DOE has established an early assessment review process to conduct a more focused analysis to evaluate, based on statutory criteria, whether a new or amended energy conservation standard is warranted. Based on the information received in response to the RFI and DOE's own analysis, DOE will determine whether to proceed with a rulemaking for a new or amended energy conservation standard. If DOE makes an initial determination that a new or amended energy conservation standard would satisfy the applicable statutory criteria, or DOE's analysis is inconclusive, DOE would undertake the preliminary stages of a rulemaking to issue a new or amended energy conservation standard. If DOE makes an initial determination based upon available evidence that a new or amended energy conservation standard would not meet the applicable statutory criteria, DOE would engage in notice and comment rulemaking before issuing a final determination that new or amended energy conservation standards are not warranted.

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include ceiling fan light kits (“CFLKs”), the subject of this document. (42 U.S.C. 6295(ff); 42 U.S.C. 6291(50)) EPCA prescribed energy conservation standards for these products, and authorized DOE to consider whether to amend these standards. (42 U.S.C. 6295(ff)(2)-(5))

Under EPCA, DOE's energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d).

DOE must follow specific statutory criteria for prescribing new or amended standards for covered products. EPCA requires that any new or amended energy conservation standard prescribed by the Secretary of Energy (“Secretary”) be designed to achieve the maximum improvement in energy or water efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) The Secretary may not prescribe an amended or new standard that will not result in significant conservation of energy, or is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3))

EPCA also requires that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE evaluate the energy conservation standards for each type of covered product, including those at issue here, and publish either a notice of determination that the standards do not need to be amended, or a notice of proposed rulemaking (“NOPR”) that includes new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) DOE is publishing this RFI in accordance with the 6-year lookback requirement.

EPCA initially established individual energy conservation standards for three groups of CFLKs manufactured on or after January 1, 2007: (1) Those having medium screw base sockets (“Medium Screw Base product class”); (2) those having pin-based sockets for fluorescent lamps (“Pin-Based product class”); and (3) any CFLKs other than those included in the Medium Screw Base product class or the Pin-Based product class, including candelabra screw base sockets (“Other Base Type product class”). (42 U.S.C. 6295(ff)(2)-(4)) In a technical amendment published on October 18, 2005, DOE codified the EPCA requirements for the Medium Screw Base and Pin-Based product classes. 70 FR 60407, 60413. EPCA also specified that if DOE did not issue a final rule on energy conservation standards for Other Base Type product class CFLKs by January 1, 2007, a 190 watt (“W”) limit would apply to those products manufactured after January 1, 2009. (42 U.S.C. 6295(ff)(4)(C)) DOE did not issue a final rule on standards for CFLKs by that date, and published a technical amendment that codified EPCA's requirements for Other Base Type product class CFLKs, which applied to such CFLKs manufactured on or after January 1, 2009. 72 FR 1270, 1273-1274 (Jan. 11, 2007). In another technical amendment final rule to adopt updates to EPCA from the Energy Independence and Security Act of 2007, DOE added a provision that CFLKs with sockets for pin-based fluorescent lamps must be packaged with lamps to fill all sockets. 74 FR 12058, 12069 (Mar. 3, 2009). (42 U.S.C. 6295(ff)(4)(C)(ii))

On January 6, 2016, DOE published a final rule adopting amended performance standards for CFLKs manufactured on or after January 7, 2019. 81 FR 580 (“January 2016 Final Rule”). The January 2016 Final Rule established a minimum efficacy requirement for all CFLKs, expressed in lumens per watt (“lm/W”) that is applicable based on the lumen output of each basic model of lamp packaged with the basic model of CFLK or each basic model of integrated solid-state lighting (“SSL”) in the CFLK basic model. Id. at 81 FR 581. Subsequently, DOE published a final rule that changed the compliance date from January 7, 2019 to January 21, 2020 to comply with Public Law 115-161, “Ceiling Fan Energy Conservation Harmonization Act” (the “Act”), which was signed into law on April 3, 2018. 83 FR 22587 (May 16, 2018). The Act amended the compliance date for the CFLK standards to establish a single compliance date for the energy conservation standards for both CFLKs and ceiling fans. Id. The current energy conservation standards are located in title 10 of the Code of Federal Regulations (“CFR”) part 430, § 430.32(s)(6).

On December 24, 2015, DOE published a final rule (“December 2015 Final Rule”) updating the CFLK test procedure. 80 FR 80209. The currently applicable DOE test procedure for CFLKs appears at 10 CFR part 430, subpart B, appendices V and V1 (“appendices V and V1”).

DOE is publishing this RFI to collect data and information during the early assessment review to inform its decision, consistent with its obligations under EPCA, as to whether the Department should proceed with an energy conservation standards rulemaking. Below DOE has identified certain topics for which information and data are requested to assist in the evaluation of the potential for amended energy conservation standards. DOE also welcomes comments on other issues relevant to its early assessment that may not specifically be identified in this document.

The January 2016 Final Rule established an energy conservation standard for CFLKs that is expected to result in 0.049 quadrillion British thermal units (“quads”) of full-fuel-cycle (“FFC”) energy savings over a 30-year period. 81 FR 580, 582. Additionally, in the January 2016 Final Rule, DOE estimated that an energy conservation standard established at an efficiency level equivalent to that achieved using the maximum available technology (“max-tech”) would have resulted in 0.070 quads of FFC energy savings. 3 81 FR 580, 620.

DOE has established an early assessment review process to conduct a more focused analysis of a specific set of facts or circumstances that would allow DOE to determine that, based on one or more statutory criteria, a new or amended energy conservation standard is not warranted. The purpose of this review is to limit the resources, from both DOE and stakeholders, committed to rulemakings that will not satisfy the requirements in Energy Policy and Conservation Act, as amended (“EPCA”) 1 that a new or amended energy conservation standard save a significant amount of energy, and be economically justified and technologically feasible. See 85 FR 8626, 8653-8654 (Feb. 14, 2020).

As part of the early assessment, DOE publishes a RFI in the Federal Register , announcing that DOE is considering initiating a rulemaking proceeding and soliciting comments, data, and information on whether a new or amended energy conservation standard would save a significant amount of energy and be technologically feasible and economically justified. Based on the information received in response to the RFI and DOE's own analysis, DOE will determine whether to proceed with a rulemaking for a new or amended energy conservation standard.

If DOE makes an initial determination based upon available evidence that a new or amended energy conservation standard would not meet the applicable statutory criteria, DOE would engage in notice and comment rulemaking before issuing a final determination that new or amended energy conservation standards are not warranted. Conversely, if DOE makes an initial determination that a new or amended energy conservation standard would satisfy the applicable statutory criteria or DOE's analysis is inconclusive, DOE would undertake the preliminary stages of a rulemaking to issue a new or amended energy conservation standard. Beginning such a rulemaking, however, would not preclude DOE from later making a determination that a new or amended energy conservation standard cannot satisfy the requirements in the EPCA, based upon the full suite of DOE's analyses. See 85 FR 8626, 8654 (Feb. 14, 2020).

EPCA, among other things, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include dehumidifiers, the subject of this document. (42 U.S.C. 6295(cc))

Under EPCA, DOE's energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d).

EPCA also requires that, not later than six years after the issuance of any final rule establishing or amending a standard, DOE evaluate the energy conservation standards for each type of covered product, including those at issue here, and publish either a notification of determination that the standards do not need to be amended, or a notice of proposed rulemaking (“NOPR”) that includes new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1))

DOE is publishing this RFI to collect data and information to inform its decision consistent with its obligations under EPCA.

On June 13, 2016, DOE published a final rule establishing the current energy conservations for dehumidifiers, and for which compliance has been required beginning June 13, 2019. 81 FR 38338 (“June 2016 Final Rule”). The current energy conservation standards are located in title 10 of the Code of Federal Regulations (“CFR”) part 430, section 32, subsection v. The currently applicable DOE test procedure for dehumidifiers appears at 10 CFR part 430, subpart B, appendix X1 (“Appendix X1”).

DOE is publishing this RFI to collect data and information during the early assessment review to inform its decision, consistent with its obligations under EPCA, as to whether the Department should proceed with an energy conservation standards rulemaking. Accordingly, in the following sections, DOE has identified specific issues on which it seeks input to aid in its analysis of whether an amended standard for dehumidifiers would not save a significant amount of energy or be technologically feasible or economically justified. In particular, DOE is interested in any information indicating that there has not been sufficient technological or market changes since DOE last conducted an energy conservation standards rulemaking analysis for dehumidifiers to suggest a more-stringent standard could satisfy these criteria. DOE also welcomes comments on other issues relevant to its early assessment that may not specifically be identified in this document.

During the June 2016 Final Rule, DOE considered a number of technology options that manufacturers could use to reduce energy consumption in dehumidifiers. DOE seeks comment on any changes to these technology options that could affect whether DOE could propose a “no-new-standards” determination, such as an insignificant increase in the range of efficiencies and performance characteristics of these technology options. DOE also seeks comment on whether there are any other technology options that DOE should consider in its analysis.

While DOE's request for information is not limited to the following issues, DOE is particularly interested in comment, information, and data on the following.

Issue 1: DOE seeks information on the extent of availability and efficiency of dehumidifiers with variable-speed compressors. At the time of the June 2016 Final Rule, variable-speed dehumidifiers had not yet been implemented in residential dehumidifiers, limiting available information on the potential efficiency improvements achievable through their use.

Issue 2: DOE seeks input on whether the maximum available efficiency levels presented below are appropriate and technologically feasible for potential consideration as possible energy conservation standards for the products at issue—and if not, why not.

• Portable, ≤25.00 pints/day, 1.70 L/kWh

• Portable, 25.01-50.00 pints/day, 1.9 L/kWh

• Portable, ≥50.01 pints/day, 3.30 L/kWh

• Whole-home, case volume ≤8.0 cubic feet, 2.09 L/kWh

• Whole-home, case volume >8.0 cubic feet, 3.30 L/kWh

Source: DOE Compliance Certification Management System (“CCMS”) database, as of December 7, 2020.

Issue 3: DOE requests comment on design options that may not be applicable to (or incompatible with) specific product classes.

On June 13, 2016, DOE established energy conservation standards for dehumidifiers that are expected to result in 0.10 quadrillion Btu (“quads”) site energy savings, or 6.7 percent relative to the expected energy use without amending the standards, over a 30-year period. 3 81 FR 38338, 38340. Additionally, in the June 2016 Final Rule, DOE estimated that an energy conservation standard established at an energy efficiency level equivalent to that achieved using the maximum available technology (“max-tech”) would have resulted in 0.19 additional quads of site energy savings. This represents a 13.0 percent reduction in energy use compared to the estimated national energy use at the established energy conservation standard level. If DOE determines that a more-stringent energy conservation standard would not result in an additional 0.3 quads of site energy savings or an additional 10-percent reduction in site energy use over a 30-year period, DOE would propose to make a no-new-standards determination. DOE seeks comment on energy savings that could be expected from more-stringent standards for dehumidifiers.

In determining whether a proposed energy conservation standard is economically justified, DOE analyzes, among other things, the potential economic impact on consumers, manufacturers, and the Nation. DOE seeks comment on whether there are economic barriers to the adoption of more-stringent energy conservation standards. DOE also seeks comment and data on any other aspects of its economic justification analysis from the June 2016 Final Rule that may indicate whether a more-stringent energy conservation standard would not be economically justified or cost effective.

While DOE's request for information is not limited to the following issues, DOE is particularly interested in comment, information, and data on the following.

Issue 4: DOE seeks information on the cost of implementing variable-speed compressors in dehumidifiers.

DOE invites all interested parties to submit in writing by July 6, 2021, comments and information on matters addressed in this notice and on other matters relevant to DOE's early assessment of whether more-stringent energy conservation standards are not warranted for dehumidifiers.

Submitting comments via https://www.regulations.gov. The https://www.regulations.gov web page requires you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. If this instruction is followed, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to https://www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through https://www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through https://www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that https://www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email. Comments and documents submitted via email will be posted to https://www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. Faxes will not be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email two well-marked copies: One copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email to Dehumidifiers2019STD0043@ee.doe.gov. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

DOE considers public participation to be a very important part of the process for developing energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at ApplianceStandardsQuestions@ee.doe.gov.

This document of the Department of Energy was signed on May 21, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend the Class D and Class E airspace at Kodiak Airport, Kodiak, AK, to support IFR operations at the airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2021-0226; Airspace Docket No. 20-AAL-2”. The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th Street, Des Moines, WA 98198.

This document proposes to amend FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 by modifying the Class D airspace at Kodiak Airport, Kodiak, AK. The Class D is not properly sized to contain departing IFR aircraft to 700 feet above the surface or arriving IFR aircraft descending below 1,000 feet above the surface. To properly contain IFR departures, the Class D radius should be increased from 3.1 miles to 4.4 miles, excluding the mountainous terrain west and northwest of the airport and the airspace around Trident Basin Airport.

Additionally, this action proposes to remove the Class E airspace, designated as an extension to a Class D or Class E surface area, east of the airport. This airspace is no longer required to contain arriving IFR aircraft.

Further, this action proposes to modify the Class E airspace extending upward from 700 feet above the surface, by increasing the size of the area east of the airport to properly contain IFR aircraft performing the procedure turn maneuver for the VOR RWY 26 approach.

Lastly, this action proposes to update the geographic coordinates in the third line of the Class D text header to “lat. 57°44′59″ N, long. 152°29′38″ W” and update the term “Airport/Facility Directory” to “Chart Supplement” in the last sentence of the Class D airspace description.

Class D, Class E4, and Class E5 airspace designations are published in paragraphs 5000, 6004, and 6005, respectively, of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The meeting will provide interested parties an opportunity to present views, recommendations, and comments on the proposed airspace.

(a) Registration: To attend the meeting, the public can register here: https://zoom.us/webinar/register/WN_XJe2ZgfQQB2Kr2;WbEIKWIw.

(b) The meeting will be open to all persons on a space-available basis. There will be no admission fee or other charge to attend and participate. The meeting will be informal in nature and will be conducted by one or more representatives of the FAA Eastern Service Area. A representative from the FAA will present a briefing on the planned airspace modifications.

(c) Each participant will be given an opportunity to deliver comments or make a presentation, although a time limit may be imposed to accommodate closing times. Only comments concerning the plan to establish the Harrisburg Class C airspace area will be accepted.

(d) Each person wishing to make a presentation will be asked to note their intent when registering for the meeting so those time frames can be established. This meeting will not be adjourned until everyone registered to speak has had an opportunity to address the panel. This meeting may be adjourned at any time if all persons present have had an opportunity to speak.

(e) Position papers or other handout material relating to the substance of the meeting will be accepted. Participants submitting papers or handout materials should send them to the mail or email address noted in the ADDRESSES section, above.

(f) This meeting will not be formally recorded. However, a summary of the comments made at the meeting will be filed in the rulemaking docket.

Information gathered through this meeting will assist the FAA in drafting a notice of proposed rulemaking (NPRM) that would be published in the Federal Register . The public will be afforded the opportunity to comment on any NPRM published on this matter.

A graphic depiction of the proposed airspace modifications may be viewed at the following URL: https://www.faa.gov/air_traffic/community_involvement/mdt/.

This is a summary of the Commission's Notice of Proposed Rulemaking ( NPRM ), document FCC 21-61, adopted on May 20, 2021, released on May 21, 2021, in CG Docket Nos. 03-123 and 10-51. The full text of document FCC 21-61 is available for public inspection and copying via the Commission's Electronic Comment Filing System (ECFS).

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530.

This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 47 CFR 1.1200 et seq. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

Document FCC 21-61 seeks comment on proposed rule amendments that may result in modified information collection requirements. If the Commission adopts any modified information collection requirements, the Commission will publish another document in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act. Public Law 104-13; 44 U.S.C. 3501-3520.

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

1. In document FCC 21-61, the Commission seeks comment on the adoption of compensation rates for TRS Fund support of providers of VRS.

2. Section 225 of the Communications Act of 1934, as amended (the Act), 47 U.S.C. 225, requires the Commission to ensure the availability of TRS to persons who are deaf, hard of hearing, deafblind, or have speech disabilities, “to the extent possible and in the most efficient manner.” TRS are defined in section 225 of the Act as “telephone transmission services” enabling such persons to communicate by wire or radio “in a manner that is functionally equivalent to the ability of [a person without hearing or speech disabilities] to communicate using voice communication services.” VRS is a form of TRS that allows people with hearing or speech disabilities who use sign language to communicate with voice telephone users through video equipment. VRS is supported entirely by the Interstate TRS Fund (TRS Fund), and VRS providers are paid compensation for the provision of VRS in accordance with the Commission's rules and orders.

3. In 2007, the Commission introduced a tiered rate structure for compensating VRS providers, to reflect the per-minute cost differentials among VRS providers and to ensure both that, in furtherance of promoting competition, the newer providers would cover their costs, and the larger and more established providers were not overcompensated due to economies of scale. Under a tiered rate structure, a VRS provider's monthly compensation payment is calculated based on the application of different rates to specified “tiers” of minutes. The highest rate is applied to an initial tier of minutes up to a defined maximum number, a lower rate is applied to the next tier, again up to a second defined maximum number of minutes, and a still lower rate is applied to any minutes in excess of the second maximum. Since 2007, the Commission has periodically modified the tier structure and rates to align them more closely with the actual costs incurred by providers of varying size and levels of usage.

4. In 2013, the Commission made numerous regulatory changes affecting the VRS program. The Commission directed the Managing Director to contract with a neutral third party to build, operate, and maintain a video communications service platform, which would enable smaller VRS providers to compete more effectively, without having to operate their own service platforms. The Commission also expected that the development of a standard user-device interface would make it easier for smaller providers to compete for customers without having to replace the free devices routinely distributed by the largest VRS provider. After completing such structural reforms, the Commission anticipated being able to transition from the tiered rate structure to a single compensation rate for each element of the relay service. The Commission sought to align annual TRS Fund expenditures more closely with allowable provider costs. The Commission adopted a four-year interim compensation plan, whereby all the tiered rates would be reduced in stages on a “glide path” toward closer alignment with the weighted-average cost of providing VRS.

5. In 2017, the Commission reassessed its VRS compensation policy in light of intervening developments. The neutral VRS platform had proved to be impracticable. To the extent that the 2013 reforms had been implemented, they had not changed market conditions sufficiently to justify adoption of a single compensation rate. Accordingly, the Commission chose to defer consideration of major changes in the compensation system. Instead, to preserve choice among suppliers for VRS users, the Commission decided to maintain tiered compensation rates for the next four years. The Commission adopted a 3-tier rate structure for the four-year period and added an emergent rate to the tiered rate structure applicable to VRS providers with no more than 500,000 total monthly minutes.

6. In setting VRS compensation for Fund Year 2021-22 and beyond, the Commission proposes to continue using a tiered rate structure. The Commission seeks comment on the costs and benefits of this proposal and on the underlying rationale, discussed below.

7. First, developments over the last four years do not appear to warrant reconsideration of the Commission's 2017 assessment that the expectations and assumptions underlying the 2013 proposal to transition away from tiered compensation rates have not been borne out by experience. The reforms introduced in 2013 appear to have run their course, and further competitive improvements resulting from their implementation do not seem likely.

8. Second, certain fundamental facts also appear unlikely to change. VRS addresses a limited segment of the communications marketplace. As a result, there are built-in limitations on total demand for VRS, which appears to have stabilized relative to the high growth rates that occurred 10-15 years ago. Further, the Commission is unaware of any innovations substantial enough to cause a major change in the economics of providing VRS in the foreseeable future.

9. Third, in light of the above, there appears to be little reason to expect major changes in most VRS providers' relative per-minute costs. Today, there are only four certified VRS providers. No new entrants have sought certification to provide VRS since 2011. The current providers continue to operate at dramatically different scales, and there continues to be vast differences in the per-minute costs of VRS providers.

10. Notwithstanding the foregoing limitations, the Commission sees no reason to change the VRS compensation policy objectives the Commission has long pursued: (1) To continue bringing total TRS Fund payments into closer alignment with allowable costs, and (2) to preserve and promote quality-of-service competition among multiple providers. By offering VRS users a choice among multiple providers, the Commission has found, it can most effectively carry out the statutory mandate to ensure that “functionally equivalent” VRS is available to all eligible individuals, “to the extent possible and in the most efficient manner,” in accordance with the Commission's minimum TRS standards and subject to rules that “do not discourage or impair the development of improved technology.” Enabling multiple VRS providers to compete for customers based on service quality, the Commission has found, will best ensure that: (1) Diverse service offerings are available, analogous to those afforded voice service users; (2) niche services are provided to meet the needs of certain segments of the sign language-using population, such as individuals who speak Spanish or are deafblind; and (3) VRS providers have incentives to maintain high standards of service quality and improve their VRS offerings. It might be less costly in the short run to set TRS Fund compensation in such a way that only the lowest-cost VRS provider can continue offering service. However, the Commission continues to believe that in the long run, the removal of competitive choices risks degradation of service quality and elimination of diverse offerings, both of which are needed for functionally equivalent service to all eligible users. And, because “efficient service is not just about cost but also quality,” Sorenson Communications, LLC v. FCC, 897 F.3d 214, 228 (D.C. Cir. 2018), the Commission also believes that a policy of maintaining a choice of service offerings can be pursued consistently with the mandate that TRS be made available “in the most efficient manner.” 47 U.S.C. 225(b)(1). As the D.C. Circuit has explained, “competition promotes efficiency by preventing subpar service from a monopolist who has no fear of losing customers; i.e., it promotes compliance with the service quality required by the mandatory minimum standards.” Sorenson at 229. The Commission seeks comment on these beliefs.

11. Accordingly, in setting compensation policy for the next period, under the current regulatory structure, the Commission tentatively concludes that it will best serve the purposes of section 225 of the Act if it structures VRS compensation to continue supporting an ecosystem in which multiple VRS providers can compete for minutes of use based on quality of service. The Commission seeks comment on this tentative conclusion and the premises set forth above, as well as any relevant data. The Commission also seeks comment on how best to set VRS compensation to promote the above benefits of allowing consumers a choice of VRS providers. Which past measures have succeeded or failed in this regard? What should the Commission's role be, if any, in supporting more effective quality-of-service competition?

12. The Commission invites commenters to suggest alternatives to retaining a tiered-rate compensation methodology. The Commission urges commenters advocating alternatives to explain their proposals in detail, including how such proposals can deliver the benefits that the Commission has found are achievable through VRS competition ( i.e., making functionally equivalent TRS available to all eligible individuals in the most efficient manner, in accordance with minimum TRS standards, without discouraging or impairing the development of improved technology).

13. The Commission seeks comment on two overarching issues. First, should it adopt modified VRS compensation rates at this time, or “freeze” the current rates until a reliable, post-COVID-19 pandemic baseline for cost and demand has been established? Second, if the Commission decides to move forward with rate-setting at this time, should the Commission retain the current setup, with an emergent rate and the current tier structure, or should it eliminate the emergent rate and adopt a modified tier structure, to improve provider incentives and move expenditures closer to costs?

14. In light of the protracted duration of the COVID-19 pandemic, the significant demand changes associated with it, and the consequent increase in uncertainty as to future costs and demand, the Commission seeks comment about the feasibility of setting new VRS compensation rates at this time. In 2020, following the outbreak of the COVID-19 pandemic and efforts to reduce its spread, VRS providers experienced an unanticipated increase in VRS traffic levels. Providers incurred some additional costs resulting from the need for operational adjustments, such as migrating communications assistants from call centers to working at home, and hiring additional staff to cope with increased demand.

15. The TRS Fund administrator reports that the increased expenses incurred by VRS providers during the pandemic were more than offset by increased call volumes, resulting in a significant reduction in providers' average cost per minute from 2019 to 2020. Specifically, average demand has risen during the pandemic period by approximately 25%, and average per-minute provider costs declined from 2019 to 2020 by approximately 5.3%. At this time, the effects of the pandemic continue to be felt across the VRS industry, and it is unclear whether VRS traffic levels will return to a lower, pre-pandemic level. For many years, the Commission has found that the most reliable reference points in setting VRS compensation rates are the actual costs reported for the previous calendar year (in this case 2020) and the projected costs for the current calendar year (in this case 2021). Parties have raised the concern that, if the Commission relies on 2020 and 2021 data (as it would under the current practice), its estimate of per-minute costs could turn out to be understated in relation to actual post-pandemic costs, and rates set in reliance on 2020-21 data might not reasonably compensate VRS providers for the costs they will incur in the next rate period.

16. In light of these uncertainties regarding future VRS costs and demand, should the Commission maintain the existing VRS compensation tiers and rates for the next two TRS Fund rate periods, i.e., until June 30, 2023, to allow the effects of the COVID-19 pandemic to resolve, so that future rates can be set based on cost and demand data that more reliably reflect post-pandemic conditions? Under a rate freeze approach, providers receiving compensation at the emergent rate on June 30, 2021, as well as any new entrants, would continue to be compensated at the emergent rate. Or should the Commission move forward with adopting modified compensation rates based on current cost and demand estimates, which could be adjusted to address the likelihood of a reversion to pre-pandemic demand levels?

17. What are the likely costs and benefits of freezing current compensation rates for two years? The Commission invites advocates of this approach to explain and document the dimensions of any risk of further demand fluctuations they perceive. The Commission also seeks comment on whether such risks could or could not be mitigated by adopting a more conservative approach to ratemaking, such as by relying on 2019 costs as an additional benchmark for rate-setting. According to the TRS Fund administrator's estimate, the current rates allowed providers, on average, to recover 31.4% above allowable expenses in TRS Fund Year 2020-21—operating margins that are substantially above the zone of reasonableness (7.75%-12.35%) the Commission set in 2017. Is the risk of future changes in costs and demand so substantial that it warrants maintaining what appear to be over-compensatory compensation rates? Are there other effects that changing the compensation rate during this period could have on the provision of VRS?

18. In addition, it has been suggested that increased VRS demand, as well as limitations on in-person education during the pandemic, has constricted the current supply of VRS communications assistants as well as the number of American Sign Language (ASL) interpreters entering the training “pipeline” for future availability for VRS employment. The Commission invites commenters to submit any evidence that would support a prediction of additional increases in such labor costs, the likely extent of such increases, and whether such increases are likely to be temporary or permanent.

19. If the Commission decides to move forward and set revised compensation rates for 2022 and beyond, it invites parties to comment on how cost and demand estimates should be adjusted, if at all, to account for possible post-COVID costs and demand. Are 2020 and projected 2021 cost and demand data sufficiently reliable to serve as a reasonable basis to set rates for a new multi-year rate cycle? Should the Commission look only at provider-projected costs, e.g., for 2021 and 2022, without considering historical costs? Alternatively, should the Commission substitute 2019 cost and demand data, in anticipation that VRS costs and demand may decrease to pre-pandemic levels once the pandemic subsides? Or should the Commission assume that demand will remain higher than 2019 levels, and if so, how much higher? What labor cost adjustments, if any, should be applied?

20. If the Commission decides to move forward and adopt a modified VRS compensation plan, what, if any, changes to the current rate structure would be warranted?

21. Emergent rate. The Commission seeks comment on whether to retain or eliminate the emergent rate for VRS providers with no more than 500,000 monthly minutes. Has there been any change in circumstances since 2017 that would justify retaining the emergent rate, notwithstanding the Commission's previously stated intention to terminate the emergent rate after June 2021? The Commission notes that no new applicants have requested certification to provide VRS since 2011. Are any firms currently planning or considering whether to apply for VRS certification? Have relevant circumstances changed for current beneficiaries of the emergent rate? For example, has any provider subject to the emergent rate managed to expand its market share, and if so, to what extent is continued application of the emergent rate still necessary? The Commission also notes that in 2017 it did not purport to assure cost recovery for every emergent VRS provider, but only to provide a reasonable opportunity for cost recovery, on a temporary basis, for those that have demonstrated an ability to grow substantially. Alternatively, are there other benefits from continuing to support very high-cost providers, even if they fail to reduce their per-minute costs substantially? Among the advantages of the tiered-rate system is that it allows support for smaller providers offering “niche” services to meet the needs of subsets of the signing population. Should the Commission make the continued application of the emergent rate conditional on a provider's success in providing specific niche services not offered by others? To assist its determinations regarding tier structure, the Commission seeks comment on the specific services and features offered by each VRS provider. To what extent do providers offer niche services or features targeted to specific user populations, to provide functionally equivalent communication for such users? For example, GlobalVRS states that in addition to providing ASL-to-English VRS, it provides ASL-to-Spanish VRS. Do other providers currently offer ASL-to-Spanish VRS, and to how many customers? Are there significant qualitative differences among such offerings? Which providers, if any, offer a service to deafblind users—and to how many users—that permits the deafblind user to speak using ASL, while the CA communicates to the deafblind user in English or Spanish text that can be read by a refreshable Braille reader? Do other providers offer this type of service, or others, to deafblind users, and if so, what kind of service is offered to how many users?

22. As for costs, in addition to the greater TRS Fund expenditures needed to support very high-cost providers, would the costs of perpetuating a special rate for such providers include lessened incentives to innovate, reduce costs, and grow market share? What other costs result from the emergent rate? Are the benefits of retaining the emergent rate sufficient to justify the costs? If retained, should the Commission alter the maximum-minutes criterion for applying the emergent rate?

23. Tier Structures. The Commission also seeks comment on whether to retain or modify the current tier structures, whereby Tier I includes a provider's first 1 million monthly minutes, Tier II includes additional minutes up to 2.5 million, and Tier III includes all minutes above 2.5 million. The Tier I limit of 1 million minutes was adopted to ensure that as providers grew large enough to leave the emergent category, they would be subject to a rate that reflects their size and likely cost structure and that is appropriately lower than the marginal rate applicable to larger providers. Does this tier boundary continue to be appropriate? For example, has the ZVRS-Purple merger resulted in increased efficiencies? If so, what is the scale of such efficiencies, and does the existence of such efficiencies support the conclusion that substantial economies of scale can be achieved by growing above the benchmark of 1 million monthly minutes? Alternatively, if the emergent rate is eliminated, should Tier I be subdivided, so as to apply different rates, for example, to a provider's first 500,000 and second 500,000 minutes, or to a provider's first 300,000 minutes and its next 700,000 minutes? Are such changes warranted by relevant scale economies in the provision of VRS or a need to support niche services, as discussed above? Would these alternatives unduly limit a provider's incentive to increase its monthly minutes beyond 300,000 or 500,000?

24. The Commission also seeks comment on whether to retain or modify the structures of Tiers II and III. To what extent has the gap in per-minute costs between Sorenson and ZP Better Together, LLC (ZP), narrowed? The Commission seeks comment on whether the retention of a tier boundary at 2.5 million minutes is supported by experience over the past four years. Is the Commission's 2017 finding—that substantial scale economies are likely to be present even at the 2.5 million minutes level—still supportable or are scale economies exhausted below that level? Alternatively, does experience show that substantial economies are likely present above the current boundary? If the current Tier II upper boundary is no longer appropriate, should the boundary be increased or decreased, and to what level? Alternatively, should the Commission create a fourth tier, and with what boundaries? Should the current Tiers II and III be merged? More broadly, how should the Commission account for increasing economies of scale in setting VRS rates, and at what scale do such economies stop increasing? The Commission encourages providers to submit recent real-world data relevant to whether the provision of VRS continues to be characterized by substantial scale economies and the appropriate boundaries for setting tiered rates that reasonably reflect those economies.

25. With respect to all three tiers, what marketplace distortions, if any, may be created by retaining tier boundaries—or drawing new ones—that are not closely correlated to scale economies? What other costs and benefits are relevant to retaining or adjusting the number of tiers or the tier boundaries?

26. Additional Compensation for Specialized Services. The Commission also seeks comment on whether it would serve the objectives of section 225 of the Act for a VRS provider to receive additional per-minute compensation from the TRS Fund (in addition to the amount payable under the tiered formula) for the provision of certain specialized services, such as, for example, service to deafblind consumers, Spanish-ASL interpreting, or responding to requests that Certified Deaf interpreters be added to a call. What criteria should the Commission use to decide which, if any, specialized services should be supported by additional compensation and how to define the circumstances in which such services will be compensated? How should the additional reasonable costs of such services be determined for the purpose of setting an appropriate amount of additional compensation? What measures should the Commission take to prevent waste, fraud, and abuse in the provision of, or requests for, such specialized services?

27. Assuming that the Commission adopts adjusted compensation rates at this time, it seeks comment on the appropriate rate level for each tier. In 2017, the Commission sought to set the rates for each tier to limit the likelihood that any provider's total compensation will be insufficient to provide a reasonable margin over its allowable expenses, and to limit the extent of any overcompensation of a provider in relation to its allowable expenses and reasonable operating margin. The Commission believes it should maintain this goal in setting tiered rates, although by setting rates for providers in discrete size classes based on general cost differentials between large, medium-sized, and small providers, the Commission does not seek or purport to guarantee all providers recovery of their individual costs. The Commission seeks comment on this belief.

28. Operating Margin. The Commission proposes that VRS compensation rates for the next cycle should aim to ensure that the total compensation paid to all providers allows an average recovery of an operating margin above allowable expenses that is within the zone of reasonableness (7.75%-12.35%). The Commission is unaware of relevant changes in financial markets or other conditions affecting the VRS industry that would warrant reassessment of the zone of reasonableness. The Commission seeks comment on this proposal, including any changes that would justify setting a higher or lower range of reasonable operating margins. Is the current allowable operating margin sufficient to attract capital, new entry, and promote functionally equivalent VRS services? What has been providers' experience since 2017? Further, should the Commission set a specific allowed operating margin within this range, and if so, at what percentage?

29. Allowable Costs. To the extent that, notwithstanding the Commission's history of comprehensive consideration of allowable cost issues, parties believe it is important to revisit allowable cost issues, the Commission urges commenters to state specifically in what respects the Commission's prior determinations on allowable costs are no longer valid, describe in detail any respects in which relevant circumstances have changed in the intervening period, and explain how the outcome they seek is consistent with, and furthers the purposes of, section 225 of the Act.

30. Marginal Cost Benchmarks. The Commission continues to believe that marginal cost for a provider of relevant size would be an appropriate benchmark for Tier II or Tier III rates if it can be reasonably estimated. Of particular concern, some VRS providers distribute substantial amounts of free user equipment as a marketing device to add or retain customers. In light of the waste and market disruption that can result from the use of device giveaways to recruit customers, the Commission seeks comment on whether to limit the compensation rates for tiers above Tier I to levels that do not exceed a reasonable percentage above a relevant provider's marginal allowable cost of providing an additional minute of service. The Commission also believes this approach to setting rates will help ensure that the TRS Fund is not providing de facto support for the costs of user devices, contrary to section 225 of the Act and the Commission's longstanding rule precluding the use of the TRS Fund to support such distribution of user devices. The Commission seeks comment on the above-stated beliefs, and on how the Commission should estimate marginal allowable cost for purposes of applying a marginal-cost benchmark. For example, what expense categories should be included or excluded when calculating the marginal cost of providing an additional minute of VRS? Would a per-minute average of the operating expenses reported in Part B of the TRS Fund administrator's annual expense reporting form for VRS providers—which includes salaries and benefits for relay center staff, including communications assistants, telecommunications expenses, billing expenses, and relay center expenses—serve as a reasonable proxy for the marginal expense of providing an additional VRS minute? Should the marginal cost benchmark for a given tier be calculated as a weighted average of the marginal cost for those VRS providers for which that tier currently defines (or is projected to define) the highest applicable rate? The Commission seeks comment on whether marginal cost is an appropriate metric, or whether the Commission should consider alternative metrics. Would marginal-cost benchmarks for Tiers II and III deter continued investment in the service? Would they cause providers to “put on the brakes” and stop competing as the Commission feared in 2017? Or would they appropriately discourage providers from incurring wasteful marketing and other costs? What increment over marginal cost would be needed to ensure that beneficial effects are achieved, and detrimental effects are avoided?

31. Rate Levels. The Commission also seeks comment on where to set rates for the emergent rate (if retained) and Tiers I-III. If the emergent rate is retained, should the Commission increase it, e.g., to the weighted average 2019 cost per minute for the current emergent providers, plus a 10% operating margin, maintain it at the current level of $5.29, or decrease it, e.g., to the weighted average of the emergent providers' projected cost per minute for 2022, plus a 10% operating margin? For Tier I, the Commission seeks comment on whether to increase the rate, e.g., to $5.29 (the current emergent rate), maintain the current $4.82 rate, or reduce it, e.g., to the weighted average of the emergent providers' projected cost per minute for 2022, plus a 10% operating margin. For Tier II, the Commission seeks comment on whether to maintain the rate at $3.97, or decrease it, e.g., to the level of the weighted-average marginal allowable expense per minute (plus a reasonable operating margin) of those providers for which the Tier II rate is the lowest applicable rate. For Tier III, the Commission seeks comment on whether to maintain the current $2.63 rate or decrease it, e.g., to the level of the weighted-average marginal allowable expense per-minute (plus a reasonable operating margin) of those providers for which the Tier III rate is the lowest applicable rate. The Commission also invites parties to submit other suggested rate levels for each tier, with justification and supporting data.

32. To the extent the current tier structure is modified, as discussed above, the Commission seeks comment on appropriate rates for the modified tiers. Are there other factors the Commission should consider in determining appropriate rates of compensation for each tier? As an alternative, should the Commission consider Sorenson's suggestion to establish a unitary compensation rate for non-emergent providers at or about $3.33, the current average per-minute compensation paid across all VRS providers? Should the Commission also consider ZP's proposal that the Commission keep the existing rates but increase the benchmark for Tier II from 2.5 million to 5 million minutes, under the theory, in ZP's view, that doing so would allow continued competition and increased investment in the community? The Commission seeks comment on these proposals.

33. Rate Period. The Commission seeks comment on the duration of the next rate period. In the current circumstances, what rate period will appropriately balance the needs for administrative efficiency, rate certainty, and cost-reduction incentives with the need for a timely review of how VRS costs may change in the future?

34. Glide Path. If the Commission makes substantial reductions in any tiered rate, should it transition to that level in stages to avoid disruption of service to VRS consumers? What would be a reasonable annual percentage rate reduction for this purpose? For IP CTS, the Commission recently adopted a “glide path” for the IP CTS compensation rate, with a 10% annual reduction towards cost-based rates. Would a 10% annual reduction be appropriate for VRS?

35. Price Indexing Adjustments. The Commission seeks comment on whether a price indexing formula, analogous to price-cap factors, should be applied to tiered rates during a multi-year rate period, and on the appropriate indices to use to reflect inflation and productivity. Is the application of price indexing factors needed to ensure that VRS providers have a reasonable opportunity to recover costs, to provide a sufficient incentive to reduce costs, or to prevent overcompensation of providers due to predictable future productivity-related cost declines? If adopted, how should a price-indexing approach be structured in the context of tiered rates, e.g., to account for any disparities in expected productivity gains between small and large providers?

36. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadline for comments specified in the DATES section. The Commission will send a copy of document FCC 21-61 to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

37. The Commission intends to develop a multi-year cost-based compensation rate methodology for VRS. To develop a complete record the Commission seeks comment on maintaining a tiered rate structure, including the specifics for the tiered structure and for setting such rates, and in the alternative, freezing the current rates. The Commission is making these proposals for the purpose of allowing recovery of reasonable provider costs and ensuring that functionally equivalent VRS is provided in the most efficient manner. The Commission seeks comment on these proposals, which include a number of various policy questions and alternatives for consideration.

38. The authority for this proposed rulemaking is contained in sections 1, 2, and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 225.

39. The proposals in the NPRM will affect obligations of VRS providers. These services can be included within the broad economic category of All Other Telecommunications.

40. The proposed compensation methodologies will not create reporting, recordkeeping, or other compliance requirements.

41. The Commission is taking steps to minimize the impact on small entities and considering significant alternatives by identifying multiple methodologies for compensating VRS providers for the provision of VRS. The Commission seeks comment on maintaining tiered rates, including the specifics for the tiered structure and for setting such rates, and in the alternative, freezing the current rates. The Commission will consider these proposals to determine the best compensation methodology for ensuring choice among suppliers for VRS users and to help maintain functionally equivalent service and maintain an efficient VRS market over the long term in accordance with the Commission statutory obligations. The Commission seeks comment on the effect these proposals will have on all entities that provide VRS, including small entities.

42. The Commission also seeks comment from all interested parties. Small entities are encouraged to bring to the Commission's attention any specific concerns they may have with the proposals outlined in the NPRM. The Commission expects to consider the economic impact on small entities, as identified in comments filed in response to the NPRM, in reaching its final conclusions and acting in this proceeding.

43. None.

Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq. ), requires that, within 12 months of receipt of a petition to add a species to, or remove a species from, the Lists of Endangered and Threatened Wildlife and Plants, a finding be made as to whether the requested action is: (a) Not warranted, (b) warranted, or (c) warranted, but precluded by other listing activity. If the action is found to be warranted, section 4(b)(3)(B)(ii) requires a prompt publication in the Federal Register of a general notice and the complete text of a proposed regulation to implement such action.

On October 7, 2019, we received a petition from the Center for Biological Diversity (CBD; CBD 2019, entire) requesting that Tiehm's buckwheat be listed as threatened or endangered, that critical habitat be concurrently designated for this species under the Act, and that the petition be considered on an emergency basis. The Act does not provide for a process to petition for emergency listing; therefore, we evaluated the petition to determine if it presented substantial scientific or commercial information indicating that the petitioned action may be warranted. The Service published a 90-day finding on July 22, 2020 (85 FR 44265), stating that the petition presented substantial scientific or commercial information indicating that listing Tiehm's buckwheat may be warranted.

On September 29, 2020, CBD filed a complaint in the U.S. District Court for the District of Nevada against the Service alleging violations under the Administrative Procedure Act (5 U.S.C. 551 et seq. ); CBD amended the complaint on October 8, 2020, to include a claim under the Endangered Species Act that the Service had missed the 1-year deadline of October 7, 2020, for issuing a 12-month finding for Tiehm's buckwheat. On April 21, 2021, the court issued a decision, and, in response to a stipulated request for a revised remedy order, on May 17, 2021, the court amended the decision and ordered the Service to deliver a 12-month finding on Tiehm's buckwheat to the Federal Register by May 31, 2021. The Service now announces a 12-month finding on the October 7, 2019, petition to list Tiehm's buckwheat.

Tiehm's buckwheat was first discovered in 1983 and described in 1985. All available taxonomic and genetic research information indicates that Tiehm's buckwheat is a valid and recognizable taxon and represents a distinct species. Tiehm's buckwheat is a low-growing perennial herb, with blueish gray leaves and pale, yellow flowers that bloom from May to June and turn red with age. Seeds ripen in late-June through mid-July. Tiehm's buckwheat is a narrow-ranging endemic known only from one population, comprising eight subpopulations, in the Rhyolite Ridge area of Silver Peak Range in Esmeralda County, Nevada. The single population of Tiehm's buckwheat is restricted to approximately 10 acres (4 hectares) across a 3-square-mile area, located entirely on public lands administered by the Bureau of Land Management (BLM). The subpopulations are separated by a rural county unpaved road where subpopulations 1, 2, and 8 occur north of the road, and subpopulations 3, 4, 5, 6, and 7 occur south of the road. A 2019 survey estimated that the total Tiehm's buckwheat population is 43,921 individual plants. Surveys have not detected additional populations of Tiehm's buckwheat.

Tiehm's buckwheat is a soil specialist specifically adapted to grow on its preferred soil type. The species is restricted to dry, open, relatively barren slopes with light-colored rocky clay soils derived from an uncommon formation of interbedded claystones, shales, tuffaceous sandstones, and limestones. Vegetation varies from pure stands of Tiehm's buckwheat to sparse associations with a few other low-growing herbs and grass species. The abundance and diversity of arthropods (insects, mites, and spiders) observed in Tiehm's buckwheat subpopulations is especially high (1,898 specimens from 12 orders, 70 families, and 129 species were found in 2020) for a plant community dominated by a single plant species. Primary pollinator visitors to Tiehm's buckwheat include wasps, beetles, and flies. Tiehm's buckwheat benefits from pollinator services and needs pollination to increase seed production.

The naturally occurring Tiehm's buckwheat population (represented by one population with eight subpopulations) and a seedling transplant experiment suffered detrimental herbivory in 2020. All of the naturally occurring subpopulations experienced greater than 50 percent damage or loss of individual plants, while almost all transplants were lost to rodent herbivores in a 2-week period. An environmental DNA analysis ( i.e., trace DNA found in soil, water, food items, or other substrates with which an organism has interacted) conducted on damaged Tiehm's buckwheat roots, nearby soils, and rodent scat strongly linked small mammal herbivory to the widespread damage and loss of the naturally occurring Tiehm's buckwheat population. This was the first time herbivory was documented on the species, although, prior to 2019, surveys of the population were infrequent. The significance of herbivory in the naturally occurring population depends not only on its frequency and intensity, but whether damaged plants can recover and survive, as we are uncertain if the species will be able to recover from this damage and loss. Rodent herbivore pressure precluded seedling survival in experimental plots. Further studies and monitoring need to be conducted to determine if management to reduce rodent herbivory is necessary to maintain Tiehm's buckwheat individuals and subpopulations, or if it was just a random catastrophic event that is not likely to occur on a regular basis.

The specialized soils on which Tiehm's buckwheat occurs are high in lithium and boron, making this location of high interest for mineral development. In May 2020, Ioneer USA Corporation (Ioneer) submitted a plan of operations to BLM for the proposed Rhyolite Ridge Lithium-Boron project. The proposed project is awaiting BLM permitting and approval for mineral development in the areas where the Tiehm's buckwheat population occurs. Ioneer's proposed Rhyolite Ridge Lithium-Boron project, if permitted by BLM, would result in the loss of habitat and subpopulations 4, 5, 6, and 7, even with the voluntary protection measures included in Ioneer's s project proposal. The potential impact from the proposed project, combined with the loss resulting from the recent herbivory event, would reduce the total Tiehm's buckwheat population by 70 to 88 percent, or from 43,921 individuals to roughly 5,289-8,696 individuals. The number of individuals estimated to survive is a range because we do not know yet if the plants damaged from herbivory will be able to recover and survive. The low end of this range is based on permanent loss of damaged plants, while the high end represents conditions if all the herbivore-damaged plants recover. Dust deposition, generated from increased vehicle traffic associated with mine operations, may also negatively affect the overall health and physiological processes of the subpopulations remaining (1, 2, 3, and 8) after full implementation of the project.

Ioneer is proposing to salvage all remaining plants in subpopulations 4, 5, 6, and 7 by transplanting them to another location. However, we are uncertain whether the salvage operation will succeed because current research indicates that Tiehm's buckwheat is a soil specialist, that adjacent unoccupied sites are not suitable for all early life-history stages, and there has been no testing and multiyear monitoring on the feasibility of successfully transplanting the species. The impact to Tiehm's buckwheat from mining, salvage operations, or both would be permanent and irreversible under the proposed project because the plants and the land on which they are currently growing, including any existing seed bank in the soil, would be completely removed, and in place of that site there would be a terminal quarry lake. The terminal quarry lake would develop when the mining operation ceased pumping out the anticipated groundwater that would infiltrate the quarry. Elimination of these subpopulations may remove corridors for pollinator movement, seed dispersal, and population expansion. There is strong evidence that subpopulation 6 is the most resilient of the eight Tiehm's buckwheat subpopulations. This subpopulation contains multiple life stages of individual plants, including the majority of older and larger plants across all populations. In addition, subpopulation 6 has the most variety in size classes of individual plants, indicating it is likely experiencing the most recruitment. Loss of subpopulation 6, in particular, may have an immense impact on the overall resiliency and continued viability of the entire Tiehm's buckwheat population.

In addition to the direct impacts from the physical removal of subpopulations as a result of the project, road development and vehicle traffic associated with the proposed mine, as well as livestock grazing which currently occurs within the Tiehm's buckwheat population as part of the BLM's Silver Peak allotment, may create conditions that further favor the establishment of nonnative invasive species within Tiehm's buckwheat habitat. Mineral exploration has already impacted Tiehm's buckwheat habitat by contributing to the spread of saltlover ( Halogeton glomeratus ), a nonnative invasive plant species, within all subpopulations of the species. Mineral exploration activities can result in disturbance to natural soil conditions that support Tiehm's buckwheat and encourage spread of saltlover, which alters the substrate by making the soil more saline and less suitable as habitat for Tiehm's buckwheat. Mineral exploration vehicles also can carry the seeds of nonnative invasive plant species into the area. Road improvements also allow easier and greater access for recreational vehicles and off-highway vehicles (OHVs), with OHV impacts documented in subpopulation 1. Both livestock grazing and OHV use can kill or damage individual plants and modify Tiehm's buckwheat habitat through fragmentation and soil compaction.

In addition, Tiehm's buckwheat is adapted to dry upland sites, subject only to occasional saturation by rain and snow. Under climate change predictions, we anticipate alteration of precipitation and temperature patterns, as models forecast warmer temperatures and slight increases in precipitation. The timing and type of precipitation received (snow vs. rain) may impact plant transpiration and the soil water recharge needed by Tiehm's buckwheat. Additionally, variability in interannual precipitation combined with increasing temperatures, as recently seen from 2015 through 2020, may make conditions less suitable for Tiehm's buckwheat by bolstering local rodent populations. High rodent abundance combined with high temperatures and drought may have contributed to the large herbivore impacts in 2020 in both the transplant experiment and native population. Thus, climate change may exacerbate impacts from other threats currently affecting this species and its habitat.

Tiehm's buckwheat does not currently receive regulatory protection from the State of Nevada. BLM has designated Tiehm's buckwheat as a sensitive species. However, BLM's regulations require operators to avoid adverse effects only to species listed as threatened or endangered under the Act and their habitat (43 CFR 3809.420(b)(7)), not sensitive species. Also, under BLM's regulations operators may explore, place mining claim monuments, and cause a surface disturbance of up to 5 acres after an operator gives notice to BLM and waits 15 days (43 CFR 3809.21(a)). BLM lacks discretion to require conservation measures for sensitive species as a condition for exploring for or developing minerals subject to disposal under the Mining Law of 1872, as amended (30 U.S.C. 22-54). In some circumstances, operators may include voluntary commitments to undertake protection or conservation measures as part of their proposed mining operations, as Ioneer has done in its proposed mine plan.

Based upon the preceding information, the totality of threats described above, and other information contained in the Tiehm's buckwheat Species Status Assessment (SSA), the Service has determined that the petitioned action to list Tiehm's buckwheat under the Endangered Species Act of 1973, as amended, is warranted. The Service, therefore, will promptly publish a proposed rule to list Tiehm's buckwheat. We will open a public comment period at the time of publication of the proposed rule. Any information received from the public prior to the publication of the proposed rule will be considered and addressed when we address comments received on the proposed rule.

This document was prepared by the U.S. Fish and Wildlife Service, Reno Fish and Wildlife Office, 1340 Financial Blvd., Suite 234, Reno, NV 89521 and the U.S. Fish and Wildlife Service, Regional Office, 2800 Cottage Way, Sacramento, CA 95825.

The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

NMFS manages U.S. salmon fisheries off of Alaska under the Salmon FMP. The Council prepared, and the Secretary of Commerce (Secretary) approved, the Salmon FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations implementing the Salmon FMP are located at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600. The Council is authorized to prepare and recommend an FMP amendment for the conservation and management of a fishery managed under the FMP. NMFS conducts rulemaking to implement FMP amendments and regulatory amendments.

The Council recommended Amendment 14 to incorporate the Cook Inlet EEZ Subarea (defined as EEZ waters north of a line at 59°46.15′ N) into the Salmon FMP's Fishery Management Unit as a part of the West Area. The West Area is currently defined as the EEZ off Alaska in the Bering Sea, Chukchi Sea, Beaufort Sea, and the Gulf of Alaska west of the longitude of Cape Suckling, at 143°53.6′ W longitude except for the Cook Inlet Area, the Prince William Sound Area, and the Alaska Peninsula Area. This proposed rule would implement Amendment 14.

A notice of availability (NOA) for Amendment 14 was published in the Federal Register on May 18, 2021 with comments invited through July 19, 2021. All relevant written comments received by July 19, 2021, whether specifically directed to the NOA or this proposed rule, will be considered by NMFS in the decision to approve, disapprove, or partially approve Amendment 14. Commenters do not need to submit the same comments on both the NOA and this proposed rule. Comments submitted on this proposed rule by the end of the comment period for this proposed rule (See DATES ) will be considered by NMFS in our decision whether to approve and implement Amendment 14.

In December 2020, the Council recommended Amendment 14 to the Salmon FMP. Amendment 14 would incorporate the Cook Inlet EEZ Subarea into the Salmon FMP's West Area, thereby bringing the Cook Inlet EEZ Subarea and the commercial salmon fisheries that occur within it under Federal management by the Council and NMFS. The management measure implemented by Amendment 14 would apply the prohibition on commercial salmon fishing that is currently established in the West Area to the newly added Cook Inlet EEZ Subarea. This proposed rule would implement Amendment 14 by removing the regulation that excludes the Cook Inlet EEZ Subarea from the directly adjacent West Area. This action specifically addresses management of the Cook Inlet EEZ Subarea and the commercial salmon fishery that occurs there.

The Council's Salmon FMP manages the Pacific salmon fisheries in the EEZ from 3 nautical miles to 200 nautical miles off Alaska. The Council developed the Salmon FMP under the Magnuson-Stevens Act, and it first became effective in 1979. The Salmon FMP was comprehensively revised by Amendment 3 in 1990 (55 FR 47773, November 15, 1990), and again most recently by Amendment 12 in 2012 (77 FR 75570, December 21, 2012).

Since 1979, the Council has divided the Salmon FMP's coverage into the West Area and the East Area, with the boundary between the two areas at Cape Suckling, at 143°53.6′ W longitude. This action focuses on commercial salmon fishing management in the West Area. Prior to Amendment 12, the Salmon FMP authorized commercial fishing in the East Area, sport salmon fishing in both areas, and prohibited commercial salmon fishing in the West Area. However, the commercial salmon fishing prohibition in the West Area was not applied to three areas in the EEZ where commercial salmon fishing with nets was originally authorized by the International Convention for the High Seas Fisheries of the North Pacific Ocean, as implemented by the North Pacific Fisheries Act of 1954 (1954 Act). The Salmon FMP refers to these three areas of the EEZ where commercial net fishing for salmon occurs as the “Cook Inlet EEZ,” the “Alaska Peninsula EEZ,” and the “Prince William Sound EEZ,” and refers to these areas collectively as the “traditional net fishing areas.” Under the authority of the 1954 Act, NMFS issued regulations that set the outside fishing boundaries for the traditional net fishing areas as those set forth under State of Alaska (State) regulations and stated that any fishing in these areas was to be conducted pursuant to State regulations.

In 1990, the Council amended the Salmon FMP, continuing to prohibit commercial salmon fishing with nets in the EEZ, with the exception of the traditional net fishing areas managed by the State. The next major modification to the Salmon FMP occurred when the Council recommended Amendment 12 in December 2011. In developing Amendment 12, the Council recognized that the law governing the three traditional net fishing areas (the 1954 Act) had changed and the Salmon FMP was vague with respect to Federal management of the traditional net fishing areas. After considering various alternatives, the Council recommended and NMFS approved Amendment 12, which removed the three traditional net fishing areas from the Salmon FMP's Fishery Management Unit.

Removing the traditional net fishing areas from the Salmon FMP's West Area allowed the State to continue managing these areas independently, which the State has done since before the inception of the Salmon FMP in 1979. Any commercial fishing for salmon by State registered vessels in the traditional net fishing areas is managed solely by the State. In developing Amendment 12, the Council considered Federal management of the three traditional net fishing areas and the salmon fisheries that occur within them, but determined that (1) the State was managing the salmon fisheries within these three areas consistent with the policies and standards of the Magnuson-Stevens Act, (2) the Council and NMFS did not have the expertise or infrastructure (such as personnel, monitoring and reporting systems, and processes for salmon stock assessments) to manage Alaska salmon fisheries, and (3) Federal management of these areas would not serve a useful purpose or provide additional benefits and protections to the salmon fisheries within these areas. The Council recognized that salmon are best managed as a unit throughout their range and separate Federal management of a portion of the fishery would not be optimal. The Council also recognized the State's long-standing expertise and well developed infrastructure for salmon management and the fact that the State has been adequately managing the salmon fisheries in Alaska since Statehood. The Council determined that Amendment 12 was consistent with the management approach established in the original Salmon FMP in 1979.

The final rule implementing Amendment 12 was published in the Federal Register on December 21, 2012 (77 FR 75570). On January 18, 2013, Cook Inlet commercial salmon fishermen and seafood processors filed a lawsuit in Federal district court challenging Amendment 12 and its implementing regulations. United Cook Inlet Drift Ass'n v. NMFS, No. 3:13-cv-00104-TMB, 2014 WL 10988279 (D. Alaska 2014). The lawsuit included a challenge to Amendment 12's removal of the Cook Inlet EEZ from the Salmon FMP. On appeal, the Ninth Circuit held that section 302(h)(1) of the Magnuson-Stevens Act (16 U.S.C. 1852(h)(1)) clearly and unambiguously requires a Council to prepare and submit FMPs for each fishery under its authority that requires conservation and management. United Cook Inlet Drift Ass'n v. NMFS, 837 F.3d 1055, 1065 (9th Cir. 2016). Because NMFS agreed that the Cook Inlet EEZ salmon fishery needs conservation and management by some entity, the Ninth Circuit ruled that the Magnuson-Stevens Act requires that it be included in the Salmon FMP.

The Council spent significant time from 2017 to 2020 developing and evaluating management alternatives to comply with the Ninth Circuit's ruling. The Council broadly identified two management approaches for amending the FMP, one that would incorporate the area into the Salmon FMP and delegate authority over specific management measures to the State with review and oversight by the Council (Alternative 2; Section 2.4 of the Analysis), and one that would incorporate the area into the Salmon FMP and retain all management within the Federal process (Alternative 3; Section 2.5 of the Analysis). The Analysis identified the management measures and processes that would be required to implement these two approaches, as well as the complexities, uncertainties, benefits, costs, and burdens to fishery participants associated with these two approaches. In October 2020, the Council considered all of this information and chose to identify an approach that would incorporate the Cook Inlet EEZ into the Salmon FMP and close the area to commercial salmon fishing as a separate and distinct management alternative (Alternative 4; Section 2.6 of the Analysis). This approach was previously identified as a potential management outcome under Alternative 3. Similar to Alternative 3, Alternative 4 would retain all management within the Federal process and would not delegate management authority to the State. It is also noted that the Council considered taking no action (Alternative 1; Section 2.3 of the Analysis), but this is not a viable approach because it would be inconsistent with the Ninth Circuit ruling and the Magnuson-Stevens Act.

To obtain important participant insight into the management of Cook Inlet salmon fisheries, the Council formed the Cook Inlet Salmon Committee (Committee), consisting of Cook Inlet salmon fishery stakeholders from the harvesting and processing sectors. The Committee met six times from 2018 to 2020 to develop recommendations for the Council regarding management of the Cook Inlet EEZ. Ultimately, the Committee recommended that management be delegated to the State, but with expanded Federal oversight and review, as well as a management scope that included both the State marine and fresh waters of Cook Inlet. The Council did not include the Committee's recommended alternative for further consideration because the Council does not have any jurisdiction over State fresh waters and can only assert jurisdiction over fisheries occurring within State marine waters under very limited circumstances if the Secretary preempts state management under section 306(b) of the Magnuson-Stevens Act (16 U.S.C. 1856(b)). The conditions required for preemption are not met for the salmon fisheries in the State marine waters of Cook Inlet. A more complete discussion of the Committee's work and consideration by the Council can be found in Sections 1.4 and 2.7 of the Analysis, respectively.

Over the course of several years, Federal and State fisheries scientists and fishery managers developed proposed status determination criteria complete with all the reference points required by the Magnuson-Stevens Act for appropriate conservation and management of Cook Inlet salmon stocks. These criteria were reviewed by the Council and its Scientific and Statistical Committee (SSC). This was a significant undertaking and integral to the development and analysis of alternatives. This process included input from State scientists currently managing the fishery, as well as comments from Committee members and other stakeholders. The proposed status determination criteria and reference points served as the foundation for proposed Federal management of the Cook Inlet EEZ under Alternatives 2 and 3 but were also applied retrospectively to provide a comprehensive assessment of the State's escapement-based management of Cook Inlet salmon stocks. The Analysis found that State management of Cook Inlet salmon stocks has been consistently appropriate for conservation within the bounds of the status determination criteria that would be implemented under Federal management. The analysis further determined that the addition of Federal management is unlikely to appreciably change salmon conservation metrics and thresholds established in Cook Inlet (Section 3.1 of the Analysis). However, while conservation objectives for Cook Inlet salmon stocks were consistent across alternatives, the Analysis demonstrated that the ability to fully achieve these objectives while accounting for management uncertainty and management flexibility varied among alternatives (Sections 3.1 and 4.7.1 of the Analysis).

Recognizing the significant regional, cultural, and economic importance of Cook Inlet salmon resources, the Council invested significant resources towards working to find solutions to challenges identified by stakeholders and fishery managers throughout the Salmon FMP amendment development process. While the Council identified some flexibility with the specific management measures that could be implemented under Federal management with specific management measures delegated to the State (Alternative 2) and Federal management (Alternatives 3 and 4), neither the Council, NMFS, the State, nor stakeholders were able to identify another fundamentally different management approach that could satisfy the Ninth Circuit ruling, the Magnuson-Stevens Act, and other applicable law.

After this extensive review and development process, and as explained in further detail below, the Council took final action to recommend Alternative 4 as Amendment 14 to the Salmon FMP. The Council determined, and NMFS agrees, that Federal management of the Cook Inlet EEZ through closure of the area to commercial salmon fishing (1) takes the most precautionary approach to minimizing the potential for overfishing, (2) avoids creating new management uncertainty, (3) minimizes regulatory burden to fishery participants, (4) maximizes management efficiency for Cook Inlet salmon fisheries, and (5) avoids the introduction of an additional management jurisdiction and the associated uncertainty it would add to the already complex and interdependent network of Cook Inlet salmon fisheries.

The Council considered but did not select Alternative 2, which would have delegated management authority over the Cook Inlet EEZ to the State. During Council deliberation, the State announced that it would not accept a delegation of management authority for Cook Inlet. Although section 306(a)(3)(B) of the Magnuson-Stevens Act allows a Council to delegate management authority to a state, subject to a three-quarters majority vote, neither the Council nor NMFS can compel a state to cooperate in a fishery management plan that delegates authority (16 U.S.C. 1856(a)(3)(B)). Therefore, after the State announced it would not accept delegated management authority for the Cook Inlet EEZ, Alternative 2 was no longer a viable option.

Because Alternative 1 (no action) and Alternative 2 (Federal management with specific management measures delegated to the State) were not viable, this focused Council consideration on Alternative 3 (Federal management) and Alternative 4 (Federal management with the Cook Inlet EEZ closed to commercial salmon fishing). The Council considered and rejected Alternative 3. The Council determined, and NMFS agrees, that a separately managed Federal commercial salmon fishery in the Cook Inlet EEZ would have significant management challenges alongside adjacent State-managed salmon fisheries, resulting in precautionary reductions in EEZ salmon harvests or closures of the area as detailed in Sections 2.5 and 4.7.1.3 of the Analysis. When a commercial salmon fishery could occur in the Cook Inlet EEZ, Alternative 3 would create new management uncertainty relative to the status quo because Federal harvest limits must be established preseason and Federal fishery managers do not have the same tools and flexibility available to State managers to quickly respond to updated in-season information about salmon runs that deviate from preseason estimates (Sections 2.5.3 and 2.5.10 of the Analysis). Alternative 3 would increase the risk of overfishing or forgone yield.

For example, if a salmon run is larger than expected and a Federal catch limit for a stock is reached, it is unlikely Federal managers would be able to adjust Federal catch limits to provide for additional harvest in the Cook Inlet EEZ within the window of harvest opportunity. These salmon would later be available for harvest in State waters, but because it would be difficult to predict the timing of Federal closures and such closures could occur with short notice, Alternative 3 is expected to make subsequent utilization in State waters more challenging. Conversely, if the run strength of one or more salmon stocks is weaker than expected, Federal managers would have less data to evaluate this as well as a longer delay to close the fishery, increasing the risk of not meeting escapement goals and overfishing weak stocks. It is important to note that the Cook Inlet salmon fishery targets mixed stocks of salmon. The composition, abundance, and productivity of salmon stocks and species in the fishery varies substantially on an annual basis, and the need to conserve weaker stocks and avoid overfishing by reducing fishing effort sometimes results in foregone harvest from more productive stocks. This is of particular concern for salmon gillnet gear which cannot always target strong stocks while sufficiently limiting harvest on co-occurring weak stocks. These practical considerations, combined with the preseason establishment of catch limits for each stock and stock complex, present significant challenges to consistently achieving appropriate harvest rates on all stocks under Alternative 3.

In addition, NMFS must manage the Federal fisheries under its jurisdiction to prevent overfishing, including accounting for all removals, even when the removals responsible for causing overfishing are outside of NMFS's jurisdiction. Therefore, if the proportion of salmon removals increase in State waters, harvests in the EEZ would be reduced to prevent overfishing. Because of these factors and NMFS's overriding responsibility under the Magnuson-Stevens Act to prevent overfishing, NMFS expects Cook Inlet EEZ catch limits under Alternative 3 would be much more conservative than EEZ harvest levels under the status quo. As a result of limited data, increased management uncertainty, decreased management flexibility, and uncertainty about future State water harvest levels, NMFS expects that Alternative 3 could often require closing the EEZ to commercial fishing to account for uncertainty and prevent overfishing.

Another important consideration under Alternative 3 is the requirement for effective monitoring, recordkeeping, reporting, and enforcement of directly adjacent but separately managed State and Federal salmon fisheries within Cook Inlet. To ensure that salmon catch from the Cook Inlet EEZ could be accurately accounted for in order to avoid exceeding Federal catch limits, additional Federal fishery monitoring would be required (Section 2.5.7 of the Analysis). This would include requiring a Federal Fisheries Permit, completion of a required Federal logbook, and required use of a Vessel Monitoring System (VMS). Federal Fisheries Permits and logbooks would be provided at no cost to participants, but would require time to obtain and complete. The average cost for purchase, installation, and activation of a VMS is estimated at $3,500, and annual variable costs may include transmission costs of around $800 and potential maintenance and repairs averaging $77 (Section 4.7.2.2.6 of the Analysis). While there are grants available to help offset the initial purchase price of a VMS unit, ongoing operation and maintenance costs would be the responsibility of participants. These additional costs and burdens from required monitoring, recordkeeping, and reporting would not be expected to produce commensurate benefits given the anticipated reductions in EEZ harvests and could disproportionately impact economically marginal participants.

Ensuring that vessels participating only in the State waters fishery do not harvest in EEZ waters is another important consideration. As described in Section 2.5.7 of the Analysis, NMFS had concerns about monitoring vessels not registered to participate in the EEZ fishery to ensure that they do not intentionally or inadvertently harvest fish in the EEZ. This concern could be most simply addressed by opening the EEZ drift gillnet fishery at different times than when the State salmon drift gillnet fishery is open to allow for clear enforcement of the single open area. However, staggering the opening of EEZ and State salmon drift gillnet fisheries presents significant feasibility concerns given the dynamic nature of State management and the limited flexibility of Federal managers. For example, a short notice opening in State waters could disrupt a scheduled Federal opening. Additional monitoring of State waters participants could allow for concurrent State and Federal water openings, but this is not a viable solution because FMP requirements could not be imposed on vessels only registered and operating in the State waters drift gillnet salmon fishery.

Under Alternative 3, the annual Council consideration and determination of whether to allow an EEZ fishery would also increase uncertainty for fishery participants and processors, as well as make it difficult for State mangers to optimize management of salmon fisheries within State waters given the strong interactions between all salmon fisheries in Cook Inlet and the potential for highly variable biological and management conditions across Cook Inlet in a given year. For example, multiple sets of State management measures and contingency plans would have to be developed in order to account for (1) whether the EEZ is open in a given year, (2) the potential for multiple salmon stock abundance scenarios, and (3) a potentially unpredictable closure of the EEZ to commercial salmon fishing in a given year if a Federal catch limit is reached sooner than predicted. Therefore, NMFS expects that Alternative 3 would pose significant challenges to achieving optimum yield (OY) on a continuing basis.

Finally, the Council acknowledged that neither the Council nor NMFS currently has the expertise or infrastructure to optimally manage salmon fisheries in the EEZ off Alaska independent of the State. Federal managers would be dependent on a high degree of voluntary cooperation from State managers for successful management of Cook Inlet salmon stocks under Alternative 3. For a commercial salmon fishery to occur in a given year under Alternative 3, the conservation and management conditions described in Section 2.5.3 of the Analysis must be met. These include a Federal salmon data gathering process for Cook Inlet that is adequately supported with data from State salmon fisheries in Cook Inlet, a harvestable surplus of salmon available in the EEZ that could support directed fishery openings, and salmon harvest reporting tools that allow the Federal catch accounting system to adequately monitor harvest and bycatch such that overfishing can be prevented. While management capacity could be developed over time, independent Federal management could nonetheless result in annual closures of the Cook Inlet EEZ due to separate Federal and State management (Section 2.5.3 of the Analysis). Developing expertise would require significant agency resources, and new Federal infrastructure would increase the burden of regulatory compliance on participants. Even with an established Federal infrastructure and experienced managers, it is expected that EEZ harvests would be reduced over the long term for the reasons stated above without significant anticipated conservation and management benefits.

With Amendment 14 and this proposed rule, the Council and NMFS are proposing to amend the Salmon FMP and Federal regulations to comply with the Ninth Circuit's decision, the Magnuson-Stevens Act, and other applicable law. Amendment 14 and this proposed rule would incorporate the Cook Inlet EEZ Subarea into the Salmon FMP's West Area, thereby bringing the Cook Inlet EEZ Subarea and the commercial salmon fisheries that occur within it under Federal management by the Council and NMFS. With Amendment 14, most existing FMP provisions that apply to the West Area, including the prohibition on commercial salmon fishing, would also apply to the Cook Inlet EEZ Subarea.

The reference points of maximum sustainable yield (MSY) and OY would be separately specified for the Cook Inlet salmon fishery. Additionally, an annual catch limit (ACL) would be separately specified for the commercial salmon fishery in the Cook Inlet EEZ Subarea, reflecting the fact that Cook Inlet salmon stocks have historically been harvested in both State and Federal waters. This action would not modify reference points already established for the rest of the existing West Area. MSY would be established for the Cook Inlet salmon fishery as the maximum amount of harvest possible under the State's escapement goals, which is the largest long-term average catch that can be taken by the fishery under prevailing ecological, environmental conditions and fishery technological characteristics ( e.g., gear selectivity), and the distribution of catch among fishery sectors (50 CFR 600.310(e)(1)(i)). This includes the use of indicator stocks to manage where escapement is not directly known. Escapement goals account for biological productivity and ecological factors (Sections 3.1 and 11 of the Analysis). The Cook Inlet salmon fishery includes the stocks of salmon harvested by all sectors within State and Federal waters of Cook Inlet.

The OY range for the Cook Inlet salmon fishery would be the combined catch from all salmon fisheries occurring within Cook Inlet (State and Federal water catch), which results in a post-harvest abundance within the escapement goal range for stocks with escapement goals, and below the historically sustainable average catch for stocks without escapement goals, except when management measures required to conserve weak stocks necessarily limit catch of healthy stocks. This OY is derived from MSY, as reduced by relevant economic, social, and ecological factors. These factors include annual variations in the abundance, distribution, migration patterns, and timing of the salmon stocks; allocations by the Alaska Board of Fisheries; traditional times, methods, and areas of salmon fishing; ecosystem needs; and inseason indices of stock strength.

The Council and NMFS determined that the proposed OY would be fully achieved in Cook Inlet State water salmon fisheries because compensatory fishery effort among various sectors in State waters is expected to make up for closing the Cook Inlet EEZ to commercial salmon fishing. Therefore, Amendment 14 would establish an ACL of zero for the commercial salmon fishery in the Cook Inlet EEZ Subarea. The proposed management measure of closing the Cook Inlet EEZ Subarea to commercial salmon fishing would achieve the proposed ACL. Given that the Cook Inlet EEZ Subarea management measure is fishery closure, additional reference points and accountability measures are not necessary and therefore would not be specified.

This proposed rule would revise the definition of Salmon Management Area at 50 CFR 679.2 to redefine the Cook Inlet Area as the Cook Inlet EEZ Subarea and incorporate it into the West Area. This proposed rule would also revise Figure 23 to 50 CFR part 679 consistent with the revised definition of the Salmon Management Area at § 679.2. As part of the West Area, the Cook Inlet EEZ Subarea would be subject to the prohibition on commercial fishing for salmon at § 679.7(h)(2).

The primary objective of this action is to apply Federal management to the commercial salmon fishery in the Cook Inlet EEZ in accordance with the Magnuson-Stevens Act. In recommending Amendment 14, the Council ultimately concluded that managing the Cook Inlet EEZ by prohibiting commercial salmon fishing optimized conservation and management of Cook Inlet salmon fisheries when considering the costs and benefits of the available management alternatives. Through this proposed action, the Council would continue to apply its longstanding salmon management policy for the West Area, which is to facilitate State salmon management in accordance with the Magnuson-Stevens Act and applicable Federal law. As with the rest of the West Area, this policy would be achieved by prohibiting commercial fishing for salmon in the Cook Inlet EEZ Subarea so that the State can manage Alaska salmon stocks as a unit within State waters. NMFS determined that salmon fishery resources in Cook Inlet can be fully utilized by salmon fisheries occurring within State waters and that the State manages its salmon fisheries based on the best available information using the State's escapement goal management system. This proposed rule would not modify existing State management measures, nor would it preclude the State from adopting additional management measures that could provide additional harvest opportunities for harvesters, including commercial drift gillnet fishermen, within State waters.

This action (1) takes the most precautionary approach to minimizing the potential for overfishing, (2) provides the greatest opportunity for maximum harvest from the Cook Inlet salmon fishery, (3) avoids creating new management uncertainty, (4) minimizes regulatory burden to fishery participants, (5) maximizes management efficiency for Cook Inlet salmon fisheries, and (6) avoids the introduction of an additional management jurisdiction into the already complex and interdependent network of Cook Inlet salmon fisheries.

In developing Amendment 14, the Council considered consistency of the proposed action with the Magnuson-Stevens Act's 10 National Standards (16 U.S.C. 1851) and designed its proposed action to balance their competing demands. While all 10 of the National Standards were considered, five national standards figured prominently in the Council's recommendation for Amendment 14: National Standard 1, National Standard 2, National Standard 7, National Standard 3, and National Standard 8.

National Standard 1 states that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the OY from each fishery for the United States fishing industry. OY is the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities and taking into account the protection of marine ecosystems, that is prescribed on the basis of the MSY from the fishery, as reduced by any relevant economic, social, or ecological factor. This action establishes MSY on the basis of State escapement goals and proxies that were evaluated through the analytical process for this action and determined to be consistent with the goals and objectives of the Salmon FMP and the conservation objectives of the Magnuson-Stevens Act.

For the Cook Inlet salmon fishery, OY is based on the MSY escapement goals, qualitatively reduced to account for management measures required to conserve weak stocks. This OY ensures the Cook Inlet salmon fishery produces the greatest net benefit to the Nation by maintaining an economically viable fishery while still providing recreational and subsistence opportunities, accounting for consumption of salmon by a variety of marine predators, and protecting weaker stocks. As illustrated by Sections 3 and 4 of the Analysis, the State has consistently achieved this OY through its management strategy, and by allowing the State to continue managing Cook Inlet salmon as a unit, NMFS anticipates that OY would continue to be achieved in State water salmon fisheries. Thus, NMFS finds that the proposed OY for the Cook Inlet salmon fishery would be achieved on a continuing basis under Amendment 14.

In addition, by prohibiting commercial salmon harvest in the Cook Inlet EEZ, the Council and NMFS would avoid creating new management uncertainty and reduce the risk of overfishing inherent to an independent Federal management regime that would not be well-suited to respond to in-season data as necessary to adjust harvest levels. Amendment 14 and this proposed rule would enable the State to continue to manage salmon fisheries in State waters to achieve escapement goals and maximize economic and social benefits from the fishery. While the closure of the Cook Inlet EEZ Subarea to commercial fishing impacts a significant proportion of the drift gillnet fleet's harvest, the closure would minimize the possibility of overfishing and would be expected to allow utilization of salmon to be maximized over the long-term among all fishery participants as State management measures are refined to account for a predictable closure of the Cook Inlet EEZ Subarea (Section 4.7.1.4 of the Analysis).

The Council and NMFS properly weighed the adverse economic impacts that are anticipated to occur for some EEZ commercial salmon fishery participants from a closure of the Cook Inlet EEZ Subarea against the risk of overfishing and long-term achievement of OY through State fisheries. The Council and NMFS continue to recognize that the State is best situated to respond to changing conditions inseason to fully utilize salmon stocks consistent with the constraints of weak stock management in a mixed stock fishery. In light of this fact, through this action, the Council and NMFS are fulfilling their duty to manage the Cook Inlet EEZ and have determined that closing the Cook Inlet EEZ to commercial salmon fishing is the management approach most likely to maximize utilization of the resource while preventing overfishing. Management measures under the Salmon FMP and other Federal FMPs, together with the State's scientifically-based management program in State waters of Cook Inlet adjacent to the West Area, would continue to ensure that overfishing of salmon does not occur.

National Standard 2 states that conservation and management measures shall be based upon the best scientific information available. The Council carefully evaluated the available biological, ecological, environmental, economic, and sociological scientific information to determine how to most effectively conserve and manage Cook Inlet salmon resources. This process included SSC review to provide scientific advice for the fishery management decision, evaluation of uncertainty in the development of salmon escapement goals (Section 11 of the Analysis), and a comprehensive description of social and economic conditions in the Cook Inlet salmon fishery (Section 4 of the Analysis), as well as consideration of alternative scientific points of view regarding the potential for overcompensation in Cook Inlet salmon stocks (Section 13 of the Analysis). From this analysis, the Council determined that the State's escapement goal management system is based on and uses the best available scientific information to manage Cook Inlet salmon fisheries. Section 3.1 of the Analysis found State salmon management to be almost entirely consistent with proposed Federal measures for status determination criteria and reference points required by the Magnuson-Stevens Act. Specifically, this Analysis indicated that the State has and is appropriately conserving and managing Cook Inlet salmon stocks, that the State largely could have achieved Federal reference points over that time period, and that independent Federal management would not have been expected to produce significant conservation changes or benefits relative to State management of the salmon fishery based on Federal reference points. The Council also evaluated the social and economic impacts of their action using the best available scientific information.

The very high degree of consistency between existing State management and proposed Federal management was also important in the Council's consideration of National Standard 7, which states that conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication. The proposed management approach of closing the Cook Inlet EEZ to commercial salmon fishing avoids unnecessary duplication of management to the greatest possible extent. The Council did recognize that this action could have significant costs because it closes an area responsible for just under 50 percent of drift gillnet fleet harvests, on average. However, under the only other viable alternative, the Council also expected significant reductions in EEZ harvests and possible fishery closures, but with added participation costs, management costs, and uncertainty, as described above. Ultimately, the Council determined, and NMFS agrees, that this action would provide for sufficient salmon harvest opportunity in State waters to largely offset the costs. In addition, closure of the Cook Inlet EEZ minimizes regulatory burden and participants would not have to track or participate in management of the Cook Inlet salmon fishery across multiple jurisdictions to plan their businesses. Finally, closure of the Cook Inlet EEZ would create the most efficient Cook Inlet salmon management arrangement of the two available management approaches. Under National Standard 7, management measures should not impose unnecessary burdens on the economy, on individuals, on private or public organizations, or on Federal, state, or local governments. As explained in more detail below under Potential Impacts of the Action, when the Council considered the costs and benefits of management by closure under Amendment 14 (Alternative 4), the Council determined, and NMFS agrees, that Amendment 14 is consistent with National Standard 7.

The Council highlighted that management of salmon in Cook Inlet is highly complex, requiring multiple interdependent management plans to achieve sustainable harvest of Cook Inlet salmon stocks that benefit all user groups. National Standard 3 states that to the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination. Given the significant degree of interaction among salmon fisheries in Cook Inlet, management of salmon stocks as a unit throughout all Cook Inlet salmon fisheries is particularly important. Management action in one Cook Inlet salmon fishery often has direct relationships with harvest rates and harvest composition by stock in other regional salmon fisheries. With commercial salmon fishing being prohibited in the Cook Inlet EEZ, all salmon fishing in Cook Inlet would occur within State waters under State management which continues to promote unity of management of Cook Inlet salmon stocks across their range. Separate Federal management under Alternative 3 would significantly disrupt management unity and would impose unnecessary duplication without additional benefits. Optimizing yield within acceptable management uncertainty thresholds is best accomplished by a single management entity in Cook Inlet. Developing Amendment 14 required extensive discussions and coordination between the managers of State and Federal jurisdictions to determine the best means of achieving the FMP's objectives and implementing a comprehensive approach to fishery management. The Council determined, and NMFS agrees, that management by closure of the federal fishery, which allows one jurisdiction (the State) to manage the harvest of salmon stocks as a unit, is consistent with National Standard 3.

The Council acknowledged that this action would likely have adverse impacts on drift gillnet salmon harvesters operating in the Cook Inlet EEZ and their associated communities, but would also likely have corresponding benefits to other salmon users within many of the same communities. National Standard 8 requires that conservation and management measures shall, consistent with the conservation requirements of the Magnuson-Stevens Act, take into account the importance of fishery resources to fishing communities by utilizing economic and social data that are based upon the best scientific information available, in order to (a) provide for the sustained participation of such communities, and (b) to the extent practicable, minimize adverse economic impacts on such communities. The Analysis considered the social and economic importance of the Cook Inlet salmon fisheries to fishing communities, and recognized these communities participate in a variety of salmon fisheries apart from the drift gillnet fishery. While the Analysis identified varying dependence on the Cook Inlet EEZ portion of the Cook Inlet commercial salmon fishery, no community was identified as solely dependent on the EEZ portion of the drift gillnet fishery (Section 4.5.5 of the Analysis). In addition, the Council recognized that closing the Cook Inlet EEZ to commercial salmon fishing would result in additional harvest opportunity in State waters, and that the associated benefits would be distributed across Cook Inlet fishing communities given the diversity of users involved. In all, the Analysis supports a finding that this action would provide for the sustained participation of fishing communities in Cook Inlet salmon fisheries, even if there is some redistribution of benefits. Under this proposed action, it is likely that at least some of these benefits would accrue to communities that also experience adverse impacts based on their engagement and dependence on multiple Cook Inlet salmon fisheries. Therefore, this action is consistent with National Standard 8.

In addition, closure of the Cook Inlet EEZ Subarea would minimize adverse economic impacts to the extent practicable by avoiding the costs of additional monitoring, recordkeeping, and reporting that would be required to access the Cook Inlet EEZ Subarea under Alternative 3, despite reduced harvest opportunities and the annual possibility of closure to account for added uncertainty. Further, National Standard 8 requires NMFS to consider adverse economic impacts within the constraints of conservation and management goals. This action is explicitly intended to prevent overfishing and achieve the conservation and management goals of the Salmon FMP while recognizing that an economically viable fishery would still occur within State waters.

This action would close a portion of the historically used fishing area for the Upper Cook Inlet (UCI) drift gillnet salmon fishery. The UCI drift gillnet salmon fishery currently operates in both State and EEZ Cook Inlet waters without specific reference to the boundary and is the only commercial salmon fishery that would be directly regulated by this action.

As described in Section 4.7.1.4 of the Analysis, the impacts of closing the Cook Inlet EEZ on UCI salmon drift gillnet vessels would be proportional to the extent that they rely on the EEZ. The entire active UCI salmon drift gillnet fleet likely fishes in the Cook Inlet EEZ Subarea at some time during each fishing season, but over the entire season, each vessel differs with respect to its level of economic dependency on fishing in this area. Section 4.5.2.3 of the Analysis describes that from 2009 through 2018 an estimated average of 48.7 percent of gross revenue ($10.3 million) for the UCI drift gillnet fleet was generated from salmon caught in the Cook Inlet EEZ Subarea. In the last 5 years, an estimated average of approximately 42.7 percent of gross revenue ($5.8 million) was generated in the EEZ for the fishery. While UCI drift gillnet vessels could relocate their current EEZ salmon fishing effort to State waters under existing State regulations, their overall harvests may be reduced due to less productive fishing areas, increased travel costs, increased fishery congestion, and potentially less overall productive fishing time available in State waters. Conversely, catch rates in State waters may improve without commercial fishery catch in the EEZ. In addition, State management measures could be adjusted to allow more harvest in state waters to account for the Cook Inlet EEZ closure.

It is not possible to estimate the magnitude of potential harvest reductions to the UCI drift gillnet fleet because of the complexities of Cook Inlet mixed-stock salmon fisheries and intertwined State management plans. If the UCI drift gillnet fleet cannot offset reductions in harvest within State waters due to the closure of the Cook Inlet EEZ Subarea, it is likely that the UCI drift gillnet fleet's revenues and participation in the fishery would decrease. Reductions in harvest by the affected drift gillnet vessels are expected to provide additional harvest opportunity for other commercial and non-commercial salmon users in Cook Inlet. This is expected to offset forgone salmon harvest in the event the drift gillnet fleet is unable to make up its historical EEZ harvest amounts in State waters (Section 4.7.1.4 of the Analysis).

This action would not prohibit or otherwise modify management of salmon fishing in State waters. The UCI drift gillnet fleet is expected to continue to operate in State waters under Amendment 14. It is important to note that State salmon management plans for Cook Inlet have been predicated on the Cook Inlet EEZ Subarea being open to commercial salmon fishing by the drift gillnet fleet. The State would be able to modify management of all Cook Inlet salmon fisheries within State waters to account for the Cook Inlet EEZ Subarea closure.

This action is not expected to have significant impacts to salmon stocks or other affected parts of the environment. The State would continue to manage Cook Inlet salmon stocks within State waters consistent with current practices, and as described above, the State has consistently achieved conservation objectives. As described in Section 3.1.4 of the Analysis, harvest of Cook Inlet salmon stocks is expected to remain near or marginally below existing levels resulting in salmon escapements near or marginally above existing levels.

While no significant impacts to Cook Inlet salmon stocks are expected, a closure of the Cook Inlet EEZ Subarea would have conservation and management benefits resulting from decreased management uncertainty. Importantly, commercial catch of Cook Inlet salmon stocks in the Cook Inlet EEZ Subarea would be prohibited as a result of this action. This could improve management precision and better avoid overfishing as these stocks would be harvested nearer to natal streams where improved escapement data and better information about realized run strength is more likely to be available. This is particularly important given the life history of salmon that only allows for harvest in a single season for terminal fisheries. In the event of lower than expected salmon returns, the State has additional escapement data and can more rapidly take action to avoid a conservation concern using their Emergency Order authority when compared to the Federal rulemaking process because of the challenges described in Sections 2.5.3 and 2.5.10. Similarly, if realized run strength is better than expected, the State can better maximize utilization of surplus production by issuing an Emergency Order to allow for additional harvest opportunities, avoiding uncertainties from unpredictable EEZ closure timing identified in Section 4.7.1.3 of the Analysis.

Additionally, increased passage of salmon stocks into Northern Cook Inlet may have other benefits. Prohibiting commercial catch in the Cook Inlet EEZ Subarea could improve the density of salmon prey available to endangered Cook Inlet belugas present in northern Cook Inlet during the summer months as noted in Section 3.3.1.1 of the Analysis. If there is insufficient harvest capacity operating only in State waters, the escapement of some Cook Inlet salmon stocks could increase. While increased escapement may not be desirable for all stocks in all years, a closure of the Cook Inlet EEZ Subarea to commercial harvest minimizes the possibility of overfishing and would be expected to allow utilization to be maximized over the long term as State management measures are refined to account for a predictable closure of the Cook Inlet EEZ Subarea (Section 4.7.1.4 of the Analysis).

This action would not directly regulate salmon processors, but may affect them. To the extent that this action would decrease catches by the drift gillnet fleet in Cook Inlet that are not offset by increased catch in State waters by the drift gillnet fleet or by other commercial salmon fishing sectors, deliveries of Cook Inlet salmon and associated revenues to processors would be reduced. The impacts to individual processors would be influenced by the dependency on Cook Inlet salmon harvested in the EEZ as described in Section 4.5.4 of the Analysis. The later entry of salmon stocks into the State waters of Cook Inlet may also lead to a later and shorter period of Cook Inlet salmon processing activity. Depending on the business models of individual processors, this could reduce processing efficiency.

The previously mentioned impacts to Cook Inlet salmon harvesters and processors would also have impacts to associated communities in Cook Inlet and elsewhere as described in Section 4.7.1.4 of the Analysis. Decreases in the harvest levels of the UCI drift gillnet fleet under this action would have the potential to differentially affect communities, including communities associated with the UCI drift gillnet fleet and other salmon user groups. For communities engaged in or dependent on harvests by the UCI drift gillnet fleet, the potential adverse impacts to businesses connected to the harvest, processing, or support service sectors could result in greater or lesser localized impacts, depending on the specific nature and magnitude of community engagement in or dependency on the fishery in combination with the varying demographic and socioeconomic attributes of the relevant communities. However, reductions in salmon harvest by the UCI drift gillnet fleet are expected to be offset over the long term by increases to other salmon fishery sectors in these communities. Communities associated with these other salmon fishery sectors ( e.g., the commercial set net, sport, and personal use salmon fisheries), may experience localized benefits based on the specific nature and magnitude of community engagement in or dependency on those other sectors but, as previously noted, it is not possible to estimate the magnitude of potential harvest benefits to these communities. Community level distributive impacts under this action are not anticipated to substantially affect net benefits to the nation (Section 4.10 of the Analysis).

As this action would prohibit commercial salmon fishing in the Cook Inlet EEZ Subarea consistent with existing management in adjacent West Area waters, no additional Federal fishery management measures are required. The West Area prohibition on commercial salmon fishing would continue to be enforced by State and Federal authorities under the revised boundaries resulting from this proposed action.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Salmon FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

A Regulatory Impact Review was prepared to assess costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see ADDRESSES ). The Council recommended and NMFS proposes Amendment 14 and these regulations based on those measures that maximize net benefits to the Nation. Specific aspects of the economic analysis are discussed below in the Initial Regulatory Flexibility Analysis section.

This Initial Regulatory Flexibility Analysis (IRFA) was prepared for this proposed rule, as required by Section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603), to describe the economic impact this proposed rule, if adopted, would have on small entities. The IRFA describes the action; the reasons why this proposed rule is proposed; the objectives and legal basis for this proposed rule; the number and description of directly regulated small entities to which this proposed rule would apply; the recordkeeping, reporting, and other compliance requirements of this proposed rule; and the relevant Federal rules that may duplicate, overlap, or conflict with this proposed rule. The IRFA also describes significant alternatives to this proposed rule that would accomplish the stated objectives of the Magnuson-Stevens Act, and any other applicable statutes, and that would minimize any significant economic impact of this proposed rule on small entities. The description of the action, its purpose, and the legal basis are explained in the preamble and are not repeated here.

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

This action would directly regulate holders of State of Alaska S03H Commercial Fisheries Entry Commission Limited Entry salmon permits (S03H permits). In 2021, 567 S03H permits were held by 502 individuals, all of which are considered small entities based on the $11 million threshold. Additional detail is included in Sections 4.5.3 and 4.9 in the Analysis prepared for this proposed rule (see ADDRESSES ).

The Council considered, but did not select three other alternatives. The alternatives, and their impacts to small entities, are described below.

Alternative 1 would take no action and would maintain existing management measures and conditions in the fishery within recently observed ranges, resulting in no change to impacts on small entities. This is not a viable alternative because it would be inconsistent with the Ninth Circuit's ruling that the Cook Inlet EEZ must be included within the Salmon FMP

Alternative 2 would delegate management to the State. If fully implemented, Alternative 2 would maintain many existing conditions within the fishery. Fishery participants would have the added burdens of obtaining a Federal Fisheries Permit, maintaining a Federal fishing logbook, and monitoring their fishing position with respect to EEZ and State waters as described in Sections 2.4.8 and 4.7.2.2 of the Analysis. However, the State is unwilling to accept a delegation of management authority. Therefore, Alternative 2 is not a viable alternative.

Alternative 3 would result in a Cook Inlet EEZ drift gillnet salmon fishery managed directly by NMFS and the Council. Alternative 3 would increase direct costs and burden to S03H permit holders and fishery stakeholders due to requirements including a Federal Fisheries Permit, VMS, logbooks, and accurate GPS positioning equipment as described in Sections 2.5.7 and 4.7.2.2 of the Analysis. Alternative 3 would also require that a total allowable catch (TAC) be set before each fishing season. The TAC would be set conservatively relative to the status quo in order to reduce the risk of overfishing without the benefit of inseason harvest data. Commercial salmon harvest in the EEZ would be prohibited if the Council and NMFS do not project a harvestable surplus, with an appropriate buffer for the increased management uncertainty. Further, as described in Section 2.5.3 of the Analysis, gaps in data could also require closing the EEZ to commercial fishing in any given year. Finally, Alternative 3 would increase uncertainty each year for fishery participants in developing a fishing plan because NMFS would determine whether the Cook Inlet EEZ could be open to commercial fishing on an annual basis and shortly before the start of the fishing season.

As discussed, Alternative 3 would impose substantial direct regulatory costs on participants while at the same time is not expected to result in consistent commercial salmon fishing opportunities in the Cook Inlet EEZ. Alternative 4 would close the Cook Inlet EEZ but not impose any additional direct regulatory costs on participants and would allow directly regulated entities to possibly recoup lost EEZ harvest inside State waters. As a result, Alternative 4 minimizes impacts to small entities.

Based upon the best available scientific data, and in consideration of the Council's objectives of this action, it appears that there are no significant alternatives to the proposed rule that have the potential to accomplish the stated objectives of the Magnuson-Stevens Act and any other applicable statutes and that have the potential to minimize any significant adverse economic impact of the proposed rule on small entities. After public process, the Council concluded that Alternative 4, the proposed Amendment 14, would best accomplish the stated objectives articulated in the preamble for this proposed rule, and in applicable statutes, and would minimize to the extent practicable adverse economic impacts on the universe of directly regulated small entities.

NMFS has not identified any duplication, overlap, or conflict between this proposed rule and existing Federal rules.

This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

For the reasons set out in the preamble, NOAA proposes to amend 50 CFR part 679 as follows: