translator station's call letters and location. 47 CFR 74.783(a)(1) and (2) (Station identification). We tentatively concluded in the NPRM that given the completion of the LPTV/translator digital transition, we should require digital LPTV/translator stations to comply with the station identification provisions set forth in § 74.783, as revised to reflect digital operations. NPRM at para. 15; 47 CFR 74.783(a)(1) and (2). We also proposed in the NPRM to include the option for LPTV/translator stations to use the Program and System Information Protocol (PSIP) to transmit the station's call sign as the “short channel name” on at least one stream of programming that the LPTV/translator station transmits. PSIP transmits a television station's virtual channel ( see infra ), and can also transmit electronic program guides with titles and descriptions to be decoded and displayed by a viewer's digital receiver. ATSC A/65C defines the standard protocol—referred to as PSIP—for the transmission of data tables compatible with digital multiplex bit streams via terrestrial broadcasts. NPRM at para. 16. The “short channel name” is a seven character field in the Terrestrial Virtual Channel Table that stations use to comply with the digital transmission standard set forth in ATSC A/65C as incorporated in § 73.682(d) of our rules. See 47 CFR 73.682(d). For example, a station would enter in the short channel name field the station's call sign, e.g., “K20DA-D.”

As discussed in detail below, in light of the record on these proposals, we decline to adopt identification requirements for TV translator stations at this time in light of concerns of commenters, but we may consider extending station identification requirements to TV translator stations in a future proceeding. We do find sufficient support to require digital LPTV stations to comply with the station identification provisions set forth in § 74.783 applicable to analog operations, updated to reflect digital operations. We also adopt our proposal to include an option for LPTV stations to use the PSIP to transmit the station's call sign as the “short channel name” on at least one stream of programming that the LPTV station transmits.

Identification Requirements for TV Translator Stations. A number of commenters objected to our proposed station identification requirements for TV translator stations. These commenters express concerns about cost and consumer confusion. NTA Comments at 1 and 3. In support, NTA cites translator use in Alaska and asserts that “Alaska Public Television operates about 125 heterodyne translators in very small and remote communities. Under the Commission's PSIP identification alternative, unless identified by DTV primary stations, these translators would have to be replaced at great cost.” Id. at 4. NTA also indicates that not all TV translator stations are identifying at this time, and if we were to adopt a rule, many of those translators would not have the means to do so. One translator owner and operator of a Montana translator station estimates that if not identified by their DTV primary station, the cost of updating equipment to enable translators to insert data into the PSIP of the received data would cost between $4,000 and $10,000 for each translator. Id. at 5 and Exhibit 1, Statement of Charles J. Cannaliato. NAB Comments at 5. See also SBE Reply at 2 (“SBE supports NAB's recommendation that [the ability of translating stations to make changes in their PSIP] be limited to those LPTV stations that actually do originate programming to avoid causing confusion among viewers.”). NAB recommends instead that the use of PSIP for station identification purposes be limited to LPTV stations that originate programming and do not operate as translators. Id.

In light of the commenter concerns about the technical challenges inherent in our proposal for TV translators and the unintended costs that could be imposed by the proposed modification of the rule, we decline to adopt the proposed identification requirements for TV translator stations at this time. Consistent with the Commission's decision in 2004 to allow TV translator stations the flexibility to identify themselves in different manners, we encourage TV translator stations that are not currently providing station identification to explore options for providing identification. See 2004 Order, 19 FCC Rcd at 19395, para. 194. In this regard, instead of the proposed mandatory requirement, we adopt a rule that includes one voluntary option for TV translator stations to identify their signal, specifically, arranging with the originating station to provide identification in a visual manner. See revised § 74.783(b). We note that FM translator stations, despite not being able to use visual identification, are still required to identify. One option for identifying is to arrange for the primary station to identify the translator three times per day. See 47 CFR 74.1283(c)(1) (Station identification).

Identification Requirements for LPTV Stations. After evaluation of the record, we are persuaded to require LPTV stations to comply with our analog LPTV station identification rules now that the LPTV/translator digital transition is complete and analog operations have terminated. Accordingly, we adopt the proposal in the NPRM that digital LPTV stations continue to comply with the station identification provisions set forth in § 74.783, updated to reflect digital operations. NPRM at para. 15. We received support for this proposal, and received no opposition to the proposal with respect to LPTV stations that originate programming. ATBA Comments at 2 (ATBA “supports the Commission's proposals to update its station identification rules to reflect digital operations.”) (internal references omitted); Comments of One Ministries, Inc., MB Docket Nos. 03-185 and 22-261 (filed Sept. 26, 2022) (OMI Comments) (“OMI agrees that it is helpful to have the using [sic] the option for LPTV/translator stations to use the Program and System Information Protocol (PSIP) to transmit the station's call sign as the `short channel name' on at least one stream of programming that the LPTV/translator station transmits.”). We do not believe the transition to digital operation provides any basis to relieve LPTV stations that originate programming of their obligation to provide station identification, and we therefore adopt our proposal to require such stations to follow the station identification provisions set forth in § 74.783. Consistent with our decision above, LPTV stations that do not originate programming will be considered to be under the same rules for station identification as translators. See supra.

We also adopt our proposal in the NPRM to revise § 74.783(a)(1) to provide an alternative identification method for LPTV stations to replace the outdated option to insert the call sign via Morse Code. NPRM at para. 16. 47 CFR 74.783(a)(1) (Station identification). Specifically, we proposed to allow the option to use PSIP to transmit the station's call sign as the “short channel name” on at least one stream of programming that the LPTV station transmits. NPRM at para. 16 and n.48. Commenters supported this update. OMI agrees that it is helpful for LPTV stations to use the PSIP to transmit the station's call sign as the “short channel name” on at least one stream of programming that the LPTV station transmits. OMI Comments. ATBA also supports the proposal, saying it “believes the proposed alternate methods for stations to identify their broadcasts will streamline the station identification process . . .” ATBA Comments at 2. We agree, and we amend the rules accordingly to include the option for LPTV stations to use PSIP to transmit the station's call sign as the “short channel name” on at least one stream of programming that the LPTV station transmits. In addition, because we have decided herein to apply these requirements to LPTV stations but not to TV translator stations, we reorganize § 74.783 to make it more clearly understandable by delineating the subsections that separately apply to LPTV stations (§ 74.783(a)), TV translators (§ 74.783(b)), and to both (§ 74.783(c)). See infra. In its comments, it appears that ATBA is suggesting that the alternative method apply to full power and Class A television stations. See ATBA Comments at 2-3 (stating the alternate method should apply to “all stations and streams”). To the extent that ATBA's proposal relates to stations in categories beyond LPTV stations, the proposal is outside the scope of this part 74 LPTV/translator rules proceeding, and thus we decline to adopt it for other categories of stations.

While not opposing this change, one commenter expressed concern that, because some Commission-assigned LPTV/translator call signs are in the format of two numbers followed by three letters, this proposal would require eight characters, but the “short channel name” field in PSIP only allows seven characters. See revised § 74.791(d) (Call signs), as discussed. See Canyon TV/Cannaliato Comments at 1. This commenter proposed dropping the “-D” from the end of call signs which have such a designation, as this is a remnant of when it was necessary to distinguish between analog and digital operations. Id. While the “-D” may be superfluous with the transition of all LPTV/translator stations to digital, we do not believe it is necessary to prescribe a mandatory change of the call signs of a significant number of stations. Instead, we clarify here that any station with an eight character call sign that seeks to identify by this method may opt to drop the “-D” when placing it in the “short channel name” field. We have revised § 74.783 to include this clarification. See revised § 74.783(a)(2).

TSID Requirements. We adopt the proposal in the NPRM regarding LPTV/translator stations' use of transport stream ID (TSID) with some modifications. To identify a station using the PSIP “short channel name,” a station must request and be assigned a TSID. See NPRM at para. 17. In the NPRM, we proposed to require that an LPTV/translator station that has requested and been assigned a TSID must broadcast with the station's assigned TSID during its hours of operation. Id. We also proposed to require translator stations that had not been assigned a TSID to pass through the TSID of their respective originating station. See NPRM at para. 17 and Appendix B (proposed § 74.783(d)(1)). See revised § 74.783(c). The proposed requirement to broadcast with the assigned TSID would be in addition to, and not in place of, one of the other identification requirements. See NPRM at para. 17. We also proposed to apply the same requirement to a station's bit stream ID (BSID), which is the equivalent value used in ATSC 3.0. See NPRM at para. 17 and proposed § 74.783(d)(2).

While the proposal did receive support (see OMI Comments), several commenters object to this proposal, concerned that it would require translators to insert a TSID or BSID. See, e.g., Canyon TV/Cannaliato Comments at 1. Canyon TV/Cannaliato asserts that the proposal to use TSIDs would “impose a significant financial burden to community translators because the majority (perhaps more than 80%) of translator stations do not have the capability of inserting a TSID into the data stream.” Id. For example, NAB asserts that the use of a BSID is contrary to the applicable ATSC standard, and urges the Commission not to allow translator stations to use a BSID for identification, arguing that it would create industry and viewer confusion. NAB Comments at 5-6. SBE also joins NAB in “advocating against the use of BSID for translator stations operating in ATSC 3.0.” SBE Reply at 3. The NPRM's proposal was directed only at scenarios where stations have assigned TSIDs because they are either originating programming or otherwise modifying the streams of originating stations. For example, a single TV translator station may rebroadcast the respective primary streams of several different originating television stations, each of which have their own TSIDs. A TV translator, however, can only pass through one TSID, and currently our rules do not address which TSID a TV translator station would use. Under our adopted rule, under these circumstances, a TV translator station providing PSIP would be required to ask to be assigned its own unique TSID and broadcast it. Our intent is to prevent a station that is modifying one or more originating station(s) stream(s) from failing to transmit a TSID, and preventing a station that is originating programming while providing PSIP data from failing to transmit its assigned TSID even though the PSIP equipment would allow it to do so. Our aim is to eliminate cases where stations that are originating programming and are assigned TSIDs do not properly transmit that TSID, or where stations are otherwise passing through signals from one or more originating stations but either fail to provide a TSID or provide an incorrect one. Contrary to commenter concerns, we do not expect a translator that is not otherwise altering the signal of a single originating station to insert a unique TSID or BSID different from that of the originating station. We therefore adopt our proposal, with clarifying changes to require stations assigned a TSID to transmit that TSID. See revised § 74.783(c)(1) (stating that all low power TV stations originating programming shall transmit their assigned odd-numbered TSID, if one has been assigned. All TV translator stations, and low power TV stations not originating programming, shall pass through the assigned TSID of the originating station, unless the station is modifying the signal of one or more originating stations in such a way that it is not clear which originating station's TSID should be used. In that case, the station shall transmit its assigned odd-numbered TSID if one has been assigned). We conclude that the TSID requirement is in addition to, and not in place of, one of the other identification requirements. We also adopt the same requirement with respect to a station's BSID, which has the same function as the TSID, but in the ATSC 3.0 context.

LPTV Virtual Channels. We adopt the proposal in the NPRM to codify the Media Bureau's practice of requiring LPTV stations to transmit with a virtual channel that avoids conflicts with any full power or Class A station's virtual channel in cases where a contour overlap would arise, or with virtual channels chosen by other LPTV stations. NPRM at para. 18. During the DTV transition, most full power television stations transmitted two over-the-air signals using two different radio frequency (RF) channels—an analog (NTSC) channel and a paired digital channel capable of transmitting multiple streams of programming. ATSC, an international, non-profit member organization, developed the PSIP standard setting forth rules and priorities for determining a digital television station's “virtual” channel number, the channel number viewers see on their television receiver when they view a digital television station over-the-air. See Request for Declaratory Ruling by Meredith Corporation and “Alternative PSIP Proposal” by PMCM TV, LLC for WJLP (formerly KVNV(TV)), Middletown Township, New Jersey, 32 FCC Rcd 7229, 7230, para. 3 and passim (2017), petitions for review denied, PMCM TV, LLC v. Fed. Commc'ns Comm'n, 731 Fed. App'x 1 (D.C. Cir. 2018). Under Annex B.1.1 to ATSC 65/C, which sets forth the mandatory requirements for assigning the virtual channel number components of full power and Class A stations' virtual channels, most of those stations' virtual channel numbers begin with their analog channel numbers. A TV translator station is required to pass through the virtual channel number of its primary station unless it conflicts with a broadcaster operating in the service area of the translator, in which the translator must change its virtual channel number to a non-conflicting number. Annex B.1.10. As discussed below, Annex B does not apply to LPTV stations. We stated in the NPRM that LPTV licensees are not required to comply with the virtual channel assignment methodology found in ATSC A/65C Annex B, as full power and Class A stations are, and we were not proposing to require them to do so. NPRM at para. 18.

ATBA agrees with our proposal, but asks us to provide “greater flexibility” to select a virtual channel. ATBA Comments at 3. In the absence of any further information of what this request entails, we decline to make further modifications. But we note that LPTV stations are already permitted to select any valid virtual channel within channels 2-69 that does not create a conflict.

SBE proposes that we require LPTV stations to enter their virtual channels in LMS. SBE Reply at 2-3. NAB, in its reply, also notes that virtual channel assignments and changes in virtual channel assignments should be included in the Commission's database to “avoid potential conflicts and viewer confusion.” See Reply Comments of the National Association of Broadcasters, MB Docket Nos. 03-185 and 22-261 (filed Nov. 7, 2022) (NAB Reply) at 3. We note that we already allow stations to informally request that the staff enter their virtual channels into LMS on a voluntary basis, and encourage LPTV stations to do so. LPTV stations may ask the staff to indicate their virtual channel in LMS by sending a request to the Video Division in the Media Bureau. Such requests should include the station's facility ID, virtual channel, and a map showing the station's contour and the contours of surrounding stations using the indicated virtual channel to demonstrate the lack of overlap with other full power, Class A, and LPTV/translator stations. In the event that overlap with other full power, Class A, or LPTV/translator stations is observed, the staff will notify the station making the request that it must choose an alternative virtual channel. Because virtual channel assignments do not require Commission approval, we do not believe it is necessary to make this voluntary procedure mandatory, and we decline to explicitly require it.

SBE also requests that the Commission affirm that full power and Class A virtual channels have primary rights over those of LPTV/translator stations. SBE Reply at 2-3. We believe that our proposed language makes this clear, in that LPTV/translator stations are required to utilize a virtual channel which does not create an overlap with a station that is required to follow ATSC A/65C, Annex B, which includes full power and Class A stations. See revised § 74.790(n). See also ATSC A/65C, Annex B.1.8, which indicates that the virtual channel number used by a broadcaster should “be different from those used by any other broadcaster with an overlapping DTV service area.” Should the contour of a full-power and Class A station come into conflict with that of an LPTV, since the LPTV station has secondary status, it is required to change its virtual channel. For example, the Commission recently announced winning bidders in the Commission's auction of construction permits for full power television stations (Auction 112), and awarded a total of eighteen construction permits. Auction of Construction Permits for Full Power Television Stations Closes, Winning Bidders Announced for Auction 112, AU Docket No. 21-449, Public Notice, DA 22-659 (OEA/MB 2022). These new full power stations will determine their virtual channels using ATSC A/65C, Annex B, as required by § 74.682(d) of the Commission's rules. If that virtual channel number overlaps with that of an LPTV station, the LPTV station will be required to change its virtual channel. As a result, we do not believe it is necessary to amend the proposed language to affirm SBE's assertion.

In light of the comments, we find that it is in the public interest to codify the Bureau's practice of requiring LPTV stations to transmit with a virtual channel that avoids conflicts with any full power or Class A station's virtual channel in cases where a contour overlap would arise, or with virtual channels previously chosen by other LPTV stations. 2004 Order, 19 FCC at 19413, para. 243, n.505. See revised § 74.790(n). Absent this rule change, LPTV stations could potentially create contour overlap with full power and Class A stations, leading to virtual channel conflicts. We reiterate that LPTV licensees are not required to comply with the virtual channel assignment methodology found in ATSC A/65C, Annex B, as full power and Class A stations are required to do. 2004 Order, 19 FCC Rcd at 19413, para. 243 (noting that the Commission will not at the time require digital LPTV stations to comply with the ATSC A/65B standard). See also ATSC A/65C, Annex B (2006) (ATSC A/65C, Annex B); 47 CFR 73.682(d) (TV transmission standards) (The Commission later incorporated the 2006 version of Annex B into the Commission's rules by reference for full power and Class A stations).

LPTV/Translator Call Sign Assignment Protocol. In this Report and Order, we adopt our tentative conclusion from the NPRM that we should add a new § 74.791(d) (Call signs) to reflect the staff's current call sign assignment protocol for LPTV/translator stations. NPRM at para. 19 and Appendix B. Section 74.783(d) (Station identification) provides that an LPTV/translator station call sign will be made up of the letters K or W, the station's channel number, and “two additional letters.” See 47 CFR 74.783(d) (Station identification). For certain channel numbers, however, all two letter combinations have been exhausted for several years, and consistent with the Commission's policy that all stations have a unique call sign, stations have been assigned a three letter call sign beginning with “AAA,” continuing sequentially through the alphabet for the third letter. This three letter protocol is built into the Commission's LMS system. ATBA supports this proposal, and no entity opposed it. ATBA Comments at 3. Considering the necessity of modifying the two letter protocol due to the exhaustion of such combinations, and the fact that any change would affect the staff's ability to continue timely processing applications, we adopt the proposal and amend § 74.791 to add paragraph (d).

Processing Priority. We adopt the processing priority proposal put forth in the NPRM. Section 74.708(b) (Class A TV and digital Class A TV station protection) requires LPTV/translator stations to protect previously filed Class A applications, and § 74.710(a) (Digital low power TV and TV translator station protection) requires LPTV/translator stations to protect previously filed LPTV/translator applications. 47 CFR 74.708(b) (Class A TV and digital Class A TV station protection) and 74.710(a) (Digital low power TV and TV translator station protection). These subsections reference the Bureau's practice that if two applications are filed on different days and otherwise have equal processing priority, the filing earlier in time will receive priority. In the NPRM, we tentatively concluded that these requirements should be maintained in the rules, but moved into the Commission's digital rules in § 74.787(c) (Licensing). NPRM at para. 20. No commenters opposed this proposal. We therefore adopt the proposal, maintain the rules, and move them into the Commission's digital rules in § 74.787(c). 47 CFR 74.787(c).

Vertical Polarization Considerations. We adopt our proposal in the NPRM to remove references to antennas with solely vertical polarization in certain part 74 rules. Sections 74.735(c) (Power limitations) and 74.750(f) (Transmission system facilities) of the rules reference vertically polarized transmitting antennas. 47 CFR 74.735(c) (Power limitations) and 74.750(f) (Transmission system facilities). We noted in the NPRM that despite the reference, the Commission's LMS filing system does not and has not allowed stations to specify a vertically polarized antenna. Further, we noted that television viewers' home receive antennas are generally horizontally, not vertically, polarized. In the NPRM, we therefore proposed to modify the language in § 74.735(c) and in revised § 74.750(f) to remove the reference to antennas with solely vertical polarization. NPRM at para. 21. We also proposed to clarify, consistent with the similar rule applicable to full power stations, that the horizontally polarized power is to be higher than or equal to the vertically polarized power in all directions, and require documentation that antennas meet this requirement. See 47 CFR 73.682(a)(14) (TV transmission standards) (“It shall be standard to employ horizontal polarization.”). See also 47 CFR 73.316(a) (FM antenna systems). NPRM at para. 21 and n.57.

OMI and NTA believe we should retain the reference to antennas with solely vertical polarization and OMI requests that we modify LMS to allow them. OMI's comments do not argue in favor of antennas with solely vertical polarization so much as they make a case for the use of a vertical polarization component. OMI Comments. We note that a vertical polarization component is already permitted via elliptically- and circularly-polarized antennas, and that these types of antennas would not be implicated by the rule change proposed. 47 CFR 74.735(c). While there may be future applications where a vertically polarized component is helpful, use of antennas with solely vertical polarization would require television viewers to change their home receive antennas from horizontal to vertical polarization, which we do not believe viewers should be required to do. Thus, we do not believe that permitting the use of antennas with solely vertical polarization makes sense. We therefore decline to retain this reference for unknown future applications, but will address such applications when and if they materialize.

As NAB notes, station assignments and analysis parameters assume the use of horizontal polarization, U.S. bilateral agreements with Canada and Mexico do not permit solely vertical polarization, and NAB suggests that “[a] loss of standardization in this regard will adversely affect the entire broadcast television industry.” NAB Reply at 4. We agree with NAB's concerns, and we therefore adopt the proposal in the NPRM and modify the language in § 74.735(c) and in revised § 74.750(f) to remove the reference to antennas with solely vertical polarization. NTA cites a single case of a TV translator station in Mink Creek, Idaho (Mink Creek) which takes advantage of a polarity shift caused by reflecting the signal of a vertically-polarized station off a mountain in order to achieve horizontal polarity at the receive antennas in the community targeted by the station. NTA Comments at 11-12. While we acknowledge this example, we do not believe it is evidence of a commonly-used method or cause for the Commission to contemplate use of vertical-only operations in its licensing or record keeping. We are not aware of any other examples of scenarios like Mink Creek. Given the burdens associated with changing equipment, we direct the Media Bureau to consider requests for waiver of the rule. Mink Creek and any other existing similar situations where stations are currently operating with vertical-only polarization should promptly, upon the effective date of these rules, submit a waiver request to the Video Division, Media Bureau.

With respect to our proposal to require that vertical power not exceed horizontal power, commenters agree that the our proposal might be overly prescriptive in that an antenna could be designed to comply with the rule, but after installation be found to have a slightly higher vertical than horizontal power. In that scenario the rule as proposed could require the antenna to be removed and replaced. See, e.g., NAB Comments at 6; Letter from Robert Weller, Vice-President, National Association of Broadcasters, to Marlene H. Dortch, Secretary, FCC (Nov. 18, 2022) ( NAB Ex Parte ) (requesting that some clarification may be needed to ensure that proposed rule changes do not adversely affect the operation of existing stations or impose new requirements); Reply Comments of Hammett & Edison, Inc., Consulting Engineers, MB Docket Nos. 03-185 and 22-261 (filed Nov. 7, 2022) (H&E Reply) at 1. We agree with commenters and note that this outcome was not the intent of the proposal. Thus, we clarify that the amended rule requires that an antenna should be designed such that the horizontal power is intended to be higher than or equal to the vertical power in all directions. This new requirement is consistent with stations being primarily horizontal, with a possible vertical component intended to be less than or equal to the horizontal component. See revised § 74.735(c). NAB and SBE also suggest that our wording in the proposed revised § 74.735(c)(2)—to require submission of documentation that the antenna is designed such that the horizontal power is intended to be higher than or equal to the vertical power in all directions—may have been unclear. NAB Comments at 9; SBE Reply at 6. NAB put forth a suggested revision to provide additional clarity. NAB Comments at 9 (suggesting that the modified text should read instead: “Relative field azimuth plane pattern (patterns for both horizontal and vertical polarization should be included if elliptical or circular polarization is used) of the proposed antenna. A value of 1.0 should be used for the maximum radiation in the horizontal polarization.”). We agree that NAB's formulation contains a clearer statement of the intent of our original proposal. We therefore adopt the proposal in the NPRM using the modified, clearer language proposed by NAB.

Antenna Pattern Plots. We adopt our proposal in the NPRM to update our requirements for submitting antenna pattern plots in applications, with minor adjustments. Section 74.735(c)(4) (Power limitations) currently requires that horizontal plane patterns be plotted “to the largest scale possible on unglazed letter-size polar coordinate paper.” 47 CFR 74.735(c)(4). The NPRM suggested that this requirement is outdated and not consistent with current licensee and Commission staff practices. We proposed in the NPRM to require licensees to submit patterns in the form of a .pdf attachment to an application filed in LMS, and clarify that similar plots are required for elevation (§ 74.735(c)(6)) or matrix patterns (§ 74.735(c)(7)) submitted in the LMS form. NPRM at para. 22. See revised §§ 74.735(c)(6) and 74.735(c)(7). No commenter disagreed with our assessment, but NAB points out, and SBE agrees, that the terminology we used in the proposed text for the revised rule could be modified to more accurately reflect our intent. NAB Comments at 9; SBE Reply at 6. NAB urges that the proposed § 74.735(c)(4) should read: “All azimuth plane patterns be plotted in a PDF attachment to the application in a size sufficient to be easily viewed.” Id. We agree that NAB's formulation contains a clearer statement of the intent of our original proposal and therefore adopt it. We note that one goal of this proposal is to ensure that undistorted and complete antenna patterns are available for review. For example, when a station with mechanical beam tilt files a distorted horizontal plane pattern in LMS to reflect what the antenna looks like in terms of interference to other stations, it can be difficult or impossible to determine the undistorted azimuth pattern absent additional documentation. A station with mechanical beam tilt should instead submit in LMS an undistorted azimuth and elevation pattern and provide the amount and azimuth of the mechanical tilt, or may submit a matrix pattern, but such stations are not required to do so. NAB also proposes that matrix patterns should be submitted as spreadsheets rather than PDFs. We agree that this approach would provide flexibility to applicants and conform to modern practices and include that option in the revised rule. Having received no comments on the NPRM's proposal to clarify that similar plots are required for elevation or matrix patterns submitted in the LMS form, we adopt that proposal, as well.

Modification of Transmission Systems. We adopt our proposal in the NPRM to amend § 74.751 (Modification of transmission systems) with a modification proposed by commenters. Section 74.751(b)(4)(i) states: “(b) [f]ormal application (FCC Form 2100, Schedule C) is required for any of the following changes: (4) [a]ny horizontal change of the location of the antenna structure which would (i) be in excess of 152.4 meters (500 feet).” 47 CFR 74.751(b)(4)(i) (Modification of transmission systems). Therefore, the section on its face appears to permit a licensee to relocate its antenna structure less than 500 feet (152.4 meters) without requesting authorization. See id. We note that this rule, as written, only addresses relocations of the entire “antenna structure,” which is a tower or building. We note that, scenarios where an antenna structure moves less than 500 feet are highly unlikely to occur in the real world. Additionally, we note a change of location at distances under 500 feet without submission of an application, is not consistent with standard licensing practices.

In the NPRM, we noted that the Commission staff's standard processing practice is to require a licensee to file a minor modification application whenever a station seeks to relocate its antenna. NPRM at para. 23. We explained in the NPRM that because the most precise antenna location provides the most accurate results when using OET Bulletin No. 69 (OET-69 Bulletin), the staff has consistently required a minor modification application for all antenna relocations, and the industry has routinely submitted such minor modification applications. Id. We therefore proposed in the NPRM to revise the language of the rule to codify current staff practice and the application filing requirements of LMS, related to the movement of the station antenna specifically, and modify § 74.751(b)(4) to require LPTV/translator licensees and permittees to file an application in LMS on FCC Form 2100, Schedule C, requesting authorization for all antenna relocations. Id.

In filed comments, ATBA requests that we “preserve [the Commission's] existing rule that permits a licensee to relocate facilities less than 500 feet (152.4 meters) without requesting prior authorization and to incorporate this rule into its processing practices.” ATBA Comments at 3. The rule, however, appears to apply only to relocation of the entire antenna structure and not generally to other relocations of antennas. See supra. NTA asserts that changes in location of less than 500 feet should not make a material difference to the result of the OET-69 Bulletin analyses, and additionally cites to the fact that a 1.0 kilometer cell size is the default in such analyses for LPTV/translator stations, noting that means each cell is “approximately 3,900 feet” on a side. NTA Comments at 19. The OET-69 Bulletin is referenced in § 74.793 of the Commission's rules and provides guidance on the use of Longley-Rice methodology for evaluating TV service coverage and interference in accordance with the Commission's rules. NTA Comments at 19. We calculate that 1.0 kilometer is approximately 3,280 feet, not 3,900 feet. NTA further states that “[r]ather [than] having to file a minor change to move your antenna 20 feet, or adjust a small error in coordinates, LPTV and translator owners should be able to continue to use an informal procedure, such as letter notifications, just like their full service counterparts.” NTA Comments at 20. Neither LPTV/TV translator nor full power stations are permitted to follow such a procedure; for example, full power stations are required to formally file such changes in LMS on Form 2100, Schedule B. We find that there is good cause to amend the rule to require the filing of a minor modification application for moves of less than 500 feet and that such moves can make a material difference to the result of the OET-69 Bulletin. Specifically, we note that stations have the option of selecting both a smaller cell size than the 1.0 kilometer default in the OET-69 Bulletin (0.5 kilometers) and an option to select a smaller path profile spacing increment, as small as 0.05 kilometers or 164 feet, when the path loss calculations are conducted. A station which has used a smaller path profile spacing increment than the default 1.0 kilometer value can thus change the terrain paths used in the calculation of interference with a relatively small change of coordinates. Additionally, in particularly rough terrain, 500 feet can be, for instance, the difference between the peak of a mountain and a point significantly down the slope of that mountain. Because LPTV/translator stations are more likely than full power stations to operate from very short antenna heights and also because they do so in mountainous areas where significant changes in terrain height can occur over short distances, these differences can be meaningful. While the fact that the Commission uses the radiation center above mean sea level to determine antenna height for interference calculations should limit the impact of some cases, we remain concerned that such moves could cause changes to interference calculations, particularly when smaller path profile spacing increments are used as described above, since it could cause changes in the impact of terrain shielding near the transmitter site. We therefore disagree with ATBA and NTA, and conclude that it serves the public interest for such changes to be evaluated via an application for a construction permit.

NAB argues that “LPTV and TV Translator stations should not be held to a higher standard than full power stations, which are generally allowed to change geographic coordinates by three seconds of latitude and/or longitude as a matter of right” and compares our proposal to the requirements applicable to full power stations contained in § 73.1690 (Modification of transmission systems). NAB Comments at 7 (internal references omitted). We agree with NAB that it is reasonable to conform the LPTV/translator rule to more closely match this full power rule. Section 73.1690(b)(2) and the associated § 73.1690(c)(11) apply only to coordinate corrections and not to relocations. Section 73.1690(c)(11) explicitly requires that a station may correct its coordinates in a streamlined manner “provided there is no physical change in location and no other licensed parameters are changed.” 47 CFR 73.1690(c)(11) (Modification of transmission systems). We therefore amend § 74.751 to permit LPTV/translator stations as well to correct station coordinates in the absence of any such physical change in location or other licensed parameters, where the change is not more than three seconds latitude and/or three seconds longitude. See revised § 74.751(b)(4) and (c). See infra. Limiting streamlined processing only to coordinate corrections improves the accuracy of the coordinates of the facility already in operation, and thus such a correction cannot cause a change in real world interference, even if the predictions change slightly, and therefore we believe this change serves the public interest. As minor modifications do not require a filing fee, and because the staff practice is to process such modifications as rapidly as possible, we do not believe the two-step process is a significant burden. However, to mitigate the concern expressed by NAB related to cost, we direct the Media Bureau to waive any LMS-imposed filing fee associated with the LPTV/translator station's FCC Form 2100 filing, consistent with the current practice for full power stations. See NAB Comments at 8.

We also adopt the proposal in the NPRM to delete two subsections of § 74.751 as irrelevant and unnecessary. NPRM at para. 24. Section 74.751(b)(6) permits relocation of a station's transmitter without authorization in only certain instances. As we stated in the NPRM, because the antenna location, rather than the transmitter location, is the relevant consideration in determining interference, service, and loss, we proposed to delete § 74.751(b)(6) entirely regarding the transmitter's location, as it is not relevant in this analysis. The NPRM also proposed to delete § 74.751(c), which requires LPTV/translator licensees to notify the Commission in writing of any other equipment changes they make that are not specifically referenced in paragraphs (a) and (b) of the section. We noted that we do not believe this information is relevant to the Commission's application decision-making processes, and that staff does not routinely receive such notifications. We received no comments opposing these proposed changes, and so we adopt the proposal in the NPRM, and delete the subsections.

Minimum Service Standards. We adopt our proposal in the NPRM to update the video quality standard. Section 74.790(g)(3) (Permissible service of TV translator and LPTV stations) provides that “LPTV station[s] must transmit at least one over-the-air video program signal at no direct charge to viewers at least comparable in resolution to that of its associated analog (NTSC) LPTV station or, in the case of an on-channel digital conversion, that of its former analog LPTV station.” 47 CFR 74.790(g)(3); see also 2004 Order, 19 FCC Rcd at 19348-9, para. 51. We proposed in the NPRM to update the quality standard set forth in the rule to reflect that 480i video resolution is “comparable in resolution to analog television programming,” consistent with the update the Commission made to its full power station rules in § 73.624(b). See NPRM at para. 25; see also Promoting Broadcast internet Innovation through ATSC 3.0, MB Docket No. 20-145, Report and Order, 35 FCC Rcd 14492, 14507, para. 30 (2020). We received no comments opposing this proposal. We conclude that this quality standard is an appropriate standard for LPTV stations and therefore adopt it. Furthermore, we adopt the proposal in the NPRM that the desired-to-undesired (D/U) ratios for ATSC 3.0 into TV and vice versa for predicting interference to stations are assumed to be similar and need not be differentiated in the rules beyond TV service. See NPRM at para. 25.

LMS Filing Procedures. We adopt our proposal in the NPRM to update certain rules to require electronic filing. Certain rules specify the filing of a letter or similar submission for relief with the Commission. We proposed in the NPRM to update such rules to instead require submission in LMS, the Commission's broadcast licensing and management database. NPRM at para. 26. We also proposed to require email submission of certain specified information in the event LPTV/TV translator stations rebroadcast the programs of other TV broadcast stations. See NPRM, Appendix B at proposed § 74.784(b). Doing so is consistent with current licensee and Commission staff practices not just for LPTV/translators, but also full power and Class A licensees and permittees. We received no comments opposing these proposed updates. Therefore, we amend our rules to require LPTV/translator licensees and permittees to file written reports, submissions, letters, notifications, or other required filings in LMS. 47 CFR 74.703(h) (Interference); 74.734(a)(4) (Attended and unattended operation); and 74.763(b) (Time of operation). We also note that we amend § 74.784(b) (Rebroadcasts) as proposed to require email submission. We believe that this amendment is in the public interest because it will streamline application submission, processing, and record keeping, and provide a centralized location for public inspection of all licensing-related matters.

We decline to adopt several proposals raised by commenters. In doing so, we note that the NPRM's scope was limited to amendments to the part 74 rules to reflect the current operating environment, including the termination of analog operations in the LPTV/translator service. Specifically, the NPRM proposed to adopt rules previously applicable to analog operations for digital operations, update geographic coordinates to the current NAD standard, modify station identification requirements, require LPTV stations to transmit with a virtual channel that avoids conflicts with other stations, update the process for filing applications with the Commission, and make other technical modifications. See NPRM at para. 9. We received several proposals that seek to make material changes to our rules, or changes outside of part 74. Comments of Scripps Broadcasting Holdings LLC, MB Docket Nos. 03-185 and 22-261 (filed Oct. 24, 2022) (Scripps Comments) at 1, 4 (proposing to adopt a “90-day shot clock” for resolving channel substitution petitions for rulemaking in part 73); ATBA Comments at 4-6 (proposing that the freeze on major modifications of LPTV stations be lifted and requesting that the Commission “provide greater certainty for LPTV operators planning to invest in new and innovative digital technologies.”); Comments of Mountain Broadcasting Corporation, MB Docket Nos. 03-185 and 22-261 (filed Oct. 24, 2022) (Mountain Broadcasting Comments) at 2; see also Reply Comments of Mountain Broadcasting Corporation, MB Docket Nos. 03-185 and 22-261 (filed Nov. 7, 2022) (Mountain Broadcasting Reply) at 5-6 (proposing that the Commission apply Annex B of the ATSC A/65C to both full power and LPTV stations and allow any virtual channel designation that does not result in a contour overlap; and require LPTV stations to file items similar to those maintained by full power stations in a public file). We therefore decline to adopt these proposals as outside the scope of this proceeding.

Aside from the proposals that were outside the scope of this proceeding, CDE asked whether the wording in § 74.701(c) (Definitions) adopted in the Part 74 Order (“analog to digital replacement translator (DRT)”) is correct given that the analog sunset date was July 13, 2021 at 11:59 p.m. Comments of Cohen, Dippell and Everist, P.C., MB Docket No 22-261 (filed Oct. 24, 2022) (CDE Comments) at 2; see also 47 CFR 74.701(c) (Definitions). We take this opportunity to clarify that the wording is correct. In this instance, we do require reference to the word “analog” despite completion of the digital transition. In 2009, the Commission adopted a new, replacement digital translator service to permit full power television stations to continue to provide service to viewers within their existing analog coverage areas where the viewers would otherwise lose service after the station transitioned to digital. Amendment of Parts 73 and 74 of the Commission's Rules to Establish Rules for Replacement Digital Low Power Television Translator Stations, MB Docket No. 08-253, Report and Order, 24 FCC Rcd 5931 (2009). While the definition of the DRT service includes the word “analog” because it is replacing service to the analog coverage area, the replacement translator service is digital.

Finally, the LPTV Broadcasters Association proposes replacing the term “low power television” in the Commission's rules with “local power television.” Comments of the LPTV Broadcasters Association, MB Docket Nos. 03-185 and 22-261 (filed Oct. 24, 2022) (LPTV Broadcasters Association Comments) at 1-3. While we recognize the local service that LPTV can provide, we decline to adopt this change. As discussed above, the purpose of this proceeding is to eliminate confusion within our rules. Because several of our rules stem from statutory requirements, and because Congress has used the term “low power television,” we believe that changing this term would result in inconsistencies between the statute and the rules and would create, not eliminate, confusion within our rules. See, e.g., 47 U.S.C. 336(h) (Provision of Digital Data Service by Low-Power Television Stations); Low Power Protection Act (Pub. L. No. 117-344, S. 3405 (Jan. 5, 2023) (defining “low power TV station” with respect to § 74.701 of the Commission's rules); Community Broadcasters Protection Act of 1999, Public Law No. 106-113, 113 Stat. Appendix 1 at pp. 1501A-594-1501A-598 (1999), codified at 47 U.S.C. 336(f).

After evaluating the record received in response to the NPRM's request for comment on the benefits and costs associated with adopting the proposals set forth in the NPRM, we conclude that to the extent that the revised rules impose any costs on Commission licensees and regulatees, such costs will be minimal and are outweighed by the benefits to the public of the revised rules. NPRM at para. 27 (seeking comment on the benefits and costs associated with adopting the proposed changes). A few commenters explicitly addressed the costs and benefits of the proposed rules or provided specific data and analysis supporting claimed costs and benefits in response to the NPRM. For example, Canyon TV/Cannaliato asserts that our proposal to use TSIDs would impose a significant financial burden to community translators. See Canyon TV/Cannaliato Comments at 1. NTA in its comments cites an estimate by one translator owner and operator of Montana translator stations of the cost to update equipment to enable translators to insert data into the PSIP of the received data for each translator. See NTA Comments at 5. Canyon TV/Cannaliato also noted with respect to our frequency measure requirement proposal that replacing certain equipment in order to comply would be a financial burden for translator stations. See Canyon TV/Cannaliato Comments at 1. As described supra, the revisions to the rules codify the staff's current practices or better reflect technological advancements in the industry and take into consideration potential financial burdens on LPTV/translators. We did not adopt the TSID- and PSIP-related rules that could have led to increased costs, and we clarified in the Report and Order that we do not believe the frequency measurement requirement will lead to increased cost. The revised rules reflect an effort to simplify, streamline, and modernize existing rules and procedures that will enable LPTV/translator stations to more easily comply with licensing requirements through familiar and low cost measures. Thus, we expect any costs imposed by the updated rules will be minimal and outweighed by the public benefits of clarity and modernization.

The NPRM also sought comment on how the proposals set forth in the NPRM can advance equity in the provision of broadcast services for all people of the United States, without discrimination on the basis of race, color, religion, national origin, sex, or disability. The NPRM also sought comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility. NPRM at para. 28. We received no comments on these topics and no objection to adoption of the proposed rules based on these concerns. We acknowledge the importance of these aims, and we believe that the revised rules reflect an effort to simplify, streamline, and modernize existing rules and procedures that will enable LPTV/translator stations to more easily comply with licensing requirements through familiar and low cost measures and we do not believe they will have negative implications related to diversity, equity, inclusion, or accessibility.

Paperwork Reduction Analysis. The Report and Order contains either new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA). Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under § 3507(d) of the PRA. OMB, the general public, and other federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. The Commission will publish a separate document in the Federal Register at a later date seeking these comments. In addition, we note that, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees. We have described impacts that might affect small businesses in the FRFA.

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

Regulatory Flexibility Analysis. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” See 5 U.S.C. 603 and 605(b). Accordingly, we have prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of rule and/or policy changes contained in this Report and Order on small entities.

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Initial Regulatory Flexibility Act Analysis (IRFA) was incorporated into the Notice of Proposed Rulemaking ( NPRM ) released in July 2022. 5 U.S.C. 603. The RFA, 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996). See Amendment of Parts 73 and 74 of the Commission's Rules to Establish Rules for Digital Low Power Television and Television Translator Stations, Update of Parts 74 of the Commission's Rules Related to Low Power Television and Television Translator Stations, Order and Sixth Notice of Proposed Rulemaking, FCC 22-58 (rel. July 13, 2022) ( NPRM ); Erratum, FCC 22-58 (rel. Sept. 9, 2022). The Federal Communications Commission (Commission) sought written public comment on the proposals in the NPRM, including comment on the IRFA. No comments were filed addressing the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. See 5 U.S.C. 604.

The Report and Order reflects the Commission's effort to update its rules following the termination of analog operations in the low power television (LPTV) and TV translator services (collectively LPTV/translator). The Commission adopts certain rules previously applicable to analog operations for digital operations and considers requests and comments received on subjects not included in the NPRM proposals, including analysis of the cost and benefits of the proposed rules.

In the Report and Order, the Commission retains the rule requiring LPTV stations that avail themselves of the provisions set forth in the LPTV Pilot Project Digital Data Services Act (DDSA) digital data service pilot project to comply with the Commission's rule implementing the DDSA. The Report and Order amends the Commission's rules for LPTV/translator alphanumeric call signs to account for exhaustion of all two letter call sign combinations for some channel numbers, and consistent with the Commission's policy that all stations have a unique call sign, the Report and Order codifies the current practice of assigning a call sign ending in three letters beginning with “AAA” and continuing sequentially through the alphabet (“AAB”, “AAC”, etc.) in such cases. The Report and Order also requires digital LPTV stations to comply with the station identification provisions in § 74.783 applicable to analog operations, updated to reflect digital operations. Additionally, the Commission adopts its proposal to include an option for LPTV stations to use the Program and System Information Protocol (PSIP) to transmit the station's call sign as the “short channel name” on at least one stream of programming that the LPTV station transmits, and mandates the broadcast of the station's assigned TSID (or BSID, which is the Advanced Television Systems Committee (ATSC) 3.0 functional equivalent), assuming one is assigned.

The Report and Order adopts a modified version of the Commission's proposal to require a minor modification application on FCC Form 2100, Schedule C for all station relocations, including those under 500 feet, but allows for coordinate corrections of under 3 seconds latitude and/or longitude without paying a filing fee. The Report and Order also codifies the staff's practice of requiring LPTV stations to transmit with a virtual channel that avoids conflicts with any full power or Class A station's virtual channel in cases where a contour overlap would arise, or with virtual channels chosen by other LPTV stations. Further, the Report and Order updates various filing requirements that currently specify submission by letter or other means to the FCC to instead require submission in the Commission's Licensing and Management System (LMS), or otherwise through electronic submission, and clarifies what documentation is required when applications are submitted with various kinds of directional patterns. In addition, the Report and Order removes references in the rules to the use of antennas with solely vertical polarization, and requires that the design of broadcast antennas is such that horizontal power is intended to be higher than or equal to the vertical power in all directions.

The Report and Order also adopts updates to the coordinates found throughout § 74.709 from NAD 27 to NAD 83 and otherwise conforms the values in § 74.709(a) with those found in § 90.303. These coordinates are used only to determine where the Commission will or will not grant applications. Section 74.703(e) still requires the resolution of actual interference, so the adjustments to § 74.709(a) will not change the required amount of interference protection between LPTV/translator stations and land mobile operations. Finally, the Report and Order adopts updates to the quality standard set forth in § 74.790(g)(3) to reflect that 480i video resolution is “comparable in resolution to analog television programming,” consistent with the update the Commission made to its full power station rules.

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

Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. Id. 604(a)(3).

The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. Id. 604(a)(4). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” Id. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act (SBA). Id. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632(a)(1)). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register .” Id. 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. 15 U.S.C. 632.

The rules adopted herein will directly affect small television broadcast stations. Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible.

Television Broadcasting. This industry is comprised of “establishments primarily engaged in broadcasting images together with sound.” See U.S. Census Bureau, 2017 NAICS Definition, “515120 Television Broadcasting,” https://www.census.gov/naics/?input=515120&year=2017&details=515120. These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. Id. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA small business size standard for this industry classifies businesses having $41.5 million or less in annual receipts as small. See 13 CFR 121.201, NAICS Code 515120 (as of Oct. 1, 2022 NAICS Code 516120). 2017 U.S. Census Bureau data indicate that 744 firms in this industry operated for the entire year. See U.S. Census Bureau, 2017 Economic Census of the United States, Selected Sectors: Sales, Value of Shipments, or Revenue Size of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code 515120, https://data.census.gov/cedsci/table?y=2017&n=515120&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false. Of that number, 657 firms had revenue of less than $25,000,000. Id. The available U.S. Census Bureau data does not provide a more precise estimate of the number of firms that meet the SBA size standard. We also note that according to the U.S. Census Bureau glossary, the terms receipts and revenues are used interchangeably, see https://www.census.gov/glossary/#term_ReceiptsRevenueServices. Based on this data, we estimate that the majority of television broadcasters are small entities under the SBA small business size standard.

As of December 31, 2022, there were 1,375 licensed commercial television stations. Broadcast Station Totals as of December 31, 2022, Public Notice, DA 23-21 (rel. Jan. 11, 2023) ( December 2022 Broadcast Station Totals PN ), https://www.fcc.gov/document/broadcast-station-totals-december-31-2022. Of this total, 1,282 stations (or 93.2%) had revenues of $41.5 million or less in 2021, according to Commission staff review of the BIAKelsey Media Access Pro Online Television Database (MAPro) on January 13, 2023, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates as of December 31, 2022, there were 383 licensed noncommercial educational (NCE) television stations, 383 Class A TV stations, 1,912 LPTV stations and 3,122 TV translator stations. BIA Advisory Services, BIAKelsey Media Access Pro Online Television Database, http://www.biakelsey.com/data-platforms/media-access-pro (last visited on Jan. 13, 2023). Broadcast Station Totals PN. The Commission, however, does not compile and otherwise does not have access to financial information for these television broadcast stations that would permit it to determine how many of these stations qualify as small entities under the SBA small business size standard. Nevertheless, given the SBA's large annual receipts threshold for this industry and the nature of these television station licensees, we presume that all of these entities qualify as small entities under the above SBA small business size standard.

In this section, we identify the reporting, recordkeeping, and other compliance requirements adopted in the Report and Order and consider whether small entities are affected disproportionately by any such requirements. While the Commission is not in a position to determine whether small entities will have to hire professionals to comply with our decisions and cannot quantify the cost of compliance for small entities, the approaches we have taken to implement the requirements have minimal or de minimis cost implications for impacted entities.

The Commission concludes it will modify § 74.751(b)(4) to require LPTV/translator licensees and permittees to file a minor modification application requesting authorization for all station relocations, including those moving the antenna or the antenna structure less than 500 feet (152.4 meters), but will permit stations seeking to correct coordinates by less than 3 seconds of latitude and/or longitude to do so without paying a filing fee. See revised § 74.751(b)(4) and (c) (Modification of transmission systems). The rule as currently written exempts relocations of the station's antenna structure by less than 500 feet from the application process. These requirements will result in a modified paperwork obligation for small entities and other licensees. The Report and Order adopts a new § 74.762 regarding frequency measurements, which would require small and other LPTV/translator stations to measure the frequency of their output channel as often as necessary, but not exceeding 14 months, to ensure operation consistent with the ATSC standard in § 73.682 of the rules. The Commission also adopts LPTV station identification proposals to comply with § 74.783, updated to reflect digital operations, including the option to transmit the station's “short channel name” on at least one stream of programming. Further, the Report and Order amends our rules to require LPTV/translator licensees and permittees to file written reports, submissions, letters, notifications, or other required filings in LMS, or otherwise by electronic submission, thereby streamlining application submission, processing, and record keeping for small and other entities. The Commission will seek approval and the corresponding burdens, such as those require to comply with the Paperwork Reduction Act of 1995 (PRA), to account for this modified reporting requirement. Public Law 104-13.

The RFA requires an agency to provide, “a description of the steps the agency has taken to minimize the significant economic impact on small entities . . . including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.” 5 U.S.C. 604(a)(6).

The actions taken by the Commission in the Report and Order were considered to be the least costly and minimally burdensome for small and other entities impacted by the rules. As such, the Commission does not expect the adopted requirements to have a significant economic impact on small entities. Below we discuss actions we take in the Order to minimize any significant economic impact on small entities and some alternatives that were considered.

The Report and Order adopts a number of proposals that would codify the staff's current practices or better reflect technological advancements in the industry that may benefit small entities. For example, the Report and Order codifies the staff's practice of requiring LPTV stations that voluntarily transmit with a virtual channel to choose one that avoids conflicts with any full-power or Class A station's virtual channel in cases where a contour overlap would arise, or with virtual channels chosen by other LPTV stations. We considered alternatives by the Society of Broadcast Engineers (SBE) that would require small and other LPTV licensees to enter these channels in LMS, but decline this option because LPTV virtual channel assignments do not need Commission approval. Moreover, the Report and Order removes references in the rules to the use of antennas with solely vertical polarization, and requires that the horizontal power is intended to be higher than or equal to the vertical power in all directions, consistent with the requirements for full-power stations. We considered proposals from the National Association of Broadcasters (NAB) and SBE that we modify the wording of the proposed rules, and adopted the clearer language proposed by NAB. These revisions simplify, streamline, and modernize existing rules and procedures that will enable small and other LPTV/translator stations to more easily comply with licensing requirements through familiar and low cost measures. We also adopted a rule for LPTV stations allowing the option of identifying by using PSIP to transmit the station's call sign as the “short channel name” on at least one stream of programming that the LPTV station transmits. NPRM at para. 16 and n.48. The rule we adopted is simpler and less expensive than other methods of identification for stations that are already using PSIP.

The Report and Order also updates the coordinates in § 74.709 from NAD 27 to NAD 83 in order to conform the values with those found in Part 90 of the Commission's rules. These coordinates are used only to determine whether the Commission will or will not grant applications. Section 74.703(e) still requires the resolution of actual interference, and so the Commission would not need to balance the interference protection afforded to land mobile operation with the updated, streamlined benefits for small entities as a result of this revision. While NAB encourages us to add a note to Part 90 regarding land mobile assignments, we decline to do so due to a pending petition for rulemaking on that subject. Further, the Report and Order updates various filing requirements that currently specify submission by letter or other means to the FCC to instead require submission in LMS or electronically. The Commission anticipates that this option will lessen the physical burden on small entities.

A few commenters explicitly addressed the costs and benefits of the proposed rules or provided specific data and analysis supporting claimed costs and benefits in response to the NPRM. Specifically, Canyon TV/Cannaliato noted the financial burden TSIDs would impose to community translators, and that replacing equipment to comply with the rules would be a financial burden for translator stations. NTA cited similar cost concerns in its comments. In assessing the impact on small entities, we took into consideration potential financial burdens on small and other LPTV/translators, and in adopting the TSID- and PSIP-related rules we had proposed, we clarified that we did not intend to impose a requirement that could have led to increased cost. Additionally, Canyon TV/Cannaliato raised the possibility of additional costs due to our proposed requirement to regularly conduct frequency measurements. However, in adopting this proposed rule, we believe small and other LPTV/translator stations can comply without replacing existing equipment. Specifically, stations can comply with the rule by reviewing the station's signal on a spectrum analyzer and determining that the pilot carrier (for ATSC 1.0) and the overall signal (for ATSC 1.0 and ATSC 3.0) appear correctly and are properly contained within their assigned spectrum, consistent with the standard in use and our rules. We also clarified in the Report and Order that we do not believe the frequency measurement requirement will lead to increased cost, and identified specific portions of § 73.682 that contain the information needed to conduct frequency measurements, easing the burden on small and other entities in comparison to citing the entire broadcast standard.

The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. The Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register . 5 U.S.C. 604(b).

Accordingly, it is ordered, pursuant to the authority contained in §§ 1, 4, 301, 303, 307, 308, 309, 310, 316, 319, 336, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 301, 303, 307, 308, 309, 310, 316, 319, 336, 403, this Report and Order is adopted.

It is further ordered that the Commission's rules are hereby amended as set forth in the appendix and such amendments shall be effective 30 days after publication in the Federal Register , except for §§ 74.703, 74.734, 74.735, 74.751, 74.763, and 74.784, which contain new or modified information collection requirements and will be submitted for approval by the Office of Management and Budget under the Paperwork Reduction Act and shall become effective after the Commission publishes a notice in the Federal Register announcing such approval and the relevant effective date.

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

It is further ordered, that pursuant to § 801(a)(1)(A) of the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission shall send a copy of this Report and Order to Congress and to the Government Accountability Office.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 74 as follows:

On October 7, 2021, NMFS published a proposed rule in the Federal Register (86 FR 55790) proposing to establish FAD design requirements, IMO number requirements, and bycatch restrictions for sharks and rays. The 30-day public comment period for the proposed rule closed on November 8, 2021.

This final rule is issued under the authority of the WCPFC Implementation Act (16 U.S.C. 6901 et seq. ), which authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC or Commission). The WCPFC Implementation Act further provides that the Secretary of Commerce shall ensure consistency, to the extent practicable, of fishery management programs administered under the WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq. ), as well as other specific laws (see 16 U.S.C. 6905(b)). The Secretary of Commerce has delegated the authority to promulgate regulations under the WCPFC Implementation Act to NMFS. A map showing the boundaries of the area of application of the Convention (Convention Area), which comprises the majority of the WCPO, can be found on the WCPFC website at: www.wcpfc.int/doc/convention-area-map.

The United States is also a member of the Inter-American Tropical Tuna Commission (IATTC). The convention areas for IATTC and WCPFC overlap in the Pacific Ocean waters within a rectangular area bounded by 50° S latitude, 4° S latitude, 150° W longitude, and 130° W longitude (“overlap area”). The preamble of the proposed rule provides further detail on United States implementation of WCPFC and IATTC requirements in the overlap area, which are not repeated here.

This final rule implements specific provisions of four recent WCPFC decisions (CMM 2018-01, “Conservation and Management Measure for Bigeye, Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean”; CMM 2018-06, “Conservation and Management Measure for WCPFC Record of Fishing Vessels and Authorisation to Fish”; CMM 2019-04, “Conservation and Management Measure for Sharks”; and CMM 2019-05, “Conservation and Management Measure on Mobulid Rays”). The preamble to the proposed rule provides background information on the Convention and the Commission, the provisions that are being implemented in this rule, and the basis for the regulations, which is not repeated here.

The specific elements of the final rule are detailed below.

This final rule implements specific FAD design requirements related to net mesh set forth in paragraph 19 of CMM 2018-01. A more recent measure, CMM 2021-01, further revises the non-entangling FAD requirements by prohibiting the use of any mesh net. However, since the new requirements of CMM 2021-01 go into effect on January 1, 2024, the requirements of CMM 2018-01 are being implemented now. NMFS will implement the requirements of CMM 2021-01 in a future rulemaking. Under this final rule, if the FAD design includes a raft ( e.g., flat raft or rolls of material) and if mesh netting is used as part of the structure, the mesh netting shall have a stretched mesh size less than 7 cm and the mesh net must be tightly wrapped such that no netting hangs below the FAD when deployed. Additionally, any netting used in the subsurface structure of the FAD must be tightly tied into bundles (“sausages”) or have a stretched mesh size less than 7 cm in a panel that is weighted on the lower end with at least enough weight to keep the netting taut in the water column. This element of the final rule applies to all purse seine vessels used for commercial fishing for highly migratory species (HMS) on the high seas and in exclusive economic zones in the Convention Area (excluding the overlap area). NMFS notes that Paragraph 19 of CMM 2018-01 states that WCPFC members shall ensure that the specific FAD design requirements apply to any FAD to be deployed in, or that drifts into, the Convention Area. NMFS determined that it would be impractical to require vessel owners and operators to ensure that non-conforming FADs do not drift into the Convention Area. Thus, the FAD design requirements of this final rule apply only to FADs that are to be deployed or redeployed ( i.e., placed in the water).

Existing regulations at 50 CFR 300.217(c) apply to all U.S. fishing vessels (including those participating in the fisheries of the U.S. Participating Territories) that are used for commercial fishing for highly migratory fish stocks in the Convention Area either on the high seas or in waters under the jurisdiction of a foreign nation, and the gross tonnage of which is at least 100 GRT or 100 GT (gross tons). The owner of any such fishing vessel is required to ensure that an “IMO number” has been issued for the vessel. The preamble to the proposed rule provides background information on the IMO ship identification number scheme and associated instructions, which are not repeated here. The existing regulations include a process for fishing vessel owners to request an exemption from NMFS if they are unable to obtain IMO numbers. When NMFS receives such a request it will review it and assist the fishing vessel owner as appropriate. If NMFS determines that it is infeasible or impractical for the fishing vessel owner to comply with the requirement, NMFS will issue an exemption from the requirement for a specific or indefinite amount of time. The exemption will become void if ownership of the fishing vessel changes. Under this final rule, the existing regulations are revised to include vessels less than 100 GRT down to a size of 12 meters in overall length (LOA). This element of the final rule applies to vessels used for commercial fishing for HMS in the Convention Area, including the overlap area, either on the high seas or in waters under the jurisdiction of a foreign nation.

This final rule also implements two specific provisions of CMM 2019-04 (1) an exemption from existing no-retention requirements for purse seine vessels in specific cases where an oceanic whitetip shark or silky shark is not seen during fishing operations and are delivered into the vessel hold; and (2) a requirement for vessels to haul any incidentally caught sharks alongside the vessel before being cut free in order to facilitate species identification. The Commission amended this CMM in December 2022. The revisions that would likely require regulatory action include provisions that prohibit longline vessels operating in the Convention Area between 20° North and 20° South from using wire trace as branch lines and from using shark lines or branch lines running off of the longline floats or drop lines, and a requirement for longline vessels to follow certain guidelines when releasing sharks that are not retained. Both of these provisions become effective January 1, 2024. NMFS plans to implement the applicable new requirements in a separate rulemaking.

Existing regulations under 50 CFR 300.226 prohibit the crew, operator, and owner on all vessels used for commercial fishing for HMS in the Convention Area from retaining on board, transshipping, storing, or landing any part or whole carcass of an oceanic whitetip shark or silky shark that is caught in the Convention Area, unless collected by an on-board observer. This final rule establishes an exemption for purse seine fishing vessels in the case of any silky shark or oceanic whitetip shark that is not seen during the fishing operation and is unknowingly delivered into the vessel hold and frozen. In such a case, oceanic whitetip shark and silky shark could be stored and landed, but the vessel owner or operator would be required to notify the observer and surrender the whole shark to the responsible government authorities or discard the shark at the first point of landing or transshipment. In U.S. ports the responsible government authority is the NOAA Office of Law Enforcement divisional office nearest to the port. Under this final rule, it is prohibited to sell or barter oceanic whitetip shark and silky shark surrendered in this manner, but they could be donated for purposes of human consumption, consistent with any applicable laws and policies.

This final rule also establishes a requirement that any shark be hauled alongside the vessel before being cut free (if on a line or entangled in a net) in order to facilitate species identification by the observer on board. This element of the final rule only applies to vessels on which a WCPFC observer or camera monitoring device are present on board.

Both of these elements of the final rule apply to all U.S. vessels used for commercial fishing for HMS on the high seas and in exclusive economic zones in the Convention Area (excluding the overlap area).

This final rule also implements specific requirements of the provisions of CMM 2019-05 for mobulid rays, including the following five elements:

(1) Owners and operators are prohibited from setting on a mobulid ray if the animal is sighted prior to a set;

(2) Owners and operators are prohibited from retaining on board, transshipping, storing, or landing any part or whole carcass of a mobulid ray;

(3) Owners and operators are required to release any mobulid ray unharmed, as soon as possible, in a manner that results in the least possible harm to the individuals captured, taking into consideration the safety of the crew;

(4) Owners and operators are required to allow observers to collect biological samples of mobulid rays, if requested to do so by a WCPFC observer; and

(5) An exemption for purse seine vessels from elements 2 and 3  1 in specific cases where a mobulid ray is not seen during fishing operations and is unknowingly delivered into the vessel hold. In such cases, a vessel owner or operator will be required to notify the observer on board, and surrender the whole mobulid ray at the first point of landing, to the responsible government authorities, or other competent authority, or discard it. It is prohibited to sell or barter mobulid rays surrendered in this manner, but they could be donated for purposes of human consumption, consistent with any applicable laws and policies.

The five mobulid ray elements of the final rule apply to U.S. vessels used for commercial fishing for HMS on the high seas and EEZs in the Convention Area (excluding the overlap area).

NMFS received two comment letters on the proposed rule. One commenter provided a general statement of support for the proposed rule. The remaining comments are summarized below, followed by responses from NMFS.

Comment 1: The American Tunaboat Association (ATA) commented that all ATA vessels are already in compliance with the FAD design requirements in the proposed rule, with one exception. The proposed rule would require that “all FADs on board or deployed from the vessel in the Convention Area comply with the design requirement.” ATA noted that vessels would be working to retrieve old FADs from the water and requested that NMFS modify the rule to make clear that the prohibition would not apply to FADs that have been retrieved for destruction or recycling and that will not be redeployed.

Response: NMFS has revised the regulatory text from that included in the proposed rule to clarify that the design requirements only apply to FADs that are to be deployed ( i.e., are to be placed in the water) in the Convention Area from a vessel, as specified in the CMM. The new FAD design elements would not apply to FADs that were deployed and in the water before the effective date of this rule. Although the new FAD design elements do not apply to FADs that have been retrieved by vessel owners and operators and are onboard the vessel to be destroyed or recycled, FADs that have been serviced or retrieved must meet the FAD design elements before they are re-deployed back into the water.

Comment 2: ATA commented that they recognize the proposed FAD design requirements are part of a larger transition over time to fully non-entangling (mesh-free) and eventually biodegradable FADs and they expressed support for the eventual goal of effective biodegradable FADs. ATA noted that more work is needed to transition to biodegradable FADs and recognized that parallel efforts are underway to transition to fully biodegradable FADs in the interim. However, ATA suggested that any transition from the current requirements to fully non-entangling FADs could postpone the transition to biodegradable FADs, and could significantly increase the cost to vessels over the transition period. ATA suggested that focus should instead be directed at enhancing efforts to develop and deploy biodegradable FADs in the short-term.

Response: NMFS acknowledges the comment and notes that the WCPFC FAD working group is continuing discussion on the use and development of biodegradable FADs. In December 2021, the WCPFC adopted CMM 2021-01, which includes modifications to the existing non-entangling FAD design requirements and obligates Commission Members to implement fully non-entangling (mesh free) design requirements by January 1, 2024. NMFS plans to implement the modified design requirements in a separate rulemaking. Implementation of the modified design requirements is necessary to satisfy the obligations of the United States under the Convention.

Comment 3: ATA expressed support for the element of the proposed rule that would allow a limited exemption for purse seine vessels to the prohibition on the retention of oceanic whitetip sharks and silky sharks if a shark is inadvertently brought into the hold of the vessel.

Response: NMFS acknowledges the comment.

Comment 4: ATA sought clarification on the element of the proposed rule that would require that sharks be hauled alongside a vessel before being cut free in order to facilitate species identification. ATA suggested that it would not be practical or safe to bring a purse seine net to the side of a purse seine vessel in order to cut a shark free and that this requirement seems more applicable to longline vessels. ATA noted that the proposed rule correctly acknowledges that for purse seine vessels, it is expected that in most cases, the shark would be released after it is brailed from the net and brought on deck. ATA suggested modifications to the regulation text that would clarify that a shark must be released as soon as possible once it is brought alongside or on board the vessel.

Response: The shark release requirements found at 50 CFR 300.226(b) went into effect on March 23, 2015 (80 FR 8807, Feb. 19, 2015). These requirements are not being changed in this final rule. Rather, this final rule simply adds an exemption to the release requirements for sharks that are not sighted prior to being delivered into a purse seine vessel hold (50 CFR 300.226(e)). Separately, under this final rule, NMFS is implementing a new requirement (found at 50 CFR 300.230) to facilitate species identification for sharks that are incidentally caught during fishing operations. This regulation clearly states that the requirement to bring the shark alongside the vessel for identification purposes only applies to sharks that are “not brought on board the fishing vessel,” and only when observers or electronic cameras are available. Thus, NMFS does not believe that further revision to the regulatory text is needed.

Comment 5: ATA commented that the prohibition from setting on a mobulid ray is a requirement that may occasionally result in a lost opportunity for a purse seine vessel to make a set and that it will likely have an economic impact on the fleet. ATA noted, however, that ATA vessels will already be seeking to minimize the number of mobulid ray interactions in the purse seine fishery, due to obligations under the Endangered Species Act and that ATA understands the intent of the requirement. The remaining elements of the proposed rule related to mobulid ray interactions are things that ATA members have already committed to implement.

Response: NMFS acknowledges the potential economic impact that may result from the prohibition against setting on a mobulid ray. These and other potential impacts have been described in detail by NMFS in the EA and RIR associated with this rulemaking. Implementation of the prohibition is necessary to satisfy the obligations of the United States under the Convention.

Comment 6: ATA commented that provisions for both sharks and rays use language such as “as soon as possible” and “take all reasonable steps” and raised concerns that such subjective terms have resulted in adverse enforcement actions based on determinations from observer reports in the past. However, ATA stated that it counts on the reasonable application and fair administration of NMFS enforcement powers in such cases.

Response: The shark handling and release requirements found at 50 CFR 300.226(b) went into effect on March 23, 2015 (80 FR 8807, February 19, 2015), and NMFS is not modifying those regulations in this final rule. Rather, this final rule implements new handling and release requirements for mobulid rays at 50 CFR 300.229(c). These requirements implement CMM 2019-05, which requires vessels to release mobulid rays alive and unharmed “to the extent practicable . . . as soon as possible.” Thus, the mobulid ray handling and release regulation implements language directly from the CMM, and is written to be consistent with existing regulations on shark handling and release.

This final rule includes one substantive change to the regulatory text from the proposed rule. NMFS has revised the regulatory text for FAD requirements at 50 CFR 300.223(b)(4) to clarify that the FAD design requirements will only apply to FADs to be deployed or redeployed ( i.e., placed in the water) from a vessel. This final rule also includes editorial corrections in 50 CFR 300.229(e) so that both uses of the term WCPFC observer are preceded by the word “a”, an editorial correction to 50 CFR 300.229(f) so that the word shark is deleted from the last sentence, and editorial corrections to 50 CFR 300.226(a) and (b) so the inadvertent editorial changes made to the existing regulatory text in the proposed rule are withdrawn.

The Administrator, Pacific Islands Region, NMFS, has determined that this action is consistent with the WCPFC Implementation Act and other applicable laws, subject to further consideration after public comment.

NMFS determined that this action is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of American Samoa, the Commonwealth of the Northern Mariana Islands (CNMI), Guam, and the State of Hawaii. NMFS submitted determinations to Hawaii, American Samoa, CNMI and Guam on August 2, 2021, for review by the responsible state and territorial agencies under section 307 of the CZMA. Hawaii replied by letter dated August 16, 2021, stating that, because the proposed rule is outside of the jurisdiction of the Hawaii Coastal Zone Management Program's enforceable policies, it would not be responding to the consistency determination. The CNMI replied by letter dated August 31, 2021, stating that it concurs that the action is consistent with the enforceable policies of CNMI's coastal management program. Guam replied by letter dated September 28, 2021, stating that based on the information provided, it has determined that the action will be consistent with the enforceable policies of Guam's Coastal Management Program. No response was received from American Samoa, and thus, concurrence with the respective consistency determinations is presumed (15 CFR 930.41).

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

A final regulatory flexibility analysis (FRFA) was prepared, as required by section 604 of the RFA. The FRFA incorporates the initial regulatory flexibility analysis (IRFA) prepared for the proposed rule. The analysis in the IRFA is not repeated here in its entirety. A description of the action, why it is being considered, and the legal basis for this action are contained in the SUMMARY section of the preamble and in other sections of this SUPPLEMENTARY INFORMATION section of the preamble. The analysis follows:

NMFS did not receive any comments specifically on the IRFA. One public comment received on the proposed rule referred to potential economic impacts of the proposed action; see Comment #5 and NMFS' response to that comment above.

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

This final rule would apply to owners and operators of U.S. commercial fishing vessels used to fish for HMS in the Convention Area. This includes vessels in the purse seine, longline, tropical troll (including those in American Samoa, the CNMI, Guam, and Hawaii), Hawaii handline, Hawaii pole-and-line, and west coast-based albacore troll fleets. The estimated number of affected fishing vessels is as follows based on the number of vessels reported in the 2022 U.S. Annual Report Part 1 to WCPFC (for the 2021 fishing year): 19 purse seine vessels, 149 longline vessels, 21 albacore troll vessels, and 1,913 tropical troll and handline vessels. Thus, the total estimated number of vessels that would be subject to the rule is 2,102. As of January 2023, there are 14 purse seine vessels with WCPFC Area Endorsements ( i.e., vessels authorized to be used for commercial fishing for HMS on the high seas in the Convention Area), 13 of which are active. The following analysis includes 13 vessels as the baseline, even though the total number of estimated vessels includes the number of 19 purse seine vessels from Annual Report Part 1.

Based on (limited) financial information about the affected fishing fleets, and using individual vessels as proxies for individual businesses, NMFS believes that all the affected fish harvesting businesses in all the fleets, except the purse seine fleet, are small entities as defined by the RFA; that is, they are independently owned and operated and not dominant in their fields of operation, and have annual receipts of no more than $11.0 million. Within the purse seine fleet, analysis of revenues for the 13 currently active vessels, by vessel, for 2019-2021 reveals that average annual per-vessel revenue was about $8,757,000 (NMFS unpublished data on catches combined with fish price data from https://investor.thaiunion.com/raw_material.html accessed on March 22, 2022). Eleven of the active purse seine vessels had estimated average annual revenues of less than $11 million, and thus are considered to be small entities.

The reporting, recordkeeping and other compliance requirements of this final rule are described earlier in the preamble. The classes of small entities subject to the requirements and the expected costs of complying with the requirements are described above in the Classification section of this final rule.

As described in the Paperwork Reduction Act (PRA) subsection below, this final rule contains a revised collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the PRA.

Non-entangling FAD Element: To comply with this element of the rule, affected vessel owners and operators are required to use specific materials and design specifications for FADs that are to be deployed ( i.e., are to be placed in the water) in the WCPFC Convention Area. This element would not establish any new reporting or recordkeeping requirements (within the meaning of the Paperwork Reduction Act). The costs of complying with this requirement are described below to the extent possible.

This element of the rule applies to all purse seine vessels used for commercial fishing for HMS on the high seas and in exclusive economic zones in the Convention Area (excluding the overlap area). A majority of the purse seine vessels are already subject to equivalent requirements in the eastern Pacific Ocean. NMFS has established regulations for measures adopted by the IATTC (see 83 FR 15503, April 11, 2018; 83 FR 62732, December 6, 2018), which became effective on January 1, 2019. Of the 14 purse seine vessels to which this element of the rule would apply, 13 are currently active on both the WCPFC Record of Fishing Vessels (RFV) and the IATTC Regional Vessel Register (RVR), meaning that they are authorized to fish in both the WCPO and the EPO. It is expected that the owners and operators of purse seine vessels on both lists would therefore already be responsible for implementing the FAD design requirements in the EPO, as specified in 50 CFR 300.28(e). All 13 active purse seine vessels currently on the WCPFC RFV are also on the International Seafood Sustainability Foundation (ISSF) ProActive Vessel Register (PVR), and their owners and operators have agreed to comply with ISSF-adopted conservation measures, which include the use of non-entangling FADs or lower entanglement risk FADs. The ISSF lower entanglement risk FADs meet the same design specifications and material requirements in this element of the rule. Therefore, for the owners and operators of all purse seine vessels that would be subject to the requirement, NMFS expects that there would be no change in the materials they currently use to design FADs.

To the extent that any of those vessels are not already implementing the design specifications, and for any new purse seine vessels that enter the fishery, there would likely be some costs associated with complying with this requirement. However, it is not possible to predict the costs associated with any certainty, as FAD designs vary between vessels, and the availability of materials is expected to vary over time. If specific non-entangling FAD materials were difficult or costly to obtain ( e.g., netting with 7 cm mesh size), it could affect a vessel's ability to fish on FADs. In cases where vessels choose to forego fishing on FADs, it could increase operating costs in the form of increased fuel usage to fish on unassociated schools of fish instead of fishing on FADs.

Fulfillment of these requirements is not expected to require any professional skills that the affected vessel owners and operators do not already possess.

IMO Number Element: This element of the rule requires owners of fishing vessels less than 100 GRT down to a size of 12 meters LOA to obtain an IMO number. This requirement is part of a collection of information subject to approval by OMB under the PRA. The costs of complying with this requirement are described below to the extent possible.

This element of the rule applies to vessels used for commercial fishing for HMS in the Convention Area (including the overlap area), either on the high seas or in waters under the jurisdiction of a foreign nation. Existing regulations at 50 CFR 300.217(c) require that vessels at least 100 GRT obtain an IMO number, so most entities that would be required to obtain an IMO number already have them. NMFS estimates that 48 fishing vessels would initially be subject to the expanded requirement, 45 longline vessels and three troll vessels. NMFS has established regulations, at 50 CFR 300.22(b)(3)(iii), which implement similar requirements for vessels fishing on the high seas in the EPO. NMFS estimates that all but one of the 48 fishing vessels initially subject to this element of the final rule are already subject to the IATTC IMO requirements in the EPO. NMFS projects that as fishing vessels enter the fishery in the future, roughly four per year would be required to obtain IMO numbers.

The requirement to obtain an IMO number would be a one-time requirement; once a number is issued for a vessel, the owner of the vessel would be in compliance for the remainder of the vessel's life, regardless of changes in ownership. Completing and submitting the application form (which can be done online and requires no fees) would take about 30 minutes per applicant, on average. Assuming a value of labor of approximately $26 per hour and communication costs of about $1 per application, the (one-time) cost to each affected entity would be about $14. Fulfillment of these requirements is not expected to require any professional skills that the affected vessel owners and operators do not already possess.

Shark Element (1): This element of the rule provides an exemption to existing oceanic whitetip and silky shark prohibitions in the case where an oceanic whitetip shark or silky shark is not seen during fishing operations and is unknowingly delivered into the vessel hold and frozen as part of a purse seine operation. It would not establish any new reporting and recordkeeping requirements (within the meaning of the Paperwork Reduction Act). The costs of complying with this requirement are described below to the extent possible.

This element of the rule applies specifically to U.S. purse seine vessels used for commercial fishing for HMS on the high seas or in EEZs within the Convention Area (excluding the overlap area). It is not expected that these requirements would cause any modification to the vessels' fishing practices, as the expectation is that they would not have seen the animal prior to delivering it into the hold. Although this element would relieve vessel owners and operators from the burden associated with the existing regulation, qualifying for the exemption could bring modest costs. If the option of discarding the animal at the first point of landing or transshipment is taken, no additional costs would be expected. If the option of surrendering the shark to the responsible government authority is taken, there could be moderate costs in terms of crew labor that may be necessary to contact the authority and surrender the shark. Under either option, the cost would be offset by the reduced risk of monetary fines that may be associated with current regulations prohibiting the retention of oceanic whitetip sharks and silky sharks.

Fulfillment of these requirements is not expected to require any professional skills that the affected vessel owners and operators do not already possess.

Shark Element (2): This element of the rule requires that any incidentally caught shark not brought on board be hauled alongside the vessel before being released in order to facilitate better species identification by the WCPFC observer on board. It would not establish any new reporting or recordkeeping requirements (within the meaning of the Paperwork Reduction Act). The costs of complying with this requirement are described below to the extent possible.

This element of the rule applies to all U.S. vessels used for commercial fishing for HMS on the high seas or in EEZs within the Convention Area (excluding the overlap area); however, it would only apply to vessels on which an observer or electronic monitoring camera is present, so for the foreseeable future, it is expected that it would apply only to purse seine and longline vessels, which currently carry observers.

For purse seine vessels, NMFS expects that this requirement would not be frequently applicable. Although an observer would be present on 100 percent of trips, in most cases, the fish would be released only after it is brailed from the purse seine and brought on deck. As stated above, NMFS notes that observers on purse seine vessels already routinely identify sharks that are brailed and brought on board the vessel. In the infrequent circumstance that the vessel operator and crew determined that it is possible to release the fish before it is brought on deck, greater intervention and time on the part of crew members would be needed to ensure that the observer is able to properly identify species. To the extent that time could otherwise be put to productive activities, this could lead to increased costs associated with labor.

For longline vessels, it is expected that an observer would be present on about 20 percent of trips for deep-set trips and 100 percent on shallow-set trips. 2 In these cases, it is expected that under current fishing practices, the fish would be released as it is brought to the side of the vessel, such as by cutting the line or removing the hook. In these cases, minimal if any costs would be incurred.

This element of the rule is not expected to require any professional skills that the affected vessel owners, operators and crew do not already possess.

Mobulid Ray Element (1): This element of the rule prohibits vessels from targeting mobulid rays or making a set in instances in which a mobulid ray is sighted prior to a set. This requirement would not impose any new reporting or recordkeeping requirements (within the meaning of the Paperwork Reduction Act). The costs of complying with this requirement are described below to the extent possible.

This element applies to all U.S. vessels used for commercial fishing for HMS on the high seas or in the exclusive economic zones in the Convention Area (excluding the overlap area). U.S. fishing vessels in the WCPO are not known to intentionally target mobulid rays, although they are caught incidentally in both the purse seine and longline fleets and less frequently in the tropical handline and pole-and-line fleets. It is unknown whether U.S. purse seine vessels currently intentionally set on mobulid rays. If such a practice does exist, this element would be expected to impact purse seine vessels by prohibiting them from setting on a mobulid ray if sighted prior to a set.

In the event that a mobulid ray is sighted prior to a desired set, complying with this requirement could cause forgone fishing opportunities and result in economic losses. It is difficult to project the frequency of pre-set mobulid ray-sighting events because such events are not recorded. Historical data on mobulid ray interactions are available, but interactions are not equivalent to pre-set sightings. According to anecdotal information from purse seine vessel operators, a majority of mobulid rays are not seen before the set commences. Nonetheless, historical mobulid ray interaction rates can provide an upper bound estimate of the frequency of pre-set mobulid ray sighting events in the future. Based on unpublished observer data from the Pacific Islands Forum Fisheries Agency (FFA) observer program between 2015 and 2019, mobulid ray interactions occur in approximately 3 percent of observed purse seine sets on average in the purse seine fishery (100 percent of sets were observed in 2015-2019). In those instances where a mobulid ray is sighted prior to a set, the vessel operator would have to wait and/or move the vessel to find the next opportunity to make a set. The consequences in terms of time lost, distance travelled, and associated costs cannot be projected with any certainty, but a range of possible outcomes can be foreseen. At worst, the operator would lose the opportunity to make a set for the remainder of the day. At best, the operator would find an opportunity to make a set soon after the event—that is, on the same day, and limited costs would be incurred. This requirement is not expected to require any professional skills that the affected vessel owners, operators and crew do not already possess.

Mobulid Ray Element (2): This element of the rule prohibits vessels from retaining on board, transshipping, or landing any mobulid ray in the Convention Area. This requirement would not impose any new reporting or recordkeeping requirements (within the meaning of the Paperwork Reduction Act). The costs of complying with this requirement are described below to the extent possible.

This element of the rule applies to all U.S. vessels used for commercial fishing for HMS on the high seas or in the EEZs in the Convention Area (excluding the overlap area). U.S. fishing vessels in the WCPO are not known to intentionally target mobulid rays, although they are caught incidentally in both the purse seine and longline fleets and less frequently in the tropical handline and pole-and-line fleets. There are no recorded interactions with mobulid rays in the tropical troll or albacore troll fleets.

Unpublished observer data from the FFA observer program and NOAA's Pacific Islands Observer program indicate that between 2015 and 2019, an estimated two mobulid rays were retained per year in the purse seine fishery, on average, and in the longline fishery, it is estimated that that less than one mobulid ray was retained per year, on average. The remainder of the mobulid catch was released alive or discarded dead. In the tropical handline and pole-and-line fleets, there were no reported mobulid rays retained between 2015 and 2019. This requirement would foreclose harvesting businesses' opportunity to retain and sell or otherwise make use of any species of mobulid ray that may previously have been retained by U.S. fishing vessels. The consequences in terms of opportunity loss cannot be projected with any certainty; however, available data indicate that there is no history of commercial sale of mobulid rays by U.S. fishing vessels. Additionally, existing requirements under 50 CFR 300.27 prohibit vessels from retaining on board, transshipping, storing, landing, or selling any part or whole carcass of a mobulid ray that is caught in the IATTC Convention Area in the EPO. For those vessels that fish in both the WCPO and EPO, it is expected that they would already be responsible for implementing the retention prohibition requirements included in the EPO.

This element of the rule is not expected to require any professional skills that the affected vessel owners, operators and crew do not already possess.

Mobulid Ray Element (3): This element of the rule requires vessels to release any mobulid ray caught in the Convention Area as soon as possible and in a manner that results in as little harm to the animal as possible, without compromising the safety of any persons. This requirement would not impose any new reporting or recordkeeping requirements (within the meaning of the Paperwork Reduction Act). The costs of complying with this requirement are described below to the extent possible.

This element of the rule applies to all U.S. vessels used for commercial fishing for HMS on the high seas or in the EEZs in the Convention Area (excluding the overlap area). The requirement could bring costs in the form of reduced efficiency of fishing operations if vessels were required to change their release/discard practices relative to current practices.

For purse seine vessels, it is expected that in most cases, the animal would be released after it is brailed from the purse seine and brought on deck. In these cases, the labor involved would probably be little different than current practice for discarded rays. If the vessel operator and crew determined that it is possible to release the animal before it is brought on deck, this would likely involve greater intervention and time on the part of crew members, which would be costly to the extent that time could otherwise be put to productive activities.

Existing regulations under 50 CFR 300.27 require that vessels promptly release any mobulid ray caught in the IATTC Convention Area, unharmed, and as soon as it is seen in the net or on deck. As noted above, most of the purse seine vessels registered on the WCPFC RFV are also registered to fish on the IATTC RFV, and fish in both the WCPO and the EPO, so it expected that those vessels would already be responsible for implementing the release requirements in the EPO.

For longline, tropical handline and pole-and-line vessels, it is expected that the animal would be quickly released as it is brought to the side of the vessel, such as by cutting the line or removing the hook. In these cases, minimal if any costs would be incurred.

This element of the rule is not expected to require any professional skills that the affected vessel owners, operators and crew do not already possess.

Mobulid Ray Element (4): This element of the rule is a limited exemption from the mobulid retention prohibition and the mobulid release requirement in that vessel owners and operators would be relieved of those requirements in those cases where a WCPFC observer collects, or requests assistance to collect, a sample of a mobulid ray, if requested to do so by a WCPFC observer. This requirement would not impose any new reporting or recordkeeping requirements (within the meaning of the Paperwork Reduction Act). The costs of complying with this requirement are described below to the extent possible.

This element of the rule applies to all U.S. vessels used for commercial fishing for HMS on the high seas or in the EEZs in the Convention Area (excluding the overlap area). Under existing regulations, operators and crew of vessels with WCPFC Area Endorsements are already required to assist WCPFC observers in the collection of samples. This element of the rule would effectively expand that requirement—specifically for mobulid rays—to vessels not required to have WCPFC Area Endorsements. This element may bring additional costs to fishing businesses because it may require the owner, operator, and crew to assist the observer in the collection of samples if requested to do so by the observer. It is not possible to project how often observers would request assistance in collecting samples. When it does occur, it is not expected that sample collection would be so disruptive as to substantially delay or otherwise impact fishing operations, but the fishing business could bear small costs in terms of crew labor, and possibly the loss of storage space that could be used for other purposes. It is not expected to require any professional skills that the affected vessel owners, operators and crew do not already possess.

Mobulid Ray Element (5): This element of the rule provides a limited exemption to elements 2 and 3 in specific cases where a mobulid ray is not seen during fishing operations and is unknowingly delivered into the vessel hold and frozen. It would not establish any new reporting and recordkeeping requirements (within the meaning of the Paperwork Reduction Act). The costs of complying with this requirement are described below.

This element of the rule applies specifically to U.S. purse seine vessels used for commercial fishing for HMS on the high seas or in EEZs within the Convention Area (excluding the overlap area). It is not expected that these changes would cause any modification to the vessels' fishing practices, as the expectation is that they would not have seen the animal prior to delivering it into the hold. Although this element would relieve vessel owners and operators from the burden associated with the existing regulation, the steps for discarding or surrendering the animal could bring modest costs. If the option of discarding the animal at the first point of landing or transshipment is taken, no additional costs would be expected. If the option of surrendering the mobulid ray to the responsible government authority is taken, there could be moderate costs in terms of crew labor that may be necessary to contact the authority and surrender the animal. Under either option, the cost is would be offset by the reduced risk of monetary fines.

Fulfillment of these requirements is not expected to require any professional skills that the affected vessel owners and operators do not already possess.

Small entities would not be disproportionately affected relative to large entities. Nor would there be disproportionate economic impacts based on home port. As indicted above, there could be disproportionate impacts according to vessel size for the IMO number requirement.

NMFS has not identified any Federal regulations that conflict with or duplicate these regulations. NMFS has identified several Federal regulations that overlap with the final rule. These include: the non-entangling FAD requirements, which overlap with existing EPO regulations at 50 CFR 300.28(e); the IMO number requirements, which overlap with existing EPO regulations at 50 CFR 300.22(b)(3)(iii); the purse seine shark retention requirements, which overlap with existing EPO regulations at 50 CFR 300.27(f); and the mobulid ray requirements, which overlap with existing EPO regulations at 50 CFR 300.27(i). The regulations for the EPO apply when vessels fish in the EPO, including the area of overlapping jurisdiction between the IATTC and the WCPFC (overlap area). Aside from the IMO number requirements, the regulations under this final rule apply in the WCPO, excluding the overlap area. The revised IMO number requirements in this rule also apply in the overlap area.

NMFS has not been able to identify any alternatives that would minimize any significant economic impact of the final rule on small entities. NMFS rejected the alternative of taking no action at all because it would be inconsistent with the United States' obligations under the Convention. As a Contracting Party to the Convention, the United States is required to implement the decisions of the Commission. Consequently, NMFS has limited discretion as to how to implement those decisions.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. NMFS has prepared small entity compliance guides for this rule, and will send copies of the appropriate guide to holders of permits in the relevant fisheries. The guide and this final rule also will be available via the Federal e-rulemaking Portal, at www.regulations.gov (search for ID NOAA-NMFS-2021-0068) and by request from NMFS PIRO (see ADDRESSES ).

This final rule contains one collection-of-information requirement that has been submitted to the Office of Management and Budget (OMB) for approval under the Paperwork Reduction Act (PRA), temporary Control Number 0648-0798. NMFS will merge the collection-of-information requirement implemented by this final rule with the existing, approved information collection under OMB Control Number 0648-0595, “Western and Central Pacific Fisheries Convention Vessel Information Family of Forms”. This final rule requires the owners of certain fishing vessels to ensure that IMO numbers are issued for vessels. This would be a one-time requirement; no renewals or updates would be required during the life of a vessel. Public reporting burden for a vessel to acquire an IMO number is estimated to average approximately 30 minutes per response. These estimates include the time necessary for reviewing instructions, searching existing data sources, gathering and maintaining the necessary data, and compiling, reviewing, and submitting the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. All currently approved collections of information may be viewed at http://www.cio.noaa.gov/services _ programs/prasubs.html.

For the reasons set out in the preamble, NMFS amends 50 CFR part 300 as follows: