Federal Register Vol. 82, No.46,

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Pennsylvania program on July 30, 1982.

You can find additional background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval in the July 30, 1982, Federal Register, at 47 FR 33050. You can also find later actions concerning Pennsylvania's program and program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15 and 938.16.

By letter dated August 1, 2008 (Administrative Record Number PA 802.43), Pennsylvania sent us a proposed program amendment that was intended to satisfy a required amendment that was imposed by OSMRE in a final rule published in the Federal Register on May 31, 1991, at 56 FR 24687, and codified in the Federal Regulations at 30 CFR 938.16(h). This proposed program amendment, hereinafter referred to as the “ABS Program Amendment,” was also intended to satisfy requirements of an October 1, 1991, letter sent to the state pursuant to the Federal regulations at 30 CFR 732.17. (the “732 letter”). Among other things, the August 1, 2008, amendment proposed significant changes to the State's revenue raising mechanism for the treatment of pollutional discharges at ABS Legacy Sites. The term “Legacy Sites” is defined in Section II, below. On August 10, 2010, we published a Federal Register notice announcing our partial approval of the ABS program amendment. See 75 FR 48526.

By letter dated November 14, 2016 (Administrative Record No. PA 897.00), Pennsylvania sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.).

Pennsylvania is providing this program amendment to further define how the Pennsylvania Department of Environmental Protection (“Department”) will implement its obligation under the approved ABS Program Amendment consistent with OSMRE oversight. As defined in 25 Pa. Code § 86.1, “ABS Legacy Sites” are “[m]ine sites, permitted under the Primacy Alternate Bonding System [ABS], that have a postmining pollutional discharge where the operator has defaulted on its obligation to adequately treat the discharge and, either the bond posted for the site is insufficient to cover the cost of treating the discharge, or a trust to cover the costs of treating the discharge was not fully funded and is insufficient to cover the cost of treating the discharge.”

A. The proposed program amendment contains a current list of ABS Legacy Sites.

B. The proposed program amendment provides a process for moving sites from the list of potential ABS Legacy Sites to the list of ABS Legacy Sites.

C. The proposed program amendment includes the mechanisms by which a site can be added to the list of ABS Legacy Sites if bond release was improperly granted.

D. The proposed amendment provides the criteria that must be met in order for a mine to be removed from the list of ABS Legacy Sites.

E. The proposed program amendment requires the Department to request concurrence from OSMRE consistent with its oversight authority when sites are being added or removed from the list of ABS Legacy Sites or from the list of potential ABS Legacy Sites. This concurrence will be requested in writing through a letter or email message to the Pittsburgh Field Division, Harrisburg Area Office. The concurrence request will include a justification of the action. After the concurrence is received, the Department will initiate the notice in the Pennsylvania Bulletin.

The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES or at www.regulations.gov.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Pennsylvania's State Program.

If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed (see ADDRESSES) will be included in the docket for this rulemaking and considered.

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

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.s.t. on March 27, 2017. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak, and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

Throughout this document, “we,” “us” and “our” refer to the EPA. This proposal addresses the following local plan, “2012 Revision to the Nevada State Implementation Plan for Carbon Monoxide: Updated Limited Maintenance Plan, for the Nevada Side of the Lake Tahoe Basin, Including Douglas, Carson City and Washoe Counties.”

In the Rules and Regulations section of this Federal Register, we are approving this local plan in a direct final action without prior proposal because we believe this SIP revision is not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule.

We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.

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

The Clean Air Act (CAA or the Act) at section 110(a)(2)(C) requires states to develop and submit to the EPA for approval into the SIP, preconstruction review and permitting programs applicable to certain new and modified stationary sources of air pollutants for attainment/unclassifiable and nonattainment areas that cover both major and minor new sources and modifications, collectively referred to as the NSR SIP. The CAA NSR SIP program is composed of three separate programs: Prevention of Significant Deterioration (PSD), Nonattainment New Source Review (NNSR), and Minor New Source Review (MNSR). The Minor NSR SIP program addresses construction or modification activities that do not emit, or have the potential to emit, beyond certain major source/major modification thresholds and thus do not qualify as “major” and applies regardless of the designation of the area in which a source is located. The EPA regulations governing the criteria that states must satisfy for EPA approval of the NSR programs as part of the SIP are contained in 40 CFR 51.160-51.166. Minor NSR regulations are contained at 40 CFR 51.160-51.164.

The SIP submittal under review in this action contains proposed changes to each of the current SIP-approved sections contained in 20.11.41 of the New Mexico Administrative Code (NMAC) and includes the proposed addition of seven new sections. All changes are identified in Table 4 of this rulemaking. These changes are discussed in more detail in the Technical Support Document (TSD) contained in the docket for this action.

Our proposed action today addresses the revisions to the City of Albuquerque-Bernalillo County's (the “County”) Minor NSR SIP which were submitted to EPA on July 26, 2013 as well as the letters submitted to the EPA dated April 21, 2016, July 5, 2016, September 19, 2016, and December 20, 2016.

The current County SIP includes the EPA approved Part 41 provisions (see, 69 FR 78312, December 30, 2004), which form the basis of the County's Minor NSR SIP program implemented by the City of Albuquerque Environmental Health Department (the “Department”). The following sections of this proposed action and the accompanying TSD analyze the proposed revisions to the Construction Permits regulation found in Part 41 to determine whether the submitted revisions and the Department's letters dated April 21, 2016; July 5, 2016; September 19, 2016; and December 20, 2016, as a whole, meet the requirements of the CAA and the EPA's regulations, policy, and guidance for NSR permitting. As noted in the TSD, the revisions made to 20.11.41 sections 1, 3, 4, 5, 6, 9, 10, 11, 12, 18, 19, 20, 26, 27, and 29 NMAC are non-substantive, and thus will not be analyzed in detail below. A line by line comparison of these non-substantive submitted changes is found in the TSD in the docket for this action.

In addition to the preconstruction permitting program requirements of section 110(a)(2), our evaluation must ensure that the submittal complies with section 110(l) of the CAA before it can be approved into the SIP. Section 110(l) states that the EPA shall not approve a revision of the SIP if it would interfere with any applicable requirement concerning attainment of the National Ambient Air Quality Standards (NAAQS), reasonable further progress, or any other applicable requirement of the Act. Thus, under CAA section 110(l), the proposed MNSR SIP revision must not interfere with attainment, reasonable further progress, or any other applicable requirement of the Act. As part of the 110(l) analysis, we have evaluated the proposed MNSR SIP revisions for any potential interference with attainment and reasonable further progress for all NAAQS pollutants. Bernalillo County is designated attainment for all NAAQS pollutants.

As detailed in the TSD, the July 26, 2013 SIP submittal meets the completeness criteria established in 40 CFR 51, Appendix V. In addition to the completeness review, the revisions contained in the SIP submittal were evaluated against the applicable requirements contained in the Act and 40 CFR 51.

Section 2 of the County's submittal governs the scope of the Minor NSR program. 40 CFR 51.160(e) requires that the plan identify the “types and sizes of facilities, buildings, structures, or installations which will be subject to review.” The County's current SIP requires stationary sources with emissions in excess of the limits listed in this section to obtain a construction permit. In its submittal, the County revised this section to include source or activity based exemptions. The emissions from the new exemptions are expected to be inconsequential, and these sources and activities have historically been commenced and operated without coverage by an air permit.

As required by section 110(l) of the CAA, we analyzed the addition of these exemptions to ensure that they do not interfere with any applicable requirement for attainment of the NAAQS, reasonable further progress (RFP), or any other CAA requirement. The Department has been carrying out the Minor NSR program as revised since January 1, 2014. Since then, there has been no indication that these exempted sources have interfered with attainment, RFP, or any other requirement of the Act. The EPA took into consideration the following factors when making the decision to propose that the exemptions be approved into the SIP;

• Compliance with the 8-hour ozone standard has improved county-wide with ozone pollutant concentrations trending downward since the late 1980's. The 8-Hour and 1-Hour ozone trends are listed in Table 1: 1

• Compliance with the 8-hour CO standard has improved county-wide with CO pollutant concentrations trending downward since the late 1980's. The 8-Hour and 1-Hour CO trends are listed in Table 2:

• Compliance with the 1-hour NO2 standard has improved county-wide with NO2 pollutant concentrations trending downward since the late 1990's. The 1-Hour NO2 trends are listed in the Table 3:

Section 7 of the County's SIP provides definitions for the terms used throughout 20.11.41 NMAC. The submitted revisions provide updated definitions for several terms. The revisions either made the definitions align more closely with those provided in 40 CFR 51.100 or they were updated to match those that were approved by the EPA in the most recent New Mexico Minor NSR SIP revision at 20.2.72 NMAC. We are proposing to approve the majority of the definitions with the exception of the following: “conflict of interest” listed in 20.11.41.7.J, “technical permit revision,” listed in 20.11.41.7.RR, and the reference to technical permit revisions found in 20.11.41.7.EE. We are proposing to conditionally approve these definitions since they only apply to sections 20.11.41.32 and 20.11.41.28.B which we are also proposing to conditionally approve in this action.

Section 13 of the County's SIP contains the requirements for the permit application that must be filed with the Department by any person seeking a permit. The revisions include the addition of provisions related to the changing, supplementing, or correcting a previously submitted permit application and provisions detailing what must be included before an application is considered complete. The revision also establishes a new abbreviated public participation process in 20.11.41.13B that applies to technical permit revisions. This abbreviated process does not meet the requirements for prominent advertisement in the area affected as required by 40 CFR 51.161. Rather, it allows the applicant to send notification letters to neighborhood organization within half a mile of the source seeking the technical permit revision. The County has committed to revising this abbreviated process to include the necessary public notice requirements as listed in 40 CFR 51.161. We are therefore proposing to conditionally approve 20.11.41.13.B.2

With the exception of the public participation process found in 20.11.41.13B., we are proposing to approve section 13 as it includes more stringent requirements for permit applicants with respect to the contents of permit applications that are not present in the current SIP. We propose to find section 13 meets the applicable federal requirements, including 40 CFR 51.160 which contains federal requirements regarding information an owner or operator of a new or modified source must submit to the State or local agency.

Section 14 of the County's SIP contains the public notice requirements. Federal requirements for public participation for Minor NSR programs can be found at 40 CFR 51.160 and 51.161. The revised regulations allow the Department to publish its notice in a newspaper of general circulation in Bernalillo County, whereas the current SIP requires that it be published in a newspaper of general circulation in the area closest to the location of the source seeking a permit. The revision also shortens the comment period. Previously, commenters had 45 days to submit comments; under the new regulation they have 30 days to comment on the permit application. The requirement to publish the notice in a newspaper of general circulation in Bernalillo County meets the requirement found in 40 CFR 51.161(b)(3) to publish a notice by “prominent advertisement in the area affected.” Though the revision to 20.11.41.14 results in a reduction of the length of time the public can comment on the permit application, it still meets federal requirements since the new time period is equivalent to the federal minimum requirement found in 40 CFR 51.161(b)(2).

The revised provisions provide that only those who submit comments during the 30-day comment period will be notified when the Department's analysis is available. As clarified in the County's July 5, 2016 letter, those who wish to provide comments on the analysis will have 30 days to do so once it becomes available. The proposed revisions also require a person to comment in writing on the permit application in order to be allowed to comment on the Department's Analysis. We believe that this is a minimal burden placed on the public to express written interest on the permit application in order to have the opportunity to comment on the Department's Analysis. This additional requirement does not undermine federal public participation requirements, nor does it interfere with any other requirement of the CAA. Therefore, we propose approval of this revision into the SIP.

In addition, the County has revised the language in 20.11.41.14(B)(8) NMAC which requires that public notices be automatically sent to the Region 6 EPA office; the revised provision now provides that public notices be sent to the EPA only if requested by the EPA. 40 CFR 51.161(d) requires that a state send a copy of all public notices to the EPA via the Regional Office, without qualifying whether a request by the EPA is necessary. To ensure that all public notices are received by the EPA pursuant to 40 CFR 51.161(d), Region 6 has formally requested copies of each public notice be provided to the EPA.3 Therefore, the Department will provide a copy of all public notices for construction permits to the EPA meeting the federal requirement in 40 CFR 51.161(d).

Section 15 of the County's SIP contains the provisions governing the public information hearing process. The proposed regulation clarifies that the Department shall hold a public information hearing (PIH) for a permit application if the Department determines there is significant interest and a significant air quality issue. Section 15 requires the Department to hold a hearing, if needed, no fewer than 30 days before the deadline for the Department to make a final decision on the permit application and to publish a public notice of the hearing no fewer than 10 days before it occurs. This is a new requirement that is not in the current SIP. The replacement regulation also clarifies that the applicant is to present their permit proposal and answer questions from the attendees. It also requires that the PIH is recorded and the recording be included in the administrative record. There are no federal requirements for Minor NSR permits to have an opportunity for a hearing, therefore, the proposed section 20.11.41.15 is more stringent than federal requirements and we are proposing its approval into the SIP.

Section 16 in the County's SIP governs the permit decisions process. It specifies the numbers of days within which the Department shall either grant, grant subject to conditions, or deny a permit or permit revision after the Department deems a permit application administratively complete. The revision reduces the number of days the Department has to review the application from 180 days to 90 days. It also reduces the days in which the Department must hold a hearing, if one is required, from 90 days to 60 days. The Department provided supplemental information to the EPA regarding the number of Minor NSR permits that have been issued since the reduction in the amount of time the Department has to review an application has been implemented. The Department has been implementing this reduction in time for the Department's review of Minor NSR permits for over 10 years. The Department has issued approximately 892 new MNSR permits since January 20, 2000.4

Bernalillo County is designated attainment for all NAAQS pollutants, and the air quality trends provided in the section 2 analysis support that the air quality is improving in the county. The reduction of time for the Department's review of Minor NSR permit applications has therefore not interfered with attainment, reasonable further progress, or any other applicable requirement of the Act and we are proposing its approval into the SIP.

Section 17 of the County's SIP provides the basis for which a permit may be denied. The revision removes a provision that refers to ambient air standards that are unique to the Air Board. There are no standards that are unique to the Air Board, the County incorporates the federal standards by reference.5 We are proposing to approve removal of this provision from the current SIP. The proposed replacement regulation includes a new provision at 20.11.41.17.F. that allows the Department to deny a permit application if the Department determines that a conflict of interest existed or exists regarding an application that was submitted during accelerated review as authorized by 20.11.41.32 NMAC. We are proposing to conditionally approve this provision in 20.11.41.17F. since it applies only to permits processed through the accelerated review process established in 20.11.41.32 NMAC, which we are also proposing for conditional approval. We are proposing to approve the rest of section 17.

Section 20 of the County's SIP provides the basis for which a permit may be cancelled, suspended, or revoked. The proposed replacement regulation includes a new provision that provides that a violation of a requirement of the State Act, a board regulation, or a condition of a permit that has been issued pursuant to 20.11.41 NMAC may result in suspension or revocation of the permit. This provision makes the SIP more stringent and we are proposing its approval into the SIP.

Section 21 of the County's submittal addresses the permittee's obligation to notify the Department in various instances. This section adds a new requirement for the permittee to notify the Department of the date a portable source leaves or returns to the County. The permittee must also notify the Department of any permit update or correction no more than 60 days after the permittee knows or should have known about the condition that requires updating or correction of the permit. In addition, the permittee must submit an annual emissions inventory to the Department as required by 20.11.47 NMAC. The revised section also states the timeframes in which the required notifications must be completed in a clearer manner than the current SIP. These revisions assist in ensuring that sources are not engaging in acts that will result in an exceedance of one of the NAAQS and in clarifying when each notification must be provided to the Department. We are proposing to approve this section into the SIP.

The County wishes to remove the current section 22—Emergency Permits from its current SIP. The July 26, 2013 SIP Submittal renumbered section 22 to section 24. The County, in its technical support document, and subsequently in its April 21, 2016 letter to the EPA, declared the provisions to be “local only” provisions, thus indicating an intention that they be removed from the SIP. The removal of the provision will not interfere with any applicable requirements of the CAA as it merely provided an avenue for permittees to obtain a permit at an expedited rate in the event of an emergency. The removal of such a provision will not interfere with any applicable requirement of the Act. Sources operating under emergency permits remain subject to federal enforcement.

The proposed replacement regulation for section 22 clarifies the performance testing requirements in the County. The proposed regulation clarifies the following: The permittee is responsible for the testing expenses, the permittee must submit a written report of the test results within 30 days of the completion of the testing, and the Department may require the permittee to repeat the testing or perform additional testing as frequently as the Department requires to ensure that the source demonstrates compliance with the permit. The revised regulation assists in ensuring that sources are in compliance with, and remain in compliance with, their permits. The revisions incorporate more stringent requirements for performance testing than what is currently in the SIP and we are proposing that these revisions be approved into the SIP.

Section 23 of the County's submittal addresses the temporary relocation of portable stationary sources in the County. The submittal adds clarifying language regarding the requirements applicants must meet in order to relocate a permitted portable source without obtaining a permit revision. It also includes the incorporation of additional recordkeeping and notification requirements that must be met in order for the portable source to relocate without undergoing a permit revision and identifies any sources that are exempt from the requirements listed in this section. Further, it requires that the application for relocation be submitted at least 45 days prior to the relocation date, that relocation applicants pay the fee required by 20.11.2 NMAC, and that applications include an EPA-approved air dispersion model showing the proposed new location will comply with the NAAQS and NMAAQS, include all information required by 20.11.41.13 NMAC and be signed certifying accuracy. The EPA is proposing to approve these revised provisions as they include more stringent requirements for portable source relocation to meet before qualifying for an exemption from preconstruction permitting. Section 23 meets the applicable federal requirements and we are proposing its approval into the SIP.

Section 25 of the County's submittal addresses the requirements for minor source modifications in nonattainment areas. The proposed regulation removed the reference to the State of New Mexico non-methane hydrocarbon standard in 20.11.44 NMAC, Emissions Trading, since the format of the standard is outdated and its withdrawal from the SIP was recommended by the EPA Region 6 office.6 We are proposing to approve the removal of this reference. The proposed regulation also contains a requirement that an existing source that is subject to nonattainment permitting and is modifying shall demonstrate a net air quality benefit of at least a 20% reduction in ambient impact for each applicable contaminant. These revisions result in a more stringent SIP than currently approved, therefore we find that they meet federal requirements for SIP-approved permitting plans.

Section 28 of the County's submittal addresses administrative and technical permit revisions. The proposed replacement regulation includes details on what constitutes administrative and technical permit revisions, the requirements of the applicant when submitting an administrative or technical permit revision, and how the Department processes an administrative or technical permit revision. Each permit revision type has specific review and permit issuance procedures, applicable fees, and public notice requirements, as described below:

• Administrative permit revisions require that a form on the revision be submitted by the applicant to the Department. Upon receipt of the form, the Department determines whether the revision qualifies as an administrative revision. Administrative revisions are limited to administrative changes that do not have associated increases in permitted emissions and do not result in a change to a permit term or condition, such as: The correction of typographical errors, change in administrative information (e.g., change in owner, facility address, or contact phone number), the incorporation of the retirement of a permitted source or the closing of a facility, or the incorporation of NMAC exempted sources.7 Under this revision, administrative permit revisions now require a certified written notification of the revision be submitted by the applicant to the Department. Administrative revisions become effective upon receipt of the notification by the Department. The Department is not required to reissue the permit to incorporate an Administrative permit revision. Administrative revisions have applicable permit fees under 20.11.41.12 NMAC. These revisions are not subject to the public notice requirements contained in either section 13 or section 14.

• Technical permit revisions require that an application for a revision be submitted by the applicant to the Department. Technical permit revisions are used to accomplish changes that will not result in a significant emissions increase that cannot be accomplished using the administrative revisions provision in this section. The Department has 30 days after the receipt of a complete application to approve or deny the permit revisions or inform the applicant that the request must be submitted as a permit modification. This timeline for the Department's action on the permit application may be extended if the Department holds a public meeting in response to significant public interest regarding the permit revision. The technical permit revision becomes effective upon written approval from the Department, and the Department is required to file the technical permit revision with the existing permit. Permit actions that qualify as technical revisions are required to follow the public notice requirements of 20.11.41.13 NMAC, and fees under 20.11.41.12. Permit actions that qualify as technical revisions are exempt from the public notice requirements provided for in 20.11.41.14 NMAC.

Federal Minor NSR Program requirements generally require a 30-day public review for all sources that are subject to Minor NSR; however, these requirements also allow a state to identify the types and sizes of facilities, buildings, structures, or installations, which will require full preconstruction review by justifying the basis for the state's determination of the proper scope of its program.8 Importantly, our decision to approve a state's scope of its Minor NSR program must consider the individual air quality concerns of each jurisdiction, and therefore will vary from state to state. The EPA recognizes a state's ability to tailor the scope of its Minor NSR program as necessary to achieve and maintain the NAAQS.

The revised SIP rule is more stringent than the current SIP with respect to requiring written notification of the administrative revision be submitted by the applicant to the Department. The administrative permit revisions do not have any associated increases in permitted emissions and are truly inconsequential in nature. As these administrative revisions have no associated increases in emissions, we find that they will not interfere with any provision of the CAA or EPA regulations as required by section 110(l) of the CAA.

The Department began issuing technical permit revisions when the revised 20.11.41 NMAC, Construction Permits, became effective on January 1, 2014. Since 2014, the Department has issued 13 technical permit revisions in the County. The Department's implementation of the permit revision program, which allows for reduced public notice for administrative and technical revisions, has not resulted in a measured exceedance of the NAAQS and has not shown any interference with reasonable further progress.9 Furthermore, a review of the technical permit revisions issued since 2014 shows that the total annual increases in permitted emissions is less than 1 ton per year for all NAAQS pollutants. In fact, most of the pollutants show no change or an overall decrease in annual emissions as a result of the technical permit revisions issued since 2014. This is consistent with our expectation that the permit revisions and associated public notice requirements will not have adverse impacts on air quality that interfere with attainment or reasonable further progress or any other applicable requirement of the Act.

However, since the technical permit provision potentially allows permittees to conduct changes that may potentially result in up to a one pound per hour increase of a NAAQS pollutant or NMAAQS pollutant, the County is required to follow the public notice requirements provided in 40 CFR 51.161, which requires that the County provide “a notice by prominent advertisement in the area affected.” As written, permittees seeking a technical permit revision are required to provide public notice by sending a letter to designated representatives of recognized neighborhood organizations and associations within one-half mile of the source requesting the modification. This does not meet the federal notice requirements specified in 40 CFR 51.161. The one-half mile radius is not sufficient to constitute a “prominent advertisement” in the “area affected.” The increase in emissions allowed under this provision has the potential to affect an area greater than one-half of a mile. Additionally, there is no way to ensure that all of the individuals living in areas that could be potentially affected by this increase are members of, or represented by, the recognized neighborhood organizations or associations which are required to be notified. For these reasons, we are proposing to conditionally approve the technical permit provision established in Section 28 under CAA section 110(k)(4). The County has committed to making the required changes to the public participation component of this provision within one year from the date this conditional approval becomes final.

Section 29 of the County's submittal addresses permit modification. The SIP previously defined “Modification or To Modify” in section 20.11.41.7(H). The submittal adds a new section entitled “Permit Modification” at 20.11.41.29 which explains that all proposed modifications must comply with all requirements of 20.11.41. Permit modifications must follow the same permitting procedures and meet the same permitting requirements as those required for newly issued Minor NSR permits. We find that the proposed revision clarifies the permit modification process and meets the federal requirements for SIP-approved permitting plans.

Section 30 of the County's submittal addresses permit reopening, revision, and reissuance. The revision gives the Department the authority to reopen, revise, or reissue a permit if any mistakes are found, additional requirements of the CAA or State act are found to apply, the reopening is necessary to ensure compliance with federal or state requirements, or the permittee failed to disclose a material fact to the Department. This revision ensures that the Department has the authority to prevent violations of the CAA in the event that any of the aforementioned events occur. Permit reopening, revision, and reissuance under section 20.1.41.30 would be initiated by the County and is not a permitting mechanism that the permittee can initiate. Therefore, we find that these revisions to section 30 will not affect the ability of the section, or Part 41 overall, to meet the federal requirements for SIP-approved permitting plans.

Section 31 of the County's submittal creates a new type of permit, a general construction permit, in the County's Minor NSR Program. A general construction permit developed by the Department must cover numerous similar sources. Sources allowed to register for coverage under a general permit must be homogenous in terms of operations, processes and emissions, subject to the same or substantially similar requirements, and not subject to case-by-case standards or requirements. As required in 20.11.41.31(B)(3)(a) NMAC, a general construction permit developed by the Department must describe the sources that qualify to register under the general permit. This requirement satisfies the federal requirement 40 CFR 51.160(e) which provides that the SIP must identify the types and sizes of facilities that will be subject to review. Section 31 states that this provision does not apply to major modifications or sources as defined by 20.11.60 NMAC. The Department further clarified in its letter dated April 21, 2016, that permits developed and issued under the general permits programs will not be issued to sources that are defined as major under federal rules and regulations.

The submitted regulation specifically requires that a general permit include monitoring, record keeping and reporting (MRR) requirements appropriate to the source and sufficient to ensure compliance with the general construction permit, ensuring that the provision will be enforceable as required by 40 CFR 51.160(a). The general permit also must contain sufficient terms and conditions to ensure that all sources operating under a general permit will meet all applicable requirements under the Federal Clean Air Act, e.g., NSPS, NESHAPS, and MACT, and all requirements of the SIP. Sources operating under general permits are not allowed to cause or contribute to air contaminant levels in excess of any National or New Mexico Ambient Air Quality Standard. The provision clearly identifies the category of sources that qualify for coverage and provides that a source notifies the Department of its coverage under the program by submitting a complete application to register. The Department shall grant registration to a source only if it submits a complete application and meets the terms and conditions of the general permit. This provision meets all applicable federal requirements and will not interfere with any provision in the CAA or in the EPA regulations.

Section 32 of the County's submittal seeks to establish an accelerated review process. The accelerated review process allows the County to utilize contractors to perform technical review and the drafting of permits provided the applicant and contractor meet certain obligations. The permit applicant has to pay both an accelerated review processing fee and a permit review fee. The County still retains the authority to review the draft permit and ensure that it meets all of the necessary requirements before it is proposed as a draft permit. The permit however does not go through the same public notice procedures as other permits as outlined in 20.11.41.14.B. NMAC and does not meet the minimum requirements of 40 CFR 51.161(b)(1). 40 CFR 51.161 requires that the state or local agency make public the permittee's application and the state or agency's analysis of that application. Section 32 does not require that the application or analysis be posted in a public place. The County has stated that it inadvertently excluded this requirement, and that it is their practice to make the application and analysis available in accordance with 40 CFR 51.161. We are proposing to conditionally approve this section under 110(k)(4). The County has committed to updating this section within one year of this rule becoming final to reflect its practice of making these documents publicly available.10

We are proposing to approve the revisions to the City of Albuquerque—Bernalillo County Minor NSR program submitted on July 26, 2013, as supplemented on April 21, 2016; July 5, 2016; September 19, 2016; and December 20, 2016, that update the regulations to be consistent with federal requirements for Minor NSR permitting, remove a provision that refers to ambient air standards that are unique to the Air Board that no longer exist, and the reference to the State of New Mexico non-methane hydrocarbon standard in 20.11.44 NMAC, Emissions Trading. The EPA has made the preliminary determination that the revisions are approvable because the submitted rules are adopted and submitted in accordance with the CAA and are consistent with the laws and regulations for Minor NSR permitting.

We are proposing to conditionally approve the provisions submitted on July 26, 2013, as supplemented on April 21, 2016; July 5, 2016; September 19, 2016; and December 20, 2016, that establish the accelerated permitting procedures. Additionally, the EPA is proposing to conditionally approve the definition of “conflict of interest” at 20.11.410.7(J) NMAC, permit denial as it relates to conflict of interest at 20.11.41.17(F) NMAC, and Accelerated Review at 20.11.41.32 NMAC, as adopted on July 10, 2013 and submitted on July 26, 2013. We are also proposing to conditionally approve the technical permit revision procedures established in section 28.

Table 4 summarizes the changes made to the County's SIP that are contained in the SIP revisions submitted on July 26, 2013, as supplemented on April 21, 2016; July 5, 2016; September 19, 2016; and December 20, 2016. A summary of the EPA's evaluation of each section and the basis for this action is discussed in Section III of this preamble.

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

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA. There is no burden imposed under the PRA because this action does not contain any information collection activities.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

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

This action does not have tribal implications as specified in Executive Order 13175. There are no requirements or responsibilities added or removed from Indian Tribal Governments. Thus, Executive Order 13175 does not apply to this action. In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it approves a state program.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action proposes to approve state permitting provisions that are consistent with the CAA and disapprove state permitting provisions that are inconsistent with the CAA.

In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register.

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

Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agencies, Washoe County Health District (WCHD) and Clark County Department of Air Quality (CCDAQ), and submitted by the Nevada Division of Environmental Protection (NDEP).

On September 16, 2016 and August 11, 2015, the EPA determined that the submittals for WCHD and CCDAQ, respectively, met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

We approved an earlier version of Rule 010.000 into the State Implementation Plan (SIP) on February 01, 1972 (33 FR 15080) and Rule 040.051 into the SIP on June 18, 2007 (72 FR 33397). The WCHD adopted revisions to the SIP-approved versions on May 26, 2016 and NDEP submitted them to us on August 15, 2016. We approved an earlier version of Rule 26 into the SIP on August 27, 1981 (46 FR 43141). The CCDAQ adopted revisions to the SIP-approved version on December 30, 2008 and May 05, 2015, and NDEP submitted them to us on November 20, 2014 and June 29, 2015, respectively. While we can act on only the most recently submitted version of the rules, we have reviewed materials provided with previous submittals.

Particulate Matter (PM), including PM equal to or less than 2.5 microns in diameter (PM2.5) and PM equal to or less than 10 microns in diameter (PM10), contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the Clean Air Act (CAA or Act) requires states to submit regulations that control PM emissions. WCHD Rule 010.000 was revised to include new definitions, eliminate obsolete definitions and change some existing definitions applicable to Rule 040.051, Wood-Burning Devices. WCHD Rule 040.051 was revised to incorporate requirements from Rule 040.052 (rescinded) and the EPA's New Source Performance Standards (NSPS) for Wood Heaters. CCDAQ Rule 26 was revised to reference the use of EPA Test Method 9 to determine compliance with the visible emissions limits. The EPA's technical support documents (TSDs) have more information about these rules.

SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193). CCDAQ and WCHD regulate areas that are classified as attainment for the 24-hour PM10 National Ambient Air Quality Standards (NAAQS) (see 40 CFR part 81.305). Rule CCDAQ Rule 26 is comparable to other district rules used to enforce a visible emissions limit of 20% opacity and WCHD Rules 040.010 and 040.051 fulfill relevant CAA Best Available Control Measures (BACM) requirements. For these reasons, we believe the rules will not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements.

Guidance and policy documents that we use to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

We are proposing to approve these rules because they are consistent with the relevant policy and guidance regarding enforceability, and SIP relaxations. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that we recommend for the next time the local agency modifies the rules.

As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rules because they fulfill all relevant requirements. We will accept comments from the public on this proposal until April 10, 2017. If we take final action to approve the submitted rules, our final action will incorporate these rules into the federally enforceable SIP.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the CCQAD and WCHD rules described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

• 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 the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

Table 1 lists the rule addressed by this proposal with the date that it was adopted by the local air agency and submitted by the California Air Resources Board.

On April 29, 2000, the submittal for AVAQMD Rule 2200 was deemed by operation of law to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

There are no previous versions of Rule 2200 in the SIP, however, when the District succeeded the South Coast Air Quality Management District (SCAQMD) on July 1, 1997 as the air agency in the Antelope Valley, the SCAQMD rules in effect within the Antelope Valley on that date became AVAPCD Rules, including Rule 2202: “On Road Motor Vehicle Mitigation Options.” On January 20, 1998 the District rescinded Rule 2202 and subsequently replaced it with Rule 2200. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals.

Rule 2200 provides a mechanism for obtaining documentation of emission reductions resulting from trip reduction programs. According to the District, the rule is expected to help reduce volatile organic compound (VOC) and oxides of nitrogen (NOX) emissions by encouraging individuals to select rideshare alternatives to driving alone and by educating employees and the public others about the health impacts of motor vehicle pollution. VOCs and NOX help produce ground-level ozone, and PM, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC and NOX emissions. The EPA's technical support document (TSD) has more information about this rule.

SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193). Further, CAA section 182(d)(1)(B) permits states with severe or extreme nonattainment areas to “submit a revision at any time requiring employers in such area[s] to implement programs to reduce work-related vehicle trips and miles travelled by employees. Such revision shall be developed in accordance with guidance issued by the Administrator pursuant to [the CAA] and may require that employers in such area[s] increase average passenger occupancy per vehicle in commuting trips between home and the workplace during peak travel periods.” 42 U.S.C. 7511a.

Guidance and policy documents that we use to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

“Guidance on Incorporating Voluntary Mobile Source Emission Reduction Programs in State Implementation Plans (SIPs),” Memorandum from Richard D. Wilson, October 24, 1997.

We believe this rule is consistent with CAA requirements and relevant guidance regarding enforceability, and SIP revisions. The rule, however, establishes a framework for documenting emissions reductions from trip reduction programs without requiring any specific trip reduction programs. In addition, the submittal does not contain a good faith estimate of emission reductions. For these two reasons, it is not appropriate to credit this rule with emission reductions in a SIP at this time. The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rule because we believe it fulfills all relevant requirements. We will accept comments from the public on this proposal until April 10, 2017. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate this rule into the federally enforceable SIP.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the AVAQMD the rule described in Table 1 of this notice. The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at U.S. Environmental Protection Agency Region IX (Air-4), 75 Hawthorne Street, San Francisco, CA, 94105-3901.

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

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

• 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 disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

1. Submitting CBI. Do not submit this information to the EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

The Waste Isolation Pilot Plant (WIPP) was authorized in 1980, under section 213 of the DOE National Security and Military Applications of Nuclear Energy Authorization Act of 1980 (Pub. L. 96-164, 93 Stat. 1259, 1265), “for the express purpose of providing a research and development facility to demonstrate the safe disposal of radioactive wastes resulting from the defense activities and programs of the United States.” The WIPP is a disposal system for transuranic (TRU) radioactive waste. Developed by the DOE, the facility is located near Carlsbad in southeastern New Mexico. TRU waste is emplaced 2,150 feet underground in an ancient layer of salt that will eventually “creep” and encapsulate the waste containers. The WIPP has a total capacity of 6.2 million cubic feet for TRU waste.

The 1992 WIPP Land Withdrawal Act (LWA; Pub. L. 102-579) 1 limits radioactive waste disposal in the WIPP to TRU radioactive wastes generated by defense-related activities. TRU waste is defined as waste containing more than 100 nano-curies per gram of alpha-emitting radioactive isotopes, with half-lives greater than twenty years and atomic numbers greater than 92. The WIPP LWA further stipulates that radioactive waste shall not be TRU waste if such waste also meets the definition of high-level radioactive waste, has been specifically exempted from regulation with the concurrence of the Administrator, or has been approved for an alternate method of disposal by the Nuclear Regulatory Commission. The TRU radioactive waste proposed for disposal in the WIPP consists of materials such as rags, equipment, tools, protective gear and sludges that have become contaminated during atomic energy defense activities. The radioactive component of TRU waste consists of man-made elements created during the process of nuclear fission, chiefly isotopes of plutonium. Some TRU waste is contaminated with hazardous wastes regulated under the Resource Conservation and Recovery Act (RCRA; 42 U.S.C. 6901-6992k). The waste proposed for disposal at the WIPP derives from federal facilities across the United States, including locations in California, Colorado, Idaho, New Mexico, Nevada, Ohio, South Carolina, Tennessee and Washington.

The WIPP must meet the EPA's generic disposal standards at 40 CFR part 191, subparts B and C, for high-level and TRU radioactive waste. These standards limit releases of radioactive materials from disposal systems for radioactive waste, and require implementation of measures to provide confidence for compliance with the radiation release limits. Additionally, the regulations limit radiation doses to members of the public, and protect ground water resources by establishing maximum concentrations for radionuclides in ground water. To determine whether the WIPP performs well enough to meet these disposal standards, the EPA issued the WIPP Compliance Certification Criteria (40 CFR part 194) in 1996. The Compliance Certification Criteria interpret and implement the disposal standards specifically for the WIPP site. They describe what information the DOE must provide and how the Agency evaluates the WIPP's performance and provides ongoing independent oversight. The EPA implemented its environmental radiation protection standards, 40 CFR part 191, by applying the Compliance Certification Criteria to the disposal of TRU radioactive waste at the WIPP. For more information about 40 CFR part 191, refer to Federal Register documents published in 1985 (50 FR 38066-38089, Sep. 19, 1985) and 1993 (58 FR 66398-66416, Dec. 20, 1993). For more information about 40 CFR part 194, refer to Federal Register documents published in 1995 (60 FR 5766-5791, Jan. 30, 1995) and in 1996 (61 FR 5224-5245, Feb. 9, 1996).

Using the process outlined in the Compliance Certification Criteria, the EPA determined on May 18, 1998 (63 FR 27354), that the DOE had demonstrated that the WIPP facility will comply with the Agency's radioactive waste disposal regulations at subparts B and C of 40 CFR part 191. The Agency's certification determination permitted the WIPP to begin accepting transuranic waste for disposal, provided that other applicable conditions and environmental regulations were met. The DOE began disposing of TRU waste at the WIPP in March 1999.

Since the 1998 certification decision (and the 2006 and 2010 recertification decisions), the EPA has conducted ongoing independent technical review and inspections of all WIPP activities related to compliance with the Agency's disposal regulations. The initial certification decision identified the starting (baseline) conditions for the WIPP and established the waste and facility characteristics necessary to ensure proper disposal in accordance with the regulations. Section 8(f) of the amended WIPP LWA requires the EPA to determine every five years if the facility continues to comply with the Agency's disposal regulations. In accordance with that same section, this determination is not subject to standard rulemaking procedures or judicial review. The first recertification process (2004-2006) included a review of all of the changes made at the WIPP since the original 1998 EPA certification decision up until the receipt of the initial CRA in March 2004. Subsequently, the second recertification process (2009-2010) included a review of all the changes made at the WIPP since 2004 and up to the second CRA in March 2009. This third recertification process includes a review of all changes since 2009.

Recertification is not a reconsideration of the decision to open the WIPP, but a process to reaffirm that the facility meets all requirements of the disposal regulations. The recertification process will not be used to approve any new significant changes proposed by the DOE; any such proposals will be addressed separately by the EPA. Recertification will ensure that the WIPP is operated using the most accurate and up-to-date information available and provides documentation requiring the Department to operate to these standards.

In a letter dated January 13, 2017, from the EPA's Director of the Office of Radiation and Indoor Air to the Secretary of Energy (full text of letter provided at the end of this document), the Agency notified the Department that the 2014 CRA for the WIPP is complete. This determination is solely an administrative measure and does not reflect any conclusion regarding the WIPP's continued compliance with the disposal regulations.

This determination was made using a number of the Agency's WIPP-specific guidances; most notably, the “Compliance Application Guidance” (CAG; EPA Pub. 402-R-95-014) and “Guidance to the U.S. Department of Energy on Preparation for Recertification of the Waste Isolation Pilot Plant with 40 CFR parts 191 and 194” (Docket A-98-49, Item II-B3-14; December 12, 2000). Both guidance documents include guidelines regarding: (1) Content of certification/recertification applications; (2) documentation and format requirements; (3) time frame and evaluation process; and (4) change reporting and modification. The Agency developed these guidance documents to assist the DOE with the preparation of any compliance application for the WIPP. They are also intended to assist in the EPA's review of any application for completeness and to enhance the readability and accessibility of the application for the Agency and for the public.

The EPA has been reviewing the 2014 CRA for “completeness” since its receipt. The Agency's review identified several areas of the application where additional information was necessary to perform a technical evaluation. The EPA sent a series of letters to the DOE requesting additional information, and the Department provided documents and analyses in response to these requests. This correspondence is summarized in the enclosure sent with the letter to the Secretary of Energy, and that letter—along with all other completeness-related correspondence—is available in the Agency's public dockets (www.regulations.gov; Docket ID: EPA-HQ-OAR-2014-0609). Links to the electronic docket and additional information are also available at the EPA's WIPP Web site (http://www.epa.gov/radiation/wipp).

Since receipt of the 2014 CRA, the Agency has received a number of public comments from stakeholder groups regarding both the completeness and technical adequacy of the recertification application. In addition to soliciting written public comments, the EPA held a series of public meetings in New Mexico (June 2015) as well as an informal webinar (January 2017) to discuss stakeholders' concerns and issues related to recertification. The Agency received a number of comments pertinent to the 2014 CRA, most notably related to the modeling parameters for performance assessment calculations, issues associated with the February 2014 radiological incident at the facility, and concerns regarding the reported WIPP waste inventory. These comments helped in developing the Agency's requests for additional information from the DOE.

The EPA will now undertake a full technical evaluation of the complete 2014 CRA to determine whether the WIPP continues to comply with the radiation protection standards for disposal. The Agency will also consider any additional public comments and other information relevant to the WIPP's compliance. The Agency is most interested in whether new or changed information has been appropriately incorporated into the performance assessment calculations for the WIPP and whether the potential long-term effects of changes are properly characterized.

If the Agency approves the application, it will set the parameters for how the WIPP will be operated by the DOE over the following five years. The approved CRA will then serve as the baseline for the next recertification. As required by the WIPP LWA, the EPA will make a final recertification decision within six months of issuing its completeness determination.

Pursuant to Section 8(f) of the Waste Isolation Pilot Plant (WIPP) Land Withdrawal Act, as amended, and in accordance with the WIPP Criteria at 40 CFR § 194.11, I hereby notify you that the U.S. Environmental Protection Agency (EPA or “Agency”) has determined that the U.S. Department of Energy's (DOE or “Department”) 2014 Compliance Recertification Application (CRA) for the WIPP is complete. This completeness determination is an administrative determination required under the WIPP Compliance Criteria, which implements the Radioactive Waste Disposal Regulations at subparts B and C of 40 CFR part 191. While the completeness determination initiates the six-month evaluation period provided in section 8(f)(2) of the Land Withdrawal Act, it does not have any generally applicable legal effect. Further, this determination does not imply or indicate that the DOE's CRA demonstrates compliance with the Compliance Criteria or the Disposal Regulations.

Section 8(f) of the amended Land Withdrawal Act requires the EPA to determine every five years if the facility continues to comply with the EPA's disposal regulations. This third recertification process includes a review of all changes made at the WIPP for the five-year period of March 2009 through March 2014.

Under the applicable regulations, the EPA may recertify the WIPP only after the Department has submitted a complete application (see 40 CFR § 194.11). The DOE submitted the CRA on March 26, 2014. On September 29, 2014, the Agency began its official review to determine whether the application was complete. Shortly thereafter, the EPA began to identify areas of the 2014 CRA that required supplementary information and analyses. In addition, the Agency held informal public meetings on the CRA in Carlsbad and Albuquerque, NM in June 2015. As a result of these meetings, the Agency received public comments and identified areas where additional information was needed for the EPA's review. A final webinar relating to this completeness evaluation—accessible online by any interested individuals (and with hosting locations in Carlsbad and Albuquerque, NM)—was held on January 12, 2017.

The Agency identified completeness concerns in a series of letters and correspondence to successive managers and their staff at the DOE's Carlsbad Field Office (CBFO) during the completeness review period. This correspondence is summarized on the enclosed list.

All completeness-related correspondence has been placed in the public docket related to the 2014 CRA on www.regulations.gov (Docket ID#: EPA-HQ-OAR-2014-0609). This information also is available via the EPA's WIPP website (https://www.epa.gov/radiation/certification-and-recertification-wipp).

The Agency has been conducting a preliminary technical review of the CRA since its submittal and has provided the DOE with relevant technical comments on an ongoing basis. Though the EPA has made a determination of completeness, the Agency will continue its technical review of the 2014 CRA, and will convey further requests for additional information and analyses as needed. The EPA will issue its compliance recertification decision, in accordance with 40 CFR part 194 and part 191, subparts B and C, after it has thoroughly evaluated the complete CRA and considered relevant public comments. The public comment period on our completeness determination will remain open for 30 days following the publication of this letter in the Federal Register.

Thank you for your cooperation during our review process. Should your staff have any questions regarding this request, they may contact Tom Peake at (202) 343-9765 or [email protected].

This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 17-13, adopted and released on February 23, 2017. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., CY-A257, Washington, DC 20554. This document will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

This Notice of Proposed Rulemaking may result in new or revised information collection requirements. If the Commission adopts any new or revised information collection requirements, the Commission will publish a notice in the Federal Register inviting the public to comment on such requirements, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission will seek specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

1. In this Notice of Proposed Rulemaking (NPRM), we propose to authorize television broadcasters to use the “Next Generation” broadcast television (Next Gen TV) transmission standard associated with recent work of the Advanced Television Systems Committee (ATSC 3.0) on a voluntary, market-driven basis, while they continue to deliver current-generation digital television (DTV) broadcast service, using the “ATSC 1.0 standard,” to their viewers. ATSC 3.0 is being developed by broadcasters with the intent of merging the capabilities of over-the-air (OTA) broadcasting with the broadband viewing and information delivery methods of the Internet, using the same 6 MHz channels presently allocated for DTV. According to a coalition of broadcast and consumer electronics industry representatives that has petitioned the Commission to authorize the use of ATSC 3.0, this new standard has the potential to greatly improve broadcast signal reception, particularly on mobile devices and television receivers without outdoor antennas, and it will enable broadcasters to offer enhanced and innovative new features to consumers, including Ultra High Definition (UHD) picture and immersive audio, more localized programming content, an advanced emergency alert system (EAS) capable of waking up sleeping devices to warn consumers of imminent emergencies, better accessibility options, and interactive services. With today's action, we aim to facilitate private sector innovation and promote American leadership in the global broadcast industry.

2. On April 13, 2016, America's Public Television Stations, the Advanced Warning and Response Network Alliance, the Consumer Technology Association, and the National Association of Broadcasters filed a joint petition for rulemaking asking the Commission to allow local television stations to adopt the Next Gen TV broadcast transmission standard, ATSC 3.0, on a voluntary, market-driven basis, while continuing to deliver current-generation DTV broadcast service using the ATSC 1.0 transmission standard to their communities of license. Petitioners state that allowing broadcasters to use this additional broadcast transmission standard, the “physical layer” of ATSC 3.0, will make more efficient use of spectrum, allow consumers to enjoy new features and higher quality picture and sound, and enable broadcasters to bring innovative new services and data delivery to homes and communities. They state that on top of this new physical layer, IP transport will allow new services and capabilities to be provided to consumers much more rapidly, and will permit seamless integration with other IP-based services and platforms. On April 26, 2016, the Media Bureau issued a Public Notice seeking comment on the Petition. The Commission received 35 comments and 14 replies to the Petition.

3. Commenters supporting the Petition include broadcasters, equipment manufacturers, and tower companies. These commenters agree that authorizing use of the Next Gen TV transmission standard associated with ATSC 3.0 will allow broadcasters to offer innovative technologies and services to consumers, such as UHD picture and immersive audio, improved over-the-air reception, IP-based transport streams, enhanced mobile capability, more localized content, better accessibility options, and advanced emergency alerting. The potentially life-saving advancements in emergency alerting will include geo-targeting of emergency alerts to tailor information for particular communities and enhanced datacasting to provide videos, photos, maps, floorplans, and other critical data to law enforcement, first responder, and emergency management organizations. Advanced emergency alerting will also include the capability to “wake up” receivers to alert consumers to sudden emergencies and disasters, such as tornadoes and earthquakes. Other industry stakeholders, including AT&T, CTIA, DISH, the National Cable & Telecommunications Association, and public interest groups, offer support for broadcaster innovation, but ask the Commission to ensure that multichannel video programming distributors (MVPDs) and their customers are not burdened with new carriage obligations or costs on account of the deployment of ATSC 3.0-based transmissions; that the deployment of ATSC 3.0-based stations does not have any impact on the broadcast television incentive auction, the post-auction repacking process, or the post-repacking 600 MHz frequency environment; and that broadcasters continue to meet their public interest obligations regardless of the technology used to deliver broadcast signals.

4. As requested by the Petitioners, we propose to authorize the ATSC 3.0 transmission standard as an optional standard that can be used by television licensees on a voluntary basis while they continue to deliver current generation ATSC 1.0 service to their communities. We also propose to incorporate by reference into our rules ATSC A/321:2016 “System Discovery and Signaling” (A/321), which is one of the two components of the “physical layer” of the ATSC 3.0 standard. According to the Petitioners, this layer of the standard points to the RF characteristics of an ATSC 3.0 transmission, which “determines interference and coverage.” We seek comment on these proposals and on whether it is necessary to incorporate this or any other parts of the ATSC 3.0 standard aside from A/321 into our rules at this time.

5. According to the Petitioners, the ATSC 3.0 standard is split into multiple individual parts under a unifying parent standard. It is structured as three layers that roughly correspond to a subset of the layers found in the Open Systems Interconnection seven-layer model (OSI) commonly used to characterize and standardize telecommunications systems. The three layers of the ATSC 3.0 standard are (1) the physical layer, (2) the management and protocols layer, and (3) the applications and presentation layer. Each component of the standard fits into only one layer of the system, making it possible to develop and update each part independently. The physical layer is the portion of the system that includes the definition of the RF waveform used in ATSC 3.0, as well as the coding and error correction that determine the robustness of the signal to noise and interference. The management and protocols layer organizes data bits into streams and files and establishes the protocol for the receiver to direct those streams to the proper destinations. The applications and presentation layer includes audio and video compression technologies, captions and descriptive audio, emergency alerts, parental controls, interactive applications, and how the station is displayed to the viewers.

6. The Petitioners seek the approval only of the ATSC A/321 standard into our rules. They argue that A/321 is the only part of the ATSC 3.0 standard that needs to be approved by the Commission in order to assure a stable and predictable RF operating environment. If we decide to authorize television broadcasters to use ATSC 3.0, we propose that it is necessary to approve A/321 at a minimum and to incorporate it by reference into our rules. We seek comment on this proposal.

7. LG and others suggest that we also may need to incorporate A/322:2016 “Physical Layer Protocol” (A/322), the other component of the ATSC 3.0 physical layer, into our rules because it completes the description of the core RF waveform used by the standard. At the time that the Petition was filed, A/321 was the only part of the ATSC 3.0 physical layer that had been ratified by the ATSC. Subsequent to the Petition, the ATSC has also ratified the A/322 part of the ATSC 3.0 physical layer. As discussed below, LG requests the incorporation of A/322 into our rules in order to ensure that broadcasters will have the flexibility to operate certain types of single frequency networks. LG further notes that by addressing the entire physical layer (both ATSC A/321 and A/322) in one rulemaking, the Commission can avoid the need for a future, separate rulemaking to authorize use of A/322. We seek comment on whether we should incorporate A/322 into our rules. We also seek input on what the benefits or drawbacks would be to incorporating it into our rules. We also seek comment on whether the Commission should incorporate any additional details of the ATSC 3.0 technology into FCC regulations. If so, what specific components of the standard should we incorporate and why?

8. Local simulcasting is a key component of the Petition's proposal for the voluntary use of the ATSC 3.0 transmission standard. ATSC 3.0 service is not backward-compatible with existing TV sets/receivers (which have only ATSC 1.0 and analog tuners). This means that consumers will need to buy new TV sets or converter equipment to receive ATSC 3.0 service. Local simulcasting would enable broadcasters to provide both ATSC 3.0 and ATSC 1.0 service to viewers (without the need for an additional allocation of spectrum to broadcasters), thereby reducing the disruption to consumers that may result from ATSC 3.0 deployment. Specifically, under the Petition's local simulcasting proposal, each television broadcaster choosing to broadcast its signal in ATSC 3.0 format from its current facility will arrange for another television station (i.e., a “host” station) in its local television market to “simulcast” its video programming in ATSC 1.0 format in order to mitigate disruption to over-the-air viewers. As discussed in more detail below, the Petition also seeks, for purposes of broadcast carriage rights, to use local simulcasting as an alternate means for Next Gen TV broadcasters to deliver a good quality ATSC 1.0 signal to MVPDs that cannot receive and process the broadcaster's ATSC 3.0 signal.

9. The Petition seeks one rule change to authorize its local simulcasting proposal. Under section 73.624(b) of the Commission's Rules, each television licensee must broadcast one free-to-air DTV signal in at least standard-definition (SD) quality. The Petition asks us “to specify that this requirement may be accomplished by stations deploying Next Generation TV by (1) broadcasting at least one free-to-air Next Gen TV signal and (2) arranging for the simulcast of that signal in the current DTV standard on another broadcast facility . . . .” The Petition also states that local simulcasting “agreements would be subject to the Commission's existing rules and policies as to licensee responsibility and control.” We address below a number of issues related to the Petitioner's proposal regarding local simulcasting. Among other things, we propose to require local simulcasting as a condition to offering ATSC 3.0, seek comment on whether simulcast channels should be separately licensed as second channels of the originating stations or treated as multicast streams of the host stations, and seek comment on whether we should adopt signal coverage or quality requirements for local simulcasts.

10. We propose to require Next Gen TV broadcasters to simulcast their ATSC 3.0 stream in ATSC 1.0 format, as proposed in the Petition, to ensure that viewers maintain access to the station during the period when broadcasters are voluntarily implementing ATSC 3.0 service. We seek comment on this proposal, including whether such a mandate is necessary. We assume that, for purposes of the Petitioners' local simulcasting proposal, a “simulcast” means a stream with identical content to the video programming aired on the originating station's primary ATSC 3.0 stream, but we seek comment on this assumption and whether it is an appropriate definition for “simulcast” for purposes of our rules. If the simulcast content will not be identical to the originating station's primary video programming stream, we ask commenters to explain the reasons for any deviations in content and/or format (i.e., high definition (HD) versus SD) and the impact of such deviations on television viewers and the regulatory implications. To what extent do broadcasters intend to simulcast their subchannels (in addition to their primary stream), so that consumers can continue to receive this programming?

11. We also propose to require that Next Gen TV broadcasters ensure that at least one free ATSC 3.0 video stream is available at all times throughout the ATSC 3.0 coverage area and, as discussed below, that such ATSC 3.0 signal be at least as robust as a comparable DTV signal to ensure that viewers within the protected coverage area continue to receive service at the current DTV protection levels. We seek comment on these proposals and whether any other requirements should be imposed on the ATSC 3.0 transmission stream as part of local simulcasting. Because ATSC 3.0 broadcasters will have the ability to broadcast more robust signals, which could effectively expand their consumer base beyond the current comparable DTV coverage area or provide coverage to areas that were previously unserved due to terrain-limited propagation conditions within the contour, we seek comment on how we should treat these expanded areas.

12. We seek comment on whether to require simulcasting agreements to be filed with the Commission, as proposed by the Petition. If so, should the Commission have a role in evaluating individual simulcasting agreements? We also seek comment on whether we should require certain provisions to be included in local simulcasting agreements and, if so, what requirements we should adopt.

13. Apart from the host station model set forth in the Petition, we ask commenters to address other potential deployment alternatives that might accelerate adoption of the ATSC 3.0 standard. For example, during the marketplace conversion to the new standard, should we consider allowing broadcasters to use vacant in-band channels remaining in a market after the incentive auction repack to serve as temporary host facilities for ATSC 1.0 or ATSC 3.0 programming by multiple broadcasters?

14. We seek comment on what license modifications would be needed for a television broadcaster to convert its current ATSC 1.0 facility to a facility transmitting ATSC 3.0 signals. At a minimum, we believe that the broadcaster would need to modify its TV station service class for its broadcast facility so that we can track and make publicly available information about the type of broadcast service provided by stations during a potential Next Gen TV transition. We propose that these modifications be treated as minor modifications to the license. We seek comment on these issues. Are other facility changes required to convert a station from ATSC 1.0 to ATSC 3.0 transmissions?

15. Further, we seek comment on whether, as a regulatory matter, simulcasts should be separately licensed as second channels of the originating stations or treated as multicast streams of the host stations. Or should broadcasters be able to choose between the two approaches? Under a licensed simulcast approach, simulcast arrangements could be implemented via temporary channel sharing agreements (following the existing “channel sharing” model) between the licensee of the originating station and that of the host station. For example, a Next Gen TV broadcaster might choose to deploy ATSC 3.0 service by converting its current facility to broadcast in ATSC 3.0 and obtaining a temporary channel sharing license to share a host station's channel during a potential Next Gen TV transition period in order to broadcast its simulcast in ATSC 1.0 (from the host's facility). Similarly, a Next Gen TV broadcaster might choose to deploy ATSC 3.0 service by continuing to broadcast in ATSC 1.0 from its existing facility and obtaining a temporary channel sharing license to share a host station's channel during a potential Next Gen TV transition period in order to broadcast its simulcast in ATSC 3.0 (from the host's facility). Under this approach, the ATSC 1.0 and ATSC 3.0 signals would be two separately licensed channels of the originating station. This would be similar to the DTV transition, when both analog and digital signals were licensed by the Commission.

16. If we adopt a licensed simulcasting approach, we propose to adopt licensing procedures similar to those we adopted for channel sharing. Specifically, we propose to require a station whose program stream will be changing channels to file an application for a construction permit specifying the technical facilities of the host station. We also propose to treat such applications as minor modification applications. Although one of the originating station's program streams will be changing channels, which is a normally a major change under our rules, we believe that treating this change as minor is appropriate because the originating station will be assuming the authorized technical facilities of the host station, meaning that compliance with our interference and other technical rules would have been addressed in licensing the host station. Should we instead issue a separate license for the simulcast stream? If so, should that license application be subject to competing applications? In addition, while a full power station seeking to change its channel normally must first submit a petition to amend the DTV Table of Allotments, we propose not to apply this process in the context of licensed simulcasting. Instead, we propose that, after the application for construction permit is approved, the Media Bureau will amend the Table on its own motion to reflect that shared channels (both ATSC 1.0 and ATSC 3.0) will be allotted to one or more communities. We invite comment generally on this approach and any alternatives we should consider.

17. A licensed simulcast approach appears to have several potential attributes on which we seek comment. First, a licensed approach implemented via temporary channel sharing could allow noncommercial educational television (NCE) stations to serve as hosts to commercial stations' simulcast programming. Because NCE licensees are prohibited by section 399B of the Communications Act, 47 U.S.C. 399B, from broadcasting advertisements, an NCE station would be prohibited from hosting the simulcast programming of a commercial station on a multicast stream under its NCE license. By contrast, it appears that an NCE station would be able to serve as a host to a commercial station if that commercial station is separately licensed. In addition, a licensed simulcast approach could provide certainty that the originating station (and not the host) is responsible for regulatory compliance regarding its simulcast signal, and therefore could give the Commission clear enforcement authority over the originating station in the event of a violation of our rules. A licensed simulcast approach also would allow us to monitor the deployment of ATSC 3.0 service. This information could be important to the Commission in managing the broadcasters' migration to ATSC 3.0 and informing the public about changes in their television broadcast service. If we decide to license simulcast channels as temporary shared channels, how should we implement such an approach? Should we apply existing rules from the channel-sharing context? How long should the terms be for temporary channel sharing licenses?

18. Alternatively, simulcast arrangements could be implemented without additional licensing (beyond conversion of the broadcaster's current facility to operate in ATSC 3.0). Under this approach, a Next Gen TV broadcaster could choose to deploy ATSC 3.0 service by converting its current facility to broadcast in ATSC 3.0 and entering into an agreement with a host station to simulcast its programming in ATSC 1.0 via one of the host's multicast streams or by continuing to broadcast in ATSC 1.0 and entering into an agreement with a host station to simulcast its programming in ATSC 3.0 via one of the host's multicast streams. Thus, under a multicast approach, some broadcasters would be licensed to operate only an ATSC 3.0 facility and others would be licensed to operate only an ATSC 1.0 facility.

19. This multicast approach to simulcasting may minimize administrative burdens and offer more flexibility to the broadcast industry. On the other hand, a multicast approach would appear to preclude NCE stations from serving as hosts to the simulcast programming of commercial stations due to the restrictions of section 399B. In this regard, we seek comment on whether the Commission has authority to waive the restrictions in section 399B. Also, as discussed below, because multicast signals are not entitled to carriage rights, treating simulcast signals as multicast channels under a host's license also raises questions about the carriage rights of such signals, whereas separately licensing such simulcast signals to the originating station would clarify the carriage rights of simulcast signals. In addition, under a multicast approach, the host station, not the originating station, would be subject to the Commission's enforcement authority with respect to the multicast stream.

20. Whether a simulcast signal is treated as a temporarily shared channel separately licensed to the originating station or as a multicast stream under the host's license will affect its regulatory treatment. We seek comment on the regulatory implications, as well as the advantages and disadvantages, of each approach and any others we should consider. Should we be concerned about the enforcement problems created by a multicast approach, particularly with respect to program-related requirements such as children's commercial limits and indecency? If we adopt a multicast approach, should we require stations to report to the Commission the status of their potential transition to ATSC 3.0? Under either the licensed simulcast or multicasting approach, are there circumstances under which the host station would be deemed an Emergency Alert System (EAS) Participant and thus have obligations under the Commission's EAS rules independent of the obligations of the originating station? Should host stations be permitted to satisfy their EAS requirements through the use of the originating station's EAS equipment?

21. We also seek comment on whether there are other procedures we could adopt to streamline the process of simulcasting. For example, to avoid administrative burdens, particularly during the post-incentive auction transition period, should we consider authorizing broadcasters to simulcast via a host station through grants of special temporary authority (STA)? If we were to adopt an approach based on STAs, it is not clear that NCE stations would be permitted to host the simulcast streams of commercial broadcasters or that simulcast transmissions authorized via an STA would have carriage rights. We seek comment on these issues. We observe that STA authorizations and subsequent extensions are limited by statute to 180-day terms. In light of this maximum six-month term for STAs, would an STA approach become too burdensome if a station's potential transition to ATSC 3.0 occurs over a period of several years? How would the use of STAs affect our ability to monitor deployment of ATSC 3.0 service and provide current information about broadcast service to the public through our licensing databases and Web site? Are there any other alternative approaches we should consider, including other approaches that would maintain broadcasters' existing carriage rights and allow NCE licensees to host commercial broadcasters?

22. Impact on OTA Service Coverage of the ATSC 1.0 Signal. We seek comment on the extent to which a Next Gen TV station should be permitted to partner with an ATSC 1.0 host simulcast station with a different service contour or community of license. Even with ATSC 1.0 simulcasting, it is possible, if not likely, that some over-the-air consumers will lose ATSC 1.0 service from stations that begin transmitting in ATSC 3.0. This is because a host simulcast station will have a different service area than the Next Gen TV (originating) station. Accordingly, we seek input on how we should ensure that there is not a significant loss of ATSC 1.0 service by Next Gen TV stations as a result of local simulcasting arrangements. Petitioners argue that Next Gen TV stations should be permitted to arrange for the simulcast of their ATSC 1.0 signal on another broadcast facility “serving a substantially similar community of license.” We seek comment on this proposal. What does it mean to serve “a substantially similar community of license”? Should we require that the ATSC 1.0 simulcast signal at a minimum cover the Next Gen TV station's entire community of license? Should we require the ATSC 1.0 simulcast signal to substantially replicate the Next Gen TV station's noise-limited service contour? If we adopt a “substantial replication” standard, what degree of existing ATSC 1.0 service loss should be permissible? We also seek comment on whether we should phase in more relaxed OTA ATSC 1.0 service restrictions as a potential transition progresses based on the possibility that, as ATSC 3.0 stations become more prevalent, it may become more difficult for Next Gen TV broadcasters to find suitable partners for local simulcasting.

23. We also seek comment on Next Gen TV broadcasters' incentives to maintain existing service coverage or quality to viewers. Should broadcasters be permitted to simulcast in a lower format than that in which they transmit today? What is the financial impact on stations that fail to maintain service coverage or quality?

24. Market-Wide Simulcasting Arrangements. The Petition and other filings in the record appear to contemplate simulcasting arrangements between or among two or more stations in a market, and possibly even entire market deployment plans. We seek comment on such arrangements, and what effect they may have on consumers. Should we look more favorably at arrangements among many or all broadcasters in a market? Should we encourage broadcasters to coordinate and submit for Commission consideration a market-wide plan before starting on individual deployment and simulcasting plans? Do we have the authority to require market-wide simulcast arrangements? What are the potential advantages and disadvantages of a market-based simulcast approach versus simulcasting arrangements between individual stations?

25. NCE/LPTV/Small/Rural Broadcasters. We seek comment on whether small, rural, low-power, and NCE broadcasters would face unique circumstances with regard to the voluntary provision of ATSC 3.0 that we should consider in this proceeding. To what extent are these categories of stations interested in offering ATSC 3.0 services, and what challenges would they face in doing so? How might broadcasters that choose not to provide ATSC 3.0 service (and only provide ATSC 1.0 service) be negatively impacted by a potential Next Gen TV transition? Should we encourage participation by these types of stations in ATSC 3.0 deployment plans to ensure that all broadcasters are afforded an opportunity to participate as Next Gen TV broadcasters or simulcast hosts? Will such broadcasters have difficulty finding simulcast partners in a market? For example, LPTV and Class A stations may find it difficult to host a full power originating station because they must operate at lower power levels and may not be able to adequately prevent loss of service of the full power originating station's ATSC 1.0 simulcast signal. We seek comment on whether and how an LPTV station can be a host simulcast station for a full power originating station given its power limitations and secondary status. Because of difficulties they may face in serving as hosts for full power originating stations, we seek comment on whether to allow LPTV/Class A stations the option to deploy ATSC 3.0 service without simulcasting (i.e., “flash-cut” to ATSC 3.0). If we were to permit LPTV/Class A stations to flash-cut to ATSC 3.0, what impact would the lack of simulcasting have on the viewing public? How should the prevalence of equipment that could receive an ATSC 3.0 signal among consumers in the viewing community affect the ability of LPTV/Class A stations to flash-cut? We also note that, unlike full power stations, LPTV/Class A stations do not have a community of license coverage requirement. If we were to require an LPTV station seeking to deploy ATSC 3.0 service to simulcast, what, if any, kind of community coverage requirement should we impose for the simulcast ATSC 1.0 stream? Instead of a simulcast coverage requirement, should we instead apply the existing 30-mile and contour overlap restrictions that apply to LPTV/Class A moves to LPTV/Class A stations that propose to move their ATSC 1.0 stream as part of their deployment of ATSC 3.0 service?

26. Potential Simulcasting Sunset. If we approve a voluntary, market-driven transition to ATSC 3.0 that implements a simulcast approach, we propose that the Commission decide in a future proceeding when it would be appropriate for broadcasters to stop simulcasting in ATSC 1.0. We seek comment on this proposal. We note that all parties to this proceeding appear to agree that this issue should be handled in a separate proceeding.

27. We propose that MVPDs must continue to carry broadcasters' ATSC 1.0 signals, pursuant to their statutory mandatory carriage obligations, and that MVPDs will not be required to carry broadcasters' ATSC 3.0 signals during the period when broadcasters are voluntarily implementing ATSC 3.0 service. We seek comment on these proposals, the legal basis for according carriage rights in this manner, and how to implement such carriage rights. We also seek comment on issues related to the voluntary carriage of ATSC 3.0 signals through the retransmission consent process.

28. The Petitioners state that MVPDs “should not be obligated to carry” a Next Gen TV broadcaster's ATSC 3.0 signal and that MVPDs could satisfy their obligation to carry a Next Gen TV station's signal by carrying the station's ATSC 1.0 signal. In response to the Petition, MVPDs explain that they are not currently capable of receiving and retransmitting ATSC 3.0 signals and raise numerous questions about MVPD carriage of ATSC 3.0 signals, including the potentially significant costs and burdens associated with MVPD carriage of ATSC 3.0 signals. In particular, MVPDs observe that the ATSC's work on the new 3.0 standard is not yet complete, including the development of recommended standards for MVPD carriage of ATSC 3.0 signals, and that the record is scarce about the practical aspects of MVPD carriage of ATSC 3.0 signals. Therefore, MVPDs ask the Commission to consider the implications for MVPDs before authorizing broadcasters to use the new standard. In particular, MVPDs ask us to ensure that they do not bear the costs associated with carrying ATSC 3.0 signals and ATSC 1.0 simulcasts, even when such carriage occurs pursuant to retransmission consent negotiations.

29. The Communications Act establishes slightly different thresholds for mandatory carriage depending on whether the television station is full power or low-power, or commercial or noncommercial, and also depending on whether carriage is sought by a cable operator or satellite carrier. The must-carry rights of commercial stations on cable systems are set forth in section 614 of the Act, 47 U.S.C. 534. The must-carry rights of full power noncommercial stations on cable systems are set forth in section 615 of the Act, 47 U.S.C. 535. The mandatory carriage rights of full power stations (both commercial and noncommercial) on satellite carriers are set forth in section 338 of the Act, 47 U.S.C. 338.

30. Broadcasters and MVPDs appear to agree on the premise that MVPDs must continue to carry broadcasters' ATSC 1.0 signals, pursuant to their statutory mandatory carriage obligations, and that MVPDs should not be required to carry broadcasters' ATSC 3.0 signals at this time. The Petition, however, does not clearly explain the legal basis for achieving this result. In addition, our legal basis for according mandatory carriage rights to ATSC 1.0 simulcast streams may depend on whether, as discussed above in the Local Simulcasting section, such streams will be temporary shared channels separately licensed to the originating broadcaster, or, alternatively, will be multicast streams broadcast by a “host” licensee. We seek comment on how to implement carriage rights and obligations under both approaches, or under any other approach we should consider.

31. ATSC 1.0 Simulcast Carriage Rights Under a Licensed Approach. First, we seek comment on how to implement mandatory carriage rights of an ATSC 1.0 simulcast stream under a licensed simulcast approach. Under this approach, two stations that have a reciprocal simulcast arrangement would each have licenses for their ATSC 1.0 and ATSC 3.0 streams, but we would accord mandatory carriage rights only to the ATSC 1.0 stream for each station. This approach would be consistent with prior Commission proposals in the channel sharing context and precedent established in the DTV transition. We seek comment on whether these proposals and precedent should be applied in the context of a licensed simulcast approach. For channel sharing outside the context of the incentive auction, the Commission has tentatively concluded that both licensees of a shared channel would have carriage rights and that such carriage rights would be based on the shared location. In the DTV context, the Commission addressed whether cable operators were required under the Communications Act to carry both the digital and analog signals of a station (also referred to as “dual carriage”) during the DTV transition when television stations were still broadcasting analog signals. With regard to licensees that were simultaneously broadcasting analog and digital signals, the Commission declined to establish “dual carriage” rights, deciding that analog signals would have mandatory carriage rights during the DTV transition and that digital signals would not. That is, a broadcaster would choose between must carry or retransmission consent for its analog signal but could only pursue carriage via retransmission consent for its digital signal.

32. Similarly, under the licensed simulcast approach, we could conclude that a broadcaster would choose between must carry or retransmission consent for its ATSC 1.0 signal but could only pursue carriage via retransmission consent for its ATSC 3.0 signal. By relying on the ATSC 1.0 signal for establishing mandatory carriage rights, this approach avoids having to address at this time issues associated with mandatory carriage of ATSC 3.0 signals. Under this approach, a broadcaster's mandatory carriage rights would track its relocated ATSC 1.0 simulcast channel. That is, if a broadcaster converts its current facility to ATSC 3.0 operation and enters a temporary channel sharing arrangement to simulcast its ATSC 1.0 stream at a new location, then the broadcaster's ATSC 1.0 carriage rights would be based on the new shared location. We seek comment on this approach, including its advantages and disadvantages. We also seek comment on the implications of mandatory carriage rights following the ATSC 1.0 simulcast to a new location, especially in situations involving a significant shift in the ATSC 1.0 coverage area or change in transmitter location or community of license. Alternatively, could we find that, although a licensed ATSC 1.0 stream is subject to mandatory carriage, carriage rights would be determined from the location of the originating station, rather than the location of the host station?

33. ATSC 1.0 Simulcast Carriage Rights Under a Multicast Approach. We also seek comment on whether, and if so how, we could implement mandatory carriage rights and obligations for a station's ATSC 1.0 signal under a multicast approach to simulcasting. We note that the Commission does not require cable operators to carry any more than one programming stream of a digital television station that multicasts. Accordingly, we seek comment on the legal basis for requiring mandatory carriage of a station's ATSC 1.0 simulcast stream if that stream is broadcast by a host station as one of its multicast streams. For purposes of this discussion, take the example of a reciprocal simulcast arrangement between two stations. That is, if Station A is licensed on channel 5 and Station B is licensed on channel 9, Station A would transmit on channel 5 two programming streams in ATSC 1.0 (its own and Station B's simulcast), while Station B would transmit on channel 9 two programming streams in ATSC 3.0 (its own and Station A's simulcast). There appears to be no question that Station A in this example would retain carriage rights for its ATSC 1.0 signal, however, there is a question as to whether Station B, which is transmitting in ATSC 3.0 on its licensed channel, would be entitled to must carry rights for its ATSC 1.0 simulcast stream, which is being transmitted as a multicast stream by Station A. This is because the Commission has determined that only a station's primary stream is entitled to mandatory carriage and that multicast streams are not entitled to mandatory carriage and because Station B's ATSC 1.0 stream is not being transmitted on its licensed channel.

34. We seek comment on whether we could accord carriage rights to an ATSC 1.0 simulcast that is being transmitted as a multicast stream of a host station. Is there is a legal basis for shifting the carriage obligation from the licensed ATSC 3.0 stream to the simulcast ATSC 1.0 stream? The record reflects that MVPDs may not have the technical capability to receive or retransmit ATSC 3.0 signals for some time during a potential transition to ATSC 3.0, and that ATSC 3.0 signals could occupy more bandwidth than ATSC 1.0 signals. Accordingly, as discussed below, we believe that carriage of ATSC 3.0 signals should be voluntary and driven by marketplace negotiations between broadcasters and MVPDs. Can we interpret the statute to require broadcasters to deliver their signals to MVPDs in a manner that minimizes burdens for MVPDs? Could we find that a Next Gen TV broadcaster must effectuate the carriage rights of its ATSC 3.0 signal by delivering an ATSC 1.0 signal to the MVPD via local simulcasting or some other means? Under this approach, do we need to define a “good quality” digital television signal at the cable system's principal headend for purposes of carriage? In order to use the ATSC 1.0 simulcast to effectuate the carriage rights of its ATSC 3.0 signal, should we require the ATSC 1.0 simulcast and the ATSC 3.0 signal to have identical content?

35. Mandatory Carriage of ATSC 3.0 Signals. We note that consideration of technical issues regarding cable carriage of the ATSC 3.0 signal is still ongoing at the ATSC Working Group. Given that ATSC 3.0 signals would not be accorded mandatory carriage rights under our proposals, and because of the current uncertainty about how MVPDs would carry ATSC 3.0 signals as a technical matter, we tentatively conclude that it is premature to address questions related to the mandatory carriage of ATSC 3.0 streams at this stage. We seek comment on this tentative conclusion.

36. Required Notice to MVPDs of ATSC 3.0 Deployment/ATSC 1.0 Simulcast. We seek comment on the notice that Next Gen TV broadcasters that have elected must-carry rights must provide to MVPDs prior to deploying ATSC 3.0 service and arranging for an ATSC 1.0 simulcast. The Petition proposes that must-carry broadcasters should give notice to all MVPDs at least 60 days in advance of simulcasting in ATSC 1.0 format (i.e., relocating ATSC 1.0 streams to another facility). MVPDs express concern about the adequacy of such notice. We seek comment on what appropriate notice would be.

37. We seek comment on what the notice to MVPDs should contain. We note that in the Channel Sharing NPRM, the Commission proposed a number of notice requirements on stations participating in channel sharing agreements (CSAs). We proposed that stations participating in CSAs must provide notice to those MVPDs that: (1) No longer will be required to carry the station because of the relocation of the station; (2) currently carry and will continue to be obligated to carry a station that will change channels; or (3) will become obligated to carry the station due to a channel sharing relocation. We also proposed that the notice contain the following information: (1) Date and time of any channel changes; (2) the channel occupied by the station before and after implementation of the CSA; (3) modification, if any, to antenna position, location, or power levels; (4) stream identification information; and (5) engineering staff contact information. In addition, we proposed that stations be able to elect whether to provide notice via a letter notification or provide notice electronically, if pre-arranged with the relevant MVPD. We seek comment on whether we should adopt requirements modeled on these proposals in this proceeding. If not, we seek comment on how the requirements we adopt should differ and why. We also seek comment on how broadcasters will deliver their signals to MVPDs that carry the station if the broadcaster's ATSC 1.0 simulcast does not deliver a good quality signal to the headend; for example, will they use some alternate means, such as fiber or microwave?

38. Voluntary Carriage of ATSC 3.0 Signals Through Retransmission Consent. We also seek comment on issues related to the voluntary carriage of ATSC 3.0 signals through the retransmission consent process. The Petitioners contemplate that, at some future time, MVPDs will want to negotiate for carriage of ATSC 3.0 signals via retransmission consent so that MVPDs can offer their customers the improved service and new features associated with ATSC 3.0 service. As discussed above, MVPDs claim that they are not prepared to carry ATSC 3.0 signals at this time. MVPDs, therefore, express concern that broadcasters may use the retransmission consent process to compel MVPDs to upgrade their equipment before they are ready to do so in order to carry ATSC 3.0 signals. They have expressed concern about the costs associated with carriage of ATSC 3.0 signals and that, even if ATSC 3.0 carriage is deemed “voluntary,” Next Gen broadcasters will use their “leverage” to require MVPD ATSC 3.0 carriage (such as by tying ATSC 3.0 carriage to ATSC 1.0 carriage). In response, broadcasters reassert that MVPDs will not be forced to carry ATSC 3.0 signals. Broadcasters also argue that larger MVPDs, such as AT&T, do not lack negotiating power in retransmission consent negotiations and that retransmission consent agreements for ATSC 3.0 signals should be left to marketplace negotiations. We seek comment on these MVPD concerns, including whether and/or how the good faith rules concerning retransmission consent should and/or could be applied and/or adapted to address them.

39. Small, Rural, and Capacity-Constrained MVPDs. We seek comment on whether small, rural, and capacity-constrained MVPDs would face unique circumstances with regard to the voluntary provision of ATSC 3.0 that we should consider in this proceeding. To what extent are these categories of MVPDs interested in offering ATSC 3.0 services, and what challenges would they face in doing so? In particular, to what extent, if any, could the retransmission consent process be used by broadcasters to compel MVPDs, particularly smaller MVPDs, to carry an ATSC 3.0 stream as a condition for obtaining carriage of a 1.0 feed? How, if at all, should the Commission's rules address situations in which a small or rural MVPD that receives a broadcast station over-the-air before deployment of ATSC 3.0 service can no longer do so during or after the deployment of ATSC 3.0 service? Will the higher-resolution carriage requirements of ATSC 3.0 come at the expense of channel placement for independent programmers?

40. We also seek comment on what other issues we may need to resolve with regard to the potential carriage of ATSC 3.0 signals given that MVPDs and broadcasters may negotiate such carriage privately via retransmission consent. For example, we seek comment on whether it is appropriate for us to address concerns ATVA has raised about patent royalties that may be associated with ATSC 3.0 service. What equipment would be necessary for an MVPD to carry an ATSC 3.0 stream on a voluntary basis, and should we take those equipment needs into consideration in this proceeding?

41. Alternatively, should we consider prohibiting MVPD carriage of ATSC 3.0 signals through retransmission consent negotiations until the ATSC Specialist Group on Conversion and Redistribution of ATSC 3.0 Service produces its initial report, which is expected later this year? What would be the benefits and detriments of such an approach? What would be the legal basis for such a restriction? Would such a prohibition be consistent with section 325(b), 47 U.S.C. 325(b), including the reciprocal good faith bargaining requirements, the First Amendment rights of MVPDs and broadcasters, and section 624(f), 47 U.S.C. 544(f)?

42. The proposed authorization of the ATSC 3.0 transmission standard raises three potential interference issues that we address in this section. First, we consider the issue of interference that ATSC 3.0 signals may cause to ATSC 1.0 (DTV) signals. Second, we consider the issue of interference that DTV or other ATSC 3.0 signals may cause to ATSC 3.0 signals. Next, we consider the issue of interference that ATSC 3.0 signals may cause to non-television services that operate within or adjacent to the TV band. As set forth below, with respect to all of these issues we propose to treat ATSC 3.0 signals as though they were DTV signals with identical technical parameters, largely consistent with the Petitioners' request. We seek comment on whether we should modify any technical parameters based on physical differences between the ways that broadcasters would deliver DTV and ATSC 3.0 signals. Finally, we propose to amend the Post-Transition DTV Station Interference Protection rule to allow updated population inputs in processing applications, consistent with the Commission's decision to use such inputs in the incentive auction and repacking process.

43. The Petitioners submitted a study that includes laboratory measurements of ATSC 1.0 (DTV) and ATSC 3.0 interference signals into six DTV receivers. They claim that the study demonstrates the similarity between the two standards in terms of potential interference to DTV. The Petitioners state that the RF emission mask and effective radiated power limits for the ATSC 3.0 signal should remain unchanged and proposed that no changes be made to the OET Bulletin No. 69 planning factors which define service and interference to a DTV signal. Therefore, for purposes of determining whether an ATSC 3.0 signal interferes with any DTV signals, the Petitioners propose to calculate potential ATSC 3.0 interference to DTV signals using the same methodology and planning factors that the Commission presently uses for calculating potential DTV interference to other DTV signals, which are specified in OET Bulletin No. 69 in our rules.

44. We propose to apply the methodology and planning factors specified in OET Bulletin No. 69 to calculate interference from ATSC 3.0 to DTV signals. We seek comment on whether DTV operations would be sufficiently protected by the OET Bulletin No. 69 methodology and planning factors. Accordingly, we request specific comment and test measurement results that accurately reflect DTV receiver performance in the presence of an interfering ATSC 3.0 signal, either to support or refute the Petitioners' measurements and claims that these two standards may be considered equally in terms of the potential interference to DTV. Given the studies that we have before us, we tentatively conclude that it is appropriate to propose to calculate interference from ATSC 3.0 signals to DTV in accordance with sections 73.622, 73.623 and 74.703 of the Commission's rules and as implemented by OET Bulletin No. 69. We seek comment on this proposal.

45. With respect to protection that ATSC 3.0 signals should receive from other signals, we propose to rely on OET Bulletin No. 69 as well, as Petitioners request. As discussed below, we propose to use the same methodology and planning factors defined for DTV to define the service area of an ATSC 3.0 signal. We also propose to define the ATSC 3.0 interference criteria for co- and adjacent channel interfering signals at the same levels as specified in OET Bulletin No. 69 for DTV signals. We seek comment below on how the Commission should consider implementing these service and interference protections for ATSC 3.0 signals.

46. The DTV transmission standard has fixed transmission and error correction parameters and a single associated minimum signal strength threshold (or SNR threshold) for service. The minimum SNR threshold is used as a basis for determining where a DTV broadcast television station's signal can be received. Whether a DTV broadcast television station is considered to have service and receive protection from interference is determined in part by this threshold. The minimum expected signal level for an ATSC 3.0 signal is much more dynamic. The ATSC 3.0 standard enables broadcasters to choose from multiple modulation and error correction parameters, which have the effect of allowing them to adjust their data rates and corresponding minimum SNR thresholds. Further, ATSC 3.0 enables broadcasters to transmit multiple streams with different parameters simultaneously. This means that, as a practical matter, the actual area where the signal of a television station broadcasting an ATSC 3.0 signal can be received may not necessarily match up to the same area defined by the single minimum SNR threshold of DTV. The signal-to-noise-ratio threshold for the ATSC 3.0 transmission standard will be variable and station-specific, enabling tradeoffs depending on each station's offerings and quality of service goals. In consideration of the dynamic nature of ATSC 3.0 transmission standard, our proposals seek to maintain the status quo with regard to interference protection and provide certainty with regard to calculating the coverage areas of ATSC 3.0 stations.

47. Preservation of Service. Because ATSC 3.0 signals contain multiple video streams each requiring a SNR threshold, we propose to require Next Gen TV broadcasters to provide at least one free stream comparable to a DTV signal to ensure viewers within the “DTV-equivalent” service area continue to receive programming service at the current DTV protection levels. The ATSC 3.0 transmission standard may enable Next Gen TV broadcasters to provide a programming service of a quality similar to DTV service at an SNR threshold lower than the level specified in OET Bulletin No. 69 for DTV service. We seek comment on how to objectively determine if a Next Gen TV programming stream is similar in quality to DTV. Thus a station should provide at least one ATSC 3.0 video stream that requires a SNR threshold equal or less than that needed for coverage at a level specified in OET Bulletin No. 69 for DTV service, where a lower SNR threshold indicates a possibly more robust transmission. In other words, a station providing a mobile video stream requiring a minimum SNR less than specified in OET Bulletin No. 69 would satisfy this requirement. We envision this to be a benefit to broadcasters who elect to offer mobile streams while avoiding potential redundancies in their overall data stream, by not penalizing those stations wishing to deploy mobile service without requiring provision of two identical program streams for both mobile and household reception in the same areas. We seek comment on this proposal and how to define which types of Next Gen TV signals could be considered comparable to DTV signals. Requiring one comparable free video stream will afford broadcasters the flexibility to devote remaining resources to enhanced services such as UHD without affecting their underlying coverage calculations, as requested by the Petitioners, while ensuring that all viewers predicted to receive Next Gen TV signals will have at least one free video stream available to them. We seek comment on what rules changes, if any, would be necessary to implement this proposal.

48. Next Gen TV Service Area. Considering the approach to broadly treat DTV and Next Gen TV interference equally, the Commission's convention would be first to define the area subject to calculation, which is the noise-limited contour of the station. Within this contour, the station's service area is determined considering terrain, existing interference, and population distribution above a minimum field strength threshold that is derived from the planning factors given in OET Bulletin No. 69. We propose to define a “DTV-equivalent” service area for a station transmitting in ATSC 3.0 using the methodology and planning factors defined for ATSC 1.0 in OET Bulletin No. 69. This means that for a UHF Next Gen TV station, the “DTV-equivalent” service area would be defined at 41 dBμV/m plus a dipole adjustment factor. We seek comment on the use of a single service threshold to define this “DTV-equivalent” service area. Should the definition of a “DTV-equivalent” service area specify both a minimum field strength and data rate or is the specification of a minimum field strength sufficient to ensure an acceptable data rate?

49. To the extent that commenters propose alternative definitions of service area for stations transmitting in ATSC 3.0 signals, we specifically solicit technical justification of why the definition should differ from that of the existing ATSC 1.0 service and OET Bulletin No. 69. Manhattan Digital notes the lack of real world testing of coverage comparisons between ATSC 1.0 and ATSC 3.0 and questions whether the Commission would grant sufficient power increases to restore lost coverage. GatesAir and other equipment manufacturers submitted ATSC 3.0 field test results that showed equivalent coverage area thresholds as ATSC 1.0 when an ATSC 3.0 receiver was stationary and using comparable reception equipment.

50. Additionally, the service threshold set by OET Bulletin No. 69 is based on several planning factors that may not be applicable to newer Next Gen TV receivers and deployment characteristics. We seek comment on whether OET Bulletin No. 69 planning factors should be updated or supplemented as they pertain to Next Gen TV to reflect current broadcast reception equipment and conditions, particularly given the Petitioners' stated additional use cases of mobile and indoor reception. Generally, we seek comment on appropriate values for OET Bulletin No. 69 planning factors for Next Gen TV.

51. Interference Protection. We propose to define a protection threshold for Next Gen TV that would provide an equivalent level of protection as a DTV signal. Under this approach, an ATSC 3.0 signal would be protected as defined in OET Bulletin No. 69. As a practical matter, co-channel interference for DTV is presently a nonlinear function designed to approximate the performance of test receivers when the ATSC 1.0 standard was under development. We seek comment on whether this same nonlinearity would apply to Next Gen TV receivers in the presence of co-channel interference. Additionally, we acknowledge that Next Gen TV may have multiple video streams, some of which may not be sufficiently protected from interference at a single threshold which was designed specifically to protect DTV signals. Next Gen TV broadcasters that choose to offer higher capacity, i.e. less robust, programming within their “DTV-equivalent” coverage areas may not be protected from interference at this threshold. Next Gen TV broadcasters may also choose to offer lower capacity, i.e. more robust, programming that permits signal to noise ratio thresholds below the DTV threshold. This could effectively expand their consumer base beyond the current “DTV-equivalent” service area or provide coverage to areas that were previously unserved due to terrain-limited propagation conditions within the contour. Should these areas be given interference protection? We seek comment on this approach and alternative threshold protection approaches that could be better suited to ATSC 3.0.

52. Should ATSC 3.0 signals only be protected in areas where their signal strength reaches a single “DTV-equivalent” minimum level or should protections be provided for such signals within their “DTV-equivalent” service contour that fall below the single service threshold but offer a more robust service? Should interference protections be provided for Next Gen TV signals within the “DTV-equivalent” service contour which require alternative adjacent channel D/U ratios for interference protection? Have there been advancements in receiver performance that would warrant the Commission to consider alternative the adjacent channel D/U ratios for ATSC 3.0 receivers? Noting the ATSC A/73 standard for DTV receivers, should the Commission adopt a 33 dB, or some higher or lower threshold for adjacent channel interference, or is the existing 26 to 28 dB threshold for DTV (depending on whether upper- or lower-adjacent) prescribed in our rules more appropriate? If interference protection is to be afforded to Next Gen TV profiles other than the “DTV-equivalent” service, what should those interference protection levels be?

53. The last interference issues that we must consider concern those related to interference between ATSC 3.0 transmissions and other services, such as non-broadcast services, that operate within or adjacent to the TV band. We seek comment on whether and how we should address the impact ATSC 3.0 signals could have on these other services and how these services could impact ATSC 3.0 signals.

54. Other Services that Operate in the TV Band. We seek comment on whether, in authorizing the ATSC 3.0 transmission standard, there would be any interference-related issues that arise with respect to services and operations in the TV Band other than full-power, Class A, LPTV and TV translator television stations. If so, what services are impacted and how should the Commission address such interference? To what extent would authorization of the ATSC 3.0 transmission standard raise interference concerns regarding Part 22 or Part 90 services? Would ATSC 3.0 transmissions cause any additional interference to these services, or alternatively should ATSC 3.0 transmissions receive any protections in addition to those afforded today to DTV? Under our existing rules, low-power auxiliary station (LPAS) devices and unlicensed wireless microphones must protect broadcasting operations (i.e., those that transmit using ATSC 1.0), and are by rule limited to operations at locations at least 4 kilometers outside the protected contours of co-channel TV stations. Licensed wireless microphone operations are also permitted closer to TV stations, including inside the TV contours, if certain specified conditions are met. In addition, white-space devices are required to protect DTV operations by operating outside of DTV contours as specified in the rules. Are any clarifications or modifications to these rules required if we authorize the ATSC 3.0 transmission standard?

55. Other Services that Operate in the Adjacent Bands—the 600 MHz Band and Channel 37. CTIA expressed concern that the Petition's discussion of the ATSC 3.0 transmission standard contained no consideration of the potential interference impact that this new technology could have on wireless operations in the 600 MHz band. CTIA states that the development and enforcement of carefully drawn technical rules is necessary to prevent interference to 600 MHz band operations, and that the inter-service interference (ISIX) rules adopted by the Commission, which were based entirely on the technical characteristics of DTV signals, were developed to minimize interference between TV broadcasting and 600 MHz band operations. The Petitioners respond that it is not possible to test for this interference because the wireless industry has not revealed “what technology wireless carriers will actually deploy in the 600 MHz band,” and argue that there is “no technical reason to believe that ATSC 3.0 creates a higher risk of potential inter-service interference” than ATSC 1.0.

56. The ISIX rules referenced by CTIA were developed for the broadcast incentive auction in the event that some UHF broadcasters would remain in the re-purposed 600 MHz Band creating impairments for the new wireless licensees. At this point in the broadcast incentive auction, there are no impairments to 600 MHz Band wireless licenses that are projected to exist after the post-auction transition period. Therefore, we tentatively conclude there is no need for rules to consider potential interference between Next Gen TV transmissions and the 600 MHz Band service. We seek comment on this tentative conclusion. Alternatively, are more studies needed to fully address any potential interference concerns? If we require broadcasters to “provide interested parties with a clear understanding of how the change to ATSC 3.0 will impact the interference environment in the 600 MHz band” as CTIA requests, what information would be necessary and sufficient to address any potential concerns?

57. We also seek comment on whether there are any potential interference concerns that adoption of ATSC 3.0 transmission standard may raise with respect to either RAS or WMTS operations in Channel 37. Finally, we seek comment on whether any of these issues related to interference to services that operate in adjacent bands would require us to clarify how interference issues between ATSC 3.0 transmissions and these other services would be addressed.

58. We propose to update the Commission's rules regarding acceptable levels of interference resulting from a broadcaster's application for new or modified facilities. Specifically, we propose that, for purposes of evaluating such applications, the Media Bureau should use the latest official U.S. Census statistics, as these population statistics become available and when the Commission is able to incorporate them into the Commission's licensing processing systems. The Commission's rules currently require that in evaluating a broadcaster's application for new or modified facilities, the degree of permissible interference to populations served is to be predicted based on the 2000 census population data. For purposes of the incentive auction and repacking process, however, the Commission established updated inputs for purposes of evaluating interference, including use of the 2010 census population data. We now propose to further update our rules in a manner that is consistent with this approach by permitting the Media Bureau to use the most recent U.S. Census statistics. We propose that the Media Bureau will announce when updated census statistics have been incorporated into our licensing systems and the date upon which such updated inputs will be applied at least 60 days before they are used for application processing purposes. We further propose that the Commission use 2010 census population data after the repacking process for all application compliance evaluations until the Media Bureau announces the date that it will begin using census population data for a different year. Thus, even after the repacking process is complete, any broadcast television service or interference calculations would be based on 2010 U.S. Census statistics, until after 2020, when the next U.S. Census statistics become available and the Media Bureau announces the date of application of such data. We believe that this process and the use of the most current population data incorporated into the Commission's systems will provide more accurate predictions of populations served and benefit the public interest. We seek comment on this proposal.

59. We propose to authorize broadcast television stations to operate ATSC 3.0 Single Frequency Networks (SFN) under our existing Distributed Transmission Systems (DTS) rules with one amendment noted below. While a traditional broadcaster has a single transmission site, and any fill-in service is provided using a separately licensed secondary transmission site that likely uses a different RF channel, a broadcaster using DTS provides television service to its area by two or more transmission sites using an identical signal on the same RF channel, synchronized to manage self-interference. The rules established by the DTS Report and Order describe the authorized service area, maximum service area, station reference point, coverage determination, protection from interference and application requirements for DTS stations.

60. Multiple commenters claim that broadcasters that deploy ATSC 3.0 service will have the ability to efficiently form a SFN, which for the purposes of broadcast television is a term that is synonymous with DTS. Like the DTS network described above, an ATSC 3.0 SFN would provide television service by using two or more transmission sites, using an identical signal on the same RF channel, synchronized to manage self-interference. Accordingly, we tentatively conclude that the rules established to authorize a DTS station generally are adequate to authorize an ATSC 3.0 SFN station, and as such an ATSC 3.0 SFN should be considered a DTS station for the purposes of our rules. We seek comment on this tentative conclusion.

61. We also tentatively conclude that it is not necessary to adopt a specific synchronization standard in order to authorize an ATSC 3.0 SFN. In the DTS Report and Order, the Commission found that it was not necessary for a station to use a specific synchronization system as long as (1) the synchronization used by a station was effective in minimizing interference within the system, (2) otherwise provided service to the population within the station's service area consistent with FCC rules, and (3) complied with the ATSC standard adopted by the FCC. It further noted that this approach avoided implication of any specific intellectual property held by companies participating in the proceeding. Thus, although ATSC had developed the A/110 “ATSC Standard for Transmitter Synchronization,” the Commission determined that it was not necessary to adopt this as the synchronization standard for DTS, and as a result, DTS stations have flexibility with regard to transmitter synchronization. In this proceeding, one commenter, LG Electronics, notes that the standard that would enable an ATSC 3.0 SFN is ATSC A/322:2016 “Physical Layer Protocol.” LG claims that A/322 should be incorporated by reference into the rules along with A/321 to ensure that SFN is authorized. We seek comment above on whether A/322 should be incorporated into our rules. Consistent with our finding in the DTS proceeding, we tentatively conclude that as long as the synchronization used to implement an SFN/DTS minimizes interference within the network and provides adequate service, then there is no need to require a specific synchronization standard. We seek comment on this tentative conclusion.

62. We propose to amend our existing DTS rules to specify that, with regard to ATSC 3.0 transmissions, not only must each transmitter comply with the ATSC 3.0 standard ultimately adopted by the FCC, but all transmitters under a single license must follow the same standard. We tentatively find that a DTS implementation that mixes ATSC 3.0 and ATSC 1.0 would not meet the requirement to be “synchronized” as specified in section 73.626(a) of the Commission's rules, as it would not minimize interference within the system. We seek comment on this tentative conclusion.

63. We propose that television stations transmitting both an ATSC 1.0 and an ATSC 3.0 signal are “television stations” engaged in “broadcasting” as those terms are defined in the Communications Act. Although we do not propose to authorize broadcasters to transmit solely in ATSC 3.0 at this time, we also tentatively conclude that stations transmitting only an ATSC 3.0 signal would be “television stations” engaged in “broadcasting” under the Act.

64. The Petitioners request that the Commission “specify that Next Generation TV transmission is `television broadcasting' in parity with the current DTV standard.” The Act imposes certain obligations and restrictions on stations engaged in “broadcasting,” including the restriction on foreign ownership and the requirements that they provide “reasonable access” to candidates for federal elective office and afford “equal opportunities” to candidates for any public office. Television broadcasters must also make certain disclosures in connection with advertisements that discuss a “political matter of national importance” and must disclose the identity of program sponsors. In addition, among other requirements, television broadcasters must air educational programming for children, limit the amount of commercial material they include in programming directed to children, restrict the airing of indecent programming, and comply with provisions relating to the rating of video programming. The Commission has determined that the definition of “broadcasting” in the Act applies to services intended to be received by an indiscriminate public and has identified three indicia of a lack of such intent: (1) The service is not receivable on conventional television sets and requires a licensee or programmer-provided special antennae and/or signal converter so the signal can be received in the home; (2) the programming is encrypted; and (3) the provider and the viewer are engaged in a private contractual relationship.

65. Based on the description of ATSC 3.0 transmissions in the Petition and in the record, and because we propose to require ATSC 3.0 stations to provide a free, over-the-air service, it appears that ATSC 3.0 transmissions would be intended to be received by all members of the public and therefore would meet the definition of “broadcasting.” Accordingly, as noted above, we tentatively conclude that Next Gen TV stations are “television stations” engaged in “broadcasting” as those terms are defined by the Act. No commenters in response to the Petition take a different position. We seek comment on this tentative conclusion and any alternative views. Is there any basis for determining that ATSC 3.0 transmissions are not “broadcasting”? What would the implications be of such a determination in terms of regulatory obligations and Commission oversight?

66. Assuming we adopt our tentative conclusion that Next Gen TV stations are engaged in “broadcasting” under the Act, they—like all broadcast television licensees—would be public trustees with a responsibility to serve the “public interest, convenience, and necessity.”

67. We propose to apply all of our broadcast rules to Next Gen TV stations including, but not limited to, our rules regarding foreign ownership, political broadcasting, children's programming, equal employment opportunities, public inspection file, main studio, indecency, sponsorship identification, contest rules, CALM Act, the EAS, closed captioning, and video description. Are there any public interest or programming rules that should not apply? Are there any changes to these rules that should be made to accommodate any ATSC 3.0-based services? To what extent will the additional capacity offered through the ATSC 3.0 standard provide opportunities for more diverse programming? While the Petition does not address broadcaster public interest obligations in detail, it states that “[n]o changes are necessary in the Commission's programming-related policies and rules, as those requirements will attach to television licensees regardless of the authorized standard they use to transmit programming to their communities of license.” The Petition further states that licensees implementing ATSC 3.0 technology will “remain simply television broadcasters subject to the Commission's existing regulatory structure.” We request comment generally on this view.

68. Although we decline to initiate a general reexamination of broadcaster public interest obligations at this time, we seek comment on specific consumer issues related to the enhanced capabilities that may be available through the use of ATSC 3.0 transmissions. The Petition claims that the advent of ATSC 3.0 (including the entire suite of ATSC 3.0-related standards and IP-based services that operate on top of the transmission standard) will enable improvements to certain services, including EAS, closed captioning, and video description, but that no changes to the relevant rules are needed to conform them to an environment in which television licensees will transmit in either the ATSC 1.0 or the ATSC 3.0 standard. With respect to EAS, Petitioners argue that ATSC 3.0 will offer significantly enhanced emergency alert capabilities, including the abilities to alert consumers of an emergency even when the receiver is powered off, tailor information for specific geographic areas, and provide enhanced datacasting to serve law enforcement, first responder, and emergency management organizations more efficiently. With respect to closed captioning, Petitioners state that the ATSC 3.0 transmission standard offers a different format for caption data from that used by DTV and that the Commission's rules already anticipate this technology and provide that data in this format is compliant. Finally, Petitioners state that the ATSC 3.0 standard has functionality for video description and additional language support, and can implement these requirements in compliance with the FCC's rules. We invite comment generally on these asserted benefits. We also seek input on the public interest issues discussed above and any others that may result from enhancements or other changes to television broadcasting that may result from the use of Next Gen TV transmissions.

69. Finally, we invite comment on which features of ATSC 3.0-based services will be provided over-the-air to consumers for free and what additional services or features will require a fee. Should broadcasters who choose to use their ATSC 3.0 transmission for a higher format, such as 4K resolution, be required to offer it over-the-air to consumers for free? What features of ATSC 3.0 service will be available only to those with an Internet connection? Which such services or features will be “ancillary services” within the meaning of our rules? If the majority of an ATSC 3.0 station's spectrum/bandwidth is devoted to paid services, are those services “ancillary” under our rules? Are there any services that Next Gen TV broadcasters might offer that would not be ancillary or supplementary services that serve the public interest? What is the potential regulatory significance of an ATSC 3.0-based service that is provided for free versus one that is not?

70. Television receivers manufactured today are not capable of receiving ATSC 3.0 signals. Pursuant to our current rules, however, if a broadcaster were to begin transmitting ATSC 3.0 signals, television receivers would need to include ATSC 3.0 tuners. Specifically, section 15.117(b), the rule implementing the Commission's authority under the 1962 All Channel Receiver Act, states that “TV broadcast receivers shall be capable of adequately receiving all channels allocated by the Commission to the television broadcast service.” We tentatively conclude that a Next Gen TV tuner mandate is not necessary at this time because a potential transition would be voluntary and market-driven, and under our proposal current-generation ATSC 1.0 broadcasting would continue indefinitely. Accordingly, we propose to revise section 15.117(b) to make clear that this rule does not apply to ATSC 3.0. We seek comment on this proposal.

71. Alternatively, we seek comment on whether we should require that new television receivers manufactured after a certain date include the capability to receive ATSC 3.0 signals and if so, when such a requirement should take effect. As a further alternative, we note that it may be possible to upgrade most, if not all, receivers currently being manufactured to allow them to receive ATSC 3.0 signals, but such upgrades would require over-the-air viewers to purchase additional equipment, such as a dongle or other equipment (e.g., a set-top box or gateway device) that can be attached to the receiver's HDMI port, assuming that receiver has an HDMI port. What percentage, if any, of TV receivers manufactured today do not have an HDMI port and therefore are not easily upgradeable to receive ATSC 3.0 transmissions? To account for receivers that do not have HDMI ports, should we require that all TV receivers sold after a specified date have an HDMI port to permit attachment of an external tuner dongle or other equipment (e.g., a set-top box or gateway device) that can receive signals from an OTA antenna? We tentatively conclude that such a requirement is not necessary at this time. The Petitioners assert that “a market-driven approach will ensure that both broadcasters and receiver manufacturers adopt the new transmission standard in response to consumer demand.” We seek comment on whether such a market-based approach will ensure that television receivers capable of receiving ATSC 3.0 signals are available to consumers. What would the costs be for manufacturers to ensure that all television receivers are easily upgradable to receive ATSC 3.0 transmissions, and how quickly could they do so?

72. We seek comment on whether broadcasters should be required to provide on-air notifications to educate consumers about their deployment of Next Gen TV service and simulcasting of ATSC 1.0 service. We seek comment on whether such a requirement could be useful for broadcasters to inform consumers that the stations they view will be changing channels, to encourage consumers to rescan their receivers for new channel assignments, and to educate them on steps they should take to resolve any potential reception issues. The Commission imposed viewer notification requirements during the DTV transition as well as in connection with the incentive auction. Should they be imposed in connection with the use of ATSC 3.0 transmissions? Does the Commission have legal authority to require such on-air notices in this context?

73. If we were to require broadcasters to notify consumers during a potential transition to ATSC 3.0, we invite comment on the requirements we should impose regarding these notifications. How far in advance should we require broadcasters to notify viewers before broadcasters shift their ATSC 1.0 signal to another station's broadcast channel? What form should this notice take—PSAs, crawls, or a combination of both? What information should stations be required to include in the notification?

74. We also seek comment on whether Commission outreach is necessary to those communities affected by a potential transition to ATSC 3.0. Should the FCC's existing call center provide consumer assistance over the phone on matters such as “rescanning” or to help resolve other reception issues? What guidance should the Commission provide through its Web site (www.fcc.gov)? Should the Commission staff prepare maps that would be available online to inform consumers about what station signals are affected by a potential transition to Next Gen TV signals, as it did for the digital transition? We seek comment also on other potential types of Commission outreach and the appropriate timing of such efforts.

75. The Commission has stated that, following the completion of the incentive auction, it will establish a 39-month transition period (“post-auction transition period”) during which time all full power and Class A television stations that are changing frequencies as a result of the auction must cease operations in those portions of the current broadcast UHF television bands that are being repurposed to wireless use. The Media Bureau will establish a set of construction deadlines for stations that will relocate as a result of the auction, some of which will be given 36 months to complete construction and some of which will have shorter deadlines. The Commission previously determined that all stations must cease operating on their pre-auction channels at the end of the 39-month post-auction transition period regardless of whether they have completed construction of the facilities for their post-auction channel. We seek comment on the extent to which the repacking of stations after the incentive auction presents an opportunity for repacked stations that want to upgrade to ATSC 3.0. What steps should the Commission take to facilitate ATSC 3.0 deployment consistent with the repack and ensure consumers retain the television service they expect while more quickly enjoying the benefits of Next-Generation Television?

76. We also invite comment on how to ensure that the deployment of ATSC 3.0 does not negatively affect the post-incentive auction transition process. What steps should the broadcast industry take to address this issue?

77. CTIA asks that we clarify that ATSC 3.0 equipment is not eligible for reimbursement from the TV Broadcaster Relocation Fund (Reimbursement Fund). All requests for reimbursement from the Reimbursement Fund, including those for ATSC 3.0 capable equipment, will be evaluated consistent with the standards set forth in the Incentive Auction Report and Order. In that order, the Commission recognized that replacement equipment eligible for reimbursement from the Reimbursement Fund “necessarily may include improved functionality,” but stated “[w]e do not . . . anticipate providing reimbursement for new, optional features in equipment unless the station or MVPD documents that the feature is already present in the equipment that is being replaced. Eligible stations and MVPDs may elect to purchase optional equipment capability or make other upgrades at their own cost, but only the cost of the equipment without optional upgrades is a reimbursable expense.”

78. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Federal Communications Commission (Commission) has prepared this present Initial Regulatory Flexibility Analysis (IRFA) concerning the possible significant economic impact on small entities by the policies and rules proposed in the Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

79. In the NPRM, we propose to authorize television broadcasters to use the “Next Generation” broadcast television (Next Gen TV) transmission standard associated with recent work of the Advanced Television Systems Committee (ATSC 3.0) on a voluntary, market-driven basis, while they continue to deliver current-generation digital television (DTV) broadcast service, using the “ATSC 1.0 standard,” to their viewers. ATSC 3.0 is being developed by broadcasters with the intent of merging the capabilities of over-the-air broadcasting with the broadband viewing and information delivery methods of the Internet, using the same 6 MHz channels presently allocated for DTV. According to a coalition of broadcast and consumer electronics industry representatives that has petitioned the Commission to authorize the use of ATSC 3.0, this new standard has the potential to greatly improve broadcast signal reception, particularly on mobile devices and television receivers without outdoor antennas, and it will enable broadcasters to offer enhanced and innovative new features to consumers, including Ultra High Definition picture and immersive audio, more localized programming content, an advanced emergency alert system capable of waking up sleeping devices to warn consumers of imminent emergencies, better accessibility options, and interactive services. With today's action, we aim to facilitate private sector innovation and promote American leadership in the global broadcast industry.

80. In this proceeding, we seek to adopt rules that will afford broadcasters flexibility to deploy ATSC 3.0-based transmissions, while minimizing the impact on, and costs to, consumers and other industry stakeholders. Among other matters, we seek public input on the following issues and proposals:

• Voluntary Use. We propose to authorize voluntary use of ATSC 3.0 transmissions and to incorporate by reference the relevant portions of the ATSC 3.0 standard into our rules. We seek comment on which components of the standard should be incorporated into our rules.

• Local Simulcasting. We propose to require “local simulcasting” for stations that choose to deploy Next Gen TV transmissions so that broadcasters will continue to provide their existing ATSC 1.0-based services to their viewers. We seek comment on a number of issues relating to the implementation of local simulcasting.

• MVPD Carriage. We propose that multichannel video programming distributors (MVPDs) be required to continue carrying broadcasters' ATSC 1.0 signals, but not be required to carry ATSC 3.0 signals during the period when broadcasters are voluntarily implementing ATSC 3.0 service. We also seek comment on issues related to the voluntary carriage of ATSC 3.0 signals through the retransmission consent process.

• Service and Interference Protection. We seek comment on whether Next Gen TV transmissions will raise any interference concerns for existing DTV operations or for any other services or devices that operate in the TV bands or in adjacent bands. We propose to calculate Next Gen TV interference to DTV signals using the methodology and planning factors specified in OET Bulletin 69 (OET-69). We also propose to define a “DTV-equivalent” service area for the Next Gen TV signal using the methodology and planning factors defined for DTV in OET-69 and to define a protection threshold for Next Gen TV signals that would be as robust as an equivalent DTV signal. Moreover, we seek comment on what, if any, additional interference protections are necessary with respect to other services and devices that operate in the TV bands or adjacent bands.

• Public Interest Obligations and Consumer Protection. We propose that television stations transmitting signals in ATSC 3.0 be subject to the public interest obligations currently applicable to television broadcasters. In addition, we seek comment on our tentative conclusion that it is unnecessary at this time to adopt an ATSC 3.0 tuner mandate for new television receivers. We seek comment on whether broadcasters should be required to provide on-air notifications to educate consumers about Next Gen TV service deployment and ATSC 1.0 simulcasting and on how to ensure that deployment of Next Gen TV-based transmissions will not negatively impact the post-incentive auction transition process.

81. The proposed action is authorized pursuant to sections 1, 4, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338, 399b, 403, 534, and 535 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338, 399b, 403, 534, and 535.

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

83. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

84. Cable Companies and Systems (Rate Regulation). The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data indicate that there are currently 4,600 active cable systems in the United States. Of this total, all but nine cable operators nationwide are small under the 400,000-subscriber size standard. In addition, under the Commission's rate regulation rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Current Commission records show 4,600 cable systems nationwide. Of this total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 systems have 15,000 or more subscribers, based on the same records. Thus, under this standard as well, we estimate that most cable systems are small entities.

85. Cable System Operators (Telecom Act Standard). The Communications Act also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” There are approximately 52,403,705 cable video subscribers in the United States today. Accordingly, an operator serving fewer than 524,037 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but nine incumbent cable operators are small entities under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

86. Direct Broadcast Satellite (DBS) Service. DBS Service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber's location. DBS is now included in SBA's economic census category “Wired Telecommunications Carriers.” By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry. The SBA determines that a wireline business is small if it has fewer than 1,500 employees. Census data for 2012 indicate that 3,117 wireline firms were operational during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on that data, we conclude that the majority of wireline firms are small under the applicable standard. However, based on more recent data developed internally by the FCC, currently only two entities provide DBS service, which requires a great deal of capital for operation: DIRECTV and DISH Network. Accordingly, we must conclude that internally developed FCC data are persuasive that in general DBS service is provided only by large firms.

87. Satellite Master Antenna Television (SMATV) Systems, also known as Private Cable Operators (PCOs). SMATV systems or PCOs are video distribution facilities that use closed transmission paths without using any public right-of-way. They acquire video programming and distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. SMATV systems or PCOs are now included in the SBA's broad economic census category, Wired Telecommunications Carriers, which was developed for small wireline businesses. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

88. Home Satellite Dish (HSD) Service. HSD or the large dish segment of the satellite industry is the original satellite-to-home service offered to consumers, and involves the home reception of signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of unscrambled (free) programming and scrambled programming purchased from program packagers that are licensed to facilitate subscribers' receipt of video programming. Because HSD provides subscription services, HSD falls within the SBA-recognized definition of Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

89. Open Video Services. The open video system (OVS) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers. The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA small business size standard covering cable services, which is Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small. In addition, we note that the Commission has certified some OVS operators, with some now providing service. Broadband service providers are currently the only significant holders of OVS certifications or local OVS franchises. The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, again, at least some of the OVS operators may qualify as small entities.

90. Wireless Cable Systems—Broadband Radio Service and Educational Broadband Service. Wireless cable systems use the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) to transmit video programming to subscribers. In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the 10 winning bidders, two bidders that claimed small business status won four licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

91. In addition, the SBA's placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based Educational Broadcasting Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers, which was developed for small wireline businesses. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small. In addition to Census data, the Commission's internal records indicate that as of September 2012, there are 2,241 active EBS licenses. The Commission estimates that of these 2,241 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.

92. Incumbent Local Exchange Carriers (ILECs) and Small Incumbent Local Exchange Carriers. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. ILECs and small ILECs are included in the SBA's economic census category, Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

93. Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. These entities are included in the SBA's economic census category, Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

94. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The SBA has established a size standard for this industry of 750 employees or less. Census data for 2012 show that 841 establishments operated in this industry in that year. Of that number, 819 establishments operated with less than 500 employees. Based on this data, we conclude that a majority of manufacturers in this industry are small.

95. Audio and Video Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing electronic audio and video equipment for home entertainment, motor vehicles, and public address and musical instrument amplification. Examples of products made by these establishments are video cassette recorders, televisions, stereo equipment, speaker systems, household-type video cameras, jukeboxes, and amplifiers for musical instruments and public address systems. The SBA has established a size standard for this industry, in which all firms with 750 employees or less are small. According to U.S. Census data for 2012, 466 audio and video equipment manufacturers were operational in that year. Of that number, 465 operated with fewer than 500 employees. Based on this Census data and the associated size standard, we conclude that the majority of such manufacturers are small.

96. Television Broadcasting. This economic Census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for Television Broadcasting firms: those having $38.5 million or less in annual receipts. The 2012 economic Census reports that 751 television broadcasting firms operated during that year. Of that number, 656 had annual receipts of less than $25 million per year. Based on that Census data we conclude that a majority of firms that operate television stations are small. We therefore estimate that the majority of commercial television broadcasters are small entities.

97. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent.

98. In addition, the Commission has estimated the number of licensed noncommercial educational television stations to be 395. These stations are non-profit, and therefore considered to be small entities.

99. There are also 2,344 LPTV stations, including Class A stations, and 3689 TV translator stations. Given the nature of these services, we will presume that all of these entities qualify as small entities under the above SBA small business size standard.

100. The NPRM proposes to authorize television broadcasters to use the Next Gen TV transmission standard associated with ATSC 3.0 on a voluntary, market-driven basis, while they continue to deliver current-generation DTV broadcast service, using the ATSC 1.0 standard, to their viewers. Under the proposal, Next Gen TV broadcasters that have elected must-carry rights would be required to notify MVPDs prior to transitioning to ATSC 3.0 and arranging for an ATSC 1.0 simulcast. MVPDs would be required to continue carrying broadcasters' ATSC 1.0 signals, but would not be required to carry ATSC 3.0 signals, during the period when broadcasters are voluntarily implementing ATSC 3.0 service. Rather, MVPD carriage of ATSC 3.0 signals would be determined through retransmission consent negotiations. With regard to equipment, the Commission tentatively concludes that it is unnecessary at this time to adopt an ATSC 3.0 tuner mandate for new television receivers.

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

102. Broadcasters. As stated above, the NPRM proposes that broadcaster use of Next Gen TV would be voluntary. We note additionally that the Commission is considering whether small, rural, low-power, and NCE broadcasters would face unique circumstances with regard to the voluntary provision of ATSC 3.0. In the event that a broadcaster chooses to use Next Gen TV, the Commission is considering how to handle issues related to interference that may occur with a voluntary transition to Next Gen TV. The Commission is considering whether to require broadcasters that choose to transition to notify MVPDs and television viewers about the transition via written and on-air notices, respectively. The Commission is also considering an alternative approach, under which simulcast arrangements could be implemented without additional licensing (beyond conversion of the broadcaster's current facility to operate in ATSC 3.0), whereby some broadcasters would be licensed to operate only an ATSC 3.0 facility and others would be licensed to operate only on ATSC 1.0 facility. The NPRM states that the multicast approach to simulcasting may minimize administrative burdens and offer more flexibility to the broadcast industry. On the other hand, it would appear to preclude NCE stations from serving as hosts to the simulcast programming of commercial stations due to the restrictions of section 399B.

103. MVPDs. The NPRM considers issues related to the voluntary carriage of ATSC 3.0 signals through the retransmission consent process. As stated in the NPRM, MVPDs have raised numerous questions about MVPD carriage of ATSC 3.0 signals, including the potentially significant costs and burdens associated with MVPD carriage of ATSC 3.0 signals. The NPRM specifically considers the alternative approach of prohibiting MVPD carriage of ATSC 3.0 signals through retransmission consent negotiations until the ATSC Specialist Group on Conversion and Redistribution of ATSC 3.0 Service produces its initial report, which would ease any burdens of the carriage of ATSC 3.0 signals on MVPDs.

104. Equipment manufacturers. Finally, with regard to equipment manufacturers, the Commission is considering whether to require television receivers manufactured after a certain date to include the capability to receive ATSC 3.0 signals. In the NPRM, the Commission reaches the tentative conclusion that it is unnecessary at this time to adopt an ATSC 3.0 tuner mandate for new television receivers. This approach of instead relying on the market potentially could minimize any impact of the new rules on equipment manufacturers, including smaller manufacturers. If the Commission decides not to adopt a Next Gen TV tuner mandate at this time, the Commission is considering whether it should revise section 15.117(b) of its rules to make clear that this rule does not apply to ATSC 3.0.

105. The NPRM seeks comment on the above issues, with the goal of easing the economic burdens of the new rules and policies on small entities.

G. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule

106. None.

H. Initial Paperwork Reduction Act of 1995 Analysis

107. This NPRM may result in new or revised information collection requirements. If the Commission adopts any new or revised information collection requirements, the Commission will publish a notice in the Federal Register inviting the public to comment on such requirements, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission will seek specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

108. Permit But Disclose. The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. Memoranda must contain a summary of the substance of the ex parte presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with section 1.1206(b) of the rules. In proceedings governed by section 1.49(f) of the rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

109. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).

Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

110. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

111. Availability of Documents. Comments and reply comments will be publically available online via ECFS. These documents will also be available for public inspection during regular business hours in the FCC Reference Information Center, which is located in Room CY-A257 at FCC Headquarters, 445 12th Street SW., Washington, DC 20554. The Reference Information Center is open to the public Monday through Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 a.m.

112. Additional Information. For additional information on this proceeding, contact John Gabrysch, [email protected], of the Media Bureau, Engineering Division, at (202) 418-7152, Sean Mirzadegan, [email protected], of the Media Bureau, Engineering Division, at (202) 418-7111, Evan Baranoff, [email protected], of the Media Bureau, Policy Division, (202) 418-7142, or Matthew Hussey, [email protected], of the Office of Engineering and Technology, (202) 418-3619.

113. It is ordered that, pursuant to the authority found in sections 1, 4, 7, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338, 399b, 403, 534, and 535 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 157, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338, 399b, 403, 534, and 535, the Notice of Proposed Rulemaking in GN Docket No. 16-142 is adopted.

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

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 15 and 73 as follows:

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. This notice announces that proposed Amendments 114/104 to the FMPs are available for public review and comment.

NMFS manages the groundfish fisheries in the exclusive economic zone under the FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.

Amendments 114/104 to the FMPs would amend the Council's fisheries research plan prepared under the authority of section 313 of the Magnuson-Stevens Act. NMFS published regulations implementing the plan on November 21, 2012 (77 FR 70062). The Council's fisheries research plan is implemented through the North Pacific Observer Program (Observer Program) and its purpose is to collect data necessary for the conservation, management, and scientific understanding of the groundfish and halibut fisheries off Alaska.

In December 2016, the Council adopted Amendments 114/104 to integrate electronic monitoring (EM) into the Observer Program. The Observer Program is an integral component in the management of North Pacific fisheries. The Observer Program provides the regulatory framework for NMFS-certified observers (observers) to be deployed onboard vessels to obtain information necessary for the conservation and management of the groundfish fisheries, and, although not managed under the FMPs, the halibut fisheries. The information collected by observers contributes to the best available scientific information used to manage the fisheries in furtherance of the purposes and national standards of the Magnuson-Stevens Act. Observers collect biological samples and information on total catch, including bycatch, and interactions with protected species. Managers use data collected by observers to manage groundfish catch and bycatch limits established in regulation and to document fishery interactions with protected resources. Managers also use data collected by observers to inform the development of management measures that minimize bycatch and reduce fishery interactions with protected resources. Scientists use observer-collected data for stock assessments and marine ecosystem research.

In 2013, the Council and NMFS restructured the Observer Program to address longstanding concerns about statistical bias of observer-collected data and cost inequality among fishery participants with the funding and deployment structure under the previous Observer Program (77 FR 70062, November 21, 2012). The restructured Observer Program established two observer coverage categories: Partial and full. All groundfish and halibut vessels and processors are included in one of these two categories. The partial coverage category includes fishing sectors (vessels and processors) that are not required to have an observer at all times. The partial coverage category includes catcher vessels, shoreside processors, and stationary floating processors when they are not participating in a catch share program with a transferrable prohibited species catch limit. Small catcher/processors that meet certain criteria are also in the partial coverage category. Proposed Amendments 114/104 are designed to integrate EM in the partial coverage category and would not change provisions in the FMP that apply to the full coverage category.

NMFS contracts with an observer provider and determines when and where observers are deployed, based on a scientific sampling design for the partial coverage category. The restructured Observer Program created a new observer funding system to fund observer deployment in the partial coverage category. Vessels and processors in the partial coverage category pay a fee equal to1.25 percent of the fishery ex-vessel value.

The restructured Observer Program includes vessel sectors (the halibut sector and the less than 60 ft. length overall (LOA) groundfish sector) that were not subject to any observer requirements under the previous program. Even before implementing the restructured Observer Program, many vessel owners and operators new to the Observer Program were opposed to carrying an observer (77 FR 70062, November 21, 2012). Vessel owners and operators explained that there is limited space on board for an additional person or limited space in the vessel's life raft. Some vessel owners, operators, and industry representatives advocated for the use of EM instead of having an observer on board their vessels. To address their concerns, the Council and NMFS have been actively engaged in developing EM as a tool to collect fishery data.

In 2013, NMFS developed, and the Council adopted, the Strategic Plan for Electronic Monitoring and Electronic Reporting in the North Pacific to guide integration of monitoring technologies into North Pacific fisheries management and provide goals and benchmarks to evaluate attainment of goals (available on the Alaska Fisheries Science Center Web site at http://www.afsc.noaa.gov/Publications/AFSC-TM/NOAA-TM-AFSC-276.pdf).

In 2014, the Council appointed an EM Workgroup to develop an EM program to integrate into the Observer Program. The EM Workgroup provides a forum for stakeholders, including the commercial fishery participants, NMFS, Alaska Department of Fish and Game, and EM service providers, to cooperatively and collaboratively design, test, and develop EM systems, and to identify key decision points related to operationalizing and integrating EM systems into the Observer Program in a strategic manner. Amendments 114/104 reflect the design and recommendations of the EM Workgroup. Additional information on the work of the EM Workgroup is provided in the Analysis (see ADDRESSES).

The Council and NMFS developed EM for data collection for vessels that use nontrawl gear in the partial coverage category to address their desire for an alternative way to collect fisheries data in consideration of the operating requirements of these fisheries. Nontrawl gear fishery participants identified unique issues with carrying an observer. Vessel owners and operators explained that there is limited space onboard for an additional person or limited space in the vessel's life raft. EM has the potential to reduce economic and operational costs associated with deploying human observers throughout coastal Alaska. Through the use of EM, it may be possible to obtain at-sea data from a broader cross-section of the nontrawl gear fleet at lower cost and increase flexibility to respond to the scientific and management needs of these fisheries.

Proposed Amendments 114/104 would revise the FMPs to include provisions for the use of EM systems in the Executive Summary, Section 3.2.4, Section 3.9, and Appendix A. Under proposed Amendments 114/104, owners or operators of vessels using nontrawl gear in the partial coverage category would be able to choose to use an EM system instead of carrying an observer. An EM system uses cameras, a video storage devise, and associated sensors to passively record and monitor fishing activities. The video is reviewed by an analyst onshore at a later time to collect catch and effort information.

NMFS would contract with an EM service provider to install EM systems on vessels. NMFS would use a portion of the fee revenues to fund EM systems and EM deployment under proposed Amendments 114/104, as authorized by section 313 of the Magnuson-Stevens Act.

The EM service provider would work with the vessel owner or operator to develop the vessel monitoring plan. The vessel monitoring plan would describe how fishing operations on the vessel would be conducted and how the EM system and associated equipment would be configured to meet the data collection objectives and purpose of the EM program. The proposed rule to implement proposed Amendments 114/104 provides the details of the responsibilities of vessel owners or operators if they decide to participate in EM.

Owners or operators of vessels using nontrawl gear could request to be in the EM selection pool. During the fishing year, NMFS would randomly select vessels in the EM selection pool to use an EM system on a fishing trip according to the sampling design in the annual deployment plan (ADP). The ADP would describe how NMFS plans to deploy observers on vessels in the partial coverage category in the upcoming year, to determine the criteria for the EM selection pool and to deploy EM on fishing trips in the upcoming year. NMFS uses the sampling design to generate unbiased estimates of total and retained catch, and catch composition in the groundfish and halibut fisheries. NMFS would make adjustments to the ADP each year after NMFS conducts a scientific evaluation of data collected by observers and EM systems to evaluate the impact of changes in observer and EM system deployment and identify areas where improvements are needed to collect the data necessary to conserve and manage the groundfish and halibut fisheries. The Council and its Scientific and Statistical Committee (SSC) review the ADP each October, receive public comments on the ADP, and make additional recommendations for improvements. NMFS finalizes the ADP in December and releases it prior to the start of the fishing year. NMFS posts the ADP on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov).

Each year, NMFS would also evaluate in the Annual Report how well various aspects of the Observer Program and the EM deployment are achieving program goals, identify areas where improvements are needed, and make recommendations to modify the sampling design in the upcoming ADP. The SSC and Council review the Annual Report each June, and receive public comments on the Annual Report, and make additional recommendations for improvements. NMFS posts the Annual Report on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov).

NMFS is soliciting public comments on proposed Amendments 114/104 through the end of the comment period (see DATES). NMFS intends to publish in the Federal Register and seek public comment on a proposed rule that would implement Amendments 114/104, following NMFS' evaluation of the proposed rule under the Magnuson-Stevens Act. Magnuson-Stevens Act section 313 requires NMFS to provide a 60-day public comment period on the proposed rule and conduct a public hearing in each state represented on the Council for the purpose of receiving public comment on the proposed regulations. The states represented on the Council are Alaska, Oregon, and Washington. NMFS will conduct a public hearing in each of these states (see DATES).

People wanting to make an oral statement for the record at the public hearing are encouraged to provide a written copy of their statement and present it to NMFS at the hearing. If attendance at the public hearing is large, the time allotted for individual oral statements may be limited. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to NMFS.

Respondents do not need to submit the same comments on Amendments 114/104, the proposed rule, and at a public hearing. All relevant written and oral comments received by the end of the applicable comment period, whether specifically directed to the FMP amendments, this proposed rule, or both, will be considered by NMFS in the approval/disapproval decision for Amendments 114/104 and addressed in the response to comments in the final decision. Comments received after end of the applicable comment period will not be considered in the approval/disapproval decision on Amendments 114/104. To be considered, comments must be received, not just postmarked or otherwise transmitted, by the last day of the comment period (see DATES).