The Commission is revising its regulatory definition of “public communication” and requirements regarding disclaimers on certain public communications placed for a fee on the internet.

The new regulations are intended to give the American public improved access to information about the persons paying for and candidates authorizing certain internet communications, pursuant to the Federal Election Campaign Act (the “Act”). The regulations clarify how the disclaimer requirements apply to various types of internet communications and allow certain internet communications to provide disclaimers through alternative technological means.

Before final promulgation of any rules or regulations to carry out the provisions of the Act, the Commission transmits the rules or regulations to the Speaker of the House of Representatives and the President of the Senate for a thirty-legislative-day review period. 52 U.S.C. 30111(d). The effective date of this final rule is March 1, 2023.

Under the Act and Commission regulations, a “disclaimer” is a statement that must appear on certain communications to identify the payor and, where applicable, whether the communication was authorized by a candidate. 52 U.S.C. 30120(a); 11 CFR 110.11; see Citizens United v. FEC, 558 U.S. 310, 366-67 (2010) (“ Citizens United” ) (citing Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976).

With some exceptions, the Act and Commission regulations require disclaimers for public communications: (1) made by a political committee; (2) that expressly advocate the election or defeat of a clearly identified federal candidate; or (3) that solicit a contribution. 52 U.S.C. 30120(a); 11 CFR 110.11(a). In addition to public communications by political committees, “electronic mail of more than 500 substantially similar communications when sent by a political committee; and all internet websites of political committees available to the general public” also must have disclaimers. 11 CFR 110.11(a)(1).

These final rules modify the definition of “public communication.” 11 CFR 100.26. Specifically, as explained below, the term “public communication” now includes “communications placed for a fee on another person's website, digital device, application, or advertising platform.”

The content of the disclaimer that must appear on a given public communication depends on who authorized and paid for the advertisement. If a candidate, an authorized committee of a candidate, or an agent of either, pays for and authorizes the communication, then the disclaimer must state that the communication “has been paid for by the authorized political committee.” 11 CFR 110.11(b)(l); see also 52 U.S.C. 30120(a)(1). If a public communication is paid for by someone else, but is authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must state who paid for the communication and that it is authorized by the candidate, authorized committee of the candidate, or an agent of either. 11 CFR 110.11(b)(2); see also 52 U.S.C. 30120(a)(2). If the communication is not authorized by a candidate, an authorized committee of a candidate, or an agent of either, then “the disclaimer must clearly state the full name and permanent street address, telephone number, or World Wide Web address of the person who paid for the communication, and that the communication is not authorized by any candidate or candidate's committee.” 11 CFR 110.11(b)(3); see also 52 U.S.C. 30120(a)(3). Every disclaimer “must be presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identity of the person” that paid for the communication. 11 CFR 110.11(c)(1).

Commission regulations contain certain exceptions to the general disclaimer requirements. For example, under the “small items exception,” disclaimers are not required for public communications placed on “[b]umper stickers, pins, buttons, pens, and similar small items upon which the disclaimer cannot be conveniently printed.” 11 CFR 110.11(f)(1)(i). Under the “impracticable exception,” disclaimers are not required for “[s]kywriting, water towers, wearing apparel, or other means of displaying an advertisement of such a nature that the inclusion of a disclaimer would be impracticable.” 11 CFR 110.11(f)(1)(ii).

The Commission first addressed internet disclaimers in its 1994 rulemaking regarding communications disclaimer requirements. The Commission's initial proposal was silent as to internet communications. See Communications Disclaimer Requirements, 59 FR 50708 (Oct. 5, 1994). However, after publishing the Notice of Proposed Rulemaking, the Commission considered an advisory opinion request from a political committee that intended to “provide a forum for publicly available information on selected public officials” on its website. Advisory Opinion 1995-09 (NewtWatch) at 1. The Commission concluded that the committee's use of a website was “a form of general public political advertising under 11 CFR 110.11”  1 that required a disclaimer. Advisory Opinion 1995-09 (NewtWatch) at 2. The Commission codified this interpretation in its final rule, explaining that “internet communications and solicitations that constitute general public political advertising require disclaimers” and that “[t]hese communications and others that are indistinguishable in all material aspects from those addressed in [Advisory Opinion 1995-09 (NewtWatch PAC)] will now be subject to” disclaimer requirements. Communications Disclaimer Requirements, 60 FR 52069, 52071 (Oct. 5, 1995).

In 2002, Congress enacted the Bipartisan Campaign Reform Act of 2002, Public Law 107-155, 116 Stat. 81 (2002) (“BCRA”). In BCRA, Congress added new specificity to the disclaimer requirements, expanded the scope of communications covered by the disclaimer requirements, and enacted “stand-by-your-ad” requirements. Congress also added a new term, “public communication,” which did not reference the internet: “The term `public communication' means a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” See 52 U.S.C. 30101(22).

In implementing BCRA, the Commission promulgated a new regulatory definition of “public communication” that mirrored the statutory language but added that “[t]he term public communication shall not include communications over the internet.” 11 CFR 100.26 (2002); Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 FR 49064, 49111 (July 29, 2002). The Commission also promulgated new rules to implement BCRA's changes to the disclaimer provisions of the Act. See Disclaimers, Fraudulent Solicitations, Civil Penalties, and Personal Use of Campaign Funds, 67 FR 76962 (Dec. 13, 2002). The new disclaimer rules applied to “public communications” as well as political committee websites and the distribution by political committees of more than 500 substantially similar emails. Other than these two specific types of internet-based activities by political committees, however, internet communications were not subject to the disclaimer requirements. Id. at 76963-64 (explaining that “[t]his is the Commission's only divergence from the 11 CFR 100.26 definition of `public communication' ”).

In 2004, the U.S. District Court for the District of Columbia considered a case in which the plaintiffs alleged, inter alia, that the Commission had erred in requiring that a “coordinated communication” could only be a “public communication” or “electioneering communication” because this would mean that internet communications, “no matter how closely they are coordinated with political parties or a candidate's campaign, cannot be considered `coordinated' under the [Commission's] regulations” by virtue of being specifically excluded from the definition of “public communication.” Shays v. FEC, 337 F. Supp. 2d 28, 65 (D.D.C. 2004) (“ Shays” ), aff'd, 414 F. 3d 76 (D.C. Cir. 2005), reh'g en banc denied (Oct. 21, 2005). The court agreed with the plaintiffs, finding that “Congress intended all other forms of `general public political advertising' to be covered by the term `public communication.' ” Shays at 70. The court reasoned that “[w]hile all internet communications do not fall within this descriptive phrase, some clearly do.” Id. at 67. The court concluded that “[w]hat constitutes `general public political advertising' in the world of the internet is a matter for the FEC to determine.” Id. at 70.

Following that ruling, the Commission amended the definition of “public communication” to include “internet communications placed on another person's website for a fee.” 11 CFR 100.26; internet Communications, 71 FR 18589 (Apr. 12, 2006) (“2006 Internet E&J”). Under the new definition, “when someone such as an individual, political committee, labor organization or corporation pays a fee to place a banner, video, or pop-up advertisement on another person's website, the person paying makes a `public communication.' ” 2006 Internet E&J, 71 FR at 18593-94. Furthermore, “the placement of advertising on another person's website for a fee includes all potential forms of advertising, such as banner advertisements, streaming video, popup advertisements, and directed search results.” Id at 18594; see also id. at 18608 n.52 (noting that, as used in a different context, the “terms `website' and `any internet or electronic publication' are meant to encompass a wide range of existing and developing technology” including “social networking software”). The Commission explained that the revised definition of “public communication” also affects, among other provisions, “the requirement to include disclaimer statements on certain communications pursuant to 11 CFR 110.11.” Id. at 18589 n.2.

After the adoption of these regulations in 2006, the Commission considered several advisory opinion requests that concerned the application of disclaimers to internet communications. The queries centered on whether certain communications are exempt from the disclaimer requirements under the impracticable or small items exceptions at 11 CFR 110.11(f)(1) or whether they may incorporate technological modifications to satisfy the disclaimer requirements. 2

The Commission was first asked to apply the small items exception or impracticable exception to text-limited internet advertisements in 2010. Google proposed to sell AdWords search keyword advertisements limited to 95 text characters; the proposed advertisements would not include disclaimers but would link to a landing page (the purchasing political committee's website) on which users would see a disclaimer. See Advisory Opinion 2010-19 (Google). The Commission concluded that Google's proposed AdWords program “under the circumstances described . . . [was] not in violation of the Act or Commission regulations,” but the advisory opinion did not answer whether Google AdWords ads would qualify for the small items or impracticable exception. Id. at 2.

In response to two subsequent advisory opinion requests concerning the possible application of the small items exception or impracticable exception to small internet advertisements, the Commission was unable to issue advisory opinions by the required four affirmative votes. See Advisory Opinion Request 2011-09 (Facebook) (Apr. 26, 2011) (concerning application of exceptions to zero-to-160 text character ads with thumbnail size images); Advisory Opinion Request 2013-18 (Revolution Messaging) (Sept. 11, 2013) (concerning application of exceptions to mobile banner ads).

Finally, the Commission considered an advisory opinion request in 2017 asking whether paid image and video ads on Facebook “must . . . include all, some, or none of the disclaimer information specified by 52 U.S.C. 30120(a).” Advisory Opinion Request 2017-12 (Take Back Action Fund) at 4. The Commission issued an opinion concluding that the proposed Facebook image and video advertisements “must include all of the disclaimer information” specified by the Act, but, in reaching this conclusion, Commissioners relied on two different rationales, neither of which garnered the required four affirmative votes. Advisory Opinion 2017-12 (Take Back Action Fund) at 1.

On October 13, 2011, the Commission published in the Federal Register an Advance Notice of Proposed Rulemaking (“ANPRM”) soliciting comment on whether to modify disclaimer requirements at 11 CFR 110.11 for certain internet communications, or to provide exceptions thereto, consistent with the Act. The Commission received eight comments in response. Six of the commenters agreed that the Commission should update the disclaimer rules through a rulemaking, though commenters differed on how the Commission should do so.

On October 18, 2016, the Commission solicited additional comment in light of legal and technological developments during the five years since the ANPRM was published. The Commission received six comments, all but one of which supported updating the disclaimer rules. Commenters, however, differed on whether the Commission should allow modified disclaimers for all online advertisements or exempt paid advertisements on social media platforms from the disclaimer requirements. 3

On October 10, 2017, the Commission again solicited additional comment in light of the ongoing legal, factual, and technological developments in this area. During this reopened comment period, the Commission received submissions from 149,772 commenters (including persons who signed on to others' comments), of which 147,320 indicated support for updating or strengthening the disclaimer rules or other government action; 2,262 indicated opposition to such efforts; and 190 did not indicate a discernable preference.

On March 26, 2018, the Commission published in the Federal Register a Notice of Proposed Rulemaking in this rulemaking. See Notice of Proposed Rulemaking, Internet Communication Disclaimers and Definition of “Public Communication,” 83 FR 12864 (Mar. 26, 2018) (“NPRM”). During the comment period, the Commission received submissions from 165,801 commenters (including persons who signed on to others' comments), of which a large majority supported one or the other of two alternative proposals or supported revising disclaimer rules generally. In addition, the Commission received three comments and twelve ex parte communications after the comment period.

As discussed above, this NPRM proposed to revise the definition of “public communication” to include communications placed for a fee on another person's “internet-enabled device or application,” in addition to communications placed for a fee on another person's website. Id. In addition, the Commission requested comment on two proposed revisions to its disclaimer rules that were intended to clarify, for various types of paid internet public communications, the disclaimers required and, in certain circumstances, when a paid internet public communication could employ a modified approach to the disclaimer requirements. Alternative A proposed applying the full disclaimer requirements that apply to radio and television communications to public communications distributed over the internet with audio or video components. Alternative A also proposed applying the type of disclaimer requirements that apply to printed public communications to text and graphic public communications distributed over the internet. Finally, Alternative A proposed allowing certain small text or graphic public communications distributed over the internet to satisfy the disclaimer requirements through an “adapted disclaimer.” Alternative B proposed to treat internet public communications differently from public communications disseminated via print and broadcast media. Alternative B proposed a requirement that disclaimers on internet communications be clear and conspicuous and meet the same general content requirements as other disclaimers, without imposing the additional disclaimer requirements that apply to print, radio, and television communications. Alternative B also proposed to allow certain paid internet advertisements to satisfy the disclaimer requirements through an adapted disclaimer, depending on the amount of space or time necessary for a clear and conspicuous disclaimer as a percentage of the overall advertisement. In the event that an advertisement could not provide a disclaimer even through a technological mechanism, Alternative B proposed to create an exception to the disclaimer requirement specifically for paid internet advertisements.

In May 2018, the Commission held a hearing on the regulatory changes proposed in the NPRM and received testimony from 18 witnesses over the course of two days. The witnesses included campaign finance reform organizations, experts in technology and advertising, and political party committees. The witnesses testified on issues relating to defining “public communications,” how internet advertising has evolved and how it is used, incorporating flexibility in the regulations to accommodate new technologies as well as business decisions, and how internet communications are different from print and broadcast media.

Finally, on June 20, 2019, the Commission made public two alternative proposals from Commissioners, seeking additional public comment on updated proposed revisions. Proposal A would have provided that “[t]he term general public political advertising shall not include communications over the internet, except for (1) communications produced for a fee and those placed or promoted for a fee on another person's website or digital device, application, service, or platform, and (2) such communications included in section (1) that are then shared by or to a website or digital device, application, service, or platform.”  4 It would have provided that internet public communications must include full disclaimers similar to those already required for print, radio, and television communications, including the stand-by-your-ad requirements for radio and television advertisements. Proposal A also provided that the small items and impracticable exceptions would not apply to internet public communications, but that an adapted disclaimer may be used for a communication containing text or graphic components when it would be impracticable to include a full disclaimer “due to factors inherent to the technology.” internet Ad Disclaimers Rulemaking Proposal (June 20, 2019) (“Proposal A”). 5

Proposal B did not include a proposed revision to the definition of “public communication,” and provided that an adapted disclaimer may be used for “[a]ny internet public communication that cannot reasonably provide a disclaimer on the face of the communication.” Internet Communication Disclaimers, Proposed Rule (June 20, 2019) (“Proposal B”). 6 In response to these proposals, the Commission received five comments, three of which did not express a preference for one of the alternative proposals, and two of which supported Proposal A.

As set forth below, the Commission is revising section 100.26, defining “public communication,” to clarify how it applies to general public political advertising over the internet, and—in light of the nuances of internet advertising and the rapid pace of technological change—to ensure that the disclaimer rule also applies appropriately to newer forms of general public political advertising over the internet.

Commission regulations require a disclaimer for any “public communication” that contains express advocacy or solicits a contribution, and for all public communications by political committees. 11 CFR 110.11(a). The current definition of “public communication” includes only those internet communications “placed for a fee on another person's website.” 11 CFR 100.26. Since the Commission promulgated this definition in 2006, internet activity has expanded from blogging, websites, and listservs to include social media networks (Facebook, Twitter, and LinkedIn), media sharing networks (YouTube, Instagram, TikTok, and Snapchat), streaming applications (Netflix, Hulu), and mobile devices and applications, as well as wearable devices (smart watches, smart glasses), home devices (Amazon Echo), virtual assistants (Siri, Alexa), and smart TVs and devices (home appliances, digital commercial billboards, and displays). As one commenter noted in response to the ANPRM, “[a]s consumers move toward virtual and augmented reality services, wearable technology, screenless assistants, and other emerging technologies, there is every reason to predict that advertisers will demand the ability to reach voters and customers on those technologies, and, in turn, new advertising configurations that have not yet been imagined will be developed.”

In the instant NPRM, the Commission cited its earlier proposal in the Technological Modernization rulemaking to update the definition of “public communication” to account for new technologies. NPRM at 12868 (citing Technological Modernization (“Technology NPRM”), 81 FR 76416 (Nov. 2, 2016)). In both NPRMs, the Commission proposed to revise the definition of “public communication” to clarify how the definition applies to newer forms of general public political advertising on the internet. NPRM at 12868 (citing Technology NPRM). Specifically, the Commission proposed to revise the definition to include communications placed for a fee on another person's “internet-enabled device or application,” in addition to the existing inclusion of communications placed for a fee on another person's website. Id.; Technology NPRM at 76433-34. In both NPRMs, the Commission highlighted the fact that when it promulgated the existing definition of “public communication” in 2006, it “focused on websites because that was the predominant means of paid internet advertising at the time,” and explained that in 2006 it “analogized paid advertisements on websites to the forms of mass communication enumerated in the definition of `public communication' in the [Act] because `each lends itself to distribution of content through an entity ordinarily owned or controlled by another person.' ” NPRM at 12864 (citing 2006 internet E&J, 71 FR at 18594); 52 U.S.C. 30101(22)); see also Technology NPRM at 76433.

The purpose of the change proposed in both NPRMs was “to reflect post-2006 changes in internet technology—such as the development of mobile applications (`apps') on smartphones and tablets, smart TVs and devices, interactive gaming dashboards, e-book readers, and wearable network-enabled devices such as smartwatches and headsets—and to make the regulatory text more adaptable to the development of future technologies.” NPRM at 12864-65; see also Technology NPRM at 76433-34. In pursuit of its goal of updating the definition of “public communication” to reflect recent technological changes and to accommodate future changes, the Commission asked “whether revising the definition to include communications placed for a fee on another person's `internet-enabled device or application,' in addition to communications placed for a fee on another person's website, would be a clear and technically accurate way to refer to the various media through which paid internet communications can be and will be sent and received.” NPRM at 12868. The Commission asked whether it was clear that both the placement-for-a-fee element and the third-party element would apply to websites, internet-enabled devices, and internet applications.

All but one commenter supported the revisions proposed by the Commission, though a subset of supporters suggested the Commission make additional revisions. For instance, one commenter stated that the proposed definition of “public communication” “is generally appropriate and will remain relevant as technology advances, but that it could be modified slightly to be clearer”—specifically, to “more accurately capture[ ] the requirement for payment and a website, platform or device other than the speaker's own.” Several commenters argued that “placed for a fee” should be included in the definition to include any future communication methods. Others suggested revising the definition by adding the term “services” in order to make the term more expansive to include future technology, or to add the term “promoted for a fee” to capture individuals paid to share content in cases where no payment is made to a platform. One commenter supported adding those who promote advertisements to the definition on the grounds that promotion multiplies the benefit of a given advertisement by widening its distribution to different audiences and all audiences should be aware of the sponsorship information. One commenter opined that the cost of producing content should trigger a disclaimer even if the content is posted for free. Other commenters proposed adding references to additional types of digital media, such as social media, platforms or video games.

Only one commentator opposed revision of the current definition, recommending instead that the Commission evaluate each new technology under the current definition on a case-by-case basis. In the alternative, this commenter suggested that if the definition is to be revised, it should apply only to communications above a specific monetary threshold, whether calculated on a per-communication basis, or based on an aggregate amount per speaker. The commenter also proposed that the term “internet-enabled device or application” be replaced with references to specific technologies.

Based on the comments received, the Commission has decided to revise the definition of “public communication” to better accommodate technological changes and reflect the range of “media through which paid internet communications can be and will be sent and received.” In doing so, it intends to regulate only communications placed for a fee “through an entity ordinarily owned or controlled by another person,” analogous to the forms of “public communication” already included in the definition. NRPM at 12868. The Commission is not otherwise altering its existing interpretation of the term “public communication” or “general public political advertising.”

The new definition of “public communication” includes “communications placed for a fee on another person's website, digital device, application, or advertising platform.” This new definition implements the Commission's goals of including the range of current internet media and being adaptable to the development of future technologies. It also reflects the Commission's determination that—for purposes of the definition of “public communication”—there is no basis to distinguish between paid advertising on a “website” and paid advertising via other internet-enabled technologies. The new definition therefore explicitly includes communications not only in the form of paid ads on websites, but also paid ads that otherwise meet the definition of “general public political advertising” and are disseminated via the internet or media that rely on the connectivity of the internet (including social media networks, streaming platforms, mobile applications, and wearable devices). This is because, like the more traditional forms of paid communications that are specifically listed in the existing definition of “public communication,” these forms of paid internet communications are inherently owned or controlled by third parties.

In response to the NPRM, the Commission received numerous comments stating that while the proposed additions to the definition were appropriate, they were not sufficient to cover the range of paid internet communications in current use or flexible enough to cover those yet to be developed. The Commission also received comments stating that in addition to “placing” a communication for a fee, internet advertising is generally understood to include “promoting” a communication for a fee to amplify its reach and that omitting paid promotion from the definition of “public communication” would similarly leave the definition incomplete.

The Commission is further revising the definition of “public communication” to clarify that it covers general public political advertising on various types of internet media that may not be captured by the existing definition ( i.e., communications on digital devices, applications, or advertising platforms). This is to ensure that the same disclaimer requirements apply to general public political advertising across the internet ecosystem. As one commenter stated, “[w]ebsites are only one type of digital communication that use the internet, and they are carrying a decreasing portion of internet traffic. Indeed, many, and perhaps most, political communications are not on websites.” This commenter also noted that smartphones, tablet apps and video streaming are better characterized as “devices,” “platforms,” or “applications,” rather than websites, and that the “Internet of Things” will likely become increasingly prevalent in the future. The Commission agrees and has revised the definition of “public communication” to include not only communications on another person's “website,” but also those on another person's “digital device, application, or advertising platform.” See NPRM at 12865 (“[t]he Commission has decided to reintroduce the proposed change to the definition of `public communication' in this rulemaking for the limited purpose of determining whether the term `internet-enabled device or application' is a sufficiently clear and technically accurate way to refer to the various media through which paid internet communications can be sent and received.”).

The Commission does not agree with a commenter who opposed changing the definition on the theory that it “presumptively extend[s] federal regulation to all future technology indefinitely” and that the Commission instead should continue to assess emerging technologies on a case-by-case basis to see whether they are included in the definition. The definition does not extend to “all future technology,” but only to general public political advertising whose “placement” is “for a fee,” and which is distributed via a “website, digital device, application, or advertising platform” or analogous form of internet-enabled technology owned or controlled by a third party. Moreover, a system wherein the Commission would be called upon to determine whether a given technology falls within the definition on a case-by-case basis is inefficient and cumbersome for both regulated parties and the Commission. As internet communications continue to constitute greater proportions of political speech, revising the definition to explicitly encompass more than website communications provides clearer guidance to the public as to how the rule applies.

The Act and Commission regulations impose specific requirements for disclaimers on printed, radio, and television communications. See 52 U.S.C. 30120(a), (d); 11 CFR 110.11(c)(2)-(4). For printed communications, requirements for type size, color contrast, and placement on the page are designed to ensure that the disclaimers will be visible. 11 CFR 110.11(c)(2). Requirements for disclaimers on radio and television communications vary, depending on whether a candidate or another person pays for or authorizes the communication. Radio communications paid for or authorized by a candidate must include an audio statement spoken by the candidate, identifying the candidate and stating that the candidate has approved the communication. 52 U.S.C. 30120(d)(1)(A); 11 CFR 110.11(c)(3)(i). Radio communications that are not paid for or authorized by a candidate must include an audio statement identifying the person paying for the communication and stating that that person “is responsible for the content of this advertising.” 52 U.S.C. 30120(d)(2); 11 CFR 110.11(c)(4)(i). Television, broadcast, cable, or satellite communications paid for or authorized by a candidate must include a statement by the candidate, identifying the candidate and stating that the candidate has approved the communication, either through a full-screen view of the candidate making the statement or by a voice-over accompanied by a “clearly identifiable photographic or similar image” of the candidate; these communications must also include a similar statement “in clearly readable writing” at the end of the communication. 52 U.S.C. 30120(d)(1)(B); 11 CFR 110.11(c)(3)(ii)-(iii). Television, broadcast, cable, or satellite communications that are not paid for or authorized by a candidate must include the audio statement required by 11 CFR 110.11(c)(4)(i) and conveyed by a “full-screen view of a representative” of the person making the statement or in a voice-over by such person; these communications must also include a similar statement “in clearly readable writing” at the end of the communication. 52 U.S.C. 30120(d)(2); 11 CFR 110.11(c)(4)(ii)-(iii).

In the years since the definition of “public communication” was revised to include paid website advertising, technological developments have expanded the available formats and functionality of internet advertising. Many internet advertisements today include video, audio, and graphic components beyond the limited text available in earlier internet advertising considered by the Commission, as well as beyond the text and audiovisual components of print and broadcast media.

Thus, the Commission proposed in the NPRM to add regulatory provisions clarifying, for various types of paid internet public communications, when and how the disclaimer requirements apply. The Commission sought comment on two alternative approaches, noting that “[t]he two proposals need not be considered as fixed alternatives; commenters are encouraged to extract the best elements of each, or suggest improvements or alternatives, to help the Commission fashion the best possible rule.” NPRM at 12864. Alternative A would have applied the full disclaimer requirements that now apply to radio and television communications, including the stand-by-your-ad content requirements, to public communications distributed over the internet with audio or video components, “based on the premise that these advertisements are indistinguishable from offline advertisements that may be distributed on radio or television, broadcast, cable, or satellite in all respects other than the medium of distribution.” Id. at 12870. Further, the Commission noted that the disclaimer requirements for radio and television communications “have been in operation for 15 years and are, therefore, familiar to persons paying for, authorizing, and distributing communications. Moreover, by applying the specifications for radio and television communications to audio and video communications distributed over the internet, the proposed regulations would ensure that internet audio ads could air on radio and internet video ads could air on television without having to satisfy different disclaimer requirements.” Id. at 12870. Alternative A also proposed to apply disclaimer requirements that now apply to printed public communications to text and graphic public communications distributed over the internet and proposed to establish a “safe harbor” for disclaimers appearing in “letters at least as large as the majority of the other text in the communication”—tracking the current approach for disclaimers in printed materials—without making it a requirement.

Alternative B proposed to treat internet communications differently from communications disseminated via print and broadcast media, on the basis that the internet is a unique medium of communication and internet advertising is “inherently more diverse than a simple transition of similar content from print or broadcast television,” as it includes varying platforms, sizes, devices, individualized settings, interactivity, and duration. Id. at 12871. Alternative B, therefore, would have required disclaimers on internet communications to be clear and conspicuous and to meet the same general content requirement as other disclaimers, but without imposing additional specific disclaimer requirements that apply to print, radio, or television communications, such as type sizes, duration, or specific content.

Both alternatives also proposed to allow alternative means of satisfying the disclaimer requirement for internet public communications that could not accommodate full disclaimers. These proposals, discussed further below, would have allowed for adapted disclaimers that provided the name of the person who paid for a communication and a technological means of accessing a full disclaimer.

The Commission received comments supporting and opposing aspects of both proposals. On the question of applying existing radio and television stand-by-your-ad requirements to their analogues in internet communications, commenters were roughly equally divided.

Commenters supporting Alternative A noted that under this alternative, more information would be available to the viewer, that it was flexible while promoting transparency, and that Alternative A was more likely to lead to disclaimer information appearing on the face of the communication, which, they argued, should be the default position. One commenter noted that where there is a divergence between the nature of online and traditional advertising, this difference supported more Commission scrutiny rather than less because of the availability of microtargeting for internet advertising.

One commenter argued that it would be anomalous to apply the stand-by-your-ad requirements to a television advertisement distributed through a cable television network, but not to apply those requirements to the same advertisement distributed on a streaming internet platform by the same television station. The commenter also argued that stand-by-your-ad requirements do not impose any additional cost on the advertiser in the online space, and that if questions arise concerning their application to unusual formats, the Commission should address these scenarios case-by-case rather than afford digital communications a general exemption.

In support of requiring disclaimers to appear on the face of a communication, one commenter stated that the click-through rate for ads containing links is less than 1 percent. Some commenters expressed their conviction that technical innovation will increasingly enable the requisite information to appear on the face of the communication, and that Alternative B would remove an incentive for technology companies to innovate by exempting communications from disclaimer requirements even when technical constraints would not preclude a disclaimer. Some comments noted that under Alternative B it would be possible to manipulate the content of the ad, such as the name of the sponsor, in order to qualify for exemption from disclaimer requirements. One commenter stated that “[a]lthough at first glance 10% appears to be an objective standard, in reality it is largely within the control of the advertiser. For example, a person seeking to avoid disclaimers might form an independent-expenditure-only committee or a 501(c)(4) nonprofit with an intentionally overlong name that would exceed 10% of many digital advertisements.”

One commenter, expressing a preference for Alternative A, recommended modifying it to require ad sponsors to report their shortened as well as their full names (see discussion below for more detail) if they use their shortened names in the communication, and to require that disclaimers be placed in text as a title or headline of ads containing multimedia aspects. One commenter supported Alternative A's rule for allowing an adapted disclaimer (discussed below) but opposed specific requirements for internet ads. One commenter recommended that the Commission require that disclaimers be made accessible to those with disabilities, who constitute, according to the commenter, nearly 20 percent of the population.

Commenters supporting Alternative B stated that they preferred its flexibility, with one commenter suggesting modifying Alternative B to allow audio disclaimers of no more than four seconds. These commenters stated that Alternative B's greater flexibility would render it more readily applicable to potential future technologies.

Several commenters also questioned whether Alternative A's extension of current radio and television disclaimer specific requirements to internet communications is supported by statutory authority, noting that section 30120(a) applied to radio and television communications when originally enacted, and that it might be overbroad for the Commission to apply the law to internet activity. In response, other commenters argued that current statutory authority would support extending the current disclaimer regime to the internet, with one commenter noting that although section 30120(a) does not refer to the internet, it does not expressly preclude application to the internet either.

One commenter observed that Alternative B has parallels in existing regulatory exceptions for small and impracticable items. One commenter stated that “Alternative B's most important feature is its inclusion of a safe harbor provision, allowing speakers to use alternative disclaimers when the standard disclaimer would occupy more than 10% of the time or space of the underlying communication. Adopting this policy would ensure the Commission does not unduly burden speakers, interfere with their communications, or increase the cost of their communications.” One commenter argued that Alternative B provides a bright line for advertisers that could be further enhanced by defining other phrases, such as “on the face of the communication” or “clear and conspicuous.” The commenter stated that if the Commission were to adopt a more nuanced approach, the standards should be geared to the advertiser's chosen communication medium. Another commenter argued that, to the extent that it might render certain short-form advertisements too expensive or impractical, Alternative A might be unconstitutional. Several commenters stressed the degree to which the current communicative landscape differs from that contemplated when the stand-by-your-ad requirements were enacted. One commenter noted that the current disclaimer regime dates from a time when radio and television were prominent, while the Commission's 2006 internet rulemaking contemplated graphic website advertisements. This commenter opined that rules promulgated now, in an environment of social media and apps, need flexibility for future technical innovation. One commenter noted that the former advertising environment was simpler; there were radio, television, newspapers, magazines and billboards, in which there were one-to-one relationships between stations, companies and advertisers. The commenter stated that in the online environment, in contrast, different components of an advertisement might be delivered or mediated by different servers. Other commenters noted that the online advertisement differs from the traditional advertisement by virtue of its greater interactivity with the user.

Some commenters found aspects of both alternatives unsatisfactory. One commenter urged the Commission to allow the market to determine the appropriate threshold for when an adapted disclaimer would be appropriate. The commenter argued that disclaimers are not as important as the substance of the advertising, that individuals click on links in advertisements not so much to find disclaimers as to learn whether the advertisement is true, and that making assumptions based on an organization's name can be misleading. Another commenter stated a preference for not applying disclaimer rules to ordinary internet users and expressed the view that both alternatives are overbroad and need to incorporate more technical specifications. Other commenters argued that both alternatives could impose a burden on speech and that any disclaimer requirement would detract from the speaker's ability to communicate a message.

The Commission agrees with the commenters who generally support the establishment of a disclaimer rule specific to internet public communications. Some commenters also noted that private standards enforced by platforms vary widely and that some form of standardization is necessary to ensure consistency. One platform apprised the Commission of efforts it had undertaken in this regard, but as another commenter pointed out, these may change at any time for legitimate commercial reasons. The Commission disagrees with the argument that any application of disclaimer rules to general public political advertising on the internet would be unconstitutional.

Based on the comments received, the Commission is adding a new paragraph (c)(5) to section 110.11, setting forth specific disclaimer requirements for internet public communications. New section 110.11(c)(5)(i) first defines “internet public communication” as “any public communication over the internet that is placed for a fee on another person's website, digital device, application, or advertising platform.” This language parallels the revised definition of “public communication” in section 100.26, and is similar to language proposed in Alternative B. The definition of “internet public communication” applies for the purposes of section 110.11 and serves to streamline references to this type of communication in the text of the regulations.

The Commission does not agree with one commenter's argument that providing a definition of “internet public communication” that includes those who adopt others' political speech as their own by paying to place that speech on the internet (such as by paying a social media platform to ensure more advantageous treatment of a third-party's advertisement in the platform's search or prioritization algorithm), rather than confining the definition to those who originally pay to place the speech, would present a “constitutional infirmity” under the final rule. Like the revised definition of “public communication,” the defined term “internet public communication” relies on the characteristics of the communication itself, not the role any persons may have had in its creation or distribution, and it encompasses only paid communications. Therefore, individuals who share someone else's speech without paying to distribute it will not be affected by this revision.

New paragraph (c)(5)(ii) provides that “[a]n internet public communication must include a disclaimer that complies with the requirements of paragraphs (b) and (c)(1) of this section. The disclaimer requirement under this paragraph applies to any person that pays to place an internet public communication, regardless of whether that person originally created, produced, or distributed the communication.” This provision states the requirement that disclaimers must be included on internet public communications, and clarifies that, as with the existing disclaimer requirements, the provision applies to any communication that meets the definition of an “internet public communication,” without examining who may have played various roles in the creation and dissemination of the communication beyond the identity of the payor and whether a candidate authorized the communication.

Finally, new 11 CFR 110.11(c)(5)(iii) sets forth the disclaimer requirements that are specific to particular types of internet public communications, in addition to the existing requirements of paragraphs (b) and (c)(1) that apply to all communications requiring disclaimers. Paragraphs (c)(5)(iii)(A)-(C) provide that a disclaimer required for an internet public communication must: (a) for such communications with text or graphic components, include the required written disclaimer, such that the disclaimer can be viewed without the viewer taking any action; (b) be of sufficient type size to be clearly readable by the recipient of the communication; and (c) be displayed with a reasonable degree of color contrast between the background and the disclaimer's text. New paragraph (c)(5)(iii) also includes requirements specific to video and audio communications. The new provision at paragraph (c)(5)(iii)(D) requires that for an internet public communication in which the disclaimer is displayed within a video, the disclaimer must be visible for at least 4 seconds and appear without the recipient of the communication taking any action. For an internet public communication with an audio component and no video, graphic, or text components, paragraph (c)(5)(iii)(E) states that the disclaimer must be included within the audio component of the communication.

New paragraph (c)(5) therefore combines aspects of Alternatives A and B by treating internet public communications similarly to print, radio, and television communications insofar as it imposes specific requirements on particular types of communications that are analogous to those imposed on print and broadcast media, while also accounting for the ways in which internet public communications differ from print and broadcast media in other respects. The new internet disclaimer provisions do not impose the stand-by-your-ad requirements applicable to radio and television advertisements on internet public communications.

Paragraphs 110.11(c)(5)(iii)(A)-(C) do not apply to audio-only internet public communications. These provisions concern written disclaimers and set readability requirements for their text size and contrast, and thus are inapplicable to audio-only communications. In contrast, paragraph (c)(5)(iii)(E) applies solely to audio-only internet public communications, specifying that for such communications the disclaimer must be an audio statement contained within the audio communication.

One commenter stated that because disclaimers on video communications may appear only for four seconds, a viewer who does not watch the part of the ad with the statement would not see the disclaimer. The Commission acknowledges that not all recipients of internet public communications will necessarily see or hear required disclaimers, but does not consider this a sufficient reason to not require their inclusion. The new rule is similar to the longstanding rule for television communications, which likewise requires disclaimers to appear for at least four seconds. See 11 CFR 110.11(c)(3)(iii)(B), (c)(4)(iii)(B).

The new regulation follows aspects of Alternative A by treating internet public communications similarly to print and broadcast media depending on the type of communication: (1) type size and contrast of written disclaimers must meet readability requirements similar to those required of print media and television; (2) disclaimers for internet communications consisting solely of an audio component (that is, without video, graphics, or text) must be provided within the audio component of the communication, similar to the existing requirement that radio communications must include audio disclaimers; and (3) disclaimers within internet video communications must be visible for at least 4 seconds, similar to the existing duration requirement for disclaimers on television communications. See 11 CFR 110.11(c)(2), (3)(i), (3)(iii).

The new regulation retains the principle of Alternative B that internet public communications may differ from print and broadcast media. First, new paragraph (c)(5)(iii)(A) requires that “an internet public communication with text or graphic components must include the written disclaimer required by this paragraph, such that the disclaimer can be viewed without taking any action.” Therefore, any internet public communication that contains text or graphic elements must include a written disclaimer, even if the communication also includes video or audio components. For example, an audio advertisement might be presented on a social media platform within a panel also containing a written description. Paragraph (c)(5)(iii)(A) requires that because the communication includes a text component, it must include a written disclaimer.

In addition, in some cases a viewer must take action to access some or all of the components of an internet public communication by, for example, clicking on a link or opening a pop-up window. New paragraphs (c)(5)(iii)(A) and (D) specify that disclaimers must be viewable without the recipient of the communication taking any additional action. For example, a graphic or video advertisement may be accompanied by a caption that contains a link to additional information. In the case of such a communication, new paragraph (c)(5) requires that the disclaimer be visible in the graphic or video, or in the caption, without the viewer having to take any additional action beyond viewing or watching the advertisement, such as clicking on or hovering over a link. Similarly, new paragraph (c)(5)(iii)(E) requires that for an internet public communication that contains an audio component but no video, graphic, or text component, the disclaimer must be included in that audio component, so that a recipient need not take any additional action beyond listening to the advertisement to obtain the disclaimer information.

New paragraph (c)(5)(iii) also accounts for the variability and flexibility of internet communications by setting forth requirements for text size and contrast that allow for varying platforms, formats, and devices. New paragraph (c)(5)(iii)(B) requires that a disclaimer on an internet public communication “must be of sufficient type size to be clearly readable by the recipient of the communication. A disclaimer that appears in letters at least as large as the majority of other text in the communication satisfies this requirement.” New paragraph (c)(5)(iii)(C) requires that the disclaimer “must be displayed with a reasonable degree of color contrast between the background and the disclaimer's text. A disclaimer satisfies this requirement if it is displayed in black text on a white background, or if the degree of color contrast is no less than the color contrast between the background and the largest text used in the communication.”

The safe harbor for disclaimer text size is similar to that proposed in Alternative A, which provided that the text size requirement is satisfied if the disclaimer appears in “letters at least as large as the majority of the other text in the communication.” NPRM at 12873.

In addition to the text size requirement, which parallels the text size requirement for print and television communications to ensure readability and prevent circumvention of the disclaimer requirement, the new rule also incorporates a color contrast requirement that similarly parallels the contrast requirement for print communications. Also, like the text size requirement, the color contrast requirement offers safe harbors: a disclaimer will satisfy the requirement if it is “displayed in black text on a white background, or if the degree of color contrast is no less than the color contrast between the background and the largest text used in the communication.” As with the text size requirement, the color contrast requirement is intended to ensure readability.

In adopting these provisions, the Commission is not applying the stand-by-your-ad requirements to internet communications. The statutory provision requiring stand-by-your-ad statements expressly applies only to radio and television ads. 52 U.S.C. 30120(d). Accordingly, the Commission does not have statutory authority to require stand-by-your-ad statements in internet public communications.

The Commission is not adopting two commenters' suggestions that any required disclaimers be machine-readable. These commenters pointed out that having machine-readable disclaimers would provide certain advantages for users. One commenter suggesting this observed that with machine-readable disclaimers, users could opt to receive monthly reports of ads they receive over time. Smart disclosure, which this commenter recommended be adopted in conjunction with machine readability, could warn users of bad links and could allow groups of users using browser extensions to track malicious links and alert the Commission of these. The Commission is not adopting this proposal because it is beyond the scope of the Commission's statutory authority.

To clarify how the disclaimer requirements apply to internet public communications that are not capable of including a full disclaimer, the Commission is adding a new paragraph (g) to section 110.11, setting forth an alternative that applies specifically to internet public communications where a full disclaimer cannot be included due to character or space constraints intrinsic to the advertising product or medium. As discussed above, Commission regulations already contain certain exceptions to the general disclaimer requirements, namely the small items and impracticable exceptions. 11 CFR 110.11(f)(1).

Alternatives A and B both proposed that some internet public communications could satisfy the disclaimer requirement by means of an “adapted disclaimer,” which would include an abbreviated disclaimer on the face of the communication, and an indicator that a technological mechanism was available to access a full disclaimer. Both alternatives proposed that “an internet public communication that provides an adapted disclaimer must provide some information on the face of the advertisement, and both alternatives require such information to be clear and conspicuous and to provide notice that further disclaimer information is available through the technological mechanism.” NPRM at 12875.

The two alternatives differed as to when an adapted disclaimer could be used in place of a standard disclaimer. Alternative A would have allowed the use of an adapted disclaimer when a full disclaimer could not fit on the face of a text or graphic internet communication “due to external character or space constraints.” Id. at 12874. Under this alternative, the determination of whether an internet communication could use an adapted disclaimer was intended to be an objective one: “the character or space constraints intrinsic to the technological medium are intended to be the relevant consideration, not the communication sponsor's subjective assessment of the `difficulty' or `burden' of including a full disclaimer.” Id.

Alternative B would have allowed the use of an adapted disclaimer when a full disclaimer would occupy more than a certain percentage of an internet public communication's available time or space. Further, under Alternative B, two tiers of adapted disclaimers would have been permissible, depending on the time or space available in the communication to accommodate the disclaimer. The proposed first-tier adapted disclaimer would have required the identification of the payor plus an indicator on the face of the communication, while the proposed second-tier adapted disclaimer would have required only an indicator on the face of the communication.

The two alternatives also differed as to what information must be presented on the face of the communication. Alternative A proposed that an “adapted disclaimer” would have consisted of “an abbreviated disclaimer on the face of a communication in conjunction with an indicator through which a reader can locate the full disclaimer” required. Id. at 12875. Alternative A would have further required that the adapted disclaimer identify the person or persons who paid for the communication, “in letters of sufficient size to be clearly readable by a recipient of the communication.” Id. at 12875-76.

Under Alternative B's proposed two-tiered approach, the first tier would have allowed for an adapted disclaimer that included both the payor's name, either in full or by “a clearly recognized abbreviation, acronym, or other unique identifier by which the payor is commonly known,” along with an indicator similar to that included in Alternative A. Id. at 12876. Under Alternative B, the flexibility to use either a payor's full name or a clearly recognized abbreviation or acronym was “intended to address internet public communications that might not otherwise conveniently or practicably accommodate the payor's name, such as character-limited ads, or where the payor's name is unusually lengthy, or where the payor wishes to use the ad to promote its social media brand.” Id. at 12877. If the space or time necessary for a clear and conspicuous tier-one adapted disclaimer would occupy more than ten percent of the communication, the proposed second tier would have required only an indicator on the face of the communication. Id.

Both alternatives proposed “that a technological mechanism used to provide access to a full disclaimer must do so within one step,” that the additional step be “apparent in the context of the communication,” and that the disclaimer, once reached, be clear and conspicuous. Id. at 12877-78. Both alternatives also provided similar illustrative lists of examples of technological mechanisms that could be used as part of an adapted disclaimer. For both alternatives these included, but were not limited to, “hover-over mechanisms, pop-up screens, scrolling text, rotating panels, or hyperlinks to a landing page with the full disclaimer.” Id. at 12878. Alternative B also proposed to include “voice-over,” “mouse-over,” and “roll-over” mechanisms. Id. at 12880.

Alternative B also proposed an exception to the disclaimer requirements for “any internet public communication that can provide neither a disclaimer in the communication itself nor an adapted disclaimer.” Id. at 12879. This exception was intended to replace, for internet public communications, the existing small items and impracticable exceptions.

Commenters were generally split on whether an adapted disclaimer should be available when a full disclaimer cannot fit due to external constraints, as proposed in Alternative A, or when a full disclosure would exceed a bright line in terms of space or time, as proposed in Alternative B. Several commenters felt that adapted disclaimers should only be used as a last resort when “character or space constraints intrinsic to the technological medium,” as opposed to self-imposed limitations merely reflecting the preferences of an online advertiser or platform, would not allow for a full disclaimer. One commenter noted that Alternative A's “cannot fit” language references impossibility and is, therefore appropriate. Another commenter believed that permitting adapted disclaimers on “public communications with text or graphic features but without a video or audio component” that had character or space limits intrinsic to the medium was a “forward-thinking” approach applicable to all platforms.

Other commenters found Alternative A's use of “technological constraints” that “cannot fit” too ambiguous, needing further clarification. Two commenters noted that rules or a framework based on communication size are not practical or effective, because the same ad could be used “across different platforms.” Another found that Alternative A did not account for the “burden” experienced by the speaker and is too restrictive. One commenter noted that rules focused on pixels, characters, seconds, font size, contrast and other visual factors were “too inflexible to withstand future technological” advancements. Another commenter recommended allowing “business decisions” about ad size, made in the ordinary course of business by ad sellers, to justify the use of an adapted disclaimer. One commenter expressed strong support for adapted disclaimers, preferring Alternative B because it allows more flexibility, arguing that Alternative A is too oriented toward print and broadcast media. However, the commenter stated that both alternatives are insufficiently sensitive to future technological changes, predicting that speech recognition technology will one day be the primary means of interacting with the internet. At the same time, this commenter argued that both alternatives should develop an adapted disclaimer scheme for all audio, video and banner ad formats; Alternative A in particular did not do this for video and audio, according to the commenter.

At least two commenters suggested that the advisory opinion process could resolve when an adapted disclaimer was appropriate on a case-by-case basis and viewed the advisory opinion process as a way to handle questions surrounding digital advertisements' continuing complexity and one commenter suggested that perhaps an expedited advisory opinion process could be designed for these questions. Another commenter expressed skepticism, however, about the utility of resorting to the advisory opinion process to resolve ambiguities in interpretation and expressed a preference for bright-line rules because of this while a second commenter opined that it would be difficult to resort to the advisory opinion process for this purpose close to an election; rather, if this situation were faced, the commenter would be inclined not to run the advertisement.

Commenters were also split on the 10% rule proposed in Alternative B. Several commenters noted that a 10% bright line would provide advertisers with the “opportunity to game the rules to deny the public disclaimer information.” One commenter felt that the choice of 10% was based on untested assumptions rather than empirical data. Others described the 10% proposal as “arbitrary” and “not technologically neutral” or “impractical and confusing” and “hard to apply and enforce.” Two commenters opined that Alternative B's two-step process was too complicated and unclear, and sacrificed clarity for expediency.

Some commenters found 10% to be a reasonable percentage that “provides for disclosure but does not infringe on the message of the ad.” Other commenters supported a “bright line” because it imposes less of a burden on speech. For example, one commenter stated that “[r]equiring potential speakers to spend the time and resources to seek an advisory opinion [ ] imposes burdens of a constitutional magnitude, especially in a medium conducive to speakers with limited resources.” Another commenter stated that “[w]hile the First Amendment does not require that a speaker's message take a certain percentage of the advertisement space, taking 10% of the advertisement space for which a speaker has paid is far more reasonable than taking 33% of the space.” Other commenters worried that any bright line was arbitrary and a “one-click away rule” would be a better choice. Some commenters, while agreeing in principle with a defined percentage, suggested different percentages. One suggested 4%, while another, interpreting the Citizens United decision to tolerate 4-second disclaimers in 10-second advertisements, argued that any percentage up to 40% would be tolerable. Other commenters, however, argued against a 40% threshold.

Several commenters argued that even with an adapted disclaimer, the face of the advertisement should at a minimum contain a “paid for by” statement with the name of the sponsor. Certain commenters favoring this position cited empirical studies showing that only a small percentage of links in online advertisements are actually clicked by users. Commenters also stated their preference for having the full information appear only one click away if a technological mechanism were to be used. Two commenters in this category opined that in addition to these, the user should be able to learn why he or she received the advertisement—one commenter referring to this as “algorithmic transparency,” signifying that advertisers should be required to disclose their targeting methods and that voters should be able to learn why they have been targeted.

One commenter argued that the Commission should adopt a provision that the disclaimer requirements could be satisfied by an icon it had developed in the online commercial advertising domain that would be adapted by the commenter's organization to the realm of political advertising, and which it characterized as widely recognized and understood. Other commenters opined on this proposed self-regulatory approach, arguing that Commission oversight would still be needed, and noting that as a private entity, the commenter or any other provider of an online advertising medium could modify or rescind the program at any time based upon considerations unrelated to ensuring implementation of the Act.

After considering the comments received, the Commission has decided to provide an adapted disclaimer option for internet public communications. The new 11 CFR 110.11(g) provides that the disclaimer requirement may be satisfied with an adapted disclaimer when the full disclaimer “cannot be provided or would occupy more than 25 percent of the communication due to character or space constraints intrinsic to the advertising product or medium.” The Commission has previously allowed for a modified disclaimer under certain circumstances, recognizing that, although the “physical and technological limitations” of a communication medium may “not make it impracticable to include a disclaimer at all,” technological or physical limitations may extend to “one particular aspect of the disclaimer” requirements. Advisory Opinion 2004-10 (Metro Networks) at 3. In such circumstances, the Commission concluded that a disclaimer was required but permitted modifications or adaptations of the technologically or physically limited aspects of the communication medium. See id. at 3-4 (concluding that reporters reading sponsorship message live from aircraft or mobile units could read stand-by-your-ad language, rather than candidate who was not physically present). In the new 11 CFR 110.11(g), an “adapted disclaimer” is defined as “a clear statement that the internet public communication is paid for, and that identifies the person or persons who paid for the internet public communication using their full name or a commonly understood abbreviation or acronym by which the person or persons are known, which is accompanied by: (1) an indicator and (2) a mechanism.” New 11 CFR 110.11(g)(1)(i). An “indicator” is defined as “any visible or audible element associated with an internet public communication that is presented in a clear and conspicuous manner and gives notice to persons reading, observing, or listening to the internet public communication that they may read, observe, or listen to a disclaimer satisfying the requirements of paragraphs (b) and (c)(1) of this section through a mechanism.” New 11 CFR 110.11(g)(1)(ii). A “mechanism” is defined as “any use of technology that enables the person reading, observing, or listening to an internet public communication to read, observe, or listen to a disclaimer satisfying the requirements of paragraphs (b) and (c)(1) of this section after no more than one action by the recipient of the internet public communication.” New 11 CFR 110.11(g)(1)(iii).

The new 110.11(g) combines elements of both Alternative A and Alternative B in setting forth the threshold for use of an adapted disclaimer. An adapted disclaimer may be used instead of a full disclaimer when a standard disclaimer “cannot be provided or would occupy more than 25 percent of the communication due to character or space constraints intrinsic to the advertising product or medium.” This rule incorporates the concept of time and space constraints inherent to the advertising medium from Alternative A, and the proposal from Alternative B to permit an adapted disclaimer depending on the percentage of the communication that would be occupied by a full disclaimer. In doing so, the Commission has adopted an objective and bright-line standard that will give the sponsors of internet public communications clear guidance as to when an adapted disclaimer may be used.

The new rule's reference to “character or space constraints intrinsic to the advertising product or medium,” similar to language proposed in Alternative A, is based on long-standing Commission precedent where the Commission allowed communications to include modified disclaimers due to the technological or physical limitations of the communication medium. The language is intended to make clear that the time or space available for a disclaimer depends on the limitations of the medium or technology used in a particular advertisement.

The Commission has decided to also use a percentage of the communication as the threshold for use of an adapted disclaimer, as proposed in Alternative B, with the intention that this will serve as a bright-line rule that enables speakers to determine for themselves whether they may avail themselves of this provision, rather than seek advisory opinions before engaging in political advertising online. The Commission has chosen not to specify how to measure the percentage ( i.e., by pixels, seconds, characters, etc.), in order that the rule may remain flexible as new technologies are developed, and that speakers may use the most appropriate measurement for their communication. The Commission's proposal of 10% in Alternative B elicited several comments opposing this threshold. Although one commenter approved of this threshold, some commenters noted that such a threshold would be easy to evade by lengthening or shortening of the name of the sponsoring organization appearing in the ad. Some commenters also argued that this percentage approach would be hyper-technical. Nevertheless, the Commission agrees with one commenter's observation that a fixed-percentage approach is preferable to a potentially more complicated approach tailored to particular kinds of communications, which might then necessitate new definitions of the terms relating to the medium and additional revisions to the rule. The Commission has adopted a 25% threshold.

The definition of “adapted disclaimer” requires that the communication state on its face that it is a paid communication, as proposed in Alternative A. It is especially important to clearly identify paid communications on the internet, where paid content can be targeted to a particular user and appear indistinguishable from the unpaid content that user views, unlike print and broadcast media, where paid content is transmitted to all users in the same manner and is usually offset in some way from editorial content. As one commenter observed, “[w]ith many forms of social media, a political ad may be transmitted and retransmitted such that a viewer would have no idea that it is paid advertising.” The Commission agrees with another commenter that “paid for” is necessary to ensure that the adapted disclaimer is easily interpreted by the viewer. An adapted disclaimer that includes an indicator but does not state that it is a paid communication would make it less likely that a viewer would understand the function of the indicator and access the mechanism to obtain the full disclaimer. As one commenter noted, “[t]he average click-through rate . . . for Facebook ads across all industries is .90%.”

The definition of “adapted disclaimer” requires that the payor be identified “using their full name or a commonly understood abbreviation or acronym by which the person or persons are known.” This is similar to language proposed in Alternative B, which would have permitted an adapted disclaimer to identify the payor by full name or by “a clearly recognized abbreviation, acronym, or other unique identifier by which the payor is commonly known.” NPRM at 12876. Including the payor's name on the face of the communication ensures that even persons viewing the communication without accessing the full disclaimer will be able to know who is speaking and will be better able to evaluate the content of the advertisement. Allowing a payor to use an acronym or abbreviation will offer flexibility for internet public communications that might not otherwise conveniently or practicably accommodate the payor's name, such as character-limited ads, or where the payor's name is unusually lengthy. Most commenters supported allowing an acronym or abbreviated name of a payor organization. However, some questioned whether an abbreviated name or acronym would likely be recognized. The Commission opted not to constrain the use of abbreviated names or acronyms beyond the condition that any such abbreviation or acronym be commonly understood or be one by which the payor is known. The provision is modeled after a longstanding provision in the Commission's regulations that allows a separate segregated fund to include in its name a “clearly recognized abbreviation or acronym by which [its] connected organization is commonly known.” 11 CFR 102.14(c). Thus, many political speakers are already familiar with this standard and may have adopted abbreviations or acronyms for frequent use that are already “commonly understood.”

The Commission has decided not to adopt the second-tier adapted disclaimer proposed as part of Alternative B, which would have permitted a speaker to include only an indicator on the face of a communication, without the name of the payor, if the space or time necessary for a clear and conspicuous tier-one adapted disclaimer would exceed a certain percentage of the overall communication.

By requiring that an indicator be “clear and conspicuous,” the new rule will aid voters in evaluating the message they are viewing or hearing. As set forth in paragraph (c)(1), a disclaimer “is not clear and conspicuous if it is difficult to see, read, or hear, or if the placement is easy to overlook.” 11 CFR 110.11(c)(1). An indicator also must be presented in a clear and conspicuous manner and therefore must not be difficult to see, read, or hear, or have a placement that is easy to overlook. The definition further provides that “[a]n indicator may take any form including, but not limited to, words, images, sounds, symbols, and icons.” This provides flexibility to speakers in determining the type of indicator that best serves their needs and their communication so long as it also satisfies the requirements of the regulation. Because the final rules permit an adapted disclaimer to be used for audio and video communications as well as text and graphic communications, the Commission is adopting the “clear and conspicuous” requirement as proposed in Alternative B, rather than “clearly readable” as proposed in Alternative A, in order to afford further flexibility to speakers in determining how to satisfy the requirement. See NPRM at 12876.

Similar to the definition of an “indicator,” the definition of “mechanism” makes clear that a wide array of technologies may be used to provide access to full disclaimers, “including, but not limited to, hover-over text, pop-up screens, scrolling text, rotating panels, and hyperlinks to a landing page.” The Commission agrees with commenters who recommended that the adapted disclaimer be “tech-agnostic.” This non-exhaustive list of technologies affords speakers a great deal of flexibility in determining the best way to provide access to a full disclaimer depending on the platform or type of message, as well as flexibility to accommodate changes in technology and types of mechanisms that have yet to be developed.

Alternatives A and B both proposed one of the key characteristics of a technological mechanism used in an adapted disclaimer: that the technological mechanism allow the person reading, observing, or listening to an internet public communication to read, observe, or listen to a full disclaimer “without navigating more than one step away” from the communication. NPRM at 12880; see also 12877-78. Both proposals explained that this meant “the additional technological step should be apparent in the context of the communication” and the disclaimer, once reached, should be “clear and conspicuous.” Id. at 12878. There was nearly universal agreement by commenters that the mechanism require no more than one action by the viewer in order to reach the full disclaimer information. The final rule incorporates this principle into the definition of a “mechanism,” providing that a mechanism used as part of an adapted disclaimer must enable access to a full disclaimer “after no more than one action by the recipient of the internet public communication.” The Commission is incorporating this requirement into the final rule to ensure that recipients of communications can access full disclaimer information with a minimum of additional effort beyond what would ordinarily be required to view a full disclaimer on the face of a communication.

The Commission certifies that the attached rules would not have a significant economic impact on a substantial number of small entities. The rules would clarify and update existing regulatory language to reflect changes in technology and would codify certain existing Commission precedent regarding disclaimers on internet communications. The rules would not impose new recordkeeping, reporting, or financial obligations on political committees or commercial vendors. The Commission therefore certifies that the rules would not have a significant economic impact on a substantial number of small entities.

For the reasons set out in the preamble, Subchapter A of Chapter I of Title 11 of the Code of Federal Regulations is amended as follows:

I supported the Commission's final rule for internet communication disclaimers. While I opposed the Commission's initial draft for this rule—which would have dramatically expanded our agency's regulation of political speech online—subsequent revisions have substantially narrowed its scope. By limiting itself only to traditional paid advertising placed on the internet and providing sufficient flexibility for different kinds of ads, the revised regulation will not unduly burden freedom of speech. I believe the revised regulation also complies with the important procedural safeguards under the Administrative Procedure Act. Because of those significant improvements, I voted in favor of the revised final rule.

First, I am satisfied that this rulemaking meets the notice-and-comment requirements of the Administrative Procedure Act. 7 Although I maintain the Commission would benefit from additional public review and comments, this revised final rule removes novel regulatory expansions and represents a logical outgrowth of the proposals put forth in the Commission's 2018 Notice of Proposed Rulemaking. I believe interested parties have therefore had adequate notice and opportunity to offer feedback and criticism on the proposed amendments to the Commission's regulations, and a further comment period is not legally mandatory. 8

Second, I believe that this revised regulation is tailored to address the distinct and often complex features of online communications without unnecessarily burdening political speech and association on the internet. The final rule permits small and unconventional online ads for which a full disclaimer is unreasonably cumbersome to instead include an “adapted disclaimer” that maintains the integrity of the advertisement. Similarly, Commission regulations will maintain exemptions from disclaimer requirements for small-item advertisements and communications for which disclaimers are impracticable, such as with exceptionally short video clips. 9 Even with the revised regulation's limited purview, these safeguards are critical to maintaining regulatory flexibility for political campaigning online.

For more than two decades, the Commission has taken a light touch to regulating political activity online, in recognition of the fact that “the internet is by definition a bastion of free political speech, where any individual has access to almost limitless political expression with minimal cost.”  10 I believe this revised regulation for internet communication disclaimers is in keeping with that approach and will preserve the internet's special capacity to foster the exchange of political speech, ideas, and values. I will continue to stand up for Americans' First Amendment freedoms across all platforms for as long as I am on the Commission.

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-16-06, Amendment 39-18604 (81 FR 51320, August 4, 2016) (AD 2016-16-06). AD 2016-16-06 applied to certain Airbus SAS Model A300 B4-603, B4-605R, and B4-622R airplanes; and Model A310-304, -324, and -325 airplanes. AD 2016-16-06 required inspections around the rivet heads of the seal retainer run-out holes at certain frames and corrective actions if necessary. The FAA issued AD 2016-16-06 to address cracking of the door frame, which could result in reduced structural integrity of the airplane.

The NPRM published in the Federal Register on September 20, 2022 (87 FR 57424). The NPRM was prompted by AD 2022-0078, dated May 4, 2022, issued by EASA (EASA AD 2022-0078) (referred to after this as the MCAI). The MCAI states that cracking on door frames could result in reduced structural integrity of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1168.

In the NPRM, the FAA proposed to continue to require the actions in AD 2016-16-06 and add airplanes, as specified in EASA AD 2022-0078. The FAA is issuing this AD to address cracking on door frames, which could result in reduced structural integrity of the airplane.

The FAA received a comment from FedEx Express, who supported the NPRM without change.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2022-0078 specifies procedures for repetitive high frequency eddy current (HFEC) inspections of rivet heads of the seal retainer run-out holes at door frames (FR) 56A, FR 57A, and FR 73A for any cracking, and repair.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 128 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimate for the on-condition repair specified in this AD.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. The NPRM published in the Federal Register on October 5, 2022 (87 FR 60349). The NPRM was prompted by AD CF-2021-46, dated December 8, 2021, issued by Transport Canada, which is the aviation authority for Canada (Transport Canada AD CF-2021-46) (also referred to as the MCAI). The MCAI states a report of a TRAS deploy hose failure upon the commanded deployment of a thrust reverser. It was found that certain TRAS deploy hoses were made with incomplete installation of the wire overbraid, which created a weak point and subsequently led to failure of the deploy hose. The failure of a deploy hose could lead to loss of thrust reverser function and hydraulic systems. The loss of one or both thrust reversers during landing on a contaminated runway could lead to a runway excursion.

In the NPRM, the FAA proposed to require removing each non-conforming TRAS deploy hose, and replacing it with a conforming TRAS deploy hose, as specified in Transport Canada AD CF-2021-46. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1236.

The FAA received a comment from Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

Transport Canada AD CF-2021-46 specifies procedures for removing each non-conforming TRAS deploy hose, and replacing it with a conforming TRAS deploy hose. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 8 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain De Havilland Aircraft of Canada Limited Model DHC-8-402 airplanes. The NPRM published in the Federal Register on August 12, 2022 (87 FR 49776). The NPRM was prompted by AD CF-2022-09, dated March 3, 2022, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI) (Transport Canada CF-2022-09). The MCAI states that as a result of higher-than-expected failure rates in service, the supplier's investigation found that actual operating temperatures within the IFC were significantly higher than anticipated during certification. Consequently, the reliability of the IFC module does not meet safety objectives. The MCAI further states this failure mode could lead to uncontrolled autopilot pitch trim servo runaway and/or failure of the stall warning and stick pusher, resulting in reduced controllability of the airplane.

In the NPRM, the FAA proposed to require a modification to improve the IFC cooling capacity. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-0993.

The FAA received comments from the Air Line Pilots Association, International (ALPA), who supported the NPRM without change.

The FAA received an additional comment from Horizon Air. The following presents the comment received on the NPRM and the FAA's response to each comment.

Horizon Air requested that the final rule mandate only paragraph 3.B., “Procedure,” of the Accomplishment Instructions of De Havilland Service Bulletin 84-21-24, Revision B, dated Oct 13, 2021, because that corrects the unsafe condition. Horizon Air stated that paragraph 3.A. “Job Set-up,” and paragraph 3.C., “Close Out” of the Accomplishment Instructions of De Havilland Service Bulletin 84-21-24, Revision B, dated Oct 13, 2021, do not directly correct the unsafe condition. The commenter stated that incorporating the “Job Set-up” and “Close Out” procedures as a requirement of the AD restricts an operator's ability to perform other maintenance in conjunction with the incorporation of the service information.

The FAA agrees with the requested change for the reasons provided by the commenter. In addition, this change corresponds to Transport Canada AD CF-2022-09, dated March 3, 2022. The FAA has revised paragraph (g) of this AD accordingly.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

De Havilland Aircraft of Canada Limited has issued Service Bulletin 84-21-24, Revision B, dated October 13, 2021. This service information specifies procedures for a modification to improve the IFC cooling capacity. The tasks include reworking the forward and aft avionics rack side panels, removing the piccolo tube assemblies, doing a general visual inspection for contamination of the IFCs and avionics rack, cleaning any contamination found, installing and routing new cooling ducts, and installing two new extraction plenums in the avionics rack cooling system.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 56 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. The NPRM published in the Federal Register on July 21, 2022 (87 FR 43456). The NPRM was prompted by CF-2021-43, dated November 29, 2021, issued by Transport Canada, which is the aviation authority for Canada (Transport Canada AD CF-2021-43) (referred to after this as the MCAI). The MCAI states that corrosion and wear were discovered on the slat tracks due to insufficient grease applied to the slat tracks during production. The MCAI adds that corrosion and wear on the slat tracks could lead to loss of one or more slat panels or loss of slat track guidance and consequently cause catastrophic structural damage to the wings or other parts of the airplane due to slat panels departing from the airplane.

In the NPRM, the FAA proposed to require repetitive cleaning and greasing of all slat tracks to prevent damage and corrosion; doing repetitive inspections of the slat tracks for any damage or corrosion, and the correct application of grease; and applicable corrective actions, as specified in Transport Canada AD CF-2021-43. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-0882.

The FAA received comments from Delta Air Lines (Delta). The following presents the comments received on the NPRM and the FAA's response to each comment.

Delta requested that the proposed AD be revised to not require reporting inspection results. Delta added that if reporting is required, the reporting timeframe should be extended to 90 days. Delta stated that Transport Canada AD CF-2021-43 was released in 2021 and Airbus Canada Limited Partnership has already received significant data from other operators. Delta added that continuing to require reporting does not provide additional safety. Delta further noted that the 30 day reporting compliance time in the proposed AD adds an unnecessary burden, and extending the compliance time to 90 days significantly reduces that burden.

The FAA disagrees with the commenter's requests. Airbus Canada Limited Partnership is analyzing the inspection results to assist in their ongoing investigation and help determine if further corrective actions are needed. Regarding the compliance time, the FAA notes that Transport Canada AD CF-2021-43 specifies to report within 30 days, which aligns with the FAA's standard compliance time for inspection reports. The FAA and Airbus Canada concur with Transport Canada's decision. However, once this AD is published, any person may request approval of an AMOC under the provisions of paragraph (i)(1) of this AD. The FAA has not revised this AD regarding this issue.

Delta requested that if reporting is required, the FAA clarify what constitutes thick or thin levels of grease. Delta noted that Appendix 1 of Spirit Service Bulletin 500SHW-57-4201, Issue 001, dated November 17, 2021, specifies to report to specify whether the level of grease is thick or thin, but does not specify what measurements qualify as thick or thin.

The FAA agrees to clarify. The FAA has added paragraph (h)(6) of this AD to specify the criteria for a thick or thin application of grease.

Delta requested that the FAA clarify the intent of paragraph (h)(4) of the proposed AD. Delta added that it interprets the meaning to be that where Transport Canada AD CF-2021-43 states “in accordance with the applicable SB and only Part B (or Part A) of the VSB” it should be read as “in accordance with only Part B (or Part A) of the VSB.” Delta added that if its interpretation is incorrect, paragraph (h)(4) of the proposed AD should be rewritten to clearly emphasize the correct interpretation.

The FAA agrees to clarify. Delta's interpretation of paragraph (h)(4) of this AD is correct. This AD requires using only the applicable part of “the VSB [vendor service bulletin]” as defined in Transport Canada AD CF-2021-43, instead of both “the VSB” and “the applicable SB” as defined in Transport Canada AD CF-2021-43. The FAA has revised paragraph (h)(4) of this AD to clarify.

Delta requested that paragraph (h)(3) of the proposed AD to clarify the meaning of “vendor service information.” Delta noted that it believes “vendor service bulletin” means Spirit Service Bulletin 500SHW-57-4201, Issue 001, dated November 17, 2021, but Transport Canada AD CF-2021-43 does not use the phrase “vendor service information.”

The FAA agrees to clarify. The phrase “vendor service bulletin” is referring to Spirit Service Bulletin 500SHW-57-4201, Issue 001, dated November 17, 2021, which Transport Canada AD CF-2021-43 defines as “the VSB.” The FAA has revised paragraph (h)(3) of this AD to specify “the VSB” for consistency with the terminology in Transport Canada AD CF-2021-43.

Delta asked for clarification whether the job set-up and job close-out procedures of Spirit Service Bulletin 500SHW-57-4201, Issue 001, dated November 17, 2021, are required for compliance with the proposed AD. Delta noted that Airbus Canada Limited Partnership Service Bulletin BD500-574001, Issue 001, dated November 22, 2021, contains a note specifying that the procedures section of the Accomplishment Instructions are required for compliance, while the job set-up and job close-out sections, with the exception of return-to-service tests, are recommended and can be deviated from, provided certain conditions are met. Delta added that Spirit Service Bulletin 500SHW-57-4201, Issue 001, dated November 17, 2021, does not contain a similar note and asked for confirmation that the note also applies to Spirit Service Bulletin 500SHW-57-4201, Issue 001, dated November 17, 2021.

The FAA agrees to clarify. The note applies only to Airbus Canada Limited Partnership Service Bulletin BD500-574001, Issue 001, dated November 22, 2021. However, the FAA has determined the “Job set-up” and “Job close-out” sections of Spirit Service Bulletin 500SHW-57-4201 are recommended steps that can be used at the operator's discretion. Therefore, the FAA has added paragraph (h)(7) of this AD to specify that only section 2. Procedure of the Accomplishment Instructions of “the VSB” is required by this AD.

Delta requested that the proposed AD be revised to allow the use of Transport Canada AMOC AARDG-2022/A09 when complying with the proposed AD. Delta noted that operators reported difficulty completing the inspection and grease application without removing the slat track from the airplane. Delta added that Transport Canada concluded that the AMOC procedures provide an equivalent level of safety as those specified in the service information.

The FAA agrees with the intent of the commenter's request. The FAA does not have a process to directly adopt AMOCs issued by Transport Canada, and also cannot allow an AMOC until a final rule has been issued. However, the FAA has added paragraphs (h)(8) and (9) of this AD to allow the provisions specified in the Transport Canada AMOC.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

Transport Canada AD CF-2021-43 specifies procedures for repetitive cleaning and greasing of all slat tracks, including the slat track rollers, the slat pinion gear bearings, and the slat pinion gears to prevent damage ( e.g., metal wear) and corrosion; doing repetitive general visual inspections of the slat tracks for any damage or corrosion, and the correct application of grease; and applicable corrective actions. Corrective actions include repairs, rework, measurements of the reworked area, and a magnetic particle inspection of the reworked area for any cracking. Transport Canada AD CF-2021-43 also specifies procedures for reporting the inspection findings. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA considers that this AD is an interim action. If final action is later identified, the FAA might consider further rulemaking then.

The FAA estimates that this AD affects 61 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates that it will take about 1 work-hour per product to comply with the reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, the FAA estimates the cost of reporting the inspection results on U.S. operators to be $5,185, or $85 per product.

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

The FAA has received no definitive data on which to base the cost estimates for the repair specified in this AD.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-18-05, Amendment 39-19384 (83 FR 44463, August 31, 2018) (AD 2018-18-05), which applied to certain ATR-GIE Avions de Transport Régional Model ATR42-200, -300, and -320 airplanes; and AD 2020-09-16, Amendment 39-19912 (85 FR 29596, May 18, 2020) (AD 2020-09-16), which applied to all ATR-GIE Avions de Transport Régional Model ATR42-200, -300, and -320 airplanes. AD 2018-18-05 and AD 2020-09-16 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. AD 2020-09-16 also specified that accomplishing the maintenance or inspection program revision required by paragraph (g) of that AD terminates the requirements of AD 2018-18-05. The FAA issued AD 2018-18-05 and AD 2020-09-16 to prevent reduced structural integrity of the airplane.

The NPRM published in the Federal Register on April 6, 2022 (87 FR 19818). The NPRM was prompted by AD 2021-0211, dated September 17, 2021, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2021-0211) to correct an unsafe condition.

In the NPRM, the FAA proposed to retain the requirements of AD 2020-09-16. The NPRM also proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in EASA AD 2021-0211.

The FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede AD 2018-18-05 and AD 2020-09-16. The SNPRM published in the Federal Register on September 23, 2022 (87 FR 58038) (the SNPRM). The SNPRM was prompted by a determination that additional new or more restrictive airworthiness limitations are necessary; these limitations are specified in EASA AD 2022-0062, dated April 8, 2022 (EASA AD 2022-0062) (also referred to as the MCAI), which superseded EASA AD 2021-0211. In the SNPRM, the FAA proposed to retain the requirements of AD 2020-09-16. The SNPRM also proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive maintenance requirements and airworthiness limitations, as specified in EASA AD 2022-0062. The FAA is issuing this AD to prevent reduced structural integrity of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-0395.

The FAA received a comment from the Air Line Pilots Association, International (ALPA), who supported the SNPRM without change.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting the AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. This AD is adopted as proposed in the SNPRM.

EASA AD 2022-0062 describes new or more restrictive maintenance tasks and airworthiness limitations for airplane structures and components.

This AD also requires EASA AD 2019-0256, dated October 17, 2019, which the Director of the Federal Register approved for incorporation by reference as of June 22, 2020 (85 FR 29596, May 18, 2020).

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 26 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2020-09-16 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.

The FAA estimates the total cost per operator for the new actions to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2019-25-16, Amendment 39-21015 (85 FR 453, January 6, 2020) (AD 2019-25-16). AD 2019-25-16 applied to certain Embraer S.A. Model ERJ 170-100 LR, -100 STD, -100 SE, and -100 SU airplanes; and Model ERJ 170-200 LR, -200 SU, -200 STD, and 200 LL airplanes. AD 2019-25-16 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations; and added airplanes to the applicability. The FAA issued AD 2019-25-16 to address fatigue cracking of various principal structural elements (PSEs); such cracking could result in reduced structural integrity of the airplane and to prevent safety significant latent failures; such failures, in combination with one or more other specified failures or events, could result in a hazardous or catastrophic failure condition of avionics, hydraulic systems, fire detection systems, fuel systems, or other critical systems. Furthermore, the FAA issued AD 2019-25-16 to address potential ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions; such failures, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

The NPRM published in the Federal Register on July 28, 2022 (87 FR 45284). The NPRM was prompted by AD 2022-02-01, effective February 9, 2022, issued by ANAC (referred to after this as the MCAI) (ANAC AD 2022-02-01). The MCAI states that it was prompted by a determination that new or more restrictive airworthiness limitations are necessary.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-0979.

In the NPRM, the FAA proposed to continue to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations and certain structural modifications, as specified in ANAC AD 2022-02-01. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received a comment from Horizon Air. The following presents the comment received on the NPRM and the FAA's response.

Horizon Air requested that the Embraer 170/175 Maintenance Review Board Report, MRB 1621, Revision 17, dated July 01, 2021, referenced in ANAC AD 2022-02-01, be updated to Embraer 170/175 Maintenance Review Board Report, MRB 1621, Revision 18, dated July 4, 2022.

The FAA confirms that it intends to allow the use of applicable later MRB revisions to comply with the requirements of this AD. This AD refers to ANAC AD 2022-02-01 as the appropriate source of service information for accomplishing the required actions. Paragraph (f) of ANAC AD 2022-02-01 accepts the use of later approved revisions of the referenced MRB document for compliance. Therefore, applicable later approved MRB revisions are acceptable for compliance with this AD. No change to the AD is required.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

ANAC AD 2022-02-01 describes new or more restrictive airworthiness limitations for airplane structures and the incorporation of certain structural modifications ( i.e., reinforcement of left-hand (LH) and right-hand (RH) wing spar II lower; and reinforcement of the wing lower skin chordwise splices of LH and RH wing) before the defined structural modifications points (SMP).

This AD also requires Appendix A—Airworthiness Limitations of EMBRAER 170/175 Maintenance Review Board Report (MRBR), MRB-1621, Revision 14, dated September 27, 2018; and Embraer Temporary Revision (TR) 14-1, dated November 13, 2018, to Part 4-Life-Limited Items, of Appendix A of EMBRAER 170/175 Maintenance Review Board Report (MRBR), MRB-1621, Revision 14, dated September 27, 2018; which the Director of the Federal Register approved for incorporation by reference as of February 10, 2020 (85 FR 453).

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 662 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2019-25-16 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.

The FAA estimates the total cost per operator for the new revision to the existing maintenance or inspection program to be $7,650 (90 work-hours x $85 per work-hour).

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-18-04, Amendment 39-21225 (85 FR 54896, September 3, 2020) (AD 2020-18-04). AD 2020-18-04 applied to all Airbus SAS Model A350-941 and -1041 airplanes. AD 2020-18-04 required a one-time health check of the slat PCU TSU for discrepancies, and corrective actions if necessary; a detailed inspection of the LH and RH slat transmission systems for discrepancies, and corrective actions if necessary; and LH and RH track 12 SGRA water drainage and vent plug cleaning (which includes an inspection for moisture). The FAA issued AD 2020-18-04 to address a slat system jam during landing phase which could lead to a double shaft disconnection or rupture, potentially causing one or more slat surfaces to be no longer connected to either the slat wing tip brake or the slat PCU, possibly resulting in reduced control of the airplane.

The NPRM published in the Federal Register on September 30, 2021 (86 FR 54136). The NPRM was prompted by AD 2021-0053R1, dated April 19, 2021, issued by European Union Aviation Safety Agency (referred to after this as the MCAI). The MCAI states that since EASA AD 2020-0163R1, dated August 7, 2020 (which corresponds to FAA AD 2020-18-04), was issued, EASA received information that prompted it to add a requirement for repetitive TSU health checks, introduce a definition of serviceable part to clarify actions that have to be accomplished on affected parts, and remove a requirement for a water drainage and vent plug cleaning of the LH and RH track 12 SGRA.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2021-0833.

In the NPRM, the FAA proposed to remove a requirement for water drainage and vent plug cleaning of the SGRA, require repetitive health checks of the slat PCU TSU, a detailed visual inspection of the slat transmission systems, and corrective actions if necessary, as specified in EASA AD 2020-0163R1.

The FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede AD 2020-18-04. The SNPRM published in the Federal Register on June 1, 2022 (87 FR 33076) (the SNPRM). The SNPRM was prompted by EASA issuance of AD 2021-0275, dated December 10, 2021, (EASA AD 2021-0275), which determined that requiring modification of the PCU by replacing each affected slat PCU with a serviceable PCU (one having a different part number) is necessary, and clarified the limitations related to when an affected slat PCU may be installed on an airplane. In the SNPRM, the FAA proposed to require modification (replacement of each affected slat PCU with a slat PCU having a different part number), requiring an inspection report, and revising the limitations on the installation of affected parts. The FAA is issuing this AD to address a slat system jam during landing, which could lead to a double shaft disconnection/rupture, potentially causing one or more slat surfaces to be no longer connected to either the slat wing tip brake or the slat PCU, possibly resulting in reduced control of the airplane.

The FAA received comments from Delta Air Lines (Delta). The following presents the comments received on the SNPRM and the FAA's response to each comment.

Delta requested that the terminating action (modification of the PCU) specified in paragraph (6) of EASA AD 2021-0275 for the repetitive health checks in paragraph (4) of EASA AD 2021-0275 be extended to the initial health check specified in paragraph (2) of EASA AD 2021-0275 too. Delta noted that it seems that the health checks are intended only for those slats that have not been modified. Delta stated that for a modified PCU, a detailed inspection (as specified in paragraph (1) of EASA AD 2021-0275) is required and that an initial health check would not reveal further information or instruction. Delta added that the detailed inspection and initial health check have the same compliance time. Delta recommended revising paragraph (h) of the proposed AD (in the SNPRM) to permit the terminating action to be used for the initial health check too.

The FAA agrees to the request for the reasons that Delta provided. The FAA has revised paragraph (h) of this AD to provide terminating action for the initial health check.

Delta requested removing the requirement to send inspection reports to Airbus. Delta pointed out that Airbus provided a modification that terminates inspection requirements. Delta noted also that if there are findings that require a request for repair instruction, the operator would need to provide details of the discrepancies before receiving repair instructions. Delta recommended revising paragraph (h) of proposed AD (in the SNPRM) to remove the reporting requirement and state that reporting is not required.

The FAA agrees with the request for the reasons stated. The FAA has revised paragraph (h) of this AD and the Cost of Compliance and Related Service Information Under 1 CFR part 51 sections of this AD accordingly; and added paragraph (i) to this AD to state that inspection reports are not required.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the SNPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2021-0275 specifies procedures for repetitive health checks of the slat PCU TSU for discrepancies, and corrective actions (replacement) if necessary; a detailed visual inspection of the LH and RH slat transmission systems for discrepancies, and corrective actions (repair) if necessary; and a modification of the PCU (replacement of each slat PCU having part number (P/N) 4785A0000-04 or 4785A0000-05 with a slat PCU having P/N 4785A0000-06), which terminates the health checks. EASA AD 2021-0275 also specifies limitations for installing affected slat PCUs. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The preamble to AD 2020-18-04 explains that the FAA considers those requirements “interim action” and that the manufacturer is developing a final action to address the unsafe condition. That AD explains that the FAA might consider further rulemaking if a final action is identified. The same explanation was in the preamble of the NPRM. Since the FAA issued AD 2020-18-04 and the NPRM, the manufacturer has developed a modification to the PCU, and the FAA has determined that further rulemaking is indeed necessary; this AD follows from that determination.

The FAA estimates that this AD affects 15 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A350-941 and -1041 airplanes. The NPRM published in the Federal Register on September 20, 2022 (87 FR 57427). The NPRM was prompted by AD 2022-0065, dated April 7, 2022, issued by EASA (EASA AD 2022-0065), which is the Technical Agent for the Member States of the European Union (referred to after this as the MCAI). The MCAI states the possibility that protective caps are present on engine fire extinguishing pipes. This condition, if not addressed, could prevent the extinguishment of an engine fire.

In the NPRM, the FAA proposed to require a one-time inspection of the engine fire extinguishing pipes for the presence of protective caps and removal of any protective caps found, as specified in EASA AD 2022-0065. The FAA is issuing this AD to address the possibility that protective caps are present on engine fire extinguishing pipes. This condition, if not addressed, could prevent the extinguishment of an engine fire.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1167.

The FAA received a comment from Air Line Pilots Association, International (ALPA), who supported the NPRM without change.

The FAA received an additional comment from Delta Air Lines (DAL). The following presents the comment received on the NPRM and the FAA's response.

DAL requested that paragraph (h)(3) of the proposed AD be removed or that the FAA allow use of any later approved revisions of Rolls-Royce Alert Non-Modification Service Bulletin TRENT XWB 26-AK834, dated March 9, 2022; or Rolls-Royce Alert Non-Modification Service Bulletin TRENT XWB 26-AK835, dated March 10, 2022. DAL stated that a revision to either of these documents could change the applicability of the EASA AD and that the MCAI allows for later approved revisions of the service information.

The FAA does not agree with the requested change. Although later approved documents are allowed for certain requirements in EASA AD 2022-0065, the FAA requires AD applicability to be fixed, and therefore requires specific revision levels to identify affected engines, as stated in paragraph (h)(3) of this AD. The FAA has made no changes to this AD in this regard.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2022-0065 specifies procedures for a one-time special detailed (borescope) inspection of the engine fire extinguishing pipes in Zone 2 and removal of any protective caps found. If any protective cap is found, the lower gas generator fairing is removed and reinstalled, which includes the application of OMat 872 (a cold cure silicone compound).

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 30 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

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

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

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

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

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

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

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

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

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1576; Project Identifier MCAI-2022-01183-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Dat Le, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 516-228-7317; email Dat.V.Le@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0183, dated August 30, 2022 (EASA AD 2022-0183) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus SAS Model A350-1041 airplanes. The MCAI states that a loud noise and vibration in the BF area above the wings was reported. The subsequent inspection revealed missing fasteners on the upper fastener line at the sewing angle attachment of the BF access panel 196ET. Further investigation determined that a shorter fastener and inappropriate self-locking nuts may have been used to install affected BF access panels on the final assembly line resulting in not enough threads of the collar engaged to ensure the locking capability. This condition, if not detected and corrected, could lead to in-flight detachment of an affected BF access panel, possibly resulting in damage to, and reduced control of, the airplane. Airbus SAS has developed a new production modification (116929) to introduce different self-locking nuts for the affected BF access panels, increasing the design robustness. EASA AD 2022-0183 requires a one-time detailed inspection of the affected BF access panels and, depending on findings, accomplishment of applicable corrective actions.

The FAA is issuing this AD to address the unsafe condition on these products. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1576.

EASA AD 2022-0183 requires a one-time detailed inspection of the affected BF access panels for loose or missing fasteners, and a detailed inspection of the bolts attached to the sewing angle of the BF access panel to confirm that the chamfer length of the bolt is fully extended through the nut. Depending on the inspection results, EASA AD 2022-0183 requires accomplishment of applicable corrective actions including installing new or missing fasteners, applying torque, replacing bolts, and repair.

The FAA reviewed Airbus Service Bulletin A350-53-P073, dated June 9, 2022, which specifies serial numbers of affected airplanes.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2022-0183 described previously, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2022-0183 is incorporated by reference in this AD. This AD requires compliance with EASA AD 2022-0183 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0183 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0183. Service information required by EASA AD 2022-0183 for compliance will be available at regulations.gov under Docket No. FAA-2022-1576 after this AD is published.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

There are currently no domestic operators of these products. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the forgoing reason(s), the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

Currently, there are no affected U.S.-registered airplanes. If an affected airplane is imported and placed on the U.S. Register in the future, the FAA provides the following cost estimates to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition installations, replacements, or torqueing that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

The FAA has received no definitive data on which to base the cost estimates the on-condition repairs specified in this AD.

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

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

The Entity List (supplement no. 4 to part 744 of the EAR (15 CFR parts 730-774)) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States, pursuant to § 744.11(b). The EAR impose additional license requirements on, and limit the availability of, most license exceptions for exports, reexports, and transfers (in-country) when a listed entity is a party to the transaction. The license review policy for each listed entity is identified in the “License Review Policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant Federal Register document that added the entity to the Entity List. The Bureau of Industry and Security (BIS) places entities on the Entity List pursuant to part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and makes all decisions to remove or modify an entry by unanimous vote.

The ERC determined to add Anhui Cambricon Information Technology Co., Ltd.; Cambricon (Hong Kong) Co., Ltd.; Cambricon (Kunshan) Information Technology Co., Ltd.; Cambricon Jixingge (Nanjing) Technology Co., Ltd.; Cambricon (Nanjing) Information Technology Co., Ltd.; Cambricon Technologies Corporation Limited; Cambricon (Xi'an) Integrated Circuit Co., Ltd.; CETC Cloud (Beijing) Technology Co., Ltd.; CETC LES Information System Group Co., Ltd.; China Electronics Technology Group Corporation No. 28 Institute; Chinese Academy of Sciences Institute of Computing Technology; Guangdong Qinzhi Technology Research Institute Co., Ltd.; Key Laboratory of Information Systems Engineering; Nanjing Aixi Information Technology Co., Ltd.; Nanjing LES Cybersecurity and Information Technology Research Institute Co., Ltd.; Nanjing LES Electronic Equipment Co., Ltd.; Nanjing LES Information Technology Co., Ltd.; Shanghai Cambricon Information Technology Co., Ltd.; Suzhou Cambricon Information Technology Co., Ltd.; System Equipment Co., Ltd. of the 28th Research Institute (Liyang); and Xiong'an Cambricon Technology Co., Ltd. under the destination of China to the Entity List for acquiring and attempting to acquire U.S.-origin items in support of China's military modernization. These entities are major artificial intelligence (AI) chip research and development, manufacturing and sales entities. These entities are, or have close ties to, government organizations that support the Chinese military and the defense industry. This activity is contrary to the national security and foreign policy interests of the United States under § 744.11(b) of the EAR. These entities are added with a license requirement for all items subject to the EAR with a footnote 4 designation with a reference to the Entity List foreign “direct product” (FDP) rule in the license requirements column of the Entity List (see §§ 734.9(e)(2) and 744.11 of the EAR). These entities are added with a license review policy of presumption of denial for all items subject to the EAR.

The ERC determined to add Shanghai Integrated Circuit Research and Development Center and Shanghai Micro Electronics Equipment (Group) Co., Ltd. under the destination of China to the Entity List for acquiring and attempting to acquire U.S.-origin items in support of China's military modernization. This activity is contrary to the national security and foreign policy interests of the United States under § 744.11(b) of the EAR. These entities are added with a license requirement for all items subject to the EAR and a license review policy of presumption of denial for all items subject to the EAR. Another BIS rule published in this same issue of the Federal Register is removing Shanghai Micro Electronics Equipment (Group) Co., Ltd. from the UVL for the reasons noted in the other rule. This entity is being added to the Entity List for reasons not related to the prevention of an end-use check.

The ERC determined to add PXW Semiconductor Manufactory Co., Ltd. under the destination of China to the Entity List for posing a significant risk of becoming involved in activities contrary to the national security or foreign policy interests of the United States. This determination is based on information that this company represents a risk of diversion to a party on the BIS Entity List. This activity is contrary to the national security or foreign policy interests of the United States under § 744.11(b) of the EAR. The ERC determined that the conduct of PXW Semiconductor Manufactory Co., Ltd. raises sufficient concern that prior review of exports, reexports, or transfers (in-country) of items subject to the EAR involving this entity, and the possible imposition of license conditions or license denials on shipments to the entity, will enhance BIS's ability to prevent violations of the EAR. This entity is added with a license requirement for all items subject to the EAR and a license review policy of presumption of denial for all items subject to the EAR.

The agencies represented on the ERC determined to add Yangtze Memory Technologies Co., Ltd. and Hefei Core Storage Electronic Limited under the destination of China and Yangtze Memory Technologies (Japan) Inc. under the destination of Japan to the Entity List for posing a significant risk of becoming involved in activities contrary to the national security or foreign policy interests of the United States. This request is based on information indicating that these companies present a risk of diversion to parties on the Entity List, to include Huawei Technologies Co., Ltd., and Hangzhou Hikvision Digital Technology Co., Ltd. This activity is contrary to the national security or foreign policy interests of the United States under § 744.11(b) of the EAR. The agencies represented on the ERC determined that prior review of exports, reexports, or transfers (in-country) of items subject to the EAR involving these entities, and the possible imposition of license conditions or license denials on shipments to the entity, will enhance BIS's ability to prevent violations of the EAR. These entities are added with a license requirement for all items subject to the EAR and a license review policy of presumption of denial for all items subject to the EAR.

The ERC determined to add AVIC Research Institute for Special Structures of Aeronautical Composites; AZUP International Group Co., Ltd.; Beijing HiFar Technology Co., Ltd.; Beijing Machinery Industry Automation Research Institute Co., Ltd.; Beijing Vision Strategy Technology Co., Ltd.; Shanghai Suowei Information Technology Co., Ltd.; and Zhongke Xinliang (Beijing) Technology Co., Ltd. to the Entity List. These entities are added for acquiring and attempting to acquire U.S.-origin items in support of China's military modernization. These entities have demonstrable ties to activities of concern, including: hypersonic weapons development, design and modeling of vehicles in hypersonic flight; designing and producing ballistic missile radomes, using proprietary software to model weapons design and damage; and otherwise supporting military-civil fusion efforts tied to the People's Liberation Army Air Force and Navy. This activity is contrary to the national security and foreign policy interests of the United States under § 744.11(b) of the EAR. These entities are added with a license requirement for all items subject to the EAR and a license review policy of presumption of denial for all items subject to the EAR.

The ERC determined to add Beijing UniStrong Science & Technology Co., Ltd. to the Entity List under the destination of China, for activity contrary to the national security or foreign policy interests of the United States. Specifically, Beijing UniStrong Science & Technology Co., Ltd. facilitated the illegal export of U.S.-origin electronics, controlled under Export Control Classification Number (ECCN) 7A994, to Iran for use in the production of military unmanned aerial vehicles and missile systems used in attacks throughout the Middle East. This activity is contrary to the national security or foreign policy interests of the United States under § 744.11(b) of the EAR. This entity is added with a license requirement for all items subject to the EAR and a license review policy of presumption of denial for all items subject to the EAR.

The ERC determined, pursuant to § 744.11(b) of the EAR, to add Tianjin Tiandi Weiye Technologies Co., Ltd. under the destination of China to the Entity List for engaging in or enabling activities contrary to U.S. foreign policy interests. Specifically, this entity has been implicated in human rights violations and abuses in the implementation of China's campaign of repression, mass arbitrary detention, and high-technology surveillance against Uyghurs, Kazakhs, and other members of Muslim minority groups in the Xinjiang Uyghur Autonomous Region (XUAR). This entity also has enabled the procurement of U.S.-origin items for use by the Islamic Revolutionary Guard Corps. These activities are contrary to U.S. national security and foreign policy interests under § 744.11(b) of the EAR. This entity is added with a license requirement for all items subject to the EAR and a license review policy of presumption of denial for all items subject to the EAR.

For the reasons described above, this final rule adds the following thirty-six entities to the Entity List and includes, where appropriate, aliases:

• Anhui Cambricon Information Technology Co., Ltd.,

• AVIC Research Institute for Special Structures of Aeronautical Composites,

• AZUP International Group Co., Ltd.,

• Beijing HiFar Technology Co., Ltd.,

• Beijing Machinery Industry Automation Research Institute Co., Ltd.,

• Beijing UniStrong Science & Technology Co., Ltd.,

• Beijing Vision Strategy Technology Co., Ltd.,

• Cambricon (Hong Kong) Co., Ltd.,

• Cambricon (Kunshan) Information Technology Co., Ltd.,

• Cambricon Jixingge (Nanjing) Technology Co., Ltd.,

• Cambricon (Nanjing) Information Technology Co., Ltd.,

• Cambricon Technologies Corporation Limited,

• Cambricon (Xi'an) Integrated Circuit Co., Ltd.,

• CETC Cloud (Beijing) Technology Co., Ltd.,

• CETC LES Information System Group Co., Ltd.,

• China Electronics Technology Group Corporation No. 28 Institute,

• Chinese Academy of Sciences Institute of Computing Technology,

• Guangdong Qinzhi Technology Research Institute Co., Ltd.,

• Hefei Core Storage Electronic Ltd.,

• Key Laboratory of Information Systems Engineering,

• Nanjing Aixi Information Technology Co., Ltd.,

• Nanjing LES Cybersecurity and Information Technology Research Institute Co., Ltd.,

• Nanjing LES Electronic Equipment Co., Ltd.,

• Nanjing LES Information Technology Co., Ltd.,

• PXW Semiconductor Manufactory Co., Ltd.,

• Shanghai Cambricon Information Technology Co., Ltd.,

• Shanghai Integrated Circuit Research and Development Center,

• Shanghai Micro Electronics Equipment (Group) Co., Ltd.,

• Shanghai Suowei Information Technology Co., Ltd.,

• Suzhou Cambricon Information Technology Co., Ltd.,

• System Equipment Co., Ltd. of the 28th Research Institute (Liyang),

• Tianjin Tiandi Weiye Technologies Co., Ltd.,

• Xiong'an Cambricon Technology Co., Ltd.,

• Yangtze Memory Technologies Co., Ltd., and

• Zhongke Xinliang (Beijing) Technology Co., Ltd.

• Yangtze Memory Technologies (Japan) Inc.

This final rule revises three existing entries, under the destination of China.

The ERC determined to modify the entry for China Electronics Technology Group Corporation 13th Research Institute (CETC 13) under the destination of China, first added to the Entity List on August 1, 2018 (83 FR 37427). Prior to this rule, the CETC 13 entry included 12 subordinate institutions ( i.e., Bowei Integrated Circuits ; Envoltek; Hebei Brightway International; Hebei Medicines Health; Hebei Poshing Electronics; Hebei Puxing Electronic ; Hebei Sinopack Electronics; Micro Electronic Technology; MT Microsystems; North China Integrated Circuit Corporation ; Shijiazhuang Development Zone Maiteda Microelectronics Technology Development and Application Corporation; and Tonghui Electronics).

With this rule, there are two primary changes to the CETC 13 entry. First, each of the 12 subordinate institutions are now detailed under their own entries and this rule adds those entries as separate entries to the Entity List. Second, the entries for CETC 13 and the subordinate institution Micro Electronic Technology, which as described above is being added under its own entry, are being modified. The ERC determined these two entities are Russian `military end users' pursuant to § 744.21. As Russian `military end users' they are now given a footnote 3 designation in their license requirement. As Russian `military end users' with a footnote 3 designation, CETC 13 and Micro Electronic Technology are now subject to the Russia/Belarus-Military End User foreign “direct product” (FDP) rule, detailed in § 734.9(g). This decision is based on information that these companies contribute to Russia's military and/or defense industrial base. Specifically, the ERC determined that these entities have previously supplied items to Russian parties before February 24, 2022 (Russia's further invasion of Ukraine), and continue to contract to supply items to Russian parties after February 24, 2022. As a conforming change, licenses for CETC 13 and Micro Electronic Technology will be reviewed under a policy of denial for all items subject to the EAR apart from food and medicine designated as EAR99, which will be reviewed on a case-by-case basis. See §§ 746.8(b) and 744.21(e). The remaining 11 subordinate institutions will retain the original entry's license requirement for all items subject to the EAR, which will be reviewed under a presumption of denial.

The ERC has determined to modify the entry for HSJ Electronics, under the destination of China, first added to the Entity List on December 17, 2021 (86 FR 71560), by adding one additional alias and four additional addresses.

The ERC has determined to modify the entry for Tenco Technology Company Limited, under the destination of China, first added to the Entity List on May 14, 2019 (84 FR 21236), by adding one additional alias and one additional address.

As described above under the additions to the Entity List section, the agencies represented on the ERC determined to add Yangtze Memory Technologies Co., Ltd. under the destination of China to the Entity List for posing a significant risk of becoming involved in activities contrary to the national security or foreign policy interests of the United States. This entity is being added to the Entity List for reasons not related to the prevention of an end-use check. Prior to this rule, Yangtze Memory Technologies Co., Ltd. was listed on the Unverified List in supplement no. 6 to part 744 of the EAR. For consistency with the existing BIS policy of not listing an entity on more than one of these lists at the same time, this rule makes the conforming change to remove the entity from the UVL.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA), 50 U.S.C. Sections 4801-4852. ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this final rule.

For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on December 16, 2022, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR).

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

2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and commodity classifications, and carries a burden estimate of 29.4 minutes for a manual or electronic submission for a total burden estimate of 33,133 hours. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

The Copyright Alternative in Small-Claims Enforcement (“CASE”) Act of 2020  1 directed the Copyright Office to establish the Copyright Claims Board (“CCB”), a voluntary forum for parties seeking resolution of certain copyright disputes that have a total monetary value of $30,000 or less. The CCB is an alternative forum to Federal district court and is designed to be accessible to pro se individuals and individuals without much formal exposure to copyright. 2 In early 2021, the Office published a notification of inquiry (“NOI”) asking for public comments on the CCB's operations and procedures. 3

Following the NOI, the Office published multiple notices of proposed rulemaking (“NPRMs”), including proposing rules governing the representation of parties before the CCB by law students  4 and the conduct of proceedings before the CCB. 5 After receiving and considering comments submitted by the public, the Office published final rules. 6 On June 16, 2022, the CCB began receiving claims through its website dockets.ccb.gov.

After reviewing its regulations, the Office is clarifying the rules governing law student representation, adding a rule to address district court referrals, and amending the rules governing initiating proceedings and active proceedings, in particular those related to submitting a proof of service form and to default proceedings. The amendment also makes corrections for typographical errors and consistency.

In its law school representation rulemaking, the Office had proposed that qualified law students affiliated with a qualifying law school clinic could represent parties before the CCB. 7 The proposed rule explained that the Office was “incorporat[ing] the requirements for law student representation provided by the law of the jurisdiction that certifies the student to practice in connection with a law school clinic.”  8 This requirement was included in the final rule. 9 Since the rule's publication, the Office has become aware that some parties have interpreted the use of the word “certifies” to denote a formal law student certification process. The use of the word “certifies” was intended to mean “allows, authorizes, or permits” and did not necessarily contemplate a formal certification process (unless such a process is required by the law student's jurisdiction for participation in a law school-connected clinic). Additionally, the Office understands that, in some jurisdictions, court or bar rules may govern law student representation rather than state law. The Office is revising its regulations to replace the word “certifies” with “allow, authorize, or permit” to ensure that the definition of “applicable law” is broad enough to include court or bar rules and to fix an incorrect cross reference.

Finally, the Office is amending its regulations concerning law student representation to make clear that these regulations only apply to law students who formally appear in CCB proceedings. As the Office previously recognized, law students may provide legal assistance related to CCB proceedings in ways that do not rise to the level of a formal appearance. For example, a student may assist a party by evaluating the strength of the party's claim or defense, drafting pleadings and other documents, advising a party about service of process, or explaining the CCB's regulations or processes. 10 Under the rules governing the CCB, such activities without more would not constitute an “appearance” before the CCB and, therefore, are not within the scope of the CCB's regulations regarding law student appearances. However, the Office cautions that these activities may be subject to state or local laws, court rules, or bar rules, which might impose other requirements on such student activities. We continue to encourage law students to assist CCB parties in accordance with applicable law, regardless of the form that assistance takes.

The CASE Act provides that CCB proceedings “shall qualify as an alternative dispute resolution process under [28 U.S.C. 651] for purposes of referral of eligible cases by district courts of the United States upon the consent of the parties.”  11 The alternative dispute resolution (“ADR”) process referenced allows a district court to refer litigants appearing before it to one of several ADR procedures with the goal of resolving the dispute prior to a trial. One of these ADR procedures, arbitration, involves a resolution of the parties' claims and defenses on the merits and accordingly requires the consent of both parties. Similarly, the CASE Act requires that a district court's referral of a dispute to the CCB for resolution occur only when both parties consent. 12

The CASE Act created a tribunal for the resolution of certain copyright claims in a manner more efficient and less costly than in district court. The CCB's treatment of cases referred to it by district courts should be consistent with these goals. The Office understands the Act's referral provision to anticipate that such referrals would be resolved on the merits by the CCB, which would issue a final decision, subject to the CASE Act's provisions for reconsideration and review. 13 Certain CASE Act provisions, e.g., those governing service of the claim and opting out, are superfluous and inconsistent with a streamlined process in the referral context. If the CCB required Federal court litigants, who have already consented to a referral to the CCB, to comply with unnecessary procedural rules, the goals of the Act would be undermined.

Accordingly, while the Office believes that the CCB's procedural steps and regulations serve an important role, adhering to certain provisions would not always be in the parties' (or the CCB's) interests. For example, claims referred from district courts are likely to come to the CCB at different stages of litigation, including before, during, or after discovery or substantive motion practice, which may narrow or amend the issues in dispute. Moreover, it would be inefficient for parties to undertake discovery as set forth in CCB regulations if they previously had completed discovery during district court proceedings. Finally, it is unnecessary to engage in the opt-out process when both parties have consented to having their claims decided by the CCB. At the same time, other provisions, such as those governing the CCB's ability to set conferences as needed, the types of evidence that can be submitted at virtual hearings, records and publication, requests for reconsideration, the Register's review, party conduct, law student representation, class action opt-out procedures, and dismissal for unsuitability seem equally appropriate for all claims before the CCB.

When a claim is referred to the CCB by a district court on consent of the parties pursuant to 17 U.S.C. 1509(b), the Office proposes that the parties to that case email the CCB as soon as possible (at asktheboard@ccb.gov ) for further instructions on how to continue proceedings before the CCB, including on how to open a docket in eCCB outside of the standard process. The CCB will issue a scheduling order, schedule a conference with the parties, and use its discretion to adjust or suspend standard rules that would otherwise apply, subject to identified exceptions, in the interests of efficiently resolving the dispute.

Going forward, the Office does not propose requiring claimants to pay a fee under 37 CFR 201.3(g)(1) for claims referred from a district court. Further, claims referred by district courts will not be included when calculating the maximum number of proceedings a clamant, attorney, or law firm can bring before the CCB. 14

In its initiating proceeding regulations, the Office required claimants to “file a completed proof of service form” to evidence that service of the claim on the respondent had been completed, and stated that such “proof of service form shall be located on the Board's website.”  15 The amendments proposed here will make clear that claimants may submit proof of service forms, by using either the form provided by the CCB or an alternative form that contains all of the information required in the CCB-provided form. Further, the proposed rule clarifies that evidence presented by the parties in a default proceeding is not limited to any materials exchanged in discovery, because a default proceeding may occur before discovery has concluded or even begun. Finally, the rule contains updated cross references and additional references to “counterclaims,” where earlier references only addressed “claims.”

The Office finds good cause to issue these regulations as final interim rules, with an immediate effective date. 16 We believe that notice and public comment are unnecessary for certain insignificant changes, including typographical errors, updated cross references, and clarifications. Although the rules governing district court referrals, proof of service forms, default proceedings, and law student representation could benefit from public comment, notice and public comment in advance of this rule's publication is impracticable, as the CCB has already begun operations and started accepting claims. For example, the CCB must have rules in place for district court referrals, as one such referral has already been made to the CCB. Accordingly, the Office is publishing this rule as final without first issuing a notice of proposed rulemaking, but seeks public comment regarding the subjects of this interim rule for any future amendments deemed appropriate.

For the reasons stated in the preamble, the U.S. Copyright Office amends 37 CFR parts 222, 224, 225, 233, 234, and 235 as follows:

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

EPA published a Notice of Proposed Rulemaking (NPRM) on September 3, 2021 (86 FR 49501) for the State of New Hampshire. The NPRM proposed approval of the CAA sections 111(d)/129 revised state plan for existing large and small MWCs submitted by NHDES on October 1, 2018.

NHDES amended its state plan Env-A 3300, Municipal Waste Combustion, for existing large and small MWCs on August 11, 2018 to remove a ban on PWR combustion in response to a change in the state statute “Devices Contributing to Air Pollution” RSA 125-C:10. The change in the state statute allows combustion of no more than 10,000 tons per year of PWR at any MWC from November 15 through April 15 from facilities that process C&D debris in a manner no less stringent than the requirements at 40 CFR 241.4(a)(5), Non-Waste Determinations for Specific Non-Hazardous Secondary Materials When Used as a Fuel. The change also required NHDES to adopt rules regarding fuel quality standards and test methods in accordance with RSA 125-C:6, XIV-a, before any such combustion shall occur; therefore NHDES revised its associated state plan.

Accordingly, the state plan revision incorporates fuel quality standards and test methods for MWCs that combust PWR. It includes changes to Env-A 3300, defining PWR as C&D wood processed from C&D debris according to best management practices as described in 40 CFR 241.4(a)(5). The revision includes a new part Env-A 3308 “Additional Requirements for Combusting PWR” applicable to large MWCs with sections outlining applicability, operating practices, PWR fuel quality, fuel supplier requirements, independent third-party inspections, analysis of composite samples, reporting and recordkeeping for large MWCs combusting PWR, and cessation and resumption of receipt of PWR from a supplier.

Subsequently, NHDES submitted the revised state plan to EPA on October 1, 2018. EPA evaluated the state plan for consistency with the CAA, EPA guidelines, and policy. We determined that NHDES's state plan implements and enforces provisions at least as protective as the Federal emission guidelines applicable to existing large and small MWCs. NHDES demonstrates legal authority to adopt emission standards and compliance schedules applicable to the designated facilities; enforce applicable laws, regulations, standards, and compliance schedules; seek injunctive relief; obtain information necessary to determine compliance; require record keeping; conduct inspections and tests; require the use of monitors; require emission reports of owners and operators; and make emission data publicly available. Other specific requirements for the revised state plan and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here.

EPA received three comments in response to the NPRM during the public comment period, all of which were adverse in nature to EPA's proposed approval of the action.

The first comment received suggested that EPA consider a different route of waste disposal to minimize negative impacts to the environment and human health. This comment is outside the scope of EPA's proposed action in that EPA is approving New Hampshire's state plan which meets EPA's promulgated guidelines for MWCs. In addition, the comment did not explain, or provide a legal basis for, how the proposed action should differ in any way within the context of EPA's guidelines; nor did the comment specifically mention the proposed action. Finally, the commenter did state that New Hampshire's rule would have a positive impact on the environment and public health. CAA section 129 and its implementing regulations impose requirements on sources that combust solid waste. If a state submits a revised state plan to EPA for solid waste combustion facilities that contains all applicable requirements, EPA does not have the authority to deny the revised state plan in favor of another means or method for solid waste disposal. As such, this comment has not resulted in a change to our original proposal and EPA is finalizing the action as proposed.

Two comments stated that there will be adverse health impacts to surrounding communities as a direct result from combusting PWR (referred to as C&D or C&D waste) at Wheelabrator Concord Company L.P. (Wheelabrator), currently the only facility subject to the New Hampshire state plan. Both commenters directly cited the NPRM's Background Section III entitled, “Why does EPA regulate air emissions from MWCs?,” which states that municipal solid waste (MSW) combustion emits various air pollutants such as particulate matter, hydrogen chloride, dioxins/furans, heavy metals (lead, cadmium, and mercury), sulfur dioxide, and nitrogen oxides. One of these comments cited public health resources and records of public concern, including testimony and background on: (1) New Hampshire House Bill 358;  1 (2) petitioners' “Response to EPA Order, Wheelabrator Concord Company, Permit No. TV-0032;” (3) the Seventh Biennial Report from the International Joint Commission on the Great Lakes Water Quality Agreement of 1978; (4) EPA's Summary of Executive Order 13045—“Protection of Children From Environmental Health Risks and Safety Risks;” (5) a presentation by the New Hampshire Division of Public Health Services entitled “Childhood Lead Poisoning in NH—The Economic Burden;” and (6) the State of New Hampshire Air Quality 2017 Executive Edition report. The comment emphasized the toxicity of lead exposure, its impact on children, and the resulting economic burden.

However, neither of these comments mention EPA's 2016 final rulemaking, entitled “Additions to List of Categorical Non-Waste Fuels,” which requires processed C&D wood to remove contaminants in accordance with best management practices at 40 CFR 241.4(a)(5). Sorting by trained operators excludes or removes the following materials from the final product fuel: non-wood materials ( e.g., polyvinyl chloride and other plastics, drywall, concrete, aggregates, dirt, and asbestos), and wood treated with creosote, pentachlorophenol, chromated copper arsenate, or other copper, chromium, or arsenical preservatives. In addition, C&D processing facilities that use positive sorting (where operators pick out desirable wood from co-mingled debris) or that receive and process positive sorted C&D wood, must either exclude all painted wood (to the extent that only de minimis quantities inherent to processing limitations may remain) from the final product fuel, use X-ray Fluorescence to ensure that painted wood included in the final product fuel does not contain lead-based paint, or require documentation that a building has been tested for and does not include lead-based paint before accepting demolition debris from that building. C&D processing facilities that use negative sorting (where operators remove contaminated or otherwise undesirable materials from co-mingled debris) must remove fines ( i.e., small-sized particles that may contain relatively high concentrations of lead and other contaminants) and either remove all painted wood (to the extent that only de minimis quantities inherent to processing limitations may remain), use X-ray Fluorescence to detect and remove lead-painted wood, or require documentation that a building has been tested for and does not include lead-based paint before accepting demolition debris from that building. See 81 FR 6694.

When processed in these manners and complying with all the requirements of the categorical non-waste determination, C&D wood is no longer considered a solid waste. In the case of New Hampshire, PWR, which equates to C&D wood processed in accordance with the best management practices at 40 CFR 241.4(a)(5), is still required to be combusted within MWCs and its combustion emissions are regulated via the state plan.

EPA's 2016 final rulemaking action for “Additions to List of Categorical Non-Waste Fuels” explains that preceding its proposed rulemaking, EPA analyzed more than 220 samples of processed C&D wood from nine combustion facilities. The Agency compared the contaminant levels found in the processed C&D wood to the contaminant levels found in clean wood and biomass materials. Contaminants most likely to be present in C&D debris (arsenic, chromium, lead, mercury, chlorine, fluorine, sulfur, formaldehyde, and pentachlorophenol) were all comparable or lower in the C&D wood than in clean wood and biomass materials, with the exceptions of lead, pentachlorophenol, and formaldehyde. See 81 FR 6697-6698, Table 1. As a result, EPA promulgated additional controls to adequately reduce lead and pentachlorophenol at 40 CFR 241.4(a)(5) ( e.g., positive and negative sorting requirements to exclude painted woods from the combustible stream of material). 2

Additionally, the commenters misunderstood EPA's own language in the NPRM for this rulemaking. Section III, entitled “Why does EPA regulate air emissions from MWCs?”, refers to why EPA regulates air emissions from MWCs. Unregulated combustion of MSW emits various air pollutants that are detrimental to human health and the environment. Therefore, EPA regulates these emissions under CAA sections 111(d) and 129 to protect human health and the environment. C&D wood itself is identified as not being a solid waste when used as fuel in a combustion unit and processed in the required manner at 40 CFR part 241.4, Non-Waste Determinations for Specific Non-Hazardous Secondary Materials When Used as a Fuel. A non-waste, non-hazardous secondary material cannot be identified as MSW, and the emitted pollutants from combustion of these materials are also not identical to and should not be characterized as such.

Regarding the regulatory process, a commenter stated that New Hampshire citizens “face barriers to public participation and access to resolution on issues that are provided for the public” at the state level. NHDES provided adequate opportunities for public participation throughout the state rulemaking process to amend New Hampshire Code of Administrative Rules Env-A 3300 Municipal Waste Combustion. The rulemaking process initiated in 2016 was introduced by the NHDES Air Resources Division and the Solid Waste Division at multiple stakeholder meetings open to the public with opportunities for comment. The proposed rule was presented to the NHDES Air Resources Council on September 11, 2017, and the final rule was posted for notice on May 14, 2018, with a public hearing on June 15, 2018, and a comment period ending on June 29, 2018.

There also were comments regarding the administration of the NHDES Air Resources Division, specifically concerning Title V operating permit shields, reporting of emissions, nitrogen oxides (NO X ) emissions compliance, and a general lack of monitoring. EPA finds these comments to be outside the scope of this rulemaking and thus no response to those comments is necessary.

Moreover, suggestions from both commenters to reject the state plan and continue the ban on PWR combustion are outside the scope of EPA Region 1's jurisdiction and this particular rulemaking. NHDES has the authority to incorporate standards in its state plan that are at least as protective as Federal emission guidelines. The state plan revision does not contradict or contravene 40 CFR part 60, subpart Cb, Emission Guidelines and Compliance Times for Large Municipal Waste Combustors That are Constructed on or Before September 20, 1994, or 40 CFR part 241, subpart B, Identification of Non-Hazardous Secondary Materials that are Solid Wastes when Used as Fuels or Ingredients in Combustion Units.

Finally, a comment stated that our proposed approval of New Hampshire's regulation is inconsistent with the requirements of Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. EPA disagrees with the commenter. This executive order was issued by President William J. Clinton in 1997. The order applies to economically significant rules under Executive Order 12866 that concern an environmental health or safety risk that EPA has reason to believe may disproportionately affect children. Environmental health risks or safety risks refer to risks to health or to safety that are attributable to products or substances that the child is likely to come in contact with or ingest (such as the air we breathe, the food we eat, the water we drink or use for recreation, the soil we live on, and the products we use or are exposed to). When promulgating a rule of this description, EPA must evaluate the effects of the planned regulation on children and explain why the regulation is preferable to potentially effective and reasonably feasible alternative. Executive Order 12866 defines “significant regulatory action” as one which generally is any regulatory action that is likely to result in a rule that may:

• Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

• Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

• Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

• Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.

EPA has determined that the criteria above have not been met for this rulemaking.

EPA is approving NHDES's CAA sections 111(d)/129 revised state plan for existing large and small MWCs.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the State of New Hampshire amended Code of Administrative Rules Env-A 3300, Municipal Waste Combustion, with a state effective date of September 27, 2018. The amended Env-A 3300 applies to Large and Small Municipal Waste Combustors to comply with section 111(d) and section 129 of the Clean Air Act. EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). This incorporation by reference is approved by the Director of the Federal Register upon the effective date of this final rule, and the plan is federally enforceable under the CAA as of the effective date of this final rulemaking.

Under the Clean Air Act, the Administrator is required to approve a state plan submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing state plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this 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);

• 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; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the state plan is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the 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).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . 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 February 17, 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 42 U.S.C. 7607(b)(2).

Part 62 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

The proposed rule was published at 87 FR 16159 on March 22, 2022. The Petitioner filed comments in support of the petition reaffirming its commitment to apply for channel 31. No other comments were filed. The Report and Order substitutes channel 31 for channel 12 at Helena, Montana. According to the Petitioner, it has received many complaints from viewers unable to receive a reliable signal on VHF channel 12, and the Commission has recognized that VHF channels have certain characteristics that pose challenges for their use in providing digital television service. The Engineering Statement provided with the Petition confirmed that the proposed channel 31 contour would continue to reach virtually all of the population within the Station's current service area and fully cover the city of Helena. An analysis using the Commission's TVStudy software tool indicates that KTVH-DT's move from channel 12 to channel 31 is predicted to create an area where 2,168 persons are predicted to lose service. The loss area, however, is partially overlapped by the noise limited contour of other NBC affiliated stations and reduces the number of people who are predicted to lose NBC network service to 226 persons. Once those other sources of NBC programming are factored into the loss analysis, the new loss area that would be created by the proposed channel substitution would contain only 226 persons, which is a level of service loss the Commission considers to be de minimis. Concurrence from the Canadian government was required and has been obtained.

This is a synopsis of the Commission's Report and Order, MB Docket No. 22-118; RM-11924; DA 22-1234, adopted November 29, 2022, and released November 29, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

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

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

The reef fish fishery of the Gulf is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Magnuson-Stevens Act provides the legal authority for the promulgation of emergency regulations under section 305(c) (16 U.S.C. 1855(c)).

The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the optimum yield (OY) from federally managed fish stocks. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. To further this goal, the Magnuson-Stevens Act requires fishery managers to end overfishing and rebuild overfished stocks. At its June 2022 meeting, in accordance with Section 305(c)(3) of the Magnuson-Stevens Act, the Council requested NMFS promulgate an emergency regulation to protect the greater amberjack resource, due to recently discovered circumstances which present serious conservation issues to the stock. NMFS promulgated that rule in July 2022, effective through January 23, 2023, and is now extending the effective date for an additional 186 days (87 FR 44027, July 25, 2022).

All weights provided in this temporary rule, unless otherwise noted, are given in round weight.

Greater amberjack has been under a rebuilding plan since 2003. In October 2020, a Southeast Data, Assessment, and Review (SEDAR) assessment (SEDAR 70) was completed and showed that the greater amberjack stock is still overfished and has been undergoing overfishing almost continuously since 1980. NMFS informed the Council of these determinations in a letter dated April 7, 2021. The Magnuson-Stevens Act specifies that the Council must prepare and implement measures to end overfishing and rebuild the stock within 2 years of this notification. At its October 2022 meeting, the Council approved Amendment 54 to the FMP, which would significantly reduce the greater amberjack catch limits consistent with the results of SEDAR 70 and the recommendation of the Council's Scientific and Statistical Committee (SSC).

The Council's SSC reviewed the SEDAR 70 results at its January 2021 meeting, accepted the assessment as the best scientific information available, and agreed that greater amberjack was still overfished and undergoing overfishing. The SSC provided recommendations for a reduced overfishing limit (OFL) and acceptable biological catch (ABC) so that the stock could rebuild by 2027, the current target rebuilding time. The Council discussed the SSC's recommendations at its January 2021 meeting and instructed staff to begin work on an FMP amendment (Amendment 54) to update the rebuilding plan and end overfishing of greater amberjack.

The SSC provided updated catch level recommendations in November 2021. When the Council reviewed more detailed alternative catch level projections in April 2022, it became clear that because the recreational fishing year occurs over 2 calendar years and the reduced catch levels in Amendment 54 would not be implemented until the later part of the fishing year, more immediate action might be necessary to constrain recreational harvest while the Council works to finalize the new catch limits. Therefore, in June 2022, the Council reviewed options to modify the recreational fixed closed season to help constrain harvest to the reduced catch levels under consideration in Amendment 54.

At that time, recreational harvest of greater amberjack was closed from November through April and June through July. This means that harvest was allowed during the months of August through October, and the month of May. The Council requested that NMFS modify the fixed closed season for the 2022-2023 fishing year so that harvest is allowed only during the months of September and October in 2022. NMFS received the Council request in a letter dated July 5, 2022, and implemented the emergency regulation on July 25, 2022, consistent with the Council request (87 FR 44027, July 25, 2022). That rule is currently effective through January 23, 2023. NMFS is extending the effective date of that rule to prohibit harvest in May 2023 as requested by the Council and to allow NMFS sufficient time to review, and if approved, implement Amendment 54.

Section 305(c)(3)(B) of the Magnuson-Stevens Act allows NMFS to extend the effective date of an emergency regulation if the public is provided the opportunity to comment on the emergency regulation and the Council is actively preparing a plan amendment to address the emergency on a permanent basis. NMFS solicited public comment in the July 25, 2022, temporary rule, noting that the rule could be extended for an additional 186 days.

NMFS received five comments on the temporary rule for emergency action for Gulf greater amberjack. In general, the comments were opposed to the change to the recreational fishing season implemented in the temporary rule and stated other measures could be taken or that no action was necessary. Some comments suggested changes to management measures that are outside the scope of the temporary rule, such as implementing a tag program for non-residents, and are therefore not addressed further. Specific comments related to the emergency action are grouped by topic and summarized below, followed by NMFS' respective responses.

Comment 1: The data used to project greater amberjack recreational landings are flawed.

Response: NMFS used the best scientific information available to project when Gulf greater amberjack landings would reach the reduced recreational catch limits under consideration in Amendment 54. NMFS determined that recreational landings in recent years would be the best predictor of future landings. Therefore, NMFS used recreational landings data for the 2019-2020, 2020-2021, and 2021-2022 fishing years that were generated by the Marine Recreational Information Program, the Texas Parks and Wildlife Department Creel Survey, the Louisiana Creel survey, and the NMFS Headboat Survey. The NMFS Southeast Fisheries Science Center and Southeast Regional Office reviewed these data and made applicable adjustments to recreational landings projections consistent with established protocols. To predict recreational landings in August, September, and October of 2022, NMFS used a 3-year average of monthly landings from 2019, 2020, and 2021. To predict recreational landings for May of 2023, NMFS used a 2-year average of 2020 and 2021 May landings because the recreational sector was closed in May 2019 and the May 2022 recreational landings were not available at the time of the analysis. The Council used these projections to determine how best to modify the recreational fixed closed and chose the alternative that provides the greatest number of days without exceeding the expected reduced recreational catch limit.

Comment 2: NMFS should implement a one fish per vessel recreational limit instead of changing the greater amberjack recreational fixed closed season.

Response: The Council did not request, and NMFS did not consider implementing a recreational vessel limit to reduce recreational landings. Previous analysis conducted for Amendment 35 to the FMP indicated that a one fish per vessel limit would not have achieved the harvest reduction needed to avoid an overage of the recreational catch limits proposed under Amendment 54. Further, when recreational vessel limits, in general, have been considered in the past there has been little support from the Council and constituents. Therefore, NMFS implemented the revised recreational fixed closed season, which was supported by the Council and projected to meet the needed harvest reductions.

Comment 3: The greater amberjack commercial sector should be closed in addition to the recreational sector.

Response: NMFS disagrees that it is necessary to close the commercial sector. The commercial sector already has a fixed closed season in effect for the months of March, April, and May, and has projected that harvest by the commercial sector in January and February of 2023 would not exceed any of the proposed reduced commercial catch limits under consideration in Amendment 54. Further, the commercial sector has a trip limit reduction after 75 percent of the commercial quota is caught. Therefore, the Council did not include in its emergency action request to NMFS actions related to the greater amberjack commercial sector.

This action is issued pursuant to section 305(c) of the Magnuson-Stevens Act, 16 U.S.C. 1855(c). The Assistant Administrator (AA) for Fisheries, NOAA has determined that this emergency action is consistent with the Magnuson-Stevens Act, the FMP, and other applicable law. This action is being taken pursuant to the emergency provisions of the Magnuson-Stevens Act and is exempt from Office of Management and Budget review.

This temporary rule for emergency action contains no information collection requirements under the Paperwork Reduction Act of 1995.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. are inapplicable. Accordingly, no Regulatory Flexibility Analysis is required and none has been prepared.

NMFS prepared an environmental assessment (EA) for the emergency measures contained in the July 25, 2022 (87 FR 44027, July 25, 2022) temporary rule. The EA analyzed the impacts of recreational seasonal closure, which includes the impacts related to extending the emergency measures. Therefore, the impacts of extending the emergency measures through this temporary rule have already been considered. Electronic copies of the EA are available from NMFS (see ADDRESSES ).

This temporary rule extension responds to the best scientific information available. The AA finds good cause to waive the requirements to provide prior notice and opportunity for public comment, pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures for this temporary rule extension are unnecessary and contrary the public interest. Such procedures are unnecessary because NMFS already published the temporary rule on July 25, 2022, and requested public comment on the emergency regulation, including the potential extension. NMFS responds to the public comments in this temporary rule, which extends the same emergency regulation for an additional 186 days. An opportunity for additional public comment would be contrary to the public interest because it would result in this temporary rule not being effective before the current emergency regulations expire, which would prevent NMFS from implementing this extension. Without the extension of the emergency regulation, recreational fishing would be allowed in May 2023 and could result in a significant overage of the greater amberjack recreational ACL approved by the Council in Amendment 54. This possible overharvest could result in a complete closure of greater amberjack to the recreational sector in the 2023-2024 fishing year and could negatively impact the revised rebuilding plan developed in Amendment 54.